Wednesday, August 12, 2020


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Excerpted From: Randle C DeFalco and Frédéric Mégret, The Invisibility of Race at the ICC: Lessons from the Us Criminal Justice System, 7 London Review of International Law 55 (March, 2019) (102 Footnotes) (Full Document)


DefalcoandMegret02Drawing 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. 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. 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. 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. Moreover, it draws on some of our previous work, by combining elements of the study of the legal invisibility of race and the critical analysis of international criminal justice, and studying the latter's 'visibility politics', understood as being concerned with what this regime simultaneously makes socially and legally visible and invisible. 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. 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.

[. . .]

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' 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. 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.

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.

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. Email: Randle.Defalco

Frédéric Mégret is Professor and Dawson Scholar at the McGill University Faculty of Law Centre for Human Rights and Legal Pluralism. Email: 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.

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