Affective Justice Symposium: Other Geographies, Other Pushbacks–Affective Justice as a Diagnosis for International Criminal Law

[Sara Kendall is a Senior Lecturer in International Law at The University of Kent in the Faculty of Law. She is also Co-Director of The Centre for Critical International Law.]

In early March 2020, the US Secretary of State Michael Pompeo gave a press briefing concerning the ICC Appeals Chamber’s decision on Afghanistan. As is widely known by Opinio Juris’s readership, the ICC’s prosecutor aimed to investigate alleged war crimes and crimes against humanity on the territory of Afghanistan as well as other crimes linked to the situation, which could theoretically include crimes committed by US forces and the CIA. After Pre-Trial Chamber II ruled against proceeding with the investigation on the grounds that it would not serve ‘the interests of justice’, Prosecutor Bensouda appealed, and on 5 March a panel of appellate judges determined that her office could proceed.

The Secretary of State’s press briefing employs highly emotive language, attacking the legitimacy of the court in terms that amplify points that have already been made within some critical scholarship on the ICC: ‘This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body.’ Critical approaches within international criminal law seem to enter into an uncomfortable alliance with the Trump administration’s position on the ICC. Yet with defiant body language, Pompeo goes on to threaten that the US ‘will take all necessary measures to protect our citizens from this renegade, so-called court.’ The more general criticism gives way to the specific:  the principled concern that the Court might serve as a conduit for politics appears less problematic than the particularpolitics that are routed through it, along with the more fundamental consideration of whether these are in the interests of a specific political constituency.

In the December hearings leading up to the March decision, US president Trump’s own personal attorney appeared in The Hague, though in a different capacity (and on the basis of a late and back-dated request to appear, as Kevin Jon Heller has observed). Representing a Strasbourg based ‘human rights’ NGO that focuses on ‘religious freedoms and the dignity of the person’, Jay Sekulow argued against the court’s jurisdiction over US nationals. Before the appellate judges, Sekulow attempted to support the Pre-Trial Chamber’s claim of the likelihood of state non-cooperation, pushing farther to assert that resistance from non-party states ‘is foreseeable and not a matter of speculation’ (p. 85). While seeking permission to address the court on other matters in his written submissions, Sekulow captured the occasion of his appearance before the Court to appeal to a domestic political audience, claiming that his aim was to ‘protect’ US troops from the threat of accountability before the ICC. As a press release of his affiliated US-based NGO put it, ‘The prosecutor essentially wants the authority to treat the United States like the Taliban.’  While in The Hague, Sekulow tweeted  ‘Our heroes are being attacked – not with weapons, but with threats of legal action from a body with no jurisdiction over them.’

I begin from these emotive expressions to illustrate why Kamari Clarke’s Affective Justice offers a novel and versatile intervention in the field of international criminal justice, an approach that illuminates the different registers where claims to international justice operate. Unlike much scholarship that can be placed into ‘for’ or ‘against’ categories – proponents of international criminal processes and their critics – this approach opens a different horizon that maintains an anthropological curiousity toward what Clarke terms ‘the rule of law movement’. Rather than condemning or commending the ‘pan-African pushback’ against the ICC, Clarke’s analysis helps us to understand why some – though certainly not all – African politicians and publics refuse the terms of justice offered through the ICC. Her approach of tracing the complex relations between legal technocratic practices, embodied affects, and emotional regimes – the three ‘component parts’ of her novel theorisation of affective justice – enables Clarke to locate the discourses and practices of the contemporary rule of law movement (and those of its critics) in broader histories and socio-economic contexts that otherwise remain outside the frame of what she calls ‘legal encapsulation.’ As a diagnostic device, ‘legal encapsulation’ helps reveal how juridical forms circumscribe complex problems, enabling proponents of international criminal justice to offer up solutions such as individual criminal liability for complex mass atrocities that are embedded in broader conditions of possibility. Clarke’s work is particularly critical for this era of the Court’s practice in order to understand what has preoccupied many recent annual meetings of the Assembly of States Parties:  why have so many African states and the African Union abandoned the institution that they once enthusiastically supported?

Clarke defines affective justice as a means of understanding ‘people’s embodied engagements with and production of justice through particular structures of power, history and contingencies’ (Clarke, 5). Among its varied practices are forms of adjudication, trial attendance, refusals, withdrawals, and countercampaigns – as we can see with these examples from the situation in Afghanistan, where Trump’s personal lawyer relied upon a concerted social media campaign to fund his NGO team’s trip to The Hague. The analytic potential of Affective Justice can be extended out beyond the ‘Pan-Africanist pushback’ that serves as the focus of her book. While Pompeo’s and Sekulow’s expressions register quite different responses than the African resistance and reattribution that Clarke traces, which her book links to broader colonial and postcolonial histories of violence, the affective registers on which their claims operate are also not limited to arguments about law and legality. Despite Sekulow’s relentless efforts to encapsulate his resistance within the technocratic language of jurisdiction, these are sentimental narratives as well, much like what the second chapter of Affective Justice addresses in tracing ‘sentimental rejections of the Rome Statute narrative’ (Clarke, 97). Sekulow captures the space of the ICC’s courtroom to appeal to a US evangelical audience about matters of affective concern – sovereignty, exceptionalism, protecting ‘our’ troops; meanwhile Pompeo invokes protection on an even broader scale, suggesting that ‘our citizens’ are under threat from ‘this renegade, so-called court’.

