The Invisibility of Race at the ICC

This article engages with structural racism, as opposed to individual prejudice, in the workings of the court. Consider how this problem relates to the legitimacy of the court and the pursuit of global justice.

Drawing comparisons between the US criminal justice system and international criminal justice, we argue that much of the current discourse concerning the International Criminal Court’s racial politics is impoverished by being grounded in an overly thin understanding of racism that views it as wholly the product of deliberate racist acts rather than embedded in racist structures.

The recent decision by the International Criminal Court (ICC) not to authorise the Prosecutor’s investigation in Afghanistan is sure to rekindle the debate on the distributive politics of the ICC and, in particular, between those who think that the Court is not working as was hoped, and those who think that, unfortunately, it is working exactly as was expected. Of particular note here is the highly sensitive debate on whether such decisions are embedded in the reproduction of structures of racial ‘knowledge’ and oppression.

The ICC has frequently been criticised for focusing too much on Africa. There are several dimensions to this criticism. Some have pointed out the more persistently neo-colonial aspects of such a focus.[1] As one of us has argued elsewhere, one should deepen this neo-colonial critique by digging historically into the role that criminal justice has always played as part of the colonial project.[2] The focus on Africa is also seen as embedded within a larger project of Western judicial and military imperialism, which consistently obfuscates the crimes of the great powers, while highlighting crimes in the Global South. Beyond broad charges of colonialism and imperialism, however, some, including African elites, have criticised what they see as a specifically racist dimension in the exercise of prosecutorial discretion at the ICC, one that persistently ends up shifting the international judicial gaze towards Black bodies.[3] The charge of racism is obviously connected to that of neo-colonialism and neo-imperialism, but it is also more specific.

It is on this charge that this article focuses, in an attempt to understand its tenor and assess the degree to which the Court’s neo-colonial or imperial biases are best understood as racially coded. The over-representation of Black defendants needs to be parsed carefully for meaning. What matters is not just the disproportion in itself, but what it manifests, the processes by which it is arrived at, and the way in which it is justified. We suggest that claims about the ICC’s racism may, in fact, be even more valid than is commonly thought, but also that such racism is more complex than typically understood. In particular, we argue that it may be less interesting and plausible to see the ICC as racist than to see it as racialising, that is, as part of the ongoing social construction of race. We also suggest that the racism of the Court’s activities lies less in its myopic focus on Black men taken in isolation, than it does in the Court’s refusal to deal head-on with the role that race plays, and has arguably always played, in both criminal justice and international affairs. We are concerned that this stance, typical of ‘racial blindness’—understood as an anti-racist posture that refuses to ‘see’ race as existent or relevant except when it manifests itself through blatant racism— may well end up entrenching what it refuses to acknowledge.

Perhaps predictably, charges of racism have provoked vehement denials that there is anything untoward about the Court’s focus on Africa, especially sub-Saharan Africa. But both accusations of the ICC’s racism and the responses thereto, despite their intensity, have tended to rely on a number of unstated assumptions and an uncertain concept of race. On the one hand, the denunciation of the ICC’s alleged ‘racism’ often does not go far beyond deploring the obvious racialisation of victims and perpetrators, without providing an explicit theory of the sort of racism involved, why or how it might be prevalent, and what its broader effects might be. On the other hand, those who deny that any racism is involved in the work of the ICC often come up with only the most superficial and bland case for the Court’s non-racism.

This article’s assumption is that both ICC critics and apologists have focused too much on asking whether the ICC and its backers are deliberately ‘racist’ or not. We are less interested in that question (thereby impugning the subjective motives of international criminal justice actors) than in assessing the ICC’s relationship with structural forms of racism. In fact, the ICC’s racism, such as it may be, could have nothing to do with the racist sentiments of its agents and, indeed, may thrive despite their subjectively anti-racist intentions. In this vein, we approach discourses of denial of racism more broadly, by theorising how such modes of argumentation, by framing issues of race and racism in a particularly narrow way, perpetuate a blindness to the structural realities of much of contemporary global racism.

This article is inspired by critical race theory’s attempts to explain some of the limits of liberalism as a vehicle to fight entrenched racism.[4] Moreover, it draws on some of our previous work, by combining elements of the study of the legal invisibility of race[5] and the critical analysis of international criminal justice,[6] and studying the latter’s ‘visibility politics’, understood as being concerned with what this regime simultaneously makes socially and legally visible and invisible.[7] In doing so, we ask a series of questions: First, how is something ‘not seen’? What does it mean to not see? How does one produce racial invisibility in a context of otherwise racial hyper-visibility? What is the law’s role in entrenching invisibility? And how can an institution such as the ICC, deeply embedded as it is in a particular anti-racist mindset, nonetheless arguably fall into the trap of being blind to its own role in contributing to processes of racialisation? Second, how is the act of not seeing productive of what one does not see? That is, how is racial invisibility also part of a politics of discreet visibility to certain audiences, and perhaps even of the continued global construction of race itself?

In order to explore these questions, we suggest that much can be gained by adopting a perspective that is informed by conversations that have been going on far longer and in much more explicit and sophisticated ways domestically, most notably in countries such as the US with long histories of racial discrimination and oppression. In particular, we are concerned that the overall enthusiasm for international criminal justice has tended to insulate it from the much harsher tones with which criminal justice has come to be viewed domestically in relation to the prism of race. We draw, in particular, on the considerable theorising that has emerged around the extremely disparate treatment of African-Americans within the US criminal justice system.[8] We suggest that many of the debates and much of the research sparked by the encounter between race and criminal justice in the US can help us to better frame and understand the continuing impasse at the ICC in its dealings with race. By examining this domestic encounter between race and criminal justice, we argue that thin understandings of racism grounded in deliberate racist acts, and neglectful of structural racism, impoverish legal discourses on race and racism both in the US and international criminal justice contexts.

To make this argument, the article proceeds in three parts. First, we provide a cursory overview of the ICC’s limited acknowledgment and treatment of race and provide an initial critique of this through the lens of structural racism. Second, we provide an overview of the study of the racial biases of the US criminal justice system in order to highlight the roles that race plays in the operation of criminal justice and also, crucially, that criminal justice plays in the social construction of race. Third, we return to the ICC to discuss how insights from the US context might be deployed to better understand the ICC’s seeming inability to see structural forms of racism. In particular, we suggest that the ICC’s selective blindness to race may implicate the Court in the perpetuation of certain racist attitudes and beliefs clearly antithetical to its cosmopolitan antiracist aspirations. As such, we suggest that what is at stake is less about specific policies adopted by ICC actors, than a fundamental structure of knowledge underlying the ICC as a global project.

Racial Blindness at the ICC

The ICC was conceived as a cosmopolitan institution intent on eliminating the ravages of, among other things, racially-fuelled violence via the prosecution of genocide and certain discrimination-based crimes against humanity. On this view, the Court’s anti-racist credentials are established merely by the fact that it is tasked with combatting some of the world’s worst, most highly visible, manifestations of racism. This has arguably led to a certain defensiveness when it comes to acknowledging how international criminal justice might, notwithstanding such credentials, be implicated in the global production of race and racism.

The Place of Race at the ICC

As overrepresentation of certain racial groups in any criminal justice system goes, the ICC is almost cartoonesque. As of April 2019, the Court had issued indictments against 45 individuals, juridically transforming them from ‘suspects’ into ‘defendants’. All of these individuals are Black and/or Arab Africans.[9] Given that anti-Black racism continues to be especially prevalent globally,[10] and anti-Arab racism is on the rise, one might think that the denunciation of the ICC’s ‘racism’ would have led to a more deliberate and introspective soul-searching, and perhaps even to a sophisticated effort at grappling with questions of race and racism. Yet, for the most part, the ICC and its core proponents have strongly rejected any notion that race plays a significant role in the work of the Court.

This is not to say that issues of race have been entirely invisible within international criminal justice generally, or at the ICC specifically. The racialised ideology of the Nazis was, for example, a significant factor in ICL itself moving from the realm of theory to that of practice and provided the impetus for the adoption of the Genocide Convention. The ad hoc ICL tribunals for Rwanda and the former Yugoslavia both also dealt with conflicts involving complex ethnic and racial dimensions. When called upon to address issues of race and ethnicity, these two tribunals did so in ways that showed a degree of sophistication by avoiding the trap of biological concepts of race, whilst promoting a notion of race as constructed and subjective.[11]As Carola Lingaas observes, over time, the jurisprudence concerning race emanating from the International Criminal Tribunal for Rwanda (ICTR) has moved progressively closer to embracing a more nuanced and complex understanding of race as an ‘imagined identity’ that is built ‘entirely on variable and contingent perceptions and not on verifiable social facts’.[12]

At the ICC, race is referenced in the Rome Statute as part of the definition of genocide and the crimes against humanity of persecution and apartheid.[13] Aside from these references to race as constituting a protected class of victims, the ICC Statute only explicitly references race in article 21, which provides that the provisions in the Rome Statute are to be applied even-handedly without distinctions of various types, including those based on race.[14] Despite these explicit evocations of race in the Rome Statute, ‘racism’ has been treated as something external to ICL itself, a phenomenon that tribunals are called on to judge and ultimately condemn, rather than something that they might be implicated in. This silence can be contrasted with the treatment of gender, which is highlighted as a relevant factor when it comes to issues such as the election of judges[15] and the appointment of experts by the Office of the Prosecutor (OTP), [16] and more generally has informed countless discussions about international criminal tribunals’ role in combatting and resisting gendered stereotypes, to the point that the OTP released a policy paper outlining its approach to dealing with sexual and gender-based crimes. [17]

There may be several reasons for this intellectual gap. First, as previously noted, the ICC is, on its face at least, an institution that is significantly devoted to the prosecution of crimes of extreme racism. It may, therefore, be that international criminal justice actors see themselves as all the more innocent of racism because they are engaged in the prosecution of the worst and most pathological excesses of global racial politics. Moreover, for an institution that prides itself on being at the forefront of the ‘global justice’ movement, including the struggle against extreme forms of discrimination, even the suggestion that it might be involved in complex processes of racial production is bound to be discomforting. It may seem to such actors that even the smallest acknowledgment of ICL’s role in the global production of race might further impugn the already precarious credibility of institutions such as the ICC.

