States of Justice Symposium: Quo Vadis? A Review of Oumar Ba’s ‘States of Justice: The Politics of the International Criminal Court’

[Nabil M. Orina is a Lecturer at Moi University, School of Law (Kenya) and a Doctoral Candidate at City University of Hong Kong.]

Various studies have theorised the relationship between the ICC (the Court) and states. In these studies, scholars have sought to understand what normative effect the Court has on situation countries through the principle of complementarity (see, for instance, Nouwen). It is apparent from any discussion on the Court’s broader normative impact that the political dynamics of intervention play a big role in understanding the sort of influence the Court may have on the conceptualisation of justice for atrocity crimes. Oumar Ba’s book is an important plug in understanding how state behaviour affects how international criminal justice is applied and received. States of Justice: the Politics of the International Criminal Court aims to explore three issues: how states respond to norms of international criminal law; to what extent presumed weaker states have instrumentalised the ICC in addressing their political and military interests; and what lessons are apparent from the mechanisms of international criminal justice in regard to the primacy of states’ interests.

By theorising the Court’s intervention or threatened intervention as occasioning certain behaviour and responses on the part of the states that reflect their domestic political and security interests, the book’s main thesis is masterfully developed through examining the main themes of state – ICC relationship that are apparent in the Court’s existence, so far. First, the book explores the strategic use of self-referrals by states and the Court to deal with a domestic rebel problem and to achieve cooperation, respectively. Second, under the theme of compliance, the book questions why states ratify the Rome Statute yet seek to undermine it when the Court exercises jurisdiction. Through the theme of complementarity, the book focusses on the inconsistent practice of the ICC in regard to complementarity. Lastly, the book discusses the Court’s entanglement in domestic politics and how those with political power have instrumentalised law and institutions. Through these four themes that cut across most situations before the Court, the book aims to offer perspectives into the interplay between state interests and norms of international criminal justice.

States of Justice employs the use of a theoretical framework and extensive fieldwork conducted in Uganda, Kenya and Mali. Although primarily focussed on Africa (for the obvious reason that all the situations before the Court from states that are presumed weak are from Africa), the book engages with the interplay of politics in international criminal justice that resonates with global perspectives in this regard. The book is an important complement to an earlier one by David Bosco, Rough Justice (OUP2014), that focusses on how powerful states seek to control the ICC.

The book makes a significant contribution to literature on the dynamics of international criminal justice and the dilemma faced by the OTP in its decision-making process. The explored case studies are all drawn from presumed weaker states, but they project a wider problem of the reproduction of global politics in international criminal justice through labels such as weak vs. strong states, and cooperative vs. adversarial states. By focussing its attention entirely on cases from the African continent in most of its formative years, the ICC has reinforced the divide between presumed weak and strong states to the extent that even when the Prosecutor sought to launch the first major investigation that implicates a major world power in Afghanistan, the result has been a strong rebuke from the US government. Even within the weaker states where the ICC has operated in most of its existence, state agents who have been targeted have found it easier to attack the ICC on the basis of perceived bias against weaker states. The pushback has resonated well especially when it is punctuated by sentiments of neo-colonialism (see, Lugano). Consequently, the result of the open political gambling by the Court in its formative years has been the erosion of its legitimacy (see, Okafor and Ngwaba).

Discussion on the reach of international criminal justice vis à vis states inevitably touches on the question of sovereignty within the Rome Statute system. In Chapter 5, Ba wades into this debate albeit cautiously. The author questions whether the ICC is incompatible with state sovereignty but does not address the foundational elements of this debate like the rationale behind the principle of complementarity. Similarly, when interrogated alongside the book’s main claims, it may be seen that weaker states instrumentalise the Court to achieve their political or military goals of resolving conflicts within their borders and these aims outweigh any sovereignty concerns these states may have.  Plausibly as well, a state facing an existential threat due to a long-standing armed conflict may embrace the ICC as a means to ‘restore’ its sovereignty. As argued by Cryer, ‘a lack of sovereign authority’ may lead to international crimes. This scenario may be the antithesis of the erosion of sovereignty argument.

The reality of the limits of state sovereignty is however brought out well in the book when considered against the backdrop of the court’s sole focus on non-state actors in its first two situations. This is a matter that has been subject of academic debate on whether the Court should even focus on non-state actors (see,  Mégret). According to former ICC Judge, the late Hans-Peter Kaul, the Court was only meant to intervene in matters that were beyond the sovereignty of a state. These, according to him, were matters where a state’s objections on the basis of sovereignty would be irrelevant as the matter would concern the international community. Judge Kaul’s logic therefore implied that the Court would only concern itself with crimes of states and state-like entities rather than non-state actors. Indeed, the essence of the Court is to prosecute state criminality as argued by Sands.  On the contrary, the Prosecutor has largely concentrated on cases that would be considered easy cases that were referred by states.

Coming at a time when the Court has faced immense criticism in regard to its work, the book masterfully lays out the dilemma the court has had to confront. By focussing on what can be considered as easy cases, the Court has been criticised for accommodating states’ political interests. On the other hand, by attempting ‘hard’ cases, the Court has faced resistance. The book discusses at length the challenges the Court has faced when investigations are targeted at state agents. The situation in the Republic of Kenya is a case in point. In this regard, the book details a lot of what can be regarded as Kenya’s efforts to derail the cases against its leaders. The Prosecutor’s approach to these cases has also come under scrutiny and more so from an independent report commissioned by the OTP.

It is clear from the book that the Court has faced the biggest tests on its legitimacy. This book could not have come at a better time. It is an affirmation that all is not well and comes at a time when there is general consensus that something needs to give. The book makes clear and precise arguments on the ‘states of justice’ informed by its theoretical framework and the case studies. From the book’s deep analysis, it can be inferred that states will continue to instrumentalise the Court when it suits them and stonewall it when it threatens their interests. States have no problem shifting from one position to the other as shown in the case of Ivory Coast. What lacks in the book, however, is a bolder prediction on what the ICC-state relationships portend for the future of international criminal justice on the backdrop of the seemingly insurmountable challenges the Court faces.