International Criminal Law—A Counter-Hegemonic Project?

Although the closure of the ad hoc tribunals and the inaction of the United Nations Security Council (UNSC) in the context of atrocities committed in contemporary armed conflicts might suggest an imminent decline of international criminal justice, or at least its multilateral component, this chapter suggests a contrary view. The wide ratification of the ICC Statute together with the domestic implementation of international criminal law and international humanitarian law, as well as the establishment of war crimes units pursuant to legislation at times allowing for universal jurisdiction can attest to the success of the complementarity system. In fact, the atrocities committed in the last decade during armed conflicts in Syria, Iraq, and Ukraine are at the centre of domestic accountability efforts that can meaningfully contribute towards the dynamic development of international criminal law, or—in the words of the Presiding Judge in a Syrian case before the Higher Regional Court of Stuttgart, Germany—‘help the law, including international criminal law, achieve a breakthrough’ (OLG Stuttgart, 5—2 StE 5/17-4). This chapter will attempt an interpretation of the counter-hegemonic turn in international criminal law through the lens of the hegemony of the United Nations Security Council members, particularly Russia. Although Russia’s involvement in both Syrian and Ukrainian conflicts is significant, there has been little scholarly attention to date focusing on the Russian approaches towards the evolution of international criminal law in these contexts. The cognizance by the local populations that the UN-affiliated institutions cannot intervene in conflicts such as Syria or Eastern Ukraine, had an impact on the proliferation of grassroots documentation initiatives. These initiatives, broadly described as ‘Entrepreneurial Justice’ coordinated by civil society actors, continue to provide professional assistance to prosecution authorities which has paradoxically led to ‘justice ownership’ by the communities in Syria, Ukraine and beyond, thus pointing towards a breakthrough in the development of international criminal law.

The time between the Nuremberg and Tokyo Trials and the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda is often considered as an unfortunate discontinuation of the international criminal justice project. Contrary to such perspective, this chapter shows that the above period marked a significant progression of international criminal law and justice, which had the opportunity to incorporate the views, concerns and needs of the enlarged international community that emerged from the decolonisation process. The majority of States and scholars from the Global South fervently promoted the international criminal justice project, believing in the counter-hegemonic potential of its subject-matter jurisdiction. The chapter argues that the limited subject-matter jurisdiction of the International Criminal Court failed to address the concerns of a substantial part of the international community, in the name of which the Court operates. In doing so, the drafters of the ICC Statute subverted the counter-hegemonic capacity of the institution and opened the door to potentially competing regional projects.

In recent decades, numerous criticisms have been directed at Eurocentrism in international law generally and international criminal law specifically. These critics demand international law to be more inclusive towards non-European knowledge, inter alia Islamic law. Some scholars have argued that it is essential for the ICC to refer to Islamic law, not only to counter Eurocentrism in general but also because of the growing number of cases involving Muslims. Other scholars have suggested that there is some congruence between Islamic law and international criminal law in some general principles. However, so far there is very little comprehensive analysis on the compatibility of the two. It must be noted that if Islamic law has prescribed criminalization for international crimes up to a standard which is at least on par with what international law requires, this would mean at least that (a) there would be no reason for the ICC to not refer to Islamic law resources, and (b) Muslim states/groups who implement it would not need to refer cases to the ICC due to the complementarity principle. This research comparatively analyses Islamic Law and the ICC Statute. For the former, this research uses the fiqh literature of the traditionalist Islamic law scholars. Further, this research limits itself to war crimes included in Article 8 of the ICC Statute, specifically crimes against civilians. The hypothesis is that there is congruence in some but not in all rules, which is a challenge for international law and Islamic law scholars likewise.