Abstract
Kamari Maxine Clarke’s groundbreaking new book comes out in the context of renewed debate about the International Criminal Court (ICC) and prospects for the global anti-impunity movement, of which it has become the face. In its December 2019 annual meeting, the Court’s Assembly of States Parties voted to convene an independent panel of experts to review the Court, responding to a public call by four former presidents of the assembly. The former presidents were reacting to the ICC’s refusal to pursue investigation of U.S. war crimes in Afghanistan because of a lack of capacity and access, which they argued was just the latest example of the ICC’s institutional and political failures.
Affective Justice is a must read for those following these events and for anyone interested in international justice more broadly. It offers a carefully researched, empirically grounded analysis of these contentious politics and how they intersect with histories and geographies of colonialism, unequal sovereignty regimes, and political violence. Clarke does this through extensive field work in The Hague, Addis Ababa, Nigeria, and Kenya, where she and her research team investigated how “international justice brokers” and communities affected by violence relate to and shape international justice ideas and practices. The result is an account of how the technocratic practices of international criminal law—those that will be reexamined and likely revised with the planned expert review of the ICC—materialize in relation to emotional and affective experiences of justice and injustice, that are themselves embedded in unequal relations of power.
Clarke begins from the foundational observation that justice is an inherently emotional concept that has force and meaning on the register of embodied feelings, such as desire, sympathy or anger, which find expression in individual bodies as well as in collective practices. Clarke is interested in the work that affect does to enable particular justice practices while foreclosing others. She shows how a key mechanism for this is in the way that affect and “emotional regimes” (drawing on William Reddy’s concept) serve to align political constituencies in relation to figures and practices of justice and injustice. Specifically, she shows how 21st century “affective justice”—which she defines as “people’s embodied engagements with and production of justice through particular structures of power, history and contingencies” (5)—is powerfully organized around juridical processes that triangulate the figures of the victim/survivor, the perpetrator and the international community. Emotional and affective alignments with these figures, which are shaped by histories and material conditions of political and economic inequality, affect where and how these juridical processes unfold and with what effect.
Tracing these affective landscapes helps correct major errors and blind spots in existing narratives about the global anti-impunity movement that came to prominence at the end of the 20th century. Existing literature on international justice advocacy has largely treated the phenomenon as one of progressively expanding political and legal norms, from the tribunals at Nuremburg and Tokyo to the contemporary work of the ICC. From this perspective, the “pan-Africanist pushback” against the ICC is situated outside of international justice: international justice, as a set of increasingly accepted norms, is present where these norms (specifically, holding individual state actors accountable for human rights violations) are upheld. The rejection of these norms reveals where international justice has not (yet) diffused.
In Part I of Affective Justice, Clarke replaces the ahistorical narrative of norm diffusion with a genealogy of “legal encapsulation,” in relation to which conditions, ideas, and practices on the African continent become central. Legal encapsulation describes the equation of justice with legal proceedings, which displaces political conditions of violence and injustice onto judicial processes that are perpetually inadequate to the underlying circumstances they purport to address. Clarke situates this process in relation to neoliberal development interventions and their promotion of technocratic legal practices as the solution to diverse conditions of economic precarity, political corruption, and violence in postcolonial states (58–64). She shows how this produced a political and institutional context in which international justice has been defined in principle as individual victims’/survivors’ access to judicial proceedings against individual perpetrators, and has been pursued in practice almost exclusively in relation to African perpetrators.
In this context, the contentious politics around international criminal justice reflect the inadequacies of legal encapsulation and the uneven ways in which these inadequacies materialize. This is evident, for example, in Clarke’s case study of the aftermath of post-election violence in Kenya in 2007 and 2008 and the ICC’s indictment of six leaders deemed most responsible. In 2013, two of the indictees, Uhuru Kenyatta and William Ruto, ran a successful national election campaign in which the indictment came to signify the need for Kenyans to elect leaders who would defend the nation from foreign exploitation and interference (141–174). The campaign, strategized by a British public relations firm, successfully mobilized public dissatisfaction with the ICC case’s representations of the causes and remedies for post-election violence, and connected these feelings of injustice with histories of colonial violence and exploitation. Specifically, Kenyatta drew parallels between his indictment and the British colonial army’s imprisonment of his father, Jomo Kenyatta, the anti-colonial leader and first President of independent Kenya. In relation to the legal encapsulation of the ICC case, the politics of the 2013 election centered on a “reattribution” of culpability for violence and inequality, from the indicted leaders to the continuing effects of colonialism. The campaign built on this reattribution by centering its platform on land reform, as the real path to achieving long-deferred aspirations for postcolonial justice. Kenyatta and Ruto were thus rebranded, from perpetrators to anticolonial heroes, in a way that drew on and further energized, rather than negating, sympathies toward the victims of the 2007 and 2008 violence. In this way, forms of affective justice mobilized by the ICC’s engagements in the Kenyan case paradoxically laid the affective groundwork for the “perpetrators” to be recast as compelling agents for justice.
Part II of Affective Justice examines initiatives by the African Union to revise institutions and practices of international justice in light of the inadequacies and failures analyzed in Part I. Here, affective responses to legal encapsulation help make sense of contemporary political alignments around pan-Africanism. In this context, pan-Africanism invokes “embodied feelings of racial subordination” through which “the afterlife of subjection” (180) shapes diagnoses of the causes of political violence in postcolonial African states, the failures of international justice to address these causes (evidenced, for example, by the disastrous effects of ICC indictments on conflicts in Sudan and Libya), and prescriptions for how international justice can be reimagined.
Aspects of these initiatives represent forms of “counterencapsulation” (192), like the development of the African Court of Justice and Human and Peoples’ Rights, whose protocol notably includes political-economic crimes, absent in the Rome Statute, that are seen as particularly relevant to African conditions (211). But other aspects are framed as a pushback against legal encapsulation and an effort to define international justice in relation to broader issues of conflict resolution, development, social justice, and democracy (195–202). For example, the AU-commissioned Panel of the Wise, a group of esteemed former heads of state and government officials, has led innovations around “peace and justice sequencing,” addressing the need to integrate transitional justice practices within broader efforts for peacebuilding (an approach currently being experimented with in the Hybrid Court for South Sudan) (81, 196). A key payoff of Clarke’s approach to affective justice is its nuanced depiction of the ambivalences embedded in the AU’s justice work: as she writes, “The conundrum of contemporary AU Pan-Africanism is that alongside deep-seated conceptions of the Pan-African liberatory past is actually a deep desire to participate in contemporary neoliberal power, in global power” (215).
Still, Affective Justice suggests that emotional aspirations materializing in contemporary pan-Africanism are vital resources for reshaping law’s possibilities. To what extent the upcoming review of the ICC engages these possibilities may shape that institution’s credibility, on the continent and beyond, for years to come. In any case, Affective Justice affirms that prospects for international justice do not and should not depend on that institution alone.