Regionalism, regime complexes, and the crisis in international criminal justice

This Article identifies an emerging regime complex in the field of international criminal law and analyzes the development of the regional criminal court to the African Court of Justice and Human Rights. A regime complex refers to the way in which two or more institutions intersect in terms of their scope and purpose. This Article discusses how the International Criminal Court's institutional crisis created a space for regional innovation. It demonstrates how the development of a regional criminal court in Africa is the result of intersecting factors in international criminal justice. It finds that regime complexes can form not only due to strategic inconsistencies as discussed in the literature, but also because of the influence of regional integration. It argues that the regionalization of international criminal law is a useful addition to the field of international criminal justice, which has hitherto been hampered by the limitations of both domestic and international adjudication. This Article concludes that regionalization of international criminal law is a positive development

Regionalism, Regime Complexes & The Crisis in International Criminal Justice

This Article identifies an emerging regime complex in the field of international criminal law and analyzes the development of the regional criminal chamber to the African Court of Justice and Human Rights. A regime complex refers to the way in which two or more institutions intersect in terms of their scope and purpose. This Article discusses how the International Criminal Court’s institutional crisis created a space for regional innovation. It demonstrates how the development of a regional criminal tribunal in Africa is the result of intersecting factors in international criminal justice. It finds that regime complexes can form not only due to strategic inconsistencies as discussed in the literature, but also because of the influence of regional integration. It argues that the regionalization of international criminal law is a useful addition to the field of international criminal justice, which has hitherto been hampered by the limitations of both domestic and international adjudication. This Article concludes that regionalization of international criminal law is a positive development

Ebola Does Not Fall from the Sky: Structural Violence & International Responsibility

This Article challenges the conventional understanding that international crises are limited to instances of direct physical violence. Instead, it argues that the disproportionate distribution of infectious diseases like Ebola is a form of structural violence that warrants international intervention. In the field of global public health, structural violence is a concept used to describe health inequities and to draw attention to the differential risks for infection in the Global South, and among those already infected, for adverse consequences including death, injury, and illness. This Article clarifies how the concept of structural violence can be operationalized in law. It illustrates the ways in which actors can facilitate conditions for structural violence by analyzing the international public health and peace and security regimes. This Article has several important contributions. First, the way international actors conceptualize crises should be expanded beyond merely addressing direct physical violence, but to also include remedying structural violence. Additionally, this study indicates that the complicated relationship between infectious diseases and conflict deserves more robust attention and resources. Moreover, this study examines the limits of the law governing international responsibility and concludes that shared international responsibility norms should be developed to assist in expanding the tools available for the protection of human rights. Lastly, this Article finds that the burgeoning field of international disaster law holds promise for responding to the challenges posed by infectious diseases like Ebola and the alleviation of large-scale human suffering caused by such diseases

Disposable Lives: COVID-19, Vaccines, and the Uprising

Two French doctors appeared on television and publicly discussed potentially utilizing African subjects in experimental trials for a tuberculosis vaccine as an antidote to the novel coronavirus (COVID-19). Tedros Adhanom Ghebreyesus, the Director-General of the World Health Organization (WHO), denounced these kinds of racist remarks as a “hangover from ‘colonial mentality’” and maintained that “Africa can’t and won’t be a testing ground for any vaccine.” The fallout on social media was similarly swift, with Samuel Eto’o, a Cameroonian football legend, referring to the doctors as “[d]es assasins” and several others questioning the motives behind testing a vaccine on the African continent. The dialogue between the doctors and the strong reactions to their statements reopen the wounds of Black, Indigenous, and other people of color’s lives being treated as disposable. This Piece connects how racialized notions regarding which lives are disposable are reflected widely in the areas of health and human rights. The presumed expendability of Black lives is made manifest from systemic police violence, to the devastating racially disproportionate impact of COVID-19, to historic and ongoing medical experimentation, and to inequitable vaccine access. The twin pandemics of systemic racism and COVID-19 have heightened the visibility of the disposability with which society views the lives of people of color. The cumulative effect of this disposability furthers the devaluation of subordinated groups. Through exploring the theme of disposability, this Piece clarifies the roles of international human rights law, global public health, and international intellectual property law in either advancing racial justice efforts or contributing toward racial subordination. This period of racial reckoning and reform creates an opening to challenge the racial status quo in these areas and beyond

The Truth About Truth Commissions: Why They Do Not Function Optimally in Post-Conflict Societies

Using insights from the legal transplant literature to analyze the transplanting of truth commissions, this paper finds that truth commissions will face more challenges carrying out their mandates in post-conflict versus post authoritarian societies. In post-conflict societies, the combination of weak institutions to support a truth-telling process, combined with large numbers of victims and perpetrators will tend to overwhelm truth commissions. These factors concomitant with lower levels of moral consensus surrounding mass violence interact to make truth commissions function less optimally in post-conflict contexts. Truth commissions can be more successful carrying out institutional mandates in post-conflict contexts when combined with a court because of mutually-reinforcing effects. It concludes that, much more experimentation needs to be done in order to formulate effective and contextually appropriate responses to mass violence instead of the current “one-size-fits-all” approach in transitional justice

