On March 14, Phil Clark, author of the book Distant Justice: The Impact of the International Criminal Court on African Politics spoke at an event on the failures and future of the International Criminal Court at the Open Society Foundations office in New York. Prior to the event, he sat down to discuss his book with International Justice Monitor, and in the first part of this two-part series, the author discusses the premise for his research and how to improve the performance of the International Criminal Court (ICC).
Taegin Reisman (TR): Your research into the ICC’s impact in DRC and Uganda began as a report to the Open Society Justice Initiative 11 years ago. Why did you feel it was important to expand on it over the years?
Phil Clark (PC): When I started the fieldwork for what was supposed to be a report, I discovered these issues were just much more complex and multifaceted than I anticipated. In particular, after 2006 – when I started the fieldwork – the ICC was becoming a practical reality. In that early stage, it [the ICC] wasn’t doing an enormous amount in Uganda and Congo. It was the very early stages of the investigations: [Thomas] Lubanga was only transferred at the beginning of 2006, but the trial hadn’t yet started, and so I began the OSJI report at a time when it really wasn’t clear what kind of impact the court could have on the ground.
But by 2007-2008, the court was very much becoming a reality in African states. More investigations were underway, trials were beginning, and it was already clear to me as a political scientist with a speciality in the region that the court was having some very important repercussions, especially in the ways that African governments were responding to the ICC’s interventions.
One of the things I’ve always been interested in my work is the whole set of political and social dynamics around national elections, especially in the Great Lakes. One the things that was very apparent by 2007-2008 was that the Ugandan and Congolese governments were, if anything, ramping up their attacks on the political opposition, their attacks on everyday protesters, and all of this was happening under the watchful gaze of the ICC. From the political science point of view, one of the things I was interested in was if the hope was that the ICC would deter criminality and start to regulate state behaviour, this wasn’t happening, so I increasingly wanted to know why. And so, in a nutshell, I think that is why that this project spiralled into something that was quite discreet in 2006 to something that continued sprawling for more than a decade, as the court’s work became more complex and started having more dynamic effects on the ground.
TR: In Distant Justice, you tend to take a critical eye towards some of the court’s investigative practices, for example, being too reliant to government/military, not enough investigators, no local staff to provide context. In your opinion, what are the top three things the Office of the Prosecutor (OTP) can or should do to improve its performance?
PC: One of the things I’m really wrestling in the book is whether the major problems at the ICC can be fixed with technical changes and how much this is going to require root and branch structural reform. I think increasingly the court if it’s going to become effective, really needs complete structural change.
But if we focus on the OTP specifically, there are several concrete things that the office should do. One is a complete change in philosophy, which would involve the office adopting a much more cautious and a much more deferential role towards domestic institutions, particularly domestic courts in Africa and elsewhere. One of the things I argue in the book is that the OTP, in particular, has been much too keen to get involved in African states, often where there were already domestic court proceedings or other forms of local remedies already underway. The OTP and the court as a whole need to live up to the spirit of complementarity, which frames the ICC as a back-stop institution, intervening only in exceptional circumstances.
I think another concrete thing that OTP, in particular, needs to do is change the profile and expertise of its personnel. While we’ve got something like the JCCD [Jurisdiction, Complementarity, and Cooperation Division], that particular branch of OTP, it isn’t fully equipped to deal with the kinds of complex political situations the ICC has found itself in Africa. In particular, I think what that branch needs to be better equipped in is the political expertise about how you navigate state power.
It’s inevitable that OTP will have to cooperate with states. It’s inevitable that it’s going to have to build constructive relations with governments if it wants to do its work, but it needs to find a way to do that while also being fundamentally independent from those states. And, in order to do that, it needs a deep contextual knowledge of those places, and in particular, their politics. What that’s going to mean, I think, is hiring a lot more staff from those specific countries. That means Congolese political experts, Ugandan political experts, Malian political experts joining the court on an ad hoc basis for the duration of the investigations in those particular countries.
