A Response to the Symposium on Struggles for the Human

On the anniversary of publication of Struggles for the Human: Violent Legality and the Politics of Rights (Duke University Press, 2024), it is a pleasure to respond to the contributors to the symposium. I want to do so, however, in the light of events unforeseen at the time the book went to press: the internationally-coordinated destruction of Gaza and the abject failure of human rights and international law to stop it.  As Christine Schwöbel-Patel comments in her contribution to the symposium, many international NGOs and humanitarian organisations seem to have given up on human rights in their response to atrocity on this scale, while the International Court of Justice (ICJ)’s finding of a substantiated prima facie risk of genocide has done little to arrest the complicity of Western states.  

From the perspective of Struggles for the Human, none of this is a surprise. While some have argued that the unprecedented level of diplomatic complicity in the genocide marks the disintegration of the international human rights system, and ‘rules-based order’, the reality is more complex.  Human rights and international law have long been a mask for imperialist domination. Indeed, one contribution of Struggles for the Human is to show that the high watermark of human rights at the turn of this century was in fact the point that human rights were privatised by corporations, a means through which the idea of ‘no alternative’ to neoliberal necro-economics was entrenched, alongside death with impunity for those who resist violent expropriation.

Yet, this is not the full story. Human rights also carry the imprint of histories of struggle against imperial power.  South Africa’s application to the ICJ was not the expression of a naive faith in human rights but a determinedly anti-colonial mobilization of international law that has since been lent credibility by the ICJ orders of January and March 2024.  It is part of a resurgent Third Worldist movement that seeks to remake international law and build a more principled international order based on the dignity of all human beings.  This includes resistance at the United Nations Human Rights Council to the corporate privatisation of human rights, including an initiative led by South Africa and Ecuador to develop a binding human rights treaty for corporations.

Nevertheless, even these efforts fall short of the deployment of human rights as rupture, which Illan rua Wall identifies at the heart of Struggles for the Human.  Through unofficial courts such as the Permanent Peoples Tribunal, movements also use innovative legal argument beyond the confines of existing jurisprudence to expose the violence of a colonial international economic order as it is felt in material conditions, as well as impossibility of remedy within the terms of the law itself.  In Colombia, rulings of the tribunal have drawn on legal scholarship and genocide studies to make findings of genocide within broader terms – where, for example, the elimination of an indigenous group was a foreseeable consequence of corporate activities and state policy – and to argue that we should take a moral stance toward the prevailing economic model akin to that taken toward the gravest international crimes.

These ‘counter-legalities’, as I call them, are not just symbolic exercises in critique.  They are closely tied to place-based struggles for alternative political economies that involve explicit contestation of the vision of the human at the heart of human rights and development discourse. Yet, at the same time, these movements also appeal to human rights, including ‘strategic litigation’ in official courts, within the terms of prevailing legal narratives.

Here, we come up against a challenge that Schwöbel-Patel poses in her contribution: is it possible to simultaneously show how law is complicit in death and appeal to the law as a remedy against this complicity?  While Schwöbel-Patel acknowledges the potentially mobilising force of law as rupture, she asks whether understandings of harm and responsibility will not also inevitably end up being re-coded by the law – individual holder of rights, individual perpetrator – so that structural violence is occluded, collective mobilisation undermined?  This is a tension that was central to the motivation for Struggles for the Human and a difficulty that any purportedly anti-colonial mobilization of international law and human rights has to address.

For instance, when the Colombian Foodworkers’ Union engaged in high-profile extraterritorial litigation against Coca-Cola for killing of union leaders and other abuses, they persistently faced the problem that their attempt to ‘expose the empire behind the multinationals’ through law was re-coded within a liberal imaginary of human rights.  In the end, the remedy on offer through the law (a substantial settlement from Coca-Cola) was something they had to reject because the conditions on the deal would have forced them to stop speaking out within their own terms.  Despite making resource to litigation, the union insisted that remedy had to – amongst other things – involve a reversal of the neoliberal reforms that had been achieved through the a suppression of union organisation so severe that the term sindicalicido – or ‘trade union genocide’ was coined to capture its intensity.

Nevertheless, as a union with a rich discourse of class struggle, popular education and grassroots internationalism, the Foodworkers were also able to use the publicity around the litigation to build strong international anti-imperialist solidarity.  In other words, both things can happen simultaneously: the legal re-coding of struggle and a more ruptural re-narration of what is at stake.  It is not either/or: different narratives may prevail in different spaces at different times, depending on the balance of forces at play.  As Wall puts it in his reflections on Struggles for the Human, ‘we need to learn to traverse rights, moving in through and beyond them’.  

The issue of re-coding is a more general problem with the ‘anti-impunity’ narrative of human rights that rose to prominence in the 1990s, which Schwöbel-Patel herself has discussed eloquently elsewhere. Even South Africa’s case at the ICJ risks reaffirming the idea that the international ‘rule of law’ is neutral and benign, at the same time that it must deploy excessively demanding standards of (individual) genocidal intent on the part of Israeli state representatives that obscure a longer trajectory of genocidal settler colonialism and the complicity of the US and other Western states and corporations.  