Second, contemporary international criminal justice has arguably been deeply troubled by what might be termed the ‘facticity’ of race, namely the paradoxical reality that international crimes such as genocide have their origin in outdated notions of race as an actual biological reality that have long been discredited and indeed, have become eminently racist.[18] This was particularly evident in the context of Rwanda, where the ICTR, having found that the ‘Tutsi’ could not be understood as a racial group, struggled even with the notion that they might be considered an ethnic one. The latent fear seems to be that if ICL doctrine were to take ‘race’ too seriously, it might reproduce racist tropes, and thereby further reify race. Indeed, the need to move beyond wholly discredited 19th-century biological understandings of race is one of the main justifications for intentional ‘racial blindness’ as an anti-racist strategy, an approach that is grounded in the perceived need to eliminate ‘race’ itself in order to finally eliminate racism.[19] One consequence of such an approach, however, is a serious difficulty in engaging with and addressing actual instances and processes of racialisation.

Third, by its very design, the ICC is engineered to focus primarily on individual intentionality when it comes to racism. It is almost, then, as if ICL could only see broad social phenomena through a prism of professional deformation. What matters, for example, cannot be the structural racism of colonial and post-colonial Rwanda, but the particular identification with that racism by individuals who have either bought into the flawed logic of such racism or instrumentalised it for their own political ends. The ICC and contemporary international criminal justice are thus more interested in racists than racism, despite ICL’s occasional acknowledgment of the significance of specifically racist ideologies.[20]

Viewing racism in others as primarily a form of individual malevolence fundamentally limits the ability to see racism for what it is. If race only exists through intentional agency, then the ICC can (probably) make a cogent argument that it is in no way racist. The Court, when viewed in this manner, is ‘raceneutral’; not itself implicated in the global production of race, let alone racism, and hence necessarily innocent of that which it prosecutes. This impoverished conceptualisation of race and racism has often led the Court to step into the trap of believing that an institution working in a deeply racialised world can nonetheless operate in a manner wholly emancipated from race and racism.[21]

The ICC’s Tone-Deaf Responses to Race-Based Critiques

The suggestion that the ICC might be implicated in the perpetuation of forms of racism has elicited strong reactions from the Court and its supporters. Many such responses, however, have seemed superficial and even tone-deaf, as if such protestations of innocence were almost too vocal. The most conventional counter-argument has been to the effect that the high representation of racialised African defendants at the ICC is merely a neutral outcome of the application of the law. For example, Luis Moreno-Ocampo, responding in 2009 to the accusation that the Court was ‘targeting Africa following a neo-colonialist agenda’ insisted that his ‘duty is to follow the law’.[22] A typical rhetorical strategy is evident in the following statement by Ocampo:

There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40,000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African. As Desmond Tutu said: Choose your side. Do you associate with the victims or the perpetrators? I am on the victims’ side. I will not apologize for that. [23]

The idea evident in this statement, coincidentally delivered at a conference in South Africa entitled ‘The ICC that Africa Wants’, is that the Prosecutor’s hands are ‘bound’ by the law, and that the exclusive selection of racialised African defendants is hence a natural, race-neutral by-product of the law.[24]

Other arguments have included attempts to deflect accusations of racism based on ad hominem criticisms of those voicing such accusations. For example, according to Ocampo, the ‘Africa bias is a baseless debate started and promoted by [Sudanese] President Bashir.’ [25] The ICC’s principal line of defence in this regard has been to highlight African civil society proponents of the Court; the fact that many of the Court’s judges and professional staff, including its current top prosecutor, Fatou Bensouda, are non-White and hail from Africa; the large number of African ICC State Parties; the presence of African victims and victim advocacy groups; and African self-referrals, all as proof that the ICC is not racially biased.[26] Others have stressed the point that, of course, Africa has a long-term interest in major crimes committed on its territory being prosecuted.[27]

All of these arguments deserve to be part of the conversation. Grand conspiracy theories aside, the argument that the ICC is a deliberately evil, racist organisation—a purposely designed ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ to quote Gambian minister Sheriff Bojang[28]—is ill-conceived. Many of the arguments for the ICC’s racial innocence, however, have themselves grown increasingly stale because they are embedded in superficial understandings of what race and racism themselves are. Most notably, defences of the ICC’s anti-racist credentials remain largely mired in an outdated binary approach to race and racism, viewing them as either products of active, purposive prejudice, or altogether non-existent.

"Blindness about Blindness": On the Possibility of Structural Racism

What the focus on deliberate racism misses is the potential significance of structural discrimination, understood as ‘the policies of dominant race/ ethnic/gender institutions and the behaviour of individuals who implement these policies and control these institutions, which are race/ethnic/gender neutral in intent but which have a differential and/or harmful effect on minority race/ethnic/gender groups’.[29] John Calmore describes structural racism as a form of ‘oppression’ that, unlike ‘discrimination’, ‘[e]xtend[s] beyond disparate treatment’ involving ‘“the inhibition of a group through a vast network of everyday practices, attitudes, assumptions, behaviours, and institutional rules”’.[30] Building on the work of Calmore, John Powell describes structural racism as the reality that ‘[r]acism need not be either intentional or individualist. Institutional practices and cultural patterns can perpetuate racial inequity without relying on racist actors.’[31]

Thus, structural racism refers to the systemic, pervasive, often obscured perpetuation of racially-based inequalities through the totality of society and its institutions. While individual racist attitudes may persist and even prosper against the background of structural racism, individual, purposive racism is not actually needed for structural racism to reproduce itself. In fact, racism may be all the more powerful when it neither relies on, nor even needs, individual racist individuals and actions. Over time, individually racist attitudes metastasise, becoming naturalised as norms that deeply structure a society long after they have become viewed as outdated or shocking. Law often plays a crucial role in carrying some of the prejudices of one era forward into another, not least an international law that sees broad fidelity to its past as a validation of its pedigree.

This deep enmeshment in the fabric of society is the essential perniciousness of structural racism. It is also what makes facile arguments based wholly on the presence or absence of racist intent wrongheaded and inconclusive. Emphasising the existence of structural racism highlights both the stealth of racism and the difficulty of critiquing nominally anti-racist institutions. The point here is that it is much harder to rebut allegations of structural racism than it is to rebut more stereotypical, individualised allegations of racism such as legal segregation or the use of racial epithets. Nonetheless, for those who suspect that structural racism is at work, protestations of individual innocence are bound to sound hollow, even patronising, in a context where a commitment to an anti-racist politics would demand systemic efforts to dismantle racist structures, rather than a mere blanket denial of the existence of race.

The possibility of structural racism being at work, of course, cannot be taken for granted and must be demonstrated. Unveiling the existence of structural racism necessarily involves investigative labour to document racism in all of its complexity. To shed light on the structural racism hypothesis in international criminal justice, we now turn to the US criminal justice system’s own rather emblematic encounter with race and structural racism.

Structural Racism and the US Criminal Justice System

The study of structural racism in domestic criminal justice systems is interesting because it sheds light on the way legal systems entrench certain values and retain traces of various prejudices, long after they have disappeared from polite society. Because most legal systems are formally enmeshed in commitments to equality, their role in perpetuating racial oppression is often obfuscated and complex. The US criminal justice system will be the focus of this section because it represents an example of a system in which the discrepancy between formal racial blindness and the systemic focus on racialised minorities, particularly African-American men, is both quite blatant and oft-denied. The US criminal justice system has also been the subject of some of the more systematic efforts to theorise the relationship between race and criminal justice. What, then, is the precise nature of racial bias in the US criminal justice system and how can a system nominally strongly committed to racial equality end up producing such racial imbalance?

On Not Seeing Race: The Phenomenology of Racial Blindness

Race can be simultaneously seen and acknowledged in certain contexts, while obscured and denied in others. This section considers the phenomenological character of the act of ‘not seeing’, asking how it is that one does ‘not see’ and what one thinks one is seeing instead? We seek to highlight the specific experience of racial blindness as a form of ‘blindness to one’s own blindness’.

The US criminal justice system has a long history of ignoring its own structural discrimination, and indeed, making it procedurally and objectively difficult to prove or even introduce evidence demonstrating such discrimination. As many before us have pointed out, this occurs not despite the system’s commitment to racial blindness as a badge of anti-racism, but, at least in part, because of it. Of course, many criminal justice actors may be quite aware that racialised Americans, especially African-Americans, are, for example, overincarcerated. Yet, these same actors may still not see such imbalances as reflective of biases within the justice system itself. As such, racial blindness prevents the system from becoming fully aware of its own discriminatory biases because it views racism as wholly external to, rather than deeply embedded within, the criminal justice system itself.

Challenging the deep-seated racial biases of the criminal justice system has long seemed an almost impossible task in the US context. This is especially apparent the higher one moves up the appellate ladder, where systemic discriminatory effects should become more apparent. Even confronted with broad, well-substantiated allegations of racially disparate statistics, appellate US courts have been very reluctant to take any ameliorative action, particularly when it comes to criminal justice. The US Supreme Court, for example, when confronted by statistical evidence that structural racism pervades virtually all aspects of the country’s state and federal criminal justice regimes, has made it notoriously difficult for litigants to demonstrate the presence of racism.