OTP’s attitude and the ICC’s approach up until now has been to want generalist staff who can move between all of these different contexts around the world and get up to speed overnight on how those places function. I simply don’t think that works. I think the places where the ICC operates are too nuanced, they’re too specific, and you need an expertise that maps onto that.
A third concrete, practical thing that OTP could do would be to change the protocols for its investigators in the field. This is something that Christian De Vos, here at OSF, and others, have also been raising recently. This tendency of the OTP, until recently, to drop its investigators in the field for only 10 days at a time and to rely so heavily on local intermediaries is leading to all sorts of cutting of corners.
What we need to see is investigators, firstly, spending a lot more time in situ, getting to know the terrain, building much better networks of informants, and in essence doing the job themselves rather than outsourcing much of the key investigative work to intermediaries, which is the kind of thing that most other international investigators have had to do at the ICC’s predecessor institutions. If you look at the ICTY and ICTR, ultimately that was the way their investigations evolved over time. It is quite peculiar in fact that the ICC has taken this more detached, parachuting approach to investigations, and what we’ve seen in the courtroom is that this leads to a very low standard of evidence, and it’s one of the key reasons why so many of OTP’s cases have collapsed either before or during trial.
TR: Do you have additional recommendations for other organs of the ICC, namely the Registry, Chambers and Presidency, in this regard?
PC: In the conclusion to Distant Justice, I highlight some concrete recommendations for the other branches of the ICC. If we start with the Registry, in many ways, it’s more understanding of domestic contexts, but even there, we have seen a branch of the court that perhaps doesn’t always have the firmest grasp of what’s happening on the ground. One of my recommendations to the Registry is to start to rethink, firstly, its outreach policies. I think many actors, even within the Registry, recognize this: that their outreach has typically been too late and largely ineffective in many of the African states where it has worked.
One key example is that in the Uganda case, it was more than a year into the ICC’s investigations before the Registry began any effective outreach. Then when outreach began, it took the form of an English language pamphlet in the government-owned New Vision newspaper, which just showed a complete lack of understanding of the domestic terrain and fed into a narrative that was already spreading in Uganda at the time: that the ICC was just a tool of the Ugandan government. So, if you put a pamphlet out in the state-owned newspaper only in the English language, you reinforce that idea.
The Registry has improved some of its practices since those early mistakes. That was a low point, and I think it would be only fair to say that the Registry has done its utmost to try to improve. It has a lot more to do in terms of delivering a form of outreach that is responsive to local populations. I’ve been to too many outreach session in various African states over the last 10 years, and the tendency is for those Registry presentations to be very didactic, very preachy and often involve putting up the ICC website and laboriously taking local communities through how the website works.
The frustration of many affected communities is that the Registry as a whole is often very reluctant to answer difficult questions about what the court is doing in those particular settings. Often, I think it is because the Registry feels that it is being asked question that should be directed to OTP, to the defence, or to chambers. But it is causing enormous frustration on the ground. I think there is a real need for the Registry to think about what responsive outreach really looks like.
In terms of the chambers, there are lots of recommendations strewn through the book, but there is one that stands out for me. In terms of the jurisprudence of the court, we need to have a rethink about the “same person, same conduct” idea, which has led to the ICC claiming jurisdiction over domestic institutions at moments of really important contestation.
This has come up, for example, in the [Germain] Katanga case in the DRC, in both the [Saif al-Islam] Gaddafi and [Abdullah] al-Senussi cases in Libya, and in the two Gbagbo cases in Côte d’Ivoire. The problem with the same person, same conduct idea is that as long as the OTP can show that it is bringing even slightly different charges from what the domestic courts are pursuing, the ICC can legally claim jurisdiction over those cases because of the way that the chambers have interpreted that idea up until now.
