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.