Symposium on ‘Marketing Global Justice’ – Monopoly Capitalism, Kitsch, and Accountable Accountability

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University.]

Dear Christine,

I really liked engaging with your fabulous book, Marketing Global Justice. It’s cleverly edgy and full of insights. You unwind international criminal justice as a transnational business venture. As with all commodity trading and product hawking, well, advertising is indeed key.

I was reading your book at the same time as The Tender Barbarian, Bohumil Hrabal’s eulogy to his friend Vladimír. Those guys spent a lot of time drinking openly, drawing surreptitiously, and writing privately in Communist Czechoslovakia. Lots of bar scenes. On one occasion, as Mrs. Vlaštovková serves up more pilsner:

A young man has entered, scouring the joint for someone to punch in the face … a lad relentlessly seeking justice for those who’ve been wronged. With no one on the horizon, he leaves with a swift kick to the door, scowling, cap low over eyes on the lookout for the[] objective (p. 42).

This passage got me thinking of your book. You offer a critical study of the practices that sell global justice. You critique aims to shield the dispossessed victims of massive human rights abuses from suffering further harm (p. 4).  As you note, one starting point is for the powerful to be less self-servingly sanguine about themselves and their wares, less pleased as punch with how they punch, less derisive of those who wonder why they punch so much, less defensive towards those who critique the swinging and missing … and leaving — like Hrabal’s lad – with a swift kick to the door.

Your book is chock-a-block with the tick-tock of your own personal experiences:  as a powerpointing ICC intern, a parent, an educator.  I hope you don’t mind, but I’d rather engage with you, directly, than write about your book in a distanced commentary. The disruption you hope to bring to un- (or de-) ‘enthrall’ (a great word, this word of yours!) the younger generations (p. xiii) from the thralldom of smug-self-hug social justice transcends the formal articulation-architecture of settled academic norms, no? Well, so I think. And so I will just write to you in a letter of sorts.

I like it that you care so much about this. I mean, another response would be to coldly detach; to treat this marketing scheme like the way a lot of advertising is treated, namely, just to ignore it as puffery. I think it’s great you are not so inclined. I will come back to this later.

The academic semester here in the US winds up, summer has wound down, and this fall I am teaching Contract Law again. This is actually my favorite course to teach. I (more and more) like thinking about things other than ICL and wondering whether ICL has anything to learn from these other things. Your book bridges this space. One of the first cases I teach is Carlill v. Carbolic Smoke Ball Company. Decided by a British court in 1893, it’s a chestnut of the common law. Do you know it? Well, if so, I apologize for being pedantic but, since my letter to you might be read by others, please bear with me a bit. This case is about a device called the smoke ball. The Company marketed the smoke ball by asserting that if a purchaser inhaled the smoke they would not catch the flu. And if they caught it still, so said the ad, they would get a £100 pound reward. An influenza epidemic raged at the time. A lot of people died. The smoke ball was supposed to produce a magic incense. It didn’t work. It was a scam, peddled to a frightened population. Louisa Carlill – who had bought and used the ball based on the newspaper advert — sued the company for damages after coming down with influenza. Carlill called the Company out on its broken promise. The Company replied to her lawsuit. The Company said there was no contract. And really, there wasn’t, as there was no bilateral offer and acceptance … but the English court held that the ad made a binding (and actionable) unilateral contract and, hence, the public could sue. It didn’t matter, in the view of the court, that the promise was general to anyone who possibly could read the advertisement. It was reasonable to assume an intention to contract and pay the reward in the event of breach. Of course this meant the Company could go broke. Its liability to all purchasers ran way beyond the £1000 they had put on deposit. The court didn’t care. For me this case intimates the private law of contract being molded into a consumer protection framework at a time when there was no consumer protection legislation.

This brings me to you. I wonder if we should think the same about the sales pitches of international criminal justice?  What if we legally (not just politically, but legally) held international criminal justice institutions to task for delivering on their grandiosely marketized promises of ending impunity, transitioning societies, reconciling tattered social fabrics, convicting people, and what not else?  Perhaps the international criminal justice industry should itself have to tether its marketing and advertising claims to some sort of demonstrability. The accountability business should itself be accountable, no?  Maybe private law can offer some food for thought.

