Affective Justice Symposium: Affective Justice Under Scrutiny–Introduction to the Forum

[Kamari M. Clarke is Professor of Anthropology at the University of California Los Angeles. Her work spans the emergence of various transnational legal domains, especially international criminal tribunals and the export and spread of international legal norms. [This is the latest post in our symposium on her book, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (Duke University Press, 2019)].

With its twenty-year inauguration soon upon us, The International Criminal Court (ICC) continues to face turbulent times. An examination of its actors, their contributions to its jurisprudence, the controversies surrounding its actions and impact, and the domain of the political which both shape it and render it silent, have made international justice as controversial as ever. At a time when solutions to global violence are so desperately needed, tensions between the ICC and African stakeholders have never been more fraught. On the one hand, from its inception in 2002, the ICC has issued indictments for over thirty-six individuals—all Africans, prompting stakeholders to view these processes as highly selective and biased. Yet, African states are amongst the world’s regional majority to submit to the jurisdiction of the court. They also comprise one of the regions in the world characterized by ongoing violence and the largest refugee challenges of our time. How do we understand this conundrum and make sense of the rise of an anti-impunity movement?

We are told that, as a new institutional formation, the ICC does not have privileges afforded sovereign states, such as enforcement of power, a police force or military, or the loyalty of a citizenry. From where does it draw its power? Some locate the power of its authority in the cooperation of state parties. Yet, empirical scrutiny reveals an absence of traditional mechanisms of force and sovereign power, which renders the study of the ICC’s force so fascinating. It is also this absence in African circuits that makes various Pan-Africanist responses critical to understand. In weighing various Pan-Africanist responses, we sense there is something else at play that Affective Justice seeks to uncover and illuminate.

When I began fieldwork for Affective Justice in 2012, I was building on more than a decade of ethnographic exploration of the ICC at various geographic sites. I committed myself to taking seriously the role of emotion and affects as central (and not residual) to international law’s power. This study that led to the book’s publication does not argue for or against the court. Nor does it maintain a position on which interpretation of international customary law ought to be dominant. Rather, this contribution is an attempt to understand the force of the law beyond the black letter. It explores law’s force through the affective worlds that carry out experiences By glimpsing and tracing how affects circulate at multiple geographic scales, it highlights the central role that affects play in the reformulation of new justice arrangements and connect them to a messy assemblage of power forms, including regimes that channel feelings and institutional conditions that shape possibilities.  Through this framework it takes as its subject the emotionally-charged rights discourses or anti-colonial histories that shape conceptions of justice.

The eleven contributions to this symposium provide platforms for both engaging a number of key points that motivated the writing of this book and for extending its insights into important new areas even as complex forces continue to shape the groundwork for international justice, the terrain upon which fervent debates still circulate.