Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge Studies in Law and Society)

By taking up the challenge of documenting how human rights values are embedded in rule of law movements to produce a new language of international justice that competes with a range of other formations, this book explores how notions of justice are negotiated through everyday micropractices and grassroots contestations of those practices. These micropractices include speech acts that revere the protection of international rights, citation references to treaty documents, the brokering of human rights agendas, the rewriting of national constitutions, demonstrations of religiosity that make explicit the piety of religious subjects, and ritual practices of forgiveness that involve the invocation of ancestral religious cosmologies - all practices that detail the ways that justice, as a social fiction, is made real within particular relations of power. COVER 1 HALF-TITLE 3 SERIES-TITLE 5 TITLE 7 COPYRIGHT 8 DEDICATION 9 CONTENTS 11 PREFACE 13 ACKNOWLEDGMENTS 23 INTRODUCTION: THE RULE OF LAW AND ITS IMBRICATIONS – JUSTICE IN THE MAKING 29 PROLOGUE: THE INTERNATIONAL CRIMINAL COURT AND THE DEMOCRATIC REPUBLIC OF THE CONGO 29 ANTECEDENTS TO THE ICC – THE FORMER YUGOSLAVIA, RWANDA, AND SIERRA LEONE 37 Yugoslavia: Milosevic and the ICTY 37 Rwanda: Akayesu and the ICTR 41 Sierra Leone: Charles Taylor and the Special Court for Sierra Leone 43 THE ICC AND COMPETING NOTIONS OF JUSTICE IN SUB-SAHARAN AFRICA 45 FICTIONS AND SPECTERS OF JUSTICE 48 Interrogating Legal Pluralism, Mapping Justice through Power 51 Incommensurabities in Religious Truth Regimes 54 CONTEXT AND SCOPE OF THE BOOK 55 Modeling the Spread of “Human Rights” and the “Rule of Law” 58 Limits to the Models 61 Challenges to the Fiction of the Rule of Law as Supreme Justice 62 U.S. Contestations of the ICC 64 ORGANIZATION OF THE BOOK 67 PART ONE: THE PRODUCTION OF LIBERALIST TRUTH REGIMES 71 CHAPTER 1 CONSTRUCTING FICTIONS: MORAL ECONOMIES IN THE TRIBUNALIZATION OF VIOLENCE 73 FROM COLONIALISM TO THE NEW SCRAMBLE FOR AFRICA 75 MORAL ECONOMIES AND PRAXEOLOGY 77 EMPOWERING “JUSTICE,” JUSTIFYING POWER 79 Ontologies of ICC Notions of Criminal Responsibility 82 THE COSTS OF “JUSTICE” TALK 90 INTERNATIONAL NGOS AND THE COSMOPOLITAN ELITE 91 NGOS ON THE RISE: THE COALITION FOR THE ICC 94 High Stakes and Big Ideas: The Rule of Law in Morocco 97 The CICC and State Constitutions: Rome Statute Implementation in Africa 98 DEVELOPING AFRICA – FROM THE OUTSIDE IN 101 Extraction and the “Public Good” 101 Reconfigurations of State Practices 103 Partnering for Public Services 104 Mortgaging Africa's Future: The Fine Print on Loans 106 NGOs Ascendant: Who Sets the Agenda? 107 Donor Capitalism to the Rescue? 109 CONCLUSION 115 CHAPTER 2 CRAFTING THE VICTIM, CRAFTING THE PERPETRATOR: NEW SPACES OF POWER, NEW SPECTERS OF JUSTICE 117 CHILD SOLDIERS: SPECTERS OF INTERNATIONAL JUSTICE 118 THE ICC AND THE TRIBUNALIZATION OF AFRICAN VIOLENCE 122 THE DRC, THE ICC, AND THOMAS LUBANGA DYILO: HISTORIES OF VIOLENCE 124 COMMAND RESPONSIBILITY AND THE SPECTRALITY OF JUSTICE 126 THE CASE OF THOMAS LUBANGA DYILO AND THE SPECTERS OF THE VIOLATED 128 VICTIMS AND THE MORAL ECONOMY OF INTERVENTION: ICC RULES AND STRATEGIES 133 HUMANITARIANISM AND THE PERFORMANCE OF INTERNATIONAL JUSTICE 137 WHY AFRICA? 