Aggression, Capitalism, and International Law: Missed Opportunities or Structural Constraints? (2024)

Abstract

1. Introduction

In late 2023, as Israel’s offensive in Gaza escalated, so did protests against it internationally in what has been the largest anti-war movement in the West since 2003. This time, protesters did not only demonstrate outside parliaments, ministries of foreign affairs, or embassies, but they also gathered in ports, train stations, factories, and corporate headquarters. Legal challenges to the war also mirrored this tactic.1 The conviction that underlined both legal and grassroots action was that private weapons manufacturers and public licensing of their exports were directly complicit to what and increasing number of people saw as a genocidal attack against the Palestinian people.2 According to this understanding of both war and law, responsibility did not lie exclusively with those who pull a trigger or drop the bomb, but also with those who have manufactured the weapon, the drone, the airplane, and their spare parts. This conceptualisation that attributes at least some responsibility for war and atrocity to the economic actors that enable both has deep roots, and has recently been going through a revival, if not in legal scholarship, then definitely in strategic litigation and movement lawyering.3

My purpose here is not to reflect on the legal and political successes, failures, and possibilities of this strategy. Rather, my focus is historical and theoretical. By bringing together political economy, aggressive war, and international law, this article makes three inter-related arguments: first, I show that the political economy of war and conflict in the most immediate sense should be a matter of concern both for international lawyers and for everyone who cares about peace; second, I argue that even though international law can offer some useful tools to challenge the exportation of weapons and other war materials, it has little to say about armaments and militarised economies insofar as they do not cross borders; and, finally, I will posit that recovering a legal tradition of suspicion vis-a-vis military budgets, armaments, and war profiteering is a pursuit that is worthy but not straightforward. This is because the political economy of war is doubly mystified and obscured due to a unique convergence of two logics: the logic of the state and the logic of the market. On the one hand, armaments and military spending are considered to be prerogatives of the executive, linked to the survival of the state, and cloaked with secrecy and exceptions from ‘normal’ market and public functions. On the other, weapons are subject to the abstracting and responsibility-negating functions of commodity exchange: in capitalist societies, the use-value of a commodity is separated from its exchange-value, with production and exchange being motivated by the pursuit of profit and only incidentally responding to human needs. Often, the logic of the state and the logic of the market diverge or they might even be directly antagonistic. In this instance, these two logics converge in making (international) legal control of the political economy of war exceptionally hard to achieve.

2. International Law, War, Political Economy: Modes of Thinking

To understand the significance of the political economy of war for international law one needs to take into account the different ways of thinking about this intersection. I wish to offer a brief typology of the arguments progressive and radical political economists and lawyers have made about the relationship between political economy and war. There are at least four different ways of thinking about this relationship and they have distinct implications for international legal scholarship: first, economic inequality, asymmetry, and exploitation as drivers of conflict; second, war as the most overt instrument of economic imperialism; third, war as a social realm that reflects the logics, forms, and modalities of contemporary political economy and, finally, war/war preparation as a means of promoting both the interests of specific factions of capital and also as a way of ensuring the reproduction of capitalism as a whole.

The first argument is perhaps the most familiar to lawyers: during the 1990s and 2000s progressive scholars resisted analyses of conflict that reduced (civil) wars to supposedly ancient ethnic or religious hatreds. Instead, they highlighted how economic inequalities and, especially, economic instability and dislocation brought about by the rise of global neoliberal capitalism had accentuated, re-signified, and radicalised pre-existing differences leading to war and conflict. Often emphasising the role of law as a narrative device, scholars such as Anne Orford and, more recently, Marina Velickovic have emphasised how different branches of international law narrated these conflicts in a way that made global political economy and the role of international actors invisible.4 In addition, many critical, feminist legal scholars have reflected on how only certain gendered harms, notably sexual violence, have attracted disproportionate attention when it comes to women’s experiences with war. This work has highlighted not only how economic marginalisation and exploitation expose women to such violence in the first place, but also how war, including supposedly benevolent international intervention, creates forms of political economy that are hostile to the rights and interests of women.5 In the realm of prescription, progressive and feminist legal scholars have highlighted and criticised the marginalisation of economic and social rights and, more broadly, economic redistribution in the fields of transitional justice and peace-building.6 If economic inequality, dispossession, and social dislocation are both causes and effects of war, then international law needs to become better at naming these links between political economy and war and developing rules and procedures that will address them. In turn, this requires a move away from the discipline’s exclusive focus on direct, physical harm, civil and political rights, and criminal law as legal responses to mass violence and conflict.

The second line of thinking focuses on war as an instrument of economic imperialism. Its roots go back to the analyses of Vladimir Lenin, and, to a lesser extent, Rosa Luxemburg. In this telling, war is the most extreme manifestation of a broader process of economic expansionism: the capitalist core is in constant need of exporting both commodities and capital, and in the process of so doing tensions arise both with local populations and their lifeworlds and amongst different capitalist powers. War, then, becomes a way of overcoming these tensions and competition.7 Due to the influence of Marxism and Leninism on many national liberation movements,8 this analysis animated the works of many post-colonial international lawyers, but with one important twist: the linking of war to imperialism meant that war needed to be resisted and outlawed only insofar as it was imperialist. To the contrary, the use of armed force for anti-imperialist purposes, notably in the process of formal decolonisation, was qualitatively different and needed to be treated as such. As a result, radical international lawyers such as Bedjaoui or Umozurike threaded a fine line in their attempt to distinguish between imperialist and anti-imperialist wars and to assign different legal status and consequences to each.9 These efforts encompassed both jus ad bellum and jus in bello and evidence a willingness to engage creatively with the doctrine of international law. This practice of progressive and even radical reformism became less relevant after the decline of progressive and legally engaged Third Worldism as a political force around the globe.10 However, the difficulties that these lawyers encountered speak to the problems that arise when one tries to use the abstract forms and arguments of international law in order to capture and regulate mass violence in a way that is embedded in structural analyses of war and conflict.

The third conceptualisation is perhaps the most distinctly Marxist. It emphasises that the rationalities and abstract forms that emerge out of each predominant model of capitalism structure both the way that wars are fought and the way that we argue about them.11 In this telling, the rise of financial capitalism has brought to the forefront of social co-existence ideas of risk, risk management, pre-emption, and governance-by-small-intervention.12 As I have argued elsewhere, the legal doctrines that accompanied the so-called ‘war on terror’, such as the ‘unwilling or unable’ doctrine or discussions about pre-emptive self-defence, can be best understood as manifestations of this broader dynamic, in which the very form and content of legal arguments come to reflect the rationalities of financialised capitalism. This is not an argument about capitalists benefiting from war-true as that might be—but rather a reflection on how the logic of capitalism structures life as a whole well beyond a narrowly-conceived ‘economic’ sphere.13

All three arguments are valuable and hold considerable analytical and practical promise for international lawyers. However, I am primarily interested in a fourth argument that draws attention to the role of war and war preparedness as terrains of capitalist accumulation and profit-making and as a means of ensuring the viability of capitalism as a whole. This tradition is particularly relevant today, as military spending is once again on the rise: after a short period of decline following the deprioritisation of the ‘war on terror’ by the US, the war in Ukraine and the reemergence of great power competition, especially between China and the US in the Pacific, are accompanied by a marked rise of war spending around the world, with the notable exception of Africa.14 According to the estimates of the Stockholm International Peace Research Institute, in 2022 military expenditure rose by 3,7% in real terms reaching a record high of USD2240 billion.15 The United States accounts for over one-third of this spending, followed by China whose spending might be dwarfed by that of the US for now,16 but claims the questionable honour of being the only state whose defence budget has increased for 28 consecutive years.17

Being in the midst of an arms race, it is imperative to ask what is the political-economic function of this ever-increasing war spending. In so doing, we can differentiate between two variations of this argument: one approach focuses on the particularistic interests of some factions of capital, while another emphasises the long-term, systematic interests of capitalism as a social system. The former position is often summarised as opposition to the ‘military industrial complex’.18 The argument goes like this: certain factions of capital, including traditional defence contractors and, more recently, other industries, including Big Tech, logistics, private security, and others, have managed to capture the state and they use bloated defence budgets and constant war preparedness as a means for securing profit rates higher than the market average as well as extraordinary yields in financial markets.19 In addition, war and national security operate as spaces of class formation and reproduction: state bureaucrats, skilled tech professionals, engineers, security consultants, regional experts and, importantly, lawyers rely on this political economy for the reproduction of their class positions, including bloated remuneration, social status, and political power.20 Historically, military spending also led to the creation of relatively well-paid and secure working-class jobs in the United States and some other advanced capitalist economies. However, technological advances, the rise of neoliberalism, and the relocation of many of these jobs in the southern states of the US led to a marked decline of these high-paying working-class jobs, even though regional reliance on military spending for employment persists.21 Combined with the fact that defence spending and war have been financed through borrowing, and not taxes, this political economy has benefited capital and parts of the professional classes, the former as receptors of generous contracts and the latter as both salaried professionals and as holders of national debt.22

