Politics, a Poison for Justice?

Malawi’s new President, Joyce Banda, with UN Secretary General, Ban Ki-moon (Photo: Aos Gumulira / AFP / Getty Images)

Richard Dicker, the director of Human Rights Watch recently wrote an interesting op-ed in the New York Times, provocatively entitled ‘A Flawed Court in Need of Credibility‘.

Ten years ago, when the treaty creating the International Criminal Court took effect, the prospect of holding heads of state and powerful warlords to account for mass slaughter seemed like science fiction.

Today the signs carried by Syrian protesters demanding “Assad to The Hague” are powerful testimony that the court is making its presence felt.

But as the I.C.C.’s influence grows, its promise of impartial justice for the world’s worst crimes is at risk of being undercut by international politics.

Dicker’s piece succinctly evokes an ongoing debate about the relationship between politics and international criminal justice. There is a prevalent belief amongst jurists, lawyers and advocates of international criminal justice that politics is the enemy of justice. Justice, to them, requires a complete separation from political considerations. Politics and justice are like oil and water. Justice must be neutral, black-and-white, and apolitical. On the other hand, many negotiators, diplomats and scholars of international relations argue that it is naive, if not simply ridiculous, to suggest that international justice can ever be apolitical. After all, international justice will always depend on states which remain the primary political unit in the international sphere. Moreover, justice will inevitably be selective and reflect the interests of powerful stakeholder states.

Dicker, is of course, right to point out the ever-present dangers of powerful states manipulating and instrumentalizing the ICC. As readers will know, I believe that the cozy relationship between the realpolitik of the UN Security Council and the ICC poses dangers for the legitimacy of the Court. But realpolitik is not all that “international politics” is or has to be.

The problem with the debate, it seems to me, is altogether a different issue: it doesn’t allow for any space within which to argue that international criminal justice can be good politics and that good politics can guide international criminal justice. Proponents of international criminal justice shouldn’t aim to talk a separation between politics and justice into reality but rather endorse the convergence of political interests with the interests of justice, to make the political interests of states in line with effectively and appropriately responding to atrocities and combating impunity. In other words, international criminal justice is a political project; there is simply no escaping this fact. But advocates of the project don’t need to fear international politics. Rather, they should work to transform it into good politics.

Consider the example of Malawi. Just last year Malawi, a member-state of the ICC, drew the ire of the Court for hosting Sudanese President Omar al-Bashir in defiance of the ICC which had issued an arrest warrant against Bashir for his alleged role in the commission of genocide, crimes against humanity and war crimes in Darfur. As a result, last December the ICC referred Malawi to the UN Security Council.

Fast-forward a few months and it appeared as though Malawi would go two-for-two, inviting Bashir to an African Union summit. However, President Joyce Banda, who took over from Bingu wa Mutharika after he died suddenly in April, quickly defied her predecessor and claimed that if Bashir came to Malawi, he would face arrest.


Sudanese President, Omar al-Bashir (Photo: AP / Abd Raouf)

Behind the about-face is a significant amount of economic pressure from Western states. In reaction to the decision to host Bashir, the US froze a $350 million energy grant. European states threatened to withhold development aid if Bashir visited again. One report even suggested that “developmental partners advised the ICC to punish Malawi.” When asked about her efforts to persuade Bashir to stay home, Banda tellingly said: “He [Bashir] should forgive us this time as we are struggling to fix the economy.” Unsurprisingly, within days of the decision, it was announced that the UK

“released 33 million pounds ($51 million) to Malawi to help new President Joyce Banda rebuild an economy left reeling after her predecessor soured ties with donors whose aid had propped up the budget.”

Of course, critics will argue that this amounts to Western donors black-mailing a vulnerable African state. But, without knowing the details of the aid agreements between the Western donors and Malawi, another way to look at this development is that Western states used traditional tools of political coercion (in this case economic aid) to promote the isolation of a man wanted for genocide. By ‘enforcing’ the obligations of Malawi to the ICC, these states actively supported the Court’s mandate and struggle for legitimacy. This is a remarkably positive step forward in comparison to the US policy of denying certain forms of aid to states that did not sign Bilateral Immunity Agreements, an attempt by the Bush administration to guarantee that US citizens would never be brought to the ICC.

