When Criminal Justice and Indigenous Justice Collide: An Anti-Colonial Direction for the International Criminal Court

Eric Blumenson* | USA

When Criminal Justice and Indigenous Justice Collide: An Anti-Colonial Direction for the International Criminal Court

It is a pleasure to speak to you today on the subject of neo-colonial risks in the administration of international criminal justice. And it is truly an honor to speak about this subject to so many of you who are actively engaged in helping their countries overcome the effects of rapacious colonial rule over centuries and global capitalism today.

Colonialism suppressed indigenous forms of justice and, as our letter of invitation observes, neo-colonial practices continue to do so today. One difference is that neo-colonialism suppression is more difficult to define and identify than domination by conquest and command. My talk concerns one of the most difficult contexts of all, the suppression of indigenous justice in the name of universal justice. Universal justice is binding and coercively enforceable but cultures differ in what they think justice demands, so what looks to the UN like the enforcement of a human right may look like imperialist duress to those on the receiving end. I want to consider how one might reason about this question in one such case, the enforcement of an adversarial criminal justice model on cultures that have different traditions.

Before addressing that in the context of the International Criminal Court, let me say something about the larger human rights issue of which our case is just one instance. To me the adoption of the Universal Declaration of Human Rights in 1948 was a great moral advance from the ideals and international legal order that dominated the pre-war era. But human rights are also deeply rooted in Western history and some see them as an updated version of the mission civilisatrice, undermining traditional cultures in the name of superior values. Even the human rights scholar Michael Ignatieff worries that human rights doctrine is “now so powerful, but also so unthinkingly imperialist in its claim to universality, that it has exposed itself to serious intellectual attack” (2001, p. 58).

One such comes from Makao Mutua, who calls human rights a universalized version of the Western liberal tradition, “a testament to the conceptual, cultural, economic, military, and philosophical domination of the European West over non-European Union peoples and traditions” (2002, pp. 39, 154). Mutua analogizes their influence to that of 19th century missionaries who, he claims, devastated African societies by displacing indigenous religions that underpinned almost every aspect of life (p. 94). I am unqualified to evaluate Mutua’s empirical claims,[1] but his analogy is apt in the way Christian missions then and human rights now are potentially destabilizing to traditional cultures. Both exalt autonomous choice, individual conscience, and moral equality in a world where many societies remain hierarchical, communal and role-based.[2] In such societies, Rhoda Howard writes, part of human dignity lies in the “acceptance of what a human rights approach would consider injustice” (1992, pp. 81, 84). Grafting individualist and egalitarian values onto such a society is likely to undermine the supposed natural order on which it, and the identities of those within it, are built.

A crucial difference between then and now, however, is that we feel a much stronger obligation to respect indigenous cultural traditions today. In the 19th Century the British colonial administrator T.B. Macaulay (1835) could say that “a single shelf of a good European library was worth the whole native literature of India and Arabia”. That is a world away from Pope Francis’ words of apology to Canadian indigenous peoples for “the lack of respect shown for your identity, your culture and even your spiritual values” (O’Kane, 2022). It is precisely the opposite of the pluralist essence of the human rights idea, which prescribes respect for self-determination and diverse ways of life but also conformity to certain universal moral constraints. That is the theory; in practice that line is very difficult to draw. What does such respect mean when applied to a society that confines women to the home absent a male guardian, or maintains other oppressive traditions foundational to their way of life? When John Rawls, a philosopher known for the rigor of his arguments, tried to specify the limits of international tolerance in The Law of Peoples (1999, pp. 64-68), he had to resort to what he deemed “common intuition” and explicitly left it to readers to judge according to their own. (His intuition was that tolerance must extend to states that enforce a gender or religious hierarchy, and he narrowed the set of human rights accordingly).[2]


Is there anything more to guide us than bare intuition? For the International Criminal Court this question is unusually pressing: understanding what separates international justice from neo-colonial injustice is basic to its role and reasoning is central to its opinions. There can be no doubt, of course, that the substantive crimes within its jurisdiction – crimes against humanity, war crimes, genocide, and aggression – are universally unjust; but what justice means in their wake is highly contested and it is here that neo-colonial concerns come to the fore. That is especially true when a state objects to the Court’s jurisdiction on the ground it is handing the case itself. This is a jurisdictional restriction under the Court’s complementarity rule, which defines the ICC as a court of last resort, solely a backstop to prevent impunity when a state falters.[3] Suppose a state wants a non-criminal restorative justice process rooted in its own traditions to count as a bar to ICC jurisdiction. The Court must then decide whether that approach is sufficient and publish its reasons. Would its insistence on criminal punishment instead be an ethnocentric abuse of its power?[3] Let us consider in very abbreviated form how it might reason its way to an answer.

