29 May Affective Justice Symposium: Sentiments of Justice, Legalism and Affective Meta-Justice at the Dawn of Postliberalism
[Olaf Zenker is a Professor at the Department for Anthropology and Philosophy at the Martin Luther University Halle-Wittenberg (Germany). He is a political and legal anthropologist researching (post-)conflict, inequality and justice in Africa and Europe, especially in contexts of normative pluralities including international criminal law.]
Kamari Clarke’s Affective Justice is an impressive accomplishment and important contribution to the expanding field of the anthropology of justice, and of international justice in particular. It is a dual feat, offering a compelling critique of international criminal justice in and beyond Africa while simultaneously establishing “affective justice” as a new theoretical field of enquiry. In her detailed analysis, Clarke studies both the making of the anti-impunity movement giving legitimacy to the International Criminal Court (ICC) in The Hague which came into existence in 2002 based on the Rome Statute (1998); and she describes, and makes intelligible, the recent Pan-Africanist pushback against the ICC, especially through moves by the African Union (AU), in response to the highly selective and biased targeting of African leaders within an ostensibly universalist pro-accountability agenda. This Pan-Africanist opposition and pushback to the ICC has comprised a complex assemblage of practices including demands for specific deferrals and amendments to the Rome Statute, threats of withdrawal from the ICC and the push for an African Court with criminal – and crucially: expanded criminal jurisdiction in lieu of the ICC.
Clarke offers an intriguing, multi-modal ethnography of transnational assemblages of justice-as-law at multiple scales, approached through a practice theory of embodied affects, emotional regimes and technocratic forms of knowledge, inspired by Deleuze and Guattari. Highlighting the sentimentalized expressions and nonverbal cues reflecting the strongly held and felt senses of justice within vignette encounters with a US missionary, an East African civil society activist and a West African public intellectual, Kamari compellingly demonstrates in her preface the intuition underlying Affective Justice at large: that the validity of her interlocutors’ articulations of justice in support or rejection of the ICC or an African criminal court was “not rendered legitimate because of their experience or facts, but because of the profound affective performance and sentimentalism that accompanied their speech acts and the institutionalized forms that reinforced such narratives.” (p. xxiii).
Thus, “affective justice” refers to “people’s embodied engagements with and production of justice through particular structures of power, history and contingencies” (p. 5), in which psychosocial embodied affects, emotional regimes and legal technocratic practices become entangled in such a way that, what is felt as injustice and what as a just and adequate response, appears compellingly obvious. Such an approach goes a long way to help us better understand the differential force of divergent “sentiments of justice” (Bens/Zenker 2017 & 2019) for different audiences, and of the plausibility of evoked connections between events or phenomena that, from a different angle, might as well appear as unrelated. Affective justice is this nexus of affect and power in emotional appeals and the sentimentality used in narratives to contribute to how justice is imagined – and its meandering and incongruent permutations in the field of international criminal law constitutes the subject matter of this though-provoking work.
The book consists of two parts: part I, comprising four chapters, deals with “component parts of the international criminal law assemblage”. The nuanced analysis shows how the pro-accountability movement in support of the International Criminal Court has mobilised the figures of the fetishized “victim to be protected” and the (African) “perpetrator to be prosecuted” within a global geography of individualised criminal responsibility that deals only with the short-time span of the criminal act (“legal time”). Alternative forms of justice – for instance, restorative justice through reparations – are thereby side-lined through the technocratic workings of what Clarke calls “legal encapsulation”: a process, which only seeks retribution against an individual perpetrator within a narrowly judicialized form of justice.
Engaging, among others, with the case of Kenyatta and Ruto in Kenya, who were indicted by the ICC for bearing responsibility for post-election violence in Kenya in 2007-8, Clarke scrutinises divergent historical narratives propagated by both the pro-accountability movement around the ICC and by Pan-Africanist voices increasingly sceptical of international justice. These narratives link their current political claims to different key moments of sentimentality in different pasts: they either evoke the short-term temporality of a recent criminal act in danger of impunity or the longer durée and legacy of colonial injustices in order to recontextualize these moments and reattribute culpability with regard to the desired messages of mobilization. If successful, such “legal reattribution” results in what Clarke calls “affective transference”: particular forms of sentimental attachments in situations that could be argued to have otherwise unrelated causality.
Zooming into the case of Kenyatta and Ruto, the analysis reveals conflicting affective evocations of culpability: they and their supporters have articulated different affective attributions of culpability that transcend the individualised and short-term constructions of perpetrators in international law. Not only their reattribution, but also that of survivors of the violence at issue, speak of collective responsibility for violence in the context of deep histories of colonialism, dispossession, continuing extractive capitalism and persisting structural inequalities, in which African leaders figure as heroes rather than as perpetrators.
Against this backdrop, the two chapters of part II focus on “affects, emotional regimes, and the reattribution of international law”, through which the recent Pan-Africanist pushback against the ICC has taken shape. Clarke maps the postcolonial development of the “African Court of Justice”, recently envisioned through the Malabo Protocol of the African Union to also have criminal jurisdiction in place of the ICC. These attempts at institutionalising a specific African geography of justice are concerned not only with having African crimes prosecuted in Africa, but also with expanding the list of actionable crimes to include piracy, illicit exploitation of natural resources etc., going well beyond the individualization of criminal responsibility through also including corporate criminal liability.