In short, Malawi appears to be an example of where international politics converged with international criminal justice – but not in a way to be feared. It is obvious that the ICC’s legitimacy and effectiveness would be undermined if Bashir continued to freely visit ICC state parties. But the ICC remains reliant on states to make a fuss and put pressure on its members to keep with their obligations. Malawi is an example where politics was needed and appears to be a case where the politics of international criminal justice was good politics.

ICC Prosecutor Luis Moreno-Ocampo recently declared that

“Stopping the assistance to those who help Bashir will work and it’s not happening…Stop all the money to them and they will arrest Bashir, it’s simple.”

Moreno-Ocampo is wrong: it isn’t simple. But he is right that converging economic interests with the interests of justice can have positive effects.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), International Law, Malawi, Sudan and tagged . Bookmark the permalink.

12 Responses to Politics, a Poison for Justice?

  1. Tony Irungu says:

    For as long as the ICC focuses its attention only to vulnerable third world countries and not to previous war crimes committed by the likes of Bush and Blair, in addition to those committed with impunity today by Cameron and Obama and their indiscriminate drone warfare that is murdering thousands of civilians in helpless states like Pakistan and Yemen, and with the active support of biased western media which covers up or excuses the atrocities committed, the ICC WILL ALWAYS lack legitimacy to informed third world opinion. It is naive therefore to think that this acquiescence to the ICC’s authority can continue for much longer when 60% of ICC members are from the same third world being discriminated against.

    It is hypocritical to hear Hillary Clinton’s condemnation of Bashir’s defiance while her own country has categorically refused to recognise the ICC’s jurisdiction over US citizens in a typical gesture of arrogant, racist justice. It reminds me of the self righteous ignorance of Thatcher when she once referred to Mandela as a terrorist.
    Either the ICC styles up and lives up to its mandate, or the third world will walk out of it and it will remain what it really is, a European/US driven kangaroo court used to intimidate and persecute uncooperative third world leaders like Gbagbo. It is only a matter of time. How is it Ocampo saw it fit to have Gbagbo arrested and shipped off to the Hague but not Ouatarra whose forces equally committed horrific atrocities in the Ivory Coast? Isn’t it because that would have upset French (a key EU member) imperialist plans in the Ivory Coast where Ouattarra was their puppet and personal friend to Sarkozy, the best man at Ouattarra’s wedding? WHO will bring the fellow to account?

  2. Maya says:

    This is certainly an interesting set of observations, Mark. I was under the impression that Malawi’s about-face had more to do with Joyce Banda’s personal convictions — she is supposed to be far more progressive than her predecessor, and is apparently causing quite a stir in Malawian politics thus far. But you have certainly supplied some interesting facts relating to the West’s use of ‘political/development’ incentives. My intuition is that the truth is probably somewhere in the middle — I suspect these two things were probably complementary to some extent, i.e. the West used political incentives and Banda was more receptive to the pressure. But of course that does not undermine the pertinence of your observations.

    I am less persuaded by how you’ve compartmentalized these issues into good and bad politics. This line is especially confusing: ” This is a remarkably positive step forward in comparison to the US policy of denying certain forms of aid to states that did not sign Bilateral Immunity Agreements, an attempt by the Bush administration to guarantee that US citizens would never be brought to the ICC.” How are these two things even comparable? How is this a “step forward”? It seems to me like this is the exact opposite of what is happening now? (maybe it’s just the phrase ‘step forward’ that’s confusing in all this).

    You raise the point that this may be viewed as a form of blackmail. I would be interested to know what the African Union’s take on all this is. By adhering to the West’s request to isolate Bashir, Malawi is also violating the African Union’s resolution on non-cooperation. By enforcing the arrest warrant, Malawi — and any other State — would potentially be violating international customary law on Head of State immunity. I wouldn’t want to get bogged down in a legal debate — and I concede that the second point is particularly controversial — but let’s discuss politics, since this is the subject of your post. I would be curious to know how Malawi’s blatant violation of the AU’s resolution on non-compliance with the ICC fits within your admittedly appealing binary of good and bad politics?

  3. Andrew says:

    Thank you for a great post. I am of the view that politics and justice are at odds when it comes to international criminal justice. On the occasion that they coincide, as they have in the instance of Malawi, then it is a good thing, but ultimately an exception. It is for that reason that a non-state party (US) is seen to enforce state-party obligations within the Rome Statute. The absurdity of the situation is obvious. It is one of the factors explaining why Syria’s situation continues unabated…politics attempted to cross with justice in Libya and that is the repercussion. This is without even delving into the situation in Libya.

