International law and ‘European civilisation’
Despite its promises of universalism, international law has clearly not yet shaken its foundation as a racial order.
Author:
8 April 2022
In 1946, shortly after putting the human rights gloss on the UN Charter’s Preamble, Jan Smuts bemoaned the fact that the “noble experiment” of South Africa – as “a little epic of European civilisation on a dark continent” – was under threat from the claims for racial equality by emergent Third World states.
A few weeks ago, the enduring understanding of South Africa as a threatened outpost of the West was publicly dramatised as the Ukrainian flag was projected on to the Cape Town City Hall. Mayor Geordin Hill-Lewis said it was an act of solidarity against “imperialism” and “violence”. The projection of the flag on to the seat of municipal power coincided with the South African government’s decision to abstain from voting in an extraordinary United Nations General Assembly resolution condemning Russian “aggression against Ukraine”.
The decision to abstain – on the basis that the resolution did not “create an environment conducive for diplomacy, dialogue and mediation”, sidelined the UN’s peace-making mechanisms and would likely further escalate the conflict – has been roundly condemned in South Africa’s media, much of which explicitly understands and presents itself as part of the West.
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The choice to project the Ukrainian flag was instructive. Historically, public opposition to war rallies under the idea of peace. It’s difficult to reimagine opposition to the Iraq war, for example, taking the form of large numbers of protesters clashing with the police in London, Melbourne or Cape Town while waiving the Iraqi flag. There is no possibility that the Palestinian flag would be projected on to City Hall during one of Israel’s periodic sieges, or the flag of Yemen as it is bombed by Saudi Arabia, with United States backing.
Attempts to note these double standards have been inevitably, and swiftly, dismissed as a pathological moral failing and “intellectually vacuous whataboutism”. But if we rule such comparisons as inherently unacceptable, we miss something important about the nature of the response to the invasion of Ukraine, and about international law.
Pause for thought
Western powers have made it crystal clear, in words and deeds, that there is something distinctive about this invasion because it is taking place in Europe, involving European sovereignty and white lives. In light of this, the projection of a European flag on to a public building should give us pause: not about equal respect for sovereignty, but unequal elevation of European sovereignty (and white lives) and the violence it has wrought historically and in the present.
The claim that there are persistent, structural inequalities between the benefits and protections afforded by international law to “European” sovereigns and that of Third World states – and, in turn, to that of their racialised populations – is an axiom of scholars writing in the tradition of Third World Approaches to International Law. One such scholar, Antony Anghie, has illustrated how “many of the basic doctrines of international law – including, most importantly, sovereignty doctrine – were forged out of the attempt to create a legal system that could account for relations between the European and non-European worlds”. Both the doctrine of sovereignty, and “the West”, were “constituted through colonialism”, as it was in contradistinction to their putatively “uncivilised” Other that Europeans came to know themselves as civilised, sovereign and “white”. Moreover, Anghie shows how these “colonial origins” of international law “create a set of structures that continually repeat themselves” all the way to the present.
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Therefore, calling attention to a double-standard in responses to international events – particularly those parading under the sign of European sovereignty – as manifestations of the underlying colonial structure of the international order, is neither “intellectually vacuous whataboutism” nor a pathological moral failure. It is the expression of a long tradition of moral and intellectual resistance to that manifestly unjust order.
For example, in 1917 one of the progenitors of this tradition, the great African-American intellectual WEB Du Bois, writing amid the rubble of World War I, declared: “Behold little Belgium and her pitiable plight; but has the world forgotten Congo? What Belgium now suffers is not half, nor even a tenth of what she has done to Black Congo since Stanley’s great dream of 1880.”
Du Bois’ point was not to disregard the suffering of Belgians, or justify the actions of the Central Powers, but to call attention to an emerging unjust and racialised international order in which there were “no Red Cross funds” for the numerous colonial wars that had taken part in “a dozen lesser places” in the preceding decades (and, more specifically, to call out the role of global white supremacy – or “the culture of white folk” – in that international order’s construction and operation).
Not a fringe position
Asking why some are suddenly so moved to be in solidarity with Ukrainian sovereignty and suffering is particularly important and urgent for a number of further reasons. One is that the condemnation of the Russian invasion by Western states and public commentators has been riddled with assumptions and claims about Western civilisation. Russia been labelled as “uncivilised” and the West as “civilised”. This is not a fringe position. Shortly after the conflict began, the UN High Commissioner for Refugees told the BBC that the refugee crises had “special features” because it was happening in Europe.
Ruling comparison illegitimate inevitably results in glossing over or mischaracterising the violence committed in the name of Europe, or “the West” (which, as Édouard Glissant pointed out, is a project not a place). This is not solely a matter of, say, ignoring the illegal and catastrophic US-led invasion of Iraq in 2003. It also masks foundational elements of the horrific situation in Ukraine: in large part a proxy war between Russia and the US and Nato, a fact conveniently effaced by the commentariat’s collapse into the crudities of civilisational discourse.
