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

Baars, G.; (2012) Law(yers) congealing capitalism: on the (im)possibility of restraining business in conflict through international criminal law. Doctoral thesis, UCL (University College London). Green open access

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Abstract

The theme of ‘business in conflict’ has become a ‘hot topic’ and the subject of many academic and policy publications. The trend in this literature is to conclude that ‘corporations have (or should have) obligations under international human rights and humanitarian law’ and that ‘corporations must be held to account’ through law, for example for ‘complicity in international crimes’. With this thesis, I aim to present a counterpoint to this literature. Employing dialectics as methodology and a theoretical frame based on Pashukanis’ commodity form theory of law, I investigate the progeny and role of law as sine qua non of capitalism. I establish that capitalism’s main motor, the corporation, was developed as a legal concept to congeal relations of production and minimise risk-exposure of the capitalists. Moreover, the corporation served as an instrument of imperialism and the global dissemination of capitalist law. Post WWII international criminal law (ICL) was developed ostensibly as an accountability mechanism. I show that it was used, contrary to early indications, to conceal rather than address the economic causes and imperialist nature 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 immunize economic actors from prosecution, including in the ICTR and ICTY. Yet, ICL’s strong appeal has led ‘cause lawyers’ to seek corporate accountability in ICL, largely unsuccessfully. Combined with (legalized) ‘corporate social responsibility’, ‘corporate accountability’ discourse risks becoming an instrument of legitimization for the liberal capitalist enterprise. Especially, including the corporation as a subject of ICL would complete its reification and ideological identity as a political citizen exercising legitimate authority within ‘global governance’. In conclusion, while emancipation from corporate violence cannot be achieved through law, its promise lies in countersystemic activism and, with that, human emancipation.

Type:Thesis (Doctoral)
Title:Law(yers) congealing capitalism: on the (im)possibility of restraining business in conflict through international criminal law
Open access status:An open access version is available from UCL Discovery
Language:English
Additional information:Copyright restricted material comprising of a published journal article has been removed from the e-thesis.
UCL classification:UCL > School of Arts and Social Sciences > Faculty of Laws

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