The International Criminal Court is justifiably suspect based on its prosecution mainly of Black people.
“Although law is meant to address inequalities, it can also enable its reproduction.”
In this series, we ask acclaimed authors to answer five questions about their book. This week’s featured author is Kamari Maxine Clarke. Clarke is Professor of Anthropology at the University of California, Los Angeles. Her book is Affective Justice: The International Criminal Court and the Pan-Africanist Pushback.
Roberto Sirvent: How can your book help BAR readers understand the current political and social climate?
Kamari Maxine Clarke: Since its inception in 2001, the International Criminal Court (ICC) has been met with resistance by the African Union and individual African nations, which see the court as a new iteration of colonial violence and control. This is because from its inception in 2002 until the fall of 2018, the icc has pursued twenty-two cases in nine situations across several African states: Central African Republic, Democratic Republic of the Congo, Ivory Coast, Sudan, Uganda, Kenya, the Republic of Mali, and Libya. It has issued indictments for thirty-six individuals, including twenty-seven warrants of arrest and nine summonses to appear before the court.[i] This predominance of African defendants has led to suspicion about the fairness of prosecutorial justice. Growing numbers of African and other postcolonial stakeholders have begun to see the anti-impunity/rule of law discourse as highly biased and uneven.[ii] In Affective Justice I explore the African Union’s pushback against the ICC in order to theorize affect’s role in shaping forms of justice. Affective justice shapes how justice feels, how justice is manifest in the everyday, and how it is decoupled from place and relocated in new feeling spaces.
What do you hope activists and community organizers will take away from reading your book?
Drawing on fieldwork in The Hague and the African Union, I formulate the concept of affective justice—an emotional response to competing interpretations of justice—to trace how affect becomes manifest in judicial practices. I demonstrate the way that justice is constructed through affective formulations that include biopolitical technocratic knowledge, emotional regimes and affects. And to do this, among the cases I examinee are the ICC’s indictment of Kenya’s president Uhuru Kenyatta for crimes against humanity as well as the immunity for African heads of state debate. I outline how affective responses to this and other cases by the ICC’s critics call into question the objectivity of ICC’s mission to protect victims and prosecute perpetrators. In analyzing such cases, I provide a fuller understanding of how people articulate what justice is and the mechanisms through which they do so.
We know readers will learn a lot from your book, but what do you hope readers will un-learn? In other words, is there a particular ideology you’re hoping to dismantle?
The key point that I would like readers to unlearn is that although law is meant to address inequalities, it can also enable its reproduction.[iii] The book shows that this dynamic is not new in the Global South—especially in Africa—where international law is being imaginatively inserted and engaged in daily life. The reality is that though law is a tool to instrumentalize justice, it has also become clear that international criminal law is not just about what the law says—it’s not just about its black-letter manifestation. Law is not a tool that creates justice in and of itself. Law operates within unequal fields of power and governance. It reproduces the power that shapes it and also embodies spaces where global inequality can play out. It embodies social relations, and, at times, can be deployed strategically within those very unequal fields of power.
In relation to law’s possibilities, what we see is that they are found in emotional aspirations for social change, not in its core instrumentality. And this is where the key issues are about how we feel and what we do about what we feel. And these feelings are not absent from the historical and contemporary deployment of power. They are about determining the conditions under which the law is deployed, with what institutions, under whose jurisdiction, and in which geographical spaces—that is, the power to submit to the jurisdiction of one’s own courts as well as to create spaces in which the psychic life of possibilities is forged.
Who are the intellectual heroes that inspire your work?
One of the popular conceptions of the crisis of the African postcolony today is that it stems from a problem with the incorporation of things African. This involves disjunctures between imposed or legislated understandings and familiar cultural values and practices that are not always central to the development of new norms. And just as the understanding of rights in the West unfolded according to its own contested and unforeseeable logic so that, for instance, rights that once pertained to property-owning white men were made to include others, so it is the case on African terrain. Any number of African institutions continue to be reworked and reshaped and what I have found is that not one theory can help us to understand these complex processes. As a result, there are many intellectual heroes and heroines that inspire the complexity of this work but the most profound in my thinking are Gilles Deleuze and Felix Guattari. However, I am also indebted to social theorist of affect, Sara Ahmed, as well as Africanist political theorist, Siba Grovogui.
