The African Union and the International Criminal Court: counteracting the crisis

In October 2016, South Africa became the first nation to withdraw from the Rome Statute of the International Criminal Court (ICC), after Burundi began taking steps to leave it. Kenya is likely to follow, and other states, like Uganda, could take the same cue. The ICC is facing the most serious diplomatic crisis of its history, with the African Union (AU) denouncing double standards, neo‐colonialism and ‘white justice’, and regularly threatening to withdraw from the Rome Statute en masse. This article adopts both an interdisciplinary and a pragmatic policy‐oriented approach, with the aim of producing concrete recommendations to counteract the crisis. It firstly outlines the context of this crisis which, although not new, is becoming increasingly serious. It then responds to the AU's objections to the ICC. The court's ‘Afro‐centrism’ is explained by objective facts (the occurrence of mass crimes taking place on the African continent, the large number of African parties to the Rome Statute, the principle of complementarity) as well as by subjective decisions (a convergence of interest between the African leaders who brought the cases to the court themselves to weaken their opponents, and the prosecutor who needed quickly to find cases). Afro‐centrism should also be nuanced, as the ICC has already shown an interest in cases outside Africa and the extent to which it is a problem is a matter of perspective. The article also responds to the ‘peace vs justice’ objection, and emphasises that African states were instrumental in creating and sustaining the ICC. It finally formulates recommendations to ease relations between the ICC and AU, such as to investigate more outside Africa, reinforce African national jurisdictions, create intermediary institutional structures, promote regional‐level action, and rely more on ICC‐friendly African states and African civil society.     

Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law–making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law–making and international institution–building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.     

Rules of engagement: America's Asia-Pacific security policy under an Obama administration

The United States’ strategy in the Asia-Pacific stands at a historic juncture. How the new Obama administration conceives and implements its Asia-Pacific policy during its first term of office will have major and enduring ramifications for America's future. The new administration must have a clear vision of its country's national security interests in the Asia-Pacific as well as a better appreciation of the evolving dynamics of the region. To this end, it should continue to underwrite its bilateral security commitments, albeit through a less threat-centric lens, and be more cognisant of the region's multilateral overtures by further anchoring US participation in regional multilateral institutions. This shift from a position of bilateral primacy to one of engaged bilateral and multilateral partnership—a ‘convergent security’ approach—is the best strategy for Washington to advance its strategic interests in the Asia-Pacific.     

Carrying a heavy load: Mayan women’s understandings of reparation in the aftermath of genocide

ABSTRACT

Drawing on extensive testimony from Ixil women survivors of sexual violence, the 10 May 2013 verdict in the genocide trial of former de facto Guatemalan head of state and army general Efraín Ríos Montt highlighted the perpetration of sexual violence as an integral component in the attempt to destroy the Maya Ixil as an ethnic group and thus evidence of genocide. Acknowledging that sexual violence was a weapon of genocide in Guatemala contributes to a critical analysis of how the racialized violence targeted against the country’s indigenous peoples was gendered, and enables the women and men who are survivors of these crimes to seek redress. However, narrating sexual harm within justice-seeking processes is not without complication, and trials alone cannot respond to survivors’ demands for justice and social repair. This article examines how fifty-four Maya Q’eqchi’, Kaqchikel, Mam and Chuj women who are survivors of sexual violence make meaning of the everyday struggles to rethread their lives in the aftermath of genocide. The article uses data from a four-year participatory action research (PAR) project conducted by the authors with this group of Mayan women, including a series of workshops that used creative techniques—drawing, collage, dramatization and body sculptures—to elicit more complex and contestational stories than those emergent from a more linear narrative approach to understanding harm suffered and efforts for redress. Analysis of these data confirms that these Mayan women survivors have woven their understanding of reparation from three main threads: their experiences of loss and harm; their recognition of the Guatemalan state’s duplicity; and their protagonism in justice-seeking processes. The article concludes by arguing that women survivors' desire for repair requires attention to the deep-seated impoverishment that they highlight as the heavy load of gendered violence they carry with them.     

