Affective Justice Symposium: Law’s Emotional (Im)possibilities

Affective Justice Symposium: Law’s Emotional (Im)possibilities

[Nayanika Mookherjee is a Professor of Political Anthropology in Durham University and her research concerns an ethnographic exploration of public memories of violent pasts and aesthetic practices of reparative futures through research and publications (including a graphic novel and animation film) on gendered violence in conflicts, memorialisation and transnational adoption.]

Kamari Clarke’s Affective Justice: The International Criminal Court and the Pan-Africanist Pushback is an ambitious, thought provoking, tour de force showing the historical and ethnographic trajectory of the idea of law as justice and how it is felt, experienced, and institutionalized, through the workings of The International Criminal Court (ICC) and the African Court of Justice and Human Rights. With the subtext that materialises Mudimbe’s (1994) famous dictum of the  ‘Idea of Africa’ needing legal solutions to political problems, Clarke’s border-encompassing ethnography in Nigeria, Kenya, Ethiopia and the Hague shows how the power of these international institutions and the justice they promulgate operates‘by deploying embodied affects, emotional regimes, and technocratic forms of knowledge in a mode of embodied and regimented practice’ that Clarke calls affective justice. The concept of affective justice took me back in an instance to a moment in the late 1980s in India when as a high school student one was inspired by the affective potentialities of the story of a young’s girls struggle to be a law enforcer in the television serial Udaan screened from 1989-1992 when pre-liberalised India only had two national television channels. The pulsating, emotional opening tunes of the serial was visceral in its resonance of the idea that ‘Law’s possibilities can be found in emotional aspirations for social change’ (Clarke 2019: 264). This embodiment of the affects of justice also deems to make it mobile, universal, aspirational, and gives rise to legal morphings, protests and contestations among various networks engaged in an anti-impunity advocacy. Hence the book deftly intersects lawyers, civil society actors, survivors in multiple contexts, configurations and publics. I have argued in my book: The Spectral Wound: Sexual Violence, Public Memories and the Bangladesh War of 1971 (2015) that it is this affective “knowing” of the Birangona – the figure of the raped woman of conflict- that transforms what constitutes a public sphere: to feel for the violent history of rape becomes the cornerstone of participation in Bangladeshi public life. Clarke’s deploying of sentimental legalism shows how the protection of victims is intertwined with the rejection of impunity of perpetrators and thereby reifies prosecuratorial justice and the ‘empowering’ rule of law as a way to curb political violence.  That structural adjustment proposed in these various African countries by World Bank and International Monetary Fund (Clarke 2019:104) also included the ratification of the Rome Statute shows how law while being a tool of social change is also a renewed tool of historical subjection and structural injustice. Instead of Benjamin’s law making and law preserving violence, Derrida’s (1992: 5) commentary on Benjamin’s theorisation on violence – that ‘force is essentially implied in the very concept of justice as law (droit),’ (Derrida 1992: 5) helps me to further formulate the violence of this pursuit for justice. Affective Justice shows us intricately how through a ‘victim fetish’ those seeking to implement the anti-impunity formulations do so in the name of protecting the judicialized ‘victims’ the latter often being a disembodied, mediated, hashtagged phenomenon like #BringBackOurGirls. In my book Spectral Wound there is a palpable resonance with this idea of the ideal victim with the horrific figure of the raped woman and the processes through which wartime sexual violence is orientalised in order to create an affective public.

The conjuring of the victims is also undertaken by those deemed to be the perpetrators who seek to reject the juridical claims of the ICC as to them it is another form of neo-colonialism. Clarke traces the affective rhetoric deployed in election campaigns, documents and speeches which highlight the prevalence of ‘African male’ perpetrators in the ICC and its perceived aim to ‘shield the west and pursue the rest’ (Clarke 2019: 105) . This brings to light the unresolved processes of colonialism and its conjoined extraction and plunder of African resources by the erstwhile colonial powers. These powers are again making decisions to try corrupt African leaders through these unequal juridical frameworks where no corrupt leaders of the global north have been tried inspite of massive legal transgressions. The turn to emotion, senses, has hinted at, how the nation, communities are comprised of a public imbued with affect in response to various objects, figures. But is a straightforwardly productive affect – feeling – always manifested?Elsewhere I have argued (Mookherjee 2011: S5) that while drawing from the anthropology of phenomenology, it is this self-presence of a certain kind of pre-given phenomenology, of ‘things-as-they-are’ devoid of politics and history, that we need to avoid when theorising affect. To theorise affect as only a personal, corporeal and sensuous occurrence fails to identify how certain images become affect-intensive in the first place. In fact the affective responses to the ‘victim fetish’ cannot be understood only through a visceral and embodied perception as registers of affect are not universal, singular and ahistorical. To borrow Sara Ahmed’s words, ‘How the feelings feel in the first place maybe tied to a past history of readings in the sense that the process of recognition (of this feeling or that feeling) is bound up with what we already know’ (2004: 25). Affective Justice precisely and powerfully locates these affective circuits in their historical and political contexts. The affective ‘victim’ rhetoric undertaken by the persecuted, erstwhile anti-colonial freedom fighters, also creates its own publics in the African subcontinent through the narratives of the unresolved legacies of colonialism and past genocides.  

