Reynolds and Xavier: The Dark Corners of the World A critical analysis

[Virtual Presenter] This presentation seeks to analyse this scholarly article..

[Audio] Reynolds and Xavier's article opens with a startling quote from the first Prosecutor for the Special Court for Sierra Leone, David Crane: In the dark corners of the world lurks the future of armed conflict… The real threat to humanity on several levels is bred in the fields of lawlessness in the third world… Conflicts in these dark corners are evolving into uncivilized events.1 The Eurocentric paternalism demonstrated in Crane's views, is summed up in Reynolds and Xavier's comment that it echoes the views of liberal Western diplomats that 'the laws of the jungle' still distinguish the 'more old-fashioned kinds of states outside the postmodern continent of Europe'. International Criminal Law (ICL), in that way is aligned with an imperialist discourse devoted to imposing 'good governance' techniques and free market ideology. It is attention-grabbing to see such a statement from the person appointed independent prosecutor of an international criminal tribunal in a developing country. Crane's comments, the authors note, are imperialistic, and even barbaric, however, this serves as a useful starting point for their thesis..

[Audio] The authors begin with the premise that despite international criminal law's embedded biases, Third World self-determination continue to see the potentially emancipatory possibilities of international criminal justice. Peering at International Criminal Justice (ICJ) – which the authors understand as a mechanism of political economy as well as global governance – from the vantage point of the Global South, the article explores one particularly contentious issue of international criminal law, that is, its selectivity. Using the case study of the International Criminal Court (ICC), and analysing its selectivity, and Southern bias. Reynolds and Xavier ask whether, in this post-colonial world, ICJ can deliver anything more than illusory justice for the global South. The article concludes with a comment on what Third World Approaches to International Law (TWAIL) might bring to the field of ICJ, analysing its paradigms of resistance and reconstruction..

[Audio] The article provides an emphatic call to action for international criminal lawyers, at a time of great interest in ICL. It is auspicious timing to consider the article, given the recent arrest warrants issued by the ICC, in the wake of the 2023 situation in Gaza. It is important to consider the article's discussion about the ICC's lack of action following Irael's bombardment of the Gaza strip in 2009. As I will argue, recent events underscore that a TWAIL-inspired approach to ICJ is sorely needed. The authors' three limbs of TWAIL'ing international ICJ are meritorious, for reasons which I will elucidate. I seek to take the paper's analysis further, and ask what, practically, would a TWAIL-inspired future look like for ICJ. Rather than throwing the entire field of ICJ out entirely, I ask how we operationalise the concept of TWAIL-ing ICJ. I also briefly seek to draw out the author's closing comment, on whether non-criminal processes will ultimately lead to a better path towards ICJ's aims of deterrence, reparation, truth and reconciliation..

[Audio] Discourses of ICJ and the developing world Core idea: As the authors convincingly argue, ICJ has been a Western, and peculiarly American venture, since its crystallisation at Nuremberg. The structural biases inherent from the start, were summed up in Indian Judge Radhabinod Pal's scathing dissent in the Tokyo Tribunal, denouncing the imperialism by the war's victors. The article notes the Tribunal was structurally incapable of being just, and heralded the beginning of the post-colonial era of selective justice, which continues until this day. Indeed, the two ad hoc tribunals of the 1990s, the International Criminal Tribunal for the Former Yugoslavia (the ICTY) and the International Criminal Tribunal for Rwanda (the ICTR), were viewed as tokenistic, and looked at suspiciously from a Third World Perspective. Today, while the 'progress narrative' around the ICC prevails, the authors observe, it has made little actual progress prosecuting even the weak, and as the next part argues, has focussed predominately on the Global South. The various special courts, hybrid tribunals and extraordinary chambers established since then, the authors lament, have been overly technocratic, and have predominately focused on prosecution of the global South. Citing the eminent scholar, Immi Talgren, the authors make plain their core thesis of selectivity and the problem of victors' justice in ICJ, as follows: 'Are we not just writing yet another chapter to the stale story of the Strong and the Weak in international law?' For a brief moment, Reynolds and Xavier note, there was apparent convergence between the Global South's cries for justice, and emergence of 'hard' international criminal law. In contrast, they argue, what has emerged has reproduced much of international law's embedded colonial architecture..

