“Why is it,” Oumar Ba asks at the very end of “States of Justice: The Politics of the International Criminal Court,” “that the Court seems able to deliver justice only on behalf of states rather than for victims and communities affected by atrocity crimes?”
The question is an important one. The International Criminal Court (ICC) was, after all, created with the lofty ambition of “put[ting] an end to impunity for genocide, crimes against humanity, and war crimes.” Central to this goal was the idea that no one, no matter how powerful, should be beyond the reach of international justice. Everyone, even heads of state, should be equal before the law.
In practice, it has been clear from the start that power is baked into the operation of the ICC. The United States heavily influenced the drafting of the Rome Statute, only to turn around and decline to join the Court. Security Council veto powers are insulated from ICC investigations they don’t consent to. Powerful nations can protect their allies.
All of these examples show that the distribution of power in the international system has a profound impact on the ICC’s operations. But Ba tells us something new about the relationship between state power and the ICC’s ability to deliver impartial justice: specifically, that weaker nations in the system are also able to leverage their “state-ness” to obstruct, influence or instrumentalize the court.
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States of Justice is a powerful corrective to two prominent strands in the discourse about the ICC: assumptions that the biggest challenge for the Court’s entrenchment is the opposition of powerful states, and oversimplified critiques of the Court as a neocolonial institution that “targets” Africans.
Ba carefully lays out a typology of how African countries engage with the ICC, showing how they strategically self-refer, engage with the Court’s complementarity regime, and shift between compliance and noncompliance with ICC directives to both influence the Court and manage their own domestic political imperatives.
Ba shows how each of these approaches exploits the formal prerogatives of statehood, that is, global recognition as a legitimate governing authority. An example of this is the collapse of the prosecution of Kenyan President Uhuru Kenyatta for his role in the 2007-2008 election violence, following the intimidation of potential witnesses.
Witness intimidation is a strategy available to anyone willing to commit violence but is especially easy for those in charge of a national security apparatus. Leaders, even in weak countries, can use their country’s police, military and intelligence services to commit crimes with impunity, manipulate and intimidate witnesses and, ultimately, escape justice. Because they have juridical sovereignty — legal, formal control over governing institutions — they are free from most checks at the international level.
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Critically, while juridical sovereignty is fundamental to the way these countries engage with the ICC, their level of power or status in the international system is emphatically not. Weakness or contested de facto sovereignty (that is, physical control over territory) may in fact work to their advantage. Ba observes, for instance, that in both Uganda and the Democratic Republic of Congo, “the states’ instrumental use and manipulation of the ICC was facilitated by ICC personnel’s lack of understanding of the national and local political dynamics.”
Among the most interesting episodes chronicled here are the efforts of successive Côte d’Ivoire regimes to involve the ICC in domestic political struggles by inviting it to investigate crimes that occurred in disputed elections. Ba shows how deeply unprepared the ICC’s Office of the Prosecutor was for Côte d’Ivoire’s past and present leaders to “displace the Ivoirian political arena to The Hague courtroom” and for the ways in which its own pragmatically driven choices about whom to investigate, and in what order, would play into the government’s hands.
Looming in the background of Ba’s argument is the fact that the International Criminal Court is a relatively new institution. The case studies here offer insight into open questions about where the boundaries might lie for the Court’s jurisdiction over countries that are “unwilling or unable” to prosecute mass atrocities, and the limits of the ICC’s ability to manage leaders who refuse to cooperate.
But they also touch on deeper questions about the Court’s future. Precisely because the ICC is so new, and its caseload so limited, the episodes Ba considers are of tremendous importance to determining its future trajectory. They serve as the cases that countries and organizations will look to in forming their understanding of the Court’s capacity to deliver justice and countries’ ability to resist its efforts. Ba’s argument that the ICC can and will be instrumentalized by all countries, even presumptively weak ones, is a challenge to assumptions that the arc of the international system is bending toward justice.
It’s also Ba’s answer to the question posed at the end of his book. International institutions are created by governments in their own image. And that means that even a court that is ostensibly dedicated to the neutralization of power and the protection of individuals will always be a tool most easily wielded in the service of state interests.
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Kate Cronin-Furman is an assistant professor of political science at University College London. She studies human rights and the prevention and punishment of mass atrocities.
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