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Decolonising ‘International’ Justice

To achieve decolonisation, a whole process of de-construction and re-construction is necessary
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In his acclaimed book, Between the World and Me, Ta-Nehisi Coates writes a passage that has been etched in my memory ever since I read it. The passage appears a few lines after Coates’ critique of the school system he was exposed to growing up in the United States of America (USA). Of this, he says he always got the sense that “schools were always hiding something, drugging us with false morality so that we would not see, so that we did not ask: Why – for us and only us – is the other side of free will and free spirits an assault upon our bodies?”

The irony of institutions designed to enlighten (at least that is what is often claimed) “hiding something” and keeping its learners in the dark is inescapable. In bringing this out, Coates brings into question the entire education system in the USA and by extension, the process and means of cultural production, from childhood and all the way to adulthood. He also brings into question the agency of how people who grow through this system eventually respond to the world around them. In fact, it is when he speaks about the teaching of Black history, the story of his ancestors, his people, and how it is taught in America that the logic of “hiding something” becomes quite apparent.

“Our teachers,” writes Coates, “urged us toward the example of freedom marchers, Freedom Riders, and Freedom Summers, and it seemed that the month could not pass without a series of films dedicated to the glories of being beaten on camera. The black people in these films seemed to love the worst things in life – love the dogs that rent their children apart, the tear gas that clawed their lungs, the fire hoses that tore off their clothes and tumbled them into the streets.”

He continues: “They seemed to love the men who raped them, the women who cursed them, the terrorists that bombed them. Why are they showing this to us? Why were only our heroes non-violent? I speak not of the morality of nonviolence, but of the sense that blacks are in special need of this morality….The world, the real one, was civilisation secured and ruled by savage means.”

The savage, in this case, was not Black but rather, an established and robust structure premised on White Supremacy. This form of savagery masks the lie that whatever was done to other races by Whites – the violence, the killings, the theft, and the plunder – it was all for a greater good for Humanity and should, therefore, not be interrogated, questioned, or even critiqued. The violence was — still is? — a moral pursuit.

Thus, the genius of White Supremacy is that while it presided over domination and oppression of other races, it still set the standards and codes for Freedom, Justice and Liberty, ensuring that it was sufficiently insulated from any form of accountability for its own atrocities. In short, pursuing total historical, cultural, and economic domination was a virtue of Western universalism, and whatever physical and spiritual dispossession that took place in the process was wholly justified. The result of that pursuit, as we know today, is clear in the ordering of races via a hierarchy that puts Whites at the apex and Blacks at the very bottom.

This is not a review of Coates’s book, of course. Rather, it is to reflect on what some have described as the ‘colonial wound’, wilfully and systematically inflicted on Black bodies and other southern populations over many years, at a global scale. This festering wound’s pain is mostly felt and seen in the violent dispossession of Being, Spirit, Knowledge and Nature, a dispossession sanitised as a civilising mission.

The analysis is staggering. To be Black is to be backward, to be a savage or a barbarian, or both. It is to be irrational, uncouth, and inhuman. To be White, on the other hand, is to be superior, to be progressive, and to be modern. It is to be rational, to be human. What follows this thinking are ideologies of modernity, liberalism, and capitalism, an intentionally racialised triad that provides the building blocks for slavery, colonialism, imperialism, and genocide. It is a triad that entrenches the hegemony of Eurocentric or Western values, and oversees and celebrates the unleashing of both physical and structural violence.

It is important to always remember, therefore, that the foundations of this colonial and imperial edifice are rooted in the violent dispossession of indigenous people’s bodies, spirits, language, knowledge, and land by invalidating their existing codes while delegitimising their agency or praxis. But, because all this violence occurs under the guise — some would say ruse — of civilisation, the perpetrators of these atrocities are never held accountable by any form or instrument of Justice. In fact, they are applauded and praised for their courage and virtue, all of which are said to have combined to make a positive contribution to Humanity. Where would the world be without their holy and sacred violence?

It is worth noting that this narrative has since been legitimised, normalised, and now prevails, almost without question — White is good, Black is bad. Yet, nothing about such claims could be further from the truth. Western values, prominently advanced under the rubric of ‘Universal’ Human Rights, are neither value-free nor universal. Rather, they are used to promote and defend the myth of Western exceptionalism and mask the violence that the West sponsors against weaker, defenceless, and dispossessed populations.