[Audio] Expounding their notion of ICJ's 'savage-victim-saviour' trichotomy, Reynolds and Xavier call up the image of the former Prosecutor Luis Moreno Ocampo (a person of dubious propriety in his personal life), emerging from his helicopter in the DRC, sporting a starch white suit, the 'crusading knight in shining linen,' the authors posit. Indeed, I note, the saviour mentality may also extend to the ICJ advocates themselves, including a barrister and doyenne of international criminal law, Geffrey Roberston KC, dubbed the 'knight in shining Armani.' Seamlessly advancing their argument regarding ICJ's structural biases, Reynolds and Xavier further cite Crane. I note he was a former admiral in the military, and, as dubbed by the authors, colonial at both a personal and political level. The paper notes, in an Orientalist-style manner, Crane recounted 'I travelled to Sierra Leone with an appreciation of the rich and vibrant culture of the region and factored that into my general and prosecutorial strategy.' Crane is further cited as follows: Respect for the law of armed conflict decreases or disappears entirely in this new type of warfare as the involvement of the criminal element increases….These dark corners become havens for these criminal elements. Crane's writing frames Third World conflicts as apolitical and lawless. This completely elides, the authors note, the impact of contemporary imperial politics on these regions, often exploited for their natural resources. It echoes Krever's writing on structural issues, caused by neoliberal policies, which often precipitate violence. Further, by singling out the 'dark corners' in Africa as havens for criminals, it reinforces Crane's paternalistic views. This is instead of, the authors say, showing a certain wariness of institutions, or, in my view, acknowledging the many breaches of IHL on both sides of most conflicts. notably, by the Allies in the Second World War, as noted by Justice Pal, and the recent situation in Gaza..

[Audio] Seamlessly advancing their argument regarding ICJ's structural biases, Reynolds and Xavier further cite Crane. I note he was a former admiral in the military, and, as dubbed by the authors, colonial at both a personal and political level. The paper notes, in an Orientalist-style manner, Crane recounted 'I travelled to Sierra Leone with an appreciation of the rich and vibrant culture of the region and factored that into my general and prosecutorial strategy.' Crane is further cited as follows: Respect for the law of armed conflict decreases or disappears entirely in this new type of warfare as the involvement of the criminal element increases….These dark corners become havens for these criminal elements. Crane's writing frames Third World conflicts as apolitical and lawless. This completely elides, the authors note, the impact of contemporary imperial politics on these regions, often exploited for their natural resources. It echoes Krever's writing on structural issues, caused by neoliberal policies, which often precipitate violence. Further, by singling out the 'dark corners' in Africa as havens for criminals, it reinforces Crane's paternalistic views. This is instead of, the authors say, showing a certain wariness of institutions, or, in my view, acknowledging the many breaches of IHL on both sides of most conflicts. notably, by the Allies in the Second World War, as noted by Justice Pal, and the recent situation in Gaza. The authors demonstrate that Crane's skewed and biased worldview, demonstrates the crisis of confidence of ICJ, reminiscent of Gerry Simpson's 2020 article. They argue, it stands in stark contrast to the 'state of nature' depicted by Crane in his prosecution statements, of a 'tale of horror' into the realm of 'Dante's inferno' – a world which is nasty, brutish and short, to quote Hobbs, as cited in Lawrence Douglas' 2019 work. Crane's trite counter to populist claims of legal imperialism, is to note that African leaders decry that ICJ is 'white man's justice'. Reynolds and Xavier's treatise urges us to realise and see ICJ is exactly that – biased towards Western viewpoints. We need to move past the outmoded, Conradian image of African as 'one of the dark places of the earth' and past the racially charged dualism of white and dark – literally, the latter being the African people, in Crane's 'dark places'. Rather than a mission based on 'teaching these darkies about the rule of law' as Courtenay Griffiths QC cynically described it, we need to realise that Western cultures may have a lot to learn from developing countries about justice, as I will ultimately argue..

[Audio] Selectivity and the ICC Core idea: it is not an accident that Western powers have not been subject to the jurisdiction of the ICC. The authors cited Robin Cook, former British Foreign Secretary, who noted – 'this Is not a court set up to book prime ministers of the United Kingdom of presidents of the United States.' Reynolds and Xavier point out that, as at the time of the article, the ICC had been selectively investigating and prosecuting 10 situations, all of which involved African states and indictees..

[Audio] Juxtaposing 2 referrals of situations by the UN Security Council, in Sudan and Libya, as at the time the article was published (in 2016) to other potential situations, in Palestine and Sri Lanka, they concluded: The UN Security Council's referral of the situation in Darfur to the ICC, and subsequent issuing of arrest warrants for Sudanese President Omar al-Bashir, led to an inevitable backlash against humanitarian agencies in Sudan, as well as ongoing concerns about overreach by the ICC. The referral by the UN Security Council of the Gaddafi regime in Libya, the subsequent NATO air interventions, and the issuing of arrest warrants against individuals including Saif Gaddafi and Abdullah al-Senussi, led to complaints from the Libyan authorities, who asserted their own ability and willingness to prosecute. In contrast, while the Sri Lankan ethnic conflict was waging at the time of the article, and there was evidence of war crimes and crimes against humanity, the UN Security Council had not referred the situation, leading to questions of accountability and impunity. In addition ,while there was evidence that the Israeli military deliberately targeted civilians during the offensive against the Gaza Strip in 2008-2009, no referral was made, and the ICC's Office of the prosecutor deflected the possibility of an investigation into the situation in Palestine, noting it could not decide on Palestine's competency to grant jurisdiction. As noted, a lengthy process ensued, where Palestine's statehood was recognised by the UN General Assembly in 2012..