Moral Spaces and Sexual Transgression: Understanding Rape in War and Post Conflict

When it comes to rape in war, evocative language describing rape as a ‘weapon of war’ has become commonplace. Although politically important, overemphasis on strategic aspects of wartime sexual violence can be misleading. Alternative explanations tend to understand rape either as exceptional — a departure from ‘normal’ sexual relationships — or as part of a continuum of gendered violence. This article shows how, even in war, norms are not suspended; nor do they simply continue. War changes the moral landscape. Drawing on ethnographic research over 10 years in northern Uganda, this article argues for a re‐sexualization of understandings of rape. It posits that sexual mores are central to explaining sexual violence, and that sexual norms — and hence transgressions — vary depending on the moral spaces in which they occur. In Acholi, moral spaces have temporal dimensions (‘olden times’, the ‘time of fighting’ and ‘these days’) and associated spatial dimensions (home, camp, bush, village, town). The dynamics of each help to explain the occurrence of some forms of sexual violence and the rarity of others. By reflecting on sexual norms and transgressions in these moral spaces, the article sheds light on the relationship between ‘event’ and ‘ordinary’, rape and war.     

The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar

The transfer and deportation of ethnically Rohingya people from Myanmar into Bangladesh is a crime against humanity demanding an international response. What role, however, should the International Criminal Court (ICC) play? On 6 September 2018 an ICC Pre-Trial Chamber ruled that the Court has jurisdiction to investigate and prosecute such crimes as they are completed on the territory of a State party, Bangladesh. Myanmar is not a party to ICC Statute and has invoked the principle that treaties do not bind third parties without their consent. The case put in this commentary is that while the Pre-Trial Chamber’s approach to the law was arguable as an interpretation of the ICC Statute, it was unwise as a matter of policy. The argument is threefold. First, the Pre-Trial Chamber’s ruling is as a matter of legal method only the first-move in a process of norm-creation and persuasion. Second, it does not follow that because territorial jurisdiction in international law includes ‘objective’ jurisdiction over transboundary acts completed on a State’s territory that such jurisdiction was delegated by member States to the ICC in all cases. Finally, it is argued that international criminal tribunals do not succeed when the cooperation of necessary territorial governments (here, Myanmar) is withheld. Proceeding in this case risks becoming a quagmire of the ICC’s own creation at a time when it can little afford further risks to its legitimacy.     

Regionalising resource security in the Asia-Pacific: the challenge of economic nationalism

In recent years, efforts to institutionalise resource security cooperation in the Asia-Pacific region have intensified. Soaring world prices for minerals and energy have seen a range of resource security strategies launched—through the Association of Southeast Asian Nations (ASEAN), ASEAN Plus Three, Asia-Pacific Economic Cooperation and the East Asia Summit—all of which aim to promote intergovernmental dialogue, policy coordination and the integration of regional resource markets. However, the practical achievements of these regional efforts have been limited, as none have advanced beyond dialogue activities to more formalised types of resource security cooperation. This article examines the dynamics of these abortive attempts to regionalise resource cooperation in the Asia-Pacific, arguing that economic nationalist resource policy preferences held by governments have acted as a major obstacle to cooperation. Through an analysis of national resource policy regimes and the outputs of recent cooperative efforts, it demonstrates how economic nationalism has encouraged inward-looking and sovereignty-conscious actions on the part of major resource players in the Asia-Pacific. As a result, intergovernmental resource cooperation has been limited to informal and voluntary ‘soft-law’ initiatives, which have not made a substantive contribution to the resource security of economies in the region.     

