Dr Phil Clark, of the SOAS University of London, has never been shy about speaking his mind about the International Criminal Court (ICC). Warts and all. So much so that the British public relations firm BTP Advisers, which spearheaded the well-choreographed campaign to discredit the ICC in the service of its client President Uhuru Kenyatta of Kenya, back in September 2012 made several attempts to convince Dr Clark to join its campaign against the Court. BTP Advisers first reached out to Dr Clark by cold-calling him on 2 September 2012. Their request then was for him to write an opinion piece critical of the court. Dr Clark politely declined.
BTP Advisers second attempt to recruit Dr Clark as an influencer for Mr Kenyatta came just a day later but was less direct. Using a film company, Gizmo Films, as a proxy, BTP Advisers tried to hire Dr Clark as a talking head on a documentary about the Kenyatta ICC case.
Dr Clark didn’t care to reply.
With the publication of his latest book Distant Justice: The Impact of the International Criminal Court on African Politics by Cambridge University Press, Dr Clark finds himself contending with the same old problem – how his work is interpreted by the ICC’s critics:
“It is often said that the worst thing that can happen to an academic is to be ignored, but sometimes it’s a virtue to be ignored by the wrong people,” he laments.
Leaders in Kigali, Washington and in London may see “Distant Justice” as adding credence to their views on the ICC.
“I worry about becoming a footnote to some nefarious American policy,” Dr Clark told Justice Hub in Nairobi, Kenya, one of the stops on his African book tour before he headed off to Gulu, Uganda to launch the book in the community which contributed much to his research.
#DistantJustice launch in Gulu. pic.twitter.com/a83xEcOYkD
— Phil Clark (@philclark79) May 17, 2019
Dr Clark hopes that through book tour and interviews such as this one for our #MyJustice series, he can help everyone see the book in the light he intended: “as a piece of constructive criticism based on a lot of empirical work done in the very communities where the ICC has been intervening for a long time.”
Justice Hub: What reactions have you been having to the book on your tour so far?
Dr Phil Clark: The reactions have been quite mixed. I think it shows that within Africa the ICC generates very different perspectives depending on where you are. For example, in South Africa, there’s been generally a lot of receptivity to the book because there is a real valuing there of their own Truth and Reconciliation Commission (TRC) experience and an understanding that as imperfect as the TRC was it was very important for the transition in 1994, including the use of an amnesty.
What’s been interesting to me is that I got more pushback in Addis Ababa (Ethiopia) amongst African Union (AU) officials than thought I was going to get. I had various meetings there with the Department of Political Affairs and the Department of Humanitarian Affairs and, in essence, what they were saying was that they think my book, which I should preface they hadn’t read yet, was overstating the extent to which African states can actually deal with serious crimes on their own.
In Addis, they argued that my argument expects too much of African states that up until now have shown very little willingness or very little capacity to actually deal with major atrocities. This is ironic given that the African Union have just put out their transitional justice policy which puts a massive premium on states doing these things on their own terms.
What it suggested to me was that at the level of the African Union there are some very stark divisions about where the continent goes from here in transitional justice terms. There are some actors who are saying we want to do this in our own way. And there are others that are extremely sceptical of that. What I would put that down to is a certain amount of chauvinism on the part of some African states towards some of their neighbours. There has often been a view amongst some of the hegemonic powers in Africa – I’m thinking here especially of the likes of South Africa, Nigeria, Egypt and Senegal (to a certain extent) – that believe that they, broadly speaking, have their own house in order, but they’re very sceptical about what’s happening in the rest of the continent.
For example, a senior AU official said to me two days ago when I was talking about Congo that “look, there is absolutely no way that the DRC could possibly deal with serious crimes on its own.” When I pointed out to him that in fact the Ituri courts now have a substantiated a track record of dealing with not just serious cases but cases involving Congolese army officials, he looked at me aghast as though it must be inventing things. So I left him a list.
Justice Hub: He had no sense of the cases at all?
Dr Phil Clark: No sense at all. In many respects that caught me off guard. Having read the AU transitional justice policy, I had gone to Addis expecting that there would be a sort of openness and resonance with my argument. In fact, there was quite a lot of pushback there. What that shows is that these issues are complicated and different African states have different interests in these debates about domestic justice. A book like this is tapping into those very different perspectives on the continent at the moment.
Justice Hub: Is the experience of the ICC different in different countries?