Yet, here too, the re-coding that takes place is not final or absolute.  As Maryam Jamshidi argues in a recent article, international law is an important tool in the struggle for Palestinian liberation, despite its limitations. The recent rulings of the ICJ, including the Court’s ruling on the illegality of the occupation, are also significant for the wider project of reshaping international law within anti-colonial parameters.  The implication of the argument in Struggles for the Human is that these cases should considered within the context of wider struggles for Palestinian liberation that simultaneously endorse, exceed and contest the legal re-coding that inevitably takes place in official court fora.  For instance, the ICJ’s ruling that it has prima facie jurisdiction under the genocide convention has been an important tool for Palestinian solidarity in that it supports campaigners’ invocation of the duty to prevent genocid and opens space for wider arguments about the genocidal dynamics of occupation prior to the escalation of October 2023. 

This brings me to Bal Sokhi-Bulley’s query as to whether my intervention might have been more deliberately placed within a register ‘after rights?’  (here, Sokhi-Bulley refers to the recent special issue she edited with Louiza Odysseos).  If the ‘after’ does not imply a linear temporal sequencing but is understood more as a provocation to traverse rights, in Wall’s terms, to imagine, in Sokhi-Bulley’s terms ‘how we might live better together, both beside and beyond the confines of legal rights’ or, in Sumi Madhok’s terms, as a anti-imperial project of re-making rights and justice, then indeed ‘after rights?’ might also capture the ambiguous, often ruptural, deployments of rights in Struggles for the Human.  

Sokhi-Bulley’s own radical reimagining of rights through a political spirituality of collective care also resonates with my discussion of how human rights are deployed within struggles for life, territory and alternative social relations based on harmonious relations between humans and with nature.  I consider how movements invoke Buen Vivir (an open-ended ‘horizon of desire’ inspired by Andean cosmovisions), while Sokhi-Bulley articulates her re-imaging via the Sikhi concept of hukam as ‘[a]kin to obligation but infused with a cosmological sense of mutual flourishing’.  Sokhi-Bulley also highlights an element of this reimagining of obligation central to Struggles to the Human. It opens space for a subject of ethics other than the sovereign individual and a path to what I call ‘insurgent humanism’: a praxis of being human grounded in immanent critique of existing social relations as lived and felt in material conditions that is also praxis of hope, reaching beyond critique to a deeper basis of obligation that is part of the fabric of the world.

Sokhi-Bulley asks how an insurgent humanism might translate to other spaces, finding her own response in ‘spaces of radical hope’ we have shared at the Sussex Palestine Liberation Encampment and the Brighton Reading Room, part of a network of community reading rooms in collaboration with Pluto Press, which has also become a locus of international solidarity with struggles in Colombiaand Palestine.  While I endorse Sokhi-Bulley’s reading of these spaces, it is important to emphasise that this does not imply glib affirmation of the value of solidarity and resistance. On the contrary, the ‘pernicious optimism’ that I describe in Struggles for the Human (in relation to cosmopolitan fantasies of human rights) is also an appropriate characterisation of much radical left politics at this juncture.

In the face of climate crisis, techno-financial domination, growing far right hegemony and a sense of impotence in the face of multiple genocides, it is easy to attach to prefigurative ‘alternatives’ and gestural solidarities, to fetishise critique, or to become enclosed in a world of digital denunciation separated from actual lives and deaths.  Hope, by contrast, is something born and nurtured in the darkest hours, in the absence of available solutions.  It is a work of love, of commitment to good and to the struggle for a better life that does not shy away from the reality of death and devastation. 

This is something I reflect upon in Struggles for the Human in relation to struggles  in Colombia, but it was powerfully expressed byPalestinian scholar Amani Tawahina in a recorded message from Gaza to the Brighton Reading room event on Palestine. Tawahina reflected on the significance of the works of Palestinian writer Ghassan Kanafani and on how Kanafani immortalised in his poetry a tearing of the soul between escape and endurance, between the seductions of a distant paradise and the harsh reality of the present.  Kanafani, she reminded us, ‘was a fighter, and fighting entails death.  He was a refugee, and returning home entails death.  He was committed, and commitment presupposes death’.  Yet, Kanafani’s enduring legacy after his 1972 assassination is also, Tawahina, stressed, testament to the futility of the attempt to obliterate the free voice of Palestinians, the yearning for a better life and the belief that – even if it takes a long time – Gaza will rise again.

Tawahini’s words reminded me of those of another poet and intellectual of the left, Alvaro Marín, who gave me enormous encouragement to finish Struggles for the Human before he was found dead in his home during Colombia’s national strike of 2021. Some years ago, I translated Marín’s poem, Canción para Eliana (Song for Eliana) in which he speaks of the war in Colombia to his dead little girl, killed alongside her mother at the age of just five:  ‘I have to confess that I am dead. I am dead and I sing… We sing so that the light may be… We sing to light a flame at the end of the night’.