Politics by other means? The virtual trials of the Khmer Rouge tribunal

This article argues that more emphasis should be placed on the political aspects of international tribunals, which are often in the business of reshaping politics as well as simply administering justice. By examining the hybrid Extraordinary Chambers in the Courts of Cambodia (ECCC), popularly known as the Khmer Rouge Tribunal, the article develops arguments previously advanced by Victor Peskin in respect of Rwanda and the former Yuogoslavia. Peskin has suggested that courtroom war crimes trials are paralleled by ‘virtual trials’, in which international and domestic political actors struggle for power and control over the form and outcome of proceedings. He terms these virtual trials ‘trials of cooperation’, in which governments of states where war crimes have been committed seek variously to help or hinder legal proceedings to address those crimes. Such virtual trials now loom extremely large in the Cambodian case; the Hun Sen government, while exploiting the ECCC to deflect domestic and international attention from the endemic corruption and growing authoritarianism over which it presides, has sought tightly to limit the Tribunal's room for manoeuvre. One trial has been completed, another is about to start, and the international investigators and prosecutors are planning a couple more—but Prime Minister Hun Sen has personally declared his opposition to any further cases going ahead. If the ECCC succeeds in trying only five defendants from the murderous 1975–79 Khmer Rouge regime, justice will not have been done; and wider questions will emerge about the future viability of hybrid tribunals. The Cambodian case demonstrates that where war crimes tribunals are concerned, backroom ‘virtual trials’ need as much academic, policy and media attention as the actual courtroom trials of key defendants.     

On the Hazards of Foreign Travel for Dictators and Other InternationalCriminals

The Pinochet case highlights important developments in the international constitutional system which have become gradually established over the past half-century. These developments relate to the position of the state within the international constitution and the decreasing relevance of classical views centred upon state sovereignty and legal positivism. It was made clear that the powers and functions of the state are regulated by and embedded within the international legal system, including fundamental material rules of constitutional standing. Several of these rules enjoy a jus cogens and erga omnes status. Violations can involve crimes or state plus individual responsibility for the offenders directly under international law. And, according to the expanding doctrine of genuine universality, all states may enjoy a legal entitlement to exercise jurisdiction in relation to offenders who cannot claim the benefit of sovereign immunity. However, the Pinochet case also points to some difficulties. These lie principally in the failure of individual states to create the necessary domestic criminal law to implement genuine universality. Problems also arise in relation to crimes which claim special universality on the basis of law-making conventions, but which have not yet been established in general international law.     

From War 2.0 to quantum war: the superpositionality of global violence

As information networks catalyse local incidents into international crises, as global events appear and disappear on multiple screens at an accelerated pace and as a war of images displaces the image of war, it becomes increasingly difficult to understand the rapidly changing nature of global violence within the confines of security studies. Phase-shifting with each media intervention from states to sub-states, local to global, public to private, organised to chaotic and virtual to real—and back again—global violence superpositions into a quantum war that requires new transdisciplinary, transnational and transmedial approaches.     

Castration of male sex offenders in the Nordic welfare state in the context of homosexuality and heteronormativity, 1930–1955

The eugenic legislation was a defining aspect in the development of the Nordic welfare state. While sterilization is a widely recognized method of restricting reproduction, another part of the legislation was the castration of male sex offenders for criminal-therapeutic purposes. This article discusses the conflicts arising from the castration of male criminals. Especially targeted were male criminals whose crimes could be traced back to a conflicted sexuality, including homosexuality and such vaguely termed conditions as hypersexuality and an abnormal sex drive. This article highlights the exclusive connection of sexual violence to male violence in the context of Nordic castration legislation. It is further argued that the decriminalization of homosexuality did not lead to sexual liberation but rather to much more harshly restricted sexuality through medicalization. The medicalization of homosexuality and the castration of men labelled as sexual offenders show how the conformity of the Nordic welfare state has tended to restrict sexuality with the help of the concept of heteronormativity.     

