Beyond the purview of of International Criminal Judgments
Barrie Sander (2021)
Barrie Sander examines the limitations of international criminal courts in their construction of
historical narratives. He highlights the need for broader historical perspectives, acknowledging that
focusing solely on individual perpetrators risks overlooking the systemic factors that contribute to
mass atrocities and unjustly burdens those convicted.
The International Criminal Court (ICC): “The ICC is a permanent international court established to
investigate, prosecute and try individuals accused of committing the most serious crimes of concern to
the international community as a whole: the crime of genocide, crimes against humanity, war crimes
and the crime of aggression”
This chapter explores how ICC’s often marginalise 3 dimensions of mass atrocity contexts:
1.1 Structural and Slow Violence
Structural violence: social injustices (poverty and unequal opportunities) result in "unequal power and
consequently as unequal life chances" (Galtung, 1969)
● Not always a direct cause of mass atrocities, but is a risk factor (struggles over distributive
justice)
● Horizontal inequalities (group-based disparities): more likely to escalate into direct violence,
often exploited by leaders to create sense of identity and mobilise groups
Slow violence: violence that occurs gradually and is often hidden or difficult to perceive, "a violence
of delayed destruction that is dispersed across time and space" (Nixon, 2011).
● It encompasses issues like environmental degradation and economic injustice that may be
caused by global economic forces
○ Difficulty of recognising and addressing violence that unfolds over extended periods
○ Harmful outcomes often appear disconnected from their original sources due to the
passage of time
● International criminal courts often neglect structural and slow violence, focusing instead on
individual criminal responsibility and the immediate context of the crimes
○ Limits understanding of mass atrocities by ignoring the underlying societal issues that
contribute to them and risk establishing…
"a hierarchy of harms in which the spectacular violence pursued in international
courtrooms is dubbed the most serious while the horrific indignities and suffering of
daily life in a poor country or conflict zone are naturalised as largely inescapable
and unchangeable" (Miller, 2016)
1
, Case Study: Special Court for Sierra Leone (SCSL)
Background Critical perspectives
● SCSL emphasised diamonds as a central ● Exclusive focus on high-level
driver of the conflict, often sidelining prosecutions and narrow interpretations
deeper structural causes like corruption, of violence obscures broader structural
poverty, and governance failures causes of atrocities
● Reports by organisations (eg Human ● The SCSL judgement in the Taylor case
Rights Watch, Sierra Leone TRC) suggested structural causes but failed to
highlight underlying structural issues delve into their implications, reaffirming
like rural marginalisation and economic their perceived irrelevance in legal
deprivation terms
● The prosecutor declared the causes to be ● Narrow lens restricts the narrative scope
‘pure greed’, aiming ‘to control a of international criminal courts, leaving
commodity, and that commodity was systemic conditions that foster mass
diamonds’ violence beyond their legal and
analytical reach.
→ Structural and slow violence, critical to understanding the roots of conflicts, remain outside
the scope of legal adjudication, restricting the narratives constructed by ICCs.
1.2 International Interventions
● ICC’s have a tendency to ignore the role of international actors and institutions in shaping the
contexts of mass atrocities, focusing primarily on local actors
● ICC’s rarely prosecute business entities or persons due to:
○ Jurisdictional limitations focusing on individuals
○ Challenges in attributing criminal responsibility to distant business actors
○ Perception that corporate actions are less severe than those of political or military
actors in conflict zones
● Resource wealth from illegal trade often exacerbates conflicts, making them more violent,
costly, and prolonged
There are 3 other forms of international interventions that were neglected by ICC’s:
A. Colonial Powers
● ICCs rarely address colonial massacres, such as those in Algeria and Biafra, due to their
perceived distance from contemporary conflicts
● ICCs often downplay the role of colonial powers in shaping the conditions that lead to mass
atrocities
● Colonial policies can exacerbate societal divisions
○ Eg Rwanda: Belgian regimes exacerbated ethnic divisions through "race science" and
policies like identity cards. International Criminal Tribunal for Rwanda (ICTR)
acknowledged these policies but used only to define Tutsis as a protected group under
genocide law, not to critique colonial powers
2
Barrie Sander (2021)
Barrie Sander examines the limitations of international criminal courts in their construction of
historical narratives. He highlights the need for broader historical perspectives, acknowledging that
focusing solely on individual perpetrators risks overlooking the systemic factors that contribute to
mass atrocities and unjustly burdens those convicted.
