Marxism and International Law. posted by Richard Seymour

It is axiomatic that neither the Prime Minister of Britain or the President of the United States will face trial for war crimes committed by their armies in Iraq. Henry Kissinger will probably see the inside of a coffin before he sees the inside of a jail. Ditto General Pinochet. On the other hand, Slobodan Milosevic and countless other petty thugs from the former Yugoslavia know all there is to know about the trying game. Saddam Hussein will eventually face trial for his crimes against the Iraqi people and Kuwait.

The standard left-liberal criticism of this state of affairs is that a double-standard is maintained by the refusal of, say, the United States to allow any of its citizens to be detained by the institutions of international legal sanction to which it is otherwise happy to turn to ensure the trial and imprisonment of its chosen enemies. The more radical critique asserts that there is no double-standard, since the only standard by which states act is that of self-interest. All well and good. However, if I may essay in a little Marxist theory, it seems to me that these criticisms miss something crucial about why international legal insitutions fail in their task.

I have previously advanced a brutally cropped verson of the unpublished thesis of China Mieville that, since law is indeterminate and international legal institutions are not endowed with the kind of force which would enable them to impose a determinacy on it, the interpretation of power always wins. Law is founded on violence, on force - it is, in fact, the expression of force. Although the radical rightists currently running the US government would prefer to continually renegotiate the law, they understand that they need to regulate their interactions with other states and so would probably be unwilling to dispense with it. Law is a process, rather than an institution. It is a continual argument between different actors of varying military and economic strength and, as Marx almost said, between two competing legal claims, force wins.

I wanted to add to those adumbrations a few observations drawn from Kirsten Sellars' The Rise and Rise of Human Rights, (2002). Sellars' book has the unusual virtue of taking the idea of human rights seriously, and of being wonderfully unimpressed by the pretense of Western states to embody that idea. Here, she discusses the Hague war crimes tribunal:

The tribunal is mandated to prosecute serious crimes in the Balkans, but its focus has been selective. For example, would it put Western military leaders on trial if they were accused of committing war crimes in the region? This matter came to a head in December 1999, when Canadian lawyers and Russian parliamentarians raised the issue of Nato's military actions against Serbia. The Swiss chief prosecutor, Carla del Ponte, initially responded that she would investigate anyone who violated the Geneva Conventions. Then, under pressure from Washington, she issued a sudden retraction, stating that "Nato is not under investigation by the Office of the Prosecutor." ... "Facts and Law! No political motivations! Just facts and law!" she declared. But the facts and law in her report raised more questions than they answered - such as why prosecutors had indicted Milan Martic for shooting cluster-headed rockets at Zagreb in May 1995; but not Nato for dropping cluster bombs on Nis in May 1999. (p 182)

And here, she quotes the impressive Jamie O'Shea on why Nato leaders would be unlikely to face charges at the Hague:

"I believe that when Justice Arbour starts her investigation, she will because we allow her to. It's not Milosevic that has allowed Justice Arbour her visa to go to Kosovo to carry out investigations. If her court, as we want, is to be allowed access, it will be because of Nato. ... Nato is a friend of the Tribunal, Nato are the people who have been detaining indicted war criminals for the Tribunal in Bosnia ... Nato countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers ... we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don't anticipate any others at this stage." (p 184)

Well, there you have it. We are behind the Tribunal, and we expect its agenda to be ours. However, Sellars is not simply contemptuous of the idea of human rights, and Marxists should not be either - not least because most of the achievements which would count as classic human rights concerns were driven by the radical Left. Rather, it is a question of seeing how the inherent limits in the desire and ability of international organisations to defend those ideals open the space for radicals to hegemonise the field. Slavoj Zizek's concise formulation was: "Try Kissinger or shut up!"

Norman Geras raised the issue of the distinction between a class-state and a non-class-state in his attempt to overthrow the Marxian ideal of a stateless utopia. In doing so, he defined the Marxist conception of the state as: "a body coercively imposing law and policy in the interests of a dominant class upon those who might otherwise be less than fully willing to comply with such law and policy". International institutions, by logical extension, could be seen as bodies negotiating between the dominant classes of each nation represented in them. They reach conclusions, legislate and hope, with the goodwill of members, to promulgate policy. The mistake would be to see the UN, say, as simply the fig-leaf of the larger states. It is not; rather it embodies contradictions (or conflicts if you prefer) between states. True, the US was behind the formation of the UN ; true, it is the modern form of imperialism rather than its replacement; but in its form it advances an ideal of international legal obligation, universal rights and so on that it cannot possibly fulfil.

In a postcapitalist universe, one would hope to supplant the vicissitudes of power politics expressed in law with the growing democratisation of as much of human life as possible - this is what is so subversive in George Monbiot's recent The Age of Consent. In taking the professed ideals of the UN seriously, and by making proposals designed to achieve these ideals, he makes the inadequacy of the present global situation poignantly apparent. The consequences for strategy of accepting the above analysis is clear. Since the law is a contested space rather than a defined set of imperatives superimposed upon day to day power relations, we can meet the cries in UN Headquarters in New York for the bombing of Iran or Syria with another concise formulation: "Bomb Washington or Shut up!"