The Law of Humanity Has a Canon: Translating Racialized World Order into “Colorblind” Law

By Vasuki Nesiah

This essay is part of PoLAR Online Emergent Conversation 9, a special series of essays, On Reparations for Slavery and Colonialism.

The Official Medallion of the British Anti-Slavery Society. Josiah Wedgwood (1730-1795) and either William Hackwood or Henry Webber. Josiah Wedgewood produced the emblem as a jasper-ware cameo at his pottery factory. Although the artist who designed and engraved the seal is unknown, the design for the cameo is attributed to William Hackwood or to Henry Webber, who were both modelers at the Wedgewood factory. U.S. public domain work via Wikimedia Commons. {{PD-US-expired}}

We are black, it is true, but tell us gentleman, you who are so judicious, what is the law that says that the black man must belong to and be the property of the white man?

—Toussaint Louverture, “To Live Free or Die” [1]

Haitian revolutionary Toussaint Louverture’s 1791 declaration judiciously centers the intricate interdependence of the written and unwritten law of race and draws attention to the scandal of the free and rights-bearing “human” that was being heralded on both sides of the Atlantic, the Black Atlantic.[2] “We are black, it is true, but . . .” foregrounds race to interrupt the American and French revolutions’ celebration of the rights-bearing human, whose assemblage international law refers to as “humanity,” and whose wrongs it describes as “crimes against humanity.” The Haitian revolution went to the heart of the contradiction in this notion of humanity. Toussaint’s provocation marks how that unmarked law encodes racialized property into a notion of humanity, constituted through property relations between Black-humans-as-property and White-humans-as-property-owners. If the logic of the human rights revolutions is predicated on, and promises, the self-possession of the white man, it also implicitly, yet unequivocally, affirms and enacts the dispossession of the Black man.

Today the reparations claims advanced by Toussaint’s political descendants seek, yet again, to interrupt those logics—but with few illusions about the redemptive promises of international law. Their inheritance includes the memory that both slavery and its abolition were articulated through law—just as the denial of its own racialized power is at the heart of the “force of law” and the heroic stories it tells about abolition today.[3]

The slave trade continues to haunt histories of the politico-legal subject “humanity” in international law—histories that reach back to claim their humanist origins in its abolition. These revisionist histories treat abolition of the slave trade as signifying the salutary juridical and moral promise of international law. This haunting speaks to a racialized text that has a particular grammar, juridical and ethical, that still shapes central features of contemporary international criminal law (ICL) and its claims to act in the name of humanity. The repression of race in the historical narrative of then and now is a precondition for telling the story of empire and slavery in the mid-Atlantic as a story of race-transcending emancipation. To enact that repression and render race invisible in the work of the mixed tribunals, which prosecuted slave traders after abolition, requires an elaborate defensive structure. The notion of humanity helps forge those defences both in the histories told by the discipline, and in the memories it represses.

Dominant histories of human rights and humanitarianism frame the French and American revolutions as founding moments in shaping the notion of humanity, and celebrate the movements that these revolutions empowered for abolishing the international slave trade as a crime against humanity. In this vein, Lynn Hunt’s story of the invention of human rights focuses on the French revolution and the “rights cascade” it engendered (Norton 2008). Adam Hoschild (2012) treats the movement to abolish the slave trade and the passage of the 1807 abolition legislation as the first human rights movement, extending the logic of the Atlantic revolutions. [4] Jenny Martinez (2012) describes the slave trade as the “original crimes against humanity” (CAH) and the “mixed tribunals” established to monitor abolition as offering a “bridge” to the international criminal court (ICC) of today.[5] These tribunals were established through treaties between European powers, with jurists from multiple jurisdictions to preside over the prosecution of slave traders violating the abolition. In her telling, these tribunals’ “bridge to the future” international criminal court is constructed by judicious institutional purpose in the name of humanity.[6]

In a context where the ICC has been accused of anti-Africa bias and a neo-colonial prosecutorial record, the “bridge” offered by the mixed tribunals is seen to carry with it redemptive inspiration, embroidering human rights and humanitarianism on international law’s future. Martinez (2012) and others have done important work on how the category of race travelled in different European slave trade systems, and the particular dynamics of racialized slave trade.[7] However, the potential they attribute to the human rights revolutions and the mixed tribunals is precisely their transcendence of race in the name of humanity. My focus in this essay is on that work of invoking race-transcendence and the mixed tribunals as the origin story of international criminal law, and the laws and norms of CAH. Recognition of CAH may well be a bridge between mixed tribunals and the ICC, but the story it tells is not a testament to the law of humanity but an indictment.

