Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

This post traces the history of Article 8(2)(b)(iv) (“Article”) of the Rome Statute (“Statute”) – the codification of the first international environmental war crime. The author argues that the Article’s exacting standard renders it toothless.

Countries today are in agreement that the environment is a ‘global common’; a resource shared by one and all, not limited by sovereign boundaries. Time and again, the international community has entered into agreements to motivate member state(s) to protect and reinvigorate the environment. For instance the Paris Agreement, Kyoto Protocol and the UN Framework Convention on Climate Change are all aspirational frameworks pushing states to rethink their relationship with the environment. However, there are no real legal ramifications for the non-performance of these agreements, and their observance has largely been left open to the whims of politics and diplomacy. Moreover, these agreements are limited to state responsibility and do not percolate down to actions of individuals or other non-state actors.

International frameworks with legal consequences, such as the AP-1 to the Geneva Convention, (“AP-1”) are traditional in nature. These frameworks recognize international responsibility of states for ‘environmental destruction’ only in the backdrop of internationally recognized crimes perpetrated against ‘mankind’, such as genocide, crimes against humanity, or recently, crimes of aggression. International conventions such as the UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, 1976 (“ENMOD”), removed the need to situate environmental destruction in the backdrop of a concomitant international crime. Notwithstanding, the thrust of ENMOD depends on “damage, destruction or injury” caused to the state. The terms “damage, destruction or injury” have canonically been interpreted in an anthropocentric form, meaning consequent damage to the civilian population.

Eclipsed by climate change and environmental destruction, with rising temperatures and sinking cities, mankind today has been brought face to face with a harsh reality. The environment, as a victim ofcorporate negligence, wanton human behaviour, and silent sufferers of armed conflict, has borne countless losses. The repercussions of such prolonged environmental neglect and degradation are both far ranging and immutable. Recognizing the need for inter-generational equity; the international community through its collective duty to preserve and secure the environment conferred it with independent legal protection. With the Statute in force, and the establishment of the ICC in 2002, the world saw the advent of the first ecocentric war crime.

Ingredients of Article 8(2)(b)(iv)

Successful prosecution under this Article requires that conjunctive benchmarks of “widespread, long term, and severe” damage to the environment be met in the context of an international armed conflict. The meanings of these terms are not defined within this Article, the Statute, or in secondary sources of interpretation as per the Vienna Convention on the Law of Treaties, 1969. The lack of a definition is exacerbated by Article 22 of the Statute which states that “ambiguity” should be interpreted favourably towards the accused.

The preparatory material of the Statute refers heavily to ENMOD and AP-1. Under these conventions the term “widespread” has a geographical bearing, and typically a damage of 100 square kilometres or upwards satisfies the element of “widespread” damage.

The term “long-term”, as the ordinary meaning suggests, has a temporal connotation. It refers to the continued effects of an attack. “Long-term” under AP-1 means negative environmental effects lasting a minimum of 10 years. Given the difficulty in evaluating lasting environmental damage at the time of the attack, it is likely that the drafters of the Statute viewed the quantum of 10 years as a range for understanding the term “long-term” and not a minimum threshold. Environmental impact assessments need to be carried out to gauge long-term effects of an attack. These involve significant costs and questionable efficacy.

Similarly one may look to AP-1 to understand the term “severe”, which refers to the potency of damage on the human and non-human environment. This interpretation takes us back to an anthropocentric approach; an otherwise progressive provision once again ties itself to civilian damage as a crucial factor in affixing international criminal responsibility.

Mens Rea and Military Objectives

The environment has often been the subject of wartime military attack, be it the scorched earth policy of the Napoleonic Wars to the use of  “Agent Orange” during the Vietnam War. The Article seeks to recognize the military’s strategic needs in conducting an offensive against the environment; it rationalizes that the damage being “widespread, long-term and severe” should also be “clearly excessive to the concrete and direct overall military advantage.” The Office of the Prosecutor, ICC opined that “clearly excessive” does not pertain to instances of collateral damage, which is purely a function of the proximity between civilians and military targets. Similarly in Prosecutor v Milan Martic, the ICTY held that any ensuing harm to civilian objects, such as the environment, cannot be justified in the “absence of closeness” between such objects and the legitimate military target.

