Constructing an international legal order under the shadow of colonial domination

Abstract

It is often pointed out that African states were early and eager supporters of the international criminal justice regime. Yet the current international legal order is starkly different from the one African states had envisioned. By revisiting the archives of two pivotal moments in the establishment of the current international legal order—the work of the International Legal Commission (ILC) in drafting the Code of Crimes against the Peace and Security of Mankind and negotiations that led to the draft statute of the ICC—we find that Africa had proposed a different version of the international legal order. I contend that the visions African states held were reflective of their experience of colonial subjugation. Therefore, the Draft Code and establishment of the ICC were meant to provide an avenue for redress, amid a deep mistrust between Africa and “international law.” This article offers a revisionist historiography of the international criminal justice regime, which “writes Africa in,” and presents Africans as challengers and advocates of norms and a legal architecture borne out their experience of global marginality and the shadow of colonial domination.