Everybody Knows About Racism, Goddam! Pathways in the Struggle Against the Racialised Universe of International Law

Mohsen al Attar and Ata R. Hindi, with Claire Smith*

What has Russia’s invasion of Ukraine reaffirmed for racialised scholars of international law? For one, we’re reminded of the limitless capacity of international lawyers to centre themselves and the discipline we hold dear, come what may. Once more, we are in crisis, jeremiads flowing with the freedom of disciplinary self-importance. What does ‘this’ war mean for our craft is a perverse question, its ahistoricism exacerbating its deviance. For purposes of this blogpost, we will set aside the countless parts of international law that are in crisis at any given moment. By adopting this heuristic, we realise that naming the war as an existential event is part of the crisis itself, leading to our second reminder. Alongside the outpouring of sympathy, solidarity, and sundry demands for accountability, the international legal academy’s response has again exposed the ontological parameters of international law, and the fundamental space whiteness occupies within it.

To illustrate, consider the following scenario. We recently attended an expert panel at a leading British university, organised to deliberate the war. No less than ten (white) scholars spoke about assorted aspects of it, with only one alluding to the issue of race. During the Q&A, we asked about its erasure from the debate–despite its prevalence in the war and the response thereto–and were met with a violent outburst from one (white) panellist who declared, with a mixture of entitlement and bile, that “the past failings of international law have no place in this discussion…none!” Seething at the suggestion that European sympathy was racially selective, he seemed to overlook the irony of his jingoism. 

Reflecting on the panel later that evening, we were stricken by a deep sense of ennui: yet again, race is whitewashed from discussions about international law, with publicists displaying varying shades of indifference and hostility at its mention. This is not to say that conversations about the racial dynamics of the war are not taking place. It’s just that they are happening as they always do, in hushed tones, at the back of lecture halls or in corridors, and almost exclusively between racialised academics. We found ourselves in an uncomfortable, albeit familiar position. Racialised international lawyers occupy that liminal expanse WEB Du Bois described as a double-consciousness, the fissure between being and belonging. 

On one hand, we lament the grotesquely visible veins of race, racialisation, and racism that pervade international law’s histories, structures, institutions, and practice. Just as racism was embedded in its origins, it continues to corrupt its implementation and effects. As we discern in these gratuitous testimonies of disciplinary crisis, it prevails in our community as well. When has your dean, university, or law society issued a statement in solidarity with Afghans, Iraqis, Palestinians, Rohingya, Syrians, Yemeni or those suffering in the Tigray? When did your foreign secretary invite citizens to travel illegally to a war zone to heroically take the fight to a sovereign state? Juxtaposed alongside the humanity of the blue eyed and blonde haired victim is the dehumanisation of their darker counterpart, with the inhumanity of the former’s champion also haunting this danse macabre.

On the other hand, racialised scholars also peddle international law and its epistemic boundaries with gusto. We may not succumb to the risible riposte that all lives matter, but we often echo the (faux) claims of universality that lawyers advocate as the solution to such moments.** Despite plenty of evidence to the contrary, we want to believe that states have awoken to the value of international norms, that publicists have had an epiphany and are now committed to holding violators of these norms accountable (and not just certain violators). Maybe their continued disregard for our concerns about race results not from an active nativism but a passive naïveté, a well-intentioned push for that honeyed post-racial era. Alas, it is at this very moment that Du Bois’ double-consciousness pummels us into a veritable crisis of the human spirit. For the racialised scholar, the regime’s role in and responsibility for the racialisation of the world is intolerably personal. We see how they see us, our complicity publicising itself, first, in our silence and, second, in our shame, stripping off a Zong-sized scab to reveal the racialised memories our white colleagues encourage us to mourn while insisting we move on.