Additionally, liability under this Article is confined to wrongdoings by military operatives in leadership positions. It provides a safe harbour to individuals without decision making powers in the military chain of command. “Leadership positions” are determined on the basis of an individuals’ say on the nature, timing, type, extent, and the general scope of the military attack. The military advantage is also qualified by the terms “concrete and direct”. The International Committee of the Red Cross has reflected that these terms do not justify “barely perceptible” military advantages. A military officer ordering an attack is required to demonstrate the potential military advantage and its nexus with the environmental attack.

Conclusion

Environmental crimes had been codified prior to 2002 under several international treaties in an anthropocentric fashion. This approach detracted from the damage caused to the environment, an object worthy of protection in and of itself. While the Article is certainly a harbinger in delinking environmental protection and damage from civilian harms, its exacting standard renders it toothless.      

Unsurprisingly, we are yet to see a single prosecution or investigation launched under this provision. Particularly in the context of gross environmental damage during recent day international armed conflicts, such as the Syrian War and the Ukraine War which are plagued by indiscriminate bombing, non-differentiation between military and civilian objects, and chemical warfare, which has the potential to pollute the lands and waterways of the country for generations to come. The ICC, as the only international court equipped to prosecute and convict individuals for crimes of international magnitude is wanting in realizing its potential.

Hilary Charlesworth nominated to International Court of Justice

Delighted to see that Australia has nominated Hilary Charlesworth for election to the International Court of Justice.  The election will take place on November 5, 2021, for the seat that opened upon the untimely passing in May 2021 of James Crawford, whose term was to end in 2024.

Hilary Charlesworth, the Harrison Moore Chair in Law and Laureate Professor at Melbourne Law School and a Distinguished Professor at Australian National University, served on the ICJ as judge ad hoc for Australia in Whaling in the Antarctic (Australia v. Japan) (2011-2014), and is currently serving as judge ad hoc for Guyana in Arbitral Award of 3 October 1899 (Guyana v. Venezuela)

Photo from the ILG2 post, Women of the ICJ: Judge Xue Hanqin (China), Judge ad hoc Hilary Charlesworth (Australia), Judge Joan E. Donoghue (USA) and Judge Julia Sebutinde (Uganda), next to a portrait of Judge Rosalyn Higgins (Great Britain), the first woman to serve on the ICJ.

Hilary has twice been recognized for her accomplishments by the American Society of International Law, receiving the award for “preeminent contribution to creative scholarship” with Christine Chinkin for the book they co-authored, The Boundaries of International Law: A Feminist Analysis, as well as the Goler Teal Butcher Award, together with Prof. Chinkin, “for outstanding contributions to the development or effective realization of international human rights law.” In 2021 she received the Distinguished Scholar Award from the International Studies Association, and was previously awarded an Honorary Doctorate by the Université Catholique de Louvain in Belgium.

Hilary Charlesworth has been a member of the Executive Council of both the Asian Society of International Law and the American Society of International Law, and served as President of the Australian and New Zealand Society of International Law. She has been a visiting professor at a number of institutions including Harvard, Columbia, New York University, Michigan, UCLA, Paris I and the London School of Economics, and has delivered the General Course in Public International Law at the Hague Academy. 

Hilary is also a fellow IntLawGrrl (her ILG profile here).  In 2012 she and her co-authors Christine Chinkin and Shelley Wright shared their reflections as they looked back on their pathbreaking article, “Feminist Approaches to International Law,” 85 American Journal of International Law 613-645 (October 1991). Their post capped a fascinating month-long IntLawGrrls series on the work.

Heartfelt congratulations on the nomination, Hilary!

Horrors of a Rape Trial in India: A Saga of threat for masturbation or delivery of Justice?

Introduction

About 50% of the Indian male population is positively traced with a sexual dysfunction which creates hindrances in basic human instincts, leaving one crippled with ignominy. Impotence is the inability in developing or maintaining a penile erection sufficient to conclude the act of intercourse to orgasm and/or ejaculation occurring biologically which is mainly of two types-physical and psychological. Unlike sterility, potency is transitorily dependent on various factors. Untreated Impotence results in sexual sadism. The Mental Healthcare Act 2017, disregards sadism or psychologically generated impotence, indirectly making India the “impotence capital of the world.”