This line of critique has found supporters across the political spectrum: some right-wing proponents of free markets see military spending as a form of corporate welfare and argue that increased state spending ‘crowds out’ private investment.23 At the opposite end of the spectrum, left-wing critics argue that military spending ‘crowds out’ welfare spending as the state restricts the latter in order to finance the former.24 This is an attractive but ultimately not wholly persuasive argument, at least not when it comes to rich, developed states whose economy does not operate at full capacity. It is true that since 9/11 increased defence spending has often been accompanied by a rolling back of the welfare state.25 For example, in 2023 Denmark abolished a holiday dating back to the 17th century in order to finance the increase of its military budget. However, this does not mean that states needed to do so as a matter of economic necessity. It is more convincing to see this as a convenient excuse and/or as the result of monetarist fallacies that see state budgets as essentially similar to household budgets.26 There is, then, a reason to believe that rich states who control their currencies and are not operating at full capacity could up until a point finance both welfare and arms races and still consider the latter objectionable.

Instead, the value of this line of argument is twofold: first, identifying how war and militarism have operated as loci of accumulation, profit-making, and class formation enables us to see that in many states there exist powerful coalitions with clear, material interests in the perpetuation of conflict and militarism. More than the ‘crowding out’ arguments mentioned above, this seems to me the most concerning aspect of this development: if economic power is relative, then inflated military budgets empower these sections of society who have a vested interest in war to the detriment of those who would benefit from peace, thereby making the attainment of the latter more difficult.27 Therefore, military spending need not be thought of in terms of what it ‘crowds out’, be it welfare spending or private investment, but rather in terms of what it ‘crowds in’, the structures of power that it creates, and how these structures are hostile to peace. Second, this approach is particularly useful for jurisprudential purposes, as it identifies the beneficiaries of war and militarism and it does so with a precision that the state-centrism of international law rarely allows. Instead of treating statehood as a black box, as the irreducible unit of jurisprudential analysis, this approach makes visible what the legal form of statehood conceals, namely social conflict and antagonisms about how societies, production, and distribution are organised and whether this organisation is facilitative of war and conflict.28

As I have already indicated, the approach that focuses on distribution amongst classes and factions of classes is not the only way of thinking about the political economy of war and militarism. Rather, at least since the interwar period, Marxists and Keynesians have been arguing about the macroeconomic effects of military spending: its importance for capitalism as a whole rather than for specific classes. Sometimes referred to as ‘military Keynesianism’ this theory is distinct from concerns about the ‘military industrial complex’ insofar as it does not centre particularistic class interests but the systemic impact of such spending.29 Even though a detailed exposition of Keynesianism surpasses the purposes of this article, it is enough to note that Keynes’ basic policy prescription was that public expenditure, for example, in the form of public works, could create full employment and ensure that demand for goods and services was high and steady enough for entrepreneurs to invest (rather than saving) and therefore, avoid and/or move out of economic downturns.30 Even though Keynes did not dwell upon the macroeconomic or social effects of different types of public investment, he was keenly aware that this public expenditure could be directed toward socially useful (think, a Green New Deal), socially useless (digging holes and filling them up again) or socially destructive ends, notably armaments and war.31

The ongoing concern of Marxists, left-wing Keynesians, and other radicals has been that capitalist states gravitate towards socially destructive forms of public investment. Heterodox economists, such as Michael Kalecki, argued that socially useful expenditure (generous unemployment or family benefits, public health, housing or education provision, subsidisation of essential commodities) was likely to be opposed by capitalists insofar as it either encroached upon their existing spheres of profitability or because it enhanced the negotiating power of the working classes by partially decommodifying their subsistence.32 This capitalist resistance against socially progressive forms of public spending even if it leads to full employment and generalised prosperity makes such programs politically hard to execute and, as experience has shown, hard to sustain in the long run. In contrast, military spending does not encroach upon existing sphere of capitalist activity as long as the state retains de facto and de jure monopoly over the legitimate use of violence. In addition, US Marxist economists Baran and Sweezy argued that socially progressive public spending was likely to be accompanied by egalitarian ideology and rhetoric inimical to the interests of the propertied classes.33 To the contrary, defence spending not only did not raise these problems, and is also justified by the ideologies of discipline, hierarchy, and intolerance toward dissent and disorder that are inherent to militarism and reify the status quo. We can think, then, of military spending is a way of alleviating the crisis-prone tendencies of capitalism without destabilising the fundamental relationships of domination and power at its core, namely private control over investment.34

Kalecki also suggested that military spending was preferable to social spending from a capitalist point of view for another reason of particular interest to international lawyers: it operates as a spontaneous form of coordination in the absence of a formal method of coordination between national capitalist governments.35 His argument was as follows: if implemented on a national level, robust public spending and investment will lead to significant trade deficits as demand for investment and consumption goods rises leading the increased imports. This may not be an issue for the state(s) whose currency is the hegemonic international currently (in our case, the USA), which can sustain long-term trade deficits, but it is for everyone else. Importantly, this problem would not arise if other states also implemented comparable expenditure programs, thereby leading to an intensification of cross-border trade overall but without major imbalances. In a fragmented world of states that are in competition with each other, there is no guarantee that this will happen either spontaneously or through some form of political coordination. However, increased military spending by one state tends to trigger similar behaviour from others, as states engage in arms races, such as the one that we are witnessing today. Post-Keynesian economist Jan Toporowski has, therefore, suggested that regional alliances that set minimum levels of military expenditure, such as NATO, are formalised versions of this immanent tendency of military expenditures to proliferate across borders and thereby coordinate state spending.36

Radicals, then, were keen to emphasise that the relatively widespread prosperity enjoyed in the developed world for the thirty years after the Second World War was at least partly the outcome of the arms race that accompanied the Cold War, including ‘hot’ wars in the then decolonising world and the constant threat of nuclear war and annihilation.37 For Marxists, the conclusion was inescapable: an economic system that systematically depends on militarism, war, and destruction for its survival is one that should not exist. For left-wing Keynesians, such as Joan Robinson, really-existing Keynesian policy was a perversion of Keynes’ thought and a missed opportunity: policy-makers obsessed with maintaining (near) full employment and preventing a major downturn, and in the process forgot the most fundamental question, namely what public spending and, at the end of the day, employment, should be for.38 In a scathing speech delivered on the eve of the neoliberal revolution, Robinson accused US policy-makers of turning ‘Keynes’ pleasant day dream… into a nightmare of terror’ by myopically focusing on reducing unemployment rather than using the Keynesian tools of public investment for securing not only jobs and decent earnings but a meaningful and sustainable life for all working people.39

This is not to say that the current moment is identical to the Cold War conjuncture. For one, contemporary military spending is astronomically high in absolute terms but remains a much smaller percentage of national economies in comparison to the Cold War years.40 Therefore, I am not arguing that major economic powers, such as the US or China, have already adopted military Keynesian model, but rather that there are warning signs that we are moving toward that direction in both rhetorical and material terms. Russia’s adoption of ‘military Keynesianism’ since its full-scale invasion of Ukraine in 2022 has been both swift and effective, minimising the detrimental impact of sanctions and surpassing growth expectations.41 Rhetorically, it is the first time in at least four decades that a US president publicly and proudly links the causes of labour at home and of continued projection of US power overseas through weapons production and exportation:

We send Ukraine equipment sitting in our stockpiles. And when we use the money allocated by Congress, we use it to replenish our own stores—our own stockpiles with new equipment[…] that defends America and is made in America: Patriot missiles for air defense batteries made in Arizona; artillery shells manufactured in 12 states across the country—in Pennsylvania, Ohio, Texas; and so much more.You know, just as in World War Two, today, patriotic American workers are building the arsenal of democracy and serving the cause of freedom.42

More broadly, we are witnessing the most serious challenge to the neoliberal model in the past 40 years and many progressive commentators hail the ‘return of the state’ and the de-demonisation of industrial policy across the developed world, including an increased concern for economic (in)equality and organised labour.43 At the same time, as many have argued, it is impossible to disentangle these developments from geopolitical competition and even increasing belligerency between the USA and China.44 It is, then, imperative to ensure that this ‘return of the state’ is not primarily achieved through a further expansion of the defence sector accompanied by increased militarism. However, international law is currently profoundly ill-equipped to deal with this challenge. This inadequacy is the focus of the next section.