These two figures – both examples of the influence of evangelical Christianity in contemporary US politics – invoke particular visions of vulnerability and grievance that are tied to conceptions of US exceptionalism, coupled with an anti-globalist pushback intended to fend off the arrival of global governance. That they represent the interests of the US on the stage of international criminal justice is a mark of a particular historical moment in this state’s engagement with international institutions. Pompeo’s trope of ‘protecting’ ‘Americans’ also sits readily within the wider post-9/11 security discourse of the world’s most militarized state, whereas Sekulow’s invocation of ‘our heroes’ taps into narratives of military pride and its attendant nationalism, appealing broadly to those who venerate protection of ‘the homeland’ as well as to the specific audience of US evangelicals who fund the advocacy work of his NGO. Their ‘passionate utterances’ (Clarke, xviii) appeal to particular political constituencies and form part of a broader strategy of contesting or reassigning categories of victimhood and perpetration. As with the Kenyan government’s mobilisation of a counter-narrative of victimhood that recasts the ICC as a threat to domestic peace, Sekulow accuses the Court of perpetrating the injustice of treating ‘the United States like the Taliban.’ Both Kenyan president Uhuru Kenyatta’s appeal to combat the ‘external forces’ threatening Kenya’s sovereignty (Clarke, 94) and Pompeo’s assertion that US citizens needed to be ‘protected’ from ‘unaccountable’ international institutions are anti-interventionist claims designed to shore up each state’s external sovereignty. Yet these claims are located within different historical contexts that make them resonate in distinct ways with their intended audiences, engaging different embodied affects and emotional regimes, to use Clarke’s terms, whether as anti-colonial sentiments borne out of a history of violent colonial governance and dispossession or through mobilising settler colonial narratives of possession and libertarian distrust of institutions.

The approach developed in Affective Justice locates such emotive expressions in relation to broader historical and structural conditions – such as US imperialism, militarism, and extractive capitalism – as well as the assemblages of actors that are invested in particular visions of justice, including the domestic evangelical community and advocacy organisations like Sekulow’s NGO which works to advance conservative judicial agendas domestically and abroad. By focusing on this seemingly counter-intuitive example – the remarks of representatives from a state not party to the ICC, whose dealings with the institution largely relate to its place on the UN Security Council – this intervention shows how Clarke’s approach is exportable beyond the context that she focuses on, and how it will continue to offer ways of reading and interpreting responses to the Court’s work as it turns its attention beyond the African continent.

By contrast with my example, the ‘emotional landscape’ that Clarke charts is situated primarily within the African continent, where histories of slavery, colonialism, land dispossession, and pan-Africanist forms of resistance and mobilisation are central to understanding how the work of the ICC is received. While previous readings of African state attempts to resist Hague-based justice would often diagnose this as a form of ‘impunity’ – as  an effort to evade accountability – what Clarke’s book enables us to see is that justice is perceived not only in this Hague-centric form of individual criminal responsibility, which parses time and place in limited categorisations. Clarke contends that claims to justice and accountability need to be situated more broadly in relation to histories of inequality and structures of violence on the African continent, and how some perceive the ‘rule of law movement’ as offering little space for considering longer histories of inequality. Her empirical work offers a counter-narrative to what Katherine Sikkink has called the ‘justice cascade’ by focusing on forms of refusal and the ways in which justice institutions and processes have been re-cast on the African continent. To Sikkink’s notion of the ‘justice cascade’, Clarke offers ‘legal encapsulation’ as a critical diagnosis. The latter is a critique of closure and restricted temporalities – what she elsewhere calls ‘the urgency of the now’ – extracting moments of violence from out of a broader history and enclosing them in legal processes. Through ‘legal encapsulation’ as a diagnostic, we can see how the justice cascade appears deterministic, a process unfolding inexorably unfolding as if through an ‘end of history’ Western liberal frame.

Some readers who seek to slot ICC literature into a for-or-against dyad might be tempted read this as countering the rule of law movement narrative with a kind of pro-immunity apologism, but this would be missing the important work of critique, which ‘resists evaluating international criminal law in terms of success or failure, but instead asks about its underlying presumptions and conditions of possibility’ (Kendall 2014, Chapter 2). Critical approaches and third world approaches to international law – and specifically international criminal law – have enriched the scholarly literature within the field and beyond by revealing its presumptions and biases. Yet over time the ICL critique has seemed to converge around settled diagnoses – that law can’t be separated from politics; that international legal institutions must be understood in a way that grasps their imbrication with colonialism; that certain states ‘develop’ and enforce a law that is to be deployed elsewhere. There has long been a need for an anthropological intervention that takes up these critiques and depicts how they bear out in everyday practice in more nuanced ways. Clarke’s Affective Justice attempts the kind of multi-sited diagnostic work that can help us see the interconnections across different registers – political, historical, and indeed, emotional – that offers a richer means of understanding the uptake of and resistance to a particular vision of international criminal justice in our time.