Secondly, the atrocious Impotence Test prevailing chiefly is considered a decisive piece of evidence in cases of rape. This embarks the beginning of torture in the Indian Criminal Justice System. The inhumane approach adopted by the Indian Penal Code in giving discretionary powers to the police officers attacks the scheme of the Indian Constitution. Despite the generic relevance of the test in most cases, routine practice violates Article 21 (Right to Life) of the Indian Constitution. In this article, we highlight the extraneous essence of the impotence test in light of the Indian Criminal justice system and the Indian Constitution.

The terror of the Impotence Test

Traditional female-centric laws pertaining to sexual offences in India butcher male integrity and violate their basic human rights. Checking the potency in rape cases remains a significant practice of law. The relevance of potency extends to adoption, nullity of marriage and divorce along with sexual offences.

Section 53 of the Criminal Procedure Code (Cr.P.C.) showers “unfettered discretionary power” on police to believe that an examination will afford evidence for the case and wistfully magistrates are ousted of such powers. The lacunae in the provision can be identified as:

Firstly, according to acclaimed Modi’s Indian Medical Jurisprudence, the potency test establishes the capability of committing the alleged sexual acts but the hamartia is the laxity of courts in considering situational and psychological factors, resulting in varying opinion of courts on similar matters.

Secondly, force may be used by the police authorities on the unwilling person to collect samples, otherwise threat of masturbation performed on him is invited caused by wrongful interpretation. Religious seers,like Raghaveshwara Bharathi and Asaram accused of rape faced a similar threat. The DNA Technology (Use and Application) Regulation Bill, 2018, bifurcates consent required in taking bodily fluid into two instances, written Consent  in crimes with less than 7 years of punishment and no consent for crimes with punishment of more than 7 years. The clear legislative intent is to differentiate between the two which gets contradicted by the unchecked power given to police authorities in deciding the necessity of performing the examination. Thus, the Indian Penal Code violates the ‘due process of law’ of the Indian Constitution.

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‘Last resort:’ A final course of action, used only when all else has failed (Oxford Dictionary).

The Seventeenth Assembly of States Parties (ASP) has closed and one key takeaway is the need to have realistic expectations with respect to the role and capacity of the International Criminal Court (ICC) or ‘Court.’ This theme was woven into numerous side-events, especially those concerning complementarity and universal jurisdiction. 2018 marks the 20th anniversary of the Rome Statute. While the ICC continues to grow in its reach and impact, the institution has inherent and purposeful limitations. A fair assessment of the Court needs to be couched in terms of its intended scope, purpose, and place in the global landscape, which is highly specific. 

At the side-event “Justice, peace and security in Africa: deepening the role of the ICC,” hosted by the Coalition for the International Criminal Court and the African Network on International Criminal Justice, Phakiso Mochochoko (Office of the Prosecutor [OTP]) emphasized that the first question should never be, “Why isn’t the ICC doing something?” Such questions can and should be asked of the state and its institutions first. The ICC was never intended to be a first-responder or a sole responder.[1]The trigger mechanism for the Court’s involvement relies on the unwillingness or inability of the concerned state to investigate and prosecute those most responsible for atrocious crimes. This requires a lack of political will, a lack of capacity, or both. The scope is intentionally and inherently limited. Several side-events at the ASP reiterated that the ICC is one judicial mechanism for accountability, and one of last resort.[2]Scholars and practitioners need to focus on states, which have a primary obligation to investigate and prosecute these crimes in the interest of peace and security.

To this end, at the side-event “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?” hosted by Luxembourg, North Korea, and Open Society Justice Initiative, Pascal Turlan (OTP) highlighted the importance of capacity building. Capacity building refers to both the legal framework and training of personnel in domestic institutions. Pascal sketched a coordinated relationship between the ICC and national mechanisms under the auspice of ‘positive complementarity.’ The ICC is willing to engage in cooperation measures such as information sharing or to engage in mutual assistance strategies in an effort to encourage national authorities to develop cases, or to assist in the investigation or prosecution of cases.[3]As noted above, if the ICC can prosecute, they can only do so against persons who bear the greatest responsibility for the alleged crimes. It would be up to national institutions to investigate and prosecute all others responsible and hold them criminally accountable. Theoretically, positive complementarity is highly useful in this regard and it should contribute to the proliferation of accountability and justice. 

