Group-based differentiation and local repression

Abstract

A classic Third World Approaches to International Law (TWAIL) criticism of international criminal law (ICL) is its apparent 'selectivity', particularly in its focus on ThirdWorld States. A common defence to this complaint is that selectivity is an ordinary and largely unproblematic feature of all criminal law systems, domestic and international. This article aims to offer further nuance to this debate. First, it briefly distinguishes between the multiple forms of selectivity that are possible in ICL, and uses this broad typology to identify the uncontroversial aspects of selectivity. Secondly, it explains why one form of selectivity-group-based selectivity, which focuses on differential prosecutions of similarly-situated offenders within states and situations-is particularly problematic. It both affects the normative justifications for international punishment, and comes worryingly close to putting international criminal justice in service of repressive and violent domestic governments. In this way, a TWAIL view on selectivity shifts from the traditional position of drawing parallels between international law and colonialism to emphasizing the problematic condition of the post-colonial state.