3. International Law and the Political Economy of War at the Vanishing Point

The political economy of war and militarism is hard to describe, let alone regulate, through the idioms of international law. As I will argue later, some of these limitations are structural and attributable to the fact that the political economy of war exists at the intersection of two mystifying logics, the logic of the state and the logic of capital. However, structural limitations do not negate that there is something historically distinct about our contemporary lack of ambition. For example, the aftermath of the Second World War and the Cold War witnessed important efforts to name, address, and even eliminate this political economy of war, an effort that was widely seen as a pre-requisite of ‘[saving] succeeding generations from the scourge of war’.45

Perhaps paradoxically, one of the most ambitious efforts to do so took place in international criminal law, a field that has often been critiqued for its inability to conceive of the structural causes of war and violence.46 Recent work by Baars, Lustig, and Kyriakakis has reignited interest in the so-called ‘subsequent trials’ of German industrialists, especially in the context of disciplinary discussions about the position of the corporation within the international legal order.47 What interests me here is that despite the concerted efforts of the prosecution no individual industrialists were found guilty of crime of aggression in particular. This can be read as a story of contingency, especially in the form of prosecutorial mistakes that resulted in lost time. Toward the end of the war, there was clear consensus between the Allies that German aggression, atrocity, and genocide could and should be understood in political-economic terms and, in particular, as a result of the political and economic interests of German trusts and cartels. This consensus emerged partially out of the popularity of some stands of Marxian thought. It is well-documented that Frantz Neumann’s Behemoth, a dense socioeconomic analysis of the Third Reich that emphasised the centrality of German monopolies in the operation of the state, circulated widely amongst the prosecutors.48 However, this emphasis on the economic drivers of aggression went beyond Marxism. In the US, the existence of a strong anti-trust tradition made politicians and lawyers alike suspicious towards the concentration of economic power, a suspicion that was often expressed in the idiom of democracy and republicanism: concentration of power, be it in the political or economic realm, was treated as antithetical to fundamental ideas of freedom, equality, and self-government.49

Regardless of whether one saw German industry as symptomatic of deeper, inescapable problems of capitalism or whether one thought that these industrialists had perverted and corrupted capitalism, there was consensus that legal responses to war should target them too. This turned out to be somewhat complicated in practice. The decision to charge Gustav Krupp was inopportune. The ageing man was found to be unfit to stand trial, and efforts to replace him with his son, Alfried, in the last minute were blocked due to staunch British objections.50 Therefore, the prosecution of industrialists was deferred to the ‘subsequent trials’ which were conducted by individual allied forces, in particular the US and France. As others have noted, by the time that these trials were in full swing, Cold War divisions had begun to solidify. Therefore, the Western allies were reluctant to prosecute and convict German capitalists for fear of these convictions serving as Soviet propaganda against capitalism as a whole, but also because the US was concerned about securing the cooperation of its own capitalists for its overseas ambitions.51 In this climate, the lax treatment of German industrialists can very be plausibly read as the result of the tribunals’ selective and often highly implausible treatment of the facts and not as going to the core of legal doctrine or legal reasoning as such. As I will show below, this approach is not fully persuasive, not least because it is not attentive to the specificities of international legal argumentation that led to the acquittal of German capitalists.

The IG Farben case is instructive, not least because it was one of few subsequent trials that involved charges of aggression against capitalists.52 Eventually all defendants were acquitted in regards to Counts 1 and 5 that concerned crimes against peace. These acquittals hinged on the tribunals’ position that the defendants had no specific knowledge of the plan to wage aggressive war. This finding depended on defendants like Krauch not having specifically attended meetings with Hitler and, more broadly, on a reconstruction of the role of Farben executives as operating purely on an everyday, economic and technocratic level. In contrast, decision-making in regards to aggressive war was construed as taking place at an entirely different realm and only involving a very small number of political leaders.53 Judge Hebert wrote a concurring opinion, which read more like a dissenting one, that primarily challenged this construction of the facts by the tribunal’s majority.54 For example, Hebert’s opinion highlighted the close relationship of the lead defendant, Carl Krauch, with Goering, the former’s central role in Germany’s Four Year Plan and war preparation, as well as Farben’s systematic preparation for the war and active role in Nazi propaganda and espionage overseas.55 Hebert’s account was much more granular than that of the majority. For instance, he highlighted concrete instances of economic decision-making by the Farben executives that were hard to interpret without assuming concrete knowledge of the plan to wage aggressive war. For example, Hebert quoted extensively communications between Farben executives and between them and Nazi officials concerning the forcible acquisition of industrial property in states that were yet to be invaded.56 In contrast, the majority ruling relied on more conceptual forms of reasoning that relied on a fundamental disjunction between waging of war, which was seen as a political decision, and the everyday operations of Farben, which were understood as motivated by ordinary business considerations, meaning either direct pursuit of profit or the shielding of the corporation from negative political ramifications.57 Hebert’s opinion offered a corrective to this approach by showing that for many defendants this was an empirically unsustainable distinction all the while being willing to afford them the benefit of reasonable doubt. His intention, then, was to ‘set the record straight’ all the while reaching the same conclusion as the majority.58

Despite their palpable differences, both accounts relied on the idea that ‘mere’ economic decision-making and ‘normal business’ were by definition not enough to establish specific knowledge and intent. The tribunal’s majority rejected without argument the concept of the ‘cartels’ as either descriptive of Farben’s operations or as explanatory of its power: ‘All of these contracts are lumped under the much-abused term “cartels”’.59 The tribunal insisted that there was no evidence that Farben used its agreements with overseas corporations, notably Standard Oil, to sabotage technological progress in critical war materials and to gather information about the state of the art in other nations. One of the central arguments was that the licensing system used by Farben was legal under domestic and international patent laws:

This appears to be a common practice among large business concerns throughout the world, and the fault, if any, would seem to lie with national and international patent law rather than with the firms that avail themselves of the protection which the law affords.60

Hebert’s account of the events questioned whether everything was, in fact, above board when it came to knowledge-sharing between Farben and its overseas contractors.61 Regardless of factual disagreements, this is a remarkable statement insofar as it evacuates discussions about property law, in this instance intellectual property, from all discussions about power, even though creating power to legally withhold information is precisely what intellectual property laws attempt to do.62 The (debatable) lawfulness of these practices does not preclude in any way the possibility that intellectual property rights were used in ways that strategically obstructed or facilitated the flow of knowledge and ultimately, enabled Farben and the Third Reich to wage aggressive war.

This re-assertion of a sharp distinction between property and sovereignty and, more broadly, between economic and political power runs through the tribunal’s ruling as a whole. On the one hand, war is conceptualised as exclusively a matter of ‘high politics’ and, indeed one limited to an increasingly narrowing circle of individuals. On the other, economic relations as structured through property, contract, and other laws are understood to be at most ‘followers and not leaders’,63 as law and the economy are voided of all considerations of power, political intentionality, and violence. In turn, this distinction was made possible by the elision of the role of property and power within the economy itself. The tribunal, infamously, relied on a slippery slope argument asserting that if they convicted the defendants, they would have to find guilty the great mass of Germans who participated even in small ways in the war effort.64 This rhetorical move made invisible two things: first, the concentrated economic power of Farben and other executives made their cooperation infinitely more impactful than that of ordinary citizens, a fact that is of clear interest both to the doctrine of criminal law and the exercise of prosecutorial discretion. Second, the judges elided the fact that Farben, Krupp, and other major industrial cartels had the unique power to use property, contract, and other legal, paralegal, or even illegal arrangements in order to solicit the cooperation of millions. To recall the writings of Morris Cohen, Robert Hale, and others working within the critical legal tradition, property is not a relationship between humans and things but rather between humans thought the instrumentality of things.65 In the context of concentrated industries in particular, a small number of individuals are able to command, combine, and direct the labour, productive energies, and resources of thousands—if not millions—of people through the power that law, administration, habit and political power bestow upon them. In other words, the reasoning of the military tribunal negated the power of concentrated industry both within the political architecture of the Reich and within German economy, as its ‘slippery slope’ argument relied on an understanding of the latter that made no distinction between people working for a wage at pain of starvation and those who by way of controlling the means of production and subsistence are able to control and direct the labour of the former toward particular economic and political ends, including aggressive war.