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Moreover, the reports of mistreatment of “non-Europeans” trying to flee the violence in Ukraine, and in particular the refusal of border guards to allow them to enter neighbouring countries, illustrates how “Europeanness” is constituted by the violent expulsion of the Other and exemplifies the collective, continental project to keep Europe white through the racialised policing of its borders. This is not a case of a few bad apples bobbing to the surface in a moment of crisis. It is a systemic expression of the wider racial border project of “Fortress Europe”, in which white supremacy is “laundered through the prism of nationality” and institutionalised through the EU’s Commission Vice-President for Protecting our European Way of Life. The Guardian newspaper reported last year that EU member states had “pushed back” at least 40 000 asylum seekers during the pandemic, resulting in more than 2 000 deaths.
The Danish ambassador to South Africa was quick to call out its response to Russian invasion, in part by recalling his country’s role in the struggle against the “deeply unjust and racist” system of apartheid. However, in the name of maintaining its “Western” character, Denmark has recently introduced special “Ghetto laws” for what it designates as “non-Western” communities. UN human rights experts have suggested that these laws – which subject “non-Western” communities to forced evictions and harsher criminal sentences and impose mandatory instruction in “Danish values” for “ghetto children” from the age of one – amount to discrimination on the grounds of race, ethnicity and national origin. More candidly, they recall exactly that “deeply unjust and racist” system of apartheid.
Double standards
The project of Fortress Europe – in its internal and external dimensions – also has uncomfortable parallels to Smuts’ paranoia about the threats to “European civilisation”, and international law’s accommodation of his white supremacist project in response. In 1946, Smuts was concerned about India’s “vast millions” that were “invading, infiltrating, penetrating in all sorts of devious ways”, “the east coast of Africa from Mombasa to Durban, and ultimately to Cape Town”. His long-held view was that granting “equal rights for Indians in South Africa would lead to equal rights for Natives, and that would mean the end of South Africa”. In 1945, the “father” of international human rights law, Hersch Lauterpacht, cited Smuts’ concerns about “the whites [being] swamped by the blacks” to justifying the decision not to fully apply the “International Bill of the Rights of Man” to “sui generis” South Africa. According to Lauterpacht, doing so would result in “a consummation which would signify the end of [South Africa’s] Western civilisation”.
Despite its promises of universalism, international law has clearly not yet shaken its foundation as a racial order – as “the international society of the white race”, as it was described by one of its founding fathers, John Westlake (who taught Smuts).
Little of this nuance made it into the feverish responses from many South African international lawyers and public commentators. This shallow unanimity, and the extraordinary self-righteousness with which it has been marked, is in large part owing to the fact that many South African commentators and most of its international lawyers remain entranced by the “Northbound gaze”: looking to the West for their internationally significant events, moral direction and theoretical paradigms. This often puts the bulk of the commentariat in conflict with the government’s position on international issues (generally continentally derived). International lawyers have even struggled to remain consistent to their own positions; contradictions that are difficult to hide behind the supposed distinction between law and politics, or nostalgia for a caricature of president Nelson Mandela’s foreign policy that forgets his support for Palestine and Cuba and his commitment to “internationally agreed and nonviolent mechanisms” for achieving peace.
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The outrage that met the government’s failure to arrest former Sudanese president Omar al-Bashir, who is accused of committing international crimes by the International Criminal Court, was apoplectic. One international lawyer went so far as to declare that “no government has throughout the history of South Africa stooped as low as the one currently in control”.
However, since 2016, a European businessman who has already been convicted of international crimes by a Dutch court has found refuge in Cape Town – while his African co-conspirator, Charles Taylor, remains in prison – having avoided extradition on a specious international legal argument and one far more outlandish than the government’s legal justification for not arresting al-Bashir (an argument made on behalf of the convicted war criminal by the same international lawyer who upbraided the government for failing to arrest al-Bashir, and later tried to compel it to arrest Grace Mugabe). The Supreme Court of Appeal rejected this argument in September 2021, but to date Guus Kouwenhoven remains in Cape Town, and South Africa’s international lawyers remain unperturbed.
Similarly, the efforts of the South African government, along with the African Union, to seek a negotiated settlement in Darfur rather than adopt a purely punitive approach was met with derision by international lawyers, or simply ignored. However, as the Constitutional Court described it, South Africa’s own transition involved a painful, pragmatic decision to abandon the “standard justice script” (and international legal norms) that demanded a retributive response, “in the face of a political impasse that [bore] neither hope of certain resolution nor the avoidance of visceral strife” (a better description of the situation in Ukraine, one would be hard-pressed to find). Not only has this compromise remained largely unchallenged by South Africa’s international lawyers, they have rushed to reimpose the “standard justice script” in respect of crimes committed elsewhere and, for the most part, abandoned families of victims who continue to refuse to let apartheid-era international crimes lie. In fact, many of the cause célèbres of South African international lawyers post-1994 have an inconvenient or uncanny domestic shadow: too often involving making excuses or exceptions for white people and punishing Black people.
We need to confront the uncomfortable truth that too many of South Africa’s international lawyers and “thought leaders” remain enthralled by the West and illiterate in traditions of thought about the international order from the Global South. As long as this remains the case, and notwithstanding Smuts’ concerns, the epic of European civilisation on the “tip of the Africa” will continue – materially and ideologically.
