The uses of Marxist theory of law during a genocide

by | 19 Feb 2024

This was originally a talk, prepared for the Pashukanis @100 conference, with an afterword post-ICJ interim order of 26 January 2024. 

In some ways it is ironic and in other ways entirely appropriate that the Pashukanis @100 event falls on the very days that South Africa is challenging Israel in the International Court of Justice on Israel’s ongoing genocide in Gaza. In fact, this legal challenge might be a key test for Pashukanite theory! One of the main contributions of Pashukanis to legal scholarship is to raise the question, the possibility, and indeed the argument for (or even the inevitability of), the abolition of law, and legal systems, with capitalism and the state form, in or after the revolution whatever form that may take, for us to restart organising our communities and societies along entirely different, non-hierarchical lines, with what our anarchist friends might call consensus decision making and transformative justice. Pashukanis, in other words, was an abolitionist before it was cool. But what does an ongoing genocide do with this abolitionist resolve?

One of the key questions, before we get to abolition, is what to do with law, what role (if any) law may play in our liberation, or getting to that point where we can reimagine and remake the world we want to live in. Rob Knox of course has discussed this question in his seminal 2010 Finnish Yearbook of International Law articleon strategy and tactics, where he argues we can use law tactically while maintaining a revolutionary strategy that moves beyond law and legal methods for change. We need to keep our eyes on the prize, in other words. 

I have been very impressed in the past nearly 100 days of genocide to see many academics, including academic lawyers, some in this room, on the demonstrations and also on the many direct actions, such as the arms factory blockades organised by Workers for a Free Palestine, in direct response to the call by Palestinian workers and unions. Now I also have comrades and friends involved in the ICJ case, and having spent three years myself as a human rights and international humanitarian lawyer in Palestine, working with Palestinian human rights organisations including in Gaza. I co-founded the Al-Quds Human Rights Clinic, I’ve worked as an International Humanitarian Law expert for the factfinding mission on Operation Cast Lead 2008/09 led by Justice Goldstone, I’ve briefly led a Universal Jurisdiction programme at an international human rights organisation in Europe, before changing course 180 degrees. 

Of course I continually, repeatedly, especially on days like today, question my own reasoning and resolve when it comes to actively working against seeing the law as a, or one, tool for liberation. 

We have seen the Israeli leadership and its military brazenly ignore or explicitly violate, in the past 100 days and also routinely before, as the Palestinian human rights lawyers I have worked with would say, “all rules of international law”. Israel has acted not just exceptionally, but routinely despite or regardless of international law. At the same time, Israel invokes some very powerful paradigmatic changes in international law discourse when it comes to Gaza, shifts few seem to notice or challenge, for example invoking the notion, the legal concept of “war” as in the “Israel-Hamas war” which suggests an equivalence between two parties. Moreover, it erases the 75 years of oppression preceding October 7th, and the legal framework of the laws of occupation, in favour of a more permissive inter-state war framework. Israel’s invocation of equivalence only goes as far as framing its own operation, for the remainder it still only goes one way, because imagine the Gazans’ right to self-defence or imagine if Gazans had the weapons to carry out targeted strikes on Israeli hospitals, schools, universities, archives, museums, theatres, places of worship, academics, journalists, political and military leaders. 

Law week, Hassan Nasrallah in his speech following the targeted assassination by Israel of Hamas leader Saleh Al-Arouri and 5 other members of his group, that (I paraphrase) “we don’t believe in all that international law stuff anymore”. And he is not the only one, I imagine most of us who have been watching the genocide unfold on our screens day after day, while one national, and then international institution after the other has so blatantly and brazenly upheld its bias in favour of Israel in ways that has shown Empire’s full nudity to the world. And yet, watching the ICJ this morning in its hallowed halls I WANT TO believe that law can save Gaza. That ‘legal order’ can be restored against the genocidal chaos.