In this respect, contemporary commentators are right to stress that both the IMT and the subsequent trials did not rule out the possibility of capitalists being found guilty of the crime of aggression as a matter of abstract legal principles and general pronouncements.66 However, this emphasis on abstract legal standards overlooks the concrete reasoning of the military tribunals and, in particular, their argumentative efforts to reinstate property and economy as conceptually separated from war and mass violence. If anything, few historical examples support the legal realist suspicion that general principles do not decide concrete cases as robustly as the case of German industrialists where the conceptual possibility of guilt was undermined by the argumentative reality of the political innocence of property.67

Even if international criminal law once held some promise about regulating and sanctioning the political economy of war, we have good reasons to be sceptical about its ability to do so today. As Kevin Jon Heller has argued, the decision of the drafters of the Kampala Amendments that only individuals in ‘direction or control’ of state decision-making can commit the crime of aggression has raised the bar considerably in comparison to Nuremberg, which had opted for the more flexible standard of ‘shape or influence’.68 More fundamentally, progressive abolitionist thinkers and activists are skeptical about the use of (international) criminal law as a tool for peace and justice more broadly.69 At the very least, the retrospective character of (international) criminal law is especially ill-suited in the case of war and aggression, where prevention should be our main commitment as the lives of millions are at stake.

It is, therefore, arguable that other international legal fields, such as international human rights law or disarmament law as articulated both in the UN Charter and specialised treaties are better situated to address the challenge of the political economy of war. Even though it is not my purpose to provide an exhaustive account of these fields, it is true that many legal resources remain largely untapped. The UN Charter Articles 11 and 26 give the UN General Assembly and the UN Security Council respectively the authority to lay out the general direction and details of disarmament. Even though the UNGA has been making use of these powers, Article 26 remains largely unused since the early stages of the Cold War.70 One need cannot be naive about the possibility of the P5 making full use of the provision, since it is them (and some of their client states) who are the biggest manufacturers and exporters of arms. However, the sheer existence of the provision can operate as a locus for mobilisation and advocacy, especially with the assistance of sympathetic states. In 2008, Costa Rica, a (nominally) demilitarised state, used its status as a non-permanent member to remind the Council of its responsibilities under Art. 26.71 Costa Rica situated its efforts within the broader euphoria of the end of the Cold War and the promise of an effective multilateral system.72 This euphoria turned out to be mostly misplaced. As noted above, the decline of military spending turned out to be a temporary development and it now appears to be a largely forgotten imperative as geopolitical competition escalates. In the realm of international law in particular, Treasa Dunworth has documented how over the past fifty years disarmament law has moved from the core to the peripheries of the discipline with an ever-decreasing number of conference panels or publications dedicated to the topic, and the emergence of a small number of experts in what is now considered a disciplinary niche.73 More so, Anna Hood has shown that disarmament has not only been unevenly imposed and enforced but also that, perversely, has increasingly been used as a justification for the use or the threat of use of force.74

As with the ‘industrialists’ trials’ documented above, some of these shortcomings can very plausible be attributed to contingent developments within the discipline and international relations. However, the final section will argue that there are also structural factors underpinning this persistent failure.

4. Converging Logics: Markets, States, Law

We can only start where we are: after over one hundred years of attempting to use international law to name and regulate the political economy of war, we have failed to do so not only as a matter of material reality but also in terms of doctrinal and institutional development. This failure has been constant (although not identical) despite tectonic shifts in international law, institutions and politics. This is, I argue, because the political economy of war is subject to the mystifying influence of two distinct logics: the logic of the state and the logic of the market. The former logic is the result of the emergence of the sovereign, territorially-bound state in the early-modern period and its universalisation after successive waves of de/colonisation.75 This logic elevates the state into ultimate source of authority and legality and also to an end in itself: the preservation of the state becomes the state’s main priority and justification. Internationally, this logic links armaments and constant war preparedness to the survival of the state, usually through invocations of the (legal/moral/political) right to self-preservation and self-defence. On the national level, decisions concerning arms purchases and exports become prerogatives of the executive shielding them from judicial review, requirements of transparency, and accountability. The political economy of war becomes, then, linked to the survival of the state and encased in the secrecy, deference and exceptionalism that this imperative demands.

The logic of the market is also mystifying, but in different ways: as goods and services related to war are produced and circulated as commodities, a structure of irresponsibility arises out of the separation between use-value and exchange-value in capitalist markets. Capitalists produce for exchange and profit and this mechanism renders the end-use of all commodities, including guns, bombs, drones, irrelevant to those who produce and market them, since capitalists can always argue that they are not motivated by any preference for war but by ordinary market considerations. This irresponsibility is not only a rhetorical move or the product of legal design, even though law can augment or circ*mscribe this structure of irresponsibility.76 Rather, it arises out of the immanent tendencies of capitalism as such. This process of market mediation turns military goods and technologies into commodities mystifying their socially destructive functions, as their use-value is subordinated to their exchange-value. Often the logic of the market and the logic of the state diverge or even directly contradict each other opening up spaces for political and legal contestation.77 In this instance, they converge creating layers of obfuscation that are particularly hard to countenance.

As BS Chimni has documented, the logic of the state is all too familiar to international lawyers.78 International law is statist at its core: it understands state consent as the (principal) source of binding legal obligations and it also elevates the survival and continuity of the state into one of its central goals.79 The oft-repeated admonition that the UN Charter ‘is not a suicide pact’, notably in debates about jus ad bellum, speaks to this shared conviction that the survival of the state is a self-evident goal and even foundation of international law.80 Once a political community acquires statehood, its continuity through time is both presumed and protected by law, unless there are exceptional, compelling reasons pointing towards the opposite direction. In contrast, other legal persons, such as Indigenous peoples, need to carefully document their existence and survival through time for legal purposes.81 Even when the field’s state-centrism was nominally questioned in the 1990s and early 2000s, critical scholars pointed out that, in reality, it was only the statehood of weaker, non-Western states that was under scrutiny. The normative and legal centrality of other states within the international legal order was not only accepted but also augmented, as scholars (and some states) argued that hegemonic states could lawfully project military and economic power beyond their borders.82 When it comes to armaments in particular, states are generally considered free to pursue their own policies freely unless they have signed international treaties that prohibit specific types of armaments, especially in light of the inactivity of the UN Security Council mentioned above.83 More so, being well-prepared for war, including through the production and purchase of arms, is habitually considered to be part of the state’s right to self-defence. Self-defence has been read either as a way to preclude the existence of a generalised obligation to disarm or in order to delimit the scope of this obligation. For example, this ‘inherent right’ of the state was crucial to the ICJ’s (controversial) finding that the possession of nuclear weapons alone does not amount to an unlawful threat to use force.84 Despite the unique circ*mstances of this opinion, which was decided by the casting vote of the Court’s president, its core argument that the development, possession, and trade of weapons cannot be outlawed due to their links to self-defence is commonplace within the field. This deferential attitude toward states’ military spending and armament was also crucial for the acquittal of the German capitalists after World War II. As stressed by the majority in the Farben case, the Allies did not criminalise complicity in rearmament per se, nor did they conceptualise the sheer involvement in Germany’s illegal as complicity to Nazi aggression.85 The defendants also successfully mobilised the mystifying power of the logic of the state by arguing that they were convinced that rearmament was only intended for defensive, and therefore, lawful and legitimate purposes.86

This process of mystification also has a domestic counterpart. Military and security contracts as well as weapons exports are generally considered a prerogative of the executive and they are shielded both from judicial review and from democratic accountability and debate. The logic of the state admits to the special nature of weapons as intimately linked to sovereignty and state survival and requires special forms of licensing for their export that sets them apart from other commodities.87 However, efforts to challenge this licensing process have been generally unsuccessful across jurisdictions. In early 2024, a US judge expressed serious concerns about Israel’s military campaign in Gaza, especially in light of the ICJ finding that there was a plausible case of Israel violating the Genocide Convention.88 In an order that made plain his frustration, the judge rejected the plaintiffs’ motion for an injunction and granted the executive’s motion to dismiss. His reasoning was the weapons exports constitute a political question that falls squarely within the executive’s discretion and is non-justiciable.89 Other domestic courts have reached similar conclusions following similar rationales.90 In the realm of democratic accountability, even though national security budgets are approved by parliaments, the specifics of particular contracts are within the discretion of a highly professionalised and bureaucratised executive and protected from public scrutiny through various layers of secrecy and national security laws.91 Finally, national, supranational, and international legal systems provide for broad exceptions to competition or public procurement laws when it comes to arms and other war materials. Even though different actors struggle over the precise meaning and extent of these exceptions, their sheer existence is not contested as it is widely seen as going at the heart of concerns about national security and preservation that are presumptively legitimate and logically and politically prior to concerns about competitive markets.92