Similarly, at the event titled “Commemorating the 20thanniversary of the Rome Statute,” H.E. Kimberly Prost expressed that complementarity should involve domestic, regional, and extra-territorial jurisdictions to battle impunity. She explained that this may require innovative solutions, such as those like the new court in Central African Republic and the IIIM in Syria, for example. Judge Prost said that productive dialogue cannot begin and end with a critique of the Court. Since no state can credibly oppose justice, alternative solutions need to be pursued. The capacity of states needs to be built so that the ICC becomes redundant, as intended by the drafters of the Rome Statute. Judge Prost’s contributions reflect a ‘back to basics’ approach. Complementarity is the bedrock of the Rome Statute System but is often neglected. This subjects the ICC to criticism and claims that it is not doing enough. States should look inward first to find ways to investigate and prosecute, either independently or with cooperative assistance and support from the ICC and/or other institutional mechanisms and/or organizations.  

Similar views were expressed by Karim Kham, Alain Werner and Carmen Cheung at the side-event “Closing the impunity gap: a pragmatic approach to universal jurisdiction.” Each one of these panelists explained that extra-territorial/judicial mechanisms, ad hoc tribunals, or other similar mechanisms are not mutually exclusive with the ICC. Karim said that it is important to reiterate that the ICC does not have a monopoly on justice. He explained that the goal is to close the impunity gap by whichever way(s) possible because justice is not politicized, it is ‘everybody’s business.’ 

The ICC plays an important role in the global landscape, but as pointed out by the intervention of Elise Keppler of Human Rights Watch at the side-event, “From Bemba to Rombhot: Reflections & Perspectives for the ICC in the Central African Republic,” the ‘one case, one suspect’ approach is likely insufficient for dealing with the broader realities of conflict. It is posed here that an ideal complementary schema might have national courts investigate and prosecute foot soldiers, a special/hybrid tribunal address mid-level officers and commanders, and the ICC deal with those most responsible for organizing and orchestrating the crime(s). This would be comprehensive and provide a greater possibility for accountability at all levels and sides of the conflict. Although social justice and legal justice are not the same, greater accountability and a strengthening of the rule of law at the local level can contribute to a (more) stable post-conflict environment. 

A holistic approach to justice will demand more than the ICC can provide. The Court is limited in its monetary and human resources, as well as its jurisdiction and scope. This is not to say that it has no utility or value. Rather, a more nuanced approach to complementarity can present important opportunities for justice and accountability by capacity building, strengthening domestic legal systems, and closing impunity gaps. This is an important step towards the goal of universal jurisdiction for atrocious crime. Framing critiques of the ICC within the principle of complementarity and universal jurisdiction can change the conversation in some significant and important ways. The ICC cannot do everything, nor is it supposed to. The potential role for complementary mechanisms to the ICC may be the best way to move the conversation (and the international criminal justice project) forward.   

This blogpost and my attendance at the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.


[1]The Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998): Preamble, Article 17, “The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”  

[2]This was a strong focus at the December 5 side-event, “Commemorating the 20thanniversary of the Rome Statute,” co-hosted by the Netherlands, Uganda, and Africa Legal Aid. This was a focus of H.E Kimberly Prost.

[3]There are limitations to this, for example the ICC will not share information if the alleged suspect could receive the death penalty, or if basic rule-of-law principles such as a right to a fair trial are not firmly established in the domestic context.

Calculus: Deal Doggedness and Human Rights Diplomacy

As the issue of denuclearization in the interest of global peace and security continues to be of pressing concern to the world, there is a growing tendency to prioritize such matters of international import above concerns around the problematic human rights records in countries like Iran and North Korea. However, concerns regarding the human rights situation within a country’s borders should not be relegated to the backburner while negotiating deals regarding international peace and security owing to two broad, interconnected reasons.

First, egregious violations of human rights within national borders – by their very nature – cut across these national borders and thus merit international anxiety. In particular, repressive regimes foster instability, dissatisfaction, violent conflict, and frequently, radicalization. While it is tempting to call for an emphasis on America’s “softer” side in response to human rights concerns beyond American borders, it may be prudent to acknowledge instead that the way a country treats its people can be of consequence to polities the world over. Accordingly, if Azadeh Moaveni’s conclusion that any substantial improvement in Iran’s human rights situation demands larger, structural reforms from within is accurate, any gains consolidated by finalizing deals such as the Joint Comprehensive Plan of Action are necessarily of limited value for international peace and security. In fact, regimes that mete out systematic repression to their own people, such as Iran and North Korea, are “inherently destabilizing”; their volatile internal dynamics, posited against the background of nuclearization, present huge risks to international security, which merit due investigation, analysis and response. In such a scenario, allowing horrific internal conditions to play second fiddle while negotiating sweeping arrangements for global peace is to miss the forest for the trees.

