Symposium on ‘Marketing Global Justice’ – Review by Asad Kiyani

[Dr Asad Kiyani is an Assistant Professor at the University of Victoria Faculty of Law (Canada), and a recipient of the Antonio Cassese Prize for International Criminal Law Studies, as well as the Hessel Yntema Prize for Comparative Law.]

Introduction

In her intriguing analysis of the marketization of global justice, Christine Schwöbel-Patel offers an expansive examination of how international criminal law reinforces the existing international order and in many ways fails to live up to its promise. It is, she writes, a field as versed in the marketing strategies of persuasion and distraction as it is with advancing international criminal law. As an industry, international criminal law is as concerned with sustaining itself as it is with dispensing justice in any meaningful way. It is as much a tool or at least a justification for capital growth and accumulation as it is an instrument of peace-building and change.

The broad strokes of this critical reflection will be familiar, but what Schwöbel-Patel adds is a political-economy perspective rooted in the disconnect between the publicity around international criminal law and the International Criminal Court in particular, and the actual satisfaction of disciplinary and institutional goals. By focusing on how marketing pervades all aspects of international criminal law, and showing how marketization can be seen in the treatment and construction of victims, alleged perpetrators, institutions, states and even cities, she provides a new weft that threads together disparate critiques. Perhaps most powerfully, she effectively demands practitioners, scholars, activists, donors and yes, professors and book reviewers alike, to consider the gains they realize from a system that she argues does little to ameliorate suffering and much to further entrench inequality. It is an engrossing and enriching read.

The book situates itself “at the intersection between international law, neoliberalism, and empire.” [4] One commitment among the many attendant in this statement of positionality is an explicit attention given to the Global South, the Third World, and Third World Approaches to International Law (TWAIL). Chimni, Anghie, Pahuja and Rajagopal and others all appear, alongside other critical scholars, as ballast for the book’s key arguments. In what follows, and in keeping with the suggested guidelines of my kind invitation to participate in this symposium, I pick up on this Third World-ist thread rather than summarize the entirety of the project. Of interest here is how Schwöbel-Patel responds to the methodological problems that accompany the historical analysis she attempts, how the text engages with some of the principal tenets of TWAIL, and where it might fit within more strictly TWAIL observations of international law.

TWAIL-ing the Argument

Of course, the careful reader/wag will be quick to point out that references to the “principal tenets of TWAIL” and “strictly TWAIL” seem a non-sequitur given the openness of TWAIL. In the right corners of the right rooms, particularly with those who have been involved with the field since its formal inception in the 1990s (which Schwöbel-Patel juxtaposes against the rise of New Branding and New Tribunalism [10 – 12]), it has been said that the fight over what is or is not TWAIL is one that the discipline has largely moved beyond. In the best spirit of the present day, self-identification is central; the “A” in TWAIL is, after all, plural.

At the same time, TWAIL-ICL scholarship does exist and largely critical. Many of the substantive questions about ‘global justice’ that this literature has found relevant are addressed (albeit sometimes indirectly) by Schwöbel-Patel: the inescapability of the savage-victim-savior frame; the strained and counterproductive interpretations of international law as against Third World sovereignty; the bypassing of formal processes of state consultation and negotiation, including in establishing what places and problems ICL should give its attention to; and, of course, the all-consuming selectivity problem.

Schwöbel-Patel merges some of these ideas with other critical scholarship, noting for example that complaints about double standards or imperialism that focus on political-legal inconsistencies risk missing other, governing questions. In her mind, critiques aimed at broadening the material jurisdiction of international criminal law, or mitigating some of the more blatant selectivity problems of the ICC are understandable yet also counterproductive. They risk enhancing the monopoly of ICL and its institutions over the ambit of global justice writ large [93 – 94] by assigning them more legal (and moral) authority rather than reconstructing or reimagining them.

In this vein, Schwöbel-Patel outlines a path in ICL that TWAIL scholars have themselves been walking for many decades, though largely in other areas of international law. Early TWAIL scholarship was primarily focused on the pursuit of independence and the positioning of post-colonial states as formal equals to other states. While this scholarship also challenged how inter-state relations were developed, and the conditions imposed upon newly-created states, it also accepted the basic sovereigntist frame. Given colonial experiences across Asia, Africa, and Latin America, the ability to assert domestic control and the right to exclude was a valuable promise of sovereignty.

As newly-formed states began to coordinate and build solidarity, it became apparent that the promises of sovereignty – particularly those of formal equality and the right to exclude – were of dubious merit. TWAIL became increasingly critical of the techniques of international law used to render sovereign equality illusory, maintain a global power imbalance, and render Third World borders permeable. It also began to more substantively problematize the post-colonial state itself and the recurring fissures between its elites and its ‘ordinary peoples’.

