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Book Review: Clarke’s Fictions of Justice

This edi­tion of our ongo­ing series of book reviews offers a crit­i­cal but ulti­mate­ly pos­i­tive take on Kamari Max­ine Clarke’s Fic­tions of Jus­tice: The Inter­na­tion­al Crim­i­nal Court and the  Chal­lenge of Legal Plu­ral­ism in Sub-Saha­ran Africa. This book review is par­tic­u­lar­ly time­ly, as the recent ECCC ver­dict in the “Duch” tri­al reminds us of that court’s land­mark deci­sion ear­li­er this sum­mer, which reject­ed one con­tro­ver­sial form of “joint crim­i­nal enter­prise” lia­bil­i­ty.  Kel­ly Geoghegan’s review, pub­lished in issue no. 42:3 of JILP, takes the oppor­tu­ni­ty to lev­el her own crit­i­cism, or skep­ti­cism, at JCE the­o­ry.

By Kel­ly Geoghe­gan

Fic­tions of Jus­tice is Kamari Max­ine Clarke’s search­ing anthro­po­log­i­cal cri­tique of both the inter­na­tion­al rule of law move­ment and its flag­ship tri­bunal, the Inter­na­tion­al Crim­i­nal Court (ICC). Clarke explores the unspo­ken assump­tions, or “fic­tions,” that under­lie this move­ment, show­ing that these assump­tions priv­i­lege West­ern ideas of jus­tice over African ones and obscure the post-colo­nial eco­nom­ic forces behind Africa’s tur­moil. Ulti­mate­ly, Fic­tions of Jus­tice is an anthro­po­log­i­cal work, not a legal text. Still, the book has potent insights to offer legal prac­ti­tion­ers, par­tic­u­lar­ly activists work­ing “on behalf of vic­tims” to achieve “uni­ver­sal” ideals of jus­tice.

Clarke’s prin­ci­pal sub­ject is the ICC, a court designed to “end impuni­ty for the per­pe­tra­tors of the most seri­ous crimes of con­cern to the inter­na­tion­al com­mu­ni­ty.” To date, the ICC has only issued indict­ments against Africans. In Ugan­da, the ICC issued five indict­ments against lead­ers of the rebel Lord’s Resis­tance Army sus­pect­ed of com­mit­ting war crimes dur­ing the nation’s bit­ter civ­il war. These indict­ments proved deeply polar­iz­ing, par­tic­u­lar­ly dur­ing Uganda’s peace talks in 2008. Ral­ly­ing to the cry of “no peace with­out jus­tice,” a pro-ICC fac­tion scorned any peace pro­pos­als that includ­ed amnesty for top lead­ers. Yet the tra­di­tion­al Ugan­dan view depicts jus­tice as a process of soci­etal heal­ing. For tra­di­tion­al­ists, peace is jus­tice, so that an amnesty con­tributes to jus­tice by has­ten­ing peace.

Clarke notes that these con­cep­tions of jus­tice are defined in oppo­si­tion to one anoth­er, and so are “incom­men­su­rable.” And although Clarke metic­u­lous­ly notes alter­na­tive per­spec­tives, the dis­agree­ment over the mean­ing of jus­tice has main­ly man­i­fest­ed itself as a debate of “inter­na­tion­al” ver­sus “African” approach­es. With lit­tle room for com­pro­mise between these camps, Clarke argues that the rule of law move­ment has pro­gressed through the “polit­i­cal econ­o­my of incom­men­su­ra­bil­i­ty,” with the car­rot-and-stick forces of inter­na­tion­al NGO donor cap­i­tal­ism and inter­na­tion­al tri­bunals with pow­er over African sov­er­eign author­i­ty ensur­ing that inter­na­tion­al ideas of jus­tice pre­vail. Indeed, the ICC’s pros­e­cu­tor pub­licly refused to with­draw the Ugan­dan indict­ments, though the rebel lead­ers remain at large.