Secondly and more specifically, acknowledging that both these concerns are relevant to the all-pervasive ‘international security’ problem could also be helpful in selling negotiations and engagement with an adversary state such as Iran to domestic constituencies. By emphasizing its potential to raise Iran’s profile in the world order and bring economic relief within Iranian borders, President Rouhani, for instance, garnered some measure of domestic support for a deal which – on the face of it – seemed like a massive concession of sovereignty. In an increasingly polarized international order, where domestic forces operating within one of the negotiating parties may view the very act of approaching the negotiating table as an admission of weakness, acknowledging that there are costs to peace and security on both sides of the coin may be a wiser move.

Call for abstracts

STUDYING WAR CRIMES:

The ethics of re-presenting mass violence in research

When do descriptions of harm become academic sensationalism rather than re-presentations of violent materialities? Can academic interest and engagement in mass harm ever avoid voyeurism? How can sensational violence be ethically re-presented in research? Across disciplines theorizing mass harm, a consensus is emerging cautioning against sensationalism in re-presentations of perpetrators, victims, crimes, and sufferings, seeing detailed descriptions of violence as academic voyeurism. Yet, how comfortable a read can research that has violent profusion at its core become, before the distance created by language becomes an ethical – and analytical – challenge in its own right?

This edited volume invites experienced scholars to address thoroughly the ethics of doing research on mass harm in general, and of re-presenting and describing mass violence, harmdoing, trauma, and suffering in their own research in particular. Drawing on a range of methodological approaches and empirical cases, the book will address how mass violence and war crimes are brought into research – both as an ethical, a sensational, and an analytical matter.

We ask contributors to reflect on their re-presentations of mass crimes, violence and justice, seeing re-presentations both as an issue to do with individual and disciplinary research ethics but also as a matter to do with power and material structures of academic knowledge production. The purpose is to encourage active engagement with a research ethics that goes beyond ‘procedural ethic;’ to expand the discussion on responsibility for the stories we hear, read, analyze, and re-tell; and to address in-depth the ethics of listening, seeing, and telling in research on mass violence and war crimes.

The book will be relevant for all researchers who wish to engage ethically with the study of mass violence and war crimes.

We invite abstracts that explore the ethics of re-presenting mass violence in research.

Abstracts may also cater specifically to:

  • The ethics of caring, seeing, listening and re-presenting
  • Selection and exclusion: whose stories are told?
  • Understanding harm/understanding as harm
  • “Thick descriptions” and sensationalism
  • Breaking the silence vs silence as choice
  • Emotions, positionality, and reflexivity

Submission guidelines:

Abstract of no more than 500 words to be submitted by November 30th, 2018 to editors at studyingwarcrimes@gmail.com. We only accept original contributions and the abstract needs to clearly demonstrate the chapter’s contribution to the volume.

Please include a 150-200 word bio highlighting your affiliation, work experience and credentials in the field of war and mass violence research.

Further process:

After an initial screening and by December 15th, 2018, editors will invite 8 contributors to develop their abstract into a full chapter (5-7000 words) to be submitted by April 15th 2019. We will apply for funding for a lunch-to-lunch workshop for contributors in May 2019. The final submission date for full chapters will be in August, 2019.

Routledge (Taylor&Francis Group) initiated our work with this collection, and has expressed a strong interest in publishing the book.

About the editors:

Sladjana Lazic is a post-doctoral researcher at the Center for Peace Studies (CPS) at the Arctic University of Norway (UiT). She holds a PhD in Political Science from the Norwegian University for Science and Technology in Trondheim, Norway, on victims’ perspectives on transitional justice and legitimacy.

Anette Bringedal Houge holds a PhD in Criminology and Sociology of Law from the University of Oslo on conflict-related sexual violence, perpetrator re-presentations, and international criminal justice. She has published her research in e.g., Aggression and Violent Behavior, British Journal of Criminology and Criminology and Criminal Justice. Anette is the Head of Humanitarian Needs and Analysis at the Norwegian Red Cross.

