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Law(Yers) Congealing Capitalism: on the (Im)Possibility of Restraining Business in Conflict Through International Criminal Law

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Law(Yers) Congealing Capitalism: on the (Im)Possibility of Restraining Business in Conflict Through International Criminal Law Law(yers) congealing capitalism: On the (im)possibility of restraining business in conflict through international criminal law Grietje Baars UCL Submitted for the degree of PhD (Laws) 1 I, Grietje Baars, confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. 2 Abstract The theme of ‘business in conflict’ has become a ‘hot topic’ and the subject of many academic and policy publications. The trend in this literature is to conclude that ‘corporations have (or should have) obligations under international human rights and humanitarian law’ and that ‘corporations must be held to account’ through law, for example for ‘complicity in international crimes’. With this thesis, I aim to present a counterpoint to this literature. Employing dialectics as methodology and a theoretical frame based on Pashukanis’ commodity form theory of law, I investigate the progeny and role of law as sine qua non of capitalism. I establish that capitalism’s main motor, the corporation, was developed as a legal concept to congeal relations of production and minimise risk-exposure of the capitalists. Moreover, the corporation served as an instrument of imperialism and the global dissemination of capitalist law. Post WWII international criminal law (ICL) was developed ostensibly as an accountability mechanism. I show that it was used, contrary to early indications, to conceal rather than address the economic causes and imperialist nature of the war, so as to enable the continuation or rehabilitation of trade relations. ICL has been institutionalized over subsequent years and has continued to immunize economic actors from prosecution, including in the ICTR and ICTY. Yet, ICL’s strong appeal has led ‘cause lawyers’ to seek corporate accountability in ICL, largely unsuccessfully. Combined with (legalized) ‘corporate social responsibility’, ‘corporate accountability’ discourse risks becoming an instrument of legitimization for the liberal capitalist enterprise. Especially, including the corporation as a subject of ICL would complete its reification and ideological identity as a political citizen exercising legitimate authority within ‘global governance’. In conclusion, while emancipation from corporate violence cannot be achieved through law, its promise lies in counter- systemic activism and, with that, human emancipation. 3 For my parents The law locks up the man or woman Who steals a goose from off the common, But leaves the greater villain loose Who steals the common from under the goose. (15th Century English rhyme, anonymous) Acknowledgments On the long journey with this thesis I have sought out and encountered many fascinating, inspiring and stimulating people from all walks of life: academics of every type including lawyers, anthropologists, sociologists and historians, judges, prosecutors and defenders, trade union activists, parliamentarians of all colours and nationalities, squatters and anarchists, ex-detainees and prisoners of war, generals and footsoldiers, refuseniks and resistance fighters, company directors and private military contractors, middle management and civil service bureaucrats, cause lawyers and City types (and those that are both). I am grateful to all of them. In particular, To those fighting for a better world each in their own particularly heroic and inspiring way (in order of appearance): Anne Paq, Ward Ferdinandusse, Lymor Goldstein, Munir Nusseibeh, Mahmoud Abu Rahma, Yehuda Shaul, Liesbeth Zegveld, Francesca Marotta, Richard Goldstone and Jonathan Pollak. And to those colleagues and friends who continue to be an every day inspiration: my (patient!) supervisors Catherine Redgwell, Riz Mokal and Iris Chiu, dear friends and allies Vivian, Sara and Anne, Liza, Amber, Rachel, Mohammed, Simon, Smadar, Sarah K and Antonia; and in Berlin: Kamil & Sarah, Benedikt, Tsafrir, Joel, Anna, Üner and their crew, in London and beyond, Alex & Suzanne, Agnes, Arthur and Arif, Holly & Ben, Miri & Indrajit, Ben H., Frank “Abu Leo” and most recently David. My Diakonia colleagues, especially Wa’el and Aida, at Al-Quds, Radi “Shweijia”, Nagham “the Clinic changed my life” and Fady, and my new colleagues at City University especially Chris Ryan, Riccardo Montana, and Ioannis Kalpouzos. Scholars and friends who played an important role in shaping my thinking, Jason Beckett, Akbar Rasulov, Jörg Kammerhoffer, Aeyal Gross, China Miéville, Robert Knox and Hannah Franzki. Gracious hosts, Mudar Qassis at the Institute of Law, Birzeit University, Muhammed Shelaldeh (who offered to find me a husband so that I would stay) at the Palestinian School of Law, Al-Quds University, Assaf Likhovski at the CEGLA Center, and Ronen Shamir in the Sociology Department at Tel Aviv University and Danny Evron and Yuval Shany at the Miverva Center for Human Rights at Hebrew University, Florian Jeßberger and Jochen Bung at Das Franz-von-Liszt-Institut for International Criminal Law, Humboldt University, Berlin. And finally, and above all, Jasmijn, Marijn, Eva, Kobus, Brom, Kees en Annet. 4 TABLE OF CONTENTS Abstract .......................................................................................................................... 3 Acknowledgments ......................................................................................................... 4 List of abbreviations ..................................................................................................... 9 Chapter 1 Introduction “Das Kapital, das immer dahinter steckt” ....................... 12 1 Introduction ................................................................................................................... 12 1.1 “Global corporate rule is here” and the liberal approach ..................................... 12 1.2 Counterpoint: The Question ................................................................................. 14 2 Theoretical framework ................................................................................................. 16 2.1 The commodity form theory of law – a brief outline ........................................... 18 2.2 The form and violence of law: property (and sovereignty) as ‘mine-not-yours’ . 20 3 “Developing the form on the basis of the fundamental form” .................................. 21 3.1 Law: Inter-polity law and proto-law ..................................................................... 21 3.2 Global classes ....................................................................................................... 22 3.3 Conflict, violence, imperialism, structural violence ............................................. 23 3.4 The commodity form theory and corporations ..................................................... 24 3.5 The commodity form theory and (international) criminal law ............................. 24 4 Beyond ‘nebulous left functionalism’: Further considerations on Marxism & law 25 4.1 Law ‘congealing capitalism’: Determination, overdetermination and totality ..... 25 4.2 Lawyers congealing capitalism: Who constructs the structure? ........................... 27 4.3 Law’s emancipatory potential queried .................................................................. 29 5 Methodology .................................................................................................................. 30 6 Thesis structure– the long and short story arcs and themes ..................................... 32 7 Impact: And the point is to change it? ........................................................................ 34 8 Future research ............................................................................................................. 35 9 A note on references and language .............................................................................. 35 10 Law ............................................................................................................................... 35 Chapter 2A: The roots, development and context of the legal concept of the corporation: The making of a structure of irresponsibility .................................... 36 1 Introduction to A and B ............................................................................................... 36 2 Introduction to A: The ‘back story’ of the legal concept of the business company 38 3 Epistemology ................................................................................................................. 40 3.1 Writing the history out of the corporation ............................................................ 40 3.2 Theory and the ‘big idea’ of company law ........................................................... 42 3.3 Writing the history back into the corporation ....................................................... 44 4 The creation of market society ..................................................................................... 46 4.1 The legal personality of commercial polities ........................................................ 47 4.2 Primitive accumulation and the creation of the working class ............................. 54 4.3 Calculable law, risk accounting and “accountability” .......................................... 55 5 From the Joint Stock Corporation to the MNC ......................................................... 58 5.1 Merchant Adventurers, Inc. .................................................................................. 58 5.2 Bubble Aftermath: Effects on company
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