If the logic of the state mystifies the political economy of war by rendering it exceptional, the logic of the market does the same by rendering it unexceptional. This is because in a capitalist society production is organised around exchange and profit with the fulfilment of human needs being incidental to this process. Adam Smith famously summarised this reality as follows:

It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages.93

Marx was less inclined to think about this reality in the register of virtues and vices. Instead, he noted that capitalism was historically distinct insofar all wealth assumed the form of commodities. In the process, individuals as well as societies as a whole became dependent on markets to satisfy even their most basic needs.94 However, the satisfaction of human needs is incidental to capitalist production. This is because commodities lead a double life: they have use-value and exchange-value. The former refers to the fact that they respond to some human need: they are used for sustenance, they provide shelter, they allow us to express ourselves and to ensure our physical safety and/or kill our enemies. As these examples illustrate, these needs can be basic or frivolous, noble or` morally questionable, and one need not accept that war or national security constitutes transcendental human needs to accept that related commodities and services respond to a real social demand.95

Besides their use-value, commodities also have, according to Marx and other classical political economists, exchange-value. Marx categorically rejected the idea that a commodity’s exchange-value is in any way a reflection of its use-value or of any material, tangible qualities of the commodity: such an approach would have trouble explaining the elementary fact that water, which is absolutely necessary for the continuation of human life, an infinitely cheaper than diamonds. This rejection led him to develop his controversial labour theory of value, which is still fiercely debated amongst Marxists.96 Even though it does not constitute the basis of exchange-value for Marx, the use-value of commodities is still of concern to capitalists insofar as it communicates to them information about consumer demand, and it helps them make (imperfect) determinations about what, when, and how to produce. However, the individual and social ends furthered by these commodities are of no concern to them insofar as they think as capitalists: a commodity may be used for social purposes that a capitalist applauds, rejects or is indifferent toward. What is important for her as capitalist is whether the production and sale of a commodity is profitable and, therefore, enables the continuing accumulation of capital. Rosa Luxemburg summarised this structural indifference as follows: ‘There are only commodities and buyers, and it is completely immaterial to him whether he produces instruments of life or instruments of death, corned beef or armour plating’.97 Competition between different capitalists, even in highly concentrated industries such as defence, means that capitalists who allow substantive considerations about end-use to effect their business decisions will be outcompeted and led to bankruptcy. To the extent, then, that capitalists act as personifications of an impersonal force, capital, they may end up facilitating processes and events that they otherwise find undesirable or even abhorrent. In the course of making these everyday decisions, they may even undermine the viability of capitalism as a whole, and even of ecosystems that sustain everyone. War and climate change are arguably two of the most stark examples of this tendency: capitalists might not desire open military confrontation, which can be highly disruptive nor do they generally aim at the undoing of the ecological foundations of human societies. However, due to the profit-motive and competitive market pressures, they end up contributing to both.98 Producing for capitalist markets for the purpose of profit-generation means that capitalists, workers, intermediaries become structurally irresponsible for the end-uses of their work and investments. To recall the IG Farben case discussed above, both the tribunal’s majority and Judge Hebert’s separate opinion had one assumption in common: their insistence that ‘normal’ economic activity alone could not ground criminal liability.99 My argument is that this consensus was not simply an ideological position or an idiosyncratic belief of the judges, but rather captured a fundamental truth about economic activity under capitalism being answerable to its own internal rationality rather than to social goals.

This structural irresponsibility becomes more pronounced in the context of modern corporate capitalism, financialisation, and assetisation. As Grietje Baars has observed, the corporate form is a way for individuals to insulate themselves and their personal wealth from the risk inherent to entrepreneurship and from liability for the potentially destructive effects of their economic activity.100 Again, the IG Farben case is instructive. As noted by Judge Hebert with more than a hint of frustration, the culpability of the corporation hard to deny and the issue only became complicated because it was not the corporation being charged but individual executives:

The corporate defendant is not under indictment before this Tribunal. If a single individual had combined the knowledge attributable to the corporate entity and had engaged in the course of action under the same circ*mstances as that attributable to the corporate entity, it is extremely doubtful that a judgment of acquittal could properly be entered. Recognizing this central fact there is considerable logic in the argument that, as Farben did not run itself, someone should be held responsible for what Farben did.101

Given the ongoing centrality of the corporation for modern capitalism, this disjuncture between the locus of accumulation and the locus of responsibility incentivises even more intense disregard of the impact of one’s economic activities. Overall, particular legal forms, notably the corporate form, or legal rules, such as those concerning manufacturer liability, might expand or restrict this structure of irresponsibility without being able to eliminate it.

Importantly, the turn of modern capitalism to financialisation and assetisation reinforce this structure of irresponsibility. By ‘assetisation’ I refer to the fact that nowadays capitalist accumulation does not only-or even primarily-rely on the production of commodities for market exchange but on the extraction of rents from assets, namely property capable of generating future income without being sold.102 Law and state policy are central to the creation of assets.103 For example, state policy that deprioritises public housing while also facilitating the ownership of multiple houses by a few owners turns housing into an asset. Intellectual property rights constitute some of the most valuable intangible assets with mergers between corporations often being motivated by a desire to gain access to company’s IP portfolio, rather than its productive capabilities.104 In this context, the concrete social impact of particular assets, such as IP rights over military technologies, recede even further into the background of economic decision-making.

All in all, the political economy of war is doubly mystified: it is both too exceptional, given its importance for the state and its survival, and too ordinary, through its embeddedness in capitalist markets. This double mystification makes it hard for law to describe, let alone regulate or condemn, the function of industries that make war possible. This mystification has indispensable legal dimensions, but is not reducible to law. This means that legal reform or foundational shifts in legal consciousness cannot undo the mystifying effects of the combined logics of the state and the market. This does not mean that legal struggles or contingent historical developments are immaterial or that concrete efforts to name, regulate, condemn, and unravel the political economy of war are invariably doomed to fail. Rather, recognising the operation of these two logics as a form of structural constraint when it comes to the political economy of war and international law has two implications: first, it allows us to explain why certain outcomes might not be certain but they are much more likely than others or, in Veitch words, why the structures of irresponsibility are ‘potentially complex but nonetheless patterned’.105 Knowing whether and why one is fighting an uphill battle is a pre-requisite for winning said battle.106 Second, being aware of these converging logics forces us to think more ambitiously both about law and about social co-existence more broadly: if our political economy and political forms not only rely materially on war but also perpetuate it by obscuring its operations, then they may need to change fundamentally.

5. Conclusion

Allow me to conclude this article by returning to the piece by Joan Robinson that I discussed above.107 Entitled The Second Crisis of Economic Theory, the piece chastised the economic orthodoxy of Robinson’s time for ignoring the most urgent social, economic, and ecological problems. She went so far as to pronounce the proliferation of cranks is a definitive sign of crisis and that, perhaps paradoxically, such cranks are preferable to the orthodoxy because at least the cranks realise that something is wrong.108 My purpose here is not to chastise my colleagues for the marginalisation of the question of the political economy of war within the discipline or for the ineffectiveness of legal tools, even though neither bodes well for the ability of the field to deal with the most pressing issues of our time.

Rather, my main contention has been that this persistent inability is not only the product of contingencies or ideological preferences but rather the manifestation of deeper, structural constraints, namely the mystifying impact of the logic of the state and the logic of the capitalist market. In this respect, this intervention has sought not only to recenter the question of how capitalism and war intersect and fuel each other, but also to raise a broader theoretical point about how our (legal) present is shaped by forces that are neither transhistorical and objective nor the products of individual legal rules or professional consciousness. Rather, the persistent failure of international law to address the political economy of war points at the limits of law’s power when it comes to issues that go to the heart of the state and commodity forms. This does not mean that these limits have been reached; far from it. It does, however, mean that as global anti-war movements put the political economy of war back in the political agenda, international lawyers need to be both responsible and realistic about both the complicity but also, the ultimate importance of our field.

