Affective Justice Symposium: Catching ‘Justice Feelings’–Affective Justice by Kamari M. Clarke

[Christopher Gevers teaches international law and and legal theory in the School of Law, University of KwaZulu-Natal; his research focusses on Third World Approaches to International Law, critical race theory and law and literature.]

This is the finest book on Africa’s relationship with the International Criminal Justice project that I have read; if not the last word on the subject, perhaps the first ‘sensible’ one. There have been a few compelling shorter pieces (some written by Clarke as well), and far too many not short enough, but two things set Affective Justice apart from other treatments of this topic. First, Affective Justice takes the ‘Pan-Africanist Pushback’ seriously; providing a fine-grained analysis of its juridical, political, historical and emotional dimensions (rather than the enfeebled legalistic accounts that stop at ‘Africa signed up to the Rome Statute’); and does the same for the proposal, too lightly dismissed, to form a new ‘African Court’ in response (technically, a new chamber in the existing African Court of Human and Peoples’ Rights). Second, the book develops a new theoretical framework and a vocabulary for understanding the ‘affective life’ of international justice, the way that ‘bodily affects and their emotional potentialities are entangled in the constitution of international justice’, and how ‘bodies, psychology, and social practices come together to produce the terms on which justice is materialized, disaggregated, ruptured, and made legible again’ (6). In both respects, the book is a welcome response to racialized, legalistic accounts of the ‘Pan-African pushback’ that set ‘rationally sustained arguments’ (made by European men) against ‘emotionally laden accusations of “neo-colonialism”’.

The book opens with a question familiar enough to international lawyers, namely: ‘How do justice institutions…operate with effectiveness and force when they do not have universal jurisdiction, enforcement power, a police force or military, or the assumed loyalty of a citizenry, as a state does?’ (4). However, Clarke’s answer – namely that they do so ‘by deploying embodied affects, emotional regimes, and technocratic forms of knowledge in a mode of embodied and regimented practice that I call affective justice’ – is likely to estrange a good few, both for how she arrives at it and what it means for international criminal justice. Nevertheless, it might be useful to start by re-stating the book’sconclusion (as I understand it) and working our way back from there, namely: the way that the ICC and its supporters feel about international justice (and to some extent their ‘justice making’ practices) is – properly understood – no different from the ‘Pan-African’ critics, who accuse it of anti-African bias and wish to supplant it by granting the African Court jurisdiction over international crimes. If that seems like a nonsensical conclusion for the ICC’s supporters, they might be surprised (and relieved) by Clarke’s imminently sensible starting point: that emotions matter to how international criminal law ‘works’ (a proposition that, aside from being intuitively correct, might be unavoidable given the role ‘sentiment’ plays in the latest, ‘best guess’ about the origins of human rights (see Lynn Hunt, Inventing Human Rights: A History (2007)). The achievement of Affective Justice is how it constructs a compelling account of international justice that leads ineluctably from this unavoidable starting point to its unimaginable conclusion, and its ability to do so lies in the combination of its two distinguishing features outlined above (in reverse order).

First, the book begins with a complex theoretical account of why ‘affects’ matter to how international justice works, not just as sentimental responses to the operation of ‘singular and formalized law-making processes’ (5) – such as pity for ‘victims’, righteous anger for ‘perpetrators’, wiser-but-sadder disappointment for an imperfect ICC (as legal ‘after-affects’, perhaps) – but as the conditions of possibility of ‘contemporary international justice mobilizations’, which gain their power not through bloodless legal processes but ‘through ephemeral imaginaries and embodied moral responses to perceptions of injustice’. This is a ‘practice theory’ of justice (as opposed to a philosophical or analytical one), which considers where our ‘justice feelings’ come from, what we do with them, who we do it with, and how these ‘justice making’ practices intersect with ‘the historical and contemporary deployment of power’ (including ‘the conditions under which the law is deployed, with what institutions, under whose jurisdiction, and in which geographical spaces’) (264).

This theory of ‘affective justice’ brings together ‘the assemblages of precognitive, sociopolitical, cultural, and moral processes through which justice is produced’ (6), and maps out the ‘domains of practice’ in which this ‘affective justice’ plays out, focusing on three in particular: legal technocratic practices, embodied affects and emotional regimes. For example, legal technocratic practices – which areprimarily concerned with the ‘biopolitical management of life and death’ – manage the distribution of violence through narratives that displace attention from its structural causes (which might ‘ignite’ redistributive ‘justice feelings’) towards ‘the language of the law and the iconic survivor of mass atrocity violence’ (which generates retributive ‘justice feelings’; see further Chapter 1). Through the ‘interrelationships among a wide variety of actors who possess differential forms of power and privilege’ (including technocrats, judges, prosecutors, victims, advertisers, tourists) (7), Clarke argues, these practices interact, and become entangled with, psychosocial embodied affects and their emotional expressions; and emotional regimes that circulate emotional responses through ‘certain kinds of representation practices’ (including hashtags and technologically driven campaigns; see Chapter 3) and discursive tropes and archetypal figures (e.g. ‘victims’, ‘perpetrators’, anti-colonial Freedom Fighters; see Chapters 1 & 4), as well as constituting international ‘publics’ (the ‘international community’ and the ‘Pan-African’ community) and empowering ‘international experts’.