Why were only our heroes non-violent?

This is a very powerful and potent question. A question of Justice but, whose Justice is it anyway? In the rationality of Western universalism, the colonial project and its attendant oppression in the form of slavery and genocide, are justifiable acts because such acts allegedly bring about human development and usher in modernity. But, what about Justice for those who suffer, who are oppressed, and who lose everything — including their Being — while the ‘civilising mission’ goes on? Where does their Justice reside? And, what right to Violence — to self-defence — do they have?

The irony of this question starkly lies in the participation of very few African countries in the crafting of the 1948 United Nations Universal Declaration of Human Rights (UNDHR), a founding instrument of the rights-based discourse that has become dominant in interpreting local, regional and international questions on Justice. In 1948, only Egypt, Ethiopia, Liberia and South Africa (problematic as this characterisation is) could be classified as the only independent countries in Africa. While this classification obtained, the rest of Africa was not free, subjugated by colonialism, dehumanised and systematically denied every single right that was being claimed as ‘Universal’ by the United Nations.

In 1948, as the UNDHR was being adopted, violence was being visited on the majority of Africans; material dispossession, especially of Land, was taking place at a massive scale and so where the killings — mass murder amounting to genocide — of Africans. Leading up to this significant moment in the crafting of this instrument, the painful record of violence suffered by Africans is well-documented but is effectively minimised and reduced to a footnote in the rights discourse.

Hence, it should not be lost to Africans that it is only when Europe went into devastating war with itself (a war in which Africans were enlisted to fight) and had to confront a savage built to precision in her own image, Adolf Hitler, that the need for something like the UNDHR became necessary. The plight of Africans and other southern populations living under oppression prior to and during this same period had absolutely nothing to do with the design of the UNDHR. This is a salient point, worth emphasising. Structurally, therefore, our pain — Black Pain — suffered by Africans was intentionally ignored, pushed to the margins and inhumanely delegitimised. As Savages, the rationale appeared to go, Black people were incapable of feeling, let alone thinking and acting independently.

As if this was not enough, Eurocentric histories, cultures, and ideologies that stood to benefit from the intentional and systemic re-arrangement of Memory, re-configuration of Power, and relentless erasure of Pain subsequently ensured that the heavier burden of recognising and adhering to frameworks of ‘international’ Justice lay, in fact, on those people who had been spiritually and materially dispossessed of their Being and had lost control of their environment as well as the means to produce and reproduce vital elements of their existence such as Culture, Knowledge and Ideology. They, therefore, did not exist in both the imagination and experience of Justice as a universal standard. We did not exist. And today, despite the mirage of ‘Independence’ we still do not exist; we are a people without a History. We are, therefore, not Human.

Hence, Africans could not — still cannot — demand Justice for past and current atrocities that bring into question the West’s civilising mission, its accompanying violence, and the commitment to ‘international’ Justice. Quite remarkably, for the same oppressed people to be accepted and recognised as ‘civilised’ — not Human — they have to continuously subordinate their Being and Memory to the colonial, imperial and genocidal power which, itself, is above the rule of ‘international’ law and therefore has neither serious investment nor active interest in pursuing and promoting ‘international’ Justice. The net effect of this set-up is that it causes the oppressed people to ‘forget’ the violence accompanying their spiritual and material dispossession. Rather, they are taught to remember violence, pain and dispossession as an overall positive occurrence that redeemed them from savagery and ushered them into the light of civilisation and modernity. This is why, in 2024, Africans and other oppressed southern populations are still asking, nay, begging for slavery, colonial and genocide reparations from the West. If the West was truly guided by a morality that perceives Justice as just that, without any prejudices, then the question of reparations would have been long-resolved. But it is not, and may not be resolved for generations to come.