Such creation and recognition of feelings based on unresolved histories of unacknowledged genocides can also be found in the case of the controversial and internationally criticised (by countries of Middle East and also by western human rights organisations) Bangladesh War crimes tribunal which prosecuted and executed  domestic collaborators (Razakars – those who supported the West Pakistani army in the war of 1971 and were seen as Bengali and Bihari collaborators based in East Pakistan) which I am trying to explore in my current book titled Arts of Irreconciliation. The tribunal was set up in 2009 by the current Awami League (AL) government (deemed to be left-liberal, secular), first constituted under the International Crimes (Tribunals) (ICT) Act of 1973 formulated in Bangladesh and amended in 2009. As a result, Bangladesh could avoid taking the tribunal to the ICC. I want to draw out the parallels between the forms of affective justice as fantastically shown by Kamari and the phenomenon in Bangladesh.

In 1947, the independence of India from British colonial rule resulted in the creation of a new homeland for the Muslims of India by carving out the eastern and north-western corners of the country, which came to be known as East and West Pakistan respectively. In the formation of Pakistan, Islam was the sole principle of nationhood unifying two widely disparate units, separated not only geographically but by sharp cultural and linguistic differences. Thus West Pakistani government’s reluctance to rely on religious allegiance alone of the East Pakistani’s and the former’s administrative, ‘military’, civil and economic control over the latter for twenty-five years, led to the nine-month long liberation war in 1971. Thereafter East Pakistan became independent from West Pakistan and Bangladesh was formed. With the end of the Liberation War, Bangladesh was faced with the staggering number of 3 million dead and 200,000 women (contested and official numbers) raped by the Pakistani army and Razakars in a span of nine months. Formed in the midst of various cold war geopolitics, the Bangladesh war of 1971 has not been recognised as a genocide in the international forum.

In an unprecedented move till now the Bangladesh government attempted to reduce social ostracisation of the women raped through a public policy of referring to them as birangonas (war-heroines) as early as 23rd December 1971. Rehabilitation Centres were set up for the women by the government and this overt government policy had various intended and unintended consequences (Mookherjee 2015). Women went through abortion, their children were adopted to western countries by the government, some were married off by the state, others demanded jobs which the state provided. In fact as I show in Spectral Wound, there exists a striking public memory of this history of rape mediated through government announcements, photographs, advertisements, rickshaw art, films, rehabilitation centre photographs and government documents. In this public memory, the Birangona is a horrific ‘wounded’ figure either muted, physically affected or without any nurturance of kinship.

While being the focus of press and government speeches in the early 1970s, the issue of rape during the war got relegated to oblivion through the latter half of the 1970s and 1980s to re-emerge again in the 1990s. The process of historicising narratives of sexual violence of 1971 took place in the 1990s within the international context of declaration of rape as a war-crime and varied historical and political contingencies in Bangladesh. During the fifteen years of military rule (1975-1990) in Bangladesh, those who collaborated with the Pakistani army had political impunity and were in positions of power. After nearly forty years of Bangladeshi independence, this national tribunal charged seventeen individuals, arrested and detained in prison fourteen individuals, charged two in absentia for their role during the Bangladesh war in 1971 and executed six individuals. Many of these individuals are linked to Jamaat-e-Islami party and the opposition Bangladesh National Party and are all deemed to be collaborators with the Pakistani army in 1971. At the same time, these death penalties have also resulted in the resurrection and strengthening of Hefazat-e-Islam, a group based in a qawmi madrassa (orthodox Islamic school) that has been holding counterdemonstrations and rallies in Bangladesh demanding the execution of so-called atheist bloggers and stopping the Shahbagh protests led by the younger generation and demanding the death penalty of collaborators. The situation has been exacerbated by the Pakistani National Assembly passing a resolution on December 17, 2013, saluting one of the collaborators as a “friend of Pakistan”, condemning his execution, and warning Bangladesh against “resurrecting 1971.” This in turn has led to fresh demands by Shahbagh protesters to try the Pakistani army personnel for their roles as perpetrators in 1971. The ethnographic contexts in Affective Justice beckons me to compare it to those of the contexts in Bangladesh and to call into question two of law’s emotional (im)possibilities where affective dissonances and global geopolitics is at play.

Emotional (Im)possibility: What about Traitors?

