States of Justice Symposium: States of Justice, Cascade Scientism, and Snow White in The Hague

[Kelly-Jo Bluen is a PhD candidate at the London School of Economics and the editor of Millennium: Journal of International Studies responsible for the conference and special issue on knowledge production in International Relations. She works on race, gender, coloniality, and international justice.]

In States of Justice, Oumar Ba provides a crucial latticework for thinking through the relationship between states and the International Criminal Court (ICC). Through an artful admixture of theoretical dethroning and empirical granularity, he shows both the ICC’s extensive engagement in politics and how states act politically, precisely when they are cooperating with the Court, the terrain often positioned as apolitical. In so doing, Ba has produced a truly path breaking work that challenges conventional logics and safe assumptions in deeply important ways.

I finished reading States of Justice on 17^th July, Day of International Criminal Justice. I would love to say this was deliberate, but in truth, the book is so compelling that I read it voraciously without noticing the move between midnight and pumpkin. I could have said it anyway – for Cinderella symmetry. Of course, Prince Charming in The Hague would be the worst story written; ICL has no place in fairy tale.

Fairy tale, by contrast, is the lingua franca of ICL. Like fairy tale, it relies on narrative and performance. The ICC, for Ba, ‘is a place of staged performance where various actors deploy their political narratives and pursue their political interests’ (Ba, 2020, p. 113). It has heroes, villains, and victims. There is a teleological arc towards progress, spatially and ontologically mapped onto the yellow brick road between Nuremberg and The Hague, which, Ba argues, ‘charts the trajectory of humanity’s progress, from the darkness of (international) lawlessness to the promise of a civilized era of justice’ (Ba, 2020, p. 158).

In States of Justice, Ba is coming for our fairy tales.

Locating ICL’s fairy tales with Ba on international justice day is like riding a bicycle with training wheels. The statements, videos and hashtags of the last decade’s worth of July 17^ths are an archive of teleology and hubris. The ICC, we are told through anniversary campaigns, fosters, ‘a more just world’, embodying ‘humanity against crimes’. In Ba’s characterisation of the same decade, the ICC does not warrant grandiose celebration, it is so deeply implicated in unjust politics that it ‘may need to acknowledge that it can only deliver justice that is…political, selective, and partial’ (Ba, 2020, p. 159).

The ICC, then, appears as impervious to its status as ‘a court in permanent crisis’ (Ba, 2020, p. 158). It is apt then, that, on International Justice Day this year, the ICC launched a ‘resilience’ campaign. Encountering this with Ba points not to the calls to resilience of campaign architects –which focuses on resilience in adversity – but to poetry in irony, for what Ba makes apparent, is just how resilient ICL’s fairy tales are.

Ba not only reveals fairy tales by juxtaposition, but provides his readers with the apparatus for thinking of why these fairy tales are so resilient. We might attribute this resilience to stardust. The stardust in Ba’s world is the justice cascade or what Sikkink and Kim (2013, p. 270) describe as the ‘rapid and dramatic shift in the legitimacy of the norms of individual criminal accountability for human rights violations’. In cascade logics, more prosecution is evidence of more justice. We must believe that prosecution is interchangeable with justice. For this to work, we must understand that the ICC embodies justice. By extension, those who cooperate are on the side of justice and those who don’t are ‘damaging to the wider effort to establish the ICC as an effective institution and to entrench the anti-impunity norm’ (Mills & Bloomfield, 2018, p.102). The mechanism through which justice ‘cascades’ is norm diffusion, or the adoption of a normative shift towards the importance of prosecution.

In refusing the cascade, Ba joins scholars who question the normative foundations of the project. We may read his work in generative conversation with Clarke’s (2019: 55) rejoinder to the cascade as ‘legal encapsulation’, Nouwen and Werner’s (2015)  critique of the monopolisation of global justice, or Mégret’s (2016) contention that ICL displaces other thinking on justice. We may read it in conversation with Tshepo Madlingozi’s (2020: 48) contention that, ‘[transitional justice] is a central discourse, a central practice that affects all of us in post-colonial countries. All of us are engaging it without knowing it’. Ba shakes the foundations of this logic empirically. On the one hand, he shows that prosecution is not justice. By revealing the ICC’s extant but disavowed implication in politics, he shows it to be complicit in injustice. In Uganda, for example, he carefully unpicks the ways in which the ICC has limited its investigations to LRA actors, in turn, demarcating the boundaries of the humanity and its outsiders. On the other hand, he challenges the cascade’s causal mechanism, showing that cooperation with the ICC is irreducible to norm diffusion by taking aim at self-referrals whose proliferation is well-rehearsed as signalling the relinquishing of sovereignty for cosmopolitan justice. But Ba meticulously illustrates the instrumental deployment of self-referrals by states to externalise domestic conflicts, safe in the knowledge that the state exists outside the remit of the law.

In one sense, we might read this as a vital empirical corrective. But it does more than that. Reading Ba compels me to think of one of the mechanisms for the resilience of the fairy tale despite evidence to the contrary; the simultaneous representation of cascade as normative aspiration and empirical fact. ‘[C]riminal prosecutions’ are on the one hand, a normative objective ‘unrivaled [in importance] compared with that of other accountability measures’ (Sikkink & Kim, 2013, p. 270). On the other hand, they are the indicators through which we may measure justice; the variables operationalizing the cascade in a high N study by Sikkink and Kim (2013), for example, are trial verdicts, prosecutions, and amnesties; the rise in the former and the decline in the latter are evidence of increased justice and assumed as evidence of norm diffusion. We are invited to question neither the operationalisation of justice as prosecution nor the causal mechanism for its cascade. We must at once accept that such a project is necessarily normative because there is an arc towards justice, but also participate in the belief that the empirical is abstracted from the normative; it is science and it produces fact. The scientism is disciplining and foreclosing.

