The International Criminal Court (ICC) has been widely denounced for its prosecution of exclusively African defendants as an instrument of imperialism and neo-colonialism. The conception of imperialism even in the critical accounts, however, remains imprecise and under-theorised. Imperialism is primarily used in political or cultural terms; essentially as a form of power politics involving domination of weaker States by powerful ones within the international system. Crucially, such conceptions tend to privilege choices of individual actors, including institutions like the ICC, as the source of imperial domination and do not interrogate any structural roots of imperialism. References to structural factors in these critical accounts remain general and often vague.^[1] The result of such general treatment of imperialism is an impoverished understanding of the concept as well as its relationship with international criminal law (ICL). Moreover, the rare political economic critiques of ICL have also not specifically analysed imperialism as a conceptual category.^[2] A systematic theoretical account of imperialism and its relationship with ICL remains a work in progress in the context of this body of literature. The theoretical contributions of Rosa Luxemburg on the phenomenon of imperialism can be particularly useful in comprehending the imperial character of ICL. Some of her insights into imperialism remain relevant in making sense of present day global capitalism and its relationship with criminality; particularly in the post-colonial capitalist landscape of the Global South. 

Luxemburg on imperialism

Luxemburg argued that capitalism depended on its non-capitalist outside for expanded reproduction and, hence, the tendency to imperialism was inherent to the capitalist mode of production. She explained that any home market in the capitalist core and even trade among capitalist economies had only limited ability to avert the crisis of overaccumulation and sustain continuous successful accumulation in the core economies. As a result, the circuit of capital needed to trade with and/or expand into non-capitalist peripheries. She made her intervention when imperialism was already widely viewed as a necessary solution to the problem of under-consumption and the general crisis of monopoly capitalism in the core economies. However, her distinct contribution is her insight that capitalism cannot exist autonomously and that it depends on a non-capitalist outside for its expanded reproduction. To be sure, others within the tradition of radical political economy have contested her claim regarding the inability of capitalism to exist autonomously. Nevertheless, her insights into the relationship between the circuit of capital and non-capitalist outside remain indispensable to any attempt at understanding the dynamic of the contemporary relationship between the advanced capitalist economies of the Global North and post-colonial capitalist economies of the Global South.

Imperialism and the post-colonial capitalist landscape

Building on Luxemburg’s insights, the present global capitalist order can be conceptualised as encompassing both capitalist interior as well as non-capitalist exterior. Global capitalism is constituted by the capitalist mode of production as the dominant mode of production with non-capitalist modes of production either being variously subsumed or existing under its domination. This general dominance of the capitalist mode of production on a global scale implies that the existing non-capitalist spaces are not remnants of pre-capitalist order but are rather products of the dynamics of capitalist accumulation. For its expanded reproduction, however, capitalism both depends on and undermines these non-capitalist outsides. Vast segments of informal economies across the Global South constitute a substantial part of a non-capitalist exterior which are not connected to the circuit of capital through global value chains. Today the process of primitive accumulation that characterises the dispossession of all alternative means of production and consumption for this population in the Global South does not in turn lead to their absorption within the circuit of capital as wage labourers. Instead, these masses of unwanted people are left with no means except their acts of (ever more) self-exploitation for survival.^[3] Whilst the persistence of such non-capitalist economic spaces characterised by the logic of subsistence does provide political conditions for the existence and expanded reproduction of capitalism, this population still remains excluded from the circuit of capital. In other words, the millions of people are truly surplus in the sense that they are simply not needed by capitalist relations. It is in these everyday conditions of devastation and destruction of post-colonial capitalist development that mass violence takes place. However, the continuous capitalist accumulation on a global scale in the present conjuncture of capitalism depends on the persistence of the existing material conditions across the Global South. Any attempt to radically reconfigure the post-colonial capitalist landscape across the Global South is, therefore, structurally excluded by the imperative of capitalist reproduction.  

