A Sudanese protester cries next to a photo of a relative during a protest asking for the extradition of ousted former president Omar al-Bashir to the International Criminal Court in the capital Khartoum on September 19, 2019. ASHRAF SHAZLY/AFP via Getty Images.
PoLAR digital editorial fellow Anna Kirstine Schirrer conducted an interview with Kamari Clarke, whose article “Affective Justice: The Racialized Imaginaries of International Justice” appears in the November 2019 issue of PoLAR.
Kamari, thank you so much for agreeing to participate in this conversation in conjunction with the publication of your article “Affective Justice: The Racialized Imaginaries of International Justice” in the November 2019 issue of PoLAR. In this article and in your soon to be released book, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback (2019), you trace how justice is materialized and made legible as a practice predicated on deeply embedded, yet obscured, racialized logics. You introduce the concept of “affective justice” as a framework to understand justice as a social practice. What is it about our contemporary moment that makes “affective justice” a useful, even necessary, term to understand international legal regimes today?
Thank you, Anna, for this excellent question because it gets to the heart of the book. Affective Justice is the term that I use for making sense of people’s embodied engagements with the production of justice through structures of power, history and contingencies. I am interested in considering what people and social movements do with emotions, how they are embodied as well as performed, and how knowledge and power work to produce the technocratic processes through which law gains its power. This is important because not only are scholarly approaches to affect often individualized and disconnected from hegemonic power, but because of the difficulty with studying embodied interiorities, embodied responses are rarely theorized with performative regimes and the biopolitical conditions of their making.
Why is this useful? It’s because justice is often seen as one of those concepts that are morally or socially shaped but it is hardly examined through the micro and macro practices that intertwine to shape justice. The article considers how through the study of affective practice theory we can move beyond black letter law to actually understand the emotive force of law. Part of what I show is that not only does law operate through the production of particular ways of seeing, speaking, feeling and engaging, but it also operates through the dialectic imagery of a perpetrator and victim/survivor that has become racialized in particular ways. And it is this rise of “the victim/survivor” that has become a key component of international justice in the contemporary period.
While I was conducting international research for the book and articles there was something profound about the racial imaginaries that were emerging in the contemporary period that were often covered up by the profoundly emotional anti-impunity language of justice and fairness for those victimized by violence. The invocations that “victims want justice” and the importance of “stopping the perpetrator,” all took shape within regimes of expression that produced particular justice imaginaries. Interestingly, though international justice imaginaries were often represented as objective, nonracial and color blind, racialized symbols pervaded so much of international justice circuits. However, the reality reflected the opposite—that all of the cases that the ICC had taken on involved black and brown people—and this included those victimized by violence as well as those charged as perpetrators of violence. But there were no straightforward ways to explain this pattern. Some criticized the ICC for being racist but racism didn’t quite explain the nature of violence in Africa and the subsequent indictment of those found most responsible for that violence. The problem was that most practitioners didn’t have the language to explain the raced formations of international justice. And when images of the perpetrators who were indicted by the court were shown in websites, documents, or displayed in art exhibits the preponderance of black and brown faces suggested a story of international justice that seemed contrary to the reality of violence in the world. Clearly violence was being committed elsewhere but those other perpetrators were not being indicted by the ICC. It was in those moments of recognition of racial over-representation that I came to see how the conditions of judicial possibility were deeply tied to much larger histories of postcolonial violence.
Affective Justice is a way of explaining the clumsy connections between justice, culture and power and allow us to think about the way that economies, moralities, social imaginaries, and psychic meanings shape decision-making and how those decisions are legitimatized with the moral force of pasts. For they are part of the play of power that structures future possibilities in particular ways, all the while exacerbating pre-existing inequalities and psychic differences in responsibility, obligation, and histories. Thus, my goal has been to examine the multiplicities of contestation at the heart of the intertwined spaces between legal power and social displacement, and the challenges brought to bear on the conditions of modernity that make social reality legible. That is, the way that certain things are encapsulated by the law as legal, and made legible, while other things are seen as unrelated and dismissed as illegitimate.
The former Congolese militia leader Bosco Ntaganda “Terminator” sits in the courtroom of the International Criminal Court in The Hague, on November 7, 2019 prior to the verdict. – Congolese ‘Terminator’ warlord has been sentenced to 30 years in jail for war crimes and crimes against humanity in 2002 and 2003 in Ituri, northeastern Democratic Republic of Congo. Photo by PETER DEJONG/ANP/AFP via Getty Images.