Schwöbel-Patel’s warnings about reformist critiques dovetail with a subset of TWAIL concerns about state sovereignty and other overarching international law frames. While the ICC was initially greeted with optimism in TWAIL circles because of its permanence, detachment from the UN Security Council, and treaty-based origins, its woeful track record has dampened that enthusiasm and led to reconsiderations of the value of the international criminal law approach. Similarly, her concern that global justice is increasingly integrated into neoliberal globalization, and thus obscures and aggravates rather than relieves material inequalities and suffering, reflects TWAIL understandings “that reforms of law and politics would not liberate post-colonial states in the absence of changes in the international economic order” [at 141 – 142 here]. 

In keeping with both TWAIL generally and Nouwen and Werner specifically, Schwöbel-Patel’s worry about the enhanced jurisdiction of the ICC also reflects a concern about the erasure of alternative possibilities. Building the portfolio of matters over which the ICC can claim authority will only serve to deepen the hegemonic dimensions of the global justice project, operating to exclude other forms and practices of justice.

This concern with alterity reflects animating desires of Third Worldism. While the notion of the Third World is frequently contested because it is ordinarily interpreted as a geographic or a socio-economic indicator, the term originated as a signal of global relationality. The Third World was to be contrasted not with the relative development levels of the capitalist and Communist spheres, but with the international political and economic programming of both. Analogized to the Third Estate of pre-Revolutionary France, the Third World is at once an indication of presence – of the majority of the world’s peoples – and the need for international law and life to materially and equitably accommodate that presence. New approaches and changes are needed not for the sake of formal equality such as the prosecution of equal numbers of Western and African generals, but to generate substantive, material equality.

It is in these threads connecting international criminal law to questions of global wealth distribution and suffering that Schwöbel-Patel’s insights about marketing are most compelling. Her position is that global justice de-historicizes and de-politicizes international law by distracting from structural inequality, with the marketing of global justice selling a misleading vision of it. Effectively she claims that the marketing of global justice packages the visceral and spectacularized suffering of primarily Black and Brown bodies for the institutional and political preferences and benefits of primarily White and Northern actors, without attending to the roles of the latter in producing the former [18]. Marketization of global justice enables this conceptual bifurcation by detaching the structural production of violence – through, inter alia, the supply of arms, ideologies, and economic policies, as well as the occasional Western military invasion – from its sharpest and most grotesquely visible consequences, and generally ignoring the subtler and less conspicuous results of the same. As both kinetic violence and the faux-orderliness of the courtroom response are spectacularized, “the market is de-spectacularised, presented as more or less above human action.” [18] More than a “penchant for corporate thinking”, it is the instantiation of neoliberalism [26].

History and Tracing the Third World

Having tracked broad parallels between Schwöbel-Patel’s argumentation and TWAIL thinking, it is worth considering how that argumentation is constructed, and whether and where the Global South is identifiable. To do so is to engage with Schwöbel-Patel’s work on its own terms: it is explicitly concerned with the material deprivation of the Global South, the complicity of the North in that deprivation, and the institutions and ideas that connect the two. It is then, as Schwöbel-Patel writes, a historical analysis concerned primarily “with the intersection between the rise of branding…and the rise of international criminal law” [60]. While Schwöbel-Patel cabins her historical analysis to one chapter it is inescapably connected to the rest because of her commitment to the material impacts of marketized global justice. With this understanding, a closer attention to the process of doing history, rather than the ideas themselves, is warranted.

One arc that Schwöbel-Patel traces is that inhabitants of the Global South, whether individuals or states, are marginalized as legal actors. They are visible and knowable only on the terms of global justice, rendering them objects – brands, really – rather than subjects. Whether it is the commodification of the ideal victim (weak and vulnerable, dependent, and grotesque, per the author) or the ideal perpetrator (Schwöbel-Patel draws attention to the use of Thomas Lubanga Dyilo and Joseph Kony by the ICC and others) in relation to specific, spectacular violence, context and agency are stripped from individuals and the conflicts in which they are embroiled. When connected to the benefits derived by the states, NGOs, and institutions that are legitimated and funded, and the states and corporations whose complicity in producing the conditions of conflict are obfuscated, this amounts to marketization in support of racial capitalism: the extraction of value from the racial identities of others.

Schwöbel-Patel’s tracking of this practice at various sites of international criminal law is compelling, drawing the contours of an unsettling paradox. While the global justice brand is animated by a claimed concern for human rights, it is operationalized in ways that often dehumanize those at the centre of its work. Perpetrators are uni-dimensional monsters; victims are impotent, in their ability to challenge the perpetrator as well as the international regime; and, the categorical nature of the juridical approach to child soldiers such as Dominic Ongwen merely illustrates the both the logical consequence and intellectual frailty of this instrumentalizing approach.