A restorative justice response to crime aims at acknowledgement, forgiveness, reparation, reconciliation, and the reintegration of offenders, not criminal punishment. The most celebrated example of its use following mass criminality remains South Africa’s Truth and Reconciliation Commission. The TRC granted amnesty to applicants who provided a full account of their crimes, was empowered to provide reparations, was rooted in tradition, and was a pre-requisite to the abdication of the criminal apartheid regime.[4] There are many who would find this inadequate, precisely the impunity the ICC was designed to avoid. They have included the United Nations Secretary-General (Annan, 2000),[5] families of South African victims who sued to stop the TRC,[6] and innumerable theorists and activists who regard prosecution and punishment as the only proper response to mass slaughter, torture, and other atrocities.[7] Yet numerous states have resorted to truth commissions and amnesties either to end brutal conflicts or to address crimes following them.

There is widespread agreement that general amnesties to all perpetrators of grave human rights crimes violate international law.[8] But the provision of conditional amnesties to individuals who testify truthfully as part of a truth and reconciliation process presents a very different situation than, say, a military government providing unconditional amnesty for all crimes committed by its agents. Neither the Rome Statute (1998) nor case law so far definitively states whether such a process may constitute a jurisdictional bar.[9] (Indeed, the ICC’s first president, Philippe Kirsch, says the Rome Statute was designed to be “creatively ambiguous” on the question).[10] This leaves the Court to grapple with some fundamental moral questions. First, does justice in the aftermath of crimes against humanity always demand prosecution? Second, if it does, should justice give way if continued tyranny or bloodshed would be the likely result? Third, whatever its own answers, how much should the Court defer to the contrary views of a state or its people? The enormity of the stakes and the force of the moral claims on all sides make these questions extraordinarily daunting.

It may be that there is no way to bridge the cultural divide between adversarial criminal justice and a traditional non-criminal alternative. But taking cultural imperialism seriously requires the Court to interrogate its own adversarial criminal model with respect for other traditions and see if common ground exists which might serve the ultimate values behind each view. The specifics of both traditions may be contingent means to a broader and deeper universal end (or not).[4] In the time remaining, I will consider the reasons supporting strict reliance on criminal justice to see if that is the only way to achieve the ends these reasons suggest. I take these reasons, broadly construed, to be these: (1) A retributive reason, that perpetrators of such crimes must receive their just deserts; (2) a social contract reason, that states owe victims prosecution of their victimizers; and (3) consequentialist reasons, such as that failing to prosecute and punish such crimes makes their recurrence more likely and reconciliation less so.

1. Justice. I start with the retributive ground for prosecution, that the perpetrator must receive his “just deserts”. Of those who believe this, some take that to require criminal conviction and imprisonment, others do not. To utilitarians that view is irrational,[11] to restorative justice devotees it is unduly focused on the perpetrator and the past, to some faiths and cultures it is unenlightened.[12] John Braithwaite even claims that restorative justice has been the dominant model for most of human history (Braithwaite, 2001). In any case the Court might reasonably view imprisonment as one contingent means to the more widely shared and broader moral end of accountability for one’s crimes. Criminal punishment and the TRC model both impose accountability in their different imperfect ways. Criminal punishment holds perpetrators accountable by confinement and servitude but only those it can find and convict. The South African process held perpetrators accountable by exposure, disgrace and at times introspective guilt, and with its amnesty incentive imposed this on many more. It also appeared better able to expose culpable corporations, media, and other institutional actors who may have been one step removed from a pattern of atrocities but more responsible for them.[5]

