Affective Justice Symposium: Reflecting on Affective Justice

[Edwin Bikundo is a Senior Lecturer at the Griffith University Law School, Gold Coast, Australia with teaching and research interests in public international law and legal theory.]

Affective Justice, the new book by noted international criminal justice expert Kamari Maxine Clark is a deep, broad and profound study, mediation on and explication of the International Criminal Court’s engagement with Africa and it’s diaspora – broadly speaking – and likewise the engagement of Africa with the International Criminal Court (the ICC). It does this intriguingly by examining and explaining how ‘justice discourses are brought into being through the sum of their parts— technocratic knowledge, affects, and emotional regimes’ (p. xxi). The book divides into two parts (the first of which is ‘Component Parts of the International Criminal Law Assemblage‘ with the second being ‘Affects, Emotional Regimes, and the Reattribution of International Law’) and describes itself as ‘about the strategies of international justice brokers and the sentimentalized imaginaries of many of the African interlocutors’ (p. xxiii).  Its analysis breaks down international justice into a more or less ad hoc combination of component parts functioning ‘through an assemblage of moral imaginaries: the figures of the perpetrator, the victim/survivor, and the international community that activate the affective life of international criminal law assemblages and come into being through particular structuring histories and devices as well as random alliances’ (p. 7). This review will therefore take guidance and orient itself from the dichotomy between on the one hand international justice power brokers engaged in games of strategy and on the other hand those sentimental imaginaries of African interlocutors through and within an international criminal law assemblage to ask: technocratic knowledge aside, what are the affects and emotional regimes that distinguish and/or unite these broad groups and why would that even matter? The study leading to the book focussed ‘on the sentimental emotions … coded as anger, fear, vengeance, pain, sympathy, and victorious joy’ (p. xxvi). Do these cover international justice brokers just as much as their African interlocutors?  What about say irony? Irony occurs on at least four occasions in the book. One is when president Yoweri Museveni of Uganda makes acerbic commentary on the ICC’s and the UN’s role in both Kenya and Uganda (p. 32), another is in relation to US Attorney General Loretta Lynch’s attempt to both individualize guilt as well as render insignificant official capacity of perpetrators as possibly obscuring or erasing structural violence (p. 72). Another irony identified is that ‘when African stakeholders needed prosecutorial justice against colonial domination, international law could not be mobilized to provide viable solutions’ (p. 104).  Yet another irony noted is how the Africa Union and African civil society clashed over a branding campaign titled ‘I am African’ (p. 192). In international criminal justice, irony therefore unites and does not distinguish between African Statesmen, African civil society and even a superpower’s Attorney-General. What about hypocrisy? It too occurs four times. The first and second instances regard accusations of hypocrisy both against African leaders and the perceived hypocrisy of the West (p. 27). Third and fourth is in the perception of an ‘underlying hypocrisy’ in the ‘predominance of African cases before the ICC’, (p. 32) and consequently an accusation of the ICC itself as being hypocritical (p. 223).

Accusations of hypocrisy take in both the West and African leaders and the ICC, moreover given the visible presence of Africans in the high offices of the ICC irony too is present regarding all three. What then would preserve the international criminal justice project from both irony and hypocrisy? Only an earnest belief in the redemptive capacities of the project as a whole seems like a promising response. Which is to say that an earnest belief in what may be referred to as the unironic dramaturgy of international criminal justice is absolutely critical to its efficacy and survival. The performative elements of this dramaturgy at their most basic narratively require the hubris of the highly placed wrongdoer meeting its nemesis the international community followed by the catharsis of international criminal justice. Immi Tallgren, cited in the book (p. 281) notes in this regard, the Durkheimian ‘emphasis on the symbolic, ritualistic, and performative of the collective affects and sentiments of crime and punishment, be it horror, outrage and indignation awoken by crime or the appeasement and recomfort in the moral community that follow punishment’ (Immi Tallgren, ‘The Durkheimian Spell of International Criminal Law?’ Revue Interdisciplinaire d’Études Juridiques 71, no. 2 (2013): 137–169). This earnestness is only identified with Africans both state representatives and civil society and not once with the international justice powerbrokers. Indeed the book notes that ‘Many African state negotiators and political actors participated earnestly and enthusiastically, offering technocratic cooperation and public advocacy to help establish and ratify the Rome Statute of the ICC’ (p. 80, emphasis added) and ‘African governmental representatives participated earnestly in the adoption of a movement that equated legal accountability with justice’ (p. 81, emphasis added). Africans therefore regardless of whether they are state representatives or civil society members share an earnest belief in the redemptive project as such. In the terms of the moral assemblage above, whereas the perpetrators and victims/survivors, are African the international community is both inside and outside Africa and thus not under a judgmental lens but sits in judgment.

This is not lost on Clarke, ‘In the case of international justice, it is the victim and perpetrator who are encapsulated within contemporary international legal frames’ (p. 29), not the international community, however, ‘legal encapsulation involves legalistic processes that make legible the subjects of the law, and this is where technocratic international processes connect with micro-individual bodily affects and feeling expressions’ (p. 29). Clarke cites both Erving Goffman and Niklas Luhmann as examples of earlier work on this operationalization of discourse (p. 273). Giorgio Agamben and Michel Foucault too are cited in noting how fetishizing victims links to biopolitics and bare life (p. 235).  In the book, fetish and fetishization rightly crop up repeatedly both in relation to victims and in relation to justice (pps. 94, 114, 127, 132, 135, 137, 138, 173, 174, 235). Agamben’s own take on the fetish partly draws from Freud that it ‘is at once the sign of something and its absence’ (Giorgio Agamben, Stanzas: Word and Phantasm in Western Culture.), and partly draws from Marx whose description of commodity fetishism reads just as well as for Clarke’s account of victim fetishism in that it ‘appears at first sight, a very trivial thing, and easily understood. Its analysis shows that it is, in reality, a very queer thing, abounding in metaphysical subtleties and theological niceties’ (Karl Marx Capital: A Critique of Political Economy, vol. 1.London: Penguin Classics. 1990, 163).

By the end of the book ‘it has also become clear that international criminal law is not just about what the law says— it’s not just about its black-letter manifestation. Law is not a tool that creates justice in and of itself’ (p. 258). Perhaps then it can even be opposed to justice at the very least in certain instances which is why earnestness—although the only thing that is absolutely necessary for the workings of the international criminal law assemblage—is arguably the most historically and materially alienated of all affective states to legal justice substituting as it does thinking for feeling. In other words, both victim fetishism and justice fetishism would be undone by perceiving the ironies replete in the international criminal justice process specifically and law generally. Clarke has undoubtedly produced a superb work of immense value to those working in among others, criminal law, criminology, anthropology, sociology and critical theory including those who are interested in exploring international criminal justice’s aforementioned metaphysical subtleties and theological niceties.