Distant Justice Symposium: Measuring Distances—A Response to the Book “Distant Justice” by Phil Clark

[Xabier Agirre Aranburu is Head of the Investigative Analysis Section at the Investigations Division of the Office of the Prosecutor of the International Criminal Court. The views expressed herein are those of the author alone, and do not reflect the views of the Office of the Prosecutor. 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.]

Phil Clark has written an ambitious book, attempting to address many issues across eight of the situations investigated by the International Criminal Court (ICC or the Court) over fifteen years. In this brief post I shall focus on some inaccuracies in his claims about the “distance” of the ICC’s Office of the Prosecutor (OTP).

Clark argues that the ICC’s most serious mishaps are a direct result of the Court, notably the OTP, maintaining a “distance” with the communities in which it works. In this context he indicates that the OTP investigations are limited to foreign staff and short-term field missions (p. 67), and refers to the Court’s “lack of expertise on Africa” (p. 52), “the ICC distancing from the local terrain through the almost exclusive use of generalist and non-African, rather than Africa-specialist” (p. 181), and “the ICC’s lack of Africa-specialist staff” (p. 306). This is not accurate.

The OTP has taken over the years multiple actions to bridge the “distance”, including the following: hiring staff from, or with field experience in the relevant countries, including analysts, investigators, lawyers and others; engaging area experts as consultants, trainers and witnesses; posting OTP investigators on long duration in field offices; working through the ICC field offices operated by the Registrar; communicating and consulting with local civil society, authorities and experts, on a regular basis; hiring local intermediaries; hiring psycho-social  experts, including those who hail from Africa, to assist in the interaction with vulnerable witnesses; cooperating with the victims’ legal representatives; engaging local staff to assist with translations and language issues, which often facilitates, inter alia, advice on custom and cultural sensitivities; interacting with local actors through outreach activities; study of academic bibliography acquired by the ICC Library, including political science, history, etc.; and systematically monitoring local media, conventional and social, while some informational “distances” collapse in the digital era.  

African expertise, including both substantive matters and interaction, is present on a daily basis in our work. This is, first of all, thanks to a number of African colleagues, beginning evidently with our Prosecutor herself, Ms. Fatou Bensouda from Gambia, as well as veterans from the ICTR and SCSL. A number of International Cooperation Advisors assigned to different investigation teams are highly qualified African professionals, just like their supervisor, the Head of the Cooperation Section. More examples of African experts among the OTP senior staff include, among others, the Director of the Jurisdiction Cooperation and Complementarity Division (JCCD), the Senior Trial Lawyer who led the Bemba case in court, the Head of the Gender and Children Unit and the former Head of the Legal Advisory Section. This is well-known public information, which Clark does not include in his book.

There may be room for improvement regarding “distance”, but first Clark needs to get the facts right, which he could have easily done by consulting the OTP. Moreover, external observers and researchers need to appreciate that much of the investigative activities and procedures are by necessity confidential, and assessments limited to public information may be incomplete or misleading.

Next to that, Clark’s analysis of complementarity issues seems inconsistent. He strongly argues that the ICC should have deferred to the national systems in Uganda and the Democratic Republic of the Congo (DRC), but at the same time he concedes that these systems are not addressing victims’ right to justice. He reports that “The Ugandan judiciary, especially in the north, lacks the infrastructure and personnel to meet the population’s legal needs” (p. 113), and further notes the serious shortcomings and limited results of the International Crimes Division (ICD) established in 2008. He also finds serious shortcomings in DRC, because of “[…] the long-standing distance of the domestic courts, which are broadly viewed as inaccessible, corrupt and symbolic of the population’s broader neglect by the state from the colonial period to the present.” (p. 120-121).

While deeply critical of the OTP’s approach, Clark’s analysis of complementarity also omits the efforts made by the two Prosecutors to support national systems. The Prosecutor supported actively the establishment of the Ugandan ICD, including a dialogue on best practices, sharing of information and evidence and training of staff. The Head of the ICD, the late Joan Kagezi, expressed clearly her appreciation for all the support and encouragement that they had received from the OTP. This and other examples of OTP support for national systems are well-known, including from the Report of the Court on Complementarity published in 2011, but ignored in Clark’s book.

The ICC’s Prosecutors have always been open to consider complementary combinations with national systems. In 2007, as Clark acknowledges, Prosecutor Moreno-Ocampo indicated that in Uganda that ICC and “traditional mechanisms to reconcile people can work together” (p. 248). In 2016, Prosecutor Bensouda actually issued a public “message calling for defection by LRA fighters”, most of whom were expected to qualify for national amnesty. The ICC’s Prosecutors have taken similar actions to support national efforts and explore complementary options in other situations, including sharing information when appropriate and training. But Clark is inclined to problematize the different options rather than appreciating the synergies to see them as complementary, or coexisting from a perspective of legal pluralism.