While the affective circuits of international justice have been focussed on the perpetrator or victim, it has little to say about the ambiguous affective dissonances, its emotional (im)possibilities with that of the figure of the traitor. Alongside the figure of the wounded birangona there exists the war-heroine as a traitor. In moving beyond the binaries of perpetrator and victim to understand the notions of justice, the figure of the traitor allows us to interrogate the contradictory connotations of justice in relation to sexuality and intimacy. The figure of the Razakar is constantly brought out in Bangladesh through their relationality to Islam (marked by his beard and cap) and Pakistan (marked by the moon and crescent on the cap). The presence of these traitors is on one hand a sign of weakness and an attack on the sovereignty of Bangladeshi nation-state. However, this suspicion and fear is even more obvious in the relationships of intimacy with the war heroine/birangona. I highlight here the speculations and rumours about the possibility of being raped as a woman during the war which I write at length about in the book and which are also brought out in my co-authored graphic novel-turned-animation film.

Mookherjee, Nayanika and Najmunnahar Keya. (2019) Birangona: Towards Ethical Testimonies of Sexual Violence during Conflict. Durham: University of Durham. [Online] Freely Available in Bangla and English: (Animation Film and Graphic Novel).

The raped woman as traitor thus places desire and sexuality at the centre of the making of a traitor. The speculation, rumours and the making of the war-heroine as the traitor at the same juncture makes every young woman during the war a potential collaborator who was ‘attracted’ to the Pakistani army. The suspicions about the traitorous war heroine makes it imperative to interrogate connotations of justice when it is invoked. The search for justice in making the collaborators accountable thus seem interlocked in various contradictory webs of complicity from all fronts when considering its relationship to the ideas of sexuality and intimacy of that of the birangonas: the women raped during the Bangladesh war of 1971.

Emotional (Im)possibility: Authoritarian Victimhood

“Bangladesh is not a conflict.” This is what I was told in 2014 by the special representative of the UN secretary-general at the summit on End Sexual Violence in Conflict at a time when the Bangladesh War Crimes Tribunal were in full swing. She said the history of wartime rape during the Bangladesh war of 1971 could not be included in the summit, which took its starting point as the Bosnia conflict of 1992. As evident in Affective Justice the anti-impunity debate and the rhetoric around sexual violence in conflict are new tools of global control and soft power today aimed specifically at the African subcontinent. At the same time, we find that in contexts of unresolved genocides, legacies and symbolic capital of victimhood are leading to authoritarianism and censorship on the part of those who were subjected to past injustices.

The Bangadesh war crimes tribunal has opened a can of worms, led to a grihojuddho (a war at home) and Bangladesh has been on a knife edge. The current ‘secular, liberal ‘government, personnels of which are victims of the war of 1971 have sought to legitimise state institutions, its authority through draconian rules relating to its digital sphere, history writing and numbers linked to the war (canonising the 3 million dead and 200,00 raped). There is an acute restriction of freedom of speech in Bangladesh and is marked by extra-judicial killings and disappearances of opposition party members. However, international governments have refrained from criticising Bangladeshi authorities who have been absorbing the huge number of Rohingya refugees and Bangladesh’s market and excellent growth rates are another cause of celebration in the international community. With a new vigour, the tribunal opened up the injustices of 1971, its contestations, and its history of rape to a projonmo (new generation) and to the world. At the same time, many believe that the ghosts of 1971 that the tribunal sought to expunge may continue to haunt Bangladesh. I want to end this contribution to highlight the geopolitical anomalies that are central to these international affective justices. Though Bangladesh has rejected ICC, the recent case brought by Gambia against Myanmar in relation to the Rohingya refugees has been hailed among Bangladeshi activists and the ICC is back in the spotlight. Russia and China have however vetoed any sanctions to be brought by the Security Council against Myanmar.

Thinking through Affective Justice’s contribution to an Anthropology of international justice through a recognition of what is seen as legitimate and legible as injustices needs to be undertaken not only at the level of international organisations but also at the level of networks of victims of survivors and activists working on their behalf. How, then, should ethnographer/activists and activists relate? In trying to examine this objective violence of giving voice and seeking justice – inherent within which lies the essence of force (Derrida 1992: 5) – we need to ask: how does this universal desire for justice and the will to explain violence work to reproduce the very violence that activists seek to condemn? At what cost are these stories being renarrated and what is the nature of this justice? What is the role of ethnographic insight into activism that seeks redress for colonialism, imperialism, genocide, rape, and the unresolved traumas of past unjust wars but at the same time remains censored about national authoritarianism of protagonist victims? Bangladesh and Rwanda are two illustrations of this phenomenon. Perhaps academic criticism might generate a dialectical and dialogical dynamic of autocritique—where these organisations can be reflexive and critical of their movements and take on board the multiplicity of dissenting voices. This would only strengthen these radical movements. Or would that merely add to the complexity and interrupt the clarity of activism? Do altered political and historical conditions make such critique irrelevant? We need to examine whether as researchers we can contribute to a progressive politics in the context of the historical and political trajectories in which such engagement takes place. However, this should not deter ethnographers from explicitly articulating and occupying political positions while also identifying the complexities and nuances of all sides.

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