The Power of Emotions: The Affective Nature of International Criminal Justice

The book written by Jonas Bens, The Sentimental Court: The Affective Life of International Criminal Justice, results from several years of ethnographic work conducted in two countries: the Netherlands, where the International Criminal Court (ICC) is based, and Uganda, where the events leading up to the trial of Dominic Ongwen took place. Jonas Bens makes a masterly reading of this trial, drawing on the rich ethnographic material gleaned from his fieldwork to advance a thesis that is both ambitious and insightful. This thesis aims to shed light on the “affective” character of international criminal justice, focusing on two dimensions of this affect, what Jonas Bens calls “atmosphere” and “feelings.” The book is structured in two main parts, offering a dialogue between the empirical material collected in both countries on these different topics. A third part focuses on the politics of emotions in international criminal justice. The book is very readable, well-written and offers an analytical frame that will be of interest to all those specialising in judicial politics, the role of emotions in law, and international criminal law.

The Sentimental Court is a milestone that will provide an anchorage point for future research. One should keep in mind the importance of the context in which Bens’s study is situated. It is not entirely surprising that a case as appalling as the one involving Dominic Ongwen should arouse passionate reactions, whether from the participants in the trial or the public. The opposite would have been surprising. The argument that “The courtroom is not designed to cast out affect and emotion but to create and arouse them” is deeply connected to this context. Is the role played by “emotions” the same for courts dealing with tax or commercial matters, for example, as for an international criminal court?  The answer seems obvious, but additional research on different case studies will help assess more precisely the types of emotion involved in these trials, and shed light on the actors who mobilise these emotions.

It would have been useful to describe more narrowly the “emotions,” “atmosphere,” “feelings” and “affects” in terms of the actors who mobilize them, and the context in which they do so. In this respect, Bens contrasts the affective dimension of judicial life with rational choice theory that, in his view, still dominates socio-legal scholarship. It is true that rational choice theory says very little about the deeper motives – conscious or not – of social actors. However, this theory does not a priori exclude the possibility that choices are made for reasons dictated by emotion. What is “rational” in rational choice theory is the fact that individuals are expected to make choices that are best for them, whether these choices are dictated by a cold, objective analysis of the facts or by other considerations. For example, smokers could be deemed to make a rational choice if their activity brings them a personal satisfaction that outweighs the risks associated with smoking. Eliciting the audience’s emotions, as in the case reported by Bens of the junior lawyer who plays an audio recording of an intercepted radio transmission without simultaneous interpretation (presumably to highlight the impact of the voices and emotions in the audio recording), may be part of a strategy that is indeed “rational” (even though it relies on emotions).

What remains fundamental with The Sentimental Court is that it debunks another dimension of the notion of rationality that is specifically grounded in a Western heritage, specifically the Weberian association of “rational” authority with the law. Bens shows that the ideal type of rational legal authority is not secluded from emotions, but that it is closely associated with them. If only for this reason, his book is an important and timely contribution to socio-legal scholarship.