Epistemic Injustice at the ICC?

Abstract

This article empirically assesses the role third-party evidence has played in the Office of the Prosecutor’s (OTP) initiation of an investigation into the Afghanistan Situation at the International Criminal Court (ICC). After finding that most of the evidence upon which the OTP relied in its request to initiate an investigation is from third parties, this article classifies and ranks the categories of third party upon which the OTP relied. Critically analysing the OTP’s use of third-party sources, this article uncovers the way potential biases towards dominant languages, affluent locations and prestigious institutions influence the choice of which information to use as evidence, possibly evincing an epistemic injustice at the OTP. Heeding Naz Modirzadeh’s call to use Third World Approaches to International Law (TWAIL) to empower Global South states, this article concludes with recommendations to the OTP and third parties on how they can maximize their collaboration while avoiding capitulation to the politics of exclusion. In addition, the article’s findings reveal opportunities for stakeholders to enhance evidence collection and use by particular third-party categories in Afghanistan and in similar situations.