22.- 25.9
2020

Challenging the Rule of Law: The African Laboratory

Jonas Bens, Freie Universität Berlin
Leonie Benker, Humboldt-Universität zu Berlin

 

24/09/20 9 – 10.30 pm Room 1.802 (main building)

 

 

Short Abstract:

Africa has been the main laboratory for international rule of law interventions. From different disciplinary perspectives papers explore how these interventions have challenged Africa and/or how Africa has challenged the understanding of “the rule of law” more generally.

Africa has been the main laboratory for international rule of law interventions. From different disciplinary perspectives papers explore how these interventions have challenged Africa and/or how Africa has challenged the understanding of “the rule of law” more generally. Beginning in the second half of the twentieth century, international rule of law interventions in postcolonies have become a central part of an emerging global justice and human rightsregime. The African continent has been the main laboratory in which this instrument has been applied, tested and transformed. Examples are interventions of international criminal justice institutions in Africa, the facilitation of national constitution-making processes, the implementation of security sector reforms, the promotion of various human rights programs and other legalized and legalistic forms of development policies. Many in Africa and beyond view the implementation of international rule of law regimes as an illegitimate and neocolonial North-South intervention and there is a call for “African justice” instead of “Western justice”. Such counter-movements include the African Union’s attempt to create an African criminal court, the rise of alternative (neo-)traditional justice systems, and a growing movement of decolonial approaches to law and statehood in academic discourses. International rule of law interventions have become a major trope in discourses on peace and security as well as wider issues of law, rights, and governance in Africa and beyond.

This panel invites papers investigating the phenomenon of Africa as the laboratory of international rule of law interventions. From different disciplinary perspectives papers should explore how these interventions have challenged Africa and/or how Africa has challenged the understanding of the “rule of law” more generally.

 

The 2012 destructions of Sufi shrines in the ancient city of Timbuktu, during the Islamist occupation of Northern Mali, received global attention and was widely covered in the international press. The linguistic-anthropological notions of text trajectory (Blommaert 2005, Heffer et al. 2013) and dialogical network (Leudar and Nekvapil 2004) allow us to trace how this press coverage incrementally developed, by juxtaposing the voices of multiple actors, located on different nodes within the global flow of images and discourses these destructions set in motion. The analysis highlights the constitutive role of the dialogical networks actualized in this international press coverage, arguing that the transformation of what initially started as a set of ‘erasures’ indexing a space governed by Sharia (McLaughin 2017) into a the deliberate destruction of ‘cultural heritage’ (punishable under the Rome Statute) is the outcome of a series of ‘distributed’ (i.e., mediated) dialogical exchanges between Islamic militants and representatives of various (supra)national bodies (including UNESCO, the UNSC, and the ICC). As such, it shows that the categories of international law not merely travel ‘across’ sites, as is accepted both in accounts that emphasize the ‘translation’/’vernacularization’ of legal concepts (Merry 2006) and those in which the recipients of such vernacularization ‘talk back’ (Englund 2012). In the case hand, in contrast, the categories are articulated, together with their field of application, in an antagonistic contact between historical and political actors who are not only spatiotemporally remote, but who also imagine the global in radically different ways (Appadurai 1990).

Sigurd D'hont is Associate Professor of Applied Linguistics at the Research Collegium for Language in Changing Society of the University of Jyväskylä, Finland.

This paper presents an investigation of the prevailing debate on the ICC in Africa. I argue that only by taking stock of the role of affect and emotion in legalized transitional justice proceedings can we arrive at a better understanding of the political tensions that arise in the international rule-of-law movement; particularly African critiques of the neo-colonial character of the ICC. By analyzing ethnographic encounters in The Hague, northern Uganda, and other places where criticisms and defenses of the ICC’s Africa policies emerge, the paper shows that the creation of atmospheres and sentiments is key to the political debate on the ICC in Africa. Both critics and proponents of the ICC depend on these atmospheres and sentiments to make their points. Far from being merely another register of political discourse among others, the deployment of affect and emotion is a key component of any normative statement about justice.