For example, in the 1905 case of Ah Sin v. Wittman, a Chinese-American litigant claiming to have been selectively targeted for criminal prosecution under vague anti-gambling laws because of his race, was unsuccessful because he failed to produce evidence that similarly situated non-Chinese-Americans were not being investigated.[32] In Ah Sin, the Supreme Court held that selective prosecution claims turn on burdens of proof and the production of sufficient evidence that relevant criminal justice actors are systematically targeting members of a protected class for self-evidently racist motivations.

This choice to only see racism when it can be clearly connected to individual intentional racism pervades US criminal justice jurisprudence to this day. For example, in 1996, the Supreme Court reaffirmed the basic Ah Sin holding in United States v. Armstrong, concluding that in order to gain access to discovery concerning the exercise of prosecutorial discretion, a defendant alleging that he has been prosecuted because of racial bias must demonstrate that similarly situated White defendants could have been charged, but were not.[33] This highly onerous burden effectively requires defendants making racial profiling allegations to prove almost conclusively the existence of subjective racism within the relevant prosecutor’s office, simply in order to obtain crucial evidence via discovery.[34]

Another example of this refusal to engage with the full reality of contemporary racism is the US Supreme Court’s treatment of race in reviewing prosecutorial decision-making concerning when the death penalty will be pursued in criminal cases. In the much-criticised McCleskey v. Kemp decision, a majority of the Court, despite claiming to be alert to the dangers of racism, held that statistical evidence demonstrating that African-American defendants were disproportionately subjected to the death penalty was not sufficient to raise an inference of unconstitutional racial sentencing bias.[35] Writing for the majority, Justice Powell’s rhetoric seemed to downplay the significance of the ‘complex statistical study’ the claimant relied on, which, according to Powell, at best ‘indicates a risk that racial considerations enter into capital sentencing determinations’.[36] This rhetoric is especially telling considering that the Court was otherwise unanimous in accepting the basic conclusions of the study. Thus, the Court found the findings of the study to be sound, but chose to ignore its clear implications when it came to the obvious systemic racism at work.

Jury deliberations are also a site of racial biases—conscious or not—clearly infiltrating decision-making within the US criminal justice system. While the US Supreme Court has been more willing to see this form of racism, it still seems somewhat fixated on obvious cases involving jurors evincing subjectively racist attitudes. The Court has consistently refused to allow post-trial probing into the deliberations of juries out of fear that it might imperil the secrecy and candour of this process and weaken the finality of jury judgments. Instead, the Court has insisted on a standard requiring proof of ‘statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict’, while only finding bias in cases where ‘the alleged statements by a juror were egregious and unmistakable in their reliance on racial bias’.[37] Although the Court at least acknowledges and seeks to uncover such bias, the approach taken makes tracking far more subtle forms of racism a near impossible task.

Only when racism that is at least partly structural rises to patently obvious levels, such as was the case in the application of New York City’s ‘stop and frisk’ police policy, have US courts been amenable to acknowledging that racism can be pervasive and systemic. Nonetheless, even in a decision finding in favour of claimants alleging racial bias, the presiding judge tellingly linked the New York City Police Department’s institutionalised racism to individual ill-intended racist acts by specific police officers and the ‘deliberate indifference’ of their supervisors thereto, thereby grounding structural racism in intentional racism.[38] This characterisation preserves the presence of subjective racist beliefs and actions as an indispensable ingredient in demonstrating the existence of racism, despite the stark nature of the relevant statistical data.

Ultimately, when it comes to choosing whether to see the systemic and structural aspects of contemporary racism, one might characterise the selective vision of the US judiciary itself as a form of ‘deliberate indifference’ to certain forms of racism. The refusal to see racial inequalities as a form of racism is sometimes excused paradoxically by the acknowledgment that various forms of bias are ‘an inevitable part of [the US] justice system’.[39] This suggests that ‘not seeing’ takes an active desire to turn one’s gaze away from certain complex, uncomfortable questions about race, and the trained habits of a system (and its actors) that make it difficult to challenge such habits. This is achieved through a combination of assuming that no racism is involved; the imposition of particularly onerous burdens of proof; and a tendency to fixate on individual ill-intentioned acts of racism.

Interestingly, the tendency of the US criminal justice system to see race selectively has also produced a number of retorts to the system itself, both from within and outside. Such retorts often try to force more of a connection between racist legacies of the past and a supposedly racially-neutral present. For example, Justice Brennan’s dissent in McCleskey warned of the need to interpret statistics in context, pointing out that:

Evaluation of McCleskey’s evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia’s legacy of a race-conscious criminal justice system, as well as this Court’s own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey’s claim is not a fanciful product of mere statistical artifice. [40]

Brennan further noted Georgia’s glaringly racist ‘dual system’ in which the criminal law itself long differentiated explicitly between White and Black constituencies.[41]

Similarly, in Pen˜a-Rodriguez v. Colorado, the Supreme Court held that although as a rule courts should not revisit jury deliberations, the country’s history of racial discrimination—including within its justice system—creates the need for an exception to this general rule when racism is at issue. As the Court put it, it ‘is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history’.[42] In short, against a politics of invisibility there has also existed a relatively marginal politics of seeking to uncover the reality of structural racism from within the judicial system. However, even such efforts to see more diffuse forms of racism tend to buy problematically into the myth of a race-neutral present in the US being solely troubled by a (now-ended) racist history.

Racial Blindness and Structural Racism

The unwillingness to see manifestations of racism embedded in the US criminal justice system has ramifications that go beyond the mere refusal to ‘see’ the system’s race problem for what it is. Such refusals are also part and parcel of the production of structural racism, which expresses itself through a variety of routes. Substantive law itself, not just the law’s administration, whilst neutral on its face, may be discriminatory. Historically, certain criminal offences have long targeted certain social groups, to the point of being virtually indistinguishable from them. For example, in the US context, explicitly racist slavery laws and thereafter ‘Black Codes’ criminalised certain minor offences (such as, for example, public intoxication or vagrancy) extremely harshly if committed by African-Americans. These were progressively replaced by more facially-neutral laws which nonetheless had a similarly drastic, disproportionate effect on African-American populations, notably in the context of certain criminal drug laws.[43]

The discriminatory aspects of the US criminal justice system, however, are better understood as successive, incremental and, individually nearly invisible slippages, than as a deliberate conspiracy to target certain racial groups. That these slippages are often so hard to see individually does not, however, mean that they are not grossly visible in aggregate. They are a form of death by a thousand, often invisible cuts, creating a situation described by Dragan Milovanovic and Katheryn Russell-Brown as a ‘petit Apartheid’.[44] Structural racism in criminal justice systems thus stems from a vast combination of factors, including, but not limited to: (i) more intrusive, aggressive and systematic policing of racialised communities, often carried out by non-community members; (ii) a greater likelihood of being arrested amidst such heightened surveillance; (iii) limited access to quality defence lawyers; (iv) increased likelihood of being placed in pre-trial detention as a result of non-release orders or exorbitant bail amounts, thus subtly eroding the presumption of innocence; (v) an increased likelihood of being prosecuted; (vi) a higher chance of accepting a plea bargain; (vii) a higher chance of being convicted; (viii) a higher chance of being sentenced to a (longer) prison term or even the death penalty; and (ix) a higher chance of being wrongfully convicted.[45] Thus, the devil of structural racism is in the details, the distance between theory and practice, and the many cracks through which prejudice, be it conscious or unconscious, slips in, rather than in some grand overall racist conspiracy.

Laws conferring discretionary powers on criminal justice actors tend to reveal and encourage structural racism. This is particularly true in the case of prosecutorial discretion, which Angela Davis has described as ‘one of the most significant contributing factors [in] unwarranted racial disparities’.[46] Prosecutors, armed with considerable power and often possessing strong leverage when negotiating plea deals, and who are professionally incentivised to ‘win’ as many cases as possible, are apt to aggressively pursue convictions and harsh sentences against Black defendants.[47] This is often combined with a dramatic reduction of discretion in sentencing, for example, where it might have a moderating effect and enable the taking into account of structural discrimination.[48] The racialised aspects of such discretion on an aggregate basis are evident even where individual prosecutors consider themselves not to be racist.

Another significant source of discretion producing racially disparate outcomes is the jury system. A traditional liberal bulwark against government abuse, juries have often also been implicated in long-standing patterns of discrimination. For example, after the Civil War, all-White juries in the American South systematically acquitted White-on-Black violence whilst convicting Black-on-White violence, even in the absence of strong evidence. An abundance of evidence demonstrates the existence of similar, yet less blatant forms of racial bias creeping into today’s jury boxes.[49]

Racial Blindness and the Production of Race

The inability to challenge the causal role of race means, in effect, that racism is not acknowledged as a factor in the overrepresentation of racialised groups within the criminal justice system. This, in turn, facilitates the suggestion that something other than racism must be causing such overrepresentation: if not racism, then perhaps race itself, understood as an external fact disconnected from its relationship to the criminal justice system itself and henceforth free of the suspicion of racism, may be seen as the culprit.[50] An argument can thus be made that criminal justice regimes are not only oblivious to their own structural racism; but that, in not seeing racism fully for what it is, such regimes themselves powerfully, albeit implicitly, perpetuate racism by contributing to the ongoing negative construction of particular racialised groups.