  4. Mark Kersten says:

    Thanks to all of you for the comments.

    @Tony – I share and empathize with your frustrations regarding double-standards in international criminal justice. However, I don’t believe that’s an argument against any justice. The choice can’t be perfect, universal justice or no justice at all.

    @Andrew – Interesting comment. Whilst I agree that politics that helps explain “why Syria, not Libya” in terms of international criminal justice, I think there is space to have a conversation that there are different kinds of politics and not all amount to “realpolitik”.

    @Maya – I think you’re probably right that it is both Banda’s progressive views on key issues and external pressure. We’re in agreement there.

    What I meant about the “step forward” is simply that the US leveraged aid in order to undermine the Court. Now we see the EU and the US leverage aid in order to promote the Court’s mandate (at least insofar as it pertains to the Bashir warrant). The point of comparison thus lies with how states leverage economic/development aid in relation to their positions towards the Court. It seems uncontroversial to me to call the shift a positive step forward for the ICC.

    I think the AU’s position on Bashir’s arrest should be taken with a good deal of skepticism. Key African states, including Zambia, Ghana, South Africa and now Malawi have said that he will be arrested if he visits. Uganda has done so as well, but more quietly. The AU has remained silent on these and, as far as I know, silent in cases where Bashir visits ICC state-parties. The other question is perhaps more interesting: if Bashir disregarded Banda’s claims and visited Malawi, would they be able to arrest him? A cabinet minister suggested they have no capacity to and so it appears that, similar to previous instances, Malawi is trying to use back-channels as well as the media to persuade Bashir from not coming and sending a delegate instead.

    Anyhow, the intent of this post was to contribute to a more fruitful discussion on the relationship between international politics and international justice than the harshly dichotomous debate we’ve seen to date. Hopefully it succeeded, if only to complicate the discussion a little bit!

    • Maya says:

      Thanks for clarifying those points, Mark. I see now what you mean with the US comparison.

      Regarding your response to the other point: “I think the AU’s position on Bashir’s arrest should be taken with a good deal of skepticism…” I think this is precisely the problem with Westerners and even most ‘independent’ scholars (see Alana’s post from last week, and the comments it has received). Despite the fact that the AU has stated clearly three years in a row that the Security Council and the ICC are wrong, and that they should back down / reconsider… whenever the AU’s position is brought up in academic discussions, you hear people going ‘yeah, allright, but it’s not like that really matters.’

      What does matter then? If the European Union chose to defy the Security Council on a point of law three years running, I think there would be a lot more controversy and debate surrounding the merits of the argument. Why is it that what the African Union says can always be dismissed as practically irrelevant? Sure, as you rightly pointed out, there are states within Africa that disagree with the AU’s official position. Likewise, the EU’s decisions are rarely ever reached by unanimous consensus at the first go, without one or two obstinate members kicking and screaming and threatening to derail the whole process until the bitter end. If states’ disapproval of EU policies were a proxy for judging the legality/validity/legitimacy of EU decisions, then we could safely say that nothing in the EU should be taken too seriously (or, to use your phrase, ‘with a good deal of skepticism’)

      The point is this: the African Union has stated very clearly that the Security Council should reconsider its decision. It has articulated clear and compelling political and legal arguments to support its argument. We may disagree with it, but why is it that observers, such as yourself Mark — and Alana a week ago — can still get away with this dismissive (dare I say, neo-colonialist?) attitude along the lines of ‘what does the AU’s position really matter? It’s only the African Union, it’s not like any of that really matters.’

      Before you retort that nowhere in your post did you exhibit such a dismissive attitude toward the African Union, let me clarify that I think this is implicit in how you are dealing with this issue, and your response to my comment is a good illustration of it. Sure, your post does not deal with this particular issue in great detail. But it doesn’t deal with the AU’s position as part of the ‘good politics / bad politics’ dichotomy that you provided us with, precisely because you fail to even consider the AU’s regional stance as something important to your analysis. For African countries that have to enforce the arrest warrant and deal with its immediate consequences — e.g. foreign relations with your direct neighbor (e.g. Chad anyone?) — what the AU says and thinks can (and perhaps should) be vastly more important than what remote bureaucracies in New York or London decide on topics they probably know very little about anyway. At the very least, the role of regional politics should be factored in to a discussion of ‘good and bad politics’ relating to an issue of (also) regional concern, as your post seeks to do.

