Distant Justice Symposium: How Colonial Inscriptions Continue to Matter in ICC and Africa Dynamics

[Kamari Maxine Clarke is a Professor at the University of California, Los Angeles. 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.]

With a spectacular introductory opening that sets the stage for understanding Bosco Ntaganda’s appearance before the International Criminal Court (ICC), Phil Clark’s Distant Justice draws on eleven years of research to dramatize the micro- and macro-politics of international justice in a distant location – The Hague, the Netherlands – where the appearance of those indicted by the ICC are given a human, even an ordinary face. Situating the place of politics in international legal processes, the book offers an important analysis of the messiness of the socio-political machinery that makes possible particular entanglements amongst the ICC, Ugandan and the Democratic Republic of the Congo’s landscapes.

Frontloading a discussion of his research methodology – 650 interviews with political elites, public officials, everyday people, and 7 visits to the ICC’s main office – Distant Justice offers an eloquent analysis into particular international court practices of distancing and domination in Uganda and the Democratic Republic of the Congo (DRC). The key discussions concern how to analyze the ICC’s impact through the distant justice metaphor. Conceptually, distant justice is about the way that the ICC is able to intervene in on-going violence in African ‘situations’ through the ability to structure the nature of those engagements in relation to its own structures, priorities and goals (Clark, at 37).  Central to the notion of distant justice is the creation of structures of superior technical, legal and political knowledge domains through which they intersect with various legal, social, political, historical processes. Such conceptualizations offer ways of pinpointing the relationship between court agents’ (investigators, prosecutors, defence lawyers, judges, and so forth) lack of attachment to local situations and the appearance of being unencumbered by domestic political considerations.

Clark’s framework is conceptually useful in explaining the way that international justice works as a mechanism for reinforcing the court’s technocratic and political power. However, in departing from narratives that the ICC is a neocolonial instrument of imperial and Western powers determined to reproduce the oppression of Africans, Clark insists that we need to move beyond such framings in order to make sense of the power of African states. Following political scientist Jean Francois Bayart’s conception of extraversion, he argues that states that see themselves as being weakly positioned in international relations regain power through attempts to control the terms of engagement.  Key to extraversion is a way of seeing how the African political elites are actually able to subvert the ICC’s power. This analysis offers a way to discuss power and complexity as well as the micro-politics of state cooperation and institutional subversion.  However, as important as that insight is, there are costs to an approach that dismisses neocolonial arguments as simplistic and devoid of power. What it misses is not only the conditions of inequality in African post-colonial settings, but also the work that such narratives do to enable conditions of buy-in and alliance as well as the very avenue for articulating how inequality feels.

First – when the management of African violence is understood in relation to the workings of white supremacy, patriarchy, and particular legal logics, we see how the twenty-first-century’s emergence of ‘justice as law’ sentiments is not unrelated to the structural inequalities within which postcolonial Africa’s violence is unfolding. From the post-independence failures of African state experiments in the 1960s through the 1990s, African dependencies on International Monetary Fund (imf) and World Bank projects contributed to states becoming increasingly economically and politically vulnerable to neocolonial forms of extraction and control. By the early twenty-first century, a highly orchestrated and carefully designed international campaign of human rights law, humanitarian law, and international criminal law emerged with Africa as its focus. Post-conflict African states became experimental sites for a new generation of technocratic knowledge—including legal scholars and practitioners (mostly from North America, Europe, and Australia), who amassed armies of interns and graduates eager to deploy the tools of legal education while launching and advancing international careers. As I argued in Fictions of Justice (2009), alongside freshly minted legal professionals in Africa and other parts of the Global South, these actors participate in the development of international legal practice and scholarship and collaborated with—at times were led by—northern technocrats committed to using law, such as domestic and international prosecutions, to rectify violence. Yet legal attempts to individualize criminal responsibility in African contexts cannot solve the deeply historical structures of violence.  Rather, structures of inequality fester and produce conditions for violence and demand political solutions to address such inequalities.

Second – it should not be a surprise that neocolonial arguments are often about structures of inequality that are not easily visible factors shaping direct forms of perpetration of mass atrocity violence. The reality is that the impact of colonial disenfranchisement continues to structure the conditions of violence in the African post-colony. It does not matter whether neocolonialism is real or evident in social relationships.  What matters is that people feel that it is relevant and see themselves in being affected by its structuring terrain. This means that the narrative formulations that are used to communicate feelings of disenfranchisement matter as much as the processes of subversion of power.  Seen in this way, it is important to make sense of when various invocations of injustice are used and how people use them to subvert or re-assign meanings.

By making sense of what people do with feelings about injustice, we can tie those feelings to the regimes of knowledge and power through which international law is rendered useful or not useful – as in the case of some of the African elite. But these feelings are not just peripheral. They perform a particular type of discursive work that takes shape through a range of modalities– such as feelings about African poverty and their relationship to colonial inequality, that compel constituencies to act. These modalities are profoundly critical in that they shape not only the vocabularies for guilt and innocence, but they also contribute to the regimentation of social imaginaries that determine which expressions are deemed legitimate, appropriate, or unacceptable to particular audiences.  In the case of using neocolonial claims to explain ICC-African relations, such claims have actually produced the terms on which new spatial geographies of justice are being articulated and formed. This provides an opportunity to consider the way that feelings about historical or colonial injustice are intimately linked to power. It is important to see how known histories of injustice shape not only the narrativization of injustice but also the way that power is brokered in that process (also see Clarke, Affective Justice, forthcoming 2019).

If we consider the way that the distant justice approaches by ICC agents might lead to forms of subversion that produce forms of political protest, it is useful to consider some points that Clark misses, such as how the idea of the establishment of an African Court with three jurisdictions (human rights, criminal and general jurisdiction) might serve as an example of the angst from historical disenfranchisement and attempts to promote counter processes that undermine such structures.  In June 2014 the African Union not only passed the Malabo Protocol for the African Court to eventually establish a court that would address feelings of legal disenfranchisement and political and economic inequality.  And through its criminal jurisdiction it also added a provision – 46 A Bis – which in response to ICC indictments of only Africans and various heads of state precludes the indictment of heads of state or government leaders. Such developments are not unrelated to the neocolonial narratives that were invoked by African state leaders. They are symptomatic of the way that colonial inscriptions are constitutive of the African past and are available discourses for subverting daily forms of structural inequality. In this case, the creation of new ‘African Geographies of Justice’ (Clarke, forthcoming) provides a new domain for thinking about the way that neocolonialism and the feelings it conjures provides a political corrective to distant justice.  Such an example not only speaks to the place of what emotions do in the world, but also to what people do with those emotions. By providing new spatial articulations of justice that reflect those social and political formations that are in keeping with African landscapes, it describes African attempts to engage and disrupt what many see as ICC jurisprudential dominance.

Clark’s text may dismiss the relevance of neocolonial discourses and their explanatory power, but it is clear that doing so is an attempt to clarify the agency of African leaders and stakeholders. It distinguishes itself as a wonderfully ambitious and insightful analysis of Africa – ICC issues, and in this sense, it establishes a new bar for what is possible in understanding the complexities of international law and politics in Africa today.