Bhandar speaks of the psycho-affective pull that grips racialised scholars. We want to ‘identify and delineate different racial and racist ideologies’ and their relationship to our investments in law. We wish to see and ‘even quantify…progress and regression’ in legal discourse. She decodes our desire: we are motivated to remedy the ‘vertiginous cycle of racial injustice’ that law constitutes. Perhaps it is from this point that our ennui emanates: our commitment to change and our identity as scholars are assaulted daily by the never-ending character of the struggle for a racially just international law.

Pushing Beyond Disciplinary Boundaries: (Blue) Eyes Wide Open

Our ennui preceded the latest war, plunging to new depths at the beginning of 2021. We were a year into a deeply racialised global pandemic. In both the racist hijacking of vaccines and a cagey rejection of the TRIPS waiver, international law and the academy’s proclivity for whiteness were on blinding display. What made the pandemic’s manifestations of racism especially jarring were their occurrence in the wake of the Black Lives Matter movement, repeat liberal rejections of right-wing xenophobia, and a host of racial-friendly performances by actors, footballers, and politicians. It is this context that renders international law’s enduring white supremacy more glaring and galling. Going by the questions racialised students posed at the panel, the incongruity of the panellist’s outburst with the current climate was evident for all to see, except the panellist. As Du Bois asked over a century ago, when will beneficiaries of the colour line be brave enough to cross it? Are they even capable of surrendering the entitlement their self-centredness affords them? We wonder something similar: when will (white) colleagues de-centre themselves to cultivate the inter in international law?

Around that time, al Attar published a blogpost on the continued failure of international legal scholarship to meaningfully engage with issues of race. Spring boarding off Gathii’s critique of the opacity of race in the AJIL, al Attar represented a corresponding Chicago Journal of International Law panel, dedicated to ‘new’ directions in legal scholarship, as a microcosm of the academy’s ethnocentrism and epistemological insularity. As is the nature of ongoing intellectual reflection, we are re-interrogating al Attar’s thesis. Like Achiueme, we now speculate that racism is intrinsic to the liberal system with white supremacy operating as a supra-boundary of international law (there are others). From this standpoint, racism is integral to international law’s epistemic contours. Moreover, when viewed as ontological, white supremacy comes to preserve, even legitimise a racialised status quo where blonde haired and blue-eyed victims send the (white) world into frenetic crisis and action. We have not come to these conclusions in a vacuum. In the recent past, racialised scholars have regaled us with rich investigations into the racist qualities of international law. Their critiques occur from varied angles as the periphery forces the centre to take notice of the regime’s tangled relationship with race. 

Where there is deliberation on race, there is Critical Race Theory (CRT), and we watched with disturbed fascination Atlantic politicians pantomime asinine attacks against CRT. Is CRT, a predominantly American theoretical frame, relevant to debates about international law? Is the theory applicable, valuable, or influential outside of its original provincial context? Led by Carbado, Crenshaw, Desautels-Stein, and Thomas, a group of scholars is investigating these questions. While we are contributing to this collection, we remain circumspect about the implications of the study. Because of the USA’s cultural imperialism, the white supremacy that materialises inside American borders does have purchase beyond them. Yet, as the editors are very much alive to, we are weary of the American drive to universalise all things American, and this would not be the first progressive metropolitan movement to cannibalise their counterparts in the post-colony. We wonder how the authors propose to account for Du Bois’ warning: ‘[the American Negro] would not Africanize America, for America has too much to teach the world and Africa. He would not bleach his Negro soul in a flood of white Americanism, for he knows that Negro blood has a message for the world.’ As Wing and her collaborators do in the invaluable Global Critical Race Feminism collection, perhaps asking what CRT can learn from African, Asian, Central and Southern American, or Indigenous anti-racist movements is a good place to start.

Fortuitously, another collective undertook this very endeavour. One year prior, Achiume and Bâli coordinated a special journal issue in which contributors explored commonalities between radical theories. Introducing Third World Approaches to International Law (TWAIL) to CRT generated a muscular collaboration, foregrounding shared concerns of race with the aim of developing an integrated approach to tackling racialisation in the international legal regime. TWAIL has its vulnerabilities, to be sure, but it’s difficult to identify a movement in the academy that has provoked a more biting revolution in contemporary thinking about international legality. 

