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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: 

                  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.


Imaged with Permission of N.Y.U. Journal of International Law and Politics

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