Affective Justice Symposium: International Justice in Africa–Not All That Simple

[Sarah M.H. Nouwen is a Reader in International Law at the University of Cambridge.]

Do you recognise the experience? One meets a total stranger (in a taxi, at a reception, on a plane), a conversation begins about an aspect of the state of the world, and already after the first exchange of sentences one realises: this is going to be a tough one – our world views are worlds apart. What do you do? Direct the topic to something more agreeable, the weather, or fully dive into the debate, trying to persuade?

Kamari Clarke opens her book Affective Justice: The International Criminal Court and the Pan-Africanist Pushback with such an episode. On a plane to Addis Ababa, she sits next to a missionary from the US. While he expresses nervousness about living in Africa, with all its violence and poverty, he is excited about bringing humanitarian enlightenment. After she has described her research into international justice and Africa, he immediately asks whether the ICC has convicted Kenyatta and al-Bashir yet. For him it is clear: convict them and there is justice for the victims. She tries to turn his attention to the wars fought by his own state in Iraq and Afghanistan and the number of people killed as a result of those wars, but in his view those wars are just whereas the violence in Kenya and Sudan is irrational.

To me, reading this episode prompted flashbacks of a bicycle ride in Khartoum in 2011. I have forgotten how, but I had met a fellow ‘international expert’ with whom I had a few things in common. Most relevant to me was that he also had a bicycle – a rarity in the hot, dusty and crowded Sudanese capital. We cycled to Tuti Island, an island of a few square kilometres at the place where the White Nile and Blue Nile meet and continue together as the Nile. I commented on how the construction of a bridge had changed the place since I first cycled there in 2005. In the times that one could reach it only by little boats, the island had been a green oasis located in the middle of the ‘Three Towns’ (Khartoum, Omdurman and Bahri) that make greater Khartoum a metropole. The island used to have one small village; the rest was dedicated to supplying Khartoum with fruit and veg: citrus orchards and farms, mostly relying on manual methods of farming, with donkeys and rickshaws traversing over the narrow dirt roads. Things had changed. Due to the bridge, there were plenty of cars, it was crowded and noisy, and land was demarcated for building projects tailored to the tourist industry. My fellow cyclist said that my longing for the old days would keep people poor: what we were observing was development, progress. Indeed, this was what we were here to bring. Rid the government of its criminal leaders, plug the country into the world economy and teach the Sudanese how to run a country. What was I doing here if I did not believe we could help fix the place? It was all so simple. I do not recall the lines of my response, but they included the colonial encounter (the most symbolic of which, between the Mahdi’s men and General Gordon, had occurred in the palace on the river bank facing us) and its continuous effects, the relevance of domestic and international patronage systems and our own problematic positions as so-called ‘experts’. However, I vividly remember, even physically, my visceral reaction to his views. As if trying to distance myself from them, I started cycling faster and faster. (I failed entirely: his bike had come in the expat container; mine was from the neighbourhood souk: a plastic thing with gears for decoration only).

Reading Kamari Clarke’s book almost a decade later made me better understand this physical reaction and memory. Justice and injustice are not just products of legal and political reasoning and enforcement. They are felt. Clarke argues that such feelings are produced: by education, by experience, by history and social structures, and by rhetoric. Alliances form around different understandings of, and different feelings about, justice and injustice. As the title reflects, she primarily focuses on two different groups: international criminal justice advocates and Pan-African justice supporters. Roughly summarised, she argues that the former focus on legal justice for victims of physical violence committed by perpetrators against individual victims; the latter on structural injustices such as slavery, colonialism, apartheid, and other forms of exploitation and subjugation, injustices that reverberate in the post-colonial state. Logically, these two categories need not demand exclusive attention. But the Pan-African backlash results from the fact that the focus on the former has the effect to paper over, perhaps even legitimise, the latter. Simply put: the understanding of the former type of injustice is ‘too simple’ if it fails to take into account the continuous presence and impact of the latter. Clarke concludes her book with another telling illustration, one that I will not spoil by repeating it. But I will give away the lesson she draws from it: history and social circumstances should matter for the assessment of culpability and justice.

The argument about how these two diverging understandings of justice are co-producing as well as co-produced by regimes of feeling explains not just my little episode, but also, and more importantly, for instance, what many international criminal justice events are about. If one sits through or reads statements made at, say, the Assembly of States Parties, one’s first reaction could well be: What’s new? Don’t we all know how bad impunity is? (Indeed: at some of these events it almost sounds as if impunity itself has become the supreme crime). But these speeches are hardly about what they say. As Clarke argues, also with respect to speeches of the opponent camp, their power lies in what they leave implied, the memories they prompt and the feelings they arouse. Her argument also explains why the debates, or perhaps more accurately, monologues of the two sides, on articles 27 and 98 of the Rome Statute are so heated. Had it been only about purely technical interpretation skills, those who argued that Jordan was obliged to respect President Bashir’s immunity would not have been depicted as al-Bashir defenders. This is about fundamentally different emphases in understanding, and feeling, of injustice: as the impunity of those in power accused of having committed international crimes or as international institutions entrenching neo-colonial power inequalities. Precisely because the feelings are so intense, there is very little genuine dialogue: the rhetoric easily develops into ‘you are with us or against us’.