Clark also suggests that Northern Ugandan society is, by and large, against the ICC, which again is misleading. The views have always been and remain mixed, like in any society confronting mass violence. Clark avoids acknowledging that since at least 2016 there has been a trend of growing support for the ICC, according to the assessment by local observers, apparently because of the arrest and trial of Dominic Ongwen, ICC outreach efforts, and the peace that has returned to the region.

Referring to the DRC as a single situation might be only a “distant” assumption, since the DRC has more than 80 million people, with at least seven armed conflicts involving no less than twenty armed groups in the period between 2003 and 2019; this is different from any other situation in the world, and it would require a full book on its own. Moreover, Clark’s academic sources are limited to publications in English, a significant limitation, particularly with respect to the DRC, while his bibliography ignores Congolese as well as Francophone experts.[1]

Clark then goes on to cover six ICC situations (Central African Republic, Darfur, Kenya, Libya, Côte d’Ivoire and Mali) with “broad brushstroke analysis” (p. 6) in 32 pages under the heading of “continental patterns” and the “remaining African situations” (chapter 8). Adequately explaining these vastly different situations in 32 pages is neither possible, nor consistent with the author’s call for deeper analysis. This approach also fails to consider other situations that could merit ICC jurisdiction but were never investigated in the absence of ratification or referrals; a more objective methodology should consider comparatively these situations along with those under ICC investigation.

There is some merit in Phil Clark’s critique, and there is indeed room for improvement for the ICC’s “distance”, but this is not necessarily the Court’s main problem. For a comprehensive assessment the reader may consider the newly released ICC OTP Strategic Plan 2019-2021, where the Prosecutor has candidly acknowledged challenges and indicated that “the Office remains fully committed to learning from all its experiences, both in terms of successes and failures, and to taking all available measures within its control to improve its final outcomes in court”.

A more fundamental problem for the ICC may be the imbalance between the very large scope of the situations under investigation and the limited resources and support currently available (see ICC OTP Strategic Plan 2019-2021, para. 22 ‘Further prioritising amongst investigations and prosecutions’). The workload is unlikely to decrease, in view of the proliferation of conflicts around the world, the increasing demands on the Court to exercise jurisdiction, and the number of situations under preliminary examination. Different scenarios can be explored to address this imbalance: a) to increase the ICC budget and resources; b) to reduce the number of situations, in order to do a more complete job in each one of them; c) to keep the current status quo, with many situations and little resources, and manage timelines, so that investigations progress at a different pace after they have been formally opened. There are different pros and cons for each one of these scenarios, which can be further explored and discussed with academics, practitioners and others.

The ICC, its organs and its State Parties can and must improve their performance in the service of the Rome Statute, building both on self-reflection and external feedback. Phil Clark’s book is an opportunity to review the achievements of the ICC and reflect on options for improvement. The efforts by researchers like him and many others to assess the Court’s performance are to be commended and encouraged, including through the ICC programs for Visiting Professionals and different research cooperation projects. Such dialogue is much needed since the ICC is here for the long term. Not necessarily because it is the best option, but because unfortunately sometimes it is the only option available to those in need of justice.

[1] Among the Congolese experts that he should have considered are, for context at least: Valentin-Yves Mudimbe The Invention of Africa. Gnosis, Philosophy and the Order of Knowledge (Indiana University Press, 1988); Georges Nzongola-Ntalaja The Congo from Leopoldo to Kabila. A people’s history (Zed Books, 2002); and for the subject-matter : Eugène Bakama Bope  La justice congolaise face aux crimes internationaux commis en RDC, with an introduction by Toussaint Muntazini Mukimapa (L’Harmattan, 2014); Eugène Bakama Bope  L’expérience congolaise de la Cour Pénale Internationale (iCourts Working Paper Series, No. 82, Dec. 2016); Jean-Pierre Fofé Djofia Malewa La Cour Pénale Internationale: Institution nécessaire aux pays des Grands Lacs Africains (L’Harmattan, 2006) , Justice pénale et réalités sociétales. De l’analyse du modèle R.D. Congo à la formulation d’une politique criminelle participative (L’Harmattan, 2007) and L’administration de la preuve devant la Cour pénale internationale: Règles procédurales et méthodologiques (Logiques Juridiques) (L’Harmattan, 2015); Christophe Muzungu La cour pénale internationale face à la crise en république démocratique du congo. Étude critique et prospective (L’Harmattan, 2015).