Law(yers) Congealing Capitalism: On The (im)possibility Of .

Law(yers) congealing capitalism:On the (im)possibility of restraining business in conflict throughinternational criminal lawGrietje BaarsUCLSubmitted for the degree of PhD (Laws)1

I, Grietje Baars, confirm that the work presented in this thesis is my own. Whereinformation has been derived from other sources, I confirm that this has been indicatedin the thesis.2

AbstractThe theme of ‘business in conflict’ has become a ‘hot topic’ and the subject of manyacademic and policy publications. The trend in this literature is to conclude that‘corporations have (or should have) obligations under international human rights andhumanitarian law’ and that ‘corporations must be held to account’ through law, forexample for ‘complicity in international crimes’.With this thesis, I aim to present a counterpoint to this literature. Employing dialecticsas methodology and a theoretical frame based on Pashukanis’ commodity form theoryof law, I investigate the progeny and role of law as sine qua non of capitalism. Iestablish that capitalism’s main motor, the corporation, was developed as a legalconcept to congeal relations of production and minimise risk-exposure of thecapitalists. Moreover, the corporation served as an instrument of imperialism and theglobal dissemination of capitalist law. Post WWII international criminal law (ICL) wasdeveloped ostensibly as an accountability mechanism. I show that it was used, contraryto early indications, to conceal rather than address the economic causes and imperialistnature 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 immunizeeconomic actors from prosecution, including in the ICTR and ICTY. Yet, ICL’s strongappeal has led ‘cause lawyers’ to seek corporate accountability in ICL, largelyunsuccessfully. Combined with (legalized) ‘corporate social responsibility’, ‘corporateaccountability’ discourse risks becoming an instrument of legitimization for the liberalcapitalist enterprise. Especially, including the corporation as a subject of ICL wouldcomplete its reification and ideological identity as a political citizen exercisinglegitimate authority within ‘global governance’. In conclusion, while emancipationfrom corporate violence cannot be achieved through law, its promise lies in countersystemic activism and, with that, human emancipation.3

For my parentsThe law locks up the man or womanWho steals a goose from off the common,But leaves the greater villain looseWho steals the common from under the goose.(15th Century English rhyme, anonymous)AcknowledgmentsOn the long journey with this thesis I have sought out and encountered manyfascinating, inspiring and stimulating people from all walks of life: academics of everytype including lawyers, anthropologists, sociologists and historians, judges,prosecutors and defenders, trade union activists, parliamentarians of all colours andnationalities, squatters and anarchists, ex-detainees and prisoners of war, generals andfootsoldiers, refuseniks and resistance fighters, company directors and private militarycontractors, middle management and civil service bureaucrats, cause lawyers and Citytypes (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 inspiringway (in order of appearance): Anne Paq, Ward Ferdinandusse, Lymor Goldstein,Munir Nusseibeh, Mahmoud Abu Rahma, Yehuda Shaul, Liesbeth Zegveld, FrancescaMarotta, 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 andallies 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 CityUniversity especially Chris Ryan, Riccardo Montana, and Ioannis Kalpouzos.Scholars and friends who played an important role in shaping my thinking, JasonBeckett, Akbar Rasulov, Jörg Kammerhoffer, Aeyal Gross, China Miéville, RobertKnox and Hannah Franzki.Gracious hosts, Mudar Qassis at the Institute of Law, Birzeit University, MuhammedShelaldeh (who offered to find me a husband so that I would stay) at the PalestinianSchool of Law, Al-Quds University, Assaf Likhovski at the CEGLA Center, andRonen Shamir in the Sociology Department at Tel Aviv University and Danny Evronand Yuval Shany at the Miverva Center for Human Rights at Hebrew University,Florian Jeßberger and Jochen Bung at Das Franz-von-Liszt-Institut for InternationalCriminal Law, Humboldt University, Berlin.And finally, and above all, Jasmijn, Marijn, Eva, Kobus, Brom, Kees en Annet.4