I was also thinking about the institutional focus of your book. You talk a lot about the International Criminal Court, and a bit about the other acronyms, namely, the other international criminal tribunals.  I think a far wider net can be cast. Is the concern the institutions, or the people who work for those institutions? Both I guess. And here there are great connections to be drawn with Elena Baylis’ work on ‘tribunal-hopping with post-conflict justice junkies’, namely, persons flitting from one institution to another often shorn of the local context in the pursuit of the universalism of law. No learning. Just teaching. No, sorry, not ‘teaching’. Rather, ‘training’, as you point out in your example of Ugandan judges.

What about the marketing that other ‘transitional justice’ institutions adopt? The Canadian Truth and Reconciliation Commission, for example, tasked to address settler violence against Indigenous populations?  Elisabeth Paquette posits that Canada’s officially lauded ‘truth and reconciliation’ efforts serve to ‘resituate the power of a liberal multicultural settler state’. Writing in the Journal of Critical Race Inquiry, Laura Mudde delivers a media analysis of this Truth Commission to unpack the cognitive dissonance of apology concurrent with the rhetoric of settler colonial denial.

Fashioning justice-making indeed has turned into a fashionable fad of sorts. A flamboyance, a sort of romanticism. David Bowie’s 1980 lyrics spring to mind:

Fashion! Turn to the left

Fashion! Turn to the right

Ooh, fashion!

We are the goon squad and we’re coming to town

Beep-beep

Beep-beep

But it is not only the ICC, tribunal-hoppers, and institutional actors who jeep-jeep and come to town. It is also the entire chattering commentariat class, no? Hyperactivated by social media, coming to town can be to the ‘real-time’ place of violence, but it also can be to the ubiquitous virtual space. ‘The town’ sits in an easily accessible every-any-where.  Shouldn’t we think about the role of all the academics and activists and experts, armchair warriors with twitter handles, who market themselves, too, outrageously in outrage? This is the clicktivism phenomenon, which I have elsewhere noted in the context of child soldiers. You pick this up nicely with Kony 2012! But you remain pretty taciturn about the internet, twitter, insta, snapping.  Fads, causes, self-promotion: the on-line commentariat contributes to the deluge of marketing(s), the simplification of content, the discourse of sloganeering. And, to be sure, the ICC itself tweets and retweets. A lot. Isabella Banks has studied these (re)tweets. What does she find? That despite all the social mediaing, well, the ICC ‘made little to no effort to solicit feedback or generate dialogue on Twitter’. You called it well, Christine, it’s the top-down ‘training’ of others.

I remember reading Marshall McLuhan and his medium is the message. He was writing in the context of television in the 1960s. Jeez, imagine now? Everyone didn’t have access to broadcast on teevee, very few indeed, but a lot of people sure have access to broadcast on line. Newspaper advertisements, like in Carlill, seem akin to animal power, the teevee like steam power … now look at the power of social media. Tweet, ergo sum.  Everyone can self-market. Pace McLuhan, but now it seems the medium has become the modus vivendi.  Yet on that note your book is kinda quiet about social media. And the internet in general. Perhaps go there as you build beyond?

May we zig-zag back to Bowie and his ‘Fashion’?

There’s a brand new talk but it’s not very clear

That people from good homes are talking this year

It’s loud and tasteless and I’ve heard it before

You shout it while you’re dancing on the dance floor

Oh bop, fashion

Christine, what about the role of kitsch? Loud, tasteless, new and not-new. From good homes shouted out on the dance floors, in this instance, of other people’s pain. This seems to be also to be going on, here, no?

I was thinking about kitsch this past Labor Day weekend. I went to the Coca-Cola museum in Atlanta, Georgia. I was in Atlanta to visit my brother-in-law and his family. And there (and then) I went to this museum, just because. It is a commemoration to one of the most successful marketing efforts ever. Coke’s secret formula: five parts fizzy water for one part ‘magic formula’ was concocted in 1886 by John Pemberton, a pharmacist in post-bellum Georgia. Pemberton had fought in the Confederate army. He was wounded in the chest by a sabre in 1865 at the Battle of Columbus. As a result, he endured chronic pain, became a morphine addict, and experimented with beverages to sooth his agony, including an alcohol-cocaine mix that, when softened, led to the ‘recipe’ to make Coke. Pemberton sold fast (and low) to investors and, in a story like that of McDonald’s, the product soared in the hands of the ‘brawn’, namely the financial wizards, well beyond what the ‘brain’, namely the initial inventor, ever could fathom. Pemberton died soon after selling.

