States of Justice Symposium: Interrogating States of Justice–The Politics of the International Criminal Court

[Melissa L. Simms is currently a Legal Officer with the United Nations and formerly with the International Criminal Court. The views expressed in this post are those of the author and do not reflect the views of the United Nations or the ICC.]

Oumar Ba, Assistant Professor of Political Science at Morehouse College in Atlanta, United States has certainly stoked interest in his publication just by its provocative title, “States of Justice: The Politics of the International Criminal Court (ICC).” The title itself encapsulates an issue that has bedeviled the Court and its principals, who have sought to locate it as an apolitical institution; anchored solely in a legal world driven by the exercise of judicial and prosecutorial discretion, as appropriate.

Contrastingly, Ba confronts this imagined narrative of political sterility over seven chapters by interrogating four key issues – strategic use of referrals by states, challenge of complementarity, limits to compliance and the ICC’s impact on local politics. Notably, some of Ba’s assertions support developing narratives around  the ICC and its States of Justice, as well as the state of international justice relative to that catalytic institution. Nonetheless, Ba’s publication is a welcomed scholarly addition to the discourse and offers new vantage points from which to assess this evolving narrative.

Unsurprisingly, Ba starts his critique by taking issue with states strategically referring matters over which they have primary jurisdiction to the ICC per article 14 of the Rome Statute. Uganda is identified as the state which personifies this strategy which Ba argues is driven solely by Uganda’s “political and security interests,” (Ba 2020, 40). Ba categorises the pitfalls of this strategy as a misuse of article 14, as it was never contemplated that states would refer themselves to the ICC. Furthermore, Ba identifies that the effect of this strategy is to give immunity to the agents of the referring states, while its political adversaries are neutralised or eliminated due to proceedings at the ICC.

The assertion that states are misusing article 14, as  it was never intended to be used by states to self-refer cases under their remit, highlights the narrow interpretive approach that many scholars have brought to bear on their analysis of the ICC and resulting state conduct. This perspective misses the primary goal of the Rome Statute which is “end to impunity for the perpetrators of […] crimes and […] to contribute to the prevention of such crimes,” resulting in the creation of a court of last resort for states unable or unwilling to prosecute those responsible for atrocities. Locating this overriding objective within interpretative theories, the purposive approach to interpreting the statute ought to have primacy in the discourse (Ammann 2020).

Instead, the scholarship around states self-referring is mostly pre-occupied with motives of these states that scholars often miss the value of this developing state practice. As it is incontestable that states self-referral of cases amplifies the aims of the Rome Statute, to end impunity and activates the complementarity provisions under the statue as a cohesive unity of purpose between the ICC and its member states (Prosecutor v. Katanga and Chui and Prosecutor v. Lubanga).

A weakness of the book, if any, is that while Ba focuses on the motives of Uganda’s Museveni, there is some neglect in contending with the real issue of that state’s capacity to deal with international crimes. It is therefore regrettable that Ba’s empirical focus did not include the parallel though connected cases of Ongwen at the ICC and the Kwoyelo case before Uganda’s International Crimes Division. The timelines of the respective cases and attendant legal matters show that Ongwen’s case substantially progressed over the course of five years, with judgment now pending, while Kwoyelo’s case is progressing at a snail’s pace through Uganda’s justice system, almost ten years after it first began. This parallel of progression offers additional room for analysis to identify that even if the motive of self-referring states is solely political and self-interested, attendant and significant positives flow from it.

Ba rightly explores the relationship between the ICC and the United Nations Security Council (UNSC), specific to articles 13(b) and 16 of the Rome Statute. He offers robust critique of the actions of the UNSC regarding its politics of referring states, with analysis focused on situation countries it referred to the ICC in contrast to states which it failed to refer. Ba’s analysis correctly identifies challenges to the ICC and the larger international justice project, as a result of how the UNSC chooses to exercise its option under article 13(b).

However, where Ba and other scholars fall into error, is conflating the politics of the UNSC with the ICC to such an extent as to render the latter as a political institution (Clarke and Koulen 2014 and Nouwen and Werner 2010). It further highlights an almost distortive narrative which seeks to divorce the dynamics of international organisations and the environments in which they operate from similar domestic institutions and their own dynamics. If one were to do a comparative analysis of Prosecution Authorities at the domestic level, one will find that they too must carry out their function in the face of adverse political circumstances. However, the fact that they operate in such environments does not lead their critics to argue that by dint of such circumstances the Prosecution Authorities become political.

Furthermore, the fact that the ICC may at times display adeptness in pivoting the institution to protect its mandate should not be deemed political, without more. The truth of whether it has become a political institution must be assessed from how it conducts itself. On this issue, Ba makes a less than compelling case that it is so.

Specifically, as it concerns the UNSC’s power of referral, admittedly it raises concerns as to the extent to which it exposes the ICC. However, given the mandate of the United Nations and its identity which is analogous to a state, it is well placed to play an active though non-interfering role in the ICC. Perhaps, it is timely to locate the issue of the UNSC’s power of referral within the larger debate on reform of that body which UNSG Guterres recently identified, is well in need of reform. Additionally, such reform discussions ought to identify whether the referral of situations to the ICC is best exercised by the UN General Assembly, as opposed to the UNSC, as now obtains.

On the issue of compliance challenges, Ba accurately summarises the attendant issues and with this there is little room for challenge. However, this chapter gave rise to theories of international relations which influenced the ready adoption of the ICC and its mandate by African states. However, once more it is worth highlighting the narrow conclusions which can arise from compartmentalising the application of theories. A broader view of geopolitical trends, alongside global developments in the political economy would establish that the movement of developing states towards international organisations such as the ICC, is far from puzzling and/or incongruous, even with sovereignty at stake.

The confluence of economic growth, improved technology, outcome oriented international organisations and goal oriented international norms to solve shared global challenges was the perfect combination of forces leading to organisations such as the ICC (Davis et al, 2012). As this book reflects, it is only after its formation that expectations are challenged when met with the reality of its work.

Ba’s book is worth more than a read. While it provides settled and new conclusions, it does invite disagreements, and this perhaps is the hallmark of a distinctive publication.