[This is the author’s response to a series of posts comprising a symposium on Christine Schwöbel-Patel‘s recently published book, Marketing Global Justice: The Political Economy of International Criminal Law (2021). See the contributions by Honor Brabazon (here), Melissa Aronczyk (here), and Eric Loefflad (here).]
I am immensely grateful to Eric Loefflad, Melissa Aronczyk, and Honor Brabazon for their engagements with Marketing Global Justice. Their work has been instrumental for me in better understanding the relationship between capitalism and (international criminal) law, so it is a huge pleasure to be in conversation with them. Using Eric’s comments on the war between Russia and Ukraine as a springboard, I will respond to and work with their excellent comments and insightful questions to reflect on international criminal law’s marketised response to the war in Ukraine.
‘[A]n imagined past of meaningful coherence, optimism, and virtue’
When reading the manuscript proofs in the first days of 2021, I had a creeping suspicion that perhaps ICL’s moment had passed; that the critique, albeit mostly of the neoliberal ‘backlash’ kind that I describe in Marketing Global Justice, had reached the ‘mainstream’ of the academy and to some extent also practice.[1] The close alliance between militarism and ICL that I found obscured behind slogans and hashtags such as #JusticeMatters appeared to possibly belong to the past. There was perhaps a certain element of what Aronczyk describes in her comment as ‘status’ concerns within the frame of marketised global justice: With the ICC no longer being en vogue, those global justice actors that were savvy in the attention economy preferred to place their bets on a different horse. Outside of this marketised form of global justice, other forms of thinking and praxis about justice and world-making were to be taken seriously, particularly decolonial and anti-colonial ones.[2] From an author’s perspective, I wondered whether perhaps my intervention was anachronistic. I hoped that my analysis of the 1990s as the convergence of international criminal law and branding remained useful, but the urgency for the present appeared to have waned. From a political perspective, this made me feel cautiously hopeful: hopeful that Black Lives Matter was a movement that went beyond signs and symbols and made a difference to people’s lives; hopeful that the tireless organising by groups and communities around vaccine inequality had drawn attention to and rocked at the foundations of the propertisation of social justice; hopeful that there was a recognition that the international organisations of the twentieth and twenty-first century required serious rethinking and remaking in the face of climate disaster.
And then in February 2022, after much speculation and disbelief, there came the reality of the Russian invasion in Ukraine. Much has been said about the New Cold War, with a resurgence of the West (the USA and its allies) versus East (China and Russia and their allies) narrative.[3] But when it comes to ICL, the past months have been more reminiscent of the sentiments of the decade after the Cold War ended. It appears that there is a renewed enchantment with internationalised punitive and carceral forms of accountability. Discussions on a special war crimes tribunal on the crime of aggression, driven by Western powers and elites, are indicative of such enchantment. Philippe Sands KC, an ICL celebrity if ever there was one, first floated the idea of a special tribunal in a Financial Times op-ed in February 2022.[4] Shortly after this, a Statement calling for the creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine was issued. It can be found on the website of one of the main sponsors of the statement, Gordon Brown—yes, the same Brown who was Chancellor of the Exchequer at the time of the bloody Iraq war.[5] Marketised global justice, with all its symbols, celebrities, and distractions is back. Eric Loefflad aptly notes the marketisable redemption that may come from this ‘just’ war against the background of years of ‘blunders, intractabilities, callousness, and existential pointlessness that came to define the “Global War on Terror”’. Granted, Western coverage of the war as proposals for intervention have also prompted a renewed discussion about imperial wars, such as the Iraq war of the USA and its allies, and Western hypocrisy.[6] Despite the slight change of key, the enduring appeal of criminal tribunals for Western ideas of global justice—and for the protection of Western capital—continues. From a material standpoint, the enormous resources that can be made available to underpin the effectiveness of the international order in its interventionist form are once again striking.[7] Whilst there are some changes for ICL with this new war, most significantly perhaps the aggressor/perpetrator and victims being white, other things have not changed, namely the 1990s-vintage legal tools mobilised by Western states to protect their neoliberal order. Loefflad aptly notes that the return to 1990s types of global justice evokes ‘the nostalgic promise of returning to an imagined past of meaningful coherence, optimism, and virtue’. Sands might be right about Russian aggression, but at the very least he can be accused of a lack of imagination when it comes to justice.[8] As in fashion, in liberal interventionist circles, the ’90s are back on trend.
‘[P]aying close attention to the technologies of legitimacy’
All is not the same of course. The supermodels of the 1990s have aged. New influencers have entered the scene. And fashion has, whether it wants to or not, needed to respond to twenty-first century demands of acute climate disaster, pandemic, and energy crisis. The 1990s-style optimism in international law circles has been a little more muted.[9] For one, Western elites have in their condemnation of Russia failed to enthuse Global South states.[10] This is a marked difference to the 1990s, and one where it will be interesting to find out which forms of persuasion are employed for Southern support for Western interventionism and prosecutions. What will, in Aronczyk’s terms, be the ‘technologies of legitimacy’? How will ‘promotional industries’ be engaged in knowledge production? The promotional industries after all ‘create the world according to a particular image, one that is structured by international governance through markets, hierarchies of capital and class, and Western hegemony.’ As I argue in Marketing Global Justice, the thing about marketised forms of global justice is that the ideological undertaking of capital accumulation is hidden behind slogans of globalism and humanitarianism. Capitalism and propaganda form a close relationship. Revolutionary and political economist Rosa Luxemburg had understood this as early as 1913 when she wrote that ‘[c]apitalism is the first mode of economy with the weapon of propaganda, a mode which tends to engulf the entire globe and to stamp out all other economies, tolerating no rival at its side.’[11] Luxemburg had also understood the link between capitalism and militarism, one that continues to be obscured in regular political and international legal discourses about war. Luxemburg would, for example, have found it of great importance to highlight the relationship between the Western support for the armament of Ukrainians, war crimes prosecutions, and the arms industry.[12] Will the Global South, which has been forced to follow Western fashions, continue to have the resolve to ignore the return of 1990s fashion? Will they produce alternative fashions? Or will they seek to emancipate fashion from its capitalist shackles?[13]
‘Must conversations about de-juridifying global justice also be part of resistance efforts?’