Justice is also owed to victims, universally. Every state has this obligation because its legitimacy uncontroversally depends on protecting and respecting all of its people; doing nothing denies the victim’s civil status as a member of the polity. But is criminally prosecuting and punishing perpetrators a necessary part of this obligation? In my country we act as if it is, and imprisonment is perhaps a kind of justice for victims. If it is, however, it is far from the only kind. In South Africa, conditional amnesties meant many more victims learned what happened to them, why it happened, and who was responsible. Victims were at the center of the proceedings and could question their victimizers. That they had been victimized was incontestable after perpetrators publicly admitted their crimes, often in televised hearings, as opposed to conflicting stories that criminal trials may generate.

2. Impact. The Rome Statute’s Preamble conceives the ICC’s role as two-fold, to end impunity and to contribute to the prevention of “grave crimes [that] threaten the peace, security and well-being of the world”. The hope is that prosecuting crimes of this gravity and scale will prevent their recurrence through its deterrent and norm-reinforcing effects. (We’ve see a possible example this month with the arrest warrant issued againt Vladimir Putin; time will tell). A complicating issue is that there may be devastating consequences from pursuing prosecution as well: that prospect may induce a criminal regime to cling to power, or insurgents to refuse to lay down arms, and commonly does. In that case the consequentialist hope must be that consistently investigating and prosecuting war criminals will produce enough good in the long term to justify the more immediate horrors it produces.[6]

Such dilemmas raise what’s commonly labelled the “peace versus justice” problem. They engage the ancient question, Should justice be done though the heavens fall? Then UN Under-Secretary-General for Legal Affairs Nicolas Michel told the Security Council that “[j]ustice should never be sacrificed by granting amnesty in ending conflicts” (UN Security Council, 2006), and the Rome Treaty purports to agree, but it also makes several escape mechanisms available in the event. I will only note here that truth commissions could provide a third option. In the right circumstances, they may allow for peace while at least avoiding the injustice of state and international indifference to the victims of criminal atrocities.

3. Pluralism. The third question is how much deference the ICC owes to state approaches that differ from its own adversarial criminal justice system. In one way, very little, because all state parties to the Rome Treaty have consented to be bound by the court and its procedures.[13] But that legal fact does not obviate the Court’s task of defining the scope and limits of diversity in state approaches to accountability, nor its obligation to serve all peoples impartially. Given its pluralist commitment, when reasonable moral disagreement exists as it does with the issues here, the Court should tread lightly in enforcing one contested view over others (akin to the Margin of Appreciation that the European Court of Human Rights affords its constituent states). It should also give weight to the self-determination of peoples and cultural survival, values that are recognized as rights in the ICCPR.

That most of the victims in the ICCs first referral (Uganda) favored the Acholi restorative justice process of mapu opet to criminal justice is not dispositive but has weight.[14]

Collectively, these considerations suggest to me that a well-constituted non-criminal truth commission should be an acceptable alternative in the right circumstances. They also have the broader implication that the ICC would do well to facilitate the devolution of real justice to state and local jurisdictions. First prosecutor Luis Moreno-Ocampo said that the greatest achievement of the Court would be to make itself unnecessary.[15] Two particular steps could help advance this devolutionary goal. First, I said that truth commissions may ameliorate the peace versus justice conundrum but this is only true if they deliver real justice. The Court can help assure that they do by enunciating in its decisions a set of standards and best practices for truth commissions against which the acceptability of a particular state institution will be assessed. By doing so, the Court could help effectuate those standards, and make available the option of peace with accountability in the kinds of situations that would otherwise present an intractable moral dilemma. Second, the Court could seek to enhance what has been called positive complementarity – assistance that strengthens a state’s capacity to provide justice through its own institutions. The Court has jurisdiction when a country is “unwilling or unable” to do justice, and those in the latter category should receive aid and technical support from the Court or the international community to build or rebuild its judicial infrastructure and capabilities.