Collateral damage: human rights consequences of counterterrorist action in the Asia–Pacific

A number of states in the Asia-Pacific region have long been recognized to be indifferent or even hostile to the international human rights regime and to have rather poor records when it comes to protection of the right to personal integrity. Since 9/11 many of these same states have become closely involved in the US-led anti-terrorist campaign, and in the course of that involvement have been identified with the serious abuse of the personal security rights of those held in detention as terrorist suspects. This article uncovers some of the bases for that indifference to human rights treaties and why the human rights records of some of these states have become of even greater concern, particularly to domestic and transnational NGOs, in the contemporary anti-terrorist era. It argues that long-standing factors associated with intra-state armed conflict and separatist rebellions, the governmental tendency to accuse domestic NGOS of following a western rights agenda, and strong attachment to the non-interference norm have undercut official governmental concerns about the abuse of the right to personal security. More recently, emulation of the worst aspects of US anti-terrorist behaviour has given rise to a sense of impunity in some cases, and has justified a militarized response to political and religious unrest in others. Finally, the difficulties that the local human rights NGOs have had in making their case to the wider domestic populations have been compounded in a climate where many of their fellow citizens are fearful of the apparent rise in support for terrorist causes and methods.     

Aid Conditionality as a Tool for Peacebuilding: Opportunities and Constraints

Over the past decade, aid donors have pledged billions of dollars to support peacebuilding efforts in collapsed states and war–torn societies. Peace conditionality — the use of formal performance criteria and informal policy dialogue to encourage the implementation of peace accords and the consolidation of peace — could make aid a more effective tool for building peace. In Bosnia, for example, donors have attempted to link aid to the protection of human rights, co–operation with the international war crimes tribunal, and the right of people displaced by ‘ethnic cleansing’ to return to their homes. Yet the conventional practices and priorities of aid donors pose constraints to the exercise of peace conditionality. This article examines several of these constraints, including the reluctance of donors (particularly the international financial institutions) to acknowledge responsibility for the political repercussions of aid; the competing foreign–policy objectives of donor governments; the humanitarian imperative to aid people whose lives are at risk; and the incentive structures and institutional cultures of donor agencies.     

Role conceptions,order transition and institutional balancing in the Asia-Pacific: a new theoretical framework

The dawn of the twenty-first century witnessed a new wave of multilateral initiatives in the Asia-Pacific. By integrating institutional balancing theory and role theory, the author proposes a new theoretical framework—‘balance of roles’—to explain the variations in institutional strategies by different states. It is argued that a state’s role conception will shape its institutional balancing strategies in an order transition period. An order defender, like the USA, is more likely to adopt exclusive institutional balancing to exclude its target from its dominated institutions. An order challenger, such as China, will choose both inclusive and exclusive institutional balancing to maximise its own power and legitimacy in a new international order. As a kingmaker, a proactive second-tier state is more likely to pick an inter-institutional balancing strategy to initiate new institutions for competing for influence with existing institutions. An institutionalised order transition might be more peaceful than widely perceived.     

Challenging ‘The Penn State Way’: a feminist response to institutional violence in higher education

The aim of this Viewpoint is to suggest a feminist intervention into the Sandusky scandal at Penn State University as a radical alternative to rethinking institutional violence at places of higher learning. Jerry Sandusky, former Penn State assistant football coach, was found guilty on 45 charges related to child sexual abuse. The horrific nature of the crimes shocked the community, but the unanswered questions surrounding the involvement of Penn State's most prominent administrators in a cover-up have implications for the pervasiveness of institutional violence within higher education. We contend if places of higher learning strive to be the embodiment of intellectual transformation, a feminist ethics of care and responsibility is necessary to negate the day-to-day feelings of fear and vulnerability that institutional violence supports.     

The limits of civil society in militarised regimes: evidence from the Asia-Pacific

The nature of civil society is transformed by a strong military presence, which occurs in the Asia-Pacific region. While modern civil society survives under military rule through co-optation, veiled resistance or geography, traditional organisations may continue to threaten the state's dominance of political society. This article examines the nature of civil society in two countries in the Asia-Pacific that have recently emerged from direct military rule—Burma and Fiji. It considers the independence of civil society under military rule, how militaries take steps to safeguard their roles in political society, and how democratic postures change during transitions away from military rule. Understanding how militaries preserve their influence provides a better perspective of authoritarian resilience in the region and the limits to democratic reforms.     

