States of Justice Symposium: A Response

[Oumar Ba is an Associate Professor of International Relations at Morehouse College.]

To write is a privilege. To be read, an honor. It takes unbounded generosity to critically engage with a book and offer an incisive critique in the midst of a global pandemic that has upended our lives.  For that, I owe a profound debt of gratitude to my brilliant colleagues who have made this symposium a highlight of my intellectual journey. This symposium was sketched, planned, organized, and coordinated by one man: Owiso Owiso – whom, dare I say, I only know from Twitter. Merci mon ami. I’m thankful also to the editors of Opinio Juris for agreeing to host this symposium. In what follows, I offer brief comments on the reviews, well aware that the discussions will continue beyond this week.

International criminal law and justice are inherently political. International courts operate in a world made primarily of states. Those states try to leverage the legal institutions and processes, in pursuit of their political and security interests. Such instrumentalization is even more acute when we realize that even states that do not wield global power are able to strategically manipulate the international legal system.  Yet, institutions such as the International Criminal Court (ICC), which claim the “pursuit of justice for victims” and “ending impunity” as their raison d’être, continue to pretend that they operate outside and above political considerations.

Indeed, if my arguments are not wrong, the logical conclusion is simple: the ICC is nearly incapable of escaping such instrumentalization, regardless of the noble and lofty goals that its advocates tout.  This perspective however, Melissa L. Simms argues, “misses the primary goal of the Rome Statute…”  The ICC’s “overriding objective”, Simms contends, “ought to have primacy” over the critique related to the OTP and states that have resorted to self-referrals to neutralize political adversaries or military enemies. My contention though is not that the ICC “has become a political institution”, but rather, that the Court was one from its inception.

As the ICC President himself said at the last Assembly of States Parties (ASP) meeting, “The Court’s founding treaty was adopted during a rare window of opportunity in global politics” (emphasis added). When the ICC personnel or other practitioners argue that they do not venture into politics, that they stay in the realm of “law”, only guided by the Rome Statute, then maybe we should ask: well, where does the Rome Statute come from? For sure the document did not descend upon humankind from the heavens. Political actors (states and non-state entities) with different interests drafted, debated, negotiated, compromised, and adopted – and some rejected – the Rome Statute.

It therefore behooves us to resist bestowing sanctity upon the Rome Statute as a moral document untainted by lowly political machinations.

Moreover, the delimitations (material, temporal, territorial) placed in the mandates of international courts and other mechanisms are at the heart of political calculations and motives. States are political bodies par excellence. And it is as such that they negotiate and draft these documents.  As Kamari Clarke has argued, the very delineation of what counts as core crimes in the Rome Statute, non-retroactivity and temporal jurisdiction, and prosecutorial discretion, are all deeply enmeshed with political (and racial) constructs.

Nabil M. Orina raises an important question regarding state sovereignty and whether the OTP having focused so far primarily on non-states actors is an aberration. The focus on nonstate actors and other political adversaries in the states where the OTP has intervened is certainly a matter of convenience and expediency, and not reflective of an objective assessment and investigation of all parties involved in the commission of crimes that fall under the ICC jurisdiction. And even in the rare instances where the OTP prosecuted former state officials, it has been unsuccessful in securing a conviction – let alone sitting ones.  Moreover, as Phil Clark has shown, states have been eager to self-refer to the ICC in an attempt to assert or restore control – sovereignty as it were – over their territory.  Orina also highlights in his contribution the dilemma that the Court faces: the OTP either accommodating states’ political interests and pursuing cases wherein cooperation is assured, or the Court being subjected to backlash and bullying when it intervenes in “hard” cases.  “All is not well […] and […] there is a consensus that something needs to give”, Orina concludes. I agree.

Emma Charlene Lubaale rightly asked the questions that arise after reading this book: what is the future of the ICC, if a) weaker states are taking advantage of the court, b) stronger states are using their power to “sabotage” the court, and c) national courts often fail to take action? Where do we go from here? And what is the future for accountability for international crimes? These same questions are also raised by Ezéchiel Amani Cirimwani, who in his review, wondered “whether the book needs a sequel.”   He fittingly points to a “taste of incompleteness” as the book “identifies many problems [but] does not propose any concrete solutions.” I believe the upcoming Independent Expert Review will help identify some corrective measures for the Court. My position, however, goes beyond “fixing” the ICC, as I think it is the broader project of international criminal justice that ultimately ought to be reassessed. The project, as many scholars have argued (see for instance DeFalco and Mégret, Clarke, Anghie, Mégret, Grovogui, etc.) is built upon the western (and imperialist and racist) foundations of international law from which the ICC and other institutions operate. My own take is that I’m not sure whether and to what extent the ICC can overcome these challenges.