*

ANU College of Law and Global Fellow, NUS Centre for International Law,Canberra, ACT, Australia, ntina.tzouvala@anu.edu.au

This piece was developed while I was a Senior Fellow with the International Rule of Law—Rise or Decline? Research group at the Free University of Berlin (September–December 2023). My sincerest thanks go to Professor Heike Krieger for her insightful comments and warm hospitality. Professor Christine Chinkin was the most generous and considerate chair and commentator for the Current Legal Problems lecture that this article grew out of. She has my full gratitude. The work also benefited from discussions with and comments by Douglas Guilfoyle, Darryl Li, Colm O’Cinneide, Nicholas Lamp, and Michael Fakhri. I am also grateful to the two anonymous reviewers for their generative feedback and encouragement, and to Professor Martins Paparinskis and Dr Deni Mantrazi for the kind invitation to deliver the lecture and for their patience and good humour regarding my scheduling indecisiveness. All errors and omissions are mine alone.

1

At the time of this piece’s writing, legal challenges against weapons exports to Israel were pending in front of courts in the Netherlands, Australia, and the UK. A similar case brought in front of a Californian court was dismissed on jurisdictional grounds.

Full disclosure is necessary: even though I find it hard to write in the first person, I have participated in many of these demonstrations and I share the protestors’ understanding about where responsibility for war and atrocity lies. This piece needs to be read in light of this fact.

2

South Africa gave formal, legal expression to theses accusations by initiating proceedings against Israel at the ICJ alleging various violations of the Genocide Convention. When this article was finalised, the ICJ had handed down its provisional measures order: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) Order of 26 January 2024.

3

Beyond litigation targeting Western weapons exports to Israel, a prominent example of this trend involves Mexico’s efforts to hold US arms manufacturers accountable for gun violence in the country: Leila Nadya Sadat and León Castellanos-Jankiewicz, ‘Mexico v. Smith & Wesson: Judge Dismisses Complaint Citing PLCAA and Standing Issues’ (2022) 26(15) ASIL Insights 1, available at: https://www.asil.org/sites/default/files/ASIL_Insights_2022_V26_I15.pdf.

4

Anne Orford, ‘Locating the International: Military and Monetary Interventions since the Cold War’ (1997) 38(2) Harv Int L J 443; Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (Cambridge UP, 2003); Marina Velickovic, ‘The Riddle of History Solved: How the International Criminal Tribunal for the Former Yugoslavia Narrated Bosnia’s History’ (PhD Thesis, University of Cambridge).

5

‘These questions proved crucial for my ultimate argument: that the [ICTY’s] ideological function could be understood as an ongoing effort to frame questions of justice (and violence) in identarian, as opposed to structural or distributive, terms, and that those terms reaffirm the need for particular kinds of legal interventions’. Marina Velickovic, ‘Ethical challenges of using trial transcripts for research purposes: A case study of the International Criminal Tribunal for the Former Yugoslavia’ (2024) 1 Lond Rev Int Law 19; Karen Engle, The Grip of Sexual Violence in Conflict: Feminist Interventions in International Law (Stanford University Press, 2020).

6

Madeleine Rees, Christine Chinkin, ‘Exposing the Gendered Myth of Post Conflict Transition: the Transformative Power of Economic and Social Rights’ (2016) 48(4) NYU J Int L Pol 1211; Daniela Lai, ‘Transitional Justice and Its Discontents: Socioeconomic Justice in Bosnia and Herzegovina and the Limits of International Intervention’ (2016) 10(3) J Inter Statebuil 361.

7

Rosa Luxemburg, The Accumulation of Capital (Routledge: London and New York, 2003 [1913]); Vladimir Ilyich Lenin, ‘Imperialism, the Highest Stage of Capitalism’ in Lenin’s Selected Works Vol. 1 (Progress Publishers: Moscow, 1963).

8

For a critical examination of the varying degrees of influence of Marxism and Leninism on post-colonial international lawyers see Robert Knox, ‘A Critical Examination of the Concept of Imperialism in Marxist and Third World Approaches to International Law’ (PhD Thesis, London School of Economics, 2014), 88–132.

9

For some examples see: Oji U. Umozurike, ‘The Domestic Jurisdiction Clause in the OAU Charter’ (1979) 78(311) Afr Aff 197; U. D. Umozurike and U. O. Umozurike, ‘Tanzania’s Intervention in Uganda’ (1982) (20) Archiv des Völkerrechts 301; Mohammed Bedjaoui, Law and the Algerian Revolution (International Association of Democratic Lawyers, 1961). I develop this argument in more detail in Ntina Tzouvala, ‘Marxism, War, International Law’ in Tom Dannenbaum, Eliav Lieblich (eds), Research Handbook on International Legal Theory and War (Edward Elgar, forthcoming).

10

For a comprehensive account of its rise and fall see: Umut Özsu, Completing Humanity: The International Law of Decolonisation, 1960–1982 (Cambridge University Press, 2024).

11

This is approach hinges on a conceptualisation of Marxism as primarily a critique of abstract forms. For the implications of this approach for law in particular see: Darryl Li, ‘How to read a case: Ethnographic lawyering, conspiracy, and the origins of Al Qaeda’ (2023) 125(3) American Anthropologist 559; Rob Hunter, ‘Critical Legal Studies and Marx’s Critique: A Reappraisal’ (2021) 31(2) Yale J Law H 389.

12

Randy Martin, Financialization of Daily Life (Temple University Press, 2002); Randy Martin, An Empire of Indifference: American War and the Financial Logic of Risk Management (Duke University Press, 2007).

13

Ntina Tzouvala, ‘The “Unwilling or Unable” Doctrine and the Political Economy of the War on Terror’ (2023) 14(1) Humanity 19.

14

Nan Tian et al, ‘Trends in World Military Expenditure, 2022’ (Stockholm International Peace Research Institute, April 2023), 1.

15

Ibid.

16

SIPRI estimates place US 2022 spending at USD 877 billion and Chinese spending at USD 292 billion. Ibid 3. SIPRI has recently altered its methodology in the accounting of Chinese military spending to account, for example, for the militarisation of the country’s coast guard. See Nan Tian, Fei Su, ‘A New Estimate of Chinese Military Expenditure’ (Stockholm International Peace Research Institute, 2021).

17

Tian (supra note 14), 4.

19

The literature on the military-industrial complex is vast. For some recent examples from different theoretical-political perspectives see: Alex Roland: Delta of Power: the Military Industrial Complex (John Hopkins University Press, 2021); B. M. Blauet al, ‘Corporate lobbying and the value of firms: The case of defense firms and the 9/11 terrorist attacks’, (2022) 22(4) Int Rev Fin 759; E. Gentilucci, E. (2019) ‘US Military Spending: A Perspective on the Restructuring Dynamics of the Defense Sector’, (2019) 51(4) Rev Radical Pol Econ 606. On the rise of Big Tech and private equity as core components of the military-industrial complex see: Robert J. González, ‘How Big Tech and Silicon Valley are Transforming the Military-Industrial Complex’ (17 April 2024, Costs of War Project).

20

Christos Boukalas, ‘Class war-on-terror: counterterrorism, accumulation, crisis’ (2015) 8(1) Crit Stud Terror 55; Christos Boukalas, ‘Government by experts: counterterrorism intelligence and democratic retreat’ (2012) 5(2) Crit Stud Terror 277.

21

Rebecca U. Thorpe, The American Warfare State: The Domestic Politics of Military Spending (University of Chicago Press, 2014).

23

Paradoxically, this is how Donald Rumsfeld first rose to national prominence in the USA: Betsy S. Beasley, ‘The Strange Career of Donald Rumsfeld: Military Logistics and the Routes from Vietnam to Iraq’ (2019) 133 Radic Hist Rev 56. On the macroeconomic argument see Eduardo Morales-Ramos, ‘Defence R&D expenditure: The crowding-out hypothesis’ (2002) 13(5) Defence Peace Econ 365.

24

Ismael Hossein-Zadeh, The Political Economy of U.S. Militarism (Springer, 2006), 220–9.

25

For some examples see Ibid 228–9.

26

For a Keynesian argument in this direction see: Adam Tooze, ‘How we paid for the War on Terror: Or, why Keynesianism and functional finance demand politics’ (21 August 2021), available at: https://adamtooze.substack.com/p/chartbook-34-how-we-paid-for-the. For an empirical account see: Jeff Carter et al, ‘Guns, Butter, and Growth: The Consequences of Military Spending Reconsidered’ (2021) 74(1) Political Res Q 148.