Africa in the Imagination of Africans

In his brilliant 2003 Steve Biko Memorial Lecture titled, ‘Recovering Our Memory: South Africa in the Black Imagination’, Ngugi wa Thiong’o eloquently articulated the harm wrought by the colonial, imperial and genocidal presence.  Writes Ngugi: “…the colonising presence tried to mutilate the memory of the colonised and, where that failed, it dismembered it, and then tried to remember it to the coloniser’s memory: his way of defining the word, including his take on the nature of the relations between the coloniser and the colonised.”

He continues: “The relation was primarily economic, for nobody colonises another for the aesthetic joy of simply doing it. The colonised as worker, as peasant, produces for another. His land and his labour benefit another. This is, of course, effected through power, political power, but it is also accomplished through cultural subjugation, the control of the entire education system for instance, the ultimate goal being to establish psychic dominance on the part of the coloniser and psychic submission on the part of the colonised.”

Here, Ngugi answers one of Coates’ questions – Why are they showing this to us? – when he reflects on the images of Black people suffering violence, shown to him in school as he grew up. Indeed, why is it necessary to show Black people, young Black children actually, images of their fathers, mothers, brothers, sisters, uncles and aunts being violently and unjustly murdered and then in the same breath, preach the universality of human rights and non-violence? Why was it necessary for me to learn, in primary school, about Europe’s glorious history and only African subjugation and humiliation?

The answer is Power, especially the discursive power to name what rights are and what constitutes violations of those rights.  The power, also, to control which memories to remember and which events to forget. So, once the education system is done with you, you can remember, almost word for word, The Diary of Anne Frank but you do not know a single thing about Kwame Nkrumah, Patrice Lumumba or even Thomas Sankara.

Imagine also, for example, how the people of Chile feel every year on 11 September when the Western world prominently remembers the 2001 attack on the World Trade Centre in the US. For Chile, that very same day invokes the memory of a brutal US-sponsored coup, in 1973, that overthrew the democratically-elected government of President Salvador Allende and left thousands dead, including women and children. In 2002, Tito Tricot, a Chilean, expressed this imbalance in ‘international’ memory and pain quite succinctly:

Our dreams were shattered one cloudy morning when the military overthrew the democratically elected government of Salvador Allende. Twenty-nine years later, at midday, Chile’s firemen sounded their sirens paying tribute to thousands of men and women who lost their lives without really understanding what was happening.

“It was a moment of remembrance, not for the victims of the military coup, but for those killed at the World Trade Centre in New York. Sad as that might have been, it is even sadder that Chilean firemen have never sounded their sirens to remember our own dead. And there are thousands of them, including many children, who were murdered by the military.

“It is not a matter of comparing sorrow and pain, but for the past year, the US media has tried to convince us that North American lives are worth more than other people’s lives. After all, we are from the third world, citizens of underdeveloped countries who deserve to be arrested, tortured, and killed. How else are we [to] interpret the fact that the military coup in our country was planned in the United States?”

These discursive privileges, often projected as fair, balanced, and unbiased, afford dominating countries the power to not only dictate what can be remembered but also, the nature and extent to which rights to Freedom and Justice can be either exercised or withdrawn. There is no neutrality, objectivity, or even fairness in this regard. Unsurprisingly, as access to information has become decentralised, threats to free speech have significantly increased with people who do not follow the dominant/established narrative lines getting punished for their ‘dissent’ and ‘disobedience’, particularly Africans and other oppressed populations. Is it not curious, therefore, that since the UNDHR went on to share its DNA with various other instruments and frameworks of ‘international’ Justice and Law, it also imparted elements of systemic marginalisation, therefore disenfranchising the less powerful in the world while leaving powerful actors to enslave, colonise and murder with reckless abandon?

Whose Justice is it anyway?

In 2013, Ngugi analysed this discursive power in a public lecture titled ‘The Language of Justice in Africa’. His main argument was that “our judicial system, the most consequential in all our lives, in our court system, has no room for African language speakers. The defense, prosecution, and the judge occupy a linguistic sphere totally removed from the person whose guilt or innocence is on the line, if he/she happens to be an African language speaker. This was the way it was during the colonial era; this is the way it is in the postcolonial era.”