I agree with Cirimwani that there is often a power struggle between the Court and states, but I would also add that the interests of the states and the Court are not always divergent or in competition. The Court (or at the very least the OTP) and states can in fact have common interests and pursue them collaboratively (self-referrals for instance, or the complementarity principle). Cirimwani proposes a “proceduralising” of the “unwilling or unable” as a way out of the complementarity principle conundrum. As it is the case for all procedures, I agree that a clearer guideline on the assessment of the “unwilling and unable” could be useful.

K. K. Sithebe argues that “there are gaps […] in texts that are critical of the ICC and/or international criminal justice” – I assume my book fits this mold – in the sense that “albeit problematic”, an ICC intervention is warranted because of “the nature of historic violations of human rights on the African continent.” Without engaging in the discussion whether an ICC intervention is justified or not, my argument points rather to the mechanisms and deployment of such interventions – or lack thereof – and their consequences, including the harm or deleterious effects they may cause on the ground, as many scholars have also pointed out (see for instance Labuda, Labuda, Wolf, Clarke, Clark, Rosenberg, Mégret, etc.)   I understand Sithebe’s argument to be that there is demand for an ICC intervention and however flawed the mechanism, “providing victims… with a platform; bringing perpetrators … to account; and providing reparations for victims” also counts as “justice.” Admittedly. But even on that front, the ICC doesn’t have much to show for.

I’m grateful for Nestor Nkurunziza’s remark that my arguments depart from much of the scholarship regarding the ICC in Africa in that the book “emphasizes the prominent role/agency of those African states that have engaged with the ICC.”  The ways in which (African) states, are able to leverage the international legal system in pursuit of their own national and security interests indeed challenges established theories such as the justice cascade. The move towards creating international criminal courts in Africa, both within the African Union framework and at regional levels, are certainly important developments that may open new avenues for accountability both for perpetrators and the international criminal justice system. I agree with Nkurunziza that there is little reason to expect that states would eschew instrumentalizing the African Court in pursuit of their political and security interests. The tweaking of the Malabo Protocol to grant immunity to top state officials is indicative of what is to be expected. One likely advantage for such regional courts however may be, as Nkurunziza pointed out, a reduction of the distances  and a greater sense of  “local ownership.” Such mechanisms would also potentially operate with more practical goals rather than the aspirational ideals that characterize the ICC.

In the final chapter of the book, I discuss the South Africa-ICC relationship only briefly in the context on the fallout stemming from the failure to arrest President Bashir and the subsequent announcement of withdrawal from the Rome Statute. Sithembile Mbete sheds much needed light on the balancing between domestic political struggles in Pretoria and South Africa’s regional power status, which also shows, as she writes, that “the sources of international justice are irrevocably local.”  Thanks to Mbete’s insights, it seems then that South Africa both during its tenure on the UN Security Council and afterwards, has behaved exactly as the book’s analytical framework on the limits of state cooperation with the ICC and the transposing of the Court into the domestic political arena would indicate.

In the end, as Kelly-Jo Bluen so eloquently reframes it,  I suggest that “the yellow brick road between Nuremberg and The Hague”, which purports to chart the trajectory of humanity’s progress, from the darkness of (international) lawlessness to the promise of a civilized era of justice (yet to come) may indeed not be as straightforward as previously thought, or anticipated. “Cascade scientism”, as Bluen argues, because it focuses on “facts” and it places courts, commissions of inquiries, prosecutions, and trial verdicts at the heart of the justice agenda, obscures the troubling aspects and outcomes, and the normative foundations of “international justice.” Norms and institutions are perverted in the pursuit of narrow interests, at the detriment of “justice for victims.” Ultimately, the story of hope and progress that international criminal justice tells itself may indeed just be reflective of, what  Mégret termed “the feeling that the [ICC]’s ultimate constituency is nothing but itself.”  Maybe someday the Court will revisit its “archive of teleology and hubris” and acknowledge that it can only deliver justice that is political, selective, and partial. In the meantime, ICL continues to overpromise and underdeliver.