This argument is made more plausible by the fact that the ideational architecture of criminal justice is itself intertwined with the production of ideas about race. For example, a long line of criminological explanations of crime, particularly in the late 19th century, essentially biologised criminality.

Cesare Lombroso’s idea of the ‘criminal classes’ often intersected with a focus on certain racial groups, as Lombroso was of the view that certain groups, among them ‘Bedouins and the Gypsies[,] can be considered races of organized criminals’.[51] This explicitly racist perspective was used by Lombroso to explain the criminality of the Mafia in Italy, who were viewed as descendants of Arab conquerors of Sicily and were thus, deemed connected to the criminallyinclined Bedouins. Racial connotations also infiltrated longstanding biases concerning the poorer, more criminally-inclined, and coincidentally generally darker-complexioned residents of Southern Italy in comparison to the wealthier, less criminally-inclined, and, of course, generally fairer-complexioned Northerners.[52] Indeed, Lombroso’s quite explicitly racist ideas about predilections to criminality led him to make connections between criminals in Sicily and Southern Italy, and ‘Negroes in the United States’, whom he deemed to share broadly similar characteristics.[53]

These early criminological thinkers—who racialised crime and criminalised race as it were—had a significant influence on the genesis of American criminology.[54] In this context, ‘American racial thinkers co-opted and linked Lombrosianism to racial arguments that successfully sought to defend, detail, and extend racial hierarchies against the threat of change’.[55] Racialised ideas about crime, in fact, prolonged US legacies of racism that had long led the criminal justice system to police the ‘colour line’ both before, but also after the Civil War.[56] Racially-oriented criminal justice discourses about what became known in US criminology as the problem of ‘Black crime’ served to cement the relationship between the two. The enmeshment of ideas about crime and race reinforced a sense of what ‘Blackness’ as a social construct signified. Raciallyinspired criminology, in fact, has been analogised to a form of internal colonialism, one that produced the ‘race’ of its colonial subject, designating as ‘Black’ the subjugated criminal.[57]

Racism, then, also constructs the notions of race it needs to sustain itself. ‘Black crime’ ought to be seen not as a product of race understood as a selfstanding variable, but as a dependent function of the criminal justice system and its role in the socially-constructed category of ‘Blackness’ itself.[58] In fact, the outcome of biased laws, biased policies, and biased practices, is that they tend to produce over time some of the very outcomes that racist logic presupposes. As Guy Johnson once put it, ‘[t]he administration of justice itself is from beginning to end so much a part of the whole system of Negro-white social relations that it must be viewed not only as a process which discriminates against Negroes and thus biases the statistics of crime, but also as a direct and indirect causative factor in the production of Negro crime.’[59] The US criminal justice system thus has a powerful confirmatory bias in that racialised individuals imagined as the causes of crime all along are prosecuted at much higher rates.

When confronted with allegations of its implication in structural racism, criminal justice proponents often attempt to redirect the conversation away from structure and back towards individuals, by pointing to, for example, the support of some African-Americans for tough-on-crime strategies.[60] That such support has indeed existed, however, can certainly not be understood as a blank cheque to let the system’s discriminating proclivities run free.[61]

In this respect, failing to acknowledge race while aggressively prosecuting crimes committed by African-Americans has become part of a feedback loop of racial constructs of privilege and power in the US. This loop socially constructs African-Americans, especially men, as dangerous, violent, and prone to criminality, thereby perpetuating racist stereotypes. The racial category of ‘Blackness’ is then implicitly associated with ‘crime’.[62]As a result, the system constantly provokes itself into a cycle of action and reaction further justifying modalities of aggressive outside intervention into racialised communities. This process thus has all the hallmarks of a self-fulfilling prophecy—it is condemned to exacerbate a problem that it refuses to see—and quickly ceases to be the solution to a dangerousness it has designated and perhaps even created.

Racial Blindness and International Criminal Justice

How might understandings of structural racism in the US criminal justice system inform our understanding of the focus on racialised African defendants at the ICC and the relationship between ICL and the global construction of race more generally? Transferring race analyses from the domestic context to the international sphere is not without its challenges. Race itself invariably means something different internationally than it does domestically. The racial category of ‘Blackness’, in particular, may mean something quite specific in the US context, where it is linked to legacies of slavery, Jim Crow and other histories of racial oppression. There are, moreover, key differences between well-established domestic criminal justice systems which have the power to reach into virtually all aspects of daily life, and the much more tentative and fragile endeavour that is international criminal justice.

Nonetheless, we are of the view that certain insights can be gleaned from the US criminal justice system to understand and help situate some of the blind spots of international criminal justice. There is no doubt that race has been constructed historically both domestically and internationally. Although the international criminal justice system may well be weaker than its domestic counterparts, this is not necessarily the case in terms of its racialising effects. Indeed, the opposite may be true, as the extremes of selectivity in the enforcement of ICL arguably produce even broader overlapping zones of investigatory, prosecutorial, and judicial discretion. These zones of discretion create opportunities for various biases, conscious or not, including those grounded in racialised thinking, to creep into international criminal justice and its institutions. We have already surveyed international criminal justice’s muted response to racial interrogations. In this section, we analyse how international criminal justice: (a) emerges on top of legacies of racialisation; (b) might be understood to partake in structural racism; and (c) may play a role in the construction of ‘Blackness’ as a racial category.

Legacies of Race in International Law

To what extent might international criminal justice be implicated in the production of forms of structural racism globally? It may be useful, first, to bear in mind Justice Brennan’s admonition in his McCleskey dissent to read ‘numbers’ in light of a particular system’s history. In itself, disparity along racial lines might be fairly innocuous but, when examined against the background of legacies of discrimination, may become quite troubling. International criminal justice does not arise in a historical or political void but is tied to the continuing evolution of international law, an evolution that has had a fraught relationship with issues of race.[63] Indeed, critical race theory has faulted international law for reinforcing racial biases and inequalities behind a facade of neutrality and universality,[64] a criticism that is eerily similar to that addressed to the US criminal justice system.

On one hand, the fact that ICL has early connections to the struggle against slavery[65] may in part immunise it from any sense that it is a vehicle for racist tropes. Moreover, the investment of Black Africans in the anti-Apartheid struggle, understood, in part, as a struggle for the criminalisation of Apartheid and its eventual inclusion as a crime against humanity, attests to the malleability of ICL.[ 66] The prosecution of international crimes committed during the Rwandan genocide presented ICL as being ‘on the side’ of victims of racialised violence. In fact, one of the reasons why the Rwandan government sought the creation of a separate international criminal tribunal was precisely to emphasise the specific needs and dignity of Africans in relation to international criminal justice. Finally, it is worth bearing in mind that the founding event of contemporary ICL—the Nuremberg tribunal—assuredly involved the West turning a condemnatory eye on the West itself, in part, of course, as a result of the particular racialised violence of the Nazi regime.

By the same token, international lawyers may forget a little too easily that liberal international law, the platform upon which ICL has been constructed, was once not only compatible with the production of racial categorisations but was itself deeply implicated in policing the ‘colour line’. From the conquistadors to slavery, international law’s civilizing mission has always been woven into the global production of ‘Whiteness’, ‘Blackness’, and other racial constructs.[67] Colonisation was, after all, partly justified as an effort to stamp out slavery from the ‘Heart of Darkness’, in ways that emphasised the cruelty and backwardness of ‘Black on Black’ violence from the supposed high ground of European abolitionism.[68] Along these lines, ICL has historically ignored certain atrocities, from the Herero Genocide to countless other colonial massacres, including some that occurred in the wake of Nuremberg itself.[69] As Christopher Gevers has shown, even as the Allies sought to punish the crimes of Kaiser Wilhelm in Versailles, they studiously ignored allegations of German crimes in Africa that they had themselves documented during the war, in the process giving Black Africans what would become an enduring role as an absent signifier of the project.[70] Moreover, one of the main reasons that the US contingent (successfully) lobbied for the requirement of a legal ‘nexus’ between crimes against humanity and the waging of aggressive war in negotiations leading to the International Military Tribunal at Nuremberg, was a concern that failing to include this key limitation would expose actors in the US government to allegations of complicity in crimes against humanity predicated on their support for racist Jim Crow laws.[71] The history of international criminal justice is littered with such silences, and what they made possible, from massacres in Algeria to Biafra.

The racial undertones of the discipline are also evident in certain branches of ICL and its cousin, transnational criminal law, most notably inter-war League of Nations concerns with la traite des blanches[72] or, more generally, the emergence of a global anti-drug regime largely influenced by the association between certain races and the consumption/trafficking of certain drugs (Chinese and Southeast Asians and opium; African-Americans and crack cocaine; Mexicans and marijuana; South and Central Americans, especially Colombians, and cocaine etc.).[73]

Another kind of legacy that international criminal justice has to reckon with is that of the deployment of criminal justice in colonial and imperial settings. Criminal justice was often used to particularly powerful effect to discipline local ‘rebels’ in the colonial context. It was a highly discriminatory and violent form of criminal justice, one quite distinct from the one meted out in the home courts of the colonisers. Simultaneously, criminal justice transnationally was involved in the fabrication of a form of ‘White impunity’ through, for example, practices of extra-territorial immunity. This was particularly evident in colonies where not only repressive policies, but also various forms of ordinary criminality were exempted from punishment when committed against colonial subjects. It was also evident in the near periphery, where Europeans sought to obtain exemption and protection from local customs and laws, including criminal laws.[74

The suggestion that international criminal justice might be implicated in the reproduction of racial categories despite its best intentions, therefore, is less counter-intuitive if one sees it as the continuation of age-old structures whose legacies have not been meaningfully grappled with. Indeed, theorists such as Sylvia Wynter argue that seemingly universalising concepts, such as a singular, shared ‘humanity,’ are in fact, deeply racialised social constructs establishing a racialised hierarchy of degrees of ‘humanness’, with White, Western Man at its pinnacle; the default ‘human’ against which the lesser humanity of all others is judged.[75] This notion, that humanity is itself a racialised construct, strikes at the core of ICL’s claims to being a cosmopolitan project in the service of protecting all human beings.

