Distant Justice Symposium: An Introduction by Phil Clark

[Phil Clark is a Professor of International Politics at the School of Oriental and African Studies (SOAS) at the University of London. An Australian by nationality but born in Sudan, Dr Clark is a political scientist specialising in conflict and post-conflict issues in Africa, particularly questions of peace, truth, justice and reconciliation. This is the latest post in our symposium on his book, Distant Justice: The Impact of the International Criminal Court on African Politics.]

When I began researching Distant Justice in 2006, the rhetoric within the ICC and among its supporters was triumphant about what this nascent international institution could achieve. The grand claims about a Court that could deter crimes and deliver lasting peace to societies that had experienced decades of violent conflict soon jarred with the realities I discovered during my fieldwork in Uganda and the DRC. My early presentations of these findings in the Global North were routinely met with scepticism, sometimes outright hostility, particularly from actors inside the ICC and from international human rights organisations, who either doubted that the Court could make the fundamental missteps I was reporting or opposed attempts to critique an institution they considered intrinsically virtuous and about which they were highly protective.

By the time Distant Justice was published in late 2018, the tone of debates over the ICC had changed entirely. By then, more ICC cases had collapsed before or during trial than had been completed. The Bemba and Gbagbo acquittals in particular had highlighted the Office of the Prosecutor’s (OTP) struggles in gathering trial-ready evidence and navigating complex political terrains in African societies previously unknown to most of its staff. Such was the narrative of crisis around the Court that, in April 2019 – soon after the ICC judges rejected the Prosecution’s request to open investigations in Afghanistan due to a lack of state cooperation – four former presidents of the ICC Assembly of States Parties (ASP) called for an independent expert assessment of the entire functioning of the Court.

While much of the evidence I present in Distant Justice now resonates with the zeitgeist around the ICC – having gone against the grain for most of the book’s development – there is a danger that its call for systemic reform of the ICC will be supplanted by technical tinkering; a piecemeal, Hague-centric exercise that fails to address the deep problems evident in the Court’s interventions in Africa over the last 15 years. The book puts Africa at the heart of discussions of the ICC and the entire international criminal justice project. It calls for greater awareness of the ICC’s negative impact on African societies in terms of jeopardising elections, peace negotiations, truth commissions, demobilisation programmes and community-based rituals. The book argues that the Court must live up to its own principle of complementarity and show greater deference to African legal and non-legal institutions that – while imperfect (but certainly no more so than the ICC) – are making important strides in addressing serious crimes across the continent. It also shows that the Court’s limited African expertise – believing that a lack of contextual knowledge enhances its neutrality – has left it open to manipulation by African states and other powerful actors. The central concept of ‘distance’ helps capture the nature and impact of the ICC’s fundamental detachment from the societies where it investigates crimes and – it is intended – provides a conceptual foundation for a systematic reform agenda.

The five commentaries in this symposium are extremely useful for clarifying some key points in Distant Justice and for furthering debates about the ICC’s track record to date and ways to ensure it becomes a much more effective institution in the future.