Distant Justice Symposium: Distancing Justice from the ICC Will Actually Build It

[Ottilia Anna Maunganidze is the head of special projects at the Institute for Security Studies. She is a lawyer, analyst and strategist with particular interests in international law, human rights and justice. 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.]

The International Criminal Court (ICC) was established as a court of last resort for serious, mass atrocity crimes. As an institution, the ICC, was thus conceptualized as one that should serve to counteract the inefficiencies, inadequacies and ill-will of the very states that created it. By filling the ‘impunity gap’ left by states, the ICC, therefore, was created to ensure that justice for victims of genocide, crimes against humanity, war crimes and aggression is served, in spite of states. However, to effectively carry out its mandate, the ICC is dependent on states.

The principle is good, but as Phil Clark’s exposition demonstrates, the practice seems less so.

By design and as the practice has shown, cooperation is critical to the work of the ICC. Where cooperation is forthcoming and done in good faith, it makes the work of the ICC easier. Where cooperation is not forthcoming or used as a means to frustrate the process, it makes the work of the ICC difficult, and oftentimes untenable.

In his book, Clark goes beyond lauding the ICC for merely existing and explores the structural inefficiencies of an international criminal justice system that weighs heaviest on the court that’s meant to do the least to advance it. This exposition, as I read it, is not intended to destroy the reputation of the ICC, but rather to build it. The main argument being that for the ICC to deliver on its promise it must work right.

In unpacking the salient point of Clark’s book, I explore first the meaning of ‘distant’ in Distant Justice as I see it.

“Distant” can mean: (1) an institutional and personal gap that allows for neutrality and objectivity, but can also mean detached, uncaring and unsympathetic; (2) removed from the situation, such that it becomes difficult to fully comprehend and/or appreciate context; (3) unrelated to everyday reality and/or issues on the ground to a point that it lacks direct impact; and (4) the time it takes to mete out justice. Justice as taking time and something of the future, not now. Justice delayed.

All of these are covered in Clark’s book in a variety of ways. He zooms in on the ICC’s work in Uganda and the Democratic Republic of the Congo (DRC), but his analysis extends to the broader work of the ICC. He argues that, as a Europe-based institution, the ICC is distant from Africa, Western-dominated and often-times patronizing in its engagement on the continent and with Africans. This extends to the limited African staff at the court, the lack of concrete and direct engagement with African communities and decision-makers, and thus the lack of appreciation of African efforts to address international crimes.

Specifically, Clark underscores that ‘distant justice’ is about how the ICC tries to safeguard its professed neutrality and impartiality by separating itself from the situations and societies it examines. In addition, that ‘distant justice’ is about focusing less on politics and more (sometimes only) on the law. This distance from the political fold, as Clark notes, often ignores the actual context and consequences on the ground. He argues that this ‘distance’ means that the ICC becomes accountable more to itself and perhaps the international community than it should be to the conflict-affected communities for which it purports to mete out justice.

In detailing the many ways through which justice at the ICC alone is ‘distant’, Clark problematizes the base presumption of the court’s establishment: that most states act in good faith. Pivotally, that the ICC can and will only act when states aren’t, either as a result of inability or unwillingness (and as history has shown, also a combination of both).

But, and this is where Phil and I somewhat differ. Institutionally, the ICC is not the centre of international justice. States are.

A critique, therefore, of the flaws of the ICC (or more specifically the Office of the Prosecutor – which is at the heart of his critique) and of international criminal justice, must also focus on states, not just on the ICC. An examination of complementarity, for example, that looks at how the ICC ‘looks down’ on how states deal with atrocity crimes, should also properly assess how states are dealing with these international crimes. Clark does this to some extent in his exploration of domestic prosecutions, amnesties, peace negotiations and community-based responses to atrocity crimes. However, his point of departure, here, seems to be that states – in contrast to the ICC – offer justice that is not ‘distant’. They do, after all, have primary jurisdiction: the crimes are committed within their territories, by people from there, and against people and property there. But are they neutral, unbiased and capable, and do they act in good faith as Clark seems to presume? The domestic processes he covers from the DRC and Uganda, while reflective of action on the ground, are not fully assessed. The same heavy critique Phil reserves for the ICC can equally apply to actions at national level, yet he does not do this. His focus, here, is on the weaknesses of the ICC and what that means for international justice, and not on the weaknesses of states.

Thus, Clark’s assessment is still pivoted on the ICC and he lets states off easy. This reading of the complementary relationship that the Rome Statute requires between states and the ICC distorts what the ‘new’ system of international justice ought to be.

On paper, at least, complementarity is less about whether the ICC can do the job, and more about ensuring that in advancing its type of international justice, states do not neglect investigating, prosecuting and adjudicating genocide, crimes against humanity and war crimes. If states do this – and do it right – then the ICC must leave them to do so. For the most part, considering the many international crimes committed across the world since the ICC began operations in 2003, it would seem the ICC is leaving it up to most states. Frankly, it has neither the budget nor the human resources and reach to do much more.

Clark’s book opens people’s minds to these key facts. In covering some of its key institutional, procedural and practical flaws, he actually does the ICC a good and critical service. It reminds the ICC that it is not the centre of international criminal justice and that it would be more effective in carrying out its mandate if it remembered that.