Dr Phil Clark: Hugely. This is yet another reason why the book is already resonating differently in different places. I anticipate that is going to continue as the book tour unfolds. I must confess I really girded my loins before coming here to Nairobi because I’ve always seen that the ICC is talked about and had been received very differently here from how it had been in the two main case studies in my book which are Uganda and the DRC.
Amazing launch for #DistantJustice in Nairobi today. Great audience, fantastic presentations @alai_tina, @lydmm & @Njokiwamai, expert chairing @Gladwellotieno & @ItsGeorgeKegoro. Books sold out (left another box with @africog). Grateful to @africog @khrc @KPTJ_Kenya for hosting. pic.twitter.com/mTmQ23hrDI
— Phil Clark (@philclark79) May 10, 2019
In Kenya, from the outset, there was huge support for the ICC especially amongst the Kenyan civil society and victims’ groups and even, I think, amongst some proportion of the everyday population. This is in stark contrast to the way the court was received in Uganda for example where there was vociferous civil society opposition from day one. That simply reflects the very different dynamics that were operating on the ground when the ICC got involved.
In Kenya, a key theme has always been the issue of impunity and a belief that the state hampers any attempt at domestic justice whereas in Uganda the ICC intervened into a situation that was dominated by all of the dynamics around the Juba Peace Talks [between the rebel LRA movement and the government]. Uganda clearly became the epicentre of the whole “peace versus justice” debate, which wasn’t so much the environment here in Kenya at the time.
That’s one of the things I’ve tried to analytically capture in the book. We can’t talk about the ICC in Africa as though this is a homogeneous, undifferentiated process. The court has resonated and has operated differently depending on where you’re talking about. It has confronted different audiences and different expectations depending on where you look.
All of that said, one thing that I’m finding with this book tour at the moment is even in places like Kenya where there were lots of hopes and dreams about the ICC when it first got involved, most of that has dissipated into real anger and disillusionment. There’s a real sense not only that the ICC made a hash of the investigations here and created enormous problems for victims, but it then upped and left without any plan put in place to try to minimize the damage in its absence. That shows that even in places where there was perhaps a favourable reception to the court, that is really no longer the case. What we’re now seeing is a huge amount of disappointment and disenchantment with international justice as a whole.
Justice Hub: Apart from Ethiopia, South Africa and Kenya is there any other country where the book has had a noteworthy response?
Dr Phil Clark: Yes. I’ve already presented parts of the book in Rwanda and Uganda. The Rwandan experience is worth talking about a little bit because when I talked about this book in Rwanda last year one of the things that a lot of Rwandan elites got very excited about was my argument that the ICC is structurally incapable of dealing with cases involving sitting government officials. In many respects this was music to the ears of the Rwandan government, because they’ve obviously been accused of crimes in Eastern Congo and elsewhere and so in the same event in Kigali I had to go to great lengths to say that it was by no means a good thing that the court couldn’t deal with this category of actors.
The follow-up point was arguably more important. It was that it’s now incumbent on African states to show that they are serious about delivering justice, not just for non-state actors but all for government officials. It’s all well and good for them to accuse the ICC of meddling, interfering and damaging the domestic terrain but if those same states now can’t show that they themselves are serious about dealing with serious crimes including government atrocities then we’ve got a deeper problem. That event in Kigali was pleasing in the sense that the book will resonate well there but it is resonating in highly problematic ways.
Let me give you another example outside of the African context which has also given me pause for thought. I have also presented the book to the British government. I have had several roundtables with the Foreign & Commonwealth Office (FCO), the Department for International Development (DFID) and the Attorney General’s office. Again the book is resonating well in British government circles. The British government, of course, at the moment is taking a stance that is highly critical of the ICC. We saw the British government’s statements around the Assembly of States Parties (ASP) last year really putting a shot across the Court’s bow. At least part of my argument in the book is resonating with some of the British government’s own criticisms of the Court.
When I pushed that issue a bit further in these discussions in London what became clear was that many British government actors liked my argument because they put it in a Brexit framework. They see my criticisms of this International Court based in Hague as resonating with their own Brexit criticisms of interference by the European Court for Human Rights and other European judicial bodies. Now, I am an ardent Remainer and I am aghast at most of what is happening around Brexit at the moment.
What’s interesting about this is that my arguments are resonating in places that sometimes make me feel slightly uncomfortable. It means that when you start to talk about international intervention, issues of sovereignty and issues of Head of State Immunity, these things mean different things in different places. As an academic, you may have one intention in building these arguments but they can get picked up in ways that you never really intended. Then I think as an academic you then have to respond to those responses basically to say: “this is not what I meant” and “that is not the framework.”
