Symposium on The Sentimental Life of International Law: On Intimacy and Distance

[Zinaida Miller is Professor of Law & International Affairs at Northeastern University.]

In his wide-ranging exploration, Gerry Simpson demonstrates the fundamental tensions experienced within international law and by international lawyers as they simultaneously embrace and distance themselves from the individuals, sites, histories, modes of violence, and narratives at the center of their work. To approach international law through the sentimental, Simpson suggests, allows him to understand it not only through the lenses of literature, emotion, and sensibility but as a “life lived” by people with professional and personal preoccupations and as a field—and group of people—”haunted” by “the lachrymose absence of proportion and the presence of a human, anti-technocratic sensibility (7).” Ultimately, the book exemplifies (but does not directly acknowledge) a specific internal struggle of international law and international lawyers: that between distance and intimacy.

In this post, I want to focus on what I see as two ways these tensions over intimacy and distance play out: through time and through place. Together, they point towards a challenge for The Sentimental Life: who is doing the distancing or drawing close and what or who are their objects of intimacy or detachment? Simpson is alternately clear and coy on these questions – and sometimes both at once, fitting the book’s combination of earnestness and insouciance.

When it comes to questions of time, Simpson’s who and what are more direct: he argues that international criminal lawyers have repeatedly clung to (shaky) precedents for holding individuals accountable while invoking the “unprecedented” nature of the acts themselves.  In other words, international criminal lawyers and judges attempt to establish both the closeness of past law and the distance of past violence – while fighting the intrinsic violence of legal interpretation itself.

Questions of place in The Sentimental Life raise some additional questions about the agents and targets. Simpson describes the lives of international lawyers themselves, who paradigmatically appear as transnational travelers who rely on both literal and conceptual distance from the violence they judge and analyze. At one point, Simpson calls for the “ hard-boiled, unillusioned sentimental life”, one which can (or even should) be shot through with irony but not with crippling cynicism.  As I will suggest, this can be usefully contrasted with another group: those who use international legal rules, doctrines, and rhetoric ‘at home’. How does cynicism change when distance diminishes?

1. Time: Distance and Intimacy in Violence and Precedent

In his chapter ‘Bluebeard on Trial’, Simpson traces the tortured attempts within international criminal law to find weak precedents for ostensibly unprecedented acts or to distance contemporary practices from inconvenient precursors like the Moscow Show Trials altogether. His counter-histories present a challenge to liberal legal ideas about the pasts of both atrocity and justice: he demonstrates the absurdity of international criminal law’s quest to ‘discover precedents of the unprecedented’ because the legalist attachment to analogy co-exists with the declaration that certain forms of atrocious violence neither have nor require any precedent. “In an uncertain, bootstrapping move, the atrocity that has never been experienced before must….be situated in a trajectory of juridical activity in response to analogous historical acts”. (92) Yet that trajectory erases both certain forms of violence and past practices of law. For the sake of legality, there must be a close precedent on which judges can act; yet for the sake of law’s purity, there must be distance established not only from violence itself but from the unabashedly political versions of trials that could easily form part of international criminal law’s history.

What is at stake in this struggle between intimate and distant precedents? First, the erasure of colonial and imperial violence. As one of the examples par excellence of this impulse, Simpson cites the opening statement at the Versailles Peace conference, in which Raymond Poincaré declared that humanity maintained confidence in the parties present because they were themselves innocent of the egregious violence that the Germans committed. Yet, as Simpson points out, the parties present were “the Belgians, French, and British, each of whom were by this time, responsible for three centuries of sometimes violent, certainly racially-inflected, Empire” (100).

The effort to distance certain pasts and thus give imperial, colonial and racialized violence an alibi has seeped into the doctrinal marrow of the international criminal law. The inability of international criminal law to capture continuing crimes beyond their necessary and narrow paradigmatic forms (such as forced disappearance) but also as connection points from colonial dispossession to postcolonial violence makes the tribunals less relevant to those they claim to serve. Using the example of Kenya, legal anthropologist Kamari Clarke documents a clash between the basic assumptions of liberal legality—particularly nonretroactivity and individual responsibility—and a “growing grass-roots conception of who is actually criminally responsible for acts of violence – including historically relevant institutions such as colonial agents and discriminatory segregation politics.” (Clarke, 609) In postcolonial Africa, she suggests, there is an ongoing awareness that imperial injustices have structured legal, political, and economic life today.

At stake too in these historical reconstructions of international criminal law is the reconstruction of war crimes trials themselves as what Simpson describes as “depoliticized programmes of management [rather than]…slightly wild-eyed theatres of revenge: human rights with a vengeance” (103). Here we can see the struggle between distance and intimacy as one between the presumed objectivity of legalism and the intense subjectivity of war crimes trials – replayed in how histories of international criminal law turn towards Nuremberg and away from the Moscow Show Trials. Yet even as these histories emphasize the objective distance of the trial, international lawyers nonetheless experience the impulse of the melodramatic: evoking sentiment as a refusal to fall into the abstractions of legal doctrine. Part of Simpson’s point is that the incommensurability of international law with the violence and atrocity it addresses—whether the use of nuclear weapons or crimes against humanity—is not only tragic but self-evidently ironic. The choice of tools and particularly the attitude towards those tools—earnestness and piety but also self-conscious inadequacy—foster anemic visions of the past and thus of the present.

2. Place: The Character of the Expert

Simpson is not only interested in how discourse, rhetoric, and legal judgment shape the world but in how the people who speak the language of international law function in that world. Most of us have a mental image of this type of expert, whom Simpson describes as a “person who travels a lot doing law….a trans-nationalist. This person carries a briefcase and a small piece of carry-on luggage, and she moves from town to town (accumulating air miles to be redeemed for upgrades on family holidays.” (34). We know from this description that the paradigmatic international lawyer appears as rootless and unencumbered, moving around with confidence, constantly distanced from her target. The person is detached both physically and conceptually, carefully managing his budget of distance and engagement or detachment and passion.