One curiousity in this otherwise rich analysis is the relative absence of postcolonial states. Returning to TWAIL’s evolution, a central challenge for TWAIL scholars is that “it is sometimes through supporting the Third World state and sometimes by critiquing it that the interests of the Third World people may be advanced” (at 83 here). Schwöbel-Patel largely does not engage the issue, with the states of the Global South are on the periphery, flitting in and out of the analysis and – with one exception – never occupying the field of focus.

The only exception, and the only sustained analysis of the influence and agency of Southern states, occurs towards the end of the book. In Chapter 8, Schwöbel-Patel outlines how South Africa and Cambodia (along with The Hague) have sought to brand themselves in ways that project particular images and preserve or enable economic growth flowing directly and indirectly from the global justice project. While a persuasive analysis of how cities and states seek to capitalize on global justice, its pointed descriptions of deliberate actions calls attention to the want of more detailed examinations of Third World agency in the preceding chapters. Similarly, the analysis of Cambodia and the divide between how Cambodia’s poor and elites seek to benefit from the global justice industry suggests the importance of disaggregating the postcolonial state.

To some degree, this approach is a choice of historical method. With the exception of Chapter 8, Schwöbel-Patel spends little time on any particular state, Third World or not. She is not engaged in geographic case studies or even a history of international criminal law but a project “which traces history through material conditions”. [64] She explicitly renounces the Whig consensus of teleological progress in favour of a more Marxist historical materialism in which “[q]uestions of economic activity as mapped onto political structures are foregrounded, in particular the distributive networks of international legal institutions.” [64] It is an outlook that is broad and global in nature and that cannot be pinned down geographically.

At the same time, there are reasons to think that more consistent engagement with the postcolonial state would buttress the overall argument. One reason is suggested by how similar critical legal histories have been analyzed in the past. Another set of reasons stems from where Schwöbel-Patel herself goes. The focus on place in Chapter 8, the references to Third World solidarity movements in Chapter 9, and the consistent reminders about the treatment of actors from the South, the racialized dynamics of branding, and the alienation of African states from the ICC point to the particular importance of the postcolonial state to studies of international criminal law. As examples of how Schwöbel-Patel’s arguments themselves prompt greater reflection on the role of the Third World state, I here highlight three questions stemming from the text.

(a) Defining Crimes and Third World Agency

Consider first the jurisdiction of the Court and international criminal law’s preference for responding to “physical violence rather than structural violence.” [91] According to Schwöbel-Patel, emphasis on the kinetic supports the marketization of global justice by making it more easily packaged for wealthy donors without disturbing the neoliberal market. At the same time, she is wary of attempts to bring more crimes and actors under the formal jurisdiction of the Court. This, she warns, is the critique of a liberal politics that will only enhance the monopoly of international criminal law over global justice.

Whether that conclusion is safe is an open question; it might be that an expanded material jurisdiction that is actually utilized is one that makes more forms and sources of violence visible in ways that subvert the market-enabling dynamics of international criminal law. It is also true that other attempts to reinvigorate the law of pillage and to increase corporate accountability have had mixed success. What is more of interest is that this treatment of the material jurisdiction question could actually connect to the problem of epistemics in ways that implicate the question of Third World agency.

The material jurisdiction of the Rome Statute was built on the decades-long post-war project to define a comprehensive list of international crimes. That initiative was repeatedly short-circuited and sabotaged by Western states resistant to Southern efforts to expand that list beyond Nuremberg in ways that implicated neocolonial practices. What was left was – in the words of Senegalese Special Rapporteur Doudou Thiam – a “mutilated draft” that served the interests of Western states that steadfastly refused to admit that the concerns of the Third World were worth criminalizing, and which decried the validity of the analytic and reasoning methods used to justify the expanded list of crimes [see here at 441 – 447]. All this crystallized in the 1990s, the key point of Schwöbel-Patel’s historical analysis.

Here, the call for an enhanced material jurisdiction is a reverberation of the very dynamic Schwöbel-Patel critiques: how Western political and economic interests intersect in the realm of international criminal law to materially disadvantage the Global South, and how the knowledge, experience, and analyses of lawyers and governments of the Third World are simply deemed invalid when they threaten those interests. Crucially, it explains this process without asking the reader to question whether the criticisms are self-interested and politically motivated, which is one way in which post-Rome Conference resistance from African states and others have been delegitimated (as if politically self-interested and legally valid arguments are somehow mutually exclusive).