International Criminal Justice and Structural Racism

Much as the existence and prosecution of race-based hate crimes in the US have little to no effect on the overall structural racism of the US criminal justice system, the fact that extreme manifestations of racial violence are criminalised by ICL does not mean that international criminal justice institutions are necessarily racially progressive, or even immunised from racialised thinking. Even if the ICC could achieve the task of operating in a truly ‘race-neutral’ manner, it would still exist in a deeply racialised world, one whose racialised constructions need to be critically borne in mind and engaged with, lest they be simply reproduced. This much is evident, for example, in the parallel, but in some ways more accomplished, effort to stamp out sexual violence as part of international crimes, an effort that hardly relieves international criminal justice of the need to think critically about gender—indeed, of thinking critically about how it deals with gender.[76]

The nature of structural racism domestically suggests that the very tendency to refuse to ‘see’ race as a significant underlying factor in the ICC’s activities may paradoxically and perversely contribute to reinforcing its status as a signifier of its activities. Race becomes that coded factor which cannot be politely named, but which is implicitly evident in social understandings of what is at stake in international criminal justice processes, especially within racialised communities whose members are all too familiar with the subtleties of structural racism. As with the US criminal justice system, racial reordering within international criminal justice is closely tied to the exercise of discretion. The ICC Prosecutor, for example, even within her limited jurisdictional purview, has thousands of potential situations, cases and suspects from which to choose, only a very small minority of which are ever prosecuted at the ICC, or anywhere else, for that matter.

What may only become evident domestically through careful statistical examination is hence compounded at the international level. Here the focus on the number of casualties as a way of assessing the ‘worst’ international crimes, inevitably relies on complex assumptions about how processes of killing and abuse unfold and about their relative gravity[77] whose very indeterminacy provides an opening for structural prejudices. The selection of what situations to investigate, and whom to prosecute is also an exercise that identifies and designates the world’s ‘worst’ criminals and their victims. In speaking in the name of (rather than necessarily ‘to’) such victims, moreover, international criminal justice occasionally seeks to co-opt them into making a point against members of their own group, even when they might be reticent to do so.[78] The idea of structural racism as ‘death by a thousand cuts’ also has some relevance within the context of international criminal justice as a way of highlighting how the system makes racialised suspects much more vulnerable. Looking at the record of the ICC and past international criminal tribunals, it seems to be the case that Black defendants have typically been less able to avoid capture, while impunity has been the default position for White perpetrators. It may be, for example, that accused predominantly racially coded as ‘White’ after the Second World War or following the breakup of the former Yugoslavia, benefitted from a certain ‘White privilege’ in the form of extensive and deep protection, both domestically and transnationally.[79] The ability of White perpetrators of Apartheid-era atrocities in South Africa to avoid the sort of penal consequences that have been since seen as de rigueur for Black perpetrators of international crimes may also be a case in point. Although the debate is often framed merely as one of conventional transitional justice involving generic ‘perpetrators’ and ‘victims’, but curiously expunged of its radical racial dimensions, racial connotations are evident in the way truth, reconciliation and amnesty were foregrounded precisely at the time that a pure crime of racism was involved.

The rhetorical structure of many of the claims made in defence of the ICC often narrowly espouse patterns evident domestically in the US, notably the emphasis on merely ‘following’ liberal rules. The idea, for example, that the law itself inescapably mandates a certain selection of defendants claims for itself a level of determinacy, especially when it comes to prosecutorial decisionmaking, that it simply does not have. The intensity of debates over the standard of ‘gravity’ or what might be ‘in the interests of justice’ in the context of prosecutorial decisions at the ICC shows that gravity assessments tend to be highly subjective within ICL, probably even more so than in domestic criminal justice settings.[80] Or take the example of the criticism of Omar Al Bashir for invoking the anti-colonial ‘race card’.[81] Although Al Bashir is clearly an ill-suited person to make such an argument, given his alleged central role in the commission of various crimes that have racism as one of their central vectors, this fact does not make the claim that the ICC may be falling into neo-colonial or racist traps untrue, any more than the fact that African-American criminals guilty of violent crimes complaining about racial discrimination in capital cases undercuts the argument that the US criminal justice system suffers from, and reproduces, racism.

Another example of this reasoning is the tendency to point to the relative prominence of non-White professionals at the ICC, support for the Court by racialised constituencies, and even African state referrals. Again, just as the (exceedingly few) African-Americans who support repressive criminal justice policies do not license the grossly disproportionate mass incarceration of African-Americans, one may be supportive of specific ICC interventions in Africa, or the prosecution of individual non-White defendants, but not broader ICC racial inequities. Even cursory knowledge of the processes and effects of colonisation reveals that racialised attitudes have often found convenient local relays.

International Criminal Justice and Racialisation

Finally, to what extent has the ICC, more or less unwittingly, aided in the perpetuation of certain problematic racial stereotypes by refusing to more resolutely address issues of race? The ICC does not simply take its cue from the preexisting factual reality of race. Rather, the Court, by participating in the process of constructing international criminality, is also inevitably involved in the construction and evolution of shared understandings of race. For example, through its work, the ICC powerfully shapes notions of where genocide, crimes against humanity, and war crimes are committed, how such crimes may manifest themselves, by whom they are committed, and whom they victimise.[82] Some of the analysis of structural racism in the domestic context can thus be cautiously drawn on to ask questions about international processes of race construction. For example, to what extent is international criminal justice broadly associating concepts of violence, criminality and dangerousness with the social construct of ‘Blackness’, especially Black masculinity, as a racial category globally? Conversely, how might the ICC be implicated in a broader global tendency to essentialise Black women and young children as agency-devoid individuals defined by victimhood?[83] Again, the discomforting spectre of a contingent, racialised notion of humanity lurks,[84] threatening to undermine the normative foundations of ICL.

As in the US context, the ICC’s role in contributing to the global production of race is neither linear nor directly causal. It would be difficult to argue that the ‘core crimes’ of international criminal law are themselves racially oriented. At the same time, even in the US, for example, it is not so much drug trafficking offences in and of themselves that gave rise to the disproportionate punishment of certain kinds of drugs and related offences, such as the possession of crack cocaine, during periods when African-American neighbourhoods were blighted by an epidemic of drugs, poverty and general social neglect, but their implementation. One therefore needs to see the totality of the race-producing aspects of (international) criminal justice at any given moment to understand the peculiar political economy of racialisation at work.

If anything, within the current ICC-dominated international criminal justice regime—a relatively small system excluding many of the major powers such as the US, China and Russia, but one that spans many countries—it is the constant and implicit reordering and emphasis on certain criminal offences, perpetrators and victims, at the expense of others, that may be interpreted as racially coded. For example, the constructed distinction between ‘core’ crimes increasingly associated with the worst international stigma, and a range of other crimes or non-criminal forms of harm causation and human rights violations that are implicitly designated as less grave,[85] may appear to overlap with racialised categories. In particular, the convictions of Thomas Lubanga Dyilo, Germain Katanga, and Jean-Pierre Bemba have had, amongst other things, the effect of associating Black Africans with physical and sexual violence, the abuse of children through the recruitment and use of child soldiers, and the inability to hold ‘civilized’ elections. Rather than the invasion of Iraq, torture in Guantanamo or Abu Ghraib, or the threat posed by nuclear weapons, the work of the ICC has myopically highlighted the destruction of cultural property or the sexual violence against ‘bush wives’ as emblematic of African violence.[86]

This remains true, despite the fact that manifestly grave atrocity crimes occur routinely outside Africa and have been spectacularly under-prosecuted.[87]

Moreover, as one of us has argued elsewhere, visibility politics, grounded in unstated assumptions about the forms international crimes may take and the means through which they may be committed, also appear to influence such assumptions.[88] For example, more direct and intimate processes of killing and abuse, which may be the only means available to relatively less powerful and technologically-sophisticated actors in a global context, who tend to be members of racialised communities, especially within Africa, tend to be portrayed as highly deliberate and hence, especially ‘criminal’. By contrast, the sort of diffuse, attritive or structural processes of killing resulting from actions such as the invasion of Iraq, tend to be seen as an inevitable by-product of war; one that is entirely severable from the question of its legality.[89] Diffuse processes of producing harm over time, most available to especially powerful actors, are similarly assumed—often incorrectly—to fall outside the purview of ICL.[90] Thus, while ICL is widely seen as a legal response to atrocities, in fact, ICL constantly constructs and hierarchically ranks atrocity itself.

