Assessing the Legacies of Empire in International Criminal Law
My dissertation project examines the ways in which 19th and 20th century European colonial projects and imperial ideologies influenced the early development of international criminal law (ICL) and how these historical influences have shaped the way in which ICL has been applied in the decades after decolonization. This project is motivated both by an interest in drawing attention to an under-appreciated aspect of this discipline's history and a desire to test the proposition – put forward by Third World and Postcolonial scholars in reference to other areas of international law – that the rules and procedures of ICL today are irredeemably tainted by their origins in European colonial domination and imperial exploitation.
In order to reassess the presence and extent of these early imperial/colonial influences on ICL, and to build up the strongest possible case with which to test arguments regarding the ongoing effects of these influences, the first section of this project will examine the writings and communications of the jurists and experts that helped to shape the jurisprudence of ICL between the 19th century and 1960 and of the diplomatic officials of European colonial powers that helped to shape state practice pertaining to ICL during this period. In conducting this research, my primary focus will be on instances in which these actors actively sought to shape the doctrines of ICL in ways that would protect these states’ freedom to continue to employ certain forms of violence in ruling their colonies, instances in which similar agents sought to shape the rules of ICL institutions in a similarly instrumental attempt to both lock in and reinforce the particular forms of imperial control used during this period. This historical analysis will also consider the existence and impact of more subtle influences of imperialism or colonialism on ICL by examining instances in which these jurists and officials explicitly endorsed imperialist policies of intervention or exploitation.
Having documented these instances of both direct and indirect imperial/colonial influence on the origins and development of ICL between 19th century and the 1960s, the second section of this project attempts to measure the ongoing effects of these influences on ICL’s doctrinal content and structural design in the years since decolonization. This analysis begins by examining the legal legacies of empire, surveying the status of the treaty provisions supported by colonial powers prior to 1960 in international jurisprudence today. It also considers the extent to which customary standards informed by the actions of imperial powers have been challenged and changed in the post-war years. It then turns to the ideological legacies of empire by considering whether the officials and practitioners involved in 21st century efforts to enforce ICL in domestic or international contexts are motivated by policy concerns or political commitments similar to those that motivated the officials and jurists that supported imperial or colonial projects in earlier centuries. Finally, this project will examine large-scale trial data and individual case studies in order to assess the ongoing impacts of a series of material and cultural legacies of empire on the patterns and practices of ICL today. These legacies include: legal systems and bodies of jurisprudence imposed by former colonial powers in former colonies, ethnic divisions imposed or reinforced by colonial powers, postcolonial migration patterns and linguistic continuities between former colonies and former colonial powers, and formal or informal governmental ties between such states.
Given the ongoing controversy over allegations by officials and elites in the developing world that ICL is imperialist or neocolonialist, and the traction these statements have had in justifying states flaunting their obligations under ICL or exiting ICL institutions entirely, this dissertation is both timely and valuable. It is vital that ICL practitioners and scholars take this particular challenge seriously. The two-part structure and mixed-methods approach employed in this project will allow me to address, assess and answer this challenge to the internal legitimacy of ICL by generating an accurate and thorough account of the ways that the problems of selectivity and inequality facing ICL today are continuous with or distinct from the particular kinds of selectivity and inequality at the heart of 19th and 20th century colonial expansion and imperial domination.