Photograph by Y! Africa on Google
Third World Approaches to International Law (TWAIL) is a methodology, a critique, an ideology a conversation. Arguably, it is a refined dialectic version of a broad movement against the domination of the Third World by the industrialized West. It is an attempt by scholars to critically engage with international law to highlight the colonial legacies in its structures and seek a transformation for a just and inclusive international legal regime.
Traditionally, TWAIL scholarship examines the historical foundations of international law to question the legitimacy of existing international legal order. One of the aims in the beginning of TWAIL (when it took a formal shape in mid-1990s) was to explore the relationship between public international law and international economic law, and issues of global wealth and poverty. Analysis on the issues of power and knowledge formed the central thesis of a TWAIL enquiry. However, the argument of international law carrying forward the legacy of colonialism and imperialism in new and remodeled ways has expanded itself to modern human rights framework, international criminal law and in a very restrained manner to international humanitarian law (IHL) as well. For instance, consider Srinivas Burra’s examination of the positions and role of Third World states in the making of Geneva Conventions in 1949 and Additional Protocols in 1977.
In highlighting the continuous subjugation and exclusion of the interests of the Third World, it is imperative to underline that the TWAIL scholarship explicitly concerns itself with the challenges facing the ‘people’ of Third World as opposed to the Third World states. As Anghie and Chimni have seminally articulated that “it is the lived experiences of Third World peoples and not merely that of states which represent them in the international fora, that should form the interpretative prism through which rules of international law are to be evaluated.”
For a power-conscious discourse on IHL, it is key to also interpret “the rules of war” and their application from the lens of not only the Third World states but also Third World peoples and particularly those on the margins of the mainstream. It must be clarified that the premise is not to exclusively critique the discipline, rather inform the dominant, primarily western, discourse by the under-represented voices and perspective of Third World.
One of the earliest registration of these voices came in the form of a judgment by Justice Radhabinod Pal’s 700-page dissenting judgment at International Military Tribunal for the Far East in Tokyo (1946-48) where he acquitted the Japanese defendants charged with initiating aggressive wars and committing war crimes. He justified the Japanese acts of aggression as a means of defensive anti-colonial justice, which according to him took precedence over peace. Although his judgment might be subjected to substantial objections; his dissent paved the way for a legal and philosophical enquiry of the racial and colonial hierarchies at play during the war as well as at the trials.
An evident illustration of how these power-dynamics influenced the development and application of IHL historically is the distinct treatment of atrocities committed within international and internal armed conflicts. Until state practice started to develop in 1990’s, individuals could be only held responsible for war crimes in international armed conflicts. Schabas argues that this distinction was conceived because the prospect of prosecuting these atrocities for internal conflicts made the Allied Powers uncomfortable with the ramifications that this might have with respect to treatment of their own minorities and more importantly, their colonies.
Later, Antony Anghie and B.S. Chimni dealt with the question of individual criminal responsibility for non-international armed conflicts in greater detail within a TWAIL framework. They charged the existing international institutions for their responsibility in contributing or failing to prevent the conflicts. Any comprehensive attempts at accountability for violations during these conflicts would be incomplete without acknowledging the international policies and practices which lead to the conflicts at the first place. This critique plays a significant role in challenging and re-evaluating the dominant narrative of IHL – that no one is ever considered ‘outside’ the laws of war.
A TWAIL engagement with IHL can take place along many axes such as race, religion, ethnicity, gender, caste, class etc. For instance, Corri Zoli took the lead on particularly looking at Muslim-majority state leadership in the pre-WWII development of IHL. Building on the work of Antony Anghie, Frédéric Mégret attempted to lay down the foundations for exploring how ‘the civilizing mission’ operates in the IHL framework. The critique circles around the central and most controversial principle of distinction between civilians and combatants in IHL. He foregrounds the exclusionary tendency of IHL while drawing an analogy between terrorists or unlawful combatants and the so-called ‘savages’.
Despite such historical foundations and continued exclusions having been pointed out, a TWAIL engagement with IHL remains episodic and limited. Even though TWAIL is growing into an impressive body of work demarginalizing the voices of the Third World peoples, ironically, most of this work is still churned out of western academic spaces. Therefore, at this opportunity, the author would like to take the liberty of extending an invitation to Indian law students and scholars engaging with IHL to indulge in a more nuanced analysis on the causes of conflicts, the notion of violence and how it is displaced from one context to the other, on how the challenges of those most affected are addressed, and what is the extent of their ownership in the formation, development and implementation of these frameworks.
Here is hoping that platforms such as this blog can give space to an alternative consciousness which can inform the discourse of IHL and constructively contribute in setting a power-conscious and all-encompassing research agenda.
Kalika Mehta is an alumna of Rajiv Gandhi National University of Law, Punjab. She holds an LL.M. from Geneva Academy of International Humanitarian Law and Human Rights. She has worked with national and international organizations based in Geneva, Myanmar, Berlin and New Delhi. Currently, she is pursuing her doctoral research at University of Hamburg.