The most satisfying part of the whole genre of book reviews for the author is that their ideas, which are already assemblages of collective thought, are illuminated back to them. Praise for a book is great, but even better is when new expressions of some of the ideas in the book are offered. In this collective process, the rules are that no-one makes a claim to the idea as their property, but all participants think together. This of course extends to the unknown readership of the published reviews too. Such a feeling of thinking collectively emerged for me in particular on the question of the relationship between justice and law. Drawing on important work that came before, Marketing Global Justice argues that the rise and success of global justice as a field of research and practice in the neoliberal order correlates with the demise of Third World redistributive justice. Honor Brabazon, among other important provocations, therefore asks whether ‘conversations about de-juridifying global justice [must] also be part of resistance efforts?’. My response is that against the background of the powerful work on abolitionism that has gained many more supporters since the Black Lives Matter movement, one should not shy away from a conversation on ICL abolitionism. If we are to take redistribution seriously, and the previous shortcomings of working within the international legal system, abolitionism must be on the table. Abolitionism has gained the most traction as a domestic debate in the USA, around which communities have struggled. Abolitionism connects to the abolition of slavery of the 19th century, but has a distinct 21st century perspective through its demands for abolishing the carceral system, including defunding the police.[14] The concerns put forward go beyond the domestic context; they are of global concern. The prison-industrial-complex is not only a US problem; it is tied to global capitalism. A discussion in ICL about its system of relying on domestic police power, its idea of punishment through incarceration, and the capital accumulation behind creating more tribunals, should be part of the ICL abolitionist conversation. ‘Rules exist to protect us’, claims Sands, about the UN Charter.[15] But, those who are protected by rules continues to be unequally distributed. Returning then finally to the Ukraine war, one might use the tools of Marketing Global Justice complemented by the provocations of Eric, Melissa and Honor, to state that Russia is correctly identified as the aggressor, but ICL is unlikely to be the answer to this aggression. This is a lesson we should have learned from the failures of the 1990s fashions for symbolism, individualism, and commodified justice.
Christine Schwöbel-Patel is a Reader at Warwick Law School.
References
[1] In Marketing Global Justice, I argue that backlashes against global justice actors tend to be raised in neoliberal terms of market-value by a consumer-oriented individualism. I contrast backlash with resistance, which is placed within a longer history of exploitation, tying into struggles against economic, political, social, and cultural oppression.
[2] World-making and worlding have become powerful tools for decolonial praxis. See in relation to international law, for example, Adom Getachew, Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton University Press 2019).
[3] Ian Bremmer, ‘The New Cold War Could Soon Heat Up’, 5 May 2022, Foreign Affairs, https://www.foreignaffairs.com/articles/russia-fsu/2022-05-05/new-cold-war-could-soon-heat.
[4] Philippe Sands, ‘Putin’s use of military force is a crime of aggression’, 28 February 2022, Financial Times, https://www.ft.com/content/cbbdd146-4e36-42fb-95e1-50128506652c
[5] ‘Statement calling for the Creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine’. (Link)
[6] ‘“Double Standars”: Western coverage of Ukraine war criticised’, 27 Feburary 2022, Al Jazeera; David Adler, ‘The west v Russia: why the global south isn’t taking sides’, 28 March 2022, The Guardian.
[7] Kevin Jon Heller uses The Special Tribunal for Lebanon as a comparison to estimate €60 million per year. ‘Creating a Special Tribunal for Aggression Against Ukraine is a Bad Idea’ 7 March 2022, Opinio Juris,.
[8] Philippe Sands knows all about Western imperial projects, see his latest book The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy (W&N 2022), which makes his calls for a tribunal effectively sponsored by Western powers perhaps even the more surprising.
[9] Although see the unbounded optimism in Oona Hathaway, ‘The Case for Creating an International Tribunal to Prosecute the Crime of Aggression Against Ukraine’, 20 September 2022, Just Security .
[10] See ‘Sanctions by countries’ for an overview of the mainly Western sanctions imposed. (Link)
[11] Rosa Luxemburg, The Accumulation of Capital. (Link)
[12] In Germany, there is an ongoing debate about sending heavy weapons to Ukraine, supported by The Green Party and the FDP. Meanwhile, German weapons manufacturers like Rheinmetall have noted a spike in profits since the invasion of Ukraine. Rheinmetall reporting from August 2022.
[13] Tansy Hoskins, Stitched Up: The Anti-Capitalist Book of Fashion (Pluto Press 2014).
[14] The literature is vast, but see in particular Angela Davis, Are Prisons Obsolete? (Open Media Book 2003) and Angela Davis, Gina Dent, Erica R. Meiners, Beth E. Richie, Abolition. Feminism. Now (Penguin Books 2022).
[15] Sands, note 3.
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