Law(yers) congealing capitalism: on the (im)possibility of restraining business in conflict through international criminal law

摘要

The theme of ‘business in conflict’ has become a ‘hot topic’ and the subject of manyudacademic and policy publications. The trend in this literature is to conclude thatud‘corporations have (or should have) obligations under international human rights andudhumanitarian law’ and that ‘corporations must be held to account’ through law, forudexample for ‘complicity in international crimes’.udWith this thesis, I aim to present a counterpoint to this literature. Employing dialecticsudas methodology and a theoretical frame based on Pashukanis’ commodity form theoryudof law, I investigate the progeny and role of law as sine qua non of capitalism. Iudestablish that capitalism’s main motor, the corporation, was developed as a legaludconcept to congeal relations of production and minimise risk-exposure of theudcapitalists. Moreover, the corporation served as an instrument of imperialism and theudglobal dissemination of capitalist law. Post WWII international criminal law (ICL) wasuddeveloped ostensibly as an accountability mechanism. I show that it was used, contraryudto early indications, to conceal rather than address the economic causes and imperialistudnature of the war, so as to enable the continuation or rehabilitation of trade relations.udICL has been institutionalized over subsequent years and has continued to immunizeudeconomic actors from prosecution, including in the ICTR and ICTY. Yet, ICL’s strongudappeal has led ‘cause lawyers’ to seek corporate accountability in ICL, largelyudunsuccessfully. Combined with (legalized) ‘corporate social responsibility’, ‘corporateudaccountability’ discourse risks becoming an instrument of legitimization for the liberaludcapitalist enterprise. Especially, including the corporation as a subject of ICL wouldudcomplete its reification and ideological identity as a political citizen exercisingudlegitimate authority within ‘global governance’. In conclusion, while emancipationudfrom corporate violence cannot be achieved through law, its promise lies in countersystemicudactivism and, with that, human emancipation.