Tuesday, March 7, 2017

Law and Colonial Violence: A Workshop Report

[We are grateful to Lia Brazil, a PhD Candidate in the history of International Law and colonial warfare at the European University Institute, Florence, for this very full report on a day-long workshop at Queen Mary University of London.]

I recently attended a workshop on ‘Law and Colonial Violence', at Queen Mary University of London, on February 14th. Organised by Boyd van Dijk (EUI/KCL), Jacob Ramsay Smith (QMUL) and Joseph McQuade (Cambridge), it drew together a diversity of speakers from the fields of history, social sciences, and law, which resulted in a fascinating day of discussion. Welcoming participants to the workshop, Ramsay Smith argued that this interdisciplinary approach intended to bring together different analyses and concepts of colonial violence and law, alongside both international human rights law, and laws of war, to enrich understanding of the formation, operation and disintegration of Empires, and their legacies. He described the wide variety of agents populating the papers, from those involved in policing the colonised state, to ‘non-official actors', including settlers, businessman, and planters, as well as indigenous actors, who often challenged the colonial state's monopoly of force.  Certain papers also highlighted the role of jurists, and Ramsay Smith argued, that they, and even the law itself, may be seen as deeply implicated in the creation and maintenance of Empire, including its utility of violence. His speech touched on many of these major themes of the conference, before finishing to reflect on how an understanding of this past may be critical for understanding aspects of modern law.

Focusing on the cases of India and Egypt, the first panel, ‘Imperial Policing, Punishment and Control' presented a coherent overview of the legal mechanisms that facilitated colonial control through violence and repression within the British Empire. Opening the session, Alastair McClure (Cambridge), addressed both the excessive forms of violence in colonial governance, such as the 1864 Whipping Act, and the growing anti-colonial response to these by Indian actors in newspapers and pamphlets. His discussion of the lexicon of imperial violence presented strong parallels with the paper by Mark Condos (QMUL), who also focused on India. Condos' analysis of the British implementation of emergency legislation in India against the perceived threat posed by ‘fanatics' and ‘terrorists' highlighted the malleability of such terms, across the colony, to permit the swift application of the law, mechanisms which he argued have a strong resonance with today's discourses. Focusing on the Egyptian case, Ifdal Elsaket (Leiden/NVIC), also pointed to fear, particularly that of revolt, as a motivation for extreme legal measures, a factor exacerbated for the British in Egypt by its geographic proximity to the Ottoman Empire during the Great War. Like Condos, her paper discussed the continuities in imperial policing laws, particularly in the case of the 1928 Assembly Law, a version of which is still applied in Egypt today. Together these papers emphasised the way law interacted with colonial society, often providing what Elsaket termed "a skeleton code" for governance, which allowed other restrictions to be fleshed out as needed. By institutionalising excessive violence or repression in the law, as ‘states of exception', measures such as executions, or ad hoc trials, could be framed with legal respectability – until such language broke down.

During the second panel, the workshop's focus broadened from domestic colonial law, to the law of wars and conquest, and here, the papers employed varied approaches to understanding the construction and application of the law.  Andrew Arsan (Cambridge) emphasised the political dimensions in the application of law internationally in his assessment of the dual restoration of justice in Ottoman Mount Lebanon in 1860 by an international commission and a French expeditionary force. His paper addressed complex layers of sovereignty, particularly the issue of Ottoman Turkey's exclusion from the law of nations, and thus, civilisation. Following this Claire Vergerio (Oxford), presented on the ‘intellectual revival' of the Italian jurist Alberico Gentili from 1874, arguing Gentili's De iure belli (1598) was also used by nineteenth century international lawyers to justify and legitimate the exclusionary nature of the laws of war. Finally, Edward Cavanagh (Cambridge) returned to the practice of warfare through conquest in the case of the 1919 Re Southern Rhodesia enquiry. Here, the existence of colonial conquest and violence at the intersection between property rights, English Common Law, and colonial corporations, such as the British South Africa Company, indicated the significance of territorial control and expansion to the construction and operation of colonial laws. Drawing these papers together, Elisabeth Leake (Leeds) placed emphasis on certain exclusionary dimensions of late nineteenth and early twentieth international law, premised on the European concept of sovereignty.

New methods and approaches to international law remained central to the discussion during the third panel, where papers explored the law as a point of contest, illuminating the existence of levels of subaltern agency, and of alternative perspectives on international law.  Therefore, when discussing the repatriation of the skull of Sultan Mkwawa - leader of the Wahehe tribe of the former German colony in South-East Africa - as part of the Treaty of Versailles, Jeremiah Garsha (Cambridge) emphasised "reading against the grain of the archives". By focusing on the language through which the skull was framed in competing legal arguments, his paper illustrated a measure of agency possessed by the colonised tribe in their ability to transverse European legal systems. Similarly, by contextualising the dissent of Radhabinod Pal at the Tokyo Trial (1946 – 1948) alongside his broader legal writings, Milinda Banerjee (Ludwig-Maxmilian University/Presidency University) pointed to the ability of a ‘global intellectual history' to explain the emergence of a discourse non-European, or what he termed, ‘subaltern sovereignty'. Situating her analysis in the context of discussions about the revision of the Geneva Conventions in the 1970s, Eleanor Davey (Manchester), explored the relationship between so-called ‘non-state actors' and emerging international humanitarian law, highlighting the role and tensions surrounding the participation of national liberation movements, and humanitarian organisations such as the International Committee of the Red Cross, and the World Health Organization. Rotem Giladi's paper (Helsinki/Jerusalem), presented a novel approach to a well-worn historical subject, through an investigation of the silence of international lawyers in response to the scandal generated by the occupation of the Rhine by French colonial troops at the Great War. Explicit in his paper were two significant considerations for future research: the relationship between the civilising mission and race, and that between the law and gender.