Jonas Bens is a postdoctoral researcher in the project "Contested Property: Affect and Emotion in Transcultural Normative Conflicts about Ethnographic Collections in the Humboldt Forum" at the Collaborative Research Center "Affective Societies" at Freie Universität Berlin, Germany.

Over the years after its formal establishment in 2002, the International Criminal Court (ICC) has been the target of much criticism. Numerous scholars, politicians, lawyers and civil-society actors all over the world have questioned the court’s legitimacy, pointed out its institutional and operational shortcomings, and expressed concerns about its dependency on states’ willingness to cooperate and the resulting limited scope of action of the court. Additionally, the fact that an overwhelming majority of the ICC’s cases are situated on the African continent has led many critics to accuse the court of neocolonial tendencies, claiming that its workings are characterized by an “African bias”. Regarding the ICC’s first intervention in Africa, its 2005 decision to indict five leaders of the Northern Ugandan rebel-group Lord’s Resistance Army (LRA), many scholars and other experts have argued that the court’s involvement in the conflict did little to bring peace and/or justice to the region but that it instead exacerbated the situation even further. A regularly stressed argument in discussions about the consequences of the ICC’s intervention in the LRA-conflict is that the conflict-affected populations themselves were opposed to the ICC’s intervention, as they preferred local and informal traditional justice measures to formal criminal justice meted out by criminal courts such as the ICC. Based on three months of fieldwork in Kitgum District in Northern Uganda, this paper takes a closer look at this supposed homogeneous nature of local opinions. Wanting to contribute to a pluralization of local voices, the paper carves out the ambiguities and complexities of local perspectives on the ICC and connects them with the larger question of African agency on the international criminal justice stage.

Leonie Benker holds a B.A. in Area Studies Asia/Africa from Humboldt-Universität zu Berlin and an M.A. in Global History from Freie Universität Berlin and Humboldt-Universität zu Berlin, Germany.

In any legal system and indeed in the legal system developed by individual international organisations the application of the rule of law is very closely connected to the existence and operation of one or more independent, impartial and effective courts of justice. It is exactly these venerable judicial organs which guarantee that the rule of law is upheld and is not compromised by any stakeholder. Especially in regions like Africa, where the rule of law is often breached and is constantly under threat, the existence of judicial organs at a continental level are not a luxury but a clear necessity and no effort or expense should be spared to ensure their existence.

In that regard, the proposed paper will paint a bleak picture because the current status of continental courts of justice is not conducive to secure the rule of law. In particular, continental justice faces several very important issues and challenges. These include but are not exhausted with the still inoperative Court of Justice of the African Union (AU) and the seemingly abandoned project (unique among intergovernmental organisations) to create a continental court with an expansive criminal jurisdiction, which will surpass the rather limited (objectively speaking) jurisdiction of the International Criminal Court (ICC). While, as will be suggested in the proposed paper, in view of the non-operation of the AU Court of Justice, the African Court on Human and Peoples’ Rights might have to play a far more extensive role, this is not without problems. Indeed, the fact that less than ten Member States have accepted the ability of private parties to lodge complaints before it reduces considerably its appeal. Moreover, it is equally significant to note that the processes towards (eventual) economic integration, which are presently pursued at continental level (principally the Agreement Establishing the African Continental Free Trade Area), do not envisage dispute settlement mechanisms operated by a court of justice but have clearly favoured the system of the World Trade Organisation (WTO). Even though the WTO system has been in practice for several decades now and has resulted in many decisions of note, presently it is rather in a state of flux and, specifically, in the African context it could lead to the fragmentation of the still evasive continental justice. The paper will conclude by offering some comments and pertinent suggestions as to how to improve the present situation and safeguard that the rule of law is placed at the center of the emerging continental legal system.

Konstantinos D. Magliveras is Associate Professor of the Law of International Organizations at the Department of Mediterranean Studies of the University of the Aegean, Greece.