That is something that any scholar really needs to think about. You might think that you’re arguing one thing for one particular reason. But if it emboldens other viewpoints and emboldens views that are designed to ensure impunity or, in the case of the UK and Brexit, to ensure massive isolationism and political suicide by an entire nation, then I think as an academic, you have to have a response to that. You can’t simply say “well I finished the work and I don’t really care how it gets picked up.” You do have, to a certain extent, take responsibility for how it resonates in the world. A tour like this is important because it’s also about for me trying to collect not just the places where I think my argument is being well understood and well received but also to try to collect the places where my argument may be misused and to try to potentially minimize some of the damage of that.
Justice Hub: How has your book been received in America?
Dr Phil Clark: I launched the book in New York about six weeks ago. It was three days after the US had instituted the visa ban for ICC officials. The timing was extraordinary. It was a packed house at the Open Society and the debate was really vociferous. Even in that room, you could see that my argument was resonating for people who really believed in the ICC but would like to see it do better. But my argument was also equally resonating amongst the John Bolton [National Security Adviser] supporters who wish to see the ICC dead and buried tomorrow.
To be honest I walked away reeling from the US event. Now, it’s useful for book sales because it means my audience is very wide but again you can end up with some pretty uncomfortable bedfellows. I worry about becoming a footnote to some nefarious American policy. It is often said that the worst thing that can happen to an academic is to be ignored but sometimes it’s a virtue to be ignored by the wrong people.
Justice Hub: Do the experts you have discussed the book with think the ICC needs fixing?
Dr Phil Clark: Yes. This is one of the things that happens when you take as long as I have to finish this book. I worked on it for 11 years. When I started the book it was clear to me that there were big problems with the way the ICC was working on the ground in places like Northern Uganda and Eastern Congo but it was a time of real triumphalism around the ICC from actors inside the Court but also the whole community of activists and practitioners supporting the court.
The view in those days was that the arrival of the ICC is a remarkable human achievement and so I felt early on that my research was going against the grain. From an academic point of view, there’s something virtuous in that because you think that you’re saying things that are perhaps immediately being recognized by other people.
But if you fast forward to the end of 2018 when my book came out, the atmosphere has changed entirely. You struggle now to find anybody who will give outright praise to the ICC. The general atmosphere is one of criticism. It’s one of scepticism because of the Court’s palpable missteps. The whole industry of people supporting the ICC is reeling from things like the Bemba and the Gbagbo acquittals and the weakness of the prosecution cases in those instances. In my discussions with other academics working on the Court, some of these people are saying to me “well you’ve added some empirical depth to what we are all saying now. Everybody is a critic and you’re a critic as well but you’re maybe adding some sort of empirical nuance. You are telling us on the basis of events in Northern Uganda and Eastern Congo why the court has been failing.”
But there’s maybe a general sense that the book is not as innovative or as groundbreaking as I might have hoped maybe five or six years ago. All of that said, the nature of the criticisms of the ICC at the moment trouble me. A lot of the commentary especially from the international criminal lawyers working on the ICC involves very inward-looking issues like problems with the nature of judgments or problems with some judges’ interpretations of the Rome Statute. Most of it is legal and it’s technical. At the moment what the criticisms are missing is that this Court has been doing enormous damage on the ground in Africa not just in the last year or two, which is when these criticisms have really arisen, but going all the way back to the courts first interventions in Africa around 2004, 2005.
My fear in all of this is that this is a period of many actors calling for reform of the ICC but I think a lot of this so-called reform is going to be quite cosmetic and quite technical because that is the nature of the criticisms. If we’re serious about building an effective institution that does good on the ground, we have to wrestle with the empirical realities away from The Hague. In that respect, I do think I am trying to do something different in this book from even the most critical voices that we’re hearing at the moment. In the conclusion to the book, I am calling for much more substantial and much more structural reform of the Court that a lot of the critics are calling for at the moment.
Justice Hub: What solutions or suggestions have been illuminated in the book?
Dr Phil Clark: In the conclusion to the book, I lay out an agenda for reform of the ICC and it comprises several aspects. One is the court has to fundamentally reorient geographically. Rather than delivering justice from The Hague with non-country specialists and particularly using investigators who don’t understand the local terrain, we need a fundamental shift in the space but also the personnel that the court operates within, bringing the court much closer to the domestic terrain and infusing it with an expertise of local context that will mean it can operate effectively particularly in terms of conducting effective investigations.