Although the project of Clarke’s book is pri­mar­i­ly descrip­tive, the Ugan­dan exam­ple show­cas­es some of the author’s poignant nor­ma­tive cri­tiques. She con­cludes that the same human­i­tar­i­an and moral imper­a­tives that were deployed to jus­ti­fy colo­nial­ism are being wheeled out in this debate. Stereo­types about Africa’s “polit­i­cal fragili­ty, legal inep­ti­tude, and eco­nom­ic volatil­i­ty” ulti­mate­ly under­lie both the rule of law move­ment and the ICC’s pri­mar­i­ly African focus. She high­lights the fact that the first case to come before the ICC involved child sol­diers, and she accus­es the inter­na­tion­al move­ment of liken­ing Africa to a child sol­dier: imma­ture, trag­i­cal­ly exploit­ed, guilty of the unthink­able, but simul­ta­ne­ous­ly absolved of that guilt through the denial of moral agency. This image of the child sol­dier forms a “specter,” a styl­ized (and fic­tion­al­ized) idea of a vic­tim in need of res­cue. The inter­na­tion­al law move­ment claims this hyper­bolized vic­tim as its ben­e­fi­cia­ry, and relies on the vic­tim as the source of its legit­i­ma­cy.

Yet Clarke’s child sol­dier metaphor rep­re­sents one of the pri­ma­ry prob­lems with Fic­tions of Jus­tice. In places, the book
seems sym­bol­ic to the point of inac­cu­ra­cy. The ICC’s first indict­ment, entered against Thomas Luban­ga Dyi­lo, charged him only with the crime of con­script­ing chil­dren under age 15 into the Patri­ot­ic Forces for the Lib­er­a­tion of Con­go (FPLC).  Clarke nev­er men­tions that Lubanga’s charges were so lim­it­ed to avoid a legal prob­lem. In 2006, when the Luban­ga case was first pre­sent­ed to the court, the ICC’s cred­i­bil­i­ty was on the line since it had yet to begin a sin­gle case in four years of oper­a­tion. To sat­is­fy the ICC’s juris­dic­tion­al require­ments, how­ev­er, the DRC was required to be “unwill­ing or unable” to pros­e­cute Luban­ga at the nation­al lev­el. The DRC’s court sys­tem was arguably func­tion­al in 2006, and in fact the DRC had already insti­tut­ed pro­ceed­ings against Luban­ga for many crimes. Through some­what gym­nas­tic log­ic, the ICC assumed juris­dic­tion over Lubanga’s case because the DRC lacked any statute crim­i­nal­iz­ing the recruit­ment of child sol­diers, and was thus “unable” to pros­e­cute Luban­ga for the total­i­ty of his offens­es. Although Clarke’s child sol­dier anal­o­gy is lin­guis­ti­cal­ly and visu­al­ly potent, the ICC’s deci­sion to focus on both Africa and on child sol­diers arguably lacks the sym­bol­ism with which Clarke imbues it.

Sim­i­lar­ly, Clarke over­reach­es in her argu­ment that com­mand respon­si­bil­i­ty, a the­o­ry of indi­vid­ual crim­i­nal respon­si­bil­i­ty under which com­man­ders are account­able for the crimes of their under­lings, allows the rule-of-law move­ment to fic­tion­al­ize the mean­ing of “guilt.” She asserts that com­mand respon­si­bil­i­ty has shal­low legal roots (despite its long use in mil­i­tary con­texts), and that com­mand respon­si­bil­i­ty was invent­ed to scape­goat a few select war­lords as the “bad apples” who could be found “guilty” for the deeds of count­less oth­ers.

These fic­tions, Clarke con­tin­ues, bol­ster the view­point that the under­lings lack moral agency, and fur­ther­more obscure the role that colo­nial and post-colo­nial eco­nom­ic forces have played in engen­der­ing African con­flicts. Although link­ing com­mand respon­si­bil­i­ty to West­ern ide­o­log­i­cal impe­ri­al­ism is nar­ra­tive­ly com­pelling, Clarke’s analy­sis seems ulti­mate­ly flawed. Deci­sion mak­ers should bear height­ened respon­si­bil­i­ty when their deci­sions are car­ried out, and by pros­e­cut­ing com­man­ders, under­lings are not nec­es­sar­i­ly there­by excul­pat­ed through a denial of agency. In fact, the ICC encour­ages nation­al pros­e­cu­tion of “low­er lev­el” offend­ers. In the alter­na­tive, root­ing African tur­moil sole­ly in colo­nial and post-colo­nial eco­nom­ic con­tests seems to excul­pate com­man­ders by deny­ing their agency. Assum­ing pros­e­cu­tions are a valid way of respond­ing to atroc­i­ties com­mit­ted dur­ing con­flict (an asser­tion that Clarke nev­er repu­di­ates), then the ICC must focus on lead­ers for prac­ti­cal rea­sons, both because of lim­it­ed resources and because lead­ers are most like­ly to avoid crim­i­nal charges in nation­al courts.