Essentially, then, the Law that used to enforce colonial control remained intact in many African countries and thus contributed to the hegemony of Eurocentric values in creating the post-colonial State. Hence, the continuation of colonial era practice in the delivery of Justice has also meant that an acutely Eurocentric bias remains at the core of the justice delivery mechanisms in most African countries. Within this setup, therefore, it is very difficult to imagine any African judiciary being able, for example, to take white European or American leaders accused of committing crimes against humanity — including brutal colonial crimes — to either the International Criminal Court (ICC) or the International Court of Justice (ICJ).

That is why former British Prime Minister, David Cameron — a man personally linked to the slave enterprise — can tell the people of Jamaica to get over their violent history of slavery without any sense of irony. It is also why US president, Barack Obama, can get away with a simple apology for the bombs he dropped on other people and still not see himself as a terrorist. Indeed, the West can sponsor coups, drop bombs, and commit other violent acts on African or other southern populations, and ‘international’ justice mechanisms would still be handicapped, unable to decisively deal with clear violations of ‘international’ law. One just has to look at the more recent case at the ICJ, in which South Africa asked the court to hold Israel accountable for its genocidal acts in Palestine. The West’s reaction to the court’s pronouncements against Israel reveals the glaring imbalance of the scales of Justice as well as the extent to which the monopoly on violence can be tolerated.

These outcomes are possible because the very same perpetrators of violence and the architects of ‘crimes against humanity’ have assumed the role of Judge, Jury, and Executioner in the framework of ‘international’ Justice. They are not answerable to anyone except themselves. Without a rethink, therefore, the impunity currently governing ‘international’ Justice systems and mechanisms will continue unabated and without any consequences on the part of those who proudly promote and defend colonialism, imperialism, and genocide.

But one must still ask: how different are the Charlie Hebdo killings in France (remember #JeSuisCharlie?) to the US bombs that were dropped on a hospital in Kunduz, Afghanistan? If “we” — the outraged international community — are demanding Justice for the Charlie Hebdo massacre, are we doing exactly the same for Kunduz, with the exact same media prominence and unity of action? If not, what informs the differences in reaction, action and reflection? Why is there a difference?

The ICC’s breath-taking inconsistencies in this regard are difficult to ignore. The court appears to continuously reinforce colonial and imperial tendencies, reflecting its ideological inclinations and firm imagination in the discourse on Western universalism. It is important to note that the Rome Statute, the framework that creates the ICC, also derives its DNA from the UNDHR. It is no surprise, therefore, that some of the world’s biggest powers and architects of violence continue to abstain from the ICC but have the authority to effect sanctions on less powerful and ‘inferior’ countries accused of rights violations. If ‘international’ Justice is blind, then where is the blindness?

In all of this, we continue to see (sic) ‘Western rationality’ masking and justifying its violent crimes by creating a sense of African or Southern irrationality that necessitates the imposition of the burden of non-violence and compliance with ‘international’ justice instruments on weaker States, most of which have been previously subjugated by colonialism, imperialism, and genocide. Justice — as commonly understood — is, therefore, not ‘international’ as widely claimed but it is unapologetically provincial. There is Justice for the ‘civilised’ world and there is Justice for the ‘uncivilised’ world and it is the Justice of the former that prevails over the other. In other words, impunity rules.

In his reflections on Kunduz, British novelist, Rana Dasgupta exposes the hypocrisy of the West in its non-compliance with ‘international’ obligations, especially those on war. She writes: “Western assumptions about which populations may be targeted with aerial bombardment have remained intact —  and no one should be surprised if those populations have stored up a diabolical picture of the West over the course of the intervening century. What has not remained intact is the basic repugnance towards aerial bombing which made it, even in the old empires, an unpopular last resort.”

Confronting the White Saviour

Across Africa, Western universalism does not function on its own. It is built and sustained by a vast network of local actors belonging to well-resourced NGOs, political parties, and other elite groups which receive the bulk of their support from powerful Western donors, multilateral agencies, and institutions. Most of this support is, of course, directed at advancing ‘human rights’.

These groups are capable of articulating, translating, and transferring hegemonic and dominant Western ideas onto the broader populations, and orienting them towards the preferences and ideologies of Western capital in the process. For example, most NGOs operating in Africa today act as extensions of the dominant structures of the global political economy. Hence, their demands for Justice, are usually aligned with Western values, which do not often recognise organic or alternative solutions to dispute resolution, for example.