Assistance of this sort would also help address a much more public charge of neo-colonialism levelled against the ICC that I have not addressed here. For many years now, African leaders have claimed the Court harbors an anti-African bias in its selection of cases.[16] An overlapping objection is to the Security Council’s ultimate authority over cases, which imports the unequal power of its members into the Court. (Three of the five permanent members of the Council have refused to join the Court but may vote to refer other states to it and veto referrals of themselves and their allies). The more states are empowered to do justice themselves, the less the Court will be subject to complaints about ethnocentric bias itself.



I thank Howard Gardner, Eva Nilsen, Rayman Solomon, and Marcelo Suárez-Orozco for their insightful counsel on the manuscript.



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[1] To assess Mutua’s causal claims about the destruction of cultures by missions then and human rights now, one would have to factor in not only the violence and complicity of some missions and the cultural revisionism of human rights but also their positive anti-colonial contributions (such as the education of African anti-colonial leaders by missionary schools and the anti-colonial emphasis of human rights in its post-war incarnation), along with the culturally destructive influence of other more massive forces (such as rapacious colonial administrators then and globalized business and media now).

[2] On Rawls’ theory, tolerance extends to “associationist” societies that are unjust by liberal standards – they may be non-democratic, or govern according to religious scripture, or enforce a gender or religious hierarchy – but they satisfy three conditions Rawls believes warrant inclusion in the society of peoples. They are peaceful; they respect a limited set of human rights; and they follow a “common good idea of justice” whereby lawmakers take account of the interests of all groups, and the members of these groups in turn regard the legislative power to impose legal obligations legitimate (1999, pp. 64-68). Principle 6 mandates respect for human rights but the list is a subset of rights recognized by liberal peoples (p. 79). These are the right to life, including the means of subsistence and security; to freedom from slavery, serfdom and forced occupation; to a sufficient measure of liberty of conscience to ensure freedom of religion and thought; to personal property; and to the formal equality of similar cases being treated similarly. The law of peoples includes no norms of democratic government, individual equality, distributive justice, public offices open to all, or fully equal rights to free speech and religious practice (pp. 65, n. 2, 74).

[3] Rome Statute, art. 17. For purposes of art. 17, a state is not investigating or prosecuting when it either fails to pursue the case or pursues it in a way that demonstrates its inability or unwillingness to genuinely investigate or prosecute the case.

[4] Amnesties were to be granted only if the applicant provided a full disclosure of his crimes, and only for acts that were “associated with political objectives and committed in the course of the conflicts of the past”. The Constitution of the Republic of South Africa Act 200 of 1993, post-amble; Law No. 34 of July 26, 1995 “Promotion of National Unity and Reconciliation Act”, sec. 20(1)(b) and (c)(requiring political objective and full disclosure to be eligible for amnesty). This principle of individualized amnesty in exchange for truth distinguished South Africa from Chile, Haiti, Guatemala and other countries that had granted blanket amnesties to outgoing regimes in exchange for nothing. Applicants identified others involved, including superiors who gave them orders. The 7 to 1 rejection rate indicates the scrutiny applied to applications.

[5] Annan says that “the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law” (para. 22).

[6] The families of Steven Biko and Griffiths Mxenge, two prominent murdered South African civil rights leaders, unsuccessfully challenged the constitutionality of the amnesty provision of the TRC Act in the case of Azanian Peoples Organization (AZAPO) and Others v. President of RSA and Others 1996 (8) BCLR 1015 (CC)).

[7] See Gutmann and Thompson (2000, pp. 22, 25, amnesty for an admitted murderer is necessarily a denial of justice); Landsman (1996, p. 90, genocide must never be amnestied because the “interests of single nation should never be allowed to thwart prosecution”); Martin (2001, p. 82)(amnesty is not acceptable for violators of humanitarian law).