27

Heidi Peltier, ‘We Get What We Pay For: The Cycle of Military Spending, Industry Power, and Economic Dependence’ (8 June 2023, Costs of War Project).

28

On the importance of class-analysis for international law see: Akbar Rasulov, ‘The Nameless Rapture of the Struggle: Towards a Marxist Class-Theoretic Approach to International Law’ (2010) 18Finn Yb Int Law 243; BS. Chimni, ‘Prolegomena to a Class Approach to International Law’ (2010) 21(1) Eur J Int Law 57; Mai Taha, ‘Reading Class in International Law: The Labour Question in Interwar Egypt’ (2016) 25(5) Soc Legal Stud567. On the limitations of liberal critiques of state-centrism see: Susan Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’ (2006) 19(2) Leiden J Int Law 339.

29

On the history, meaning and contemporary significance of the term see: Peter Custers, ‘Military Keynesianism Today: An Innovative dDiscourse’ (2010) 51(4) Race Class 79; James S. Cypher, ‘The Origins and Evolution of Military Keynesianism in the United States’ (2015) 38(3) J Post Keynes Econ 449.

30

See generally: John Maynard Keynes, John Maynard Keynes, The General Theory of Employment, Interest and Money (Springer 2018 [1936]).

31

Keynes’ decision to write a preface to the German edition of The General Theory in 1936 and the apparent approval of Nazi economic policy in this introduction has been a source of controversy and criticism, particularly from neoliberal political economists who (mistakenly) saw this decision as proof of Keynes’ authoritarian sympathies. See: Harald Hagemann, ‘The German Edition of Keynes’s General Theory: Controversites on the Preface’, available at: https://eet.pixel-online.org/files/research_papers/GE/The%20German%20Edition%20of%20Keynes’s%20General%20Theory.pdf.

32

Michal Kalecki, ‘Political Aspects of Full Employment’ (1943) 14(4) Political Q 322.

33

Paul A. Baran, Paul M. Sweezy, Monopoly Capital: An Essay on the American Economic and Social Order (Monthly Review Press, 1966), 209.

34

Tim Barker, ‘Cold War Capitalism: The Political Economy of American Military Spending, 1947–1990’ (PhD Thesis Harvard University, 2022), 6–10.

35

Michal Kalecki, ‘Inflation and War’ in Jerzy Osiatyński (ed.), Collected Works of Michał Kalecki Volume VI Studies in Applied Economics 1927–1941 (Clarendon Press 1996[1932]); Michal Kalecki, ‘Multilateralism and Full Employment’ in Jerzy Osiatyński (ed.), Collected Works of Michał Kalecki Volume I Capitalism: Business Cycles and Full Employment (Clarendon Press 1990 [1946]).

36

Jan Toporowski, ‘Multilateralism and Military Keynesianism: Completing the Analysis’ (2016) 39(4) J Post Keynes Econ 437.

37

Baran and Sweezy (supra note 33). For an overview of the debate and especially the schism between left-wing and liberal Keynesians see: Tim Barker, ‘Macroeconomic Consequences of Peace: American Radical Economists and the Problem of Military Keynesianism, 1938–1975’ in Luca Fiorito et al (eds.), Research in the History of Economic Thought and Methodology (Emerald Publishing, 2019).

38

Joan Robinson, ‘The Second Crisis of Economic Theory’ (1972) 62(1/2) Am Econ Rev, 8.

39

Ibid 7.

40

At the peak of the Cold War, US military spending was between 8% and 10% of the country’s gross domestic product (GDP), while today it remains below 4%. Even during the peak of the US ‘war on terror’, military spending rarely exceeded 5% of the GDP.

43

José E. Alvarez, ‘The Return of the State’ (2011) 20 Minn J Int L 223; Anne Orford, ‘How to Think About the Battle for the State at the WTO’ (2023) 24 German L J 45; Amy Kapczynski, Joel Michaels, ‘Administering a Democratic Industrial Policy’ Harv L Policy Rev (forthcoming).

44

Anthea Roberts et al., ‘Toward a Geoeconomic Order in International Trade and Investment’ (2019)22(4) J Int Econ L655; Kai Aiginger, Dani Rodrik, ‘Rebirth of Industrial Policy and an Agenda for the Twenty-First Century’ (2020) 20 J Ind Compet Trade 189; Chris Miller, Chip War: The Fight for the World’s Most Critical Technology (Scribner, 2022).

45

Preamble of the Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

46

Amongst many: Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013) (26) Leiden J Int Law 701; John Reynold, Sujith Xavier, ‘“The Dark Corners of the World”: TWAIL and International Criminal Justice’ (2016) 14(4) J Int Crim Justice 959; Anastasiya Kotova, ‘Violence in International Criminal Law and Beyond’ in Florian Jessberger et al, International Criminal Law: A Counter-Hegemonic Project? (Springer, 2023). Even though the notion of ‘evil’ is more theological than legal or analytical, Allot has pithily summarised many critics’ objections as follows: ‘Crude extrapolation to the global level of the criminalising of the antisocial conduct of individuals is a cynical distraction from the true problem, that is, the problem of the evil done by evil social systems’. Philip Allott, The Health of Nations: Society and Law beyond the State (Cambridge University Press, 2002), 37.

47

Grietje Baars, The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (Brill, 2019); Doreen Lustig, Veiled Power: International Law and the Private Corporation 1886–1981 (Oxford University Press, 2020); Joanna Kyriakakis, Corporations, Accountability and International Criminal Law: Industry and Atrocity (Edward Elgar, 2021).

48

Franz Neumann, Behemoth: The Structure and Practice of National Socialism 1933–1944 (Ivan R. Dee, 2009 [1944]). On the book’s influence on the prosecution of German industrialists, see Lustig (supra note 35), 69–111.

49

See: Kim Christian Priemel, ‘“A Story of Betrayal”: Conceptualizing Variants of Capitalism in the Nuremberg War Crimes Trials’ (2013) 85(1) J Mod Hist 69, 76–80.

50

See: Telford Taylor, Final Report to the Secretary of the Army on the Nueremberg War Crimes Trials under Control Council Law No. 10 (William S Hein & Co 1997) 22–23.

51

Kyriakakis (supra note 47) 75.

52

United States v Carl Krauch in 8 Trials of War Criminals before the Nuerenberg Military Tribunals under Control Council Law No. 10 (1952) (IG Farben hereafter). The other US-led case of industrialists that included aggression crimes was United States v Alfried Krupp 9 Trials of War Criminals before the Nuerenberg Military Tribunals under Control Council Law No. 10 (1952).

53

‘The evidence falls far short of establishing beyond a reasonable doubt that their endeavors and activities were undertaken and carried out with the knowledge that they were thereby preparing Germany for participation in an aggressive war or wars that had already been planned either generally or specifically by Adolf Hitler and his immediate circle of Nazi civil and military fanatics’. IG Farben (supra note 52), 1122.

54

‘As applied to the aggressive war counts, while concurring in the acquittals, I cannot express agreement with factual conclusions of the Tribunal which, in my opinion, misread the record in the direction of a too complete exoneration and an exculpation even of moral guilt to a degree which I consider unwarranted’. Concurring Opinion of Judge Hebert on the Charges of Crimes against Peace, 1210.

55

Ibid 1279–89.

56

Ibid 1291–7.

57

‘Some praise of the German Government appeared from time to time, but we cannot reach the conclusion that the advertising campaigns of Farben were essentially for the purpose of emphasizing Nazi ideology. Neither do we give great significance to the fact that the agents were instructed to avoid advertising in journals hostile to Germany. Such advertising policy would seem compatible with business judgment and would be without political significance’. IG Farben (supra note 40), 1122.

58

‘The record of I. G. Farben industrie, A. G., during the period under examination in this lengthy trial, has been shown to have been an ugly record which went, in its sympathy and identity with the Nazi regime, far beyond the activities of the normal business the defendants assert such action to have been’. Concurring Opinion (supra note 52), 1210.

59

IG Farben (supra note 52), 1120.

60

Ibid.

61

Concurring Opinion (supra note 54), 1272–79.

62

‘Intellectual property law creates legal relations among persons with respect to “abstract objects”, which in turn allows rights-holders to control access to the “physical reproduction” of those objects. And the resulting property rights structure power relations between groups within society’. Anne Orford, ‘The 2022 Annual Kirby Lecture in International Law: Why It’s Time to Terminate the TRIPS Agreement’ (2023) 41 Aust Year B Int Law 3, 9.

63

IG Farben (supra note 52), 1125.