One of your central arguments revolves around the proposition that the emergence of the anti-impunity movement has established individualized “victim” and “perpetrator” categories, furthering the judicialization and individualization of post-conflict transitions. In turn, these efforts foreclose the potential for deep and pervasive social repair (Clarke 2019: 88). What are the advantages and disadvantages of judicializing post-conflict transitions? In broader terms, what are the advantages and disadvantages of pursuing the repair of historical and socio-economic injustices through legal processes?
One of the most striking issues for me has been the way that the judicialization of African politics is increasingly occupying a space in the international imagination as a site of international control. As you’ve noted and as I argue in the article and more fully in the book, the production of the image of the African victim, the male perpetrator, and a notion of an “international community” are part of the forging of an international justice imaginary whose work is propelled through the social life of the law, which itself is dynamic.
The power of law is often in its commanding of the fiction of order and objectivity. But as this work shows, law’s power is in its discursive and imaginary force. It is in its aspirations for certainty, fairness, procedural regularity and an overriding sense of objectivity. Its greatest effects are in its ability to produce a totalizing ideological order where other logics are displaced, rendered marginal or irrelevant to the juridical order. But these virtues also have their limits.
One of our great contemporary luminaries in Africanist anthropology, Professor Mahmood Mamdani, answered this question best when he said, and I paraphrase: much of the contemporary violence in African countries is a result of political disenfranchisement and requires political and not legal solutions. What he meant by that and what so much of my work tracks is how colonialism produced violent inscriptions in the fabric of African daily life that requires political solutions that go well beyond the individualization of criminal responsibility. Affective Justice shows there are limits to using the law to address historically political problems—especially when culpability is often seen as collective. What we see is that so much of the violence in the African postcolony requires much more complex solutions that go well beyond legal forms of individualization.
Yet, there is, of course, a time for legal solutions. The key is to know when and through what strategies to deploy various approaches. Indeed, law used strategically at particular moments can promote particular possibilities, require them, enforce them when necessary. It can establish particular social norms and ritualize them for daily consciousness and provide the possibilities for reparative strategies. However, reparative strategies and social redress must also involve socio-political work. Affective Justice attempts to map these various processes and explore how these processes of rectification work messily through emotional regimes, embodied responses and technocratic domains.
On the topic of reparative strategies and social redress, you point to how various transitional justice strategies involving, for example, truth and reconciliation commissions (TRCs), recognize that addressing the deep roots of violence in Africa requires more than judicial accountability. These approaches emphasize the need for institutional restructuring as central to challenging the foundations of inequality in Africa (Clarke 2019: 200). Insofar as a similar statement could be made in other post-slavery, postcolonial regions such as the Caribbean, to what extent do you believe that traditional post-conflict TRC models can be adapted to address wide-scale historical injustices, such as transatlantic slavery and native genocide experienced by descendants of enslaved Africans and indigenous peoples in the Caribbean today?
Anna, this is a big issue that undergirds the foundations of life here in the Americas and one that has been long debated given the ongoing legacies of slavery that continue to entrench contemporary life. Compared with TRCs used in Africa, South and Central America and Canada, the difference with addressing transatlantic slavery is that the individualized perpetrators are no longer alive and we are all beneficiaries of such inhumane relations. Some developments that address corporate beneficiaries have been identified and adjudicated, however, they are far from providing solutions to addressing the outstanding legacies. That said, we need to think creatively about how to address the pervasiveness of such a cruel history that continues to entrench daily life. There are already some developments underway—as you mentioned elsewhere—recently the upsurge in demands for justice for historical wrongs. And in 2013, the multi-state organization Caribbean Community (CARICOM), which you highlight, presented a ten-point plan for reparative justice from Western European nation-states, for both the genocide of native peoples and New World Slavery in the region. And again, in Africa, countries such as Namibia have demanded reparations from the former colonizing state of Germany. And finally, your point about what is going on in the U.S. the H.R. 40 bill, first introduced in 1989 to study reparations for slavery, was contentiously debated this summer during a Congress hearing in Capitol Hill. Economic, symbolic, substantive and psycho-social solutions are all important and need to be addressed from different vantage points. And we see a range of innovations underway. The article and the book more fully explore how such calls for justice are constituted through practice, and maps the domains of knowledge, power and embodied feelings that are deployed in the process.
Circling back to your forthcoming book: In your earlier work, Fictions of Justice, you suggest that justice is a fiction and doesn’t exist in a static and permanent way, that it is a construct that performs cultural work. How does your new book on affective justice shift your approach to the labor of making justice?