The central conceit of this intervention is that the conception of humanity invoked by ICL historians carries meanings that had no explicit racial reference but were saturated with racial significance.[8] Both ever-present, and ever-elusive, the story of racial and colonial violence has a schizophrenic life in international criminal law. This essay excavates this double-life by tracing not race, but its repression; in particular, by attending to the ellipses and wrinkles in historians’ projection of ICL’s origins to the mid-nineteenth century legal regime instituted in the name of a colorblind humanity. The notion of humanity posited as the “origin” of human rights and humanitarianism and signifying the promise and potential of international law is thus shaped by a redemptive universality and a pivotal erasure of racialized power. Richard Delagado and Jean Stefancic’s discussion of American jurisprudence speaks of how the very language of law carries with it a canonical interpretation predicated on silencing questions of race and power: “The law does have a canon. It consists of terms like ‘just,’ ‘fair,’ ‘equal,’ ‘equal opportunity,’ ‘unfair to innocent whites,’ ‘nice,’ ‘deserving,’ and ‘meritorious,’ all with canonical meanings that reflect our sense of how things ought to be, namely much as they are.”[9] Racialized structures and imaginaries hide in plain sight in histories of these tribunals as an embryonic ICL—present everywhere yet not acknowledged anywhere.

The Work of Mixed Tribunals: The Crossroads of Slavery / Colonialism / Racial Capitalism

The Door of No Return in Ouidah, November 2007 (3)

The Door of No Return in Ouidah, Benin. By jbdodane. Twelve million Africans embarked in the slave ships from this beach. The commemorative Port de Non Retour (1995) marks the end of the four-kilometer Route des Esclaves from Ouidah, Benin.  CC BY 2.0.

Links between mixed tribunals and contemporary ICL may be tenuous in terms of influence and impact, but they are instructive in understanding the backstory (in this case the abolition of the slave trade in the name of the “human”) that contemporary ICL historians see as most relevant to ICL legitimacy. The weight of race as part of the legal architecture, as well as the everyday experience of the law, was nowhere more evident than at the doors of these tribunals. Here, white judges (presorted according to their nationality) determined the fate of black men and women hovering in an interregnum between a regime of property law and a regime of colonial law, either objects of property or subjects of colonial rule.

In 1807 when American and British legislators ruled the slave trade illegal, slavery itself was legal and thriving in Caribbean sugar plantations, Colombian gold mines, and American cotton fields. The triangular trade played a critical role in the political economy of the industrial revolutions that were the racial capitalist twin to the liberal revolutions of the late seventeenth century.[10] In the heyday of colonial expansion in Africa, the political economy of slavery and colonialism were braided in complex ways across the Atlantic; both were central to the social, political, and economic underpinnings of these twin revolutions.

As Eric Williams and others have argued, over the course of the early eighteenth century, the abolition of the international slave trade and the sustaining of slavery were mutually reinforcing projects for many.[11] A central dimension of the backstory to the abolition of the slave trade was the divergence between the political economy of the slave trade and the political economy of slave-holding. For some sectors of the North American plantation economy, and arguably for their industrial partners in Manchester and elsewhere, addressing their labor needs through the market in the “natural reproduction” of slaves already in America was more profitable than depending on the international trade. Advocates for abolition claimed abolition would help ensure that slaves in the national market would be more valuable. Moreover, the argument was that with abolition of the international trade, the financial economy and the humanitarian economy would find common purpose in incentivizing slave owners to ensure the health and wellbeing of slaves, and this in turn would make slavery a more sustainable socio-economic structure. Support for domestic slavery was not uniform, but it is significant that when the question of fighting for universal emancipation arose within the Society for Effecting the Abolition of the Slave Trade (the organization that led the British abolition movement), only one of the twelve founding members, Granville Sharpe, supported full emancipation.[12] Many other prominent supporters of abolition were not opposed to slavery as an institution. William Wilberforce’s parliamentary speeches made the case for how slave plantations in the West Indies would profit from the abolition of the international trade.[13] Many abolitionists argued further that eradicating the trade would help deter slave rebellion; they were keen to distinguish their humanitarian campaign from slave-led freedom struggles such as the underground railroad that pre-empted rescue with resistance or movements such as Nat Turner’s rebellion that challenged the rule of law as part of the problem not the solution.[14]  In sum, the humanitarian imperatives underlying the creation of the tribunals were conjoined with a complex of other dynamics in defining what was and was not a crime, including chattel slavery.

