By Kamari Maxine Clarke
Since the October 7 Hamas attack, international attention has been keenly focused on Israel’s military response in Gaza, particularly the extent of civilian suffering and death in the region. According to a June 2024 report by the United Nations Office for the Coordination of Humanitarian Affairs, the number of fatalities (civilian and military) in the Gaza Strip were estimated to have exceeded 37,400 (in addition to over 500 in the West Bank and over 1,000 in Israel) with the number of reported injured estimated to be around 85,5001 On May 20, 2024, just weeks prior to the release of this information, International Criminal Court (ICC) Prosecutor Karim Khan filed applications before the Court’s Pre-Trial Chamber I for multiple arrest warrants against leaders on both sides of the conflict for crimes against humanity allegedly committed on the territory of Israel and the State of Palestine. A panel of judges is currently deciding whether the standard threshold for issuing arrest warrants has been met based on the evidence submitted thus far. However, we do not need to wait for the legal decision from this panel of judges to understand the affective force of Khan’s application.
The arrest warrants requested by ICC Prosecutor Khan are part of a two-pronged assemblage of protests that align, in these instances, with both legal and nonlegal discourses that invigorate affective afterlives. First, they react to mass killings and abductions by Hamas and disproportionate deployments of Israeli violence against innocent Palestinian civilians; and second, they respond to the long durée of violence deployed by Israel by creating openings for rectification and new possibilities. On the one hand, in the legal realm, an ICC arrest warrant is a legal document issued by the ICC’s Pre-Trial Chamber or Trial Chamber. These warrants order the arrest and surrender of an individual accused of committing one or more of the following crimes: genocide, war crimes, crimes against humanity, and the crime of aggression. On the other hand, and in the realm of sociality, arrest warrants fall into the affective domain. An affective domain involves psycho-social feelings, emotions, histories, and institutions of power that have sedimented over time, often unconsciously, and shape social relations. It is the way that people deal with related external and internal phenomena, and it presumes that these engagements have material effects on daily life.
Arrest warrants have dynamic relationships with the affective and legal domains through which they are constituted. Their affective lives shape various justice imaginaries through the feelings, emotions and psycho-social responses that shape the terms for future possibilities within and outside of the law. In a context of post-atrocity violence that triggers legal responses, the assertion of arrest warrants demands a public inquiry and insists on detainment and answerability before the law. This symbolics of inquiry and answerability is what otherwise might be described as a demand for legal accountability. Indeed, several months before Prosecutor Khan sought arrest warrants from the ICC, South Africa had already turned to the United Nation’s International Court of Justice (ICJ) for an intervention. On January 26, in the form of South Africa v. Israel, South Africa brought before the ICJ a case under the Genocide Convention requesting that the court take provisional measures demanding that Israel “take all measures within its power to prevent the commission of all acts within the scope of Article II of Genocide Convention, in particular with respect to killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.” South Africa next filed an urgent request with the Court on March 6th; that action resulted in a court-issued Order which reaffirmed the provisional measures issued in January 2024 and added additional provisional measures. That South Africa, in particular, would bring this case before the court further illustrates the two-pronged assemblage of protests as its history of racial apartheid adds weight to the affective domain of this case.
Even so, while legal orders and indictments provide a course of action that compels analysis, the arrest warrant and the symbolics of legal accountability that it demands is not restricted to legal institutions and discourses. It operates within a field of social engagement that goes well beyond the life of the law. At certain times the arrest warrant supports particular social interests to protect life by intervening into future killings; at other times, it undermines them, a case in point being the work of Israeli activists whose loved ones are missing, some of whom feel that the warrant erodes the possibility for the return of all Israeli hostages. The reach of the arrest warrant has implications for understanding the ways in which justice-making practices are embedded affectively in the life of the law, while also being propelled alongside institutional domains and related imaginaries that shape other domains of possibility.
The arrest warrant and its role in social life must also be understood to open spaces, amplifying the voices of those often marginalized from mainstream narratives as well as others who insist on vehement refusals of the status quo. These voices may align with some public sentiments even as they may challenge others. But in the process of finding their way to a larger discursive arena, they facilitate the way that political narratives are formed, and social change mobilized.
One site for openings that align with the symbolic power of the ICC arrest warrant narrative is found in the emergence of pro-Palestinian encampments. Throughout the war in Gaza, and alongside the horror of the Oct 7th attacks leading to the disproportionality of Palestinian death and the long durée of their dispossession has sparked widespread protest and activism. These encampments have both prefigured and responded directly to the ICC warrants via their insistence on justice through vociferous calls for ICC accountability heard during marches and protest signs demanding Benjamin Netanyahu’s arrest. In these displays calling for accountability, we see how the arrest warrant as a symbolic of action has the potential to become a mobilization that is deeply affective. In this regard, students and protestors also take aim at proximate conduits, asserting that in enabling fiscal investments that support the Israeli state, university presidents are also complicit.