Clarke demonstrates how this process of expanding the jurisdiction of the African Court formed part of a broader strategy, in which African heads of state tried, unsuccessfully, to reform the Rome Statute, reform the referral system by the UN security council, expand the mandate of the African Court and, finally, threaten withdrawal from the Rome Statute. Although African leaders and civil society are hardly united in their attitudes toward the ICC and the pro-accountability movement, Clarke compellingly argues that attempts to re-attribute culpability and imagine alternative forms of justice through the invocation of divergent temporal and spatial scales and different understandings of also collective responsibility cannot be reduced to simple attempts by sitting African heads-of-state to evade legal prosecution: different affectivities and senses of injustice get evoked that resonate with profound experiences of structural inequalities among many Africans that simply remain unaddressed by the narrow mandate and enormous selectivity of international criminal justice and the liberal sentimental legalism that propels this hegemonic assemblage of justice-as-law.
This field-defining book constitutes an important starting point for a much more grounded engagement with sentiments of justice, as they get evoked and contested inside and outside of “the law”, in Africa and beyond. In this spirit, I wish to conclude with interrogating the book regarding four questions or problems that a focus on “affective justice” arguably invites. To begin with, both the legal encapsulation driving the regime of international criminal justice and the legal reattribution that its Pan-Africanist critics pursue ultimately evoke alternative versions of “justice-as-law”: as shown, the alternative to the ICC advocated by the African Union is not so much an explicit anti-neocolonial politics, but rather an altered international legality in the form of a refashioned African Court of Justice. In other words, both sides seem to uphold a joint faith in the power of international law. This raises questions about the potential of affective justice to also animate extra-legal forms of popular and populist politics, of insurgent citizenship and a return of the political as emanating from “living politics” (Chance 2017) aside from the law. Moreover: how are the interfaces between the political and legal reconfigured at the contemporary moment and what role does “affective justice” play in this shifting dynamic?
This leads directly over to a second question: the emergence of the anti-impunity movement since the end of the Cold War can be seen as part of a broader dynamic, in which globally hegemonic projects of spreading constitutionalism, “the rule of law” and “good governance” have driven an increasing juridification and judicialization of politics at “the end of history” (Fukuyama 1992), in the course of which more and more issues have been addressed and negotiated in legal terms within and beyond courts. The International Criminal Court as well as the legalist Pan-Africanist pushback that Affective Justice charts is, of course, part of this development. Yet, in recent years, the upsurge of right populism in much of Euro-America and of right (and left) populisms in many parts of the Global South has arguably also brought about a return of the political, profoundly challenging the hitherto hegemonic project of liberal sentimental legalism as enshrined in travelling models of Western liberal democracy and international (criminal) law. This new “postliberal condition” (Zenker, forthcoming) is bound to have profound consequences for the ways, in which affective justice becomes imagined, felt and embodied. Thus, the question arises: what are the emerging contours and permutations of specifically postliberal affective-justice assemblages?
This descriptive question gives rise, thirdly, to normative conundrums: if Affective Justice rightly highlights the need to take more seriously the sentimentalised nature of everyday justice, to go beyond rationalist arguments about the telling of the truth to also account for the affective truth of the telling, the normative question remains or in fact: intensifies, which deeply felt “truth” one should politically support. Affective Justice masterfully succeeds in (affectively?) winning support for an alternative affective history of a violent African present, exposing and condemning the ICC’s narrow legalistic focus on the individual perpetrator to be prosecuted as silencing and evading the deeply felt broader realities of structural violence and inequality within the African postcolony. Yet how does this argument transmogrify when travelling to the centres, in the Global North, of “post-truth” and “alternative facts” in Washington and beyond? If affective justice convincingly demands to analytically empathise with sentimentalized contextualisations of justice-making under contingent conditions, does this approach also offer grounds on which to base one’s choice with whom/what cause to normatively sympathise – and what kind of affective meta-justice underlies such a choice?
Last but not least: Affective Justice compellingly demonstrates the limits of the law, the dark undersides of its allegedly emancipatory and liberatory project promising certainty, fairness, equal treatment, procedural regularity and, thus, “objectivity”. While empirically charting the legalist response by Pan-Africanist critics of international criminal justice, Clarke’s tone is, by and large, one of scepticism regarding the law’s potential to bring about true justice. Yet this moderate anti-legalism, sentimentally animating the book, possibly misses the chance to fully appreciate the ironic, if not paradoxical potential of law, as law, to intrinsically increase the probability of revealing its own failures by itself, of inviting being called its bluff. The Marxist historian E.P. Thompson famously and provocatively argued in the postscript to his “Whigs and Hunters” (1975), that the rule of law constitutes “an unqualified human good”, in that – although, of course, being ideological and a means of oppression for the powerful – it is the law’s partial autonomy from pure power politics that renders rulers unwittingly prisoners of their own rhetoric: for the law to function successfully, at least on occasion it actually has to be just; thereby it also renders rulers more easily legible in providing a yardstick against which their actual behaviour can be measured, criticised and opposed. Turning this into an epistemological argument, legalism arguably operates as that form of “broken promise” which simultaneously offers the means to reveal its relative failures. It remains an argument to be made, with regard to international justice and beyond, that non-legal forms of engagement – always, in principle, equally ideological, oppressive, violent, silencing – are as bad a liar as the law, and hence to be preferred as objects of immanent critique.
That questions such as these about the affective force of law can be asked anew and addressed with precision analytically, empirically and normatively attests to the importance of this major contribution to the field that it simultaneously establishes: Affective Justice.