States of Justice Symposium: Politicised Referrals are Still Referrals Nonetheless

[K.K. Sithebe is a PhD Candidate at the University of Pretoria and a Research Advisor, South African Human Rights Commission.]

Professor Oumar Ba’s States of Justice provides much needed scholarship on the subject of international criminal justice and self-referrals. Prof. Ba provides a meticulous account of how individual African states, particularly Uganda, have since exploited the self-referral mechanism as envisaged in the Rome Statute. Further, this fine scholar provides a detailed account of events, detailing the attitude of individual states and other parties, including the International Criminal Court Prosecutor, prior to the referral. This account provides context for the self-referral and lays bare the political and security motives for the referrals.

The four themes of the book, namely: the strategic use of self-referrals to the ICC; complementarity between national and international justice systems; the limits of state cooperation; and the use of international courts in domestic political conflicts, are not only educational and informative beyond the ordinary reading of subjects such as complementarity and the role of domestic courts, but are also thoroughly canvassed by Prof. Ba. Further, the selection of cases is justified throughout the text.

Equally, one finds that there are gaps in terms of addressing accountability and gross human rights violations in texts that are critical of the ICC and/or international criminal justice. The nature of historic violations of human rights on the African continent and in countries such as Uganda, some of which are detailed in the book, warrant an intervention, and in this case, such intervention is by the ICC – albeit problematic as detailed in the book.

Prof. Ba asks, ‘What mechanisms and strategies do states develop in reaction to and within regimes of transnational criminal justice?’ To add to this, are any of the mechanisms and strategies adopted by the states above reproach? Are these strategies and mechanisms consistent with a post-Nuremburg understanding of justice (see Ba 2020, 2)? Do these mechanisms take into account and balance the rights of the victims (per victim participation) and the accused (see Ba 2020, 2)? Put differently, whilst appreciating that the ICC’s mechanism, particularly that of self-referrals, is susceptible to abuse by states in an effort to address their political challenges (Ba 2020, 4 and 6), the ICC remains a credible platform to address atrocities and provide justice. By Prof. Ba’s own admission (Ba 2020, 160), the ICC has changed the landscape in respect to impunity and has directly and indirectly served as a deterrent.

Similarly, and without providing an in-depth look at the criteria for self-referrals in terms of Article 14, read together with Article 17 of the Rome Statute, post-conflict societies are often not in a position to administer justice, this owing to the weight civil strife generally has on the infrastructure and resources of a country, human and otherwise. The Gaddafi case is a perfect example of this. Further, the reading of the complementarity provision in the Rome Statute does provide, to some extent, a filter, mitigating the ability of states to self-refer for political and security ends. More so, this is compounded by the diversion of accountability mechanisms to target the ‘losing’ side. For example, Judge Anup Singh Choudry of Uganda’s International Crimes Division (ICD) faulted the court for lacking international procedures and prospects of offering an accused person a fair trial (New Vision 2011). Of course, Prof. Ba makes a strong and persuasive case, and details clear instances where the self-referral mechanism was exploited and where the complementarity principle has failed to serve as a filter (Ba 2020, 55).

Therefore, my main concern, and not only with Prof. Ba’s brilliant work (see also Clark 2018), is the absence of a discussion on an ‘accountability residual mechanism’ that acknowledges the pressing desire to eradicate impunity on the African continent (Magliveras 2014, 420-421); that will mitigate the use of international criminal justice for political and security ends; and not blur the lines between peace and justice (Werle and Zimmermann 2019, 3). The idea that international justice is “inherently political” (Ba 2020, 65) holds true for the instances highlighted by Ba in the book. Similarly, bringing perpetrators of gross human rights violations to account; providing victims of international crimes with a platform to detail their violation; and providing reparations for victims is also justice. In conclusion, Russian novelist and philosopher Aleksandr Solzhenitsyn writes: “When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations.”