Distant Justice Symposium: Phil Clark’s ‘Distant Justice’–A Wake-Up Call for the International Criminal Court or a Case for Managing Expectations?

[Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg. This is the latest post in our symposium on Phil Clark’s book, Distant Justice: The Impact of the International Criminal Court on African Politics.]

A distant ICC ‘orbiting in space’ as rogue regimes make merry

This post makes a few observations on Phil Clark’s book Distant justice: The impact of the International Criminal Court on African politics. Clark provides compelling insight into the political intrigues of the so-called ‘self-referrals’ by the Democratic Republic of the Congo (DRC) and Uganda to the International Criminal Court (ICC), including the behind-the-scenes negotiations that preceded them. In so doing, the book exposes the extent to which the ICC’s Office of the Prosecutor (OTP) is willing or is forced to play politics to suit its ends while also maintaining a false narrative of ‘distance’ from the political fray. As the book convincingly argues, the OTP’s understanding of complementarity is so internally inconsistent as to result in contradictions between what it theoretically asserts and what it actually practises. Consequently, the ICC has so far only managed to pursue and conclude cases against non-state actors and vanquished politicians in weak states and not much else.

This practice has since been crystallised into policy in the OTP’s Strategic Plan 2019 – 2021 (SP) published after the release of Clark’s book. The SP has found support from some observers like Whiting and Guilfoyle who argue that ‘focusing on mid-level or notorious perpetrators first, with the aim of reaching the level of the most responsible persons at a later stage’ is practical in light of the OTP’s dismal experience with high-level perpetrators. However, what the SP does is to confirm Clark’s fears that the OTP is indeed capitulating to states’ intransigence and will continue to focus on non-state actors and vanquished politicians while giving state actors a pass as has been the case with its version of de facto complementarity decried in the book. This time, however, it will be a matter of policy, and one that, to paraphrase Mutua, will further distance the ICC from political reality and the psyches of the communities in which it operates.

Was the ICC really envisioned as a panacea?

Clark has deftly woven through some of the intrigues facing the ICC especially in its involvement in the DRC and Uganda. However, the book gives the overall impression that the drafters of the Rome Statute (RS) envisaged the ICC as an omnipotent defender of the oppressed from their oppressors, a task which in the book’s estimation the ICC has miserably failed at. While it may be attractive to imagine the ICC in this way, this is not what states adopted in the form of the RS, and wisely so. In fact, states feared an all-powerful prosecutor and sought to curb the Prosecutor’s proprio motu powers by subjecting it to judicial control by the pre-trial chamber through article 15 of the RS. As Braga da Silva and Miranda da Cruz have correctly noted, while the OTP may have significant administrative autonomy in its situation/case selection and its engagement with states, this still ‘exists only within the restrictive belt of [the] statutory limitations [of the RS]’. The judicial powers of the ICC are also limited to crimes expressly listed in the RS. Arguably, the RS does not explicitly envision the ICC as a tool for ‘regulating state behaviour’ beyond its prosecutorial and reparative mandate as this would imply a degree of rule-based and practical control over and restriction on state conduct that is too ambitious to expect of a criminal court, more so an international one established by states. More modestly, the ICC as a mechanism ‘complementary to national criminal jurisdictions’ may, through its investigative, prosecutorial, reparative and promotional work, influence states’ attitudes towards human rights, impunity and accountability.

The ICC as a panacea for challenges facing states is evident in the book’s analysis, which concludes, inter alia, that the ICC has helped entrench undemocratic regimes in the DRC and Uganda, failed to deter election-related criminality and worsened electoral politics. While the ICC has indeed waded into the politics of these regimes, it is arguably quite a stretch to assert that the ICC has resulted in their entrenchment. These regimes had perfected the art of undemocratic governance long before the ICC was ‘invited’ in. Systems designed and intended to be oppressive and undemocratic during colonial rule in the DRC from 1884-1960 were exploited and embedded by post-independence dictatorial regimes from 1960-2006. The ICC’s role has not added to that undemocratic nature. A contrary position can actually be argued considering the fact that in 2006, the DRC held its first multi-party election since independence in 1960, followed by others in 2011 and 2018, the latter marking the first peaceful transfer of power and from a ruling party to an opposition party. In 2006, Uganda held its first multi-party election after decades of President Yoweri Museveni’s one-party hegemony, and districts in Northern Uganda where the ICC is involved overwhelmingly elected their representatives from opposition parties despite state-sponsored intimidation and the ever-present threat of LRA attacks. This trend continued in 2011 and 2016 (see here, here, here and here).