Relying on extensive ethnographic research, Clarke makes forceful arguments about how the Pan-African pushback against the International Criminal Court has developed and what has come out of it. The challenge of ethnographic research is that the more one knows, the less one knows: the more one knows about the details of the situation, the more one realises that the situation is even more nuanced. Combining high-level theory and novel concepts on the one hand with ‘thick description’ on the other is a real challenge and Clarke manages to pull it off.

I would have been interested in even more of the thick description, in even more depth, especially when it comes to what Clarke presents as the Pan-African alternatives or responses to international criminal justice. For what at one level may appear as different, may at another prove to be more of the same. True, the Malabo Protocol, creating a regional criminal jurisdiction, differs from the Rome Statute, among others in terms of the substantive jurisdiction, the possibility of corporate liability and its respect for immunities. And yet, at a deeper level, it still pursues criminal responsibility, without setting forth an alternative way of dealing with an issue that key actors in the AU have considered essential: the impact of prosecutions on efforts to make peace. Similarly, the hybrid court proposed by the African Union High-Level Panel for Darfur (AUPD) may be composed of Sudanese and other African lawyers, but the model is still entirely criminal justice. Seen in the broader context of the approach and recommendations of the AUPD report, the hybrid-court proposal was a relatively small component of a holistic justice strategy. It received disproportionate international attention precisely because international-criminal-justice supporters zoomed in on that component, possibly because that was the one element that corresponded most neatly with their vision of justice. It would be difficult to imagine, however, that the hybrid court was the core of the AUPD’s vision, given that the Panel’s chairman, former South African President Thabo Mbeki, has explicitly written, in a piece that Clarke also cites, that courts are not the way to address conflicts. Thirdly, was the African Union’s Commission of Inquiry such a radical alternative to that of international criminal justice, considering that commissions of inquiry often lead to criminal justice, as it did in this case? An even thicker description would allow the more radical alternative concepts to come out as well.

Moreover, even more empirical detail would allow the reader to gain more insights into why the concessions to the dominant model are apparently made. Clarke acknowledges that the examples she offers are not radical alternatives and offers as one explanation that African states want to be part of the global community. There are additional explanations. Like other international organisations, the African Union is composed of many actors. African States have given policymakers, bureaucrats and legal consultants relatively ample leeway to produce texts on all kinds of justice-related issues. Whether anyone high up representing the AU actually takes these documents into account is a very different matter. In the context of the United Nations, too, some guidelines are written for external consumption; they are hardly used by the top political actors: they don’t want to be told how to make peace. Similarly, in the AU, the most senior political actors, often (former) Heads of State, have visions of justice that do not necessarily correspond with policy documents that have been written by legal consultants and have been formally endorsed by states. That is why it is so relevant that Clarke points out that the Malabo protocol lacks ratifications. Similarly,  policy documents on transitional justice (often drafted by consultants) may have little purchase at moments that they would matter most. My interest in even more empirical depth only underscores Clarke’s argument for the need for an anthropology of international justice. Few have made as many contributions to that endeavour as she has.

I hope that many will read Clarke’s book. It may foster understanding and indeed empathy of alternative conceptions and feelings of justice and injustice. It will also enhance understanding of how such conceptions and feelings shape responses to world affairs, including legal responses. Returning to the situation in Sudan, I hope that such understanding will lead justice supporters not narrowly to lobby for al-Bashir’s transfer to The Hague and for Sudan to set up criminal courts to address the multitude of crimes committed in Darfur. Promoting justice also means supporting Sudan’s democratic transition. In 2019, the Sudanese, and only the Sudanese, managed to oust President al-Bashir and create a joint civilian-military government, based on a necessary but fragile bargain. A key trigger of the 2019 revolution was the economic crisis. Now, a year later, the economic situation is even worse. COVID-19 cannot be assigned primary responsibility. For the new civilian-led government to be able to do better it needs economic means. Debt restructuring is put on hold as long as the US keeps Sudan on the ‘State Sponsors of Terrorism’ list and does not lift its comprehensive sanctions. These measures have held the country economically hostage to continuous but chameleonic US conditionality. One aspect of justice is political and legal accountability of al-Bashir and others. But justice is as well bread on the table and an economic ability to exercise the right to self-determination.