In her 1993 essay, “Whiteness as Property,” legal scholar Cheryl Harris described how racialization was not only about identity and affiliation but also, fundamentally, a project of stealth material distribution. While the centrality of racialization to the slave trade seems like banal commonsense, racialization is also central to the distributional logics of abolition, but here it travels under cover of race-transcendence. “Whiteness as property,” Harris argues, “has carried and produced a heavy legacy. It is a ghost that has haunted the political and legal domains . . . Only rarely declaring its presence.”[15] Remembering, naming, and rendering visible the work of racial architectures, and unpacking the mechanics of invisibility, exposes how racialized systems structure economic and social life. In this instance, amongst other interventions, this entails looking at the work of the tribunals in their representation of race-transcendent humanitarianism, as well as in their quotidian institutional practice where the privilege of whiteness, both extraordinary and banal, manifests in travel through nationality and property ownership without having to declare its presence. Evincing a different kind of invisibility, blackness hovered between object and subject, property and persons, past and future, an erased body on the free seas in the age of liberty.

The erasure of “race” from ICL history is partly effected by translating questions regarding the racial ordering of the Atlantic world into legal questions. Law (from the various pieces of national legislation abolishing the slave trade in Britain, the U.S., France, and elsewhere), and legal institutions (the tribunals as well as the national courts which encountered slave trade cases), provided different kinds of cloaks of invisibility that translated the politics of race into technical legal questions regarding nationality and jurisdiction, property and prize law, legal personhood and juridical freedom.

Jurisdiction and Inter-imperial Competition

HMS ”Brisk” and ”Emanuela”. British Royal Navy capture of a slave ship, also known as ”Manuela,” an 1854 extreme clipper originally named ”Sunny South.” The Royal Navy’s blockade of Africa began in 1808 after the U.K. banned the slave trade. Arthur H. Clark. Clark, Arthur H. (1910) The Clipper Ship Era, An Epitome of Famous American and British Clipper Ships, Their Owners, Builders, Commanders, and Crews, 1843-1869, New York and London: G.P. Putnam’s Sons, p. 252. U.S. public domain via Wikimedia Commons. {{PD-US-expired}}

The mixed tribunals were instituted under the aegis of Anglo-European and Anglo-American political, legal, and military authority over colonized territories on both sides of the Atlantic. Courts were initially established in Brazil (an Anglo-Portuguese court), Cuba (an Anglo-Spanish court), Surinam (an Anglo-Dutch court), and Sierra Leone (which included courts representing all of the parties). Over the following decades, Anglo-Portuguese courts were set up in Luanda, Boa Vista, Spanish Town, and Cape Town.[16] Emanating from imperial claims over land and sea, Europeans (often the English Navy) asserted jurisdiction over Africans on ships brought before the commission to sort them into being objects of property law or subjects of colonial law. If a ship was flying under the flag of one of the treaty parties and was detained under suspicion of being embroiled in the slave trade, it was brought to a tribunal where that country was represented. Thus Europe proceeded to carve up the Atlantic even before Europe carved up Africa at the Berlin conference.[17] The carving up of inter-imperial oceanic jurisdiction through tribunals anchor the role of Europe and America in a racialized structure of world order.[18] ICL historians describe how each exercise in adjudication regarding jurisdiction assessed the applicability of the law abolishing the trade by focusing on the registration of the ship, nationality of  ship owners, and the circumstances of capture.[19] The privileges, vulnerabilities, and hierarchies of racial difference were inscribed into legal personality, including matters such as nationality and ship ownership; thus race gets constituted in the details of that adjudicatory process without race having to be named. The law defining the crime was ostensibly race-neutral, utilizing language regarding abstract legal persons, their ownership claims over ships and people, and the nationality under which the ship was registered.