Of course, to say that these ‘international publics’ employ the same ‘justice making practices’ is not to say they make the same ‘justice’, or do so under the same conditions. Here, the value of Affective Justice’s second distinguishing feature becomes clear, as Clarke uses the theory of ‘affective justice’ to interrogate both ‘the strategies of international justice brokers’ and the African ‘counterresponses’; not in order to tell us what ‘international justice’ is (or should be), but in order to demonstrate how the modern ‘international criminal justice assemblage works, and is being reworked by the ‘Pan-African pushback’. As Clarke puts it, ‘justice is not necessarily about the absence of injustice but its complex mobilizing assemblages’, and Affective Justice shows how ‘assemblages of justice are felt, experienced, and institutionalized’ by both the ICC and its supporters and the ‘Pan-Africans’ pushing back. In doing so, Clarke demonstrates (once again, but in important new ways and registers) how ‘the story of justice in the African postcolony is a story about colonial and imperial law and the contemporary order of things’, one which ‘align[s] earlier forms of effective colonial control to the contemporary management of an international domain within which Africa’s violence can trigger ICC action’ (258-9). The ICC’s ‘Africa problem’, then, is not the outcome of deliberate targeting by individual actors, but of the very conditions of possibility of the contemporary international justice assemblage, not only its unequal structures and practices but – as Affective Justice shows – the affective embodiments, emotional regimes, (racial) imaginaries and alliances that enable ‘the continuation of empire in the contemporary moment’ (15).‘

What is more, through reattribution (‘actively refusing, directing, and redirecting meaning of justice through sentimentalized discourses’, see Chapters 2 and 6); re-figuration (i.e. the ‘anticolonial Freedom Fighter) and re-contextualization (see Chapter 4); and the introduction of the ‘African Court’ (see Chapter 5), Clarke demonstrates how ‘those engaged in African international rule of law circles are rethinking justice by dismantling its meaning in time and place and embodying new formations’, and in the process ‘open[ing] up new possibilities for understanding how legal architectures are historically confronted, challenged, and even dismantled’ (10-11).

This is an ambitious project which Clarke just about fits into one book, and little else could have been asked of Affective Justice; however, we might consider two ways that its generative approach to rethinking international justice might be taken forward (or, backwards and sideways to be precise).

First, we might trace the Pan-African ‘counterresponse that reinscribes justice in different terms’ (265) backwards, to before the 1990s, and consider how African states have been ‘counterresponding’ to international justice for some time, and doing so in very similar terms to those discussed in Affective Justice. As I’ve argued elsewhere (see here and here), one can trace the origins of both the ICC and the proposed ‘African Court’ to attempts by African States, dating back to the 1960s, to prosecute apartheid as an international crime. Very briefly, in 1981 Cherif Bassiouni produced a report (commissioned by the UN) regarding the establishment of the ‘international penal tribunal’ anticipated by the 1973 Apartheid Convention; to which he attached a draft statute for a proposed ‘International Criminal Court’, based in The Hague, with jurisdiction over not just apartheid but all international crimes. According to its main drafter Keba M’Baye, it was these ongoing discussions about prosecuting apartheid internationally in the 1980s that convinced the drafters of the African Charter not make provision to do so regionally, by creating a Court with jurisdiction over international crimes under the Charter (as is now proposed). Then, according to Bassiouni, when it came to drafting the Rome Statute a decade later (and the ICTY Statute), his 1981 draft statute to prosecute apartheid served as a blueprint. However, we can trace these efforts by African states to prosecute apartheid back even further, to when they were trying to overcome objections from Western powers to specifically include ‘apartheid’ in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, so that ‘international justice’ would be made ‘applicable not only to the events which had taken place in Europe between 1939 and 1945, but also to the present situation and the future’, starting with apartheid. All told, since their independence African states have been resisting attempts to circumscribe ‘international justice’ (temporally, geographically and structurally), attempts  often undertaken to ensure impunity for white, European violence (i.e. slavery, colonialism and apartheid).

Pan-Africanists have been trying to do so for even longer. In fact, the history of the ‘Pan-African pushback’ might predate ‘international justice’ itself, to 1917 when the ‘Father of Pan-Africanism, WEB Du Bois, presaged the temporal and geographical ‘displacements’ of future ‘international justice’ practices, noting: ‘Behold little Belgium and her pitiable plight, but has the world forgotten…what she has done to black Congo’. And, after World War II, Du Bois did the same for its structural displacements, assailing the ‘modern paradox’ of a the ‘crimes of colonialism’: that ‘the system…is based on the suppression, exploitation, and slavery of the majority of mankind’, ‘yet no individual is guilty, no one is to blame, no one can be punished!’.

Second, we might take Clarke’s account to the ‘affective life’ of international criminal justice sideways, to other subfields of international law and the ‘sentimental life of international law’ more generally (see Simpson); and, in doing so, both extend and complicate the celebratory accounts of human rights that locate their origins in the cultivation of white European sentiment regarding various ‘Others’ (women, ‘the poor’, the enslaved), but elide its role in the production of racialized subjects and systems, and deracialized histories (see Nesiah here). Narratives and sentiments that have dispatched many missionaries to Africa, like the one Clarke opens her account with, and not a few prosecutors, ‘international experts’ and tweets. One way to complicate the embodied affects and emotional regimes of these parallel assemblages would be to turn to novels – as formally ‘sentimentalized narratives’ – not simply to re-mythologize their origins, but to better understand how they work and what they do. For example, inspired by Clarke’s previous work, I have used Forrester’s The African Queen (and it’s afterlives in film and non-fiction) to trace the origins the modern ‘international justice assemblage’ to the two ‘Africa Blue Books’ published during World War I, which were central to establishing its racialized ‘symbolic and affective regime’ but were forgotten in the failed attempts at international justice in its aftermath, and silenced thereafter (see here). Ironically, both the ‘Africa Blue Books’ that established that affective regime, and the ICTY that revived it in the 1990s, started out life in rather affectless insurance buildings. After reading this ambitious and compelling book about the role that affect plays in international criminal justice, there is no returning to such unsentimental beginnings.