About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

48 N.Y.U. J. Int'l L. & Pol. 129 (2015-2016)
International Crime and the Politics of Criminal Theory: Voices and Conduct of Exclusion

handle is hein.journals/nyuilp48 and id is 133 raw text is: INTERNATIONAL CRIME AND THE POLITICS OF CRIMINAL THEORY: VOICES AND CONDUCT OF EXCLUSION AsAD G. KiVANI* For all the attention that critical scholars give to the enforcement of international criminal law (ICL), comparatively little is paid to the philoso- phy of criminal law on which the discipline rests. As a consequence, critical scholarship and perspectives are often dismissed as simply political or overly subjective, and thus tangential to the rationalist study of law. This article takes a step toward remedying both this lack of attention, and the associated descriptions of it, by integrating analyses of criminal law theory with the interdisciplinary critical techniques of postcolonial study and Third World Approaches to International Law (TWAIL). This critical analysis of the theoretical foundations of the discipline exposes its embedded assumptions about critical and mainstream scholarship, and demonstrates the normative incoherence that cuts across so much of ICL. Focusing on the definitions of international crimes, it explains how the narrative of the criminalization of apartheid misleadingly valorizes Western legal engineering and impugns the alleged political manoeuvres of Third World states. The article then ex- plains the outlier status of apartheid, as it is one of the only international crimes whose definition recognizes structural violence. The narrow construc- tion of crimes throughout the rest of lCL forecloses the possibility of an ICL that is able to effectively respond to or prevent atrocities. This normative incoherence herein thus helps explain both theoretical and practical deficien- cies that result from orthodox ICL's exclusion of alternative voices and their understandings of crime and violence. Having destabilized this regime, the study opens ICL up to a more robust understanding of violence in interna- tional law, and offers a new methodology by which to critically interrogate the broader normative foundations of ICL. It takes a first important step towards reconciling two theoretical traditions---criminal law philosophy and TWAIL-that have thus far kept their distance from one another. * LL.B. (Osgoode), LL.M. (Cambridge), Doctoral Candidate, Univer- sity of British Columbia, Faculty of Law; Visiting Assistant Professor, Western University Faculty of Law; Adjunct Professor, Centre for Transitional Justice and Post-Conflict Reconciliation. Many thanks to James G. Stewart, Katia Coleman, Antony Anghie, Obiora Okafor, Gordon Christie, Benedict Kings- bury, Jos6 Alvarez, Pooja Parmar, Ben Perrin, Natasha Affolder, Francois Tanguay-Renaud, Sonia Lawrence and the participants of the April 2014 Boundaries & Connections Socio-Legal Studies workshop at Osgoode Hall Law School for their helpful comments on earlier drafts of this work. The author was a Visiting Researcher at the Institute of Feminist Legal Studies and the Nathanson Centre for Transnational Human Rights, Crime and Se- curity (Osgoode Hall Law School) while writing this article. 129 Imaged with Permission of N.Y.U. Journal of International Law and Politics

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most