This is not to suggest a lack of agency on the part of African NGO workers, political party activists and other policy elites. Rather, it is to recognise that within the space they occupy thanks to Western capital — international conferences, training programmes, education, policy dialogues, and other funding — hegemonic Western ideas are adopted, internalised, translated and then articulated by these African actors whose locus of enuncitiation, is subordinate to Western values.

Further, African NGO workers, political party activists, and other policy elites popularise Western ideas, methods, and histories amongst unsuspecting sections of the local population. They do this via popular interventions such as workshops, community meetings, reports, statements, and the media, helping Western notions of Justice, for example, become the dominant and preferred methods of accessing justice. Through this highly-mediated and biased process, the architecture of global domination is sustained, while the development of alternative ideas, processes and actions which challenge hegemonic power is prevented. Broadly, therefore, this means that attempts to fight and resist neo-colonialism in Africa are always going to be difficult, especially if the conceptualisation of the State has to be thought anew.

Are alternative instruments and mechanisms for Justice even possible to imagine in a climate in which colonialism, imperialism, and genocide appear to have won at the expense of independence, freedom, and liberty? Can the current framework of ‘international’ Justice be decolonised and something more humane, more inclusive, and more accountable emerge from that process? Can an African redemption song for freedom, emancipation and Justice be understood by White saviours who, although they claim to be on a civilising mission, preside over the destruction of other peoples’ languages, culture, and histories?

To decolonise or remain colonised?

To achieve decolonisation, a whole process of de-construction and re-construction is necessary. Debilitating forms of aid and other forms of dependency have suppressed the creation of organic movements that can aptly respond to contemporary struggles for Justice. Therefore, the search for a sovereign consciousness, which when found will give birth to new forms of activism, imagination and ideology must begin with a repudiation of existing arrangements of Power between the West and the oppressed South. Such a refusal would no doubt be met with resistance and punishment in the form of sanctions, marginalisation or — at worst — bombs.

However, “[such] divergence,” writes the decolonial scholar Catherine Walsh, “is not meant to simplify indigenous or black thought or to relegate it to the category or status of localized, situated, and culturally specific and concrete thinking; that is to say, as nothing more than ‘local knowledge’ understood as mere experience. Rather it is to put forward its political and decolonial character, permitting a connection then among various [organic thoughts] as part of a broader project of ‘other’ critical thought and knowledge.”

To be sure, this article is not questioning the principle of Justice. What is under scrutiny is how Justice mechanisms, especially those operating within the international sphere, are designed and whose interests, in particular, they serve. It is unacceptable to have countries that preach waters of democracy and freedom while drinking the wine of tyranny and impunity and still insist that the instruments being used to demand Justice are credible, fair, and just.

It is, therefore, important to note and recognise that when Africans question the impartiality of the ICC or the ICJ, for example, it is not the need for an institution such as the ICC to exist, but rather its function and commitment to principles of international law and justice if, indeed, justice is blind. The criticism levelled at those who support Africa’s withdrawal from the ICC, for example, is not without merit either. Without a court of this nature, many people — not just in Africa — are likely to escape accountability for actions that violate human rights, leading to gross impunity and the failure of those who suffer abuse to access justice.

The debate on the conduct of the ICC, and more recently ICJ, towards Africa is, undoubtedly, critical. However, if it excludes a much stronger focus on the need to review and strengthen local justice systems, doing away with the inherent structure and culture of colonial oppression, effective access to justice and legal protection of citizens’ rights will remain a pipe dream from many across the continent.

Further, this debate also has to analyse the complicity of Western powers in propping up regimes that are profoundly anti-People but can afford to do so because they know they receive protection for the services they render in guaranteeing the West’s geo-political interests. Some crimes against humanity, according to Western definitions, have taken place with the very blessing of the West itself!

Ultimately, decolonising ‘international’ Justice requires the building of stronger South-South relations and fostering a more holistic approach in decolonising language, history, and ideology. It will not happen overnight and the resistance to such efforts will be great. However, it is the only way towards a more just and moral world.  If not for us, then for posterity.

 

An earlier version of this article appeared in The Con magazine (South Africa) in 2015.

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