Sins of memory: reflections on the lack of an Italian Nuremberg and the administration of international justice after 1945

This article reconstructs the history of the major trial that the Allies planned to institute against the entire military command of the Nazi armies operating in Italy from 1943 to 1945. The trial was prepared on the same juridical and technical bases as the Nuremberg Tribunal, but it never took place. The reason was that it would have jeopardized the re-integration of the Federal Republic in the European community, and would also have risked placing the Italian government in the embarrassing position of having the Italian army prosecuted for crimes committed in the countries occupied by the Rome?–?Berlin axis. For those reasons, the trial was abandoned and instead only legal proceedings were taken only for some marginal cases, creating the impression that these were simply isolated cases of individual responsibility. The enigma of this missing trial and an explanation of the limits of international justice can only be understood in terms of the political situation in post-war Europe, the relations between Italy and the Allies and the double game played by the Italian government. These events served, however, to give rise to highly selective memories of totalitarianism and the war.     

Gendered insecurity in the Rohingya crisis

The purpose of this piece is to analyse the data on pregnant women and new mothers in the Rohingya refugee population in Bangladesh to determine if it can be used as an indicator of increased conflict related sexual violence and ethnic cleansing. The reported data is problematised in the context of the notorious unreliability of data in emergencies. By comparing the available data with known birth rates among the Rohingya and the broad demographic patterns seen in the aftermath of the Rwandan genocide the piece shows there is cause for the concerns of increasing conflict related sexual violence and ethnic cleansing. When taken with qualitative data from international organisations responding to the humanitarian crisis and refugee testimony, the paper reliably concludes the quantitative data can tell a reliable story of conflict related sexual violence and ethnic cleansing in Rakhine State. The paper also highlights the need for improved sex- and age-disaggregated data collection in emergencies.     

Exploiting Sino-US Geostrategic Competition: The View from Seoul and Singapore

The mainstream literature on weak status quo states’ diplomacy tends to identify their regional security roles in terms of dealing with non-traditional security issues. This article argues that such a limited approach is not sufficient to explain the current security dynamics in the Asia-Pacific. This article reviews the literature on weak status quo states’ influence on regional order. It then identifies a security environment in which they are more likely to exert some impact on maintaining and building a regional order. After contextualising these discussions in the Asia-Pacific setting, the article examines the experience of South Korea and Singapore as secondary powers in the East Asian region. Although both countries enjoy high levels of security cooperation with the US, both have also been able to exercise a certain amount of influence in advancing their own geostrategic interests amidst the growing Sino-US geostrategic competition. Yet their exploitation of Sino-US geostrategic competition is neither a simple balancing strategy against China nor a simple bandwagoning with the US, since both South Korea and Singapore have been increasing bilateral and multilateral security cooperation with China.     

Ending sexual violence in conflict: the Preventing Sexual Violence Initiative and its critics

During the past year, the UK Government has become the lead advocate for a perhaps surprising foreign policy goal: ending sexual violence in conflict. The participation of government representatives from more than 120 countries in a London Summit in June 2014 was the clearest manifestation of this project. This article offers an early assessment of the Preventing Sexual Violence Initiative (PSVI) and situates it within the history of global action against sexual and gender‐based violence from UN Security Council Resolution 1325 onwards, with a particular focus on three key developments. First, the PSVI has embraced the already common understanding of rape as a ‘weapon of war’, and has stressed the importance of military training and accountability. This has exposed the tensions within global policy between a focus on all forms of sexual violence (including intimate partner violence in and out of conflict situations) on the one hand, and war zone activities on the other. Second, the Initiative has placed great emphasis on ending impunity, which implicates it in ongoing debates about the role of international and local justice as an effective response to atrocity. Third, men and boys have been foregrounded as ignored victims of sexual and gender‐based violence. The PSVI has been crucial to that recognition, but faces significant challenges in operationalizing its commitment and in avoiding damage to existing programmes to end violence against women and girls. The success of the Initiative will depend on its ability to navigate these challenges in multiple arenas of global politics.