I see Affective Justice starting where Fictions of Justice ends. In many ways, Fictions was an attempt to highlight the limits of using legal pluralism to explain cultural differences in justice making. Affective Justice provides an analytic toolkit for making sense of the processes by which people engage in producing the terms on which justice is made real. The difference is that it shows that justice is both performative, emotional, affective and shaped by critical forms of technocratic knowledge domains that all play key roles in shaping what justice becomes. What I show is how justice is constructed through affective formulations that are tied to various component parts that interact and converge and diverge. These components constitute international justice assemblages that come together within international justice assemblages. In these enmeshed spaces are the production, uses and rethinking of the law as well as the emotions and regimes that propel its meanings. And though a tool to instrumentalize “justice,” it has also become clear that international criminal law is not just about what the law says – its black letter manifestation. Law is not a tool that creates justice. Law operates within unequal fields of power and governance. It reproduces the power that shapes it and also embodies spaces where global inequality can play out. It embodies social relations, orders and at times can be deployed strategically within those very unequal fields of power. For while the law is meant to address inequalities, it can also enable the reproduction of them. This dynamic is not new in the global South—especially not in Africa—where international law is being imaginatively inserted and engaged in daily life.
After decolonization in African states, new institutions of governance and regulation constituted the way that post-colonial laws in Africa were structured. This was one of the ways that global inequality was reproduced. Law was deployed not just as an instrument of rules and norms, but also as a formulation of what law would be in new postcolonial domains. As we see in this book, law is a cultural artifact that embodies inequalities and, as such, this calls into question the extent to which institutions can achieve their goals given that they are embedded in structures of historical inequality. The story of justice in the African postcolony is a story about colonial and imperial law and the contemporary order of things. It is a story about political and economic restructuring made to align earlier forms of effective colonial control to the contemporary management of an international domain within which Africa’s violence can trigger ICC action. As I have shown, this happens not because the court and its actors are “targeting Africa.” This happens because of the conditions of inequality in contemporary modernity. These forms of inequality are not just structural. They simply play a role in structuring what Michel Foucault referred to as the conditions of possibility. The rest is embedded in the afterlives of modernity and this is where affects, bodies, technologies and governance come into sharp relief. For example, the racial imaginaries that have emerged at this junction of international justice, and are prominently displayed in relation to who the ICC is indicting and who are the victims of violence, are not unrelated to the modes of seeing, engaging, feeling, and speaking that are part of International Rule of Law assemblages. These affective modes of being shape the way that emotions produce particular institutional materialities, and as such they shape the forms of technocratic tools that circulate.
Understanding these processes allows us to make sense of how affective states can be used to redraw lines of alliance and disjuncture. They highlight the way that figures and imaginaries narrativized in particular ways can contribute to the intensification of responses or the undermining of feelings of justice. Here law is not just something for those who are formally trained in its logic. Law is also about the refusals and reattributions, as well as those formal and expressive acts such as renouncements, treaty withdrawals, and Twitter objections, for these acts highlight how protest speech can be deployed to subvert particular legal relationships and reconfigure the terms on which it takes shape. Ultimately, we see how these affects that extend to technocratic knowledge and doctrine are ultimately tied to materialities that have real world meanings.
One such afterlife is concerned with the residual life of the law. What we see is that affective justice is a component of the making of legal knowledge. But the components that connect with such productions are fundamentally intertwined with the affective and sociocultural universes that shape it. So just as law is also what people make of it, how they see it, how its force or pronouncements feel, justice is also about the production of meaning out of its absence. But the processes of production are where the conflict lies for legal differences are not only socially constituted, they are constituted by and within particular structures of inequality. These logics contribute to the materialities of feeling and the domains within which they circulate and are rendered legible.
Ultimately, emotional invocations of and responses to injustice become the space for the materialization of justice, but their articulations are embedded in particular histories and power relations, providing the grammar through which social norms are instantiated and imaginaries brought to life. It is through the reinforcement of emotional regimes, which operate within particular frameworks of expectations and are propelled through various political and economic campaigns, that international justice is being articulated. These articulations—often taking the form of protest campaigns, treaty withdrawals, photo imagery or affirmations of values—are reconstituting international publics through social-movement campaigns and are supported by new technocratic tools, such as international legal provisions and advocacy strategies. These modalities work through emotional expressions that become the basis for narrativizing justice imperatives and creating new social imaginaries of feeling that are expressed and regulated in particular ways.