It does not end there. We observe scholars drawing on discrete theories to illuminate the racial dynamics that undergird the legal frame, seeking to exploit scholarly platforms to challenge sweeping structural biases. A forthcoming issue of the Journal of International Economic Law, edited by Gathii and Tzouvala, brings together a range of perspectives to interrogate international economic law under the rubric of racial capitalism. We find another example in the racialised composition of refugees and migrants. Numerous scholars are invoking textured theories of race when investigating Europe’s brutal reaction–better read as retaliation–to refugees attempting to survive the Mediterranean. These scholars can now enhance their studies by contrasting the treatment of Africans with the diametrically distinct response European states and peoples afford to refugees fleeing the Russian invasion (so long as they’re white).

Our reporting on these strands of academic enquiry into race and international law is neither exhaustive nor systematic. As racialised scholars push back against their exclusion, as they shed the insecurities that once forced their self-censorship, the strands multiply and deepen. Some are using such processes of being as a ‘corrective methodology’, revealing practical pathways forward in the struggle against racism in specific areas of international law, their institutions, and praxis. Others argue for the merger of discrete emancipatory struggles and liberatory movements, for example resurfacing black radical traditions to illuminate race in international law and to nurture pedagogical approaches that interrupt ongoing racism. As always, indigenous peoples’ interrogation of race and their resistance to and relationship with international law remain elucidative, proactive, and powerful.

Despite these inspiring developments, we sound a note of caution, likely because we are still smarting from the racialised double-standards the war has again stirred up, half expecting (white) scholars to shout us down once more. In our experience, publicists are mostly ill-equipped to grapple with the contemporary metastasising of racial inequalities and the co-constitutive relationship between race and law, particularly its structural aspects. Our commitments, investments, and belief in international law are too strong, overwhelming our critical capacities. As the response to the Ukrainian war highlights, international legal scholars might have read Anghie and be cognisant of the Eurocentric edifice upon which world order rests, but they continue to situate their deliberations within the same paradigms. By foregrounding the historic negation of debates between law and race and the epistemic violence intrinsic to a parochial regime that postures as universal, they reincarnate anachronistic relationships in new forms. 

We thus advocate a nuanced approach, wherein we excavate the place of race in the epistemologies of international law and not just its extant (Eurocentric) articulation. To reject the western universalizing starting point and pursue an alternative situatedness, from within international law’s constructed peripheries, is to engage with a pluriverse. In this colourful space, we recognise that anti-racism demands not only epistemic diversity, but epistemological equivalence. (***And, to this end, we draw your attention to our invitation in the post-script.) 

Everybody Knows About Racism, Goddam

The spread of scholarship on race and international law nurtures our ambition and belief. We surmise we are building momentum in the struggle toward racial justice among international lawyers and in legal academia broadly. Even in those instances where initiatives are motivated by KPIs rather than solidarity, racialised scholars can capitalise on the agenda to force equitable forms of cultural recognition. We might not make many friends in the process, but anti-racist work is not a social affair. In our most optimistic moments, we even feel we are standing at the precipice of a new dawn.

Still, glancing at the colonial legacies that pervade the international legal regime, we are cognisant there have been equally momentous instances before. The refrain of being at a ‘critical juncture’ rings in our ears, times also identified as ripe for change that failed to take hold. There are worrisome reasons for this. Albeit in different ways and contexts, Knox and Wilde noted that speaking of race, particularly as a racialised scholar, is a risky affair: anti-racist activism sets out to change the world, upsetting those who benefit from a favourable status quo. Sukarno was wise to this tendency as well, warning that ‘colonial powers do not give up their loot easily.’ The same is true when challenging white supremacy, for iconoclasm holds little appeal to those accustomed to being treated as icons.