The structural aspects of the operation of international criminal justice also exhibit continuities with a longer history of dealing with domestic jurisdiction and, as the case may be, sidelining it, in ways that tell a significantly racialised story. As is well known, the ICC operates on the basis of the principle of complementarity, meaning that cases are only admissible to the extent that domestic courts have been found unwilling or unable to prosecute relevant suspected crimes. These notions, as it turns out, are eminently fluid, giving additional leeway to the ICC Prosecutor in terms of selecting cases and, again, enhancing the selectivity of international criminal justice. It seems, in this context, that there is more enthusiasm to find African rather than Western courts to be unwilling or unable, [91] as well as a tendency towards the ‘tribunalization of African violence’. [92]

Although there is very nearly always a way in which complex complementarity decisions can be rationalised under the law,[93] it is also worth bearing in mind that the standard utilised in complementarity assessments itself feeds into old tropes about African countries being unable to govern themselves, as well as a denial of legal pluralism, at least when it might clash with fundamental colonial interests. British and French colonisers in Africa, for example, simultaneously deferred to local courts and monopolised criminal jurisdiction on the basis that criminal justice could not be entrusted to the locals.[94] The scepticism towards traditional justice,[95] or even sui generis transitional justice solutions,[96] by advocates of international criminal justice suggests a hard universalist stance that positions one, highly peculiar, form of justice—that is, criminal justice—as superior to all other alternatives.

At the same time, it often seems as if the prosecution of ‘Black’ crime is implicitly based on expunging the criminal record of ‘White’ criminality, especially when committed by state actors. Although the ICTR, for example, is the tribunal that came the closest to a fulsome reckoning with race in its assessment of the Rwandan Genocide as a product of racist colonial constructs, this was, of course, treated merely as an element of context rather than one that could begin a larger postcolonial reckoning. As Asad Kiyani has pointed out, such jurisdictional gaps are not so much problematic omissions as they are the very essence of the power exercised by international criminal justice.[97] In this respect, the ICC’s work, whether deliberately or, more likely, not, has done much to onesidedly portray Black and/or Arab Africans, as the primary, even sole, authors of atrocity crimes, even as it has contributed to expunge (primarily White) historical responsibilities.

Media representations of violence, crime and conflict then both reflect and perpetuate these associations between race and criminality.[98] While the ICC cannot control broader racist patterns of representation, such as the use of Black African warlords or Arab terrorists as stock villains in Hollywood films, neither can the Court escape the fact that it plays a major role in shaping the social imagination concerning who commits atrocities and who is primarily tasked with, in turn, protecting the world from such crimes.

Conclusion: The Unbearable ‘Whiteness’ of the ICC?

Accusations that the ICC is racist have created a degree of panic among certain international criminal justice advocates. The threatened and actual withdrawal of African states from the Court has been widely perceived as a catastrophe. We are concerned, by contrast, that the blanket dismissal of race-based critiques of the ICC may inhibit critical assessments of how the ICC and other international criminal justice institutions are actually operating, and what their effects are, including in terms of their roles in the global production of race and racism. It would, in fact, be highly surprising if the ICC did not end up having some impact on global patterns of race production precisely as a result of its racial blindness. The ICC is constantly at risk of reproducing what it fails to problematise and recognise as such, namely global anti-Black and anti-Arab racism, in all of its forms.

Much like the US Supreme Court in its selective blindness to certain manifestations of racism, especially structural racism, international criminal justice actors at times behave as if any acknowledgement of the multi-dimensional complexities of race and racism will necessarily open a Pandora’s box of insurmountable racial justice challenges that the law is ill-equipped to address. The perceived safer avenue selected by the ICC, at least thus far, has been selectively to see race in much the same way as US courts do—that is, to acknowledge the role of race/racism as a cause or consequence of crime and atrocity, but not to see race when it comes to questions of structural or distributive justice that the Court itself is implicated in.

The most evident danger is that the ICC will become a forum exclusively for prosecuting atrocity crimes committed by or within predominantly Black, Arab or other racialised communities, whilst exempting itself from the need to ever see itself as part of the ongoing perpetuation of a racially fragmented and polarised world. More subtly, the danger is that the Court will be a conduit for expressing a form of dominant liberal ‘Whiteness’, understood both literally and as a metaphor for variegated but dominant racial constellations. ‘Critical Whiteness studies’[99] have already identified the implications of Whiteness in domestic criminology, but the notion remains woefully undertheorised internationally. Whiteness is not simply a neutral referent category but a crucial locus of the ongoing construction of racial hierarchies, one that associates ‘White’ with normativity and ‘Black’ with deviancy.[100] As an approach, the emphasis on Whiteness, by racialising the un-racialised, shifts attention away from an exclusive focus on how certain groups are victimised by criminal justice processes, to an emphasis on how they are victimised only because other groups are simultaneously consistently privileged—away from ‘race’ to ‘racial relations’, and away from race as a monolithic reality to race as a constant process of social construction. It emphasises the undetectability of Whiteness given its embeddedness in dominant objectivising discourses and an economy of knowledge production.[101

In the end, what is at stake in these and other cases concerning intersections between race and criminal justice are questions of distributive justice. How are the burdens inherent in employing the technique of criminal law—investigatory actions, surveillance and intrusions of privacy, arrest, detention, prosecution, social stigma, and the like, and, in the international arena, the possibility of sanctions or even foreign intervention—distributed amongst the populations subject to a given criminal justice system? Who benefits from the law most in terms of being made safer (or at least being made to feel subjectively safer) and less at risk of being victimised, be it by criminals or criminal justice actors (such as police officers or prosecutors) themselves? Under the cover of working to prevent atrocities in Africa, the international community may appear to be engaged in systemic global policing of racialised Africans.[102

All of this suggests that, given the weight and continued presence of legacies of racism, a benign, laissez faire or cavalier attitude to the ‘racial question’ is, as is the case in the US context, unlikely to dislodge structural racism at the global level. International criminal justice does not proceed from a safe place of racial innocence. It exists in a world that is structured by racial constructions, and it ignores those constructions and their relevance at its peril. Moreover, the ICC and other criminal justice institutions and actors cannot claim innocence from the disciplinary methods, of both international and criminal law, that they are tied to and which themselves have longstanding associations with racial stratification. It needs to reflexively understand its own creation and significance as a function of its ability to perpetuate certain racial constructions rather than undermine them. But how might one go about decolonising or improving the racial politics of international criminal justice?

In recent years, the ICC has inched towards a more nuanced approach to grappling with the racialised dimensions of international criminal justice. During the mandate of former ICC Prosecutor Moreno-Ocampo, the rhetoric emanating from the OTP was especially tone deaf, characterised by bombastic all-or-nothing claims about the Court’s unimpeachable virtue. Under the guidance of Fatou Bensouda, the OTP has at least made efforts to address crimes beyond those committed by Black and/or Arab-African men, by investigating potential international crimes occurring in Afghanistan, Georgia, the Ukraine, Israel/Palestine, and Iraq, including those allegedly committed by (mostly White) US and British nationals. Such initiatives may have the potential to begin to subvert dominant racialising narratives, but, if anything, the rebalancing of prosecutorial focus beyond Africa is framed more in geographic and national terms than explicitly racial ones, once again avoiding the discomfort of acknowledging the significance race continues to exhibit globally.

The ICC’s anti-racist credentials have been challenged for a while by those who are on the receiving end of international criminal justice’s racial politics. To discuss race and to challenge its construction, is to discuss power and to challenge its production. Doing so requires that individuals and institutions acknowledge their own roles in perpetuating—as enablers, bystanders, and/or uncritical conduits—such power structures, along with the privileges they enjoy because of their racial associations (or various other identity categories) that others do not. It also requires an urgent emphasis on transparency and accountability in prosecutorial decisions, given the importance of discretion in allowing racial prejudice to seep into the substance of criminal justice, be it domestically or internationally. And it requires doing so in ways that do not unwittingly end up reinforcing and reifying racial categorisations in the name of anti-racism, but that constantly locate the problem of racism in the very construction of such categories.

One need look no further than the US for a cautionary example of how the dogged refusal to see certain forms of racism, especially structural ones, can deeply undermine the credibility of a criminal justice system, to the point that it becomes a source of—rather than a bulwark against—pervasive human rights violations and the perpetuation of racialised oppression. Dogmatic adherence to race-neutrality, in this context, risks blinding international criminal justice to its own role in historical and structural patterns of racial production and thereby further eroding its already precarious credibility.


* Randle DeFalco is a Banting Postdoctoral Fellow at the University of Liverpool School of Law and Social Justice. Fre´de´ric Me´gret is Professor and Dawson Scholar at the McGill University Faculty of Law Centre for Human Rights and Legal Pluralism. Funding for this article was provided by the Social Sciences and Humanities Research Council of Canada through the Canadian Partnership for International Justice and Banting Fellowship programmes.

[1] See, e.g., KM Clarke, ‘Refiguring the Perpetrator: Culpability, History and International Criminal Law’s Impunity Gap’ 19 International Journal of Human Rights (2015) 592; KM Clarke, ‘The Rule of Law Through its Economies of Appearances: The Making of the African Warlord’ 18 Indiana Journal of Global Legal Studies (2011) 7.

[2] F Me´gret, ‘Cour Pe´nale Internationale et Ne´o-Colonialisme: Au-Dela` des e´vidences’ 45 Etudes Internationales (2014) 27.

[3] See, e.g., C Griffiths, ‘Racism and the ICC’, Time, 30 September 2013, available at http://content.,33009,2152447,00.html (last visited 9 April 2019): ‘It is almost as if the ICC has been charged with a new civilizing mission, the 21st century’s version of the “white man’s burden”.’ In a more pointed statement, Gambian minister Sheriff Bojang, in announcing The Gambia’s now-cancelled decision to exit the ICC regime, referred to the ICC as ‘an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’. Quoted in ‘Gambia Announces Withdrawal from International Criminal Court’, Reuters, 28 October 2016, available at¼0 (last visited 9 April 2019).

[4] AD Freeman, ‘Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine’ 62 Minnesota Law Review (1977) 1049; N Gotanda & G Peller, Critical Race Theory: The Key Writings that Formed the Movement (The New Press, 1995).