Thus an equally significant part of the story is that the causes of abolition and imperial consolidation converged. Scholars of law and empire have traced how the imperatives for extending and tightening British imperial reach led to a renewed interest in establishing legal authority over the high seas.[20] This generated increased investment in policing piracy and the slave trade, including establishing an enforcement mechanism through the high seas. The long reach of the Napoleonic wars, the war of 1812, and a series of other inter-imperial tensions also made the nationality of the court adjudicating such cases a particularly fraught issue. Setting up tribunals through bilateral treaties was one way of negotiating these tensions, and was particularly valuable to the British, whose imperial star was ascendant but not uncontested. 

Prize Law and the Market Logics of the Trade

Abstract of the evidence for the abolition of the slave-trade 1791 - To face Page 37 - 2

Abstract of the evidence for the abolition of the slave-trade 1791. Interior layout of a slave ship. Great Britain. Parliament. House of Commons. CC BY SA 4.0.

If the laws of jurisdiction and nationality are one dimension of the mixed tribunals legal regime, another dimension, equally saturated by competing imperial interests, was prize law. Naval patrols that captured slave ships became eligible for what was termed salvage, bounty, or prize money. Maritime law incentivized ships to intervene if they were in peril (because of storms and other natural causes), but also when they were suspected of illegal activities, including violations of the laws of war, neutrality, piracy, and the slave trade.[21] Prize law functioned in tandem with treaties regarding the abolition of the slave trade to further regulate what counted as legitimate and illegitimate capture, and if African men and women on board were freed or shipped back across the Atlantic with their captors.[22] There were immediate material rewards for the ship captains who pursued slave ships, if they were able to prove that the cargo was illicit. There was no question of recompense for the slaves themselves, even when slave rebellion had catalyzed the ships’ capture.[23] What was at stake in slave-trade contingent prize law was not just real property, but property in racial privilege—a racially contingent property right to implement the abolition.[24]

The precarity of personhood recognized in every tribunal is underscored when situating the law abolishing slave trade within the market logics of the trade. Prohibition drove up the price of slaves and augmented profit incentives. Accordingly, legal abolition played a complex role in the calculation of risk and profit as evidenced by the fact that twenty-five percent of all those enslaved through the transatlantic trade were transported in the half-century following its prohibition. In this way, the political economy of the traffic in persons cast its shadow in both the revenue and loss columns of the structural beneficiaries of the slave trade.

Decisions of the tribunal recognizing those captured on a ship as illegal trade conjoined a certain sort of juridical freedom for the captured, a certain sort of financial bounty for the patrolling officers, and a certain sort of normative legitimacy for the laws and institutions of abolition. This conjoining of the interests of the dispossessed and the self-possessed, the victims and the beneficiaries, is an “achievement” of the deracinated definition of law and humanity, and an achievement for this ICL origin story. Race is rendered invisible, even in legal principles (such as abolition) that purport to hold racism to account.

Legal Personhood and Juridical Freedom

Liberated Africans, Sierra Leone. CC0 1.0 Universal Declaration. From Liberated Africans, a web effort devoted to tracing the lives of more than 250,000 enslaved people liberated during global emancipation initiatives through archival documents.

The judicial construction of freedom is a powerful register through which law does its complex work of race translation. Captured Africans seesawed between legal property and juridical freedom, and concomitantly, seesawed between being valued as cargo and valued as persons. Their legal classification and fate depended on whether the captured African would be successfully trafficked to great profit, or forcibly freed if the ship was hauled into a tribunal. The majority of these ships had captured Africans on board, and the tribunals had to determine the terms of liability and free would-be slaves. During the course of their existence, the Sierra Leone courts determined that 65,000 Africans should be freed because they were being illegally trafficked. The courts in Havana, Rio, and elsewhere released another 15,000.