For me, two themes were particularly resonant throughout the day. The first, the concept of ‘change and continuity' in examining law and colonial violence, was discussed in the aftermath of the first session by Kim Wagner (QMUL), who suggested that the long focus of the papers both bridged a divide between the nineteenth and twentieth century, and questioned the Great War as a point of rupture. This theme was explored again in response to the final panel by Van Dijk, who pointed to a shift in the vocabulary of colonialism after 1919 and the Paris Peace Conferences. However, he described colonialism as ‘reconfigured', not necessarily ‘overcome', and emphasised the continued legacies of Empire for international law throughout the twentieth century.    

Different notions of colonial violence and control was the second major theme, and I was struck by how it weaved its way throughout the papers, though varying in scale, discourse, and resonance. It ranged from the ‘spectacles' of extreme repressive violence permitted by colonial legislation, like those discussed by McClure and Condos in relation to British India, or the public hangings and shootings described by Arsan on Mount Lebanon, to more subtle forms, as apparent in the control over the colonised body seen in Garsha's discussion of the Wahehe skull. Examples of violence and repression through conventional warfare, and small wars, also proliferated, with particular attention to their aftermath, such as Cavanagh's study of the enquiry into the 1893 conquest in Rhodesia, or Giladi's examination of the ‘Horror on the Rhine'. Taken together, the papers therefore presented an image of the law as a mechanism for legitimising and sanctioning colonial violence, as a means of repression, control, and conquest. However, as in the last panel, they provided insight to the ways in which the norms imposed by the law could to an extent be used, re-adapted, and critiqued, by the subaltern themselves.

Ending the day, these two themes seemed unified in the keynote speech, delivered by Dirk Moses (University of Sydney) and entitled "Empire, Resistance and Security: The Law of Nations from Vitoria to Gaza". Here, in an expansive exploration of the development of the laws of occupied territory, Moses discussed the continued alignment of our international legal system, particularly international humanitarian law, with settler expansion. He argued that the legacy of Imperial mentalities remains integral to the law today, which he illustrated through reference to the Israeli-Palestinian conflict. Tracing the development of the law of occupied territory through pivotal theorists of international law, including Vitoria, Vattel, Lieber, and Oppenheim, Moses showed how doctrine on the ‘right of resistance' was framed through European experience of war, and the colonial encounter. Building on discussions earlier in the day, he discussed the limits of the applicability of laws of war towards ‘uncivilised' people. Moses argued that the same understanding framed the legitimacy of resistance during WWII, ensuring only by the Geneva Conventions of 1949 did resistance in occupation receive extended, though still limited, protection.  Drawing these strands towards the present, Moses argued that the current ‘transformative occupation' of Palestinian territory by Israel is facilitated by humanitarian law's prioritisation of the security and mobility rights of colonists, over the occupied. In this instance, he argues it is possible to see within international law both the reflected asymmetries of the international system, and the residue of the unequal imperial global order of the nineteenth century. Strikingly, Moses framed his address with the writings of Raphael Lemkin, the Polish lawyer popularly remembered for coining the term genocide. Lemkin's work led to the classification of Nazi colonial practices and expansion through Lebensraum as genocide. Yet, as Moses concluded, despite these efforts, imperial legacies within international humanitarian law allow the conquest and annexation of occupied territory to remain possible today.

Concluding the day, participants engaged in a roundtable discussion, where Gerry Simpson (LSE) addressed some aspects of Moses' lecture. He agreed with international humanitarian law's capacity to facilitate violence, and questioned whether international law today can be considered egalitarian. However, Simpson also pointed to a distinction between criticism and critique of humanitarian law, and discussed the need to ‘stabilise' the law by assessing its varied sources, including its deep historical texture. Finally, he posed questions of whether it is possible in a fragmented legal universe to talk of a single international law. This awareness of the transfer of meaning across geographical contexts was also discussed during the roundtable by Wagner, who turned attention to how the terminology of ‘savagery' made certain types of violence permissible. Providing the last comments, Leake returned to the idea of sovereignty, arguing that modern international law necessitates the existence of the nation-state. She also pointed to a tension, present in many of the day's papers, between the aspirations of legal theory, and the practice of violence. This view of a fragmented, rather than homogenous, legal universe was certainly explored by panellists, who presented a complex view of the law over the last century and a half, as a mechanism for both limiting and exerting colonial aspirations and control, as well as subverting it.