Like war crimes trials that justify themselves through distance from the violence they judge (and the erasure of the violence they fail to judge), international legal expertise relies on a foundation of distance – and yet at the same time a constant invocation of virtuous life-saving possibilities. As  David Kennedy, Janet Halley, and others have suggested, this contradiction produces a systematic failure to assess the distributional consequences of humanitarian work: the virtue of the work is meant to override the violence it produces. Yet the self-conscious integration of consequences, Simpson suggests, can also lead to cynical self-presentation. His own experience with this, he says, was a paper he gave in 2002 focusing on the “misuse” of international law in the context of the Iraq war. It was utterly cynical, he says, in the sense of  “knowing the gap between one’s abstract commitments and embedded practices and going on as before as if nothing has changed” (82). It is, in other words, a form of bad faith: lawyers continue to act as if the law is determinative, while knowing all along that it is inherently indeterminate. This formulation of cynicism suggests a disempowering loss of faith, in a formulation that potentially indicts not only liberal legalism but critical approaches as well.

So if cost-benefit analyses or self-recognition are insufficient, how should international legal experts proceed? Naz Modirzadeh has critiqued international legal scholars precisely for their distanced detachment; she calls instead for “passionate reasoning…[which] reflects a kind of moral situatedness, a willingness to take seriously the professional ethics and moral agency of writing about international law and war to audiences that have power to make decisions about war.” Simpson’s version is to argue for “moral vigilance” in certain situations, which he suggests can be derived in part through the mobilization of irony. He suggests that being an ironic international lawyer has the potential to lead to detachment or distance but it can also be the best way to embrace uncertainty. For Simpson, irony “might involve a renunciation of the absolute and the unqualified and especially a refusal to find oneself perpetually on the side of the angels.” (79)

This idea of cynicism as disempowering bad faith and irony as a form of moral vigilance leads to a question: does cynicism operate similarly for those who use international law while remaining in place? Moreover, must international lawyers be defined by their distance? Here anthropologist Lori Allen’s work provides a useful counterpoint to Simpson’s image of the rootless cosmopolitan legal expert. In The Rise and Fall of Human Rights, Allen offers a deep ethnographic study of Palestinian human rights defenders and advocates. She argues that cynicism explains the persistence of human rights practice and advocacy even in an area where those practices have manifestly failed to alter the long term structure of injustice and dispossession. (In fact, arguably, aspects of humanitarianism and human rights have even made things worse in, both by legitimating Israeli actions through human rights litigation and by offsetting the costs and logistics of occupation onto international and external actors rather than the occupying force.) Like Simpson, Allen suggests cynicism is about lost faith, about human rights advocates continuing to “participate as if what they were doing made a difference and despite their recognition that it mostly won’t”. Yet Allen argues that while cynicism can certainly be disempowering, it can also provide a way to be creatively engaged in politics. It is, at the end of the day, a survival strategy. Allen identifies a “critical stance by which those who are displeased with choices available in the present hold on to the belief that such limited options are not all that there should be.” In other words, they too continue on even after having assessed costs and consequences.

What is different about Allen’s analysis in part is that rather than describe external experts who enter the field viewing themselves as outsiders with an objective take—Modirzadeh’s passionless scholars or Simpson’s depoliticized lawyers—Allen is interested in Palestinians who work in human rights within their own communities. They are not accruing air miles with their briefcase and carry-on; to the contrary, it is in the nature of their work that they are unlikely either to (be able to) leave or hide from the costs and consequences of what they do. To the contrary, Allen suggests that human rights actors and the broader populace daily confront the performative, donor-driven, legitimating nature of human rights work and yet continue to engage with it.

Allen’s analysis raises a question about the self-image of international lawyers as Simpson presents them: is it the subject matter and expertise that is international or something “international” about the individuals themselves? This too is a form of distancing, one that the book performs more than it problematizes, unlike Simpson’s directly critical take on the ways that international criminal lawyers cherry-pick their histories and precedents. Allen’s points link more closely to Clarke’s example of a Kenyan human rights activist who rejects the ICC as useless inasmuch as it cannot address “the criminal politics of domination, exploitation and impoverishment and eviction” that began with “the day the British landed here”. In other words, if the starting point is those who intimately experience the violence that international law enacts rather than those who claim international law can solve that same violence, the analysis fundamentally changes. Distance is not only false (because international law is intertwined with violence and dispossession) but a naturalized privilege (because distance, like movement, is the prerogative of the few).

Conclusion

Simpson’s book ranges through history and across borders but it is ultimately itself an intimate approach to international law – one that contributes to a profound set of struggles over the significance of geographic, temporal, and conceptual distances. It’s intimate both in the degree to which Simpson appears in the pages and in his combination of telescopic and microscopic observations of international law. One way to think about what the books reveals is to consider the need to expand our temporal scope while reducing spatial distance. In recent years, we have seen pitched battles over memorialization and responsibility for forms of violence that have been systematically treated as distant, completed, and irreparable. Exposing histories of conflict, inequality and racialized subordination requires both a telescopic temporal lens and the maintenance of close linkages to those enduring the intergenerational costs and consequences of those histories. Distance has often been the privilege of the powerful although as Simpson shows, intimacy has sometimes meant a fall into excessive melodrama. His call for international lawyers to be simultaneously and eternally engaged, ironic, impassioned, angry, and confused (while gardening, but for that as for so much else, you should read the book) seems like precisely the right challenge for the moment.