[8] The Pretrial Chamber of the ICC has ruled that a general amnesty law enacted by the Libyan government did not deprive the Court of jurisdiction under art. 17, finding such amnesties “intervene with State’s positive obligations to investigate, prosecute, and punish perpetrators of core crimes. In addition, they deny victims the right to truth, access to justice, and to request reparations where appropriate”. The Prosecutor v. Saif Al-Islam Gaddafi, No. ICC-01/11-01/11 (April 5, 2019), paras. 61, 77. The opinion did not distinguish conditional, individualized amnesties like those issued by the South African TRC, but such a process arguably does not present the defects cited. As to general amnesties without conditions, they have been condemned as contrary to international law by international and regional bodies and tribunals, but sometimes on grounds that it denied victims remedies. See, e.g., from the UN Human Rights Committee, Hugo Rodriguez v. Uruguay, Communication No. 322/1988, Aug. 9, 1994, UN Doc. CCPR/C/51/D/322/1988, para. 12; from the Inter-American Court of Human Rights, Case of the Massacres of El Mazote and Nearby Places v. El Salvador (Merits, Reparations and Costs), Judgment of Oct. 25, 2012, para. 296; from the African Commission of Human and Peoples’ Rights, Mouvement Ivoirien des Droits Humains (MIDH) v. Cote d’Ivoire, Communication No. 246/o2, Decision July 29, 2009 para. 98 (“the granting of amnesty to absolve perpetrators of human rights violations from accountability violates the right of victims to an effective remedy”); from the European Court of Human Rights, Margos v. Croatia, Application no.4455/10, Judgment of Nov. 13, 2012, para. 74 (noting the “growing tendency for international, regional and national courts to overturn general amnesties”).

[9] Under art. 17(1)(b), a case is inadmissible if a state has investigated but decided not to prosecute, “unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute”. Given the Rome Statute’s declaration in its Preamble that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, as well as statements from the first two Prosecutors at the ICC, the Office of the Prosecutor is unlikely to accept conditional amnesties granted for the purposes of achieving peace and reconciliation as a complementarity bar. However, the issue continues to be debated. One argument for accepting some conditional amnesties would rely on art. 17(2), which instructs the Court to determine whether unwillingness exists in part by considering whether the state’s decision was made “for the purpose of shielding the person from criminal responsibility” or is “inconsistent with an intent to bring the person concerned to justice”. Arguably, a state’s reliance on an alternative justice mechanism is a way to bring the perpetrator to justice, and when instituted in part to end a civil war, say, is not motivated by the purpose of shielding him. Moreover, an amnesty-for-truth process does contemplate criminal prosecution of those who do not come forward or do not come clean in their testimony. Among experts who believe some amnesties may be compatible with a state’s obligation under the Rome Statute are Goldstone and Fritz (2000), Carter, Ellis and Jalloh (2016), and Minow (2019). On the other side are experts such as Allen (2011), Angermaier (2002), and Holmes (1999). Moreover, the Trial Chamber in Katanga stated that “unwillingness” may apply to states that choose “not to investigate or prosecute a person before its own courts” but nevertheless have “every intention of seeing that justice done”. Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga Pursuant to Article 19(2)(a) of the Statute, Katanga and Ngudjolo Chui (ICC-01/04-01/07-949), Trial Chamber II, March 2009, paras. 4-6, 9, 14.

[10] Newman, (2004). Kirsch is quoted to similar effect by Michael Sharf recounting an interview in Scharf (1999, pp. 507, 521-522 and ns. 104-106).

[11] Even many retributivist theorists see desert as protecting the innocent but not a reason to punish to punish the guilty unless accompanied by some social benefit, like deterrence.

[12] According to Drumbl (2004, p 551), “Western justice modalities…although globalized, are not universal. They are in fact deeply culturally contingent”. By contrast, van Zyl and Freeman claim that Asians generally place more emphasis on acknowledgement and compensation than prosecution (2002, pp. 3, 6). Among cultures that treat restorative justice procedures as the preferred response to serious crimes, sometimes including murder and rape, are those of the Ifugoa people in the Philippines (Barton, 1967); the First Nations in Manitoba (Braithwaite, 1999, pp. 1-97); some Palestinian communities (Braithwaite, 2001, p. 4); the Maori community in New Zealand (Maxwell and Morris, 1993). See also Mani (2002, pp. 47-48 n. 128), arguing that international justice neglects non-Western values in favor of the Western adversarial model.

