Affective Justice Symposium: Commentary on Kamari Clarke’s Affective Justice

[Richard Ashby Wilson is Professor of Anthropology and Law at the University of Connecticut and author of Incitement On Trial: Prosecuting International Speech Crimes.]

In recent years, a number of ethnographic and qualitative studies have been published that are highly critical of international tribunals for their geographical, political and cultural distance from the crimes they adjudicate. In Affective Justice, Kamari Clarke offers an impassioned critique of the International Criminal Court (ICC). The gravamen of her complaint is that the Court has been overly focused on Africa and insufficiently attentive to the structural conditions that give rise to violence in the first place. Consequently, she advocates an African regional court that would adjudicate economic crimes as well as human rights violations.

All of these points are well-founded, and I have made similar arguments about the tendency of international tribunals to hew to a narrow legalism and misapprehend the context of the crimes they are adjudicating. I have serious misgivings, however, about many of the arguments put forward in Affective Justice. My concerns fall into three broad categories: Clarke’s misunderstandings of key elements of international criminal law; the erasure of pro-ICC African voices in her account; and the implications of immunity for heads of state who commit mass atrocities. I will take up each in turn.

First, it is erroneous to claim that heads of state are entitled to immunity “by virtue of customary international law” (p.75). The medieval concept of sovereign immunity (ratione personae) has been eroded over the past twenty-two years in customary international law by a number of rulings, including by the House of Lords of the United Kingdom in Pinochet, by the International Criminal Tribunal for the Former Yugoslavia in Milošević, and the Special Court for Sierra Leone in Taylor. Nor is it the case that “personal immunity for heads of state…continues to apply before domestic courts” (p.225). The trials of General Pinochet in Chile and General Rios Montt in Guatemala upheld the view that domestic courts are not bound by national immunity provisions. In 2018, the Inter-American Court of Human Rights held that the Peruvian courts had the obligation to review the pardon granted to former President Alberto Fujimori in the Barrios Altos and La Cantuta cases, and the Peruvian Supreme Court overturned the pardon. The relentlessly pro-immunity platform in Affective Justice searches for a legal basis to absolve heads of state for committing mass crimes when no such basis exists.

Then there is the wholesale erasure of pro-ICC African voices. Clarke and her team conducted an impressive number of interviews (200) with “thought leaders” in and around the African Union (p. xviii). The overwhelming majority of opinions reported in Affective Justice are hostile to the ICC and in favor of withdrawal from the Rome Statute. The reader is given the distinct impression that a sizeable majority of Africans reject the Court and its core principles such as individual criminal accountability for political leaders. The spectrum of Africans’ views on the ICC is much broader than represented, however. In Affective Justice, we do not hear about the robust opposition to a mass ICC withdrawal by the influential governments of Nigeria and Senegal. While the book channels anti-colonialist rhetoric from authoritarian leaders such as Kagame of Rwanda and Museveni of Uganda, we do not hear the voices of prominent Africans who argue against withdrawal.

Most occluded of all are the voices of ordinary Africans. The only insights we get are a few anecdotes and a passing mention of a survey conducted by the author in Nairobi, Kenya, in which a majority of respondents indicated that criminal responsibility should be understood through “notions of collective guilt” (p. 162). Affective Justice neglects to mention a number of concurrent surveys conducted by Afrobarometer showing widespread support for the ICC and the principle of individual responsibility. For instance, in a 2015 survey, Lekalake and Buchanan-Clarke found that 61% of Kenyans believe that ICC prosecutions are an important tool for fighting impunity in the country. A majority believe that the ICC is impartial (55%) and reject withdrawal from the Rome Statute (55%). A sizeable majority (86%) endorse Kenyatta’s decision to appear before the court in The Hague. These findings supporting criminal accountability are consistent with longstanding ethnographic and qualitative studies of African understandings of justice (Allen 2006; Clark 2018; Schärf & Ngcokoto 1990; Wilson 2001).

By contrast, support for national and regional justice institutions is rather low. Lekalake and Buchanan-Clarke found that 76% of Kenyan respondents believed that their national officials “always” or “often” go unpunished whereas only 12% maintain that ordinary Kenyans go unpunished. Only 38% of Kenyans surveyed saying that the African Union provides significant support to their countries, although this is higher than the dismal 22% for ordinary Zimbabweans who have been abandoned for decades by the African Union. I include these data not to disparage local institutions, nor to maintain that international institutions are somehow superior. Instead, my aim is to point out that there is a range of opinion in Africa regarding the ICC and legal accountability for leaders, and it doesn’t always go in the direction that Affective Justice would have us believe. Clarke admits at one point that there are African professionals and lawyers who robustly support the ICC, but she informs the reader that she will describe them “through the figure of the ‘international community’” (p. 55). By recategorizing Africans who endorse the ICC as members of the “international community,” Clarke elevates herself to the position of arbiter of who is African and who is not.

