Affective Justice Symposium: Affected Justice–Using Criminal Justice as a Political Tool

[Dire Tladi is a Professor of International Law, at the University of Pretoria, a member of UN International Law Commission and its Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens).]

Given the scourge of the Corona pandemic, the timing for this post is perhaps awkward at best. 

But still, I was very pleased when requested to provide some thoughts on Kamari Clarke’s new book Affective Justice: The International Criminal Justice and the Pan-Africanist Pushback. I was pleased not only because I count Kamari as a friend, but also because one of the underlying themes of her book resonates very strongly with a theme in my own research.  By advancing the idea of “affective justice”, she attempts to demonstrate those tools and motifs that are used to capture the imagination, in a way that permits those wielding the tools to direct the narrative towards whatever agenda is most important to them.  To use Kamari’s words, it describes how “international justice mobilizations …gain power through conjectures among legal ephemeral and embodied imaginaries.” (at 5) Lawyers and international politics scholars have monopolised the study of international criminal justice, but through her work, Kamari opens up the space for an alternative perspective from which to observe international criminal justice: anthropology.

One of Kamari’s favourite tools or motifs for observation is the motif of the victim: the nameless victim. Not an identified individual or group of individuals, but the emblematic, evocative idea of “the victim” – Kamari describes this as “the emotionally infused category of the victim” (at 67). Who speaks for these victims? A well-connected, network of NGOs, euphemistically referred to as civil society, that has stealthily embedded itself throughout the world and stands as the voice of the victim. Of course, part of the arsenal of the network is the establishment and funding of victims’ groups to clothe the motif with a semblance of legitimacy. In the book, Kamari refers to the “act of replacing visible African suffering with embodiments of digital social protest movement” as yet another way that the term “the victim” is being encapsulated (or invented) (130). In her book, Kamari identifies a trend in which “an NGO-led movement of anti-impunity” has “through particular emotional regimes” propelled a conception that aligns with “neoliberal forms of economic and political governance.” Kamari’s concern is different from mine.  Her concern is directed at conceptions of justice which exclude different forms of justice. My own concern about narratives is not so much about a narrowing or a broadening of concept of justice. Rather it is about the unequal application of the very narrow conception of justice propagated by the system (and conception of justice that I can well embrace).

The well-connected network of NGOs, euphemistically referred to as civil society, which I referred to above and which Kamari has called the “movement of anti-impunity”, not only speaks on behalf of the ubiquitous victim, but is also often seen to reflect the views of another figment, or creation, that is used to advance narratives: the international community.  The construct of “international community” does not play a significant role in the book. She describes it as “an important site of discourse that merges humanitarianism with foreign policy making and international criminal mechanisms that are sustained by a responsibility to protect discourse.” (at 67).  But what the book does do is describe in vivid terms, the connection between these two constructs, i.e. “victims” and the “international community.”  She states that “..the rise of this of judicialization of justice can be seen through the way that we, the ‘international community’ become proxy ‘victims’ through this hyper-embodied representations by celebrities, activists, lawyers and judges.” (at 130-131).  As I said above, while Kamari’s primary occupation is the narrowing of justice to “judicialization” to the exclusion of other forms of justice, I also see the risk of these concepts being used to advance, under the cloak of law and justice, particular narratives designed to achieve particular political objectives, namely the protection of the powerful.

What follows is counter-intuitive but bear with me! One way to observe how the tool of the “international community” is used to build narratives in actions that are not championed:

• As a former diplomat, I sat amazed at the complete, but united, silence of civil society, the voice of the international community, the voice of the victims, when the vast of majority of States, mainly from the South, pressed for the ICC Assembly of States to adopt an amendment to the Rome Statute that would lead to the activation of the Court’s jurisdiction over the crime of aggression. But in reality, I should not have been surprised. The crime of aggression is a crime committed by the powerful. In the grand scheme of geopolitical cost-benefit analysis, the victims of these crimes are expendable.
• Civil society has not been as vocal about the need to pursue justice at all costs for the victims of the Israeli-Palestinian conflict – to be fair, there have been sporadic calls for movement, but these have been few and far between and not nearly as vociferous as the calls for justice for the victims where the not so powerful are implicated. In respect of the situation in Palestine, legal technical arguments about doubts concerning the statehood of Palestine are able to considerably slow down movement. In that conflict, as is the case in other situations that may implicate the powerful such as Iraq and Afghanistan, it is acceptable for the Office of the Prosecutor to spend a decade or so on preliminary analysis, while in some cases, such as Libya, a matter of weeks is sufficient.
• UNSC resolutions referring situations to the ICC have been criticised by the anti-impunity movement. It is now well-known that these resolutions are defective in three significant ways: (i) they do not establish a duty to cooperate on all States, and limit this duty under the resolution only to the situation country and the parties to conflict; (ii) they purport to exclude the possibility of UN funding for the investigations and proceedings undertaken pursuant to the resolutions; and (iii) they exclude the jurisdiction of the ICC and States parties over particular cases under which they would otherwise have jurisdiction, in order to inoculate certain powerful States from external justice. While civil society has correctly criticised these features, this criticism has also been muted when compared to other campaigns. I pause here to note that civil society may respond to this critique by pointing to instances when its objections have been registered. But the fact that the general population is not aware of these flaws in UNSC resolutions, and yet is fully of aware of the details and nuances of the Bashir saga, is an indication that civil society has not been nearly vociferous enough in critiquing these resolutions. Moreover, by and large civil society has focused on the second of the features (budget), and not the more insidious features designed to protect the powerful, i.e. limited duty to cooperate and the exclusion of jurisdiction.     

I could cite more examples of instances in which the “international community” has remained silent when it ought to have been loudly condemning inaction. But I won’t. Instead, I want to end on a positive side-note. Those who know me will know that I think that all decisions and judgments of the various chambers of the ICC in respect to the duty to arrest Al Bashir have been wrong and dismally so. This applies equally to the confusing Appeals Chamber judgment. Yet there is one positive flowing from the Jordan Appeal judgment which was made possible by the Chamber’s use (I would have used abuse, but …) of the “international community” figment. The Appeals Chamber holds that when a State exercises arrest powers in response to an arrest warrant by an international court, it does so on behalf of the “international community”.  The effect of this very bad legal reasoning is that the erosion of immunity now applies not only to cases referred to the Court by the UNSC as was the case under the previous jurisprudence (with the result that those ‘entitled to protection from the UNSC’ could still claim immunity), but is now applicable by mere virtue of the fact that the exercise of jurisdiction by a State is in order to enforce a warrant of an international law.  

These concepts, victims and international community, are used to advance what has been termed hero v villain chasm. I hope Kamari’s book forces us to think critically about the use of emotionally charged concepts to establish and entrench narratives. The concepts of “victims” and “international community” are often used as argument enders. Once a position is said to be “for the victims” and taken because “the international community” has demanded it be done, reason no longer counts and anyone advancing an alternative view becomes an enemy of international criminal justice.