This is also going to involve in situ hearings. That means having to bring the court as close as possible to affected populations. At the macro level, we also need to shift the whole power dynamics around the court. This involves severing the ICC from the UN Security Council and removing the possibility of Security Council referrals from the Rome Statute. This has proven to be an incredibly problematic feature of the ICC’s work in Africa that in reality, but also in perception, the Court is seen as a tool of the major powers.
The perception is that the Security Council, three of whose permanent members are not even signatories to the Rome Statute, can use the ICC to try to do their military and political bidding in places like Darfur and Libya. In that sense, we’ve also got a question of international relations and power dynamics. I guess the bigger point in the conclusion to the book, if we’re talking about where we go from here, is we need to leave the ICC behind.
Despite making many prescriptions about reforming the court in my book, I am pretty realistic about the desire for change inside the institution and what I see at the moment is still a very intransigent institution that does not want to reform. I think we have possibly seen the best of the ICC. I am not convinced that we can make this a more effective more constructive entity. This is maybe as good as it’s going to get. There are just some features of the ICC that are not going to change. The court will almost always lack a serious enforcement mechanism. It will always be subject to the vicissitudes of domestic states. It will always be open to manipulation and instrumentalization by States. I am not sure that there are even deep structural changes that you can make that will enable the Court to overcome that.
Where that leaves us is with a need to reorient all of these debates and all of these practices towards the domestic terrain. As imperfect as it is, we need to focus on domestic judiciaries and the reform of domestic courts and an emphasis on other modes of transitional justice that are not necessarily of a prosecutorial nature as our most productive terrain now.
In many respects, we’ve never had, whether it’s at the Africa wide level or internationally, a serious set of debates about reforming domestic institutions as the major preoccupation for transitional justice. It has always been a side issue. The preoccupation for 20 years has been international criminal law and then as an adjunct, there have been discussions about what to do at the domestic level. As I’ve already suggested, even at the African Union level, there’s a certain dismissiveness of the domestic terrain. What we now need, I think, is a real sit down globally about how we make the domestic terrain more robust.
There has been a patchwork of interventions. We can see that in Africa that some reform processes, for example here in Kenya with the Supreme Court, in Rwanda with the court system, what’s happened in Ituri, what’s happened in Uganda and even what’s happening at the moment, in a very piecemeal fashion, in places like South Sudan and Central African Republic. There is a series of interventions inside domestic courts that are beginning to bear fruit but it’s not coordinated and the value of that has never been fully articulated as a central body of thought. There’s been a tendency to say “well there’s something good going on in Congo, there’s something good going on with Hissène Habré case”, but never a sense of “if we package all of this up it shows that there may be much more creativity and much more momentum at the national, at the community level and, to a certain extent, even at the regional level in Africa.”
I think that is the big message at the end of my book. The court is fundamentally flawed. No amount of reform is necessarily going to improve it. So we need to change direction and. There’s going to be a risk involved because I am not naive about how difficult reforming domestic justice can but we haven’t tried. We have only tried in a very limited fashion. Now is the time to put our energy and our resources into that. We may turn around in 20 years and also decide that that didn’t work either but we don’t want to die wondering.
Justice Hub: To produce the book, you said you have conducted hundreds of interviews over 11 years, mostly with ordinary people. What sense has that given you about their perspective on justice?
Dr Phil Clark: I did 650 interviews for the book. More than 400 of those were at the local level in Northern Uganda in Eastern Congo. It is an extremely heterogeneous material. Even in the same village in Uganda or Congo people don’t necessarily think the same way about justice or about the ICC. In the book, I try to capture the diversity and the disagreements even within community perspectives. Nevertheless, organically over 11 years, there were some consistent trends in the community reactions. One of the big ones was a real desire for justice to have a presence. A desire for people to be able to see justice being done in processes that they could participate in and hold [someone] accountable.
One of the really interesting things coming out of my interviews in Northern Uganda and Eastern Congo was an argument that this idea of distant justice is the kind of thing that people have seen before even going back in period of British and Belgian colonialism where colonial courts were always held in the capital cities in Kampala and in Kinshasa. That is away from the communities that they were supposed to be dispensing justice on behalf of. There was an enormous amount of suspicion attached to that.
This again came out clearly in my interviews. The court systems have been distant even in post-independence Uganda and Congo. The national court systems again have been heavily centred in urban areas away from local populations. The ICC is simply the latest manifestation of distance. Consistently in Uganda and Congo, in different ways and using different terms and invoking different values and norms, people kept saying to me “we know that justice means something when it comes to us and we can see it, we’re involved with it and we have some way of holding the process accountable.”
