Distant Justice Symposium: Some Thoughts on Getting Close

[Mark Drumbl is the Class of 1975 Alumni Professor and Director, Transnational Law Institute, Washington and Lee University. This is the latest post in our symposium on Phil Clark’s book, Distant Justice: The Impact of the International Criminal Court on African Politics.]

I never thought this day would end

I never thought tonight could ever be

This close to me

— The Cure (1985) from the album The Head on the Door

When we embraced, when we embraced again, I didn’t think of what would happen, of what I’d do, of what I’d say, where I’d return to or where we’d go together; I was only conscious of her proximity, of the bliss of her proximity.

— Ivan Klíma, Love and Garbage (1986)

Distant Justice is a thoughtful treatment of the relationship(s) between the ICC and Africa. In uplifting fashion, and with punchy cadence, Phil Clark recounts the deflating story of how the ICC has ill-served those it was supposed to ‘rescue’, to ‘save’, and to ‘deliver from evil’. Clark unravels and unwinds myriad sinuous disappointments. Amid this unspooling he also distils. For Clark, the ICC’s failures in Africa trace to one dynamic. This is distance. Clark posits that the ICC’s struggles arise from its psychological distance from how Africa approaches reconstruction(s); its physical distance from the sites of violence, witnessing, and regeneration; and its demographic distance in terms of who judges and investigates and accuses. In addition, Clark does not specifically address but likely would recognize a temporal distance, namely, that the rites of international judicialization often begin long after the moments when the pain first was occasioned.

Clark’s identification of the whelping power of distance and the shadows distance casts over the ICC, such that justice withers, is brilliant. This move – his move – is strikingly revelatory. It captures much of how all the energy that could have been generative has simply dissipated, how it became squandered, why it spilled and sloshed into noise.   

But I think Clark might go further with his distance observation. There is more there (here). I think his treatment of distance is a touch legalistic, a bit clinical, rather technical, inordinately complex, very careful, and somewhat operational. Clark implies that distance can shrink and scale can contract. One way might be to correctively bring the institution – the ICC – nearer physically, more aligned methodologically, and in greater cultural harmony with the affirmed beneficiaries of its grace(s). Sure, yes, of course, maybe. But I don’t think the ICC is ready for that or yet able to do it.

Why? Oh, because I think there is an even more embedded gap. I wonder whether the ICC’s separateness runs far deeper and can be cast more straightforwardly: that at its origin and in its core the problem really involves emotional distance – a coldness, frostiness, frigidity. As I see it, the ICC is distant because it doesn’t want to get too close. Its fear is one of intimacy, of touching and of being touched, of really listening, of befriending, of accepting words that might not map onto legalistic expectations. A fear of proximity; a denigration of populism; a commodification of globality. And, on these notes, the ICC furthers a stratified genealogy of international criminal justice – a reified and exclusionary epistemology – as Marcos Zunino exposes, one that ignores initiatives that are not neo-liberal, putatively neutral, and procedurally pure. This epistemology only welcomes as ‘appropriate knowledge’ initiatives which are cold and calculated and that never get too close or too proximate. Those initiatives which are accepted are those that do not embrace too tightly but, rather, those that communicate only through air-kisses theatrically puckered twice or thrice on cheeks or, preferably and artfully, just above.

It might be that international criminal law can’t ever be intimate. Its congenital conditions of impartiality and neutrality may hamper its emotionality. Maybe law is destined for and consigned to detachment and distance. Maybe ICL cannot fathom friendship, empathy, curiosity, affection, understanding, amiability, love. I’m not so sure, though: I’m not convinced that a force must be cold in order to be impartial. But I think what Clark is trying to intellectualize could be uncorked in those simple, raw, and blunt terms: the ICC’s justice is distant because it is icy, all-knowing, technical, fake air-kisses, rote. So really it is no surprise that it becomes emptily performative and subject to all sorts of political manipulations and emotionally conducive machinations. Nor is it surprising that the defense often obtains greater public connectivity than the prosecution. The fact is that the ICC never got buy-in in Africa. It was never given the benefit of the doubt. It was not received with warmth and welcome. It never got any of this because it neither genuinely asked for it nor exuded qualities that would reciprocate it. The ICC just assumed it all. The ICC is about human rights but not human beings. That just doesn’t work. The ICC remains, in Clark’s words, ‘foreign intervention’ rather than, in my words, ‘friendly support’. And I fear this all this assumptive frostiness extends well beyond Africa.

A rich literature has arisen domestically on law and emotions. See for instance here, here, here and here. I would like to see more of this extended into ICL-speak. International human rights activists, well, they assume the thing speaks for itself – the project is self-evidently persuasive, is clinically attractive, and is messianically obvious. That it just ‘is’. But it ‘isn’t’, actually.

That’s my takeaway from Phil Clark’s game-changing book. And before we tinker with a teetering and tottering ICC, before we dissect a dithering and doddering process, perhaps we should take a step back into the world before law became anointed and connect with the putative beneficiaries of legalism in a more honestly open manner: one where transnationalists show the flexibility to be about ‘them’, not to condescend ‘them’ to ‘our’ wisdom(s). To build places that engage with what Derrick Bell powerfully describes in different spaces as the ‘faces at the bottom of the well’. Indeed: to look ‘them’ in the eyes, these faces, to talk entre amis, to share with rather than lecture at. To listen, to sit; not to tutor and hector and lord over. To let things get close, close to me, close to you, really close all around, in a spirit of respectful equality, to open up and become filled, just because.

Clark yearns for the ICC to become ‘politically savvier’. I think, first, it needs to become warmer. And it needs to love, or even just really like, unconditionally, in the here and now, amid the imperfections then and there, affectionately, in that moment. To embrace, to truly embrace, to hug and to mean it in that moment. If so, all those unknowables, well, perhaps they might bend and arc and inch a little closer ‘towards justice’, no? As Klíma hints, by getting more proximate things might all just work out (a bit) better.