[13] This point requires two qualifications. First, the ICC has jurisdiction over the national of a state that has not ratified the Rome Treaty when she commits a crime in a state that has, or that consents to jurisdiction. Second, under the Rome Statute there may be uncommon cases in which the defendant is neither a national of a state party nor accused of committing the crime within the territory of a state party, because the Security Council may refer a situation to the ICC regardless of the party status of the state. Rome Statute art. 13(b).

[14] A survey conducted by Uganda’s Refugee Law Project (Hovil & Lomo, 2005, pp. 1, 4, 9, 21, 23, 28) reported overwhelming support for the amnesty and antagonism towards ICC intervention among the victim community. See also Beitzel & Castle (2013).

[15] Prosecutor Moreno-Ocampo also noted that “programmes that emerge from national consultations are…more likely than those imposed from outside to secure sustainable justice for the future, in accordance with international standards, domestic legal traditions and national aspirations” (Office of the Prosecutor, 2007, p. 7, n. 10).

[16] Numerous accounts and assessments of these objections are widely available. See, for example, Murithi (2019); Cowell (2017); Kiyani (2011). Articles seeking to rebut the claim of anti-African bias include Austin & Thieme (2016, pp. 342, 345); du Plessis (2010); and Whiting (2016).


[*] Presented to the Pontifical Academy of Social Sciences at its Summit on Colonization, Decolonization and Neocolonialism held at the Vatican on 30 and 31 March 2023. Comments gratefully received at eblumens@gmail.com

  1. That tension surfaced prominently at the 1993 Vienna World Conference on Human Rights and its debate over purported “Asian values”. These values purportedly place more importance on family, community, consensus, and economic security, and less on individualism and authenticity.
  2. For our purposes it is most fruitful to focus on the complementarity criterion but other provisions in the Rome Statute could be invoked instead, including the following. (1) The Security Council may defer a Court investigation or prosecution for renewable one-year periods (art. 16). (2) The Prosecutor may decline to open an investigation if, taking into account “the gravity of the crime and the interests of victims, there are…substantial reasons to believe that an investigation would not serve the interests of justice” (art. 53, para. 1(c)). (3) After investigation, the Prosecutor may decline to prosecute on similar interest-of-justice grounds (art. 53, para. 2(c)). (4) In a policy paper, the ICC sets out factors to be considered in case selection, including “the impact of investigations and prosecutions on the victims of the crimes and affected communities” and “the impact of investigations and prosecutions on ongoing criminality and/or their contribution to the prevention of crimes” (2016, paras. 46 and 50).
  3. If there is any possibility of an unforced consensus among different cultures, Charles Taylor tells us, it “will not come through a loss or denial of traditions aII around, but rather by creative re-immersions of different groups, each in their own spiritual heritage, travelling different routes to the same goal” (1999, pp. 101, 118).
  4. One of the South African Commission’s responsibilities was to establish a complete picture of “the causes, nature and extent of the gross violations of human rights”, along with their “antecedents, circumstances, factors and context”. Promotion of National Unity and Reconciliation Act, The Republic of South Africa, Act No. 34 of 1995; as amended by Amendment Act No. 84 of 1995. By contrast, most criminal law, including the law that governs the international tribunals, focuses on mens rea which presumes choice and free will. It omits the societal input in the crime because of that presumption, so that conditions that encourage or maintain criminal proclivities are nowhere in the picture. This is especially problematic if institutions are substantially at fault, or if conduct is widespread rather than deviant, as is often true in the case of crimes against humanity and genocide.
  5. A more modest argument for a Court policy of consistent pursuit of criminal justice might be based on its institutional role, so that political considerations should be left to the Security Council (which is empowered to delay or block investigations for such reasons). The argument is that the ICC lacks the expertise to engage in post-conflict management or peace-making, or even to accurately assess the sincerity of peace proposals, but it does have the unique potential to act as a back-up mechanism removed from the political pressures that typically prevent states from prosecuting. If the ICC also finds a prosecution too costly to pursue based on these same pressures, it would merely be replicating the problem the ICC was created to solve. In a 2007 policy paper, Prosecutor Luis Moreno Ocampo cited this institutional division of labor in announcing that he would not treat the protection or promotion of peace as a basis for declining prosecution on interests-of-justice grounds (Office of the Prosecutor, 2007, pp. 1, 7-8).