States of Justice Symposium: Another Reason Why Regionalism Matters in International Criminal Justice

[Nestor Nkurunziza is an Assistant Professor at the Faculty of Law, University of Burundi (on leave for doctoral research at the University of Ottawa)].

Much has been written on the crisis with the ICC in recent literature. However, Oumar Ba’s ‘States of Justice’ brings a great contribution to the existing scholarship, both in terms of the conceptual framework used and the relevance of the case studies selected to the topic as well as their treatment. Usually, critics of the ICC point to the court’s alleged selectivity where ‘targeted’ states (African) are viewed as the ‘victims’ of ‘imperialist’ interventions. By contrast, Oumar Ba’s entry point into the debates represents a departure from this perspective in that it emphasises the prominent role/agency of those African states that have engaged with the ICC. It is from this point that the author can develop a straightforward line of argumentation to demonstrate how States that are otherwise considered to be weak within the international legal system have managed to leverage the Court to achieve their own national political and security interests.

Additionally, as Oumar Ba (pp. 32-33) argues, the proposed theoretical framework then challenges established theories such as Kathryn Sikkink’s The Justice Cascade. Indeed, issues related to the crisis of international criminal justice in Africa together with the move towards establishing an international criminal court within the African Union legal system are better understood through the lens of analytical tools associated with a more critical scholarship. For example, as  Matiangai Sirleaf (2016) has suggested, the notion of ‘regime complexes’ interactions can provide a more helpful analytical framework to this end (also cited in Nestor Nkurunziza, 2017).

In terms of structure, the book is organised around seven chapters. The first two chapters review contending theories relevant to the topics under analysis while introducing the main thematic issues that are further developed: (1) the strategic use of self-referrals, (2) complementarity between national and international justice systems, (3) limits of state compliance with international courts, and (4) the strategic use of international courts in domestic politics. Based on four major case studies (Uganda, Libya, Kenya and Côte d’Ivoire), the subsequent chapters (chapters 3, 4, 5, and 6) provide an in-depth and detailed analysis of each of the announced themes.

Hence, Uganda is used as a main example to illustrate how national authorities have strategically instrumentalised the so-called self-referral mechanism (article 14 of the Rome Statute) to advance their own national interests. Oumar Bâ shows how, in the first place, the Museveni regime called in the Office of the Prosecutor (OTP) to investigate crimes committed in the context of the decades-long conflict in the North of Uganda pitting the Lord’s Resistance Army (LRA) rebel movement against the Uganda army. Cooperation and support to the OTP’s prosecutions were guaranteed in so far as prosecutions would solely target LRA rebel leaders. Even so, Ugandan authorities would further adjust their approach to cooperation and support the prosecutions only depending on whether or not such prosecutions still served national interests (p. 44). Discussing the political manoeuvres surrounding the UN Security Council’s referral of the situation in Libya (and Sudan) against the Security Council’s failure to refer Syria, chapter 4 highlights ‘the political dimension of the workings of international justice’. In turn, the Kenyan case (chapter 5) is used to depict a situation where top national officials who are the targets of ICC’s prosecutions face a dilemma:  a choice to be made between upholding the State party’s obligations under the Rome Statute or protecting their own self-interests by shielding themselves from justice. The analysis then shows how while they have publicly proclaimed their commitments to compliance and cooperation with the ICC, Kenyan officials might have orchestrated tactics aimed at undermining the prosecutions that eventually led to the collapse of the cases. Chapter 6 is concerned with the Côte d’Ivoire case. It is a story of how Ivorian political actors have transformed the court into their ‘political arena’. Lastly, the final chapter is an overview of other situations (DRC, CAR, Mali, Sudan, Burundi, and the Philippines) where the court was involved to a certain extent. The chapter also uses the same announced framework to discuss the situations of countries such as South Africa and The Gambia that attempted to withdraw from the Court. The analysis confirms the main arguments and conclusions of the book according to the author: states (mostly African states) that have so far engaged with the ICC did so not for the purpose of promoting justice for crimes under the court’s jurisdiction, but to advance their political and security interests.

Interestingly, Oumar Bâ claims that the book’s findings and conclusions are ‘generalizable and useful to examine the behavior of other states in and outside of the African continent’ (p.39), which raises the following question: what does ‘States of justice’ tell us about future interactions with the proposed African Court of Justice and Human and Peoples’ Rights (or African regional courts) should it become operational? In my opinion, the question is worth asking, particularly as scholars and researchers including the author of this review have welcomed the current developments towards creating international criminal courts in Africa. In other words, is an African court likely to face comparable challenges (or likely to be manipulated by states) should it seriously undertake prosecutions that may threaten a given state’s national interests? (Notably, the Malabo Protocol rules out criminal prosecutions against incumbent top officials, but there are other ways the proposed court may threaten ruling elites’ interests, especially given the large gamut of crimes covered including corruption and economic crimes).

It is true that an African court would have advantages associated with increased legitimacy, but if I have correctly read Oumar Bâ’s ‘States of justice’, I would agree that there is little reason to expect that states would significantly change their course of behaviour simply because the prosecuting court is situated on the continent. This then brings us to the next question: why does regionalism still matter in the administration of international criminal justice? There are still many arguments in favour of such an approach, but a compelling one that came to mind after reading Oumar Bâ’s ‘States of justice’ lies in regional courts’ potential to deploy ‘proactive complementarity’ in the sense that William Burke-White has theorised it in great detail (see here). Indeed, some including Burke-White have made a strong case for such a policy in the case of the ICC.

However, the ICC has failed in this regard and admittedly, the court has no intention of undertaking such a policy (see Assembly of States Parties 2010 Report: ‘Taking Stock of the Principle of Complementarity’). Further, such a policy is actually out of  reach to the court due to the effects of its various ‘distances’ (physical and ideological) from the affected countries and populations in Africa that Phil Clark ( 2018) has identified. Even more, such a policy is out of reach for any international criminal justice mechanism designed based on the classic international criminal law model, as Mark Drumbl has observed in his review of Phil Clark’s book. Proactive complementarity means that international (regional) courts would directly interact with national courts to encourage them to prosecute international crimes and strengthen their capacity to do so if needed. Proactive complementarity can help circumvent or mitigate the effects of international criminal prosecutions’ shortcomings and challenges. For instance, I have made the case for extending the jurisdiction of the East African Court of Justice over international crimes elsewhere and explained various ways in which the court would deploy proactive complementarity features to the benefit of national justice systems in the East African Community member states. In the end, strong national justice systems are less vulnerable to political instrumentalization and less likely to face the shortcomings of international criminal justice.