Symposium on Oumar Ba’s Book ‘States of Justice: The Politics of the International Criminal Court’–Introductory Post

[Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg.]

Inter-governmental organisations are often theatres of inter-state politics. Why then does the suggestion that the International Criminal Court (ICC) may not be any different bother observers so? Well, that is perhaps because the ICC is not just another ‘ordinary’ inter-governmental organisation. It is also, and perhaps primarily, a judicial mechanism. As the only permanent international criminal court, and one with the grandiose ambition of ending impunity for international crimes, the ICC is often perceived by many an idealistic stakeholder as being ‘above the politics’ of states. However, reality may not be so kind to this perception.

While primarily a judicial mechanism, the ICC is also ‘a political agent and actor (an identity that it refuses to embrace)’ (Oumar Ba 2020, 161). The clash between the ICC as a judicial mechanism and as a political agent and actor has since become evident in its practice. For instance, all of the Court’s prosecutions have so far focused on crimes committed in and by nationals of countries on the African continent, and this has attracted the ire of the African Union. As the Court seeks to expand its practical reach to situations in other countries around the world such as Afghanistan, Palestine, Bangladesh/Myanmar, Georgia, Ukraine, Iraq/United Kingdom, The Philippines and Venezuela, the Court is certainly set on a collision course with even more states, some of them powerful global actors. In particular, the United States of America has reacted with hostility to the investigation in Afghanistan and the preliminary examination in Palestine and has announced a raft of restrictions and sanctions against ICC staff. The inescapable reality, therefore, is that the Court, like many IGOs, operates within a highly political ecosystem within which it nonetheless must (appear to) assert its judicial independence. As Oumar Ba (2020, 156) observes, while ‘the Court has had very limited success … [it] has set its mark on global politics and conflict processes’.

Oumar Ba’s book ‘States of Justice: The Politics of the International Criminal Court’ (2020) is therefore a timely addition to the debate around the Court’s political environment. Published by Cambridge University Press, the book analytically engages with the Court’s claim to judicial independence vis-à-vis its relationship with states. In particular, using empirical evidence from states that do not wield significant global power and influence – primarily Uganda, Côte d’Ivoire, Kenya and Libya and to some extent the Democratic Republic of the Congo, Central African Republic, Mali, Gabon, Sudan, Burundi, The Gambia, South Africa and The Philippines – the book engages in significant depth with the practical application of the ICC’s various trigger mechanisms (self-referral by states, proprio motu powers and referral by the United Nations Security Council) and with the vexed questions of complementarity, compliance and cooperation by states. The book reveals: how so-called ‘weak states’ have managed to instrumentalise the Court’s self-referral trigger mechanism to pursue their political and security interests; the selective and inconsistent use by the Security Council of its power to refer cases to the Court; the inconsistent and strategic interpretation and application by the Court and by states of the complementarity principle; and how some states have used the Court as a platform for domestic politics. Overall, the book invites the international criminal justice world to reconsider the narrative of unmitigated progress that is all too common in international criminal justice discourse generally, and ICC discourse in particular.

Oumar Ba’s book comes at a time when the Assembly of States Parties (ASP) has embarked on the process of electing the third Prosecutor of the Court (see here and here), arguably the most politically significant and publicly visible official of the Court, and at a time when the ASP has commissioned an independent review of the Court with a view to reform. The book is therefore certain to reignite debate around the issues that have had a significant effect on the work of the first and second Prosecutors and on the Court’s judicial function. The ‘politics of self-referrals’ characterised much of the controversy-filled tenure of the first Prosecutor Luis Moreno-Ocampo, resulting in expensive investigations from which materialised only a handful of cases, mainly of non-state actors and disgraced politicians from African states. The Security Council referrals have also not yielded much. Fifteen years after the Sudan referral and nine years after the Libya referral, a total of seven cases remain inactive because the accused persons are at large while one case was recently activated following the voluntary surrender of Ali Muhammad Ali Abd-Al-Rahman in June 2020. These cases and the politics surrounding self-referrals, Security Council referrals, proprio motu interventions, and state compliance and cooperation have clouded much of the tenure of the second Prosecutor Fatou Bensouda. It is inevitable that the third Prosecutor will inherit this hornets’ nest, and possibly add more hornets to the nest.

Therefore, the release of Oumar Ba’s book coincides with a pivotal moment in the Court’s history, and amplifies the need to revisit and/or continue these debates in the hope of contributing to the Court’s overdue course-correction from ‘a court in permanent crisis’ (Oumar Ba 2020, 156-158), to a court capable of deftly navigating its political environment, asserting its judicial independence and effectively championing accountability for international crimes. It is for this reason that we invited a few scholars and practitioners to reflect on the themes covered by the book. We also invited Oumar Ba to respond to the observations of the contributors. We are very grateful to the contributors and to Oumar Ba for participating in this symposium despite the very disruptive effect that the global COVID-19 pandemic has had on professional and personal lives. We are also grateful to OpinioJuris for hosting this symposium. We hope that this symposium will stimulate enriching reflections on the themes covered by the book.