Of course, censorship doesn’t only materialise in aggression. Sometimes, it is justified based on timing, much like Nina Simone serenaded: 

You keep on saying ‘go slow’

But that’s just the trouble

‘Do it slow’

Desegregation

‘Do it slow’

Mass participation

‘Do it slow’

Reunification

‘Do it slow’

Do things gradually

Brings more tragedy

‘MISSISSIPPI GODDAM’

At other times, it is justified because of venue, much like the panellist’s chest thumping episode. Each justification implies there is a correct place and time to question the banality of racial disparities and structural deficiencies. Curiously, it’s never the place or time we find ourselves in. Similar to other institutions, international law works hard to ensure that scholars racialised as ‘other’ are not taken seriously. Whether through tone policing, gatekeeping, or microaggressions, their work is cast aside, often relegated to the footnotes of dust-gathering EDI statements. How do we counter the inevitable backlash?

International lawyers are not ones to waste a crisis, and we are no different. As a discipline, we urge a degree of self-reflection about the relationship between privilege, articulations of crises, and the implications that ensue, as we propose in the invitation below. Much of the Third World has suffered the reprehensible violence Russia has unleashed on Ukraine, and principally from the same states now chastising Russia. And so, in the words of Arundhati Roy, we say to those colleagues suffering a crisis or experiencing an epiphany, gently and with heartfelt empathy, welcome to the world.

What we are witnessing in Ukraine is what international law is, and has always been, for most of the world’s peoples. That is the real crisis.

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* Ata R. Hindi is a Research Fellow in International Law at the Institute of Law, Birzeit University Institute of Law and Assistant Editor of the Palestine Yearbook of International Law. Claire Smith is a PhD candidate at the University of Amsterdam.

** A note on language: we intentionally tie racist action to people, noting Bonilla-Silva’s observation of the intellectual tendency to have racism without racists. This act presents racism as a disembodied phenomena rather than attributable to people, undermining the humanity of those who suffer it.  

*** We explore these themes as part of our project, provisionally titled: ‘Emancipating International Law: Confronting the Violence of Racialised Boundaries’. Our forthcoming collection (proposal currently under review), co-edited by Mohsen al Attar, Ata Hindi, and Claire Smith, aims to stimulate dialogue about the relationship between international law and race with emphasis on patterns and processes of racialisation. 

We treat racialisation as problematic, charting not only the differences as they manifest – or are concealed – within international law but examining the ways international law explains, challenges, preserves, and perpetuates these differences. As the natural outgrowth of racial differentiation, racism is equally central to our analysis for the ideological content is intertwined with international law’s actors, procedures, and instruments and thus embedded within the regime. Ultimately, we wonder whether international law is useful in anti-racist struggle.

The book is divided into four parts: (1) Situating International Law’s Racism Problem; (2): The Tools, Techniques, and Technologies of Legalised Racial Inequality; (3): (Anti-)Racism in the Pluriverse; and (4): Ways Forward. We are delighted to include a range of early and later career scholars such as Titilayo Adebola, Adelle Blackett, Rashad Brathwaite, Nicole Foster, James Gathii, Carmen Gonzalez, Jason Haynes, Darryl Li, Frédéric Mégret, Usha Natarajan, Owiso Owiso, Sarah Riley-Case, Florence Shako, Nimer Sultany, and many brilliant others. In addition, we are eager to receive additional contributions that fall within the above-mentioned sections, and are especially interested in investigations into Asian approaches to race and racism; methodologies for anti-racist research in international law; and the role of radical traditions in the design of an anti-racist international law.

We invite those interested in contributing to make contact, either by sending a 200-word abstract or a suggested topic to Ata R. Hindi (atahindi@gmail.com) by 13 May 2022. We encourage submissions from indigenous scholars, black scholars and scholars of colour, as well as those from the Global South. Early career scholars are also welcome. For the sake of transparency, short texts in essay or extended chapter plan format (2000 words) are due in August 2022. These will form the basis of a contributors’ workshop in September 2022.  Full drafts are due in April 2023.