States of Justice Symposium: The Hazy Future of International Criminal Justice in Light of Africa’s Interaction with the ICC

[Emma Charlene Lubaale is an Associate Professor of Law at the Faculty of Law of Rhodes University in Grahamstown, South Africa.]

This is an unusual piece of work. As opposed to merely engaging with theoretical rules and existing literature on the subject of complementarity; means of triggering the ICC’s jurisdiction; interaction between states and international law, etc., the author has apparently set himself the excellent task of delving into an empirical analysis of how theoretical principles and arguments in literature have played out. The author does this by demonstrating why “weaker” states in the international system (including those in Africa and beyond) would be keen on committing to international legal regimes that ideally have the effect of limiting their sovereignty. His work constitutes a critical analysis of the scholarly literature on the strategic use of self-referrals to the ICC; complementarity between the national and the international justice systems; the limits of state cooperation with international courts; and the use of international courts in domestic political conflicts. He draws on empirical evidence from “weaker” states including Libya, Kenya, Uganda, Cote d’Ivoire, Sudan, Gabon, the DRC, Mali and the Philippines to validate the theoretical arguments long advanced in the literature. The author also interestingly engages with the ICC’s posture in its dealings with these so-called “weaker” states. He clearly demonstrates how the ICC has severally played along and, in some cases, fallen prey to these states’ shenanigans. Throughout the book, the author draws on the empirical evidence in the various states referred to with a critical mind which takes no action/inaction by both states and the ICC for granted. The book will therefore not fail to be of benefit to scholars of international law generally, international criminal law and African studies.

The monograph is arranged in a unique manner. From a section on Regimes of International Criminal Justice; States of Justice; Outsourcing Justice; the International Politics of Justice; The Limits of State Cooperation; The Court Is the Political Arena; to International Justice in a World of States, the author does an excellent job on flow and chronology. Each of these chapters engages with the scholarly literature and debates on the four themes that form the crux of the author’s analysis (i.e. the strategic use of self-referrals to the ICC; complementarity between the national and the international justice systems; the limits of state cooperation with international courts; and the use of international courts in domestic political conflict). Delivering on what he promises in the introductory sections, the author neatly draws on the practice of different African states (and beyond) to either validate or disprove the arguments advanced in the existing literature.  Each chapter ends with a useful summary and the final chapter contains a summary of the conclusions of the entire work. While various authors have written on some of the themes that the author focusses on, there is no denying that the organisation and flow of the book is original, clear and logical.

The crux of scholarly writing lies in contributing to existing literature as opposed to regurgitation of information. States of Justice is not just a refreshing addition, but also, a contribution to the existing body of literature on international criminal justice in the ICC era. A thorough reading of the entire book reveals that the themes that the author canvasses have very much been dealt with in a number of scholarly works. Indeed, the author does concede by observing as follows: “It is notable that some arguments have been canvassed in previous studies.” Against this backdrop, the author does a good job by acknowledging the literature that has previously canvassed these various themes. But despite there being literature on the said themes, there is clear evidence that the author has in so many ways carried the discussion further in all the themes covered. In my opinion, the biggest scholarly contribution that this book makes is its development of a theoretical framework that sheds light on the array of actions/inactions and conduct of the various so-called weaker states and the ICC. The author critically engages with the empirical studies across the states discussed. Even without labouring to make it explicit, the author ensures that any reader is able to discern a consistent pattern in states’ engagement with the ICC i.e. instrumentally and strategically using the international justice system to their advantage. Moreover, while previous studies have focussed on some of the countries he covers in the book, the author casts the net wider by covering several other “weaker” states including the Philippines. Strategic use of international criminal justice by these states to their advantage constitutes a golden thread that runs through the entire discussion. All considered, it will be readily admitted that this level of engagement is original.

The author’s methodology which is an analytical account anchored in an empirical analysis is appropriate. He engages with the theoretical and empirical literature succinctly and the conclusions he draws based on the said analysis are logical. His writing across the chapters communicates simply, excellently and meticulously. In his argument, analysis and discussion, the author carries the reader along by constantly linking the analysis in all the chapters to the original aim of the book which is a demonstration of how weaker states strategically use international criminal justice to their advantage. The author has demonstrated an incredible ability to evaluate and critique theoretical and empirical literature on all four of the themes canvassed in a manner that is not just interesting to read but equally delivers on the aims of the book.

Worth noting, however, the area that the author writes on is one that has garnered a plethora of scholarly research over the years. The literature on a number of themes canvassed in the book has featured in journal publications, book chapters and monographs. Thus, in the course of reading the book, anyone who has engaged with the pre-existing literature on these themes cannot help but take a step back and question – Have I read/heard this narrative/ argument/discussion before? This could be because, as already alluded to, this area of international criminal justice is one that has been widely researched in recent times. It takes one reading the book entirely to be able to make sense of the contribution the author makes. And as consistently noted, this contribution lies in the book’s recourse to empirical evidence and use of the said studies to establish a pattern on the actions/inaction of both weaker states and the ICC.

Overall, States of Justice is a well-conceptualised and written monograph. But in light of the neat and thorough exposition made by the author, one is curious to know from him – What is the future of international criminal justice? 1. If weaker states are out to use the ICC to their advantage; 2. If stronger states are seemingly too powerful and equally using the power they possess to sabotage the work of the ICC, let alone allow for prosecution of their citizens; and 3. If national courts are hardly prosecuting at the local level because heads of states are often implicated in the alleged atrocities; where do we go from here? Is there a future for accountability for international crimes? Could it be that all we are left with is development of international criminal law jurisprudence as opposed to actual justice for victims of international crimes?