Distant Justice Symposium: A Reply 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 final post in our symposium on his book, Distant Justice: The Impact of the International Criminal Court on African Politics.]

I am immensely grateful to Patryk Labuda and Thijs Bouwknegt for organising this symposium, to Opinio Juris for hosting it, and to the five commentators for their energetic and diverse engagements with Distant Justice. I now address each commentary in turn.

Owiso Owiso concurs with the main argument of Distant Justice, namely that the ICC purposefully plays politics while maintaining a ‘false narrative’ of neutral ‘distance’; a dangerous gambit when the institution lacks deep expertise on the African societies where it operates (something Owiso observed in his own time working at the Court). Nevertheless, he outlines three criticisms of the book: it overstates the ICC’s ambitions as they are expressed in the Rome Statute and therefore expects it to do too much, including regulating state behaviour; it ‘lays more blame at the ICC’s door than it deserves’ by arguing that its cosy relations with various African states have entrenched undemocratic regimes; and it engages insufficiently with African scholars.

On the first count, Owiso’s parameters are too narrow, insisting that we understand the ICC’s objectives and modalities solely through the text of the Rome Statute. A key methodological reason for moving beyond legalist interpretations of the Court’s practices and drawing on other disciplines, especially the study of African politics, is to highlight that other modes of ICC expression (through its judgments, official statements, outreach materials, etc.) shape local communities’ and wider expectations of its capacities. The Statute may not stipulate regulating state behaviour as a key objective of the ICC but many of the Court’s senior staff and backers do – and have said so routinely since the Court’s first African forays in 2004. Early ICC outreach sessions in northern Uganda and eastern DRC repeated promises that the Court would help end decades-long conflict, hold state officials accountable and contribute to democracy (in short, the idea of the ICC ‘as panacea for the challenges facing states’ that Owiso criticises), and those lofty statements have since shaped many of the Court’s local interactions. I concur with Owiso’s call (echoing Kieran McEvoy) for legal humility but the inflation of the Court’s capabilities – loudest in its early years but still resonant – comes from the Court, not from me.

Owiso’s second contention is that Distant Justice exaggerates the extent to which the ICC has entrenched undemocratic regimes in Africa. The ICC, he argues, is a ‘mildly consequential cog in the wheel of DRC and Uganda politics’ – and regardless these states, which were violent and undemocratic long before the ICC intervened, have since made important democratic advances, evidenced by the string of recent national elections in the two countries. Owiso questions the extent of the ICC’s political influence in Africa: it may be negative but is it as negative as Distant Justice contends? Chapter 3 of the book is more cautious on this issue than Owiso depicts, while still emphasising the extent of the ICC’s political impact in central Africa:

[W]hile these states have launched military campaigns against their armed opponents, they have adopted increasingly violent tactics against their political adversaries and opposition supporters before and during elections. While the ICC is not a direct cause of these violations, it has failed –  contrary to the predictions of various actors within the Court and among its supporters –  to deter criminal behaviour by states. Because of the ICC’s close relations with these governments, they have little to reason to fear investigation and prosecution for crimes committed during elections.

Owiso’s final criticism is that Distant Justice engages insufficiently with ‘African sociologists, anthropologists, political scientists and international justice scholars’ (an issue also raised, even more pointedly, by Xabier Agirre Aranburu in his commentary). This call to decolonise research sources is essential. Regarding this book, however, the criticism seems misplaced, given its close engagement with many of the key African commentators on these issues (including Mahmood Mamdani, Makau Mutua, Gilbert Khadiagala, Barney Afako, Kasaija Phillip Apuuli, Pascal Kambale and Abdul Tejan-Cole, among others).

While broadly sympathetic to Distant Justice’saccount of the political and social damage wrought by the ICC’s ‘distance’ from African polities, Kamari Maxine Clarke challenges the book’s contention that the widespread view of the ICC as a neo-colonial actor in Africa is simplistic, belying the power of African states in the face of a weak and often befuddled Court. Clarke enumerates the costs of dismissing the neo-colonial critique of the ICC: it misses the profound conditions of inequality in African post-colonial settings (‘how inequality feels’); the deep historical structures of violence across Africa that require political rather than technical, legal solutions; the use of African states as laboratories for ‘a new generation of technocratic knowledge’; and the extent to which the African Court of Justice and Human Rights, founded in 2004, represents a vital act of ‘subversion’ of the ICC, ‘designed to disrupt what many see as the ICC’s jurisprudential dominance’.

