A pattern of affording impunity to local power brokers throughout Africa pervades the application of international criminal law (ICL) in Africa. The International Criminal Court (ICC) investigation into Uganda is a notorious but representative example, although similar analyses can be made of the Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, and Libya. In Uganda, only members of the rebel Lord’s Resistance Army (LRA) have been indicted for international crimes, even though the United Nations, international human rights groups, and local NGOs have documented years of abuses perpetrated by government troops and local auxiliary units, often against the same populations victimized by the LRA. The ICC is thereby implicated in the power structures and political arrangements of a repressive state that both combats the LRA and often brutalizes the civilian populations of northern Uganda. Inserting itself into Uganda, the ICC becomes a partisan player in the endgame of a civil war that extends back over a generation, and is itself rooted in ethnic and tribal animosities cultivated through 19th century Euro-colonial benedictions of favor. Here, the ICC and the war it adjudicates become surprising bedfellows, repurposed by local elites for the consolidation of domestic power.

Weak sub-Saharan African states use international law and its institutions to legitimate their actions and delegitimate their internal enemies. In this essay, I argue that during internal armed conflicts, African states use international criminal law to redefine the conflict as international and thereby rebrand domestic political opponents as international criminals/enemies who are a threat to the entire community. This in turn sets the stage for invoking belligerent privileges under international humanitarian law (IHL).

Given the long history of violent encounters between the Global North and the Global South, legal arguments concerning the use of force are a fertile ground for testing the virtues and limits of Third World Approaches to International Law (TWAIL) as a theory aspiring to “address the material and ethical concerns of Third World peoples.” This essay examines the usefulness and limits of TWAIL in the context of the “unwilling or unable” doctrine currently promoted by a series of Western scholars and states in order to expand the scope of application of the right to self-defence under Article 51 of the United Nations Charter. Adopting TWAIL’s impulse to historicize, this essay argues that the structure of this doctrine closely replicates the “standard of civilization” that informed international legal theory and practice throughout the nineteenth century. At the same time, widespread resistance to the “unwilling or unable” doctrine indicates that the profound transformation of international law on the use of force after 1945 and the diffusion of sovereignty outside the West put into question certain methodological and political commitments of TWAIL.

This short essay focuses on the involvement of Muslim-majority state leadership in the pre-World War II development of international humanitarian law (IHL), including their appeals to Islamic norms. This historical snapshot reveals how national leaders joined debates during conferences leading up to the revised 1949 Geneva Conventions, the heart of modern IHL. Such accounts complicate our assumptions about the cultural and national composition of public international law as “Western,” and shed light on global hierarchies involving modern Arab and Muslim states and their investment in such norms. The essay argues by example that, ultimately, in Third World Approaches to International Law (TWAIL) more emphasis is needed on history, traditions of governance, and states’ distinctive responses to macrostructural pressures—rather than on static notions of identity, resistant narratives, and presumed shared ideologies. TWAIL seeks alternatives to international law’s presumed oppressive role in Western-non-Western power dynamics, and new ideas and opportunities for a “third-world” legal scholarship beyond current global underdevelopment dynamics.