Book Review: Africa and the Backlash Against International Courts by Peter Brett and Line Engbo Gissel

Recent history has witnessed a transformation in the international legal order, leading to a proliferation of courts based on contemporary norms of human rights and democracy.

Peter Brett and Line Engbo Gissels’ book, Africa and the Backlash Against International Courts, opens sightlines for scholars looking to examine African engagement with both regional and global justice systems. The book tests the robustness of international judicial regimes by examining their performance in Africa, highlighting the continent's dynamic international activity. The key contribution of this book lies in how the authors offer legitimation as an explanation for the African backlash against international courts.

The preface of the book provides an impressive data set, from the authors’ extensive fieldwork across East, Southern and West Africa. The five chapters cover a list of themes specific to different regions of Africa. In the introduction to the book, the authors highlight contrasts between African states’ attitudes towards the International Criminal Court (ICC) and regional courts. They suggest a need for another explanation for the fractious relationships, beyond the principle of sovereign equality. It sets a stage for the book to explain the backlash against the ICC, and support for emerging international courts in the face of sovereignty discourses.

The first chapter traces the so-called African backlash against international courts to the post-Cold War period. The authors attribute the proliferation of international courts primarily to what they call ‘strategies of extraversion’, where states seek for international resources and alignment with donor policies (p. 22). They dismiss the role of non-governmental organizations in the establishment of new international courts in Africa. Overall, the authors attempt to shift the focus from sovereignty to new imperatives of global power imbalances and economy.

Chapter 2 analyses African states’ turbulent relationship with the ICC. By way of background, the chapter discusses four strands of critique against the ICC intervention in Africa: the court's interference with peacebuilding, the targeting of Africa by more powerful global actors, the role of the United Nations Security Council within the Rome Statute regime and threats to sovereign immunity (p. 36). According to the authors, both the African Union (AU) and many African states have been trying to delegitimize the ICC's authority in three ways: ‘exposing politicisation by the Court, non-cooperation and withdrawal threats’ (p. 46). The authors show the uncertainty about the legal and political consequences of the AU's proposed ICC withdrawal strategy and the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol; p. 52).

In the second half of the book, the authors delve deeper in the African backlash against international courts, specifically the regional courts on the continent. Chapter 3 focuses on the Southern African Development Community. Notably, the chapter shows that the notion of respect for state sovereignty is not a standard account for the backlash against regional courts. Instead, the authors emphasize regional norms of legitimate statehood in explaining the backlash in Southern Africa. In a nutshell, the authors point to the land question, notions of solidarity and anti-imperialism as the pivotal causes of the regional backlash against the Tribunal.

The chapter is particularly interesting for its discussion on the demise of the Tribunal. By highlighting the socio-political impacts of the Tribunal's decisions in the Campbell case, this chapter reminds us that the ratification of international or regional human rights instruments by states is not in itself a reflection of universal acceptance of human rights. An understanding of the human rights context helps to moderate the backlash narratives.

Chapter 4 moves the backlash discussions to West Africa, with a focus on the Economic Community of West African States and Community Court of Justice (ECCJ). The authors reaffirm the strategies of extraversion, discussed in the introduction of the book, as the primary motivation for the states’ support for the ECCJ. As the authors implicitly point out, there is an intricate link between the geopolitics and the formation of the regional Court (pp. 86–87).

The authors offer a detailed explanation of how the ECCJ evolved from its initial trade liberalization objectives to develop a human rights framework. They posit that the primary goal for states’ acceptation of the new human rights language was embedded in desires for ‘legitimation through legality’ (pp. 90–94). The chapter raises an interesting account of the backlash against international courts, transcending the notion of state sovereignty, to emphasize the domestic claims to legality.

Finally, Chapter 5 takes us to the regional legacies in East Africa, exploring the states’ relationship with the East African Court of Justice (EACJ). As in the previous chapters, the authors link the creation of the EACJ to strategies of extraversion, calculated to appeal to foreign donors and market-driven regional integration (p. 122).

Whilst explaining the African states’ backlash against international courts, the book spurs readers to question the impact of regional courts and institutions of universal jurisdiction in Africa. However, it is important to note that such institutions are bound to encounter challenges due to fragmentation and diversity within the African legal landscape, with over 50 states across the whole continent. To this end, the authors are to be commended for explicitly highlighting the scope of the book as explaining the backlash, rather than its significance in the regions (p. 141).

The debate on peace versus justice in Chapter 2 is less than surprising, as the Ugandan government has prioritized peacebuilding and amnesties over international justice in the past years. A key strength of this argumentation lies in the significant fieldwork of Gissel, right from the Review Conference of the Rome Statute that took place in Uganda in 2010 (Gissel, 2018).

The discussions on the Malabo Protocol in Chapter 2 would have illuminated the controversial provision on immunity for incumbent Heads of State and senior state officials, as it has been the subject of much criticism in Africa (Nsereko and Ventura, 2019).

The book's discussion on West Africa does a good job of articulating the complex geopolitical relations between Francophone and Anglophone states (p. 86). To a reader that is not familiar with African history, it is important to be cognisant of legal pluralism in West Africa, created by colonial ties with France and Britain.

Similarly, the preliminary information on the political history surrounding the East African integration allows the reader to understand the contemporary challenges of the EACJ (pp. 115–121). The authors’ analysis on states’ reaction to the proposed human rights jurisdiction of the EACJ is fascinating. The argumentation and sources are particularly insightful for the understanding of legal and political complexities around the EACJ. More notably, the historical discussion on regionalism offers a novel insight into the nuanced transformation of the EACJ. As also highlighted by the authors in previous scholarship, civil society mobilization does not necessarily account for the ratification of Tribunals, where African states engage in extraversion strategies (Brett and Gissel, 2018).

Overall, the major contribution of this work, one that is really intriguing, is that the backlash against international courts is not just a story of asserting state sovereignty, but a more substantive notion of what a legitimate sovereign state is. So, we are not just in Robert Jackson's world where African states are defined by what they lack, but instead one where a real counter-narrative is present.

Given the nature of this backlash against international courts’ jurisdiction, what might or should the future hold? Previous explanations suggest either that leaders need to be better socialized to human rights norms, or that the sovereignty imperative is essentially an immovable object given the global balance of power (Alter et al., 2016; Oloka-Onyango, 2020).

This book offers another analysis of the problem: the backlash is not about sovereignty at all costs, but rather about an alternate ideology that can be understood and perhaps negotiated with the broader goals of universal jurisdiction. The analysis could also trigger critical questions; is there any way of reconciling this alternate ideology with the goals of individual criminal responsibility for war crimes and crimes against humanity? Does this ideology suggest any way forward in the further protection of civilians in violent conflict, even if it is not necessarily accomplished by courts outside the continent?

Perhaps, we could also argue that the presence of an alternate ideology makes things complicated for proponents of international courts. The usual storyline seems to be that international courts like the ICC have a legitimate ideology of ending impunity, whereas African leaders reject that ideology in favour of sovereignty. From the book's findings, we can infer that there is something more substantive for proponents of international courts to refute or seek a middle-ground with. So, the benefit, for those proponents, is that dialogue is possible. The drawback, from the same point of view, is that they would actually have to engage in dialogue with the African states, in line with their alternative ideology.

For the future, the findings in the book will also be of use for scholars researching on non-judicial human rights mechanisms. Besides scholars, there are valuable insights for practitioners in the fields of Political Science, Human rights and Law. It is a worthy addition to the expanding scholarship on international courts.