And I’m not the only one of course. In the past months, the demos have rung with chants like, “Rishi Sunak you can’t hide, we charge you with genocide” and protestors carry signs invoking the ICC and the ICJ, showing faith and endorsement, or perhaps immanent critiques of, international law. The moment South Africa filed its claim at the ICJ the number of social media posts containing congratulations, explainers, and endorsements, multiplied by the hour. Demos outside the court in The Hague today, with a massive screen for the live stream, watch parties, articles in law blogs abound, some scholars seemingly relieved that they can be pro-Palestinian in a respectable way supporting a legitimate ‘civilised’ legal claim. We have pressed pause on our disillusionment with the UN, even the Security Council, while our hearts are lit for the ICJ. 

If I was the ICJ, and the West in general, and interested in my own survival or indeed supremacy (which I’m not, obviously), I would take this opportunity now at the ICJ, to, undo the damage to Western imperialism by coming out even in a modest way in support of South Africa. Even a legalistic condemnation of genocide in the abstract and an exhortation for Israel to abide by international law, to minimize civilian, in particular child casualties is going to be celebrated as a win and restore (some) faith in the international system. The “international order” will be restored, even if, as after the Advisory Opinion on the Wall, neither Israel nor the international community take any steps to execute the ICJs “polite requests”.

For what it’s worth, I think the ICJ will do a Blinken, and simply parrot the phrase “Israel has a right to defend itself” (again no word of the Gazans’ right to self-defence), and of course Israel must take care to minimise civilian casualties. The old IHL game of calculating how many civilian deaths is acceptable, and how many is too many, resumes. And nobody saw, the executions, the targeting, the deliberate starvation. The white phosphorous, the white flag deaths, the eradication of entire families, which isn’t new, which was also documented in and after all previous operations in Gaza. 

And we can go back to doing theory and being vaguely critical. 

Or can we? And will we? Now is the time to reiterate that theory serves us only, if it stands concretely at the service of revolutionary praxis. And at the time of the absolute horror of the Gaza genocide, the ramping up of authoritarianism in our own countries and the existential fears this brings with it, we need to check, and reinforce, the tethering of our theory to praxis. Now, if ever, is the time for the last of us and for our theory, to get out of the ivory tower, and into the streets.

Having finished watching the ICJ I’m left with the following thought. Like international law, Israel is a creation of Europe. This genocide is a creation of Europe. As Aimé Césaire said, Europe is indefensible. We must end Europe. And that includes, especially for Europeans like myself, the ‘European civiliser’ in our heads, and the last remnants of liberalism around us. 

So, how is that going to work, and what does all this have to do with my original title, a QTHoMo Commodity Form Theory of Law?

I am interested in this deep investment we have in law, and order, this belief that law and justice are not somehow manmade, and specifically, made by the powers that be to further their interests, but this weird outdated semi religious notion that law exists out there in the abstract as function of “justice.” I want to understand where it comes from, what its power consists in and of course how we can break that spell. Of course, not just the ideological spell, this isn’t a question of ‘false consciousness’ but the ideological spell as shored up by real material benefits.

Very simply, the powerful ideology that makes us (not us of course) talk about Israel’s right to defend itself, and not the Palestinians’ or the Lebanese, for that matter, is racism as the core element of the broader system of settler colonial racial capitalism that law has played a significant sole in creating and maintaining. If you condemn the killing of one kind of people but not another, what makes one grievable and not the other is centuries of coding done by the marker of race that serves settler colonial racial capitalism. What I am interested in is how such markers, ‘legal categorisations’ become ones that we identify ourselves with, and how those attachments solidify our attachment to law. They make it personal, as it were. 

In terms of the category of race – we have Rob Knox’s wonderful work, and Tapji Garba’s work on racial slavery as a social form: the mode of social mediation determining the specific character of political-economic and ideological production within a society (Garba, unpublished paper linked here). Through law, subjectivity has everything to do with how we conceive of our liberation. 