With the exception of the African Court – which to date has been largely dormant (and subverted very little other than many everyday African citizens’ desire to hold their elites accountable, a task thwarted by the Court’s 2014 decision to grant immunity to all African heads of state and other senior government officials) – Distant Justice addresses all of the other features of modern African states that Clarke ascribes to the neo-colonial framework. Some aspects of my critique of the ICC undoubtedly resonate with neo-colonial accounts, especially the Court’s attempts to limit the scope for African societies to determine, on their own terms, how best to address mass crimes. The danger of viewing the ICC as a neo-colonial actor, however – the book contends – is that this renders Africa supine in the face of the overwhelming power of the ICC. Not only does this perspective undercut the need to acknowledge and comprehend African agency (putting the Court rather than Africa at the heart of this account – an issue discussed below in response to Ottilia Anna Maunganidze’s commentary) but it also shrouds the inversion of the power dynamic anticipated by the neo-colonial view, with savvy, agile African states in fact routinely manipulating a Court that has consistently found itself out of its depth across the continent.

Preferring a theory of extraversion rather than neo-colonialism to explain these power interplays, the book also counters the African Union’s (AU) often cynical criticisms of the ICC’s neo-colonial meddling as a means to avoid (either domestic or international) accountability for African leaders – all while some of the AU’s most prominent members such as the governments of Kenya, Sudan, Uganda and the DRC have (in very different ways) successfully used the ICC for their own political ends. In highlighting the ways in which the ICC both limits African states’ latitude to chart their own pathways and is instrumentalised by these same states, I would argue that Distant Justice unearths more complex power relations than the neo-colonial framework allows.

Mark Drumbl’s poetically provocative response tries to extend my conceptualisation of the ICC’s ‘distance’ from domestic arenas by probing the reasons behind this mindset. Drawing on the literature on law and emotions, he suggests that the ICC has a ‘fear of intimacy’ with conflict-affected communities. It needs to overcome its ‘emotional distance’ and tendency to ‘tutor and hector’, he says, rather than ‘to listen, to sit’ in pursuit of a form of law that benefits the people the ICC claims to assist. Drumbl’s argument echoes the statement by the Congolese investigator that closes Distant Justice: ‘We don’t want the ICC above us because it can’t help us there. We want it alongside us. And if the ICC isn’t willing to do that, it should get out of our way.’    

While Drumbl argues that the ICC ‘needs to love’, throughout the research for the book I found myself wondering, ‘Does the ICC care?’ Does it care about the people and the places where it intervenes? Does it care about the consequences of its work? Given the common refrain among many ICC actors in the early years that ‘Africa would be easy’, I also wondered how much care was informing the conduct of their investigations (an issue that came back to haunt the OTP several years later as case after case collapsed). Analysing my interviews with ICC staff and public statements by Court officials (again, the importance of going beyond the Rome Statute in distilling the ethos and objectives of the institution), I was struck by the common insistence that too much consideration of the Court’s domestic impact – too much care – would dilute the ICC’s essence. The key, I was told over and over, was that the ICC needed to rise above these considerations, to remain independent, ambivalent.

As Drumbl and others have long pointed out (drawing on Judith Shklar), this idea of law as necessarily hovering above the political fray to deliver impartial and even-handed justice is deeply entrenched in both domestic and international legal practice. What Distant Justice tries to show is that this perspective finds even stronger expression in the context of the ICC as a global institution. During the research, I began to wonder whether many of the ICC personnel I encountered cared about the African communities in which they worked, not because they were somehow bad people but because their work – in a necessarily itinerant institution that handles cases in one country before moving on to the next – required them not to become too attached to any particular community. The global, itinerant nature of the ICC turbo-charges a deep legal tendency not to care too much, which Distant Justice argues creates the multiple pathologies stemming from ‘distance’. One welcome result of the much slower and more complicated ICC cases in northern Uganda and eastern DRC than most Court personnel anticipated is that this may have forced them to care a little more about specific people and places.

Such findings call – and Drumbl’s commentary provides a useful framework – for a systematic ethnography of the ICC, to better understand its culture (both in The Hague, its satellite offices and ‘in the field’), focusing on the ICC personnel’s training, beliefs, networks and daily rituals. Distant Justice examines these actors’ impact on African societies but to better understand ‘distance’ and how to overcome it requires a different type of research project – and an intrepid individual or collective willing to embed themselves inside the ICC for several years, to uncover how a philosophy of ambivalence has become so embedded in the fabric of the Court.

Ottilia Anna Maunganidze shares some of Drumbl’s concerns, distilling from my articulation of ‘distance’ the view that ‘the ICC [has become] 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’. Maunganidze claims, though, that – contrary to the account in Distant Justice – ‘the ICC is not the centre of international justice. States are.’ She also argues that the book romanticises the capacity of African states to address mass crimes; maintains that states provide a form of justice that overcomes distance from affected communities; assumes domestic systems – ‘not fully assessed’ in the book – are ‘neutral, unbiased and capable’; and, ultimately, in focusing so heavily on the ICC’s blunders and blusters, ‘lets states off easy’.

