“Legacies of Empire in International Criminal Law: The Use of ICL Norms by Imperial Powers During the Long 19th Century”

How did 19th century European colonial projects and imperial ideologies influence the early development of international criminal law (ICL)? This article will cast a set of 19th century conceptual, institutional and doctrinal developments as forerunners to today’s international criminal legal system and consider how these developments were shaped by the contentious imperial politics of the time. It will thus reconsider the historical significance of familiar entries in the 19th century prehistory of ICL, highlighting the effects of imperial competition on efforts to suppress piracy and slavery and to codify the laws of war. It will also, however, discuss practices that have tended to be overlooked in ICL histories, including: imperial powers’ use of “colonial courts” to control colonized populations, their use of International Commissions and Mixed Courts to “improve” or “supervise” high-profile criminal trials in “uncivilized” nations, and their use of “extraterritoriality” to shield their own nationals from prosecution. In examining this array of practices, this article aims to highlight the historical connections between empire and ICL in two ways: showing (a) how imperial powers sought to shape and deploy existing or emerging norms to their own advantage and (b) how certain practices of colonial control contributed to the internationalization of criminal justice.

This paper and the larger dissertation project of which it is a part engage with a variety of related literatures. These include a growing body of work in critical and postcolonial approaches to the history of international law that has sought to uncover the ways in which imperialism and colonialism shaped the development of international law over the full course of its history. This project also speaks to debates taking place in a number of issue areas of international relations theory, including: discussions of how institutional design shapes the behavior of individuals, discussions of how path dependence can lock in the policy preferences of powerful actors even over the long term (a central theme in historical and sociological institutionalism), and discussions of the ways in which international actors deploy international norms and seek to shape their content in order to promote their own national interests (addressed in recent constructivist work on the instrumental uses of norms in international relations).

"Is Universal Jurisdiction Imperialist?
Assessing allegations that international criminal law has been subverted to imperialist ends"

Has universal jurisdiction (UJ) been used as a tool of “legal imperialism”?  This doctrine – a legal tool that allows states to prosecute individuals in their domestic courts for certain international crimes regardless of where the crime took place or the nationality of the parties – has been criticized on a number of grounds, most of which have been discussed thoroughly in the academic literature.  Allegations that this little-used legal doctrine has allowed powerful states to pursue imperialist or neocolonial policies under the cover of universalist legal justifications has, however, received little scholarly attention.  This relative silence is striking given that this argument has been a growing refrain among the chorus of voices questioning the legitimacy of ICL in recent years.

This article aims to take the “legal imperialism” critique seriously.  The article begins with a discussion of why scholars, jurists, and advocates interested in ICL should hear and address this critique, even if they find the allegations that underly it to be implausible.  Having established the stakes of the debate, the article then considers the arguments – implied or explicit – that critics have built on the premise that ICL has ties to imperialism/neocolonialism and the factual claims on which these allegations and their associated arguments rest.  Finally, the article considers whether these factual claims are supported by the available factual evidence.  In this latter empirical section, the article draws on a survey – conducted jointly by Mackenzie Eason and Maximo Langer – of all complaints, formal proceedings, trials and verdicts that have relied on UJ between 1961 and 2017.