Politics, Justice, and the Politics of Justice — Partisanship and the International Criminal Court

Canadian Foreign Minister Stéphane Dion speaks with ICC chief Prosecutor Fatou Bensouda (Photo: Stéphane Dion)

Canadian Foreign Minister Stéphane Dion speaks with ICC chief Prosecutor Fatou Bensouda (Photo: Stéphane Dion)

At this point, it is almost a cliché to call international criminal justice “political”. For years, calling war crimes tribunals political was the gravest of insults critics could levy against the field. Slowly, however, it has become more acceptable — even among proponents of institutions like the International Criminal Court (ICC) — to describe the project of international criminal justice not only as infused by politics but, in and of itself, political. There are still probably some hold-outs, folks living on (metaphorical) islands where the pursuit for accountability for the worst human beings on earth needs to be a project devoid of politics. But the fact that international criminal justice is political should be as obvious as the fact that it must be, that it cannot be any other way. Indeed, the most alluring aspect of the ICC and other tribunals is not that they represent unfettered judicial or legal projects but that they represent the promise of a global political landscape where the expectation that perpetrators of mass atrocities are held to account is actually met.

Still, “politics” has no singular definition. When a critic rips into the ICC for being “political”, they surely don’t have the same notion of “political” in mind as either those who defend the Court for representing good politics nor more even-handed observers who simply see the institution as the product of politics. While there has been much progress in recent years, there is still a need to think through exactly how the ICC is political. We might, for example, distinguish how the Court acts as a “political weapon” of states that “use” it for “political purposes”; the politics of its selection of prosecutorial targets; the degree to which the ICC represents and reflects the global, political distribution of power; and the internal politics of the Court as an institution with its own institutional interests.

It is also unlikely that the same “politics” infuses the various actors that constitute the project of international criminal justice with life. The politics of defence lawyers and prosecutors, registry officials and victims’ representatives, the presidency and the ICC Assembly of States Parties; all allude to and represent different politics.

One aspect of the politics of international criminal justice that has seldom been explored, however, is the extent to which it is a partisan issue and how it consequently shapes relationships between domestic political parties. This may have something to do with how state-centric international criminal justice is and the consequent focus on binary of the “state” and the “non-state actor” as the key units in the study and observation of the ICC.

Of course, the effects of the ICC on domestic politics have often been addressed. How the Court affected domestic power dynamics in Uganda, the Democratic Republic of Congo, the Ivory Coast, and so on, has been the focus of many studies. Much has also been written about how the Court’s intervention determined the outcome of the 2013 Kenyan presidential elections, in which two ICC targets, Uhuru Kenyatta and William Ruto bridged partisan differences to be elected President and Deputy President respectively. But it seems evident that, even in situations where there has not been an intervention, the ICC affects domestic — and partisan — politics. Consider the following recent examples. While it is important to stress that each of these cases is complex and includes various issues and actors beyond political partisanship (and I do not mean to reduce them to partisan dynamics), they all illustrate how international criminal justice can resonate in partisan politics.

In South Africa, the issue of the country’s withdrawal from the ICC has emerged as a partisan issue for the ruling African National Congress (ANC). Some members of the ANC have spoken out, on a number of occasions, against the ICC. While it would be difficult to verify, in failing against the ICC, it appears that the ANC translated the country’s relationship with, and membership in, the ICC into a partisan question. The result has been the decision of the ANC’s opposition, the Democratic Alliance to place itself as the forefront of legal efforts to challenge the government’s decision to withdraw from the ICC as unconstitutional. As I argued in a previous post, this may have the effect of raising the cost of convincing South Africa to remain in the ICC. In order to stay a member-state of the Court, the ruling ANC government would likely have to concede defeat to its primary political opponent.

Membership in the ICC has also permeated the domestic political landscape in The Gambia. Following in the footsteps of South Africa and Burundi, Gambian President Yahya Jammeh decided to withdraw the country from the ICC in November. But in the subsequent presidential elections, opposition candidate Adama Barrow pledged to keep The Gambian in the ICC (as well as the Commonwealth). Shockingly, Barrow won the election and subsequently reiterated that he would make good on his election promise. Jammeh initially agreed to concede power but has now flip-flopped and called for fresh elections — throwing the country into uncertainty. Notably, Jammeh may have been concerned that the new administration would seek to prosecute him or request the ICC to do so.

One country that has invested great energy and resources into stemming any tide of ICC withdrawals is Canada. Just over a year ago, Canada’s leadership on this front would have been unthinkable. Under the Conservative government of Prime Minister Stephen Harper, Canada took, at best, an ambivalent attitude to the ICC — and international justice more generally. The country threatened Palestine that seeking an ICC investigation was a “red line” it could not cross and was the last Western hold-out to support a referral of Syria to the Court. The new, Liberal government of Justin Trudeau, Foreign Minister Stéphane Dion has reversed course. Dion has visited The Hague twice and hosted ICC chief Prosecutor Fatou Bensouda in Ottawa. While the new Canadian government has continued the line that Palestine is not a state and therefore cannot refer itself to the ICC, it has loudly voiced its support for international criminal justice for the Yazidis, for Syria, and put itself forward to mediate South Africa’s tensions with the ICC, hoping that doing so will convince the country to remain a member-state of the ICC.

Unsurprisingly, scholars and observers of the ICC tend to focus on how the Court affects the “politics” of the situations in which it intervenes. Rarely are the ICC’s impacts on partisan politics considered — and even more rarely in states where the Court has not intervened. This is not to say that the ICC will always or inevitably be a partisan matter between political parties. But if the cases of South Africa, The Gambia, and Canada are any indication, the institution is clearly salient, indeed increasingly salient, as a partisan issue.


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 Canada, Gambia, International Criminal Court (ICC), International Criminal Justice, South Africa. Bookmark the permalink.

1 Response to Politics, Justice, and the Politics of Justice — Partisanship and the International Criminal Court

  1. Terry Washington says:

    We don’t KNOW what attitude the new Trump Administration will adopt regarding the ICC(but the possible appointment of longtime foe of the Court John Bolton does NOT augur well) but given that the ICC has announced that it will investigate the Russo-Georgian War of 2008 and may be called to do so vis a vis the ongoing conflict in the Ukraine, I’d say that the prospect of butting heads with the Kremlin looks like a real possibility!

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