The men and women captured aboard these ships hailed from across the African continent. The tribunals ordered their release, but imposed no further responsibilities on the slavers to ensure they were able to go home. Thus, in the majority of cases, the “freed” found themselves hundreds or thousands of miles from home, in an environment where they did not speak the local language and did not have the resources or geographic knowledge to return to their families. By mid-century, Freetown had over 40,000 people from across the continent who spoke over a hundred languages.[25] This was symptomatic of the juridical production of “freed slaves” without race, history, or social context, their humanity reduced to their legal status and detached from their community. Rather than countering the dehumanization of slave relations, juridical freedom carried its own oppressive pathologies and justified its own unfreedoms, but this time as internal to the notion of the human.[26]

ICL historians and ICC advocates situate law as the great emancipator, and concomitantly, lament lack of access to law as the source of abjection. Yet the work of law may be more complex – foregrounding race here, backgrounding it there, predicating jurisdiction and standing on racial classification in one arena, and travelling as race- neutral in another. Once a captured ship traveled through the adjudicatory process, race was constituted as background fact rather than the product of legal processes; race was repressed and buried to present itself only as that which was overcome through judicial recognition of an African’s humanity. The maldistribution of the profits of legitimacy for law and legal institutions in historians’ accounts of the tribunals can be tracked to the ICL today. The tribunal judgements are invested with authority as a standard-bearer of an idealized notion of a redemptive humanity, and their recognition of a captured African as “human” affirms white normativity at the very heart of what it means to be human. Arguably, the dependent precarity of legal recognition is part of the memory of racial difference that shapes personhood in front of ICL today. Having your case heard in court is often framed as validating your victimhood, and by extension your personhood. The erasure of racial world orderings from the origin story of CAH travels into how these legacies of white privilege are cemented into the ICC today.[27] 

The Law of Humanity: Holding the Line

Gateway to the King’s Yard, Freetown, Sierra Leone. From the website SierraLeoneHeritage.org. After the Abolition Act of 1807 and the transfer in 1808 of the Colony to the Crown, the ships of the Atlantic Fleet were largely employed in the suppression of the slave traffic to the West Indies and the Americas. The captured vessels were brought to the nearest British Colony, Sierra Leone, and an Admiralty Court was set up about 1809 to deal with the legal aspects of the liberation of their human cargoes and the condemnation of the vessels. In 1819, this part of the Court’s duties was handed to an International Court popularly known as the Mixed Commission Court. Slaves were landed at King Jimmy Wharf and taken to a compound erected for their reception on the nearby bluffs to the West of the landing place. This became known as the King’s Yard.

For ICL historians, the work of the mixed tribunals is an antidote to the morass of disillusionment that attends the ICC’s work today. The progessive potential of international law and liberal humanism is redeemed by having the tribunals tell a story of international courts marrying morality and power. In reading race and its erasure into that story, we get a different narrative about imperialist abolition constructing a category of “whiteness,” and by mirrored necessity, a racial other, into the warp and woof of ICL. Yet it is not a whiteness that heralds its own presence. Rather, it is a whiteness that presents as nothing less than a new world order of global governance that presents in a cosmopolitan institutionalism seeking to knit together humanitarian aims with international adjudication. The tribunal treaties linking and separating England from America, America from France, France from Spain, Spain from Portugal, Portugal from the Netherlands, and so on, were building blocks in the discursive production of whiteness, an imperial whiteness. When Du Bois invokes the “color line,” he is not speaking of melanin and naturalized racial categories, but the line that traverses land and ocean to trace the routes of colonialism and the slave trade to occupy the systemic inequalities and hierarchies of world order.[28] Indeed, the color line stretches both before and beyond the twentieth century that Du Bois references, as the common thread of liberal universalism, from the rights revolution of the seventeenth century to the operation of international institutions in the twenty-first century. Race and racial difference are, of course, fundamentally historical constructions that mean different things in different social, political, and historical contexts; thus the work of racial difference in the Atlantic then, and in the Hague today, is profoundly different despite being connected. However, foregrounding racial capitalism (in both its material and ideational dimensions) opens a window into the work of the colorblind law of the “human” in holding the color line and putting wind in the sails of a racially mal-distributive regime of global governance.

Conclusion

Trail of Resistance, by Yubi Kirindongo. The fist holding a broken chain commemorates the 1° battle won by freedom fighters during the rebellion of enslaved people in 1795 in the north of Curaçao. This is one of the seven similar sculptures designed by the renowned Curaçao artist Yubi Kirindongo and placed in 2009 along the trail of resistance. This one can be seen on the shore of the Salina Sint Marie lagoon.