TABLE OF CONTENTSAbstract . 3Acknowledgments . 4List of abbreviations . 9Chapter 1 Introduction “Das Kapital, das immer dahinter steckt” . 121Introduction . 121.1“Global corporate rule is here” and the liberal approach . 121.2Counterpoint: The Question . 142 Theoretical framework . 162.1The commodity form theory of law – a brief outline . 182.2The form and violence of law: property (and sovereignty) as ‘mine-not-yours’ . 203 “Developing the form on the basis of the fundamental form” . 213.1Law: Inter-polity law and proto-law . 213.2Global classes . 223.3Conflict, violence, imperialism, structural violence . 233.4The commodity form theory and corporations . 243.5The commodity form theory and (international) criminal law . 244 Beyond ‘nebulous left functionalism’: Further considerations on Marxism & law254.1Law ‘congealing capitalism’: Determination, overdetermination and totality . 254.2Lawyers congealing capitalism: Who constructs the structure? . 274.3Law’s emancipatory potential queried. 295 Methodology . 306 Thesis structure– the long and short story arcs and themes . 327 Impact: And the point is to change it? . 348 Future research . 359 A note on references and language . 3510 Law . 35Chapter 2A: The roots, development and context of the legal concept of thecorporation: The making of a structure of irresponsibility . 36123Introduction to A and B . 36Introduction to A: The ‘back story’ of the legal concept of the business company 38Epistemology . 403.1Writing the history out of the corporation . 403.2Theory and the ‘big idea’ of company law . 423.3Writing the history back into the corporation . 444 The creation of market society . 464.1The legal personality of commercial polities. 474.2Primitive accumulation and the creation of the working class . 544.3Calculable law, risk accounting and “accountability” . 555 From the Joint Stock Corporation to the MNC . 585.1Merchant Adventurers, Inc. . 585.2Bubble Aftermath: Effects on company law development . 625.31844: The first modern Companies Act. 645.4Another look at separate personality . 665.5The finishing touch: Salomon . 695.6The multinational corporate group . 716 Conclusion of Part A . 72Chapter 2B: The Corporation and the Political Economy of International Law . 751Introduction to Part B: The Corporation and capitalism in IL . 751.1Epistemology: Sources in international law/history of international law . 771.2Towards International Law . 785

1.3The commodity form theory in international law . 81Corporations, law and capitalism . 842.1Grotius: ‘Father of international law’ and corporate counsel to the Dutch EastIndia Company . 852.2Concurrent development: corporations, states and colonialism . 882.3The 19th C. Trade Corporations preparing the ground for states in the Westernimage 912.4The Corporate Scramble for Africa . 922.5The Congo Corporation and the State Form . 962.6The Berlin Conference: Legalising corporate imperialism . 983 Corporations in IL in the twentieth century . 993.1Concession agreements and unequal sovereigns . 1013.2ILIP and internationalisation . 1033.3BIT Arbitration: The silent revolution? . 1043.4Corporations in the PCIJ and ICJ . 1053.5Island of Palmas Arbitration vs Reparations for Injuries: International legalpersonality revisited . 1094 Class law and class struggle in IL . 1135 Conclusion . 1152Chapter 3: Capitalism’s Victors’ Justice?: The economics of WWII, the Allies’trials of the German industrialists and their treatment of the Japanese zaibatsu. 119123456789Introduction . 119Part A: Germany . 1222.1Sources . 123From War to Trials: Why ‘Nuremberg’ . 125The US occupation and economic reform of Germany . 130Nuremberg: Political demands translated into law . 1315.1The Trial at Nuremberg . 1325.2The Indictment . 1355.3The IMT Judgment . 137The Turnaround: From Germany is our Problem to Germany is our Business . 139The trials of the industrialists: From morality play to théâtre de l’absurde . 1427.1The Trials of the Industrialists at the US military tribunal at Nuremberg . 143Industrialists in other zonal trials . 1648.1Industrialists in the British zonal trials . 1648.2Industrialists in the French zonal trials . 1678.3Industrialists in the Soviet zonal trials . 169Aftermath: The warm bosom of the Western powers . 1729.1The Churchill and McCloy Clemencies, McCarthyism and the rebuilding of WestGermany . 173Chapter 3B: The Tokyo International Military Tribunal, or, How the East wasWon. 175123456Part B: Japan . 1751.1Sources . 176Why Tokyo? . 179The US Occupation and economic reform of Japan . 182The International Military Tribunal for the Far East . 1844.1Missing in Action . 1904.2Other trials of Japanese war crimes in the Far East . 198Economic occupation policy: zaibatsu dissolution and the ‘reverse course’ . 2055.1Zaibatsu dissolution and other reforms. 2055.2Reverse course . 207Conclusion to 3A and 3B: Capitalism’s Victor’s Justice . 2086