Affective Justice Symposium: “Recontextualizing Justice through Affect, History, and Biopolitics”

[Mark Goodale is Professor of Cultural and Social Anthropology and Director of the Laboratory of Cultural and Social Anthropology (LACS) at the University of Lausanne and also Series Editor of Stanford Studies in Human Rights. This is the latest post in our symposium on Kamari Maxine Clarke’s book, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback.]

Kamari Maxine Clarke’s superb ethnographic and critical study of the place of the International Criminal Court (ICC) within African history and politics demands a fundamental reevaluation of the meaning of “justice” against a background of colonial and neocolonial violence, postcolonial critique, and enduring inequalities of international power. Clarke’s intervention is the culmination of years of qualitative multisited research that tracked the workings of the ICC through a wide range of its prosecutorial activities, from The Hague to its ongoing field investigations against different African heads of state and senior government officials. At the same time, and perhaps even more important, Affective Justice approaches the status of the ICC in Africa from an innovative perspective. Instead of viewing the ICC through the lens of conventional institutionalism or international law, Clarke’s framework reconceives the Court as an affective regime whose prosecutions constitute a mechanism through which the international community maintains juridically defined boundaries that reinforce, rather than subvert, regional and global imbalances. On Clarke’s provocative reading, the ICC is less a novel institution committed to the promotion of global justice than an institution structured by what might be thought of as psychojuridical governmentality—the affective regulation and autoregulation of African publics through international law.

In this contribution, I will highlight what I believe are the three most far-reaching implications of Clarke’s critique of the ICC and her analysis of the corresponding “Pan-Africanist pushback.” I will then end by posing several questions for Clarke framed in a spirt of appreciative and constructive engagement. First, it is difficult to overstate the ways in which Clarke’s reframing of the ICC—and, by extension, many legal institutions, both domestic and international—compels a reconsideration of the orthodox relationship between law and justice. From a classical Weberian perspective, legal institutions are meant to rationalize the ways in which society responds to, and makes amends for, social wrongs. In this sense, the law serves as a mechanism of social rationality that is supposed to be both the best means for responding to the dislocations of social wrongs and the best means for ensuring social repair, the expression of common moral consensus, and, in the best of circumstances, social reconciliation. “Justice,” therefore, has been conventionally understood as both the smooth functioning of this rational sociolegal nexus and a description for what results—in American legal jurisprudence, the distinction between procedural and substantive justice.

However, what happens when the Weberian underpinnings of law are pulled away, or when the supposed rational linkages between law and ameliorative social consequences are broken? And if law and legal institutions are revealed to be quite different mechanisms for shaping outcomes that have very little to do with the social wrongs that are meant to be their exclusive concern, what then of justice? As Clarke’s study suggests, at least in relation to the ICC, the very conception of law itself should be understood differently: that is, as the justification for the Court, the grounds for its legitimacy, rather than as a description of its functions and impact on societies in Africa. Instead, from the perspective of descriptive social science, Clarke argues, the ICC is actually an institution that seeks to govern in the Foucauldian sense through both the production and management of public sentiments “reattributed” within legal categories such as culpability and impunity.

Second, Affective Justice historicizes international criminal law in a way that reveals its erasures and elisions and, in particular, re-embeds it in what Clarke describes as the “longue durée of structural violence” (p. 161). Anthropologists have played a complicated and indeed conflicted rule in this longue durée, one in which law was at the center of colonial expansion, and Clarke’s unpacking of the deep historical meanings of the ICC in Africa represents a profound contribution to the process through which anthropologists of law have acknowledged these histories. Working as colonial officials, anthropologists were the key ethnographic and intellectual sources for the various systems of both direct and indirect colonial rule through law, during which the legal regulation of colonial populations was considered—along with religious proselytism—to be an anchor of the civilizing mission. It is only fitting, then, that scholars like Clarke play a vanguard role in shedding light on the ways in which contemporary legal institutions like the ICC are seen by many as a problematic continuation of this legal-colonial legacy, one in which legal imposition from above and beyond was typically justified on social evolutionist grounds masked in the language of neo-Victorian liberalism.

And third, Clarke’s study of the ways in which the ICC functions as an affective regime through its prosecutions of African heads of state and senior officials develops an innovative sociolegal theory through which law becomes legible as a mechanism of biopolitical control. This is particularly salient in the domain of international criminal law, which claims to respond to some of the most traumatic episodes of mass violence and violation. As Clarke argues, international criminal law is instantiated in the juridified moments in which politics and the suffering human body are intertwined, that is, when politics are embodied through both categories like “perpetrator” and “victim” and through the actors who are compelled to inhabit these categories. And it goes without saying that, in Clarke’s analysis, the ICC’s mobilization of a biopolitical legality can never be neutral; instead, it is a way of ensuring that it is only the Court (with certain statutory exceptions) that decides when, against whom, and for whom to exercise its jurisdiction.

In light of these three main contributions, let me conclude by asking several questions. Given that “[l]aw operates within unequal fields of power and governance” and can also be understood as a “cultural artifact that embodies inequalities” (p. 258), would these critical descriptions also apply to the proposed African Court of Justice and Human Rights? In other words, is Clarke’s analysis of law limited to particular neocolonial formations or would it also necessarily extend to the postcolonial legal systems of different African countries and also, perhaps more significantly, to the proposed African Union alternative to the ICC? Second, how does Clarke measure the “Pan-Africanist pushback” against the current status of the Malabo Protocol? Since the Protocol was adopted by the African Union in June 2014, only 15 of the AU’s 55 member states have signed it, with zero ratifications (15 ratifications are needed to bring the Protocol into force). Importantly, some of the ICC’s main country critics, such as Burundi (which left the Rome Statute), South Africa, and Gambia have not even signed the Malabo Protocol, even with its inclusion of Art. 46A bis, which would grant immunity from prosecution for nearly all senior political leaders, including heads of state. Is the pushback taking other forms? Has the pushback weakened? And finally, given Clarke’s conceptual and ethnographic reconfiguration of “justice” as a social category through which powerful legal institutions regulate populations through affective governmentality, what are the possibilities for reimagining “justice” in other terms? Can Clarke envision historical and political contexts in which justice is freed from its biopolitical instrumentalities?