The mandate and role of the mixed tribunals established the rule of humanity through canonical legal terms in the global racial ordering of the day—treaty, jurisdiction, prize law, property, persons. In this framework, the extension of the category human to the illegally enslaved was a gesture of humane and humanitarian recognition. For the moral compass of rescue to point to international law as the true north, the politics of resistance and abolition had to be depoliticized, moralized and reframed; the dynamics here anticipate the victim-savior-savage triad that legal scholar Makau Mutua describes as the coordinates of the contemporary human rights movement.[29] While the law of salvage refers, in international maritime law, to the material rewards that could be claimed by rescuing an imperiled ship, the prize law attached to the mixed tribunals set up a parallel moral salvage that could be claimed by rescuing an enslaved African.[30] The Anti-Slavery Committee’s logo had an image of a kneeling slave and the caption “Am I not a man and a brother.”[31] His supplicant posture and abject plea cemented the racial ordering of humanitarian sentiment: To sport that Wedgewood medallion was to display human solidarity, while also inscribing difference as internal to humanitarianism such that White humans granted recognition and Black humans prayed for recognition. Against that history, the most powerfully interruptive expressions of reparations claims today are precisely those that make the demand for reparations in the register of refusal rather than recognition, a subversion of international law’s grammar of crime and debt, rather than a plea for recognition within its received logics.[32]

Looked at through the CAH origin story, the moral economies of rescue emerge as an embryonic articulation of the notion that the victims of these crimes were not just the enslaved but humanity as such. Indeed, to describe these victims as the enslaved is to understate the crime; it is the formulation of the slave trade as a “crime against humanity” that elevates it to one that violates the moral value of humanness. Juridification sublimated race-talk into law-talk to produce the abstract legal human subject of ICL; with moralization, the premise of moral visibility as human works a complementary project in overcoming race and racial identity into abstract humanity as such.  With whiteness as the default content of humanity, the moral framing was one that reinforced that racial normativity. As Walter Johnson has argued, there is “ideological work accomplished by separating a normative and aspirational notion of humanity from the sorts of exploitation and violence that history suggests may well be definitive of human beings: we are separating ourselves from our own histories of perpetration.”[33] The ideological work of the category “crimes against humanity” is to steer our gaze away from those entanglements to instead focus on juridically recognized perpetrators and the drama of the slave traders as moral and legal outliers. The most remarkable and enabling characteristic of the slave trader in this framing is his moral pathology—not his entanglement, with his abolitionist critics, in the profits of a racial capitalist imperial order.[34] This denial of “the entanglements of slavery and freedom” empowers liberal juridification is a central mechanism forging the expulsion of racial violence from the heritage of the “human.” [35]  Indeed, international law and legal institutions become guardians of that heritage through the prosecution of the pathological perpetrator, then the slave trader, in contemporary ICL it is the genocidier and the war criminal. As we have argued here, constituting and legitimizing that juridical authority has entailed the racial cleansing of that heritage of the human as race neutral rule of law; “the human” of human rights and humanitarian law is born of this repression of its internal inhumanities, and its record of complicities, individual and collective, ideational and structural. “The “human” sheds the weight of racial baggage—what Alexander Weheliye describes as “excess”—to emerge as a svelte, universally inclusive figure that does not implicate the structures and beneficiaries of racial capitalism.[36] Indeed, it renders the “rescuer” too as victim, part of the anonymous mass of humanity wronged by the crime against humanity that is the slave trade. Thus, the narrowing of the designated perpetrator works alongside the broadening of the designated victim to an all-encompassing humanity, not just enslaved black humanity. A “crime against humanity” renders the victim abstract, deracialized, universal—today we might say it is a category that stands for the rallying cry that “All Lives Matter.” This is perhaps yet another articulation of Toussaint Louverture’s challenge.

Vasuki Nesiah is Professor of Human Rights and International Law at the Gallatin School, New York University. Her current project, Reading the Ruins: Slavery, Colonialism and International Law, focuses on international legal history, including reparations claims. Recent publications include the co-edited A Global History of Bandung and Critical Traditions in International Law (Cambridge 2017). She is a founding member of Third World Approaches to International Law (TWAIL).