The International Criminal Court (ICC): “The ICC is a permanent international court established to
investigate, prosecute and try individuals accused of committing the most serious crimes of concern to
the international community as a whole: the crime of genocide, crimes against humanity, war crimes
and the crime of aggression”
This chapter explores how ICC’s often marginalise 3 dimensions of mass atrocity contexts:
1.1 Structural and Slow Violence
Structural violence: social injustices (poverty and unequal opportunities) result in "unequal power and
consequently as unequal life chances" (Galtung, 1969)
● Not always a direct cause of mass atrocities, but is a risk factor (struggles over distributive
justice)
● Horizontal inequalities (group-based disparities): more likely to escalate into direct violence,
often exploited by leaders to create sense of identity and mobilise groups
Slow violence: violence that occurs gradually and is often hidden or difficult to perceive, "a violence
of delayed destruction that is dispersed across time and space" (Nixon, 2011).
● It encompasses issues like environmental degradation and economic injustice that may be
caused by global economic forces
○ Difficulty of recognising and addressing violence that unfolds over extended periods
○ Harmful outcomes often appear disconnected from their original sources due to the
passage of time
● International criminal courts often neglect structural and slow violence, focusing instead on
individual criminal responsibility and the immediate context of the crimes
○ Limits understanding of mass atrocities by ignoring the underlying societal issues that
contribute to them and risk establishing…
"a hierarchy of harms in which the spectacular violence pursued in international
courtrooms is dubbed the most serious while the horrific indignities and suffering of
daily life in a poor country or conflict zone are naturalised as largely inescapable
and unchangeable" (Miller, 2016)
1
, Case Study: Special Court for Sierra Leone (SCSL)
Background Critical perspectives
● SCSL emphasised diamonds as a central ● Exclusive focus on high-level
driver of the conflict, often sidelining prosecutions and narrow interpretations
deeper structural causes like corruption, of violence obscures broader structural
poverty, and governance failures causes of atrocities
● Reports by organisations (eg Human ● The SCSL judgement in the Taylor case
Rights Watch, Sierra Leone TRC) suggested structural causes but failed to
highlight underlying structural issues delve into their implications, reaffirming
like rural marginalisation and economic their perceived irrelevance in legal
deprivation terms
● The prosecutor declared the causes to be ● Narrow lens restricts the narrative scope
‘pure greed’, aiming ‘to control a of international criminal courts, leaving
commodity, and that commodity was systemic conditions that foster mass
diamonds’ violence beyond their legal and
analytical reach.
→ Structural and slow violence, critical to understanding the roots of conflicts, remain outside
the scope of legal adjudication, restricting the narratives constructed by ICCs.
1.2 International Interventions
● ICC’s have a tendency to ignore the role of international actors and institutions in shaping the
contexts of mass atrocities, focusing primarily on local actors
● ICC’s rarely prosecute business entities or persons due to:
○ Jurisdictional limitations focusing on individuals
○ Challenges in attributing criminal responsibility to distant business actors
○ Perception that corporate actions are less severe than those of political or military
actors in conflict zones
● Resource wealth from illegal trade often exacerbates conflicts, making them more violent,
costly, and prolonged
There are 3 other forms of international interventions that were neglected by ICC’s:
A. Colonial Powers
● ICCs rarely address colonial massacres, such as those in Algeria and Biafra, due to their
perceived distance from contemporary conflicts
● ICCs often downplay the role of colonial powers in shaping the conditions that lead to mass
atrocities
● Colonial policies can exacerbate societal divisions
○ Eg Rwanda: Belgian regimes exacerbated ethnic divisions through "race science" and
policies like identity cards. International Criminal Tribunal for Rwanda (ICTR)
acknowledged these policies but used only to define Tutsis as a protected group under
genocide law, not to critique colonial powers
2