What I add into the mix of studying subjectivity from the point of view of race is the social forms of sexuality and its relationship to the commodity form, as mediated (actualised – produced) through law. It is my argument (and you can follow my further work on this here and here) that our (here: Western/European) continued ideological (libidinal) attachment to law (against better knowledge), has something to do with the way that law has become tangled up with, served to define, and further define, our (legal) subjectivity in line with liberal/neoliberal notions of the ‘authentic self’. It is a form of internalised liberal imperialism, legal ideology grafted onto our bodies. We must decolonise our minds, as well as our world. Trans Marxists and Radical Transfeminists such as Nat Raha and Harry Josephine Giles point the way, in their work on the communizationof gender as well as full-spectrum abolition

Afterword post-ICJ interim order of 26 January 2024: International law lives to see the day, thousands of Gazans don’t

On Friday 26 January, the day before the annual Holocaust Remembrance Day, but also, Australia Day or the day indigenous people mark as Invasion Day or Survival Day, and, Angela Davis’ 80th birthday, the ICJ gave its interim ruling in the case brought by South Africa. 

Finding a way out of saying so explicitly, it did not order Israel to halt its military operation in Gaza. Although many were disappointed by this, others admitted that, realistically, they never expected the court to order this in the first place, that this demand was only included on a question of principle. Because it was the Gazans’ top demand. Within the mixed, though mostly positive response to the ruling, activists around the world discussed the tactical demands they would now make of their own (complicit) governments, banks, arms companies, universities, pension funds. Now that the ICJ has said there is a plausible risk of genocide, there is a strong case, a plausible risk of complicity. 

After 100+ days of genocide, gaslighting and repression by complicit Western powers, it is clear how badly pro-Palestinian (or anti-genocide) advocates, wanted to hear something positive from the court. The court gave us just enough. Just enough to maintain its (and international law’s) legitimacy. Just enough recognition of what Gazans are going through and just enough condemnation of Israel’s maybe-genocidal statements.

At the same time, the day of the ICJ interim ruling, Israel reportedly killed 174 people in Gaza. Moreover, despite the ICJ’s order to allow adequate humanitarian aid into Gaza, Israel persuaded the US and several other Western governments to cut funding to UNWRA, the largest humanitarian agency in Gaza, directly involved in stemming the impending famine, and supporting Palestinian refugees in several other countries including Syria, Jordan and Lebanon. This is a calculated step to strike of the global agenda the 75 year old ‘Question of Palestine’, including the highly ideologically significant Palestinian refugees’ right of return. 

This morning, Israeli special forces dressed in doctors’ uniforms and fake beards, broke into a Jenin (West Bank) hospital and extrajudicially executed three Palestinians in their hospital beds, an action that received congratulations from Israeli Minister for National Security Itamar Ben-Gvir on X, days after he celebrated at a conference on the resettlement of Gaza, and a week after he tweeted, “Hague schmag”. The hospital assassination, a daring, theatrical action, to distract from the banality of the everyday genocide. It’s truly giving “Hague schmag”.

The faith we place in international law and the courts is in part (and this comes from a good place), a refusal to believe that things are really as bad as they are. In the midst of despair, we cling on to our attachment to order and reason. This, though, is a denial and erasure of both history and the present. What is happening in Gaza today has happened to countless societies throughout history, and is happening right now elsewhere too. Not just happening, but being done

In my monograph I proposed a radical Pashukanite theory of international law, and as part of that, a conception the ‘humanitarian’ side of international law as ‘canned morality’, served up in the bourgeois theatres of justice. Most powerfully, these spectacles (or prayers, sermons) unite us with, or restore our attachment to (faith in) the current order of things, proclaiming the truth of the system, with a promise of justice, if only everyone complied. It is this that legitimises (through which we legitimise) the entire system, and concept, of law, the rule of law which is no other than the rule of capital in our modern world.

Those living through the current Gaza genocide, citizen journalists Bisan and Motaz, have said it: “The ICJ is a lie”, “Fuck the ICJ”. It is time the curtain came down on Europe, on liberalism, on the old order. This is up to us. If we shift our gaze away from looking up to the state, and look around us, in our communities, our workplaces, unions, mutual aid groups, global solidarity networks – we see that everywhere, everyday that new world is already being built. Yalla, what are we waiting for?

[You can read my more detailed comment on the ICJ case here.]

1 Comment

  1. Brilliant

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