[5] F Me´gret, ‘Protecting Identity by Ignoring It: A Critical Look at the French and Rwandan Paradoxes’ 38 Dalhousie Law Journal (2015) 549.

[6] F Me´gret, ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’ 12 Finnish Yearbook of International Law (2001) 193.

[7] R DeFalco, ‘Conceptualizing Famine as a Subject of International Criminal Justice: Towards a Modality-Based Approach’ 38 University of Pennsylvania Journal of International Law (2017) 1113; R DeFalco, International Crimes as Familiar Spectacles: Socially Constructed Understandings of Atrocity and the Visibility Politics of International Criminal Law, SJD Thesis, University of Toronto, 2017.

[8] See, e.g., A Burling, Race in the Criminal Justice System (ABDO, 2017); C Waldrep, Roots of Disorder: Race and Criminal Justice in the American South, 1817-80 (University of Illinois Press, 1998); MJ Lynch & EB Patterson, Justice with Prejudice: Race and Criminal Justice in America (Harrow & Heston, 1996); MD Free, Racial Issues in Criminal Justice: The Case of African Americans (Greenwood, 2003).

[9] See International Criminal Court, ‘Cases’, available at: (last visited 9 April 2019). We use the phrase Black and/or Arab in recognition of the reality that constructs of race are complicated, often overlap, may be contested and that conceptions of race may vary significantly from group to group. For example, certain constituencies in Africa may view themselves (and be viewed locally) as racially/ethnically ‘Arab’, a category understood as distinct from that of ‘Black’ Africans. These same individuals meanwhile, may be racially coded as ‘Black’ in a more general, global sense. The broader point here, for our purposes, is that all ICC defendants thus far fit within one (or both) of the racial categories of ‘Black’ and ‘Arab’ Africans, which are likely the two racial groups currently subjected to the greatest degree of racism globally.

[10] The Durban Program of Action specifically required the UN to establish ‘a working group or other mechanism of the United Nations to study the problems of racial discrimination faced by people of African descent living in the African Diaspora and make proposals for the elimination of racial discrimination against people of African descent’. The Working Group of Experts on People of African Descent was then established in 2002 by the Commission on Human Rights in Resolution 2002/68.

[11] For example, in the Akayesu case, the Trial Chamber of the International Criminal Tribunal for Rwanda discussed the long history and colonial dimensions of the social construction of the categories of Hutu and Tutsi in Rwanda. Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998).

[12] Ibid para. 503.

[13] Rome Statute arts 6, 7(1)(h) & 7(2)(h).

[14] Rome Statute art. 21. Article 21(3) states that ‘[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as [inter alia] race.’

[15] Rome Statute art. 36(8)(a)(iii) (requiring a ‘fair representation of female and male judges’). Gender issues are reflected both in substantive provisions of the Rome Statute, such as in article 7(3), and structural/procedural provisions, such as articles 36(8)(a)(iii), 36(8)(b), 42(9), 54(1)(b) & 68(1).

[16] Ibid art. 42(9) (‘The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.’).

[17] For an overview and analysis of this policy paper, see V Oosterveld, ‘The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law’ 24 William & Mary Journal of Women and the Law (2018) 443.

[18] On this uneven, often incoherent treatment of race by ICL institutions, see C Lingaas, ‘Imagined Identities: Defining the Racial Group in the Crime of Genocide’ 10 Genocide Studies & Prevention (2016) 79.

[19] See Me´gret (2015).

[20] KR White, ‘The Scourge of Racism: Genocide in Rwanda’ 39 Journal of Black Studies (2009) 471.

[21] On the operation of this flawed ‘race-neutral’ logic within the US context, see E Bonilla-Silva, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States, 2d ed. (Rowman & Littlefield, 2006).

[22] L Moreno-Ocampo, ‘Working with Africa: The View from the Prosecutor’s Office’, Statement to ISS Symposium on ‘The ICC that Africa Wants’, 9 November 2009, available at NR/rdonlyres/1229900D-B581-42AE-A078-918550C372FB/281385/south_africa_nov_09_3finalfordistribution.pdf (last visited 9 April 2019) 3.

[23] ibid.

[24] For examples of this sentiment—that the ICC cannot be implicated in perpetuating global racism because it is merely following the law when it focuses nearly exclusively on crimes involving racialised communities—see, e.g., ibid; WC Austin & M Thieme, ‘Is the International Criminal Court Anti-African?’ 28 Peace Review (2016) 342, 348.

[25] Moreno-Ocampo (2009) 9.

[26] See, e.g., ibid; SM Monageng, ‘Africa and the International Criminal Court: Then and Now’, in G Werle, L Fernandez & M Vormbaum (eds), Africa and the International Criminal Court (TMC Asser Press, 2014) 13, 19 (‘Hundreds of African legal practitioners have made the [ICC] what it is. Frankly, it is absolutely ridiculous to accuse the Court of being racist.’). See also Austin & Thieme (2016) 345 (‘It seems somewhat disingenuous to complain of racial targeting when it is African governments themselves asking for the court to intervene.’); S Mbizvo, ‘The ICC in Africa: The Fight against Impunity’, in KM Clarke, AS Knottnerus & E de Volder (eds), Africa and the ICC: Perceptions of Justice (Cambridge UP, 2016) 39, 40-42.

[27] CC Jalloh, ‘Africa and the International Criminal Court: Collision Course or Cooperation?’ 34 North Carolina Central Law Review (2011) 203.

[28] See ‘Gambia Announces Withdrawal’ (2016).

[29] FL Pincus, ‘Discrimination Comes in Many Forms: Individual, Institutional, and Structural’ 40 American Behavioral Scientist (1996) 186, 186.

[30] JO Calmore, ‘Race/ism Lost and Found: The Fair Housing Act at Thirty’ 52 University of Miami Law Review (1997) 1067, 1128 quoting IM Young, ‘Five Faces of Oppression’, in D Braveman & L Bender (eds), Power, Privilege and Law: A Civil Rights Reader (West, 1994) 66, 67.

[31] JA Powell, ‘Structural Racism: Building upon the Insights of John Calmore’ 86 North Carolina Law Review (2007) 791, 795. See also Bonilla-Silva (2006).

[32] Ah Sin v. Wittman 198 US 500 (1905).

[33] United States v. Armstrong 517 US 456, 465-66 (1996).

[34] See also Whren v. United States 517 US 806 (1996).

[35] McCleskey v. Kemp 481 US 279 (1987).

[36] Ibid 282 (emphasis added).

[37] Pen˜a-Rodriguez v. Colorado 580 US ___ (2017) 17-18.

[38] See Floyd v. City of New York 08 Civ. 1034 (SAS) (SDNY 12 August 2013) 177-93.

[39] McCleskey v. Kemp 312.

[40] McCleskey v. Kemp 328-29 (Brennan dissent).

[41] Ibid 329.

[42] Pen˜a-Rodriguez v. Colorado

[43] Examples of such laws in the US context were various harsh sentencing requirements for crack cocaine (a permutation of cocaine prevalent in poor African-American communities) as part of the ‘war on drugs’ campaign, California’s ‘three strikes’ law, and many other facially-neutral laws. See, e.g., M Alexander, The New Jim Crow: Mass Incarceration in the Era of Colorblindness (The New Press, 2010).

[44] D Milovanovic & KK Russell-Brown, Petit Apartheid in the U.S. Criminal Justice System: The Dark Figure of Racism (Carolina Academic Press, 2001).

[45] See generally Alexander (2010). See also The Sentencing Project, ‘Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance: Regarding Racial Disparities in the United States Criminal Justice System’, March 2018, available at (last visited 9 April 2019). For an overview of available evidence documenting statistical evidence of these and other forms of pervasive racism of the US criminal justice system, see R Balko, ‘There’s Overwhelming Evidence that the Criminal-Justice System is Racist. Here’s the Proof’, Washington Post, 18 September 2018, available at (last visited 9 April 2019).

[46] AJ Davis, ‘Racial Fairness in the Criminal Justice System: The Role of the Prosecutor’ 39 Columbia Human Rights Law Review (2007) 202, 203.

[47]Or conversely Prosecutors are apt to be understanding of crimes committed by Whites. See AJ Davis, ‘Prosecution and Race: The Power and Privilege of Discretion’ 67 Fordham Law Review (1998) 13.

[48] D Cole, ‘Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship’ 87 Georgetown Law Journal (1999) 1059, 1065.

[49] See, e.g., TW Frampton, ‘The Jim Crow Jury’ 71 Vanderbilt Law Review (2018) 1593.

[50] For an overview of these two positions on overrepresentation of racialised minorities in criminal justice systems, see AR Piquero & RW Brame, ‘Assessing the Race-Crime and Ethnicity-Crime Relationship in a Sample of Serious Adolescent Delinquents’ 54 Crime & Delinquency (2008) 390.

[51] C Lombroso, Criminal Man, trans. M Gibson & NH Rafter (Duke UP, 2006) 90.

[52] See generally ibid.

[53] Ibid.

[54] JV Roberts & T Gabor, ‘Lombrosian Wine in a New Bottle: Research on Crime and Race’ 32 Canadian Journal of Criminology (1990) 291.

[55] P D’Agostino, ‘Craniums, Criminals, and the “Cursed Race”: Italian Anthropology in American Racial Thought, 1861–1924’ 44 Comparative Studies in Society & History (2002) 319, 321.

[56] P Finkelman, ‘Crime of Color’ 67 Tulane Law Review (1992) 2063.

[57] R Staples, ‘White Racism, Black Crime, and American Justice: An Application of the Colonial Model to Explain Crime and Race’ 36 Phylon (1975) 14.