Regional Approach to Transitional Justice? Examining the Special Court for Sierra Leone and the Truth and Reconciliation Commission for Liberia

This Article re-conceptualizes the idea of transitional justice mechanisms as varying approaches meant solely to address the legacy of abuse in one nation, and proposes that transitional justice mechanisms can also encompass regional and transnational efforts to respond to mass human rights violations occurring across societies. This Article focuses on the challenges posed by trials and truth seeking mechanisms in conflicts where massive human rights violations have occurred across nations and argues that where these mechanisms have been established without regard to the regional or transnational nature of human rights violations, such mechanisms will encounter problems of coordination including legal primacy, information sharing, and access to detainees. This Article analyzes these critical issues by examining the transitional justice mechanisms in Liberia and Sierra Leone and highlights the challenges posed by the failure to take a regional approach. The Article proposes that adopting a regional approach when designing transitional justice mechanisms in the aftermath of mass atrocity across societies is the best means for achieving long-term peace, stability, and respect for human rights within the affected region

Ebola Does Not Fall from the Sky: Global Structural Violence and International Responsibility

This Article challenges the conventional understanding that international crises are limited to instances of direct physical violence. Instead, it argues that the disproportionate distribution of infectious diseases like Ebola is a form of structural violence that warrants international intervention. In the field of global public health, structural violence is a concept used to describe health inequities and to draw attention to the differential risks for infection in the Global South, and among those already infected, for adverse consequences including death, injury, and illness. This Article clarifies how the concept of structural violence can be operationalized in law. It illustrates the ways in which actors can facilitate conditions for structural violence by analyzing the international public health and peace and security regimes. This Article has several important contributions. First, the way international actors conceptualize crises should be expanded beyond merely addressing direct physical violence, but to also include remedying structural violence. Additionally, this study indicates that the complicated relationship between infectious diseases and conflict deserves more robust attention and resources. Moreover, this study examines the limits of the law governing international responsibility and concludes that shared international responsibility norms should be developed to assist in expanding the tools available for the protection of human rights. Lastly, this Article finds that the burgeoning field of international disaster law holds promise for responding to the challenges posed by infectious diseases like Ebola and the alleviation of large-scale human suffering caused by such diseases

Not Your Dumping Ground: Criminalization of Trafficking in Hazardous Waste in Africa

This Article examines how the African Union’s adoption of the Malabo Protocol seeks to improve upon the limitations of the international legal framework for regulating hazardous waste. The Malabo Protocol criminalizes trafficking in hazardous waste and envisions a regional forum for such prosecutions, which presents an opportunity for African states to alter the status quo in environmental protection. This Article examines how the troubling history of toxic colonialism in Africa helped to inform the attempt to criminalize the trafficking of hazardous waste and create a forum under the Malabo Protocol for combating dirty dumping. This Article explores how the inadequate international legal framework for regulating hazardous waste led to the attempt to create a more robust regional regime under the Bamako Convention, with the Malabo Protocol serving as the vehicle for regional enforcement. It evaluates whether the Protocol furthers the punitive objectives of the Bamako regime to punish and deter trafficking in hazardous waste. It does this by analyzing whether the regional prosecution of dirty dumping is consistent with the newer theories of punishment, as well as some of the more traditional goals of punishment. This Article also analyzes the implications of the regional prosecution of dirty dumping under the Malabo Protocol. It assesses the potential challenges that might arise in the attempt to regionally prosecute trafficking in hazardous waste and suggests ways these issues can be resolved through creative interpretation of the Malabo Protocol. Lastly, this Article concludes that the Malabo Protocol’s provision for a regional forum for the prosecutions of traffickers of hazardous waste presents another venue for African states whose domestic judiciaries and related institutions may have limited resources. If implemented, the Protocol could facilitate closing the global impunity gap for dirty dumping in Africa

The African justice cascade and the malabo protocol

This article argues that the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol) reconceptualizes the idea of transitional justice mechanisms as varying approaches meant solely to address the legacy of abuse in one nation, and proposes that transitional justice mechanisms can also encompass regional and transnational efforts to respond to mass human rights violations. It also argues that the Protocol seeks to correct for perceived biases in international criminal justice. The article illuminates the ways in which the Protocol builds on the justice cascade. It provides a brief overview of the domestic, hybrid and international criminal trials in Africa that have informed the development of the regional court, and argues that the Malabo Protocol offers the Continent an important, alternative vision of regional criminal justice. The article concludes that the regional court could arguably tailor criminal accountability to the context, needs and aspirations of the Continent