The book overplays the significance of the ICC in these situations by hyping beyond legal reality the power of the ICC vis-à-vis states, and most certainly lays more blame at the ICC’s door than the court deserves. Of course, presidential elections in Uganda are generally far from credible, and those of the DRC have elicited criticism and been strongly disputed. However, considering the fact that multi-party electoral politics was non-existent in Uganda and the DRC before 2006, it is most certainly not the case that the conduct of elections in Uganda and the DRC has deteriorated since the ICC became involved in 2003 and 2004 respectively. Of course, this state of affairs is not necessarily due to the involvement of the ICC. The ability of voters in Northern Uganda to actually vote in 2006, 2011 and 2016, defying government intimidation and voting for opposition candidates, is largely due to general improvement in peace conditions in the area and their historical distrust of Museveni. Elections in the DRC in 2006, 2011 and 2018 are also due largely to changes in socio-political dynamics in the DRC and the region generally.

It is indeed the case, as the book argues, that the ICC has allowed itself to be caught up in power politics in the DRC and Uganda, but more as a mildly consequential cog in the wheel of the DRC and Uganda politics than as a significant driver of events. Even assuming that the ICC sought out to regulate state behaviour beyond its prosecutorial and reparative mandate, this would most likely be a futile endeavour. First, the general deterrent function of criminal law is highly contested and its efficacy at an international level is even more doubtful. Second, the power politics in the DRC and Uganda are much more complex for the ICC to regulate with its significantly limited criminal mandate. The RS does not envision the ICC as a political interventionist tool for regulating states’ (electoral) politics, but rather as a judicial mechanism for complementing states’ prosecutorial inadequacies.

Overall impressions

The ICC, and the OTP in particular, could and should do a much better job in the formulation and practice of its ideas of complementarity and distance, as indeed the book argues. However, the yardstick for judging the ICC’s performance perhaps needs to be tempered along the lines of McEvoy’s legal humility. That is not to say that the justice bar should be lowered for the ICC; it should not. Neither is it to say that the ICC is performing to the best of its legal ability; it is not. However, an assessment of the ICC’s performance should have in mind the extent and limits of its legal powers as prescribed in the RS. Of course, the ICC does not operate in a political vacuum and useful assessments of its performance based on political expectations have been and will inevitably continue to be made. However, reforms to the ICC’s approach are best grounded on assessments based on the legal possibilities under the RS and general standards of international criminal justice.

Additionally, as the book correctly observes, the ICC, particularly the OTP, needs to re-examine its investigative strategy especially in terms of the composition of its personnel. Despite the fact that the majority of the ICC’s active situations/cases concern African countries and despite the fact that Africa has by far the highest number of state parties to the RS by region, the ICC has very few African nationals working in its various organs, save of course for judges who are appointed by the Assembly of State Parties based on regional representation. Having worked briefly at the ICC, I have made similar observations to those of Clark in this regard. This unfortunate state of affairs has nothing to do with the ICC’s legal and policy framework, but rather with its hiring practice. As the book correctly argues, the ICC needs more country-specific experts (preferably nationals of situation countries) with the requisite professional, contextual and political awareness. This will not necessarily mean that the ICC will be able to regulate state behaviour beyond its prosecutorial and reparative mandate as the book suggests – nor is that the aim – but rather that these experts will help steer the ICC’s engagement with governments and other actors in such a way that the ICC is able to navigate complex socio-political contexts while effectively discharging its judicial mandate.

Finally, the book is a great addition to scholarship on the ICC’s intrigues especially in the DRC and Uganda. It is also perhaps one of the most well-researched books so far written on the ICC’s involvement in the DRC and Uganda, drawing from over a decade of meticulous and painstaking empirical research involving multiple stakeholders. The book clearly links theoretical international criminal justice concepts with their practical application and expertly documents their impact on the lived experiences of victims and communities and on national and regional politics. In the process, the book gives unique insight into the politics of the ICC’s involvement in the complex socio-cultural-political dynamics of (two) African countries and ‘explore[s] local actors’ perceptions of, and engagement with, the ICC’. For this reason, the book would have benefitted from engaging more with the work of African sociologists, anthropologists, political scientists and international justice scholars. A deliberate engagement with this body of work would have enriched the observations of the author in relation to the situations examined. All in all, the book has very deftly and eloquently explored pertinent issues on the ICC’s modus operandi especially in the DRC and Uganda through extensive research, and it indeed belongs in every international justice enthusiast’s library.