The problem is that the OTP can always amend it charges to claim jurisdiction. There is almost infinite scope for OTP to find some slight variation from the charges being brought by domestic institutions. What we saw in the Katanga case was the OTP bringing charges that were much less grave than what Katanga was being charged with in the DRC. OTP charged him with crimes relating to the use of child soldiers, whereas the Congolese courts had charged him with a range of crimes including genocide. The judges interpreted the idea of same person, same conduct as allowing the ICC’s jurisdiction in that case, and I think that makes no sense. It violates the principle of complementarity, it undercuts the domestic judicial institutions and ultimately has seen Katanga investigated and prosecuted for much lesser charges in The Hague, which doesn’t benefit anybody.
One of the key recommendations to the chambers is to completely rethink that particular issue, which has now come up in at least five of the ICC’s cases.
TR: You documented popular perceptions of the ICC’s work in Uganda and DRC, in which many people expressed their disillusionment, disappointment, or even anger with the court. Did the ICC, particularly the OTP, set its expectations too high? Or were other factors involved?
PC: I think there was complacency, especially on the OTP’s part, about how warmly they would be welcomed in places like northern Uganda and eastern Congo. There was some justification for that view in the early days because there were high hopes in many local communities about what the court could do. But those hopes led very quickly to disillusionment and disenchantment. I’ve seen this routinely in my interviews in northern Uganda and eastern Congo.
Why are communities fundamentally disappointed in what the court has done? The biggest reason – and this comes through very strongly in my interviews – is the failure of the ICC, and the OTP in particular, to tackle government crimes. One of the real hopes in these two countries, in particular, was that an international body could come in and do what, up until then, domestic courts had not done, and that was to deal with government atrocities. And OTP and the Registry in the early days of their investigations had started to put that message across; that one of the reasons why the ICC should be seen as a trusted institution was that it was going to go after government actors. It created a widespread expectation. Then, of course, what we have seen in the last decade is that the court as a whole has done nothing of the sort – focusing exclusively on non-state actors, particularly rebel leaders.
I didn’t expect this in my interviews, but when I probed further, one of the messages that came through very strongly in these two countries is that there is a particular gravity that local populations attach to government crimes. I remember one elderly woman in northern Uganda saying to me, “We expect rebels to commit crimes against us because that’s what rebels do. But we don’t expect our own government to commit crimes against us.” So, there is something very particular about government atrocities, that they violate the social contract between states and their citizens and there is something enormously problematic about the ICC not going after government cases. This has been a real sore point for many local communities. There are lots of other criticisms that come from the local level, but that is the main one that comes through most consistently in my research.
TR: If a new investigation began, what advice would you give to local NGOs or intermediaries if they were interested in working with the ICC?
One of the key things local intermediaries should insist on is that, firstly, there be a dedication on the part of the OTP to conduct its investigations in an independent and thorough fashion. And one of the things that local intermediaries need to insist on is that they are not used as a means to cut corners in these cases.
My interviews with intermediaries, especially in eastern Congo, have shown that a lot of these groups now say they wished they had been much firmer with the court at the outset about what the court itself was going to do and what they were expected to do. There was some fundamental miscommunication there. So now, any local intermediaries, any local NGOs, that want to partner with the court need to insist on much greater clarity about the division of roles.
That includes local intermediaries being very clear that they are not going to get lumped with thorny issues, like witness protection, once ICC actors leave the fray. Again, this has been a real source of frustration for many local groups – both in northern Uganda and eastern Congo. In many ways, they were being left with some of the toughest ICC tasks and full-time court officials, who should have been fundamentally responsible for this, simply weren’t responsive and were almost not contactable if problems arose.
Local intermediaries need to stake their ground. There are clearly plenty of groups right across Africa that would like to partner with the court, that see the ICC as a valuable institution, and want to assist it in all sorts of ways. But I think they should be more vocal and more forthright about what they are willing to do and that the court needs to perform its essential tasks – and take responsibility if things go wrong in the field.