In the book, what I distil that down to is an articulation of ‘presence’ which is in obvious contrast with the distance idea. The final thing that consistently came up in my local level interviews in Uganda and Congo was a scathing critique of the fact that the ICC has avoided dealing with government cases time and time again even in communities that have been ravaged by rebel violence people would say there is something especially egregious about crimes committed by our state. “We expect the rebels to commit crimes against us.” This is something that an elderly lady said to me in Northern Uganda a couple of years ago. “We expect the state to protect us. We expect the state to provide for us. So when the state itself commits massive violations against us there is something even graver than crimes committed by non-state actors.”
It is therefore incredibly egregious, in the minds of many local people, that the ICC has been both unwilling and unable to deal with cases of sitting government officials. That is a big message coming from the local level. That was one of the things that people really hope the Court could do and the court told them that it would. In fact, it has done nothing of the sort.
Justice Hub: We are living in interesting times in the Chinese sense of the word. There is a lot of doom and gloom around the ICC. That said, is there anything that makes you feel sanguine about the institution?
Dr Phil Clark: Yes, there is. One of the things I have realized in researching this book is that the ICC is also an incredibly heterogeneous body. Just as communities in Uganda and Congo are incredibly diverse so is the Court. Within the court that there are pockets of reform. There are some really serious-minded and well-intentioned people who get it. They get that this Court has not paid enough attention to the local context in African states and that it hasn’t paid enough attention to the consequences of ICC interventions. My conversations with some of these people suggest that there may be the germination of some change. For example, there is momentum within the defence and the registry for in situ hearings and for the bolstering of the ICC’s liaison officers in the field.
This is a small issue in some ways but it’s the kind of thing that, if it happens, could spawn more fundamental change. As the Court gets closer to the context it’s investigating, it will absorb different influences and different critiques and ultimately it will not be able to ignore those. Even inside the court, there is some recognition that the institution needs to shrink the distance between The Hague and local communities. That is the kind of thing that gives me some hope. I am not yet convinced that those internal reformists are strong and consolidated enough to be able to withstand the powerful tendencies of the rest of the institution but there are some internal critics and I think they need to be fostered.
The other thing that I think it is important at the moment and that gives me gives me some hope is that even at the international level, amongst the most vociferous supporters of the Court, there’s a recognition now that this institution has to change. It’s a long time coming. It is pleasing that we’ve got there. The key now is there just can’t be technical tinkering. There’s has got to be structural change. We’ve got to be serious about the reform. In order to do that there’s got to be less discussion just amongst lawyers and international technical specialists. What I argue for in the book is it is time for another Review Conference but not in some capital city like Kampala and not with the debate dictated by ICC personnel and their supporters which is what happened with the Review Conference in Kampala in 2010.
We need another review conference now to be held in a place like Gulu (in Northern Uganda) or it’s held in a place like Bunia (the DRC’s Ituri province). This is time for local critics to get their voices heard with a dedication on the court’s part to listening and learning from those insights. I think that would do justice to the criticisms that are in the ether at the moment and I think that’s the best route towards a serious change of the court. There is some receptivity inside the Court for this idea. I guess I hope that a book like mine capitalizes on this particular moment and it starts to push the Court towards a more open-minded and a more serious reform agenda.
Justice Hub: What do you hope will be the impact of your book?
Dr Phil Clark: I think the conclusion to the book really answers that question. What I try to do in the conclusion is set out some ideas for reforming the ICC. My ultimate hope for this book is that it links into many of the criticisms that are in the ether at the moment and nudges the court towards much more constructive engagement with local communities in Africa and elsewhere. One book can’t make an enormous difference on its own. It is the arguments in this book coupled with other scholars, journalists and commentators. More importantly, it’s about having people on the inside. It is about having people inside the court who can pick up these views, work out how they resonate with their own internal work and then drive change from the inside. That’s the reason why in the next month or so I’m taking this book to The Hague. I am trying to launch it inside the court and to do it in a constructive way and to say “look I’m not here to bring the institution down”.
There is a virtuous idea at the heart of the ICC. Having a permanent global institution dedicated to accountability for serious crimes is a good thing. It just needs to do it totally differently from how it’s been operating up until now. It has to take its consequences on the ground seriously. Claiming to be above the political fray and being wedded to this idea that justice is an inherent good is arrogant and we’ve got to move away from there. I am hoping that the book will be received in that way as a piece of constructive criticism based on a lot of empirical work done in the very communities where the ICC has been intervening for a long time.
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