140 Steps Toward a Critical Transnational Legal Pluralism 142 CHAPTER 3 MULTIPLE SPACES OF JUSTICE: UGANDA, THE INTERNATIONAL CRIMINAL COURT, AND THE POLITICS OF INEQUALITY 145 PROLOGUE: REINSTATING CULTURAL COMPLEXITIES 145 INTERNATIONAL “JUSTICE” VERSUS SPIRITUALLY DRIVEN RECONCILIATION AS JUSTICE 147 THE UGANDAN AMNESTY ACT AND THE DIFFICULTIES OF COMPLEMENTARITY IN ACTION 150 AMNESTY AND THE “TRADITIONAL” ACHOLI PATH FOLLOWED BY UGANDA 153 CHALLENGES AND CONTESTATIONS TO THE ICC IN UGANDA 160 In “the Interests of Justice”: The Rights of Victims versus the Rights of the State 164 THE OBLIGATION OF STATES TO UPHOLD INTERNATIONAL LAW VERSUS THEIR RIGHT TO RESOLVE DISPUTES IN THEIR CHOSEN WAY 166 Victims, the State of Exception, and the New “New Sovereignty” 168 PART TWO: THE RELIGIOUS POLITICS OF INCOMMENSURABILITY 177 CHAPTER 4 “RELIGIOUS” AND “SECULAR” MICROPRACTICES: THE ROOTS OF SECULAR LAW, THE POLITICAL CONTENT OF RADICAL ISLAMIC BELIEFS 179 THE ICC: A MOVEMENT IN THE MAKING 179 RADICAL ISLAM AND ITS SPACES OF POWER 181 LEGAL PLURALISM AND BEYOND 183 SECULARISM, ISLAM, AND INTERPRETING “APPROPRIATE” VIOLENCE 185 The Response of Religious Revivalism 185 Islam and Sharia, Duties and Obligations 186 “Intention” and the Concept of al-Khuruj 190 The ICC and the Concept of Intention 192 Competing Spheres of Authority and Power 194 Secular versus Nonsecular Forms of Violence 197 GENEALOGIES OF “SECULARISM” AND THE POLITICS OF CONSTITUTIVE POWER 200 CHAPTER 5 “THE HAND WILL GO TO HELL”: ISLAMIC LAW AND THE CRAFTING OF THE SPIRITUAL SELF 210 SHARIA-IZATION IN NIGERIA, POST-1999 210 MACROHISTORICAL POLITICS AND THEIR ALIGNMENTS WITH POWER 216 The Early Spread of Islam in Precolonial Nigeria 216 Changes in Colonial Governance: Vernacularizing the Judicial Reach of Courts 217 The New Nigeria: Secular Democracy and Sunni Islamic Revivalism 222 POLITICS, AGENCY, AND THE CRIME OF ZINA 223 VERNACULAR JUSTICE: RELIGIOUS POLITICS AND THE POLITICS OF FAITH 226 CONCLUSION 232 CHAPTER 6 ISLAMIC SHARIA AT THE CROSSROADS: HUMAN RIGHTS CHALLENGES AND THE STRATEGIC TRANSLATION OF VERNACULAR IMAGINARIES 234 SAFIYA HUSSAINI AND AMINA LAWAL 234 CASE STUDY: AMINA LAWAL 239 ENGAGING SHARIA, MANAGING PUNISHMENT 241 Cultural Logics of the Sharia 242 Tenets of Punishment 244 “Secular” Genealogies of Acceptable Punishment 245 GOOD-WILLED DEMOCRACY: FEMINIST NGOS AND THE ERRORS OF PROTEST 246 VERNACULAR KNOWLEDGES: NIGERIAN CONSTITUTIONALISM FROM THE GROUND UP 252 ISLAMIC REFORM IN RELATION TO OTHER KINDS OF REFORM 257 VIOLENCE AS CENTRAL TO THE PRACTICE OF THE EVERYDAY 260 EPILOGUE: TOWARD A CRITICAL TRANSNATIONAL LEGAL PLURALISM 263 NOTES 269 Preface 269 Introduction 269 Chapter 1 275 Chapter 2 281 Chapter 3 286 Chapter 4 295 Chapter 5 302 Chapter 6 305 BIBLIOGRAPHY 311 INDEX 335 Micropractices of justice making : the moral and political economy of the "rule of law"--Crafting the victim, crafting the perpetrator : new spaces of power, new specters of justice -- Multiple spaces of justice : Uganda, the International Criminal Court and the politics of inequality -- "Religious" and "secular" micropractices : the religious roots of secular law, the political content of radical Islamic beliefs -- "The hand will go to hell" : Islamic law and the crafting of the spiritual self -- Islamic sharia at the crossroads : human rights challenges and the strategic reworking of vernacular imaginaries Micropractices of justice making : the moral and political economy of the "rule of law" Crafting the victim, crafting the perpetrator : new spaces of power, new specters of justice Multiple spaces of justice : Uganda, the International Criminal Court and the politics of inequality "Religious" and "secular" micropractices : the religious roots of secular law, the political content of radical Islamic beliefs "The hand will go to hell" : Islamic law and the crafting of the spiritual self Islamic sharia at the crossroads : human rights challenges and the strategic reworking of vernacular imaginaries.