I think Maunganidze may be misreading my argument in each of these respects. Rather than seeing the ICC as the centre of international justice, Distant Justice takes African societies (at the national, sub-regional, community and individual levels) as its starting point. The book is fundamentally interested in the Court’s impact on the eight African societies where it has so far investigated crimes. Treating the ICC as an external intervention that intersects with a wide range of domestic political, social, cultural and economic dynamics – including domestic responses to atrocities – Distant Justice treats the Court as one actor among many and (for example, in my analysis of the ICC’s impact on various peace negotiations in northern Uganda and eastern DRC) not always as the pre-eminent one.

On the count of romanticism, Distant Justice depicts the various shortcomings of the Ugandan and Congolese governments. Chapter 3, for example, is dedicated entirely to a detailed examination of the ways in which these states have politicised and instrumentalised the ICC, emboldened by their close relationship with the Court to continue committing violations against citizens during armed conflict and national elections. No Ugandan or Congolese state actors ‘get off easy’ in this account.

While arguing that the ICC’s core principle of complementarity requires it to show greater deference to domestic legal and non-legal responses to mass crimes, the book (in chapters 5-7) also highlights the structural imperfections and practical limitations of domestic institutions (an issue I take up in more detail below in replying to Xabier Agirre Aranburu). Complementarity should not hinge on the perfection of domestic proceedings but rather their genuineness in seeking to address serious crimes (Distant Justice criticises the narrowness of the Rome Statute on this issue, arguing that the threshold of ‘genuineness’ should extend to domestic processes other than strictly national prosecutions, including truth commissions and community-based rituals). As I argue in the conclusion to the book:

The foundational principle in this respect should be deference to local practices, regardless of their flaws, because they have several inherent advantages over international approaches, namely understanding of local context and challenges, sustained operation within the states in question and greater presence and visibility among local populations, including those most affected by violence. This view of complementarity approaches the question of the most appropriate responses to conflict from the standpoint of imperfection and the need for innovation, recognising that no perfect or ‘fail-safe’ response exists and the complexity of mass conflict and its consequences will require creative and tailormade remedies… The ICC’s travails in Africa so far should lower its status to one approach among many, whose virtues may be more marked in some situations than others…

Finally, I’m grateful to Xabier Agirre Aranburu, the current Head of the Investigative Analysis Section of the OTP, who has engaged directly with Distant Justice’s critical account of the Court’s – and especially the OTP’s – work. While I disagree with his criticisms of the book, his arguments provide important insights before the kind of expert review proposed by the four former presidents of the ASP.

Agirre begins his commentary with a catalogue of supposed inaccuracies in the book, including two paragraphs listing the various African staff based permanently within the Court or hired to assist certain investigations. This response misses the mark because the concern throughout Distant Justice is over the lack of country-specific, not generic ‘African’, expertise inside the ICC, especially the lack of national investigators from the particular countries where the ICC is operating, who speak local languages, understand the local political environment and have established networks of local informants to help build effective criminal cases. The only national specialists included in Agirre’s list are local intermediaries who – as documented in Distant Justice and elsewhere – have carried too much of the investigative burden and led to the consistent out-sourcing of core ICC responsibilities; a feature of the OTP’s work criticised on several occasions by the ICC judges. If ‘African expertise…is present on a daily basis in our work’, as Agirre claims, what explains the major investigative missteps that led to the acquittals of Jean-Pierre Bemba and (most acutely) Laurent Gbagbo – the latter, a case built primarily on secondhand information such as local human rights and media reports rather than the OTP’s own systematic evidence-gathering? Agirre provides no comment on these widely criticised cases.

Agirre then turns to the crux of the argument in Distant Justice concerning the contradictions between the ICC’s rhetoric of complementarity (with its attendant notions of deference to, and cooperation with, domestic institutions), and practice of distance (which insists on the ICC’s insulation from the domestic terrain to ensure its neutrality). He claims that my argument in this respect is fundamentally inconsistent, calling for deference while highlighting numerous flaws in domestic institutions (see my earlier reply to Maunganidze). Agirre’s response reinforces a running theme throughout Distant Justice that many senior ICC actors have, over time, diluted the spirit of complementarity, skewing it heavily in favour of ICC intervention. As mentioned above, nothing in the principle of complementarity depends on the perfection of domestic institutions. According to the Rome Statute, provided domestic proceedings are underway while displaying a genuine willingness and ability to investigate and prosecute crimes, the ICC should defer to national institutions. Invariably, such domestic proceedings will manifest some shortcomings (as does the ICC). However, unless these flaws are so great as to cast doubt on the domestic institutions’ ‘genuine willingness and ability’ to address crimes, they should be irrelevant in complementarity terms and should pose no barrier to domestic prosecutions.