By focus­ing on com­mand respon­si­bil­i­ty, Clarke miss­es the oppor­tu­ni­ty to cri­tique a much weak­er the­o­ry of indi­vid­ual cul­pa­bil­i­ty known as “joint crim­i­nal enter­prise” (JCE). This judi­cial­ly cre­at­ed the­o­ry resem­bles Pinker­ton lia­bil­i­ty in U.S con­spir­a­cy law, pin­ning guilt on indi­vid­u­als for the fore­see­able crim­i­nal acts of all oth­er mem­bers engaged in a com­mon crim­i­nal enter­prise. JCE, nick­named “Just Con­vict Every­one,” has been crit­i­cized by inter­na­tion­al legal schol­ars since its incep­tion, and many have spec­u­lat­ed that JCE was cre­at­ed to ensure that polit­i­cal lead­ers who could not be shown to exer­cise com­mand respon­si­bil­i­ty would nev­er­the­less be con­vict­ed with their peers. JCE is a vivid exam­ple of how the inter­na­tion­al com­mu­ni­ty has been will­ing to fic­tion­al­ize the law, valu­ing the “jus­tice” of con­vic­tion over oth­er con­cepts of “jus­tice” which are arguably even dear­er to West­ern jurists: those of due process, nul­lum crimen sine lege, and the right to a fair tri­al.

Part II of Fic­tions of Jus­tice some­what loose­ly reap­plies the ideas of the pre­vi­ous chap­ters to ques­tions divid­ing inter­na­tion­al sec­u­lar ideals from Sharia law. Using Nigeria’s Sharia law move­ment as a case study, Clarke revis­its the con­cepts of jus­tice and vic­tims’ inter­ests. In Sharia law, accep­tance of a pro­scribed pun­ish­ment is the way that wrong­do­ers sub­mit to the will of God. By cut­ting off a thief’s hand, the thief may be saved, while “the hand will go to hell.” Sim­i­lar­ly, ston­ing the adul­ter­ess pun­ish­es her body but redeems her soul. To sec­u­lar human rights activists, how­ev­er, these defen­dants are “vic­tims” who must be saved from their own repres­sive crim­i­nal regimes, even when the “vic­tims” accept their pun­ish­ment as a part of sub­mis­sion to Allah. Clarke dis­cuss­es two botched inter­na­tion­al human rights cam­paigns designed to “save” con­vict­ed adul­ter­ess­es that ulti­mate­ly proved alien­at­ing to the Sharia com­mu­ni­ties and detri­men­tal to the women involved.

Rather than coerce human rights jus­tice through NGO-run cam­paigns, Clarke encour­ages “strate­gic trans­la­tion,” a con­cept derived from Sal­ly Merry’s mod­el that norms spread more eas­i­ly when they are “ver­nac­u­lar­ized” into cul­tur­al­ly accept­able terms. Essen­tial­ly, activists should work with­in Sharia law, not against it. For exam­ple, invok­ing the Sharia belief that a child born with­in a few years of a husband’s death may still be attrib­uted to the late hus­band may be a more appro­pri­ate way to advo­cate on behalf of a wid­ow charged with adul­tery than decry­ing the entire Sharia sys­tem.

Clarke con­cludes that a “crit­i­cal­ly engaged transna­tion­al legal plu­ral­ism” can reori­ent inter­na­tion­al legal schol­ar­ship about the mean­ings of jus­tice. Only then can the seem­ing­ly incom­men­su­rate become “jus­tice in the mak­ing.” Unfor­tu­nate­ly, Clarke nev­er explains how this solu­tion might help resolve the Ugan­dan issue, nor does she offer sug­ges­tions for respond­ing to the prob­lem of Africa’s eco­nom­ic desta­bi­liza­tion. And by encour­ag­ing human rights activists to work against Sharia norms, even while work­ing with­in the Sharia sys­tem, Clarke qui­et­ly priv­i­leges human rights jus­tice with­out ever explain­ing how to go about choos­ing one vision of jus­tice over anoth­er. Still, Fic­tions of Jus­tice unique­ly applies years of first-hand research and pow­er­ful anthro­po­log­i­cal insights to a tra­di­tion­al­ly legal top­ic. Legal audi­ences have much to gain from this work.

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