International Criminal Law as a regime of governance

Relying on this theoretical understanding of imperialism as a mode of expanded capitalist reproduction, a political economic analysis of ICL produces a radically different picture of the regime. One site of imperialism understood in this way is the regime of complementarity.^[4] While the mechanism of complementarity tolerates heterogeneity with respect to institutions involved in adjudicating atrocity crimes, it enforces homogeneity with respect to conceptions and responses to acts underlying these crimes excluding in the process any serious consideration of the structural dimensions of such crimes. Liberal notions of, inter alia, causality, responsibility, and justice constitute this homogeneous package. ICL has been so successful in embedding this homogeneity that interrogations of structural aspects of atrocity crimes are almost non-existent. In fact, ICL mechanisms remain effectively the only elaborate policy response of the ‘international community’ to incidences of mass atrocities. In this account, ICL is better understood as a regime of governance that helps not just occlude the contradictions and devastations of post-colonial capitalist landscape, but also preempt post-colonial States from taking radical alternative developmental trajectories.

Furthermore, international crimes have come to be described as massive violations of human rights since the 1990s. This is peculiar for ICL and International Human Rights Law (IHRL) represent two radically different paradigms of law. This trend coincides, however, with a more general phenomenon of global promotion of protection of human rights leading to expansion of penal authority and apparatuses of States at the expense of other policies.^[5] By appropriating the frame of human rights, ICL undermines the potential of rights claims in shaping a particular character of the State in favour of producing conditions for a carceral State. Incidentally, one of the stated aims of ICL is to encourage national prosecutions and see to it that States are self-sufficient in employing specific criminal law mechanisms in the long run. In fact, it is widely regarded that the future of ICL is domestic. ICL is thus clearly implicated in broader processes meant to create a particular kind of post-colonial State.

Foreclosed temporalities

The regime of ICL operates to exclude comprehensive understanding and progressive responses to mass atrocity that would account for its structural dimensions. ICL helps obscure the structural dynamics of devastations prevalent across the Global South thereby contributing to the preservation of the status quo. This comes at the cost of undermining one of its stated objectives of preventing the recurrence of mass atrocities. Moreover, ICL forms part of the mechanisms of imperial domination of global capitalism that foreclose freedom to undertake alternate policy trajectories especially for the post-colonial States. This loss of freedom can be better understood in terms of foreclosed temporalities; the temporalities of non-capitalist spaces that could not unfold. This is not to glorify everything that would have unfolded in any of these alternate temporalities. It is instead meant to underline the foreclosure of human possibilities; different ways of organising societies and responding to individual challenges including mass atrocities. Luxemburg’s insights help us trace the source of this foreclosure to the structural dynamic of capitalism and hence also recognise the futility of any reform that is not geared towards structural transformation.

^[1] E.g., Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Christine Schwöbel (ed.), Critical Approaches to International Criminal Law: An Introduction (Routledge, 2014) 170; Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Camridge UP, 2010) 117-148.

^[2] Christine Schwöbel-Patel, Marketing Global Justice: The Political Economy of International Criminal Law (Cambridge UP, 2021); Grietje Baars, The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (Brill, 2018); Tor Krever, ‘Ending Impunity? Eliding Political Economy in International Criminal Law’ in Ugo Mattei & John D. Haskell (eds.), Research Handbook on Political Economy and Law (Elgar, 2015) 298-314.

^[3] Mike Davis, ‘Planet of Slums’ (2004) 26 New Left Review 5-34, at 27.

^[4] On critical reception of the mechanism see generally: Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (Cambridge UP, 2018); Sarah Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge UP, 2013).

^[5] Helena Alviar García and Karen Engle, ‘The Distributive Politics of Impunity and Anti- Impunity: Lessons from Four Decades of Colombian Peace Negotiations’ in Karen Engle, Zinaida Miller and D.M. Davis (eds.), Anti-Impunity and the Human Rights Agenda (Cambridge UP, 2016) 216-54.