Agirre also counters the claim in Distant Justice that the ICC has consistently undermined domestic responses to mass conflict, arguing that this account ‘omits the efforts made by the two Prosecutors to support national systems’ through various technical trainings and evidence-sharing, and that the OTP has ‘always been open to consider complementary combinations with national systems’. Such arguments discount the complaints by various national officials in Uganda and the DRC, cited in the book, regarding the ICC’s high-handedness and general reluctance to share evidence and expertise. More importantly, Agirre fails to contend with the evidence presented in Distant Justice that the ICC only displays a willingness to cooperate with domestic institutions when they pose no challenge to the Court’s jurisdiction over particular cases. To take the northern Ugandan example Agirre cites, Ocampo stated consistently that no complementary combinations would be possible if Uganda attempted to use traditional mechanisms to deal with the ICC’s targets, Joseph Kony and the other Lord’s Resistance Army (LRA) commanders, as proposed during the Juba peace talks.

Tellingly, Agirre makes no mention of one of the key findings in Distant Justice – noted by all of the other commentators – that the OTP actively chased the state referrals in Uganda and the DRC, leading to overly cosy relations with the respective governments. One key outcome of these dynamics in the DRC was the OTP’s – with Congolese President Joseph Kabila’s assent – pursuit of the cases of Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, which at the time were being investigated by the domestic courts in Ituri. Desperate to get suspects in the dock in its early years of operation, the OTP rode roughshod over complementarity, in the process undermining a newly reformed judiciary in Ituri that would have benefited substantially from prosecuting such high profile cases in local courtrooms. This is a far cry from the wholehearted OTP support for domestic prosecutions that Agirre invokes.

On narrower issues, Agirre claims erroneously that Distant Justice argues that most northern Ugandans oppose the ICC and homogenises all of the DRC as a ‘single situation’. Chapter 4 of the book in particular is dedicated to interpreting the heterogeneous perspectives of more than 500 everyday citizens, customary leaders and civil society actors (in the Acholi, Lango and Teso sub-regions of northern Uganda and Kampala; and in Ituri, North and South Kivu and Equateur provinces of the DRC and Kinshasa). A key theme in this chapter is the immense diversity of opinion within and among these different regions of northern Uganda and eastern DRC.

In several instances, Agirre challenges the source material underpinning Distant Justice, claiming that I should have consulted the OTP more directly on various themes. It is worth clarifying that I interviewed numerous OTP staff in The Hague and in central Africa throughout the fieldwork for Distant Justice and quote them at length in the book. Agirre also claims the book’s bibliography contains only anglophone sources; this is not true, although certainly the book could have usefully engaged with more francophone sources. It is also not true, as Agirre claims, that the book ignores sources by Congolese commentators. In fact, I cite, for example, the important work of Kabungulu Ngoy-Kangoy, Pascal Kambale, Eric Mongo, Désiré Nkoy Elela, Felix Ndahinda, Fabien Nsengimana and the Pole Institute, among others.

Where I have some sympathy with Agirre’s perspective concerns chapter 8 of the Distant Justice, which shifts from the detailed dissection of the Ugandan and Congolese situations in the preceding five chapters to a more ‘broad brushstroke analysis’ of the ICC’s other six African situations (Central African Republic, Darfur, Kenya, Libya, Côte d’ Ivoire and Mali). During drafting, I toyed with discarding this chapter because its methodology diverges so markedly from the rest of the book (drawing on secondhand material rather than original field research and providing a sketch, rather than systematic analysis, of key developments in these countries that resonate with core aspects of the Uganda and DRC experiences). Chapter 8 is explicit about these differences and that it should be read differently from the remainder of the book, while still highlighting some consistent features of ICC behaviour and impact beyond the focal cases of Uganda and the DRC.

Finally, Agirre ends his response with a comment that should raise concerns about any review and reform process undertaken by the ICC. Eschewing the structural, substantive, geographical and personnel reforms outlined in the conclusion to Distant Justice, Agirre claims that the ICC’s principal problem is its limited resources and calls for a substantial increase in the ICC’s budget. My point is very different. Intended as a work of constructive criticism, Distant Justice shows that overcoming the problems generated by the ICC’s weddedness to distance from national and community environments will not be achieved through increased finances alone. I argue that this will require a systematic rethink of the purposes and modalities of the entire international criminal justice enterprise – and the place of the ICC within that – while confronting some uncomfortable truths about the damage the Court has so far wrought in conflict-affected societies in Africa. My hope is that Distant Justice – and the exchanges in this symposium – will contribute to that tougher but essential conversation.