Dorothy Makaza-Goede ~ Through the Contestation Looking-Glass: State Immunity and (Non)Compliance with the International Criminal Court

(2021) 2 TWAIL Review 59-89
ISSN 2563-6693
Published under a Creative Commons licence

This article contributes to the body of theory and argumentation that challenges the standard tendency of compliance-centrism in international law scholarship and practice, including in the study of the International Criminal Court (ICC) and its relationship with African states. It does so in three ways. Firstly, it suggests targeted analytical focus on noncompliance, which is relatively under-researched and theorised despite more than three decades of compliance literature in international law (IL) and international relations (IR). Secondly, the article deproblematises noncompliance by shifting the focus of legal debate around the noncompliance of some African states with the ICC towards alternative normative interpretation. It proposes that doing so advances an understanding of these states’ actions as pro-active contestation thus allowing for the effective challenging and critiquing of the normative construction, interpretation and application of international criminal law (ICL).By drawing attention to normative processes in international legal intercourse, this article presents a deeper and alternative comprehension of some African states’ choices in relation to ICL. Thirdly, the article fills the gaps of most compliance approaches from IL and IR by synthesising progressive IR theory into the service of a TWAIL argument. It adds to the growing number of academic voices influencing approaches regarding the critical analysis of significant global concepts such as (non)compliance, immunity, sovereignty, universality and the hegemonic power exercised over the Third World through IL. Such an approach shines a spotlight on the perspectives of states in the Global South that have previously been excluded in the construction and re-construction of international norms.