Ultimately, it amounts to a different kind of branding exercise that transcends the exploitation of individual victims and perpetrators (described in Chapters 5 and 6) by ascribing an intellectual ineptitude to the postcolonial state, while simultaneously assuring economic actors wary of the threat of an expanded jurisdiction that market certainty persists. Schwöbel-Patel need not agree with this analysis, but it addresses questions raised by her treatment of the arguments favouring of expanding jurisdiction: what is the position of Third World states on this point, and what can we learn about the neoliberalization of global justice through the response to that position?

(b) The State vs The Ordinary People

A second way in which Third World agency could have been more meaningfully centred is through a deeper engagement with TWAIL articulations of the gap between the Third World state and its ‘ordinary people’, which first arises in Chapter 9. Doing so is another way of addressing how the ICC is able to function in the same states where it is otherwise deeply criticized. Schwöbel-Patel notes this curiousity in her description of Yoweri Museveni’s brazen insults to the Court even as it put members of the Lord’s Resistance Army (LRA) on trial.

One reading of this relationship is that – as Schwöbel-Patel argues – the Court is quite political, cultivating relationships with states and tolerating (even enforcing at times) one-sided referrals and exercises of prosecutorial discretion. Another, which builds on that position, is that this is the specific politics of the Third World state being enacted through the Court, in the same way as the West used the ICC to enacts its political agenda in the situation in Libya. Yet the question of Third World agency is muted here, even as the evidence suggests that the villainization and prosecution of LRA members (and indeed the Kony 2012 campaign Schwöbel-Patel carefully studies in Chapter 6) supports both Museveni’s political interests as well as his economic ones.

A tantalizing window into this relationship exists in brief references to the work of Adam Branch and the land-grabbing of the Acholi people’s traditional territories. That triangulated space – between the central government, the LRA, and the ‘ordinary people’ caught between them – is fertile ground for supporting and deepening Schwöbel-Patel’s critique of international criminal law as a tool for both political branding and capital growth. The text as it stands identifies the treatment of the perpetrators and victims, but weaving in their relationships to the state would both strengthen Schwöbel-Patel’s argumentation, and help explain how the ICC is not merely a continuation of the ‘new tribunalism’ of the 1990s but a novel architecture that facilitates the neoliberalization of international criminal justice in new ways by new actors.

© Patterns of Critique

Finally, greater attention to Third World agency would offer a pre-emptive reply to two standard patterns of critiquing work on international law’s imperialist tendencies. The first of these responses is that the Third World is improperly erased from the history of international law. Its domestic, transnational, and international legal efforts are minimized, overlooked or negated. They are, legally at least, impotent and passive. This also arguably serves to make it easier to deny them as legal agents and subjects in the present-day. In some ways, they may be seen to be ascribed with a moral innocence by virtue of Western as a result which, as suggested above, belies the work of many contemporary TWAIL scholars concerned with how domestic elites instrumentalize, enforce, or capitulate to international law to the detriment of their own peoples.

The corollary of this under-ascription to the Third World is an over-ascription to the West, which mainstream international law scholarship argues is overinflated as an omnipotent and irresistible force in counter-hegemonic analyses of international law. While some of these critiques may themselves overstate the independence and agency of decolonized states, the larger point – that the hegemony of the Global North in international law and the ICC specifically usually depends on some degree of local collaboration, implementation or acquiescence – is broadly valid.

Schwöbel-Patel is plainly aware of the inconsistency of the postcolonial state’s interactions with international criminal law, noting that states from the Global South have both facilitated and resisted the ICC [195] as well as the neoliberal linkage of trade and criminalization [206]. Her reflections on the primarily African resistance to the ICC rightly and concisely put to the sword the patronizing and disingenuous responses from the Court’s supporters [203 – 206].

While this complexity is recognized, the Third World state remains conspicuous yet ephemeral.

Yet Schwöbel-Patel’s overarching concerns about the disparate material consequences of global justice in the South and the North, the denial of legal agency to the South, and the geographic predilections of international criminal law call for a more tangible representation of the Third World state. Given that the ICC continues to operate almost exclusively in the Global South with – as it generally must – the consent of those states, the question of how Third World states fit themselves into the practices of marketized global justice will only grow in relevance.

Having outlined the potential value to be gained from a more robust analysis of the Third World state, it is also fair that criticisms about the treatment of Third World agency are nothing new in respect of critical, anti-imperial treatments of international law’s false idols. Antony Anghie’s foundational text Imperialism, Sovereignty, and the Making of International Law (which Schwöbel-Patel cites more than once) was the subject of similar concerns (see here and here). Moreover, the book remains an otherwise complex, expansive, and often simply enjoyable text to read. Schwöbel-Patel’s work is rich in theory and ambition, and asks searching questions of its audience. Perhaps most importantly, these questions are not merely requests to approach a familiar subject from a new perspective, but to reflect on how the reader is implicated in and perhaps abets the industry she assiduously dissects.