For me, then, one of the most significant contributions of States of Justice, is its upending of this cascade scientism, through which he refuses both fairy tale and the stabilisation of fairy tale as fact. Like good fairy tales, in ICL’s, the cascade stardust is less significant than the indefatigable belief in the stardust. Ba contributes significantly to unsettling the belief.

The violent vanity of fairy tale and fact

If fairy tale offers little explanatory or descriptive value, I am interested in what it does do. Ba argues that progress narratives, ‘[view] crises of the [ICL] project as simple bumps in the road toward a more perfect world of justice rather than the structural flaws rooted on the foundations of the project itself’ (Ba, 2020, p. 159). If fairy tale negates engagement with structural flaws, what is the relationship between the production of fairy tale itself and the production and maintenance of these structural flaws, and how power, race, and gender inhere in this production?

On the one hand, I am interested in what it means for Nuremberg to The Hague to be the yellow brick road, with its criminalisation of the Nazi Holocaust, while having eschewed criminalisation of colonial genocide. Grovogui (2001, p. 445) reminds us that ‘[n]ot even the Algerians murdered on V-Day (May 8, 1945) in Sétif by their former World War II French trenchmates could be considered victims’. How might the fact that the international legal architecture’s originary moment, and the fairy tale it retains fidelity to, was predicated on the silencing of atrocities committed against Black victims shape the justice in the contexts Ba richly invites us to consider?

If fairy tale invents history, in its imagined factuality, it also governs an artificial temporality, where accountability depends on history’s abstraction from present and future. Kamari Maxine Clarke (2019, p. 89) reminds us that, the institutionalisation of liberal legality emerged through ‘a moral call to individualize responsibility for violence that in most cases has its roots in histories of colonial plunder and structural inequality, economic restructuring’. Taking this into account, how might we think of the ways in which French and British colonialism shaped the conflicts precipitating ICC intervention Ba engages?

And what ‘impunity gaps’ (Clarke, 2015) are engendered by the fairy tale’s cementing of ahistorical individualisation in the context of coloniality and racial capitalism? Sujith Xavier and John Reynolds (2016, p. 981) argue that the ICC delineated crimes, ‘cannot address many of the collective interests of global South peoples that are impacted by the structural violence of economic coercion, resource extraction, global wealth distribution and enforced impoverishment’. We might read this in conjunction with other works on capitalism in ICL by scholars such as Sara Kendall, Tor Krever, and Christine Schwöbel-Patel. We might read this in conjunction with Madlingozi’s (2020: 48) assertion that, ‘[transitional justice] is designed to say “do not decolonize,” “do not fundamentally restructure the economy”’. How might we push further then on the operation of capital in the logics of outsourcing of justice deployed in the book? In the chapter on Côte d’Ivoire, for example, the CFA crisis appears as background context for violence. How might engagement with what fairy tales produce – in the shape of eschewing of the structural and the raced politics of culpability – render the crisis and the colonial residue of such violent fiscal arrangements a feature of foreground not background in our understandings of justice.

How might we read all of this against the cascade’s fidelity to a notion of accountability encompassed by carceral punishment alongside global calls for abolition? Through these questions, I am interested not in answers but because Ba’s deeply important work invites ongoing conversations to think through collectively how, if fairy tale imagines the ICC as the clothed emperor, the fact that he is the emperor disciplines this collective pretence?

Inevitable fairy tale and elusive fact

Of course, fairy tales are a political device; their stardust conceals violence as it maintains oppression. The most significant contribution of the book for me lies in its powerful unpicking of the relationship between fairy tale, epistemology, and the materiality of fact in ICL. In revealing how normative aspiration is rendered as unimpeachable fact, Ba reminds us that fact is the currency of ICL, hierarchically superior to non-fact.

Of course, the representation of fairy tale as fact conceals they ways in which the idea that there exists objective fact and unassailable truth is an epistemological and political position. Its purported innocence occludes the ways in which structures of oppression under racial capitalism and their analysis within the colonial episteme shape that which can be understood as fact and that which is relegated to inferior non-fact. To sustain itself, it must erase that which does not align with fairy tale mediated as fact; to stabilise itself, it must stabilise violence, anti-Blackness, and coloniality. In unsettling the justice cascade, Ba reveals how such a fidelity to fact is empirically elusive, its claims unevidenced. In this sense, epistemologically, politically, and practically, the pursuit of fact is itself a fairy tale.

If Ba’s critique is levelled at non-facts recast as fact by cascade scientism, perhaps we might think in turn about those concealed by the legalism of ICL. Fact is central to the mechanisms of justice. The ICC must trace financial flows, locate weapons, it – and, thinking with Tallgren (2014) we around it –  must enumerate the dead, we must provide ‘objective’ accounts of trauma, refuse its flux, its movement, fix it eternally in the moment of its telling. In so doing, we must participate in the violent calculus of rendering violence as fact such that it is legible to the law. We must dehumanise to render human for ICL’s nebulous colonial humanity.

We must also pretend that the task of locating fact in atrocity is not impossible. As Nichanian (2009, p.1) tells us, ‘[g]enocide is not a fact. (Le génocide n’est pas un fait). Genocide is not a fact because it is the very destruction of the fact, of the notion of the fact, of the factuality of fact’. With Ba, perhaps, we may begin to think about the ways in which epistemologies of fairy-fact – and some kind of we – shape and discipline, foreclose and sediment horizons of justice.