Prosecuting International Crimes in Africa - PULP - University of ...

CHAPTER
6
1 Introduction
POLITICS OF INTERNATIONAL
CRIMINAL JUSTICE: THE ICC’S
ARREST WARRANT FOR
AL BASHIR AND THE AFRICAN
UNION’S NEO-COLONIAL
CONSPIRATOR THESIS
* LL.B (Nairobi); LL.M (Pretoria); PhD (Luiss, Italy). Lecturer in Law and Political
Science, Africa Nazarene University, Kenya.
1
F Megret ‘The politics of international criminal justice’ (2002) 13 European Journal of
International Law 1262.
145
Steve Odero*
International criminal justice has for long been the jealous preserve of
lawyers who in practice have always been reluctant to acknowledge that,
more often than not, they operate in an environment that is profoundly
imbued with politics. Likewise, political scientists have traditionally either
seemed oblivious to the potentially challenging qualities of international
criminal justice or have turned a blind eye to such possibility. 1 They have
frequently reduced the entire legal enterprise to a more or less arbitrary
exercise of power, and in so doing pledging allegiance to the realist school
of international relations theory. These two professional trajectories can be
explained as follows. For the lawyer, whereas legal phenomena and reality
often mix, he has been preoccupied with the use of legal phenomena to
influence the factual or political reality. In the lawyer’s world, law is
sacrosanct and the reality on the ground ought to conform to it. In contrast,
for the political scientist, legal phenomena are born of social science and
ought to be reflective of it. Social patterns are attributable to calculated and
overt human actions, seldom finding expression in law, aimed at
influencing various behavioural patterns. Hence, political scientists are
preoccupied with the political reality and what actions can influence it,
sometimes to the extent of belittling the relevance of the law in this respect.
With regards to international criminal justice in particular, political
scientists have mostly been disparaging, considering it ornamental at best
and relegated to some discrete sub-discipline, for example under the catchall
expression ‘transitional justice’, somewhere in between public policy,
history and ethical theory.