A Posthuman Feminist Approach to Mars

Grand_star-forming_region_R136_in_NGC_2070_(captured_by_the_Hubble_Space_Telescope)

Captured the Hubble Space Telescope (NASA)

Feminists must found a constitution for Mars, notes Keina Yoshida in her fascinating recent post. If we leave Mars to the founding fathers it will become the domain of the super wealthy elite white men of techno-mediated capitalism––the Musks, the Zuckerbergs and the Trumps. Human space exploration will follow the same, masculine, humanist blueprint of domination on Earth and Mars will be exploited for its natural resources, just like Earth. Yoshida thus asks:

 

… what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution? … Who will protect their rights in Mars?

Yoshida answers her own question: “The feminists.”

Feminists are indeed ideally positioned to be able to tackle this issue. Environmental protection is core here but the problem does not lie with these founding fathers alone but with the entire foundations of dominant thought. Feminist gender theorists are central to challenging these dominant accounts of knowledge. Feminist posthumanism is one frame through which these challenges can be made.[1]

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A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.

The international criminal justice project through the lense of Narrative Expressivism

In a recently published article in Criminology and Criminal Justice, I set out a framework through which we can address the stories and truths that the international criminal justice (ICJ) project produces about violent pasts, conflicts, perpetrators, victims, crimes, causes and consequences.

By the term ”the international criminal justice project”, as opposed to internatioanl criminal law institutions, I refer both to these institutions (the courts and tribunals, and the stories produced within by prosecutors, judges, counsels, defendants, experts, victims and so on) – but also to the epistemic communities surrounding these courts, enabling them, pushing for them, advocating fortheir existence, for different parties, campaigning for their creation or continued funding, doing research on their work – that is, everyone engaged with the ICJ project in some way or the other.

I call this framework narrative expressivism. Narrative expressivism is situated at the juncture of insights from the analytical and theoretical framework provided by narrative analysis; as well as the body of literature that caters to the quality of the historical record produced by international criminal trials; and as the name also implies, expressive theories of international criminal law.

From narrative theory, and particularly narrative criminology, narrative expressivism sees stories of the past as important for the future, appreciating that stories affect “the way we perceive the social and material worlds“ (Autesserre 2012: 206). And further, the way we perceive the world “orient how we act upon our environment.” That is, stories animate human life. The stories available to us affect our perceived maneuverability for action in given situations, whether or not the stories are true.

From the body of literature engaging an expressive argument for international criminal justice, comes the emphasis on courts as didactic, or educative – communicative – to the wider society.

In my article, which builds on a four-year case study on the ICTY as a site for explaining and managing collective violence – I ask what stories and understandings of international crimes the criminal justice framework allows for and what it means when knowledge from and for court proceedings is used to describe and understand a social phenomenon outside of it.

What I suggest we do, is to look at the ways in which criminal law conceptualizations of the past affect the ways in which we are able or willing to deal with collective violence as societies and communities on the one hand, and as individuals – either politicians or potentially ordinary fighters on the ground, maneuvering possibilities for action in the face of violent profusions.

In my own research in particular, I have focused on defendants and how they are re-presented, and how conflict-related sexual violence specifically, is constructed as a problem of law – what ideas and subjects are called into service for criminal law’s operation through court narratives, as well as in policy and advocacy actors’ framing of conflict-related sexual violence, in order to push criminal prosecutions

Narrative expressivism theorizes international criminal justice as an empirical field for knowledge construction and sees criminal justice as a potent source of information about past crimes – yet also, as a site that impacts on present and future societal understandings of mass violence, promoting a particular structuring of thought. That is, it theorizes the juridification of societal and political understandings of complex collective and social problems.

The whole process of campaigning for the establishing of courts and cases, of adjudicating guilt and innocence, of evaluating evidence, hearing, challenging and sorting stories, establishing facts – the process of ordering chaos through a legal model that streamlines causality, draws individuals out of collectives, and categorizes both them, acts, victims, and contexts – makes a less complex and more comprehensible narrative of what was, through means and under influence of what constitutes legally relevant arguments and according to the courts’ binary logics. Such legal understandings are appealing. As Tallgren (2002: 594) states, “[b]y focusing on individual responsibility, criminal law reduces the perspective of the phenomenon to make it easier for the eye … It reduces the complexity and scale of multiple responsibilities to a mere background.”

What law, and particularly judgments, construct is not an objective history of the past, but the events anew, formed by these constraints and possibilities of the legal framework

Narrative expressivism caters to this reduction, to the processes of inclusion and exclusion of different voices, and to the leveraging and silencing of some stories over others during proceedings and in the epistemic community surrounding ICJ institutions.