[58] GB Johnson, ‘The Negro and Crime’ 217 Annals of the American Academy of Political and Social Science (1941) 93. See also T Sellin, ‘Race Prejudice in the Administration of Justice’ 41 American Journal of Sociology (1935) 212.

[59] Johnson (1941) 103.

[60] P Butler, ‘When Black America Was Pro-Police’, The Atlantic, June 2017, available at https://www. (last visited 9 April 2019); L Neyfakh & I Chotiner, ‘Black Americans Supported the 1994 Crime Bill, Too’, Slate, 12 February 2016, available at 2016/02/why_many_black_politicians_backed_the_1994_crime_bill_championed_by_the.html (last visited 9 April 2019); C Johnson, ‘Black Judges, Black Politicians, Black Prisoners: An Interview with James Forman, Jr.’, Jacobin, 15 August 2017, available at (last visited 9 April 2019).

[61] J Forman, Locking Up Our Own: Crime and Punishment in Black America (Farrar Straus & Giroux, 2017).

[62] On the stereotyping of African-Americans in ways relevant to criminal justice, see, e.g., CJ Smiley & D Fakunle, ‘From “Brute” to “Thug”: The Demonization and Criminalization of Unarmed Black Male Victims in America’ 26 Journal of Human Behavior in the Social Environment (2016) 350; K Welch, ‘Black Criminal Stereotypes and Racial Profiling’ 23 Journal of Contemporary Criminal Justice (2007) 276; CJ Najdowski, BL Bottoms & PA Goff, ‘Stereotype Threat and Racial Differences in Citizens’ Experiences of Police Encounters’ 39 Law & Human Behavior (2015) 463.

[63] On the closely related role of ethnicity, see M Shahabuddin, Ethnicity and International Law (Cambridge UP, 2016).

[64] M Mutua, ‘Critical Race Theory and International Law: The View of an Insider-Outsider’ 45 Villanova Law Review (2000) 841.

[65] JS Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford UP, 2011).

[66] Asad Kiyani, however, argues that the crime against humanity of apartheid is commonly not viewed as a true international crime, but is ‘instead reduced to a special interest of the Third World’. AG Kiyani, ‘International Crime and the Politics of Criminal Theory: Voices and Conduct of Exclusion’ 48 New York University Journal of International Law & Politics (2015) 129, 131-32.

[67] R Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ 4 London Review of International Law (2016) 81, 92-98.

[68] F Me´gret, ‘Droit International et Esclavage: Pour une Re´e´valuation’ 18 African Yearbook of International Law (2010) 122.

[69] H Be´ji, ‘Le Patrimoine de la Cruaute´’ 1 Le De´bat (1993) 152.

[70] C Gevers, ‘Africa and International Criminal Law’, in KJ Heller et al. (eds), Oxford Handbook of International Criminal Law (Oxford UP, forthcoming).

[71] L Douglas, ‘Crimes of Atrocity, the Problem of Punishment and the Situ of Law’, in P Dojcˇinovic´ (ed.), Propaganda, War Crimes Trials and International Law: From Speakers’ Corner to War Crimes (Routledge, 2012) 269, 271.

[72] K Marsh, ‘“La Nouvelle Activite´ des Trafiquants de Femmes”: France, Le Havre and the Politics of Trafficking, 1919–1939’ 25 Contemporary European History (2016) 23.

[73] PD Lowes, The Genesis of International Narcotics Control (Librairie Droz, 1966).

[74] U O¨ zsu, ‘The Ottoman Empire, the Origins of Extraterritoriality, and International Law’, in A Orford, F Hoffmann & M Clark (eds), The Oxford Handbook of the Theory of International Law (Oxford UP, 2016) 123.

[75] See S Wynter, ‘Unsettling the Coloniality of Being/Power/Truth/Freedom: Towards the Human, After Man, Its Overrepresentation—An Argument’ 3 New Centennial Review (2003) 257.

[76] K Engle, ‘Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ 99 American Journal of International Law (2005) 778.

[77] On the malleability and subjectivity of the concept of gravity within ICL, see MM deGuzman, ‘How Serious are International Crimes? The Gravity Problem in International Criminal Law’ 51 Columbia Journal of Transnational Law (2012) 18.

[78] F Me´gret, ‘The Strange Case of the Victim Who Did Not Want Justice’ 12 International Journal of Transitional Justice (2018) 444.

[79] While an attempt to demonstrate the existence of such privilege is beyond the scope of this article, many Nazis and Nazi collaborators, aside from those individuals prominently prosecuted at Nuremberg, were either not prosecuted or received relatively brief sentences. Meanwhile, generally, sentences imposed by the ICTY have tended to be shorter than those imposed by the ICTR. On this sentencing disparity, see M Drumbl & K Gallant, ‘Sentencing Policies and Practices in the International Criminal Tribunals’ 15 Federal Sentencing Reporter (2002) 140; B Hola´, A Smeulers & C Bijleveld, ‘International Sentencing Facts and Figures: Sentencing Practice at the ICTY and ICTR’ 9 Journal of International Criminal Justice (2011) 411.

[80] See deGuzman (2012).

[81] See, e.g., Moreno-Ocampo (2009).

[82] See generally, S Kendall & S Nouwen, ‘Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood’ 76 Law & Contemporary Problems (2013) 235; S Stolk, ‘A Sophisticated Beast? On the Construction of an “Ideal” Perpetrator in the Opening Statements of International Criminal Trials’ 29 European Journal of International Law (2018) 677; L van den Herik, ‘International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy’ 110 AJIL Unbound (2016) 209.

[83] On this topic, see C Schwo¨bel-Patel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ 4 London Review of International Law (2016) 247; C Schwo¨bel-Patel, ‘The “Ideal” Victim of International Criminal Law’ 29 European Journal of International Law (2018) 703. 84 See Wynter (2003).

[84] See C Schwo¨bel-Patel, ‘The Core Crimes of International Criminal Law’, in Heller et al. (eds) (forthcoming).

[85] This is mostly a sub-Saharan phenomenon these days, and the focus on it may be viewed as implicitly linking Blackness with a particularly virulent and reprehensible form of child abuse, as well as reinforcing the stereotype of African adolescents, especially males, as aggressive and violent. It may also reinforce stereotypes of the absent or uncaring Black father figure, a trope that is, again, highly prevalent in the US context and itself may be partially traced back to the structural racism of the US criminal justice system.

[87] WA Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’ 19 Criminal Law Forum (2008) 5.

[88] DeFalco, International Crimes (2017).

[89] TW Smith, ‘The New Law of War: Legitimizing Hi-Tech and Infrastructural Violence’ 46 International Studies Quarterly (2002) 355.

[90] See, e.g., S Starr, ‘Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations’ 101 Northwestern University Law Review (2007) 1257; SP Rosenberg & E Silina, ‘Genocide by Attrition: Silent and Efficient’, in J Apsel & E Verdeja (eds), Genocide Matters: Ongoing Issues and Emerging Perspectives (Routledge, 2013)106; DeFalco, ‘Conceptualizing Famine’ (2017); E Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (Cambridge UP, 2015).

[91] For a critique of the argument that Libyan courts should be found unable or unwilling because of their failure to respect due process, see F Me´gret & MG Samson, ‘Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials’ 11 Journal of International Criminal Justice (2013) 571.

[92] KM Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge UP, 2009) 95-96.

[93] T Mariniello & LS Sunga, ‘Has the ICC Unfairly Targeted Africa or has Africa Unfairly Targeted the ICC?’, in T Mariniello (ed.), The International Criminal Court in Search of its Purpose and Identity (Routledge, 2014) 147.

[94] Me´gret (2014).

[95] I Eberechi, ‘Who Will Save these Endangered Species? Evaluating the Implications of the Principle of Complementarity on the Traditional African Conflict Resolution Mechanisms’ 20 African Journal of International & Comparative Law (2012) 22.

[96] M Mamdani, ‘Beyond Nuremberg: The Historical Significance of the Post-Apartheid Transition in South Africa’ 43 Politics & Society (2015) 61.

[97] A Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity’ 14 Journal of International Criminal Justice (2016) 939. A similar argument could be made about the Cambodia tribunal whose limited jurisdiction meant that it ended up projecting the limited imagery of several elderly Cambodian men and two Cambodian women as the primary authors of atrocity in the country, at the expense of a deeper reckoning with Western, White (primarily French and US) responsibilities for atrocities committed in Cambodia both before and during the reign of the Khmer Rouge.

[98] See, e.g., Dixon & Linz (2000).

[99] J Smith and T Linnemann, ‘Whiteness and Critical White Studies in Crime and Justice’ 18 Contemporary Justice Review (2015) 101.

[100] NA Heitzeg, ‘“Whiteness,” Criminality, and the Double Standards of Deviance/Social Control’ 18 Contemporary Justice Review (2015) 197.

[101] K Henne and R Shah, ‘Unveiling White Logic in Criminological Research: An Intertextual Analysis’ 18 Contemporary Justice Review (2015) 105; T Zuberi & Bonilla-Silva (eds), White Logic, White Methods: Racism and Methodology (Rowman & Littlefield, 2008).

[102] On this subject, see, e.g., KM Clarke, ‘“We Ask for Justice You Give Us Law”: The Rule of Law, Economic Markets and the Reconfiguration of Victimhood’, in C De Vos, S Kendall & C Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge UP, 2015) 272; MW Mutua, ‘Africans and the ICC: Hypocrisy, Impunity, and Perversion’, in Clarke, Knottnerus & de Volder (eds) (2016) 47.


Authors: Randle C. DeFalco and Frederic Megret,
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