(In)dependence cha cha cha? Black iconography and colonial (re)production at the ICC

This thesis interrogates the operationalization of the Rome statute through a post-colonial/CRT lens to detail a Eurocentric hegemony at the core of ICL. This hegemony excludes slavery and colonialism, the largest genocides known to humankind, as the foundations of not just contemporary ICL, but the crimes litigated by ICL. By asking if Africa has become a testing site for ICL, my research shows that this omission translates to the fact that the influences of these two events in the contemporary ‘impunity’ discourse are conveniently discarded. Consequently, until very recently few scholars saw ICC’s involvement in Africa as the reincarnation of colonialism. I join an increasing minority of scholars focusing on how these two events have come to shape International Criminal Law. My research exposes this perpetuation of the colonial and warns that it heralds ominous contemporary and future implications for Africa. As currently envisaged and acted out at the ICC, this law is founded on deceptive and colonial ideas of ‘what is wrong’ in/with the world. As it was in days gone by, this is often identified as the “‘tribal‘conflicts” emanating from Africa. What must be ‘cured’ is the ‘impunity’ of a small elite and the neoliberal nirvana would be achieved.

What is at stake however is power, not justice. We find that this power is hierarchical with Eurocentrism at the top which has remained so throughout modern history. Colonialism is seen not to have ended but to have regerminated through the foundation of the ‘independent’ African state. The ICC is firmly located at the contemporary neoliberal phase of that hegemony where African states are entangled in the straitjacket of treaties such as the Rome statute with dire consequences for their self-determination. The ICC reproduces the colonial by use of European law, and the over representation of the black accused. The iconography of the black accused/victim cements a biased legal industrial complex already well established in the west. The African via the ICL offers this emerging complex a ready market with the black body yet again becoming a commodity.

At the end, this thesis finds that the contemporary ICL regime is founded on white supremacy that corrupts the law’s interaction with the African. In the atomisation that follows, the African is but a unit utilised by the global elite to exploit and extract. From time to time, these alliances disintegrate with ICL becoming a retaliatory tool of choice.

To end this subjugation, a liberated African forum that can address conflicts in the content is enunciated here with a call of the hastened end of ICC’s involvement in Africa. The demand is made for the prominence of an African Court that utilises non-colonising African norms which are uniquely suited to address local conflicts.