While these imaginaries travel and often become decontextualized from their local cultural domains, they are then re-contextualized in particular components of assemblages. The power to articulate narratives of justice or spheres of judicial or non-judicial action is not benign. Rather, it operates in keeping with particular time and space horizons that are produced as relevant to the political mission of justice—and it is here that locating the effectiveness of the structures of emotion that shape social geographies of justice is critical. As such, looking at justice in relation to judicial and non-judicial spaces reveals the relevance of history and politics in shaping the emotional meaning of social location. Judicial spaces operate within particular affective realms rooted in histories, memories, and experiences. Regardless of whether various stakeholders or audiences experienced those histories, the conditions of judicial possibility can be rationalized alongside shadows of the past—memories of colonialism, realities of economic disparity, complexities of violence and racial exclusion. For some, the vestiges of colonial inequalities, the working of racialization, and the modernity of contemporary power operate and structure the postcolonial conditions within which individuals make seemingly free decisions. These decisions are as shaped by psychic worlds and beliefs as they are by judicial constraints, political economic considerations, and new digitized possibilities.
My concluding thoughts in Affective Justice dwell in the “middle” space of international rule of law assemblages, between the concerned recognition by African leaders, various African voting publics, Pan-Africanist activists, and intellectuals of the many harsh and contradictory realities on the African continent, the spaces of violence and social movements to rectify it, and the realities of international demands to create a world in which we can hold perpetrators of violence accountable. This middle space is where the emotional life of law dwells—where alignments are made and others unraveled. Law’s meanings and forms emerge from and constitute these emotional spaces, which are regimented according to the practices and aspirations of law’s liberatory project.
Law’s possibilities are found in emotional aspirations for social change, not in its core instrumentality. And this is where the key issues are about how we feel and what we do about what we feel. These feelings are not absent from the historical and contemporary deployment of power. They are about determining the conditions under which the law is deployed, with what institutions, under whose jurisdiction, and in which geographical spaces—that is, the power to submit to the jurisdiction of one’s own courts as well as to create spaces in which the psychic life of possibilities is forged. Indeed, one of the popular conceptions of the crisis of the African postcolony today is that it stems from a problem with the incorporation of “things African.” This involves disjunctures between imposed or legislated understandings and familiar cultural values and practices that are not always central to the development of new norms.
The key analytic challenge for the twenty-first century is to understand the ways in which multiply-inspired commitments produce social imaginaries and relate to other institutions, treaties, or international justice institutions. This involves making sense of the ways that relationships and emotional responses structure affects that are deployed to build social institutions and erect policies that set social values and expectations. Once we take on the core problem of justice—the reality that justice is not necessarily about the absence of injustice but the politics of mobilization—we see that as long as various stakeholders continue to encapsulate political histories and social problems and replace them with the rule of law, then a central part of justice processes will involve reattribution, a counter response that re-inscribes justice in different terms. In many ways, this is where contemporary history is being forged, where cultural institutions and interior motives shape outward practices that are as dynamic and transforming in Africa as they are elsewhere. Making sense of this in relation to the presence and absence of power and affective responses to it—in Africa and beyond—is a central justice challenge for the twenty-first century and remains a key challenge for twenty-first century social thought.
Thank you for providing us with this understanding of linkages between law, institutions, affect and justice. Given this conceptualization of justice, my closing question is how a conception of racialized justice imaginaries can be applied to the way that we understand contemporary racial constructs in America today?
It’s such an important question from which to return mostly because this is a development underway that returns us the key issues of erasure and substitution that are central to affective justice as leading to the narrowing of justice in the contemporary period. I cannot think of a better example than the play of US politics today related to President Trump.
US President Donald Trump takes part in a cabinet meeting in the Cabinet Room of the White House in Washington, DC on November 19, 2019. Photo by MANDEL NGAN / AFP via Getty Images
This past October (2019) Donald Trump responded to the impeachment inquiry against him by the House of Representatives and the Ukraine evidence being released as a “lynching”. He said that “If a Democrat becomes President and the Republicans win the House, even by a tiny margin, they can impeach the President, without due process or fairness or any legal rights. All Republicans must remember what they are witnessing here—a lynching. But we will WIN!” (Donald Trump’s tweet, October 22, 2019).
