Books: Neoliberalism’s Brand of Justice

by | 26 Jul 2021

We are thrilled to launch a series on contemporary critical (legal) books. Our first text in this series is Christine Schwöbel Patel’s Marketing Global Justice (Cambridge University Press, 2021). Over three posts we will explore different aspects of the book, before Christine has a chance to respond. We are open to suggestions of books to feature in this series – simply get in touch with the collective in the usual way.

For those of us who grew up in the West in the 1990s, Naomi Klein’s No Logo was one of the first popular books of that period that spoke to a simmering anti-capitalist discontent. It would be for many an entry point to deeper critiques of capitalism and imperialism. But it was also very much a book of that particular moment in time and place, which spoke to the social movements that had coalesced under the banners of anti-globalisation and alter-globalisation. No Logo was published, fittingly, in the very final month of the 1990s, a response to the smugness of corporate branding and institutional (neo)liberalism that had become ever more rife through the decade. 

Over the years that followed, from Seattle in 1999 to Occupy in 2011, the alter-globalisation movement would recede and re-constitute itself in different forms along the way. It is now 20 years since the G8 summit in Genoa in 2001 where people agitating for another world were rounded up and tortured, and Carlo Giuliani’s body was crushed by ‘those cretinous monsters who tore out his soul’. The show of force by the carabinieri in Genoa was atrocious. More fundamentally, the global inequality and slow violence that they were deployed to serve and protect are forms of ongoing, everyday atrocity. But these are not international criminal law atrocities. International criminal tribunals are not intended to deal with the structural violence of global capitalism. Neither anti-capitalist protestors crushed under police riot vans nor the proletariat of the South thrown under the bus of structural adjustment are among the ‘ideal victims’ for a branded, marketable criminal justice project. These are the underlying themes of Christine Schwöbel-Patel’s compelling Marketing Global Justice: The Political Economy of International Criminal Law, which sets out to map the contours of precisely how international criminal law relates to the market and to marketing.

Branding and spectacle

Inspired by No Logo and its ‘searing critique of branding’, Schwöbel-Patel brings a fascinating mix of sources together to get us thinking about international criminal law as a site of branding and selling, investment and dividends. The book makes clear that this is intended as a materialist analysis, not merely a metaphorical one: ‘marketised global justice is not just about the cosmetic aspects of employing symbols; the use of branding is symptomatic of the primacy of market values, entrenches these, and reproduces them’. International criminal law operates in a market context, in competition with other actors in a global justice industry. Marketing practices and branding techniques have been adopted from the commercial world to ‘sell’ global justice – to consumers, stakeholders, and donors. It is significant, Schwöbel-Patel suggests, that the 1990s’ acceleration of globalisation brought with it ‘an intersection between the rise of branding on the one hand and the rise of international criminal law’ on the other. She points to an inter-relation at play, with international criminal law deploying marketing methods for its own ends, while the emergence of ‘lifestyle’ and ‘ethical’ branding in the commercial sphere took meaning and inspiration from liberal iterations of global justice. Since then, Schwöbel-Patel argues, the International Criminal Court has gained a market hegemony and ‘a status as the measure for global justice in the dominant institutional framework as well as in the public imagination’. 

In contrast to more complex iterations of global (in)justice that are enmeshed in economic structures and relations, international criminal justice trades on the relative and deliberate (over)simplicity of the good vs. evil stories it chooses to tell. These stories lend themselves to – and are reinforced by – the bread and butter of branding and marketing: aesthetics, imagery, spectacle, slogans, stereotypes, caricatures, film, posters, hashtag campaigns, celebrity endorsements. Schwöbel-Patel traces the interaction of these devices with the substantive work of the International Criminal Court – and the broader entangled politics of humanitarianism, militarism and capitalism around it – through a series of evocative examples: the Save Darfur Coalition, the Kony 2012 campaign, the exchange value of particular photographs of ‘warlord’ perpetrators. 

At the heart of Schwöbel-Patel’s analysis is the distinction between the ‘spectacular’ violence of physical atrocity and the slower, structural violence of economic inequality. International criminal law focuses our attention on the former, but not on the harm and death caused by the latter. This is more constitutional than coincidental, reflecting international criminal law’s imbrication in the imperatives of the market. The upshot is that ‘ideas of global justice are (re)defined when they are made marketable’ under capitalism. Schwöbel-Patel draws on the concept of the ‘attention economy’ to articulate a crucial point about the political economy of international criminal law, which unfolds as follows. The simplified narratives and racial stereotypes that appear in international criminal law discourse reinforce tropes about propensity for violence in the ‘dark corners’ of the world. This keeps attention fixed on spectacular violence,  distracts from underlying contexts of exploitation and accumulation, and in turn serves as the basis for an argument against economic redistribution. Instead of any such distributive justice, free market conditions and saviour-interventionism are presented as the only acceptable responses. This exposes the conservative implications of spectacle and stereotype, and the attention/distraction dynamics of international criminal law. 

Trade liberalisation and integration

In parallel to this there is also a concerted integration of international criminal law with trade liberalisation regimes. Schwöbel-Patel argues that this has been a particular agenda of the European Union, which has introduced conditionalities to particular trade and development agreements with global South countries – requiring their commitment to the ICC just as scepticism in the South around the Court was beginning to mount in 2005. This is part of the broader rubric of neoliberalism that, drawing on Quinn Slobodian’s work, Schwöbel-Patel describes as a legal-institutional order that both ‘enables and encases’ the market. The EU and the World Trade Organisation are institutions of neoliberal legalism that encase the market beyond democratic accountability, while the ICC operates as a pressure valve for a much narrower and bracketed form of criminal accountability. 