At the same time, pro-Palestinian encampments operate within particular settler colonial locations (e.g. Canada, the United States, Australia, and so forth) and are part of larger global movements advocating for Palestinian rights and the rights of all indigenous or occupied peoples. In these contexts, they seek institutional accountability in relation to the law but also well beyond it. And many of the protestors see their own long-term struggles reflected in the war in Gaza. Articulating indictments against the violence of the Israeli state and against the scale and magnitude of the war engine decimating innocent victims, students and civil society actors have mobilized to intervene in the profound losses of innocent Palestinian lives. Organized by students in universities and activists from various social organizations across North America, Europe, the Middle East, Africa, Australia, and East and South Asia and Latin America, tent cities have been established in prominent locations on campuses and in major cities, serving as physical spaces of solidarity, protest and education. They have brought attention to the plight of Palestinians and advocated for rights and justice. They have created focal points for educational events, demonstrations and action to draw attention to the war. Student protesters have demanded that their institutions divest from companies and investments that support or profit from Israeli occupation and the colonization of Palestinian lands, end complicity with Israeli occupation – including reviewing partnerships and collaborative research with Israeli institutions and provide greater transparency in the university’s divestment practices and accountability for decisions regarding investments in companies involved in human rights violations.
In these domains of protest, encampments provide a space for demanding not just legal accountability, but also political, economic, and socio-institutional accountability. By calling for the disclosure of university investments in Israeli companies that promote violence, divestments from those investments, and distancing from Israeli universities that promote violence, they seek new possibilities for justice. These actions are often articulated through a series of demands aimed at addressing issues related to the university’s stance on Palestinian rights, academic freedom, and institutional investments, and they reflect broader calls within the global movement for Palestinian solidarity.
Such encampments have not only been sites of global mediation and communication, teaching and dialogic messaging, they have also facilitated the exchange of ideas, disagreements and demands for new futures. With signs, petitions, images and slogans, they offer communicative modes that both call for, respond to, accept, and produce messaging aligned with the justice visions they advance. New technologies like Signal and Telegram have significantly enhanced the ability of activists to communicate and coordinate their efforts with encrypted messaging services, ensuring secure communication among activists associated with social movements. And some of the messaging is public-facing and some is dialogic –that is facilitating interactive exchanges across transnational borders. Those in the heart of Gaza communicate with signage of protest outside of Gaza. While students in encampments hold up signs of transnational solidarity ranging from “Free Gaza” and “Defend Against Genocide” to “Our Tuition will not be spent on Violence” and “From Turtle Island to Palestine: Landback,” those living in the heart of the violent struggle hold up signs of solidarity or paint messages on their tents thanking students for their sacrifice: “We see you, we hear you” we are told by their signage, affirming the popular uptake of anti-war activists. Like the arrest warrant, encampments as assemblages of accountability offer us the opportunity to understand the affective workings of transnational social protest in real time. This relationship between the figure of the arrest warrant and the encampment is affectively driven. Both request that we stop, interrogate and make accountable those we deem most culpable.
One thing is very clear – in contemporary life the arrest warrant is dynamically embedded in the complexities of social change. It is an artifact of law that finds its power not simply in the legal forms it occupies, but also through its potential for action, discourses of justice, and its aspirations. When understood as a form of practice that far exceeds its legal constraints and conventions, the arrest warrant also produces what it enables. It calls on us to stop, to inquire, to assess, and to judge. It speaks to our various visions of justice through the domain of potentiality. Arrest warrants occupy an affective domain, expressive in their potential to pursue the possibilities for evidence and secure the legal right to detain an individual for various forms of wrongdoing.
When we move beyond the strict contours of the law, we begin to see what the arrest warrant does in the world, and what people do with the affective spaces that these warrants render visible. For although it may never be enforceable or even actionable, what is relevant is that its affective impact is magnified in its circulation of social life within and beyond the law. As a constellation of complex domains of sociality, arrest warrants reflect and foster hopes, dreams, socio-moral and political aspirations and symbolic possibilities that are propelled by stories and practices that enable social rectification of wrong-doing. Whether the arrest warrant is answered through the court forum, or whether it provides discursive opportunities that take shape and are realized in the public arena, it opens a door for new voices and spaces of affective engagement with justice and its potentials and possibilities.
Kamari Maxine Clarke is a distinguished professor of Transnational Justice and Sociolegal Studies at the Centre for Criminology and Sociolegal Studies, University of Toronto