Notes

[1] Toussaint Louverture. 1791. “To Live Free or Die.” In Toussaint L’Ouverture, The Haitian Revolution, edited by Nick Nesbitt (Verso 2008).

[2] This article draws on a more extended engagement with the mixed tribunals in ICL history, Vasuki Nesiah “Crimes Against Humanity: Racialized Subjects and Deracialized Histories” in Immi Tallgren and Thomas Skouteris, eds., The New Histories of International Criminal Law: Retrials (Oxford University Press 2019).

[3] Jacques Derrida. 1989-90. “Force of Law: The Mystical Foundation of Authority.” Cardozo Law Review 11: 920-1045

[4] In 1807 the British parliament and American congress banned the international slave trade. Over the next decades British bilateral treaties with other European powers translated this ban into transnational tribunals (the “Mixed Commissions”) to help police the Atlantic for compliance, exercising what some describe as an embryonic form of universal civil jurisdiction. Adam Hochschild, 2012, Bury the Chains (Mariner Books).

[5] p. 6 of Jenny Martinez, 2012, The Slave Trade and the Origins of the International Human Rights Law (Oxford University Press). They are referred to as “mixed” because these were established through bilateral or multilateral treaties, with countries having combined jurisdiction over the cases they had to adjudicate.

[6] p. 6 of Martinez, Ibid.

[7] Jenny S. Martinez and Lisa Surwillo. 2017. “’Like the Pirate and the Slave Trader Before Him’: Precedent and Analogy in Contemporary Law and Literature.”  Law and History Review 35(1).

[8] Charles R. Lawrence III. 1987. “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism.” Stanford Law Review 39(2): 317–88; Neil Gotunda. 1991. “A Critique of Our Constitution.” Stanford Law Review 44(1): 1–68.

[9] Richard Delgado and Jean Stefancic. 1994. “Hateful Speech, Loving Communities: Why Our Notion of a Just Balance Changes So Slowly.” California Law Review 82:851-862.

[10] W.E.B. Du Bois, 2014, The Suppression of the African Slave Trade to the United States of America (Oxford University Press);  Eric Williams, 1944, Capitalism and Slavery (University of North Carolina Press);  Lisa Lowe, 2015, The Intimacy of Four Continents (Duke University Press); Cedrick Robinson. 1983. “The Atlantic Slave Trade and Atlantic Labor” in Black Marxism (University of North Carolina Press); Walter Johnson, 2017, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Belknap Press). Men and women forcibly transported from Africa worked the cotton fields in the Americas to supply raw material for the looms of Manchester. One can tell a parallel story regarding slavery, sugar plantations, and the sugar trade that was vital to the wealth of Europe.

[11] Williams Ibid.

[12] Hoschild Ibid., 110

[13] Hoschild Ibid., 161

[14] The Haitian revolution was an embarrassment for some abolitionists because it conveyed militancy for the overthrow of slavery that was not dependent on developing the moral sympathy of the British and American public. The abolitionist paper The Anti-Slavery Record seeks to “soften the memory of the Haitian Revolution” through alternative narratives such as a story titled the Humanity of the African Americans” “depicting a ‘loyal’ slave who saved his master’s family from retribution.” Sue Peabody and Keila Grinberg, 2007, Slavery, Freedom, and the Law in the Atlantic World : A Brief History with Documents, (St. Martins).

[15] Cheryl Harris. 1993. “Whiteness as Property,” Harvard Law Review 106(8): 1707–91.

[16] See Leslie Bethel. 1970. The Abolition of the Brazilian Slave Trade (Cambridge University Press).

[17] Lauren Benton. 2010. A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge University Press).

[18] In addition to maritime laws regulating colonization, war, piracy, trade, and the registration of a ship’s nationality, treaties regarding abolition also anchored jurisdictional boundaries within the Atlantic Ocean.

[19] For more on how Atlantic tribunals functioned see Lauren Benton, 2011, “Abolition and Imperial Law, 1790-1820,” Journal of Imperial and Commonwealth History 39(3):355-374.