While working as a consultant for the African Union, Clarke promoted the idea of an African regional court as the answer to the limitations of the ICC (p. xxvi). Leaving aside the fact that this seems inconsistent with her repeated opposition to legal solutions for political problems, the establishment of an African Court of Justice on Human and Peoples’ Rights (“African Court”) would present a positive and significant development. While a provision for immunity for heads of state in the Malabo Protocol would be problematic, the inclusion of economic crimes in the protocol represents a valuable legal innovation. Given its emphasis on local institutions, Affective Justice could have performed a useful service by engaging in a thorough examination of the prospects for an African Court as there are several recent experiments in regional African courts that are instructive. For starters, the Southern African Development Community (SADC) Tribunal was established in 2005 with its headquarters in Namibia. Initially, the Tribunal was a beacon of hope for many in Southern Africa as it permitted access for individual citizens to file complaints against their governments. It turned out to be a disaster, and the Tribunal was effectively destroyed by Zimbabwean President Robert Mugabe after it ruled against his agrarian reform policy.

The ECOWAS Court of Justice established by the Economic Community of West African States offers a more encouraging example, and it too permits individual petitions by citizens. The Court functions reasonably well, resolves a respectable number of cases each year, and has jurisdiction over violations of socio-economic rights as well as standard civil-political rights. In late 2019 it ruled that Sierra Leone had violated the rights to education and discrimination when it restricted school attendance of pregnant teenage girls, and it ordered the Nigerian government to pay about $150,000 to the children as compensation for the unlawful killing of their father by officers of the Nigerian Army in 2010. It would have been valuable to discuss how a new African Court might avoid the pitfalls of prior regional courts and build on their successes, as well as work cooperatively with the ICC, which shows no signs of going away. Indeed, at the time of writing, hundreds of protestors have taken to the streets of Khartoum demanding that the ousted president Omar Al-Bashir and his co-accused in the genocide in Darfur be handed over to the ICC, and the Sudanese Attorney General Tagelsir al-Hebir has indicated that he is considering this option.

Unfortunately, Clarke contemplates no such moderate middle ground. The argument in Affective Justice is often Manichean, presenting us with a zero-sum game and either-or choices: either law or macro-structural change, either individual criminal responsibility or collective guilt, either the ICC or an African Court, either you’re African or you’re a member of the “international community.” These stark dualisms mask a complex reality. A more constructive third way seeks creative solutions that would integrate the legal and legislative and the national and international to enhance political access, accountability, and participation on the continent. How might the ICC engage more meaningfully with African societies, holding trials locally, reinforcing national judicial capacity, and cooperating with national and regional bodies? How might national, regional, and international legal institutions together constrain executive power and provide accountability for the corrupt and violent, thus opening the space for social movements to challenge the current structure of exploitation and massive inequality? To be sure, the ICC has disappointed as both a judicial and legal institution. It will not single-handedly transform Africa or anywhere else for that matter into an egalitarian paradise. The mistake lies in thinking that it can and should. Just because the ICC is not the sole answer, does not mean it is not part of the answer to social and economic inequality, along with progressive national legislation, good political leadership and grassroots pressure from social movements for democratic change like the kind that removed Al-Bashir from office.

To conclude, Clarke rightly reminds us of the importance of context throughout the book. Therefore, it behooves us to reflect for a moment on the global context in which arguments favoring a mass withdrawal from the ICC are made. We are currently living in a Weimar-like historical conjuncture in which the number of populist governments has doubled worldwide since the early 2000s. Populist leaders have come to power in, inter alia, Brazil, Guatemala, Hungary, India, The Philippines, Poland, Turkey, the United Kingdom, the United States and Venezuela. Populist leaders play the nativist card, blaming international conspiracies and foreigners for their country’s difficulties and their own political shortcomings. As part of a “cultural backlash,” populist demagogues exalt the local and traditional, rail against international institutions, cosmopolitans, and immigrants, and demand priority for their own country (“America First”), citizens, region, race, or religion etc.

Since 2016, populist politicians have actively sought to undermine and dismantle multilateral institutions, and there is an unprecedented attack on institutions such as the European Union, United Nations, International Criminal Court, and European Court of Human Rights. Their target, however, is not just international organizations but all checks and balances and legal constraint on executive power, be they domestic or international. Indeed, a number of presidents (e.g., Erdogan, Nkurunziza, Obiang, Putin, Xi) have changed their national constitutions to empower the executive branch and swept away term limits and thereby any semblance of democratic accountability. My concern is that in the current historical moment, Clarke’s approval for the destruction of the ICC and the dismissal of accountability for political leaders provides succor to these global anti-democratic currents.