Importantly, this way of seeing ICJ, emphasizes all the expressive, or communicative, work courts do or facilitate. This includes all the narratives that the international criminal justice project produces about acts charged as international crimes – either from the inside of its institutions or from the outside by its proponents – whether the narratives morally condemn or deny mass violence, and, importantly, whether they strengthen or challenge the legitimacy and authority of international criminal justice institutions.

While courts through judgments produce normative evaluations of international crimes, leveraged through the authority of criminal law, international criminal courts also provide international, public platforms for protest – as evidenced by the defiant defendants ‘performances’ at the very final proceedings of the ICTY last year.

This way, the common expressive understanding of law changes significance from being primarily a normative theory or argument of purpose (legal expressivism) to a descriptive theory of its function as storyteller and narrative conveyor, weighting the explanations of problematic social phenomena and mass harm and the role of law that it produces (narrative expressivism).

With public proceedings and transcripts, and the access to its goldmine archives for research, the trial at international criminal law institutions becomes a public theatre of different and contesting ideas – a place to test and rename, pronounce and project, and also, establish history about mass harms. Herein is an acknowledgement that “not only is knowledge power, but power is knowledge too”, as Ayoob (2002: 29) has stated. Focusing on power in its discursive forms, involves attention to how specific sets of logics organize and produce knowledge.

Narrative expressivist approaches to international criminal justice would, thus, concern how law and ICJ communities, act as central contributors to “[t]he wider politics of representation.” At the very least, this necessitates attention to questions such as whose representations are these, who gains what from them, what social relations do they draw people into, what are their ideological and political effects, and what alternative representations are there?” (Fairclough, 2013: 549–550).

This take on ICJs influence on our understanding of collective and political violence may appear at first as at odds with recent, and oftentimes well-addressed, critique of the effectiveness and legitimacy of ICJ institutions and selectivity. However, there is a difference between what is understood as and expected from international criminal justice on the one hand, and the realitites that international criminal justice describes when handling crime, ie., the structuring of thought that the criminal law frame feed our understanding with – whether or not it succeeds with its prosecutions.

Reflecting on the Australian Feminist Law Journal special issue, ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’

The nexus between war and technology has developed alongside the rapid expansion of military might and spending, evident in recent decades. Militaries have advanced their weapon systems and in theory saved civilian and military lives in the process. Weapons are now more accurate, theoretically cause less destruction to surrounding infrastructure, and require less time to deploy. Drones, for instance, can target ‘hostiles’ from miles away allowing the operator to never physically come in contact with the violence of war. Specialty ‘armour’ can better protect soldiers and make their job more efficient, by providing weight distribution. Therefore, soldiers (both men and women) will likely become less exhausted from carrying out common tasks and would therefore be allegedly clearer of mind when making key decisions on the battlefield. But, are these all welcome achievements? And, are individuals to accept these achievements at face value?

Alongside the development of these military technologies there has been a push from scholars to recognise that technology, war, and law are not the only sites of intersection. Gender, as a starting point for scholarship on war and technology, and as a tool to investigate the ways in which technology is used, understood, and imagined within military and legal structures and in war, offers an analysis that questions the pre-existing biases in international law and in feminist spaces. Using gender as a method for examination as well as feminist legal scholarship, expands the way military technologies are understood as influencing human lives both on and off the battlefield. This type of analysis disrupts the use of gender to justify and make palatable new military technologies. The Australian Feminist Law Journal’s special issue entitled ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’ (Volume 44, Issue 1, 2018) has tacked key issues and questions that emanate precisely from the link between the concepts of ‘gender, war, and technology’ which editors Jones, Kendall, and Otomo draw out through their own writing and various contributing author’s perspectives.

The following thoughts/questions, which developed while reading this issue, speak to the critiques waged within these articles, and from the developments this issue’s engagement with these topics have generated. As this contribution suggests, intersectional issues remain ever present within new technological advances, which begs the question who are the programmers? If the desire and use of technology to gain military advantage is coming from a place of primarily white, Western, heteronormative, masculine, and secure socio-economic status, then does the method of technological advancement and deployment become defined along similar identities? Does the use of such technology change command structures whereby the weapon becomes ‘in charge’? Continue reading