A soldier from Sudan. A local academic argues that international law is generally framed in positive and uncritical terms
“Many successive administrations of the South African government have upheld a policy which has now come to be denounced internationally as a crime against humanity. However, insofar as undermining the rule of law and the contemptuous disregard of judgments of courts of law are concerned, no government has throughout the history of South Africa stooped as low as the one currently in control.”
CLR James once wrote that the miracle of Herman Melville was that “a hundred years ago in two novels … and two or three stories, he painted a picture of the world in which we live, which to this day is unsurpassed”. James was being modest; it was his brilliant rereading of Moby-Dick that gave it critical purchase over the world he inhabited in 1952 – of totalitarian madness, colonial revolts and intellectual stagnation. A world that, in many respects, we still inhabit today.
In a similar vein, the opening quotation – made by a very accomplished South African international legal scholar about South Africa’s failure to arrest President Omar al-Bashir of Sudan – similarly paints a vivid picture of the world in which South African international lawyers live (or wish to live), and have for some time.
However, this statement does not require the brilliance of James to reread it. I’ll give it a try: failing to arrest al-Bashir was the most significant and contemptuous legal event in the history of South Africa. It was contemptuous principally for its undermining of the rule of law and the courts, and portentous of the larger threat of the government “currently in control” to this rule of law.
Read in this way, the statement represents two features of how international law is taught and practised in South Africa today.
The first is its uncritical history of international law – in this reading, apartheid is situated in opposition to international law. In the above quotation, international law comes after apartheid, retrospectively denouncing it as “a crime against humanity”. Apartheid was not, it seems, an international legal event.
Less confident histories of this sort recognise that apartheid was an “international crime”, but still position international law generally in wholehearted opposition to it. The relationship is more complex than that.
A critical history would situate apartheid as the continuation of the project of international law – a project that facilitated colonialism and then apartheid by denying the sovereignty of non-European peoples in favour of European rule.
The second recognisable feature of the quotation is its uncritical regard for the rule of law generally. Read the second sentence again – the noteworthy “victims” of both apartheid and the failure to arrest al-Bashir are the rule of law and the courts.
Apartheid is, in fact, introduced through its relationship to law: not as a policy that inflicted untold suffering, but rather a policy designated as such through law by the international community. This “centring” of law not only inadequately frames the problem by omitting the economic, social and political nature of apartheid but it also narrows the acceptable avenues of redress.
A combination of these two “broadly held beliefs” allows the international legal scholar in question to reach the stupefying conclusion that failing to arrest al-Bashir was the “lowest” point in South Africa’s legal history.
However, even if one accepts that apartheid was not an international legal event and that the rule of law is an inimitable good, it’s hard even to fathom the kind of calculus – purely legal, let alone moral – that yields such a conclusion.
The conclusion erases an unforgiveable amount of racial oppression and suffering at the hands of law, international and domestic.
Be that as it may, the quotation is not idiosyncratic in the least, but is rather symptomatic of how international law continues to be taught for the most part in South Africa.
First, the history of international law is taught in a Eurocentric and uncritical fashion, ignoring histories that take the project’s colonial roots seriously, even when “mainstream” international legal scholars worldwide have begun to do so.
Second, international law is generally conceptualised in positive terms – again, ignoring critical theoretical accounts that are less confident about the international rule of law.
This construction of international law is not limited to “academic” publications – it is reflected in public commentary on international law issues from inside and outside the academy.
The negative results of this construction are numerous, but two are of immediate significance. First, it leaves the public – who rely on the expertise of these scholars – ill-equipped to discuss and debate the failure to arrest al-Bashir, or South Africa’s withdrawal from the International Criminal Court (ICC).
First, it does so by oversimplifying the many complex issues involved, narrowing down the accepted discourse and overstating the level of agreement among international lawyers outside South Africa.
Second, it encourages a view of international law that is both uncritical and Eurocentric. In this regard it recalls Joel Modiri’s recent charge that “the majority of academics, being products of a curriculum in which only the ideas of white Europeans and Americans count as knowledge and in which the historical and present influence of colonialism and racism are elided, are simply not sufficiently trained or literate in non-Eurocentric paradigms of thought emanating from the Global South”.
As such, the call for decolonisation is a “searing challenge to academics to seriously reflect on what we teach and its relevance to our specific location and social context”.
To date, as teachers of international law in South Africa, we have failed to take up this challenge in any meaningful sense.
This is not solely about critical pedagogy, it is about our responsibility as scholars who influence public debate. For James, one of the “triumphs” of Melville’s Moby-Dick is his depiction of the narrator, the intellectual Ishmael, and his relationship to and with the ship’s vengeful and totalitarian Captain Ahab. As a “disoriented intellectual” who “believes in nothing”, Ishmael himself becomes “an intellectual Ahab”.
However, the uncritical acceptance of international law with something approaching religious conviction, blind to its pernicious past and problematic present, courts a totalitarianism of a different sort.
We international lawyers – as we teach, write about and engage in public debates on these issues – should be mindful not to become intellectual Ahabs of either sort.
Christopher Gevers is a lecturer in the University of KwaZulu-Natal’s school of law and is currently undertaking a residential fellowship at Harvard Law School’s Institute for Global Law and Policy. These are his own views