[Audio] In any event, Reynolds and Xavier posit, ICL's focus on individual criminal responsibility forecloses the field's ability to tackle colonisation's structural implications, including fragmentation of indigenous communities and 'othering' of racialized communities, as so bluntly summed up by Crane. Using this platform, the authors then invite us to consider TWAIL perspectives of ICL, in the next section..

[Audio] TWAIL-ing ICJ? Core idea: TWAIL approaches, with their twin engagement paradigms of resistance and reconstruction, could enrich criminal law in three ways: 1) redressing operational selectivities, 2) reconceptualising material jurisdiction, and 3) reconceptualising the idea of individual criminality liability as ICJ's dominant paradigm. Reynolds and Xavier's convincing thesis, is that a continued reflection on ICL from a TWAIL perspective is warranted. The ICC's selectivity and unwillingness to act in situations such as Sri Lanka, which is explored by the authors, is brought to light by the politics surrounding the ICC's recent decision to issue arrest warrants against Israeli President Nettanyahu, and Hamas leaders, in relation to the October 2023 situation in Gaza..

[Audio] As a loyal disciple of ICL, this article caused me to do some navel gazing, as I asked myself the questions that Reynolds and Xavier pose in this section: is continued faith in the emancipatory potential criminal justice warranted, for the Global South? Can we still have a quiet confidence in law as a weapon of the weak? Can we talk about 'rights' and 'justice' in a non-contingent way, when critical legal scholars note that 'rights' feels new in the mouths of black people? Can international criminal justice speak to all peoples, when it has traditionally excluded certain groups and is invariably linked with impunity? TWAIL's agenda, Reynolds and Xavier posit, is surprisingly reformist, with theorists advocating transformation from below, rather than departing from the arena of international law. The writers envisage the process as follows: breaking and rupturing existing international law; and generating a praxis of new or different universality..

[Audio] Reynolds and Xavier acknowledge this would require a radical shift in the dynamics of power and politics in the everyday life of international law. Speaking to the three registers which would require change: Firstly, on the reconstructionist register, this would begin with the investigation of crimes committed by global north over their allies in the global South, which they note would require a 'recalibration' of the ICC's referral and deferral mechanisms. Secondly, a TWAIL perspective would reconceptualise which crimes were criminalised in the first place. The authors note that the current core crimes of genocide, crimes against humanity and war crimes cannot address many of the collective interests of the global South, who are impacted by structural violence of economic coercion. Thirdly, and most radically, criminal prosecution would be seen not as an end in itself, but as merely as a tactical hook to be pursued as part of a broader anticolonial strategy. I agree with the authors, that a TWAIL approach could draw on the experiences of human rights movements. For example, they note, Latin American states' experiences, which helped shape alternatives to North-centric investment laws, by building in deference to the South's cultural histories, lived experiences, and concerns..

[Audio] Conclusion: the vibrant developing world, and how a reconstructed ICJ can complement it As Reynolds and Xavier advance, my view is that a TWAIL approach can open space for the inclusion of non-Western epistemologies and legal cultures – on their own terms, as opposed to Crane's reductive use of stereotypes of the 'Third World. They can also prepare for top-down criminal processes, stripped of colonial sensibilities, and aimed towards justice and restitution. This paper offers a well-reasoned, practical solution to the inherent structural problems and biases in international law. Specifically, the paper calls up the article by Krever (see, e.g., p 723), which implores us to look at the geological arrangements of capitalism, when assessing the weak points of ICL. More generally, it offers a more practical solution to the same question as Jeremy Rabkin posed, 'is ICL an idea whose time has passed?' Rather than throwing out ICL as a whole, it calls for fundamental changes to the system. Indeed, while it is perhaps the topic for another article, the authors could have gone further, drawing upon critical legal scholarship, to answer (at least) preliminary questions to 2 and 3 above: how would TWAIL-ing succeed in reconceptualising which crimes were criminalised in the first place, which would presumably require a fundamental shake-up of ICL (almost starting again)? Also, if criminal prosecution is simply a hook, what would the broader anticolonial strategy of ICL look like? Would it be locally based courts, enriched with cultural knowledge, like the Gacaca courts in Rwanda? Would ICL tolerate, for example the imposition of the death penalty where culturally appropriate? These are questions that the field will grapple with, if Reynolds and Xavier's ambitious but meritorious program is implemented. While I acknowledge that Reynolds and Xavier were simply working within existing nomenclature, I suggest that even using the label 'the Global South' and 'Third World' is inherently paternalistic and biased. An international human rights-focussed approach to the issue, in my view, instead refer to these groups by their specific titles, e.g. 'West Africa' and 'East Asia', before considering the breadth of cultures inherent in each one, in more detail..

[Audio] Reflection on AI use Being a first-time user for AI, I found it difficult to navigate at first, and had trouble finding the appropriate AI to use on google. Many of them required paid subscriptions, or were clunky and did not have the functionality I required. However, once I became familiar with using AI, I found it useful to polish and add professionalism to the overall presentation. AI was used as follows: To create a first draft slide show; To create an avatar to voice the presentation (through an add-in on powerpoint); and To double check grammar and sentence construction (through powerpoint)..