In what way does your book help us imagine new worlds?
What we are seeing today through the icc-au pushback is actually about the playing out of a politics of recognition in which the legitimacy of various African stakeholders managing Africa’s violence is negotiated in contemporary terms using the tools of global governance like the un and the icc. The key analytic challenge in making sense of the icc, the au, or the logic of an African Court in the twenty-first century is to understand the ways in which various multiply inspired commitments to justice imaginaries relate not to age-old senses of identity but to emotional performances and their regimentation. This involves making sense of the ways that relationships and emotional responses structure and are structured by feelings that have the power to command particular social relations and engage with the reality of the internationalization of daily life.
It behooves us to understand the way that Pan-African reattribution initiatives are being crafted spatially. The recognition of these realities requires that we take seriously the complexities of the politics of the social and the affective life that informs those decisions. We must take seriously which economies, moralities, social imaginaries, and psychic meanings shape decision making and how those decisions are legitimized with the moral force of the past. For they are part of the play of power that structures future possibilities in particular ways, all while exacerbating preexisting inequalities and psychic differences in responsibility, obligation, and histories.
Roberto Sirvent is Professor of Political and Social Ethics at Hope International University in Fullerton, CA. He also serves as the Outreach and Mentoring Coordinator for the Political Theology Network. He is co-author, with fellow BAR contributor Danny Haiphong, of the new book, American Exceptionalism and American Innocence: A People’s History of Fake News—From the Revolutionary War to the War on Terror.
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[i] Arrest warrants were issued for the following individuals: Joseph Kony, Raska Lukiya, Okot Ohiambo, Dominic Ongwen, Vincent Otti, Thomas Lubanga Dyilo, Bosco Ntaganda, Ahmed Haroun, Ali Kushayb, Germain Katanga, Mathieu Ngudjolo Chui, Jean-Pierre Bemba Gombo, Omar al-Bashir, Callixate Mbarushimana, Muammar Gaddafi, Saif al-Islam Gaddafi, Abdullan al-Senussi, Laurent Gbagbo, Charles Blé Goudé, Simone Gbagbo, Abdel Rahim Hussein, Sylvestre Mudacumura, Walter Barasa, Narcisse Arido, Jean-Jacques Kagongo, Aimé Kilolo Musamba, and Fidèle Wandu. Summonses to appear were issued for Bahr Idriss Abu Garda, Abdallah Banda, Saleh Jerbo, Mohammed Ali, Uhuru Kenyatta, Henry Kosgey, Francis Muthaura, William Samoei Ruto, and Joshua Sang. As of March 2019, the following were on trial: Abdallah Banda, Bosco Ntaganda, and Dominic Ongwen. Thomas Luganga Dyilo and Germain Katanga were convicted and serving sentences of fourteen and twelve years, respectively. Mathieu Ngudjolo Chui, Jean-Pierre Bemba Gombo, Laurent Gbagbo, and Blé Goudé were acquitted. Charges were dismissed against Bahr Abu Garda, Callixte Mbarushimana, Mohammed Ali, Henry Kosgey, William Samoei Ruto, and Joshua Sang. Charges were withdrawn against Uhuru Kenyatta and Francis Muthaura. The case against Abdullah al-Senussi was declared inadmissible. Finally, proceedings against Raska Lukiya, Saleh Jerbo, and Muammar Gaddafi were terminated due to the death of the individuals.
[ii] Regarding countries outside of Africa, as of 2016, the icc’s Office of the Prosecutor was conducting eight preliminary examinations, including an assessment of information about alleged war crimes by UK nationals during the conflict in Iraq from 2003 to 2008; the violence committed in Ukraine since February 20, 2014; an investigation in Afghanistan, in which they have indicated there is reasonable basis to believe that war crimes and crimes against humanity were and continue to be committed there; an examination of violence and alleged crimes in the occupied Palestinian territory since June 13, 2014; and monitoring of national prosecutions of crimes in Colombia. However, for the first thirteen years of its existence, all of the icc cases involved Africans. This has shaped the charges that the icc is engaged in the selective targeting of Africans. For updates on the investigations, see International Criminal Court (https://www.icc-cpi.int/).
[iii] Thomas Spijkerboer, “The International Refugee Regime” (lecture, Carleton University, Ottawa, December 2017).