Well, the museum is a temple to Coke’s wildly successful marketing and sales. Coke first focused on the qualities of the product itself, specifically, how refreshing it is, but did gesture towards what it felt like to hold the full bottle and the social sparks that happened. And then it pushed the envelope further – gearing its pitch to the qualities Coke brought out in its drinkers: how its product meant good times, fuzzy feelings, smiles, camaraderie, family, world peace, fun, loves, likes, sharing laughter, intimacy, friendship (even among polar bears), connection, feeling better in bad times, convivality. A placard in the museum flatly states that Coke ‘chang[ed] the face of advertising”: clever marketing helped Coke ‘become part of the fabric of everyday life’ and ‘a natural companion … no matter what the era’.

This is a very different kitsch than ICL’s kitsch.  I have long wondered whether ICL’s interventions make anyone feel good. A little while back – on another symposium on OpinioJuris, in fact – I broached the topic of how ICL interventions are so ‘distanced’ that they are inept, or too awkward, to ‘get close’ to the very people they putatively are to uplift, and simply fall short of becoming part of the ‘fabric of everyday life’ even in the places they aim to repair. They are cold, they leave audiences emotionally unmoved, they are not – to draw from Coke – companionate. Complementarity is not comity.

I wanted also to tell you that am very drawn to your angles on global justice aesthetics. On sightseeings, a space in which Renske Vos and Sofia Stolk have some really nifty work. Caroline Fournet and I are assembling a book conference on aesthetics in October. It follows on a journal symposium we published. I feel even more scaffolded in this project after reading your book. Thank you for that. Yes, for sure, the viscerality of ugly perpetrators being held individually responsible is totally congenial with capitalism and its suborning of structural responsibility – ‘men not abstract entities’ — this imperative has in the end led to far too little reform, and a pitiful amount of justice. We have been ICCing for twenty+ years already. That’s a long time. From a capitalist business perspective such a business should be long out of business for underproductivity and bleeding resources. Much of what it advertises is just emptiness. So in a sense the ICC captures two political economies:  privatizing its gains, in its case, reputational heroic ones while collectivizing its losses, to wit, paltry output and low consumer satisfaction. It’s monopoly capitalism. Command and control.  This could be a different way to see complementarity, no, namely, ensuring monopoly of method (selective liberal criminal trials) and creating a cartel (and a protectionist market barrier) to suborn alternatives?

After reading your book, well, it confirms (for me) my instinct why, in this neo-liberal frame, meaningful corporate responsibility at the level of international law is an impossibility (p. 208). The whole infrastructure is simply too corporatized. Truly, the only meaningful option is some sort of radical revolution at the domestic level, back in the world of national contract law and national corporate law, to install a new legal frame.   Revolutions can make things worse, for sure, they’re always risky, they make me nervous … but as Joanna Kyriakakis and I discuss in this interview, well, (speaking for myself) the ongoing tinkerings about corporate responsibility at the international-institutional level are rather performative and unsurprisingly underwhelming.

So, what to do? Well, I like your suggestions to jump out of this cycle of commodification and sloganeering. Your idea of unplugging, unmasking. Have you read Aimé Césaire’s play, Une Tempête? I did, in high school in Montréal, and believe it or not am going to go see it in November, here in rural Virginia, put on by a troupe in the same season they stage Shakespeare’s The Tempest. Césaire re-imagines, through wry acidity, Shakespeare’s storm (and Shakespeare’s original characters) on an island in the colonial Caribbean Sea. I won’t give away any more, but this is what we need, too: a politics of unsettled upendedness, inversion, re-staging, de-staging, and just being cheekily tongue-in-cheek. And to get things out of (and off) the Hague-stage. So, going back to where I started in my letter to you, well, it’s great you treat this marketing so seriously and it’s wonderful that you do suggest the power of irony, individuality, flippancy, and saltiness as a way to overcome.

Sending best regards,

Mark