      • Maya says:

        Let me just clarify that I agree with your last comment that your post has contributed to “…a more fruitful discussion on the relationship between international politics and international justice than the harshly dichotomous debate we’ve seen to date.” I am focusing on a particular point which was missing from your analysis — also because Alana’s post from last week failed to seriously grapple with it — but overall I agree that you’ve made some very interesting observations, and my critical comments on this one point take nothing away from that.

      • Mark Kersten says:

        Thanks again for the comment, Maya.

        I’ve actually written on this elsewhere and it continues to be something I grapple with. I believe the AU’s position is important and deserves attention. I’m suspicious of the mainstream analyses which over-simplify the AU, suggesting that it is a politically homogenous body without serious divisions (I would/do think the same thing of the EU – surely no one can assess what’s going on right now by treating it as a homogenous political body!). That is where my comment to you is coming from, ie. when I say there is a need to be skeptical of AU positions on the Bashir arrest warrant. I don’t mean to suggest that the AU and it’s positions are irrelevant or shouldn’t be taken seriously. On the contrary, what I am getting at is that we should be able to go further than AU press releases and analyze to whom the Bashir position is important and why – and, conversely, to whom it isn’t.

        My view is that the position of the AU and especially certain member states towards the ICC in recent years is critically important. My (working) theory is that the animosity is a result of the increasingly close relationship between the UN Security Council and the Court and the fact that this relationship reaffirms rather than transcends global power asymmetries. It comes as little surprise to me that the most vociferous critiques of the Court have come in the wake of UN Security Council referrals (as well as the Kenya situation to an extent).

        In any case, rest assured that I do take the issue of the AU’s position towards the ICC seriously and continue to believe it to be very relevant.

  5. Mathula says:

    A good read indeed,, thanks

  6. Vivian says:

    Thank you for the good read! I’ve been working on an article about State voluntarism and the ICC, with special focus on Al-Bashir’s case and it was good to see different opinions.
    I believe it’s all ok when the realpolitik and the Nation’s interests converge into setting some important rules or punishing perpetrators of heinous crimes. The problem is when they don’t. And in many cases they don’t or they take a long time (sometimes too long) to do so. States will just hold back on these rules whenever they are not convenient to them, since we lack of a coercitive power to enforce these decisions. We may talk about soft power, but to what extent will States damage their domestic politics just to influence others and make them adjust to their agenda?
    I also agree with Tony about this centre-periphery political relationship and I believe much of the credibility of the Court relies on changing this within the next years. Why does Malaysia has to prosecute Bush for war crimes since this is the primary function of the ICC?
    Moreover, I also think that the situation has turned into a transnational politics matter rather than a realpolitik one. Investments and capital influx (and the lobby with government authorities) are far more linked to a State’s decision to support some rules or comply with International Justice than the Nation’s interest (which all in all is restricted to what the government leader believes is the national interest and may not reflect the truth). See the situation of Sudan, the lack of intervention in Darfur and the amount of Chinese investment (and how much it represents to the Chinese GDP) for example.

    • Mark Kersten says:

      Thanks very much for the comment, Vivian.

      I agree that there are problems that emerge when the interests of justice and the interests of states don’t converge. I was only trying to highlight that sometimes they can converge – and have positive effects.

      Your last comment is very interesting but I wonder if you could elaborate by what you mean by “transnational politics” and the extent to which this affects international justice.

      • Vivian says:

        Hello, Mark! Thank you for the opportunity to express my view. We are just now starting to debate these issues in my country and I am glad to take part into an international forum of discussion, since I can much learn from the opinions held on here.
        Let me try to clarify my comment and explain what I meant by “transnational politics” and to what extent it affects international justice.
        My idea is linked to the Transnational Relations theory and its influence on International Law, according to which individuals and the civil society are political stakeholders in the international field (as well as States) and are also interdependent. Therefore, apart from States, the Church, multinational companies, NGOs, student associations and tourism may also be considered stakeholders by this theory.
        Although they are less powerful than States, these other stakeholders can deeply influence the decisions (including those related to Foreign Policy) that States will make, either because they are responsible for fostering a country’s economy or because public opinion (an individual’s opinion or a social movement’s opinion) is too important to be ignored (ultimately, initiatives contrary to the public opinion may result in the loss of votes, for example): it is a process of continuous adjustment from domestic pressures and international obligations.
        Burton called it “cobweb model”. The international system would consist in the overlapping of several cobwebs which are woven by various multi-corporate activities, such as trade, tourism, financial flows and migration, cultural exchanges, which converge on some points of interest.
        Since the end of the Cold War, individuals, who once did not bear much attention to matters related to Foreign Policy, are now much more politicized – although they are still seeking isolationism and the pure pursuit of their self-interests – since it became a lot easier to travel and to obtain information and knowledge, as well as to establish communication, and there has been a major improvement in education.
        In a world ruled by interdependent and asymmetric relations among the different stakeholders (although independent), they are all sensitive and vulnerable to each other’s behavior, the behavior of every single one of them is reciprocally and structurally affected by the behavior of the others.
        However, I was particularly referring to Richard Nye’s theory on multinational companies as stakeholders capable of defining States’ behaviour according to their self-interests, what I have called “Transnational Politics”. A multinational (facing an interdependent relationship with the country where it is established) may lobby, slightly threaten (to shut down the company, for instance, which would cause more unemployment and a decrease in tax revenue), provide incentives (such as entering into a partnership agreement for a particular infrastructure or social work) or may even bribe those representatives in a way they will conclude certain international negotiations (for concluding bilateral agreements to reduce export taxes, for example). However, such companies are also dependent on the States and will suffer the effects of the decisions taken by them in international field. Thus, as previously discussed, if a State has an unstable domestic political situation, it will obviously attract less foreign investment than a country with a balanced internal political situation, as per the financial booms when there is a rise in the Standard & Poor’s index.
        It is also important to highlight that, nowadays, when an investor considers allocating resources in a particular region, they not only seek for the opinion of an economic/ business consultancy, but also the one of specialists in Social Sciences, given the expansion of political risk consultancies. A country’s stability is also measured by its compliance with international decisions and resolutions: the country shows a respectful conduct in the international field, so it will not act differently from its average conduct, so it is a reliable place to make investments. As Guzman has once said, “reputation is important for States because it allows them to make credible promises”.
        I shall also mention that a State having a good image in the international field, because it complies with the International Law making of international organizations, is also capable of making use of its capacity/ power to influence others in a fashion they will behave according to its own interests – which Nye calls soft power.
        The conflicts in Darfur, for instance, are mainly linked to the existence of natural resources. On the one hand, some countries aim at strengthening trade relations with Sudan, due to the abundance of oil in the region. On the other hand, climate conditions (drought and desertification) and overpopulation led to the migration of the Baggara communities to the South – where the land is primarily occupied by agrarian communities of black Africans – seeking for water to their herd.
        China National Petroleum Corporation, a Chinese oil and gas company, is Sudan’s largest foreign investor. It has invested more than US$ 5 billion in this area and holds more than 50% of the shares of Sudan’s largest refinery. In order to improve its logistics, it has built a pipeline from the concession blocks to a port in the Red Sea, from where cargo ships departure to China. The total sum invested by the country amounts to US$ 15 billion since 1999, and 65 to 80% of the 500.000 barrels of oil produced per day belong to it. The oil fields are located in the conflict region.
        Sudan has had a dictatorship from 1993 to 2011, and the fact that its president could be brought to justice before an international court not only harms its image in the international field (since it appears that the country is not be able to preserve its internal cohesion), but would also result in a regime change, which modifies the existing power games within the state (several sectors of the population support the president) and between nations (given the Chinese economic interests and the elaboration of a report that would not classify as genocide the actions carried out in Darfur).
        The fact that a Chinese company holds the vast majority of Sudan’s largest refinery and that several other made large investments in this country explains, from a transnational politics perspective, China’s position on the matter, given these new stakeholders pressure (lobby, corruption, incentives and threats).
        I do not know if I could make myself clear, but I believe this is a very important feature to bear in mind while analyzing States compliance with international justice. All in all, it is a matter of money and power swapping from one hand to another, unfortunately.

  7. Raymond says:

    How to become a contributor on this blog?

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