The convergence of world trade liberalisation and internationalised criminal justice is thus not just happenstance, even if the connections between them were not widely discussed when the WTO and the ICC were established in close succession in the 1990s. By 1999, the WTO had already provoked mass mobilisation and battles on the streets, while the ICC was garnering a relatively positive initial reception, not least in the global South. That same summer of 2001 that the anti-globalisation movement was converging in Genoa, in Ireland we had a set of referendums on international treaties. The EU’s Nice Treaty sparked contestation over further centralisation of the single market and consolidation of European capitalism and its military alignments. It was opposed by Ireland’s left-wing parties and rejected by the people, at least at that first attempt. Another referendum was held on the same day to ratify the ICC statute which, by contrast, passed comfortably and without contention. Even though, as Schwöbel-Patel rightly notes, the ICC was premised on the same liberal-legal values as the WTO and the EU treaties, it was broadly assumed by many on the left to be fine or benign in a way that the more obviously neoliberal international institutions were not. At that point, the political economy critiques of international criminal law were not as developed and, understandably, did not have the same political purchase as those relating to the WTO, the EU or the G8. 

Anti-colonialism and international criminal justice

That is not to say that there was no critique of international criminal law in the 1990s, and certainly some of the early concerns from TWAIL (Third World Approaches to International Law) quarters were prescient in pointing to the ‘inability or unwillingness of the international criminal law project to grapple with underlying causes of conflict or unsettle global market forces.’ Though for the most part, the TWAIL critiques were concerned with the more general geopolitics of international criminal law as a site of neo-imperialism and Western bias. Mutua denounced the reproduction of ‘racial mythologies’ while Anghie & Chimni warned of top-down individualised accountability initiatives ‘becoming, simply, the reproduction of the civilizing mission and victor’s justice’. They argued that the Yugoslavia tribunal’s failure to investigate NATO’s intervention in Kosovo raised ‘disturbing questions’. TWAIL-inflected critiques have been since further expanded and deepened by Asad KiyaniKamari Maxine ClarkeVasuki NesiahSujith XavierSouheir EdelbiOumar BaChristopher Gevers and many others – touching on political economy to greater and lesser degrees. The most distinctly Marxist critiques of international criminal law to date have been developed in the work of Grietje Baars on the corporation and ‘capitalism’s victors’ justice’, and Tor Krever’s ideology critiques of international criminal law and its trials. Schwöbel-Patel’s book adds to this body of work with its own novel approach of interrogating international criminal law through the lens of branding and marketing. Perhaps more than any of the existing work, it shows us how pervasive the impact of neoliberalism can be on an institution like the International Criminal Court and the industry around it. 

Schwöbel-Patel’s critique culminates in a final chapter which returns us to alter-globalisation and contestation from below, through a set of ideas inspired by the Occupy movements and conceptualised under the umbrella of ‘occupying global justice’. There is, she asserts, ‘something worth rescuing about global justice’. She fleshes out a series of tactics that might help ‘to destabilise the normalisation of market thinking’, presented under the headings of ‘unplugging’, ‘despectacularising’, ‘unmasking’, and ‘resistance’. 

Schwöbel-Patel’s conceptualisation of resistance includes ‘decolonisation’. The discussion of decolonisation ranges from the OSPAAAL posters to Rhodes Must Fall and the mainstream international criminal law curriculum. It does not get directly into the material essence of decolonisation – or decolonisation struggles in the here and now – encapsulated by Nick Estes and others as ‘the end of the continual destruction of Native life and land…the repatriation of stolen lands and stolen lives [to] undo centuries of settler colonialism’. Here others can certainly take up the baton to bring the rich veins of Indigenous scholarship on decolonisation as anti-capitalism to bear on questions of how market capitalism and anti-colonial liberation concretely collide and intersect with international criminal justice. There is a potentially rich array of avenues to pursue here, which might include: how Indigenous movements engage (or not) with international criminal law concepts such as genocide and forcible transfer in ongoing decolonisation struggles against settler sovereignty and domination; whether international criminal law has any role to play in undoing the legacies of apartheid and the realities of neo-apartheid in southern Africa; what would need to happen for international criminal justice make any tangible contribution towards a free Palestine from the river to the sea?

Palestine is indeed the paradigmatic case of an active decolonisation struggle which has also had a front open at the International Criminal Court over the past decade. While Schwöbel-Patel’s book itself does not engage with Palestine, she has argued elsewhere that when it comes to Palestinian liberation, ‘it is important not to place too great hopes into the potential of the ICC’. Yet in some ways it is arguably Palestinians who are most intensively  trying to ‘occupy’ global justice in earnest, and who might help us learn more about the possibilities and limitations of doing so. The relentlessness of Palestinian legal activism is pushing the ICC into uncomfortable corners: compelling the Court to open an investigation into the situation in Palestine; forcing the slow violence of colonial crimes and apartheid onto the agenda; driving Israel and its supporters to resort to embarrassing deflection tactics; alienating some of the Court’s own major members and donors. If the basic orientation of the marketing and branding around the ICC is conservative and neo-colonial, this has been disrupted at least to a certain extent by Palestinian tactics. Those tactics will of course continue to come up against various obstacles – from the ICC’s place in the food chain of global imperial geopolitics to the more mundane material realities of its own budget. Schwöbel-Patel’s own scepticism pushes us to think about whether the ‘something worth rescuing about global justice’ ultimately has any real place for international criminal law within its imaginary. It raises the question of whether we should be thinking about the ICC not (just) in terms of occupy but in terms of abolition. Is the branded, marketised version of criminal justice being dispensed from the Hague so immersed in market values that it cannot be meaningfully occupied or repurposed? What would be gained and lost by its abolition or abandonment? Marketing Global Justice is a vital, provocative text that compels us to think more, and think differently, about these questions. 

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