Indeed, Trump’s response speaks to a heart-felt resentment against being investigated across party lines and he uses the lynching depiction to describe his passionate protest. Yet, lynching in the United States emerged from a history of over 4,000 black bodies that by the 1960s were mutilated without due process. The forms of mutilation ranged from hangings, limbs and genitalia being brutally amputated, flesh burned, and babies cut out of pregnant womens’ bodies while onlookers watched. In being angered by the invocation of lynching as a misuse of racialized bodies, the democratic response was a rebuke against Trump’s attempt to liken his situation to the spectacular violence of lynching. They insisted that Donald Trump’s alleged actions in Ukraine were being subjected to due process—a preliminary inquiry, and that if the House of Representatives determine that there was wrongdoing then the Senate will start a trial and reach a verdict. What we see is that the procedure, though legal, is being redefined as a politically driven act. By sidelining the dark history of US torment of black bodies, Trump’s invocation uses the language of lynching to signal that he sees himself as a victim of US political interests. But he does this in a context that is devoid of racial violence—appropriating the imagery of lynching, yet replacing its histories of racialized violence with a context which is devoid of it.
In the US, Europe, Canada, as in Africa and elsewhere, specters of racial violence are being revived with great ferocity. The suffering that is increasingly described adopts language filled with racialized horror, but empties out its context and replaces it with alternate forms of social suffering. Right-wing groups are mobilizing against brown, black and Muslim immigration, propelled by the fear of the “terrorist” or the “welfare queen” within. Narrative techniques that invoke deeply embodied fear and hatred or, for example, that use images of evil Mexican drug cartels to stand in for all Chicana and Chicano migrants, are being imaginatively deployed in ways that produce erasures of the originary violence of poverty, displacement, and near state collapse. Instead, it is we, “the American people”, or the “international community” whose claim to victimhood and suffering are possible through undermining the significance of the conditions of under which such forms of originary violence are possible.
What are we to make of this political landscape in which victimhood and suffering are being deployed strategically but at the expense of a deep understanding of root causes? And what does this mean for an anthropology of justice for the contemporary period?
Today categories of “victims” and “perpetrators” are continually interspersed with such emotive appeals and embodied responses to violence in different ways. But often – like Trump’s invocation of his predicament as a modern day lynching—contemporary appeals to injustice have tended to be taken up in emotional registers which have positioned justice in ideological terms. The term, affective justice is useful here because it allows us to think about the way that such emotive invocations of injustice—such as lynching or crimes against humanity- reflect embodied and regimented practices as well as understandings of justice that are shaped by technocratic knowledge and fueled by particular imaginaries. What is useful is to understand how justice can be encapsulated within feelings of suffering and injustice and through the erasures of racialized histories racial imaginaries can be re-signified and redeployed within new justice making regimes.
Kamari, thank you so much for your time and for pushing us to think in more complex and necessary ways about racialized imaginaries and international justice.
Thank you for the forum for this engagement.
Kamari Maxine Clarke is a professor in anthropology at UCLA. Her research explores issues dealing with the increasing judicialization of international justice, power, social inequality and globalization. Her work spans questions about the emergence of various transnational legal domains, especially international criminal tribunals and the export and spread of international legal norms. Professor Clarke is the author of over fifty books and articles, ranging from her 2009 publication of Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009) to her most recent book, Affective Justice: The International Criminal Court and the Pan-Africanist Push-Back (Duke University Press, 2019). She has been the recipient of numerous prestigious fellowships, grants and awards, including the Wenner-Gren Foundation, the National Science Foundation, the Rockefeller Foundation’s Bellagio Center and the Open Society Foundations.
Anna Kirstine Schirrer is a doctoral candidate in the Department of Anthropology and a certificate fellow with the Institute for the Study of Human Rights at Columbia University. She is currently curating a PoLAR Online series on the politics of reparations for slavery and the transatlantic slave trade. Her dissertation project focuses on how international claims for redress for transatlantic slavery and native genocide in the Caribbean converge on or diverge from national organizations’ claims for land titling in Guyana. Anna is the recipient of the Wenner-Gren Foundation Dissertation Fieldwork Grant and the National Science Foundation Doctoral Dissertation Grant from the Cultural Anthropology and Law and Social Science Programs (Award Abstract #1823901). Her broader research interests are international law, reparations, race, human rights, and postcolonial Western Europe. If you would like to contribute to the reparations series, contact her at: aks2217@columbia.edu.
PoLAR: Political and Legal Anthropology Review 
[…] Following this article, PoLAR digital editorial fellow Anna Kirstine Schirrer conducted an interview with Kamari Clarke here. […]
LikeLike