Symposium on Phil Clark’s ‘Distant Justice’

[Patryk I. Labuda is a Postdoctoral Scholar at the Fletcher School of Law and Diplomacy. Thijs B. Bouwknegt is a Researcher at the NIOD Institute for War, Holocaust and Genocide Studies (part of the Royal Netherlands Academy of Arts and Sciences, KNAW).]

The International Criminal Court (ICC) is struggling. Fifteen years after it opened its first investigation, the Court has tried just a handful of cases. Only four individuals have been convicted of core international crimes, while four others have been acquitted. Along the way, the Court has faced a litany of obstacles, including a stagnating budget, non-cooperation from states, shoddy investigations and conflicting case law. More difficulties surely lie ahead, as the ICC ponders whether to challenge powerful actors in Georgia, Afghanistan, Palestine and Myanmar.

Against this backdrop, Phil Clark’s Distant Justice: The Impact of the International Criminal Court on African politicscomes at an opportune moment. Based on over a decade of research, including repeated visits to the ICC’s first two situations – the Democratic Republic of the Congo and Uganda – Clark provides an in-depth scholarly analysis of the Court’s fifteen years of operations. In doing so, Distant Justice also explores some of the most serious challenges that the ICC has faced up until now. Why has it tried primarily non-state actors from a few countries in Africa? What impact has the Prosecutor had on peace processes in Africa? How do local populations perceive the ICC and its contribution to the fight against impunity?

In analyzing these and other questions, Clark argues that the ICC’s setbacks in Africa can be traced to what he calls ‘distant justice’. Distance refers not only to The Hague’s geographical remoteness from the crimes that the ICC investigates, but also the Court’s political and philosophical detachment from the African societies on whose behalf the ICC purports to be acting. Clark suggests that the Court’s failure to wrestle sufficiently with the needs of local actors in Uganda, DR Congo and other African countries has undermined both national and community-level responses to mass atrocities. Distant Justice emphasizes that, while the ICC seeks to preserve its proclaimed impartiality by insulating itself from domestic political and social dynamics, the Court has unwittingly become enmeshed in national and regional politics. Clark concludes that, although the ICC describes its work in terms of complementarity between international and national justice responses to atrocity crimes, the ICC’s fundamental distance from African societies has produced negative effects both for the Court and the countries where it intervenes.

We have invited several scholars and practitioners to discuss Phil Clark’s arguments and conclusions. Their contributions will be followed by the author’s response. We are grateful to Opinio Juris for hosting this symposium.

Phil Clark kicks off the symposium by situating his research within evolving debates about the ICC’s performance over the last fifteen years. In his post, Owiso Owiso assesses Clark’s handling of the political implications of the ICC’s investigations in Africa. In questioning whether Distant Justice has overstated the ICC’s role in regulating the behavior of state actors, Owiso calls for greater humility in how observers evaluate the ICC’s performance. Kamari Maxine Clarke then queries whether Distant Justice prematurely dismisses the relevance of neo-colonialism as an analytical framework. Drawing out several unexplored themes, Clarke suggests how colonialism still matters to debates about the ICC in Africa. Next, Ottilia Anna Maunganidze examines the different ways in which the concept of distance can be understood in Distant Justice, before suggesting that Clark’s emphasis on the ICC’s shortcomings should be balanced with a more critical analysis of states’ failure to provide accountability. Writing in his personal capacity, Xabier Agirre Aranburu from the ICC’s Office of the Prosecutor (OTP) discusses Clark’s criticisms of the Court’s investigative and hiring practices. Agirre draws attention to various examples of African expertise at the ICC, and notes how the OTP has tried to bridge the problem of distance between Africa and the Court. Last but not least, Mark Drumbl explores to what extent Clark’s critique of the ICC’s distance from African societies is an integral feature of international criminal justice as a whole, and what this tells us about prospective plans for reforming the ICC. In his response to the five contributors, Phil Clark unpacks their observations and critiques, and reiterates his call for an ambitious re-think of the ICC’s place in the wider system of international criminal justice.

We hope Opinio Juris readers will enjoy this symposium and we look forward to the conversation.