[20] Ibid., Benton 2010

[21] The Act abolishing the slave trade specified bounties of “The Sum of Forty Pounds lawful Money of Great Britain for every Man, or Thirty Pounds of like Money for every Women, or Ten Pounds of like Money for every Child or Person not above Fourteen Years old. An Act for the Abolition of the Slave Trade,” http://www.pdavis.nl/Legis_06.htm.

[22] Benton 2011 Ibid. Benton has shown this was an era of inter-imperial struggle for dominance over the oceans and the legal landscape of abolition operated as one terrain on which that struggle was conducted.

[23] Padraic Xavier Scanlon. 2014. “The Rewards of their Exertion.” Past & Present 225(1): 113-142.

[24] Harris Ibid.

[25] Marcus Rediker. 2012. The Amistad Rebellion (Penguin). P. 44.

[26] There are analogs here to the post-emancipation world in America that prompted Saidiya Hartman to ask if ”the extension of humanity to the enslaved ironically reinscribes their subjugated status?’ Hartman, Scenes of Subjection (n 10). Ibid. 22. See also Esmeir, on how freedom cannot be conceived outside of what is legally declared free Juridical Humanity (n 30).

[27] Race travels as both structure and personhood in the description of ICL history as conjoining humanitarian aims with international adjudication. Racist tropes saturate the affective constructions of guilt and innocence, of monstrous perpetrators and needy victims. It is constituted through, and constitutive of, the over determining architecture of the ICL system, while also being part of how the system is experienced and navigated in its quotidian intimacy for those who are in the system as judges and lawyers, perpetrators and victims. Yet race remains invisible—there is no explicit reference to racial categories in the ICC’s official statements; one would be hard pressed to prove racist intent in describing the work of the office of the prosecutorial office; the most prominent officials of the ICC have hailed from “the darker nations.” Contemporary criminal law employs abstract legal categories that decisively eschew race. Indeed, the ICC may be said to explicitly invoke race only to prosecute it (as in its Darfur cases). For More on Darfur, see Mahmoud Mamdani, 2009, “The International Criminal Court’s Case Against the President of Sudan: A Critical Look”, Journal of International Affairs 62(2): 85-92.

[28] “The problem of the twentieth century is the problem of the color line: the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea.” W.E.B. Du Bois, “The Present Outlook for the Darker Races of Mankind” in Eric Sundquist (ed), The Oxford W.E.B.  Reader (Oxford University Press 1996) 47–54. .

[29] Makau Mutua. 2001. “Savages, Victims and Saviors.” Harvard International Law Journal 42(1): 201-45.

[30] Borrowing from Jacques Rancière, one can say that the rights the abolitionists were keen to grant the captured Africans were constituted as “the rights of those who were unable to enact any rights or even any claim in their name.” Jacques Rancière. 2004. “Who is the Subject of the Rights of Man?” South Atlantic Quarterly 103(2/3): 297-310.

[31] (Hoschild Ibid, 128) Designed by pottery magnate Josiah Wedgewood, the image was used not only as seal and logo but as Wedgewood medallions to be pinned onto garments, embossed into platters they displayed in their homes etc. Not unlike the Kony2012 bracelets and the “Save Darfur” pins, the material culture of 18th century humanitarianism underscores that this was a project where ICL “recognition” was in fact rescue.

[32] See Vasuki Nesiah, “A Double Take on Debt: Reparations Claims and Regimes of Visibility in a Politics of Refusal,” Osgoode Hall Law Journal (Forthcoming).

[33] p. 14 Walter Johnson. 2016. “To Remake the World: Slavery, Racial Capitalism and Justice.” Boston Review .

[34] There are resonances here with Arendt’s analysis of Eichmann as banal rather than pathological, an indictment of the system that produced him, not just of Eichmann himself. Hannah Arendt, 1963, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking).

[35] I borrow the phrase “the entanglements of slavery and freedom” from Hartman Ibid.

[36] Alexander Weheliye. 2014. Habeas Viscus (Duke University Press).

About Jennifer Curtis

Jennifer Curtis is an Honorary Fellow in Social Anthropology at the University of Edinburgh: http://www.sps.ed.ac.uk/staff/social_anthropology/curtis_jennifer.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s