64

‘If we lower the standard of participation to include them, it is difficult to find a logical place to draw the line between the guilty and the innocent among the great mass of German people. It is, of course, unthinkable that the majority of Germans should be condemned as guilty of committing crimes against peace. This would amount to a determination of collective guilt to which the corollary of mass punishment is the logical result for which there is no precedent in international law and no justification in human relations’. Ibid.

65

Morris R. Cohen, ‘Property and Sovereignty’ (1927) 13(1) Cornell L Rev 8; Robert L. Hale, ‘Coercion and Distribution in a Supposedly Non-Coercive State’ (1923) 38(3) Polit Sci Quarter 470. On the relationship between property and sovereignty in early-modern legal thought see Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300–1870 (Cambridge University Press, 2021); Anna Saunders, ‘Law after dominium: thinking with Martti Koskenniemi on property, sovereignty and transformation’ (2022) 13(4) Transnat Legal Theory 475.

66

Amongst many: Kevin Jon Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ (2007) 18(3) Eur J Int Law 477, 480–8; Alison Marston Danner, ‘The Nuremberg Industrialist Prosecutions and Aggressive War’ (2005) 46 Virginia J Int Law 651; Carrie McDougal, ‘The Crimes against Peace Precedent’ in Claus Cress, Stefan Barriga (eds.), The Crime of Aggression: A Commentary (Cambridge University Press, 2017). For a concise overview of the crime see: Douglas Guilfoyle, ‘Aggression’ in International Criminal Law (Oxford University Press, 2016).

67

‘General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise’. Lochner, 198 U.S. at 75 (Holmes, J., dissenting).

68

Heller (supra note 64).

69

Amongst many: Karen Engle, ‘Feminist Governance and International Law: From Liberal to Carceral Feminism’ in Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir (eds), Governance Feminism: Notes from the Field, (University of Minnesota Press, 2018); Amna A. Akbar, ‘An Abolitionist Horizon for (Police) Reform’ (2020) 108 California Law Review 1781; Natasa Mavronicola, ‘Coercive Overreach, Dilution and Diversion: Potential Dangers of Aligning Human Rights Protection with Criminal Law (Enforcement)’ in Laurens Lavrysens, Natasa Mavronicola (eds.), Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR (Bloomsbury, 2020).

70

See Hans-Joachim Schütz, ‘The Security Council, Functions and Powers, Article 26’ in Brunno Simma et al (eds), The Charter of the United Nations: A Commentary, Volume I (Oxford University Press, 2012).

71

Letter dated 10 November 2008 from the Permanent Representative of Costa Rica to the United Nations addressed to the President of the Security Council S/2008/697 (10 November 2008). It is important to note that Costa Rica’s demilitarisation is more myth than reality since the abolition of its army was accompanied by the militarisation of its police forces in collaboration with US counter-insurgency actors: Markus Hochmüller, Markus-Michael Müller, ‘The Myth of Demilitarization in Costa Rica’ (2023) 55(4) NACLA Rep Americas 370.

72

‘The historical situation that confronted the Security Council in the forty years following these resolutions meant that it was not propitious for the Council to take up the aforementioned mandates. However, that situation changed in the 1990s and, with the situation confronting the world in 2008, it is now entirely appropriate and indeed necessary for the Council to revisit these fundamental responsibilities bestowed on it by the Charter’. ‘Letter dated 10 November’ (supra note 69), para. 3.

73

Treasa Dunworth, ‘Disarmament law: A call to arms’ in Treasa Dunworth, Anna Hood (eds.), Disarmament Law: Reviving the Field (Routledge, 2021), 11.

74

Anna Hood, ‘The Under-Explored and Evolving Landscape of Coercive Disarmament 1919–2019’ in Ibid 40–1. On selective disarmament as a method of subordination of peripheral and/or ‘rogue’ states see: Anna Hood, ‘The Construction of Global Hierarchies through Disarmament Law’ (2024) 26 (1)J Hist Int Law46.

75

On decolonisation as generalisation of the state-form in and through international see: Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge University Press, 2011), 45–58.

76

On an incisive critique of law and irresponsibility that focus on modernity rather than capitalist see: Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering (Routledge, 2007).

77

This divergence does not negate the fact that for historically contingent reasons state and capital became interdependent. For an account of this interdependence and its importance for international law see: Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (Cambridge University Press, 2019).

78

Chimni refers to the ‘logic of territory’ rather than that of the state. Here I have opted for the latter because it denotes a broader range of functions, attributes, and ideals than the territoriality of the modern state. ‘The “logic of territory” is of fundamental significance because international relations and international law are not about a single state but a states system In the past, Marxists have not paid adequate attention to this fact, privileging the “logic of capital” in understanding international relations and international law. In contrast, IMAIL assigns a critical role to the “logic of territory” in the evolution and development of international law even as it closely looks at the interface between the “logic of capital” and the “logic of territory”’. B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (2nd edn, Cambridge University Press, 2017), 34.

79

On the self-reinforcing statist nature of the doctrine of sources in international law see: Rose Parfitt, ‘The Spectre of Sources’ (2014) 25(1) Eur J Int Law 297.

80

Amongst many: Thomas M. Franck, Recourse to Force: State Actions Against Threats and Armed Attacks (Cambridge University Press, 2002), 98; Devika Hovell, ‘Chinks in the Armour: International Law, Terrorism and the Use of Force’ (2004) 27(2) UNSW L J 398, 417; John C. Yoo, Will Trachman, ‘Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations’ (2005) 379(5) Chic J Int Law 385.

81

Natasha Wheatley, ‘Legal Pluralism as Temporal Pluralism: Historical Rights, Legal Vitalism, and Non-Synchronous Sovereignty’ Dan Edelstein, Stefanos Geroulanos, Natasha Wheatley (eds.), Power and Time: Temporalities in Conflict and the Making of History (Chicago University Press, 2020).

82

Susan Marks, ‘State-Centrism, International Law and the Anxieties of Influence’ (2006) 19(2) Leiden J Int Law 339.

83

This is despite the fact that numerous sectoral disarmament treaties contain provisions discussing the desirability of general disarmament. On the rise of the sectoral approach to disarmament see: Dunworth (supra note 73), 18–21.

84

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, 8th July 1996, paras. 47–48.

85

‘The IMT stated that “Rearmament of itself is not criminal under the Charter.” It is equally obvious that participation in the rearmament of Germany was not a crime on the part of any of the defendants in this case, unless that rearmament was carried out, or participated in, with knowledge that it was a part of a plan or was intended to be used in waging aggressive war’. IG Farben (supra note 50), 1111–2.

86

Ibid 1215.

87

Granting these licences is the prerogative of the executive branch. In Australia, the process takes places in the Department of Defence, while in the US it is the Department of State and Department of Commerce that may grant such licences.

88

Defense for Children International-Palestine et al v. Joseph R. Biden et al United States District Court, Northern District of California Case No. 23-cv-05829-JSW, 4.

89

‘There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza’. Ibid 8.

90

For example, both UK and Australian courts have systematically abstained from scrutinising the granting of such licenses on the merits. At the time when this piece was being finalised, a Dutch court ordered the government to cease the export of F-35 parts to Israel in light of clear risk of serious violations of international humanitarian law. The decision is not final and the Dutch government has announced its intention to appeal. León Castellanos-Jankiewicz, ‘Dutch Court Halts F-35 Aircraft Deliveries for Israel’ (Verfassungsblog, 14 February 2024), available at: https://verfassungsblog.de/f-35/.

91

For a detailed exposition of the US context see: Robert Knowles, ‘Delegating National Security’ (2021) 98 Wash U L Review 1117.

92

For example, Article 346 of the Treaty on the Functioning of the European Union (TFEU) exempts the defence industry from the market freedoms enshrined in EU treaties. The Article has been the focus of prolonged struggles between member-states, the Commission and the Court of Justice of the EU leading to the adoption of Directive 2009/81/EC.

93

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Chicago University Press, 1977 [1776]), 30.

94

‘The wealth of societies in which the capitalist mode of production prevails appears as an “immense collection of commodities”’. Karl Marx: Capital: A Critique of Political Economy Vol. 1 (Penguin, 1990 [1867]), 125. On capitalism as market dependence and its legal dimensions/implications see: Yochai Benkler, ‘Structure and Legitimation in Capitalism: Law, Power, and Justice in Market Society’ (26 October 2023), available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4614192.

95

‘The nature of these needs, whether they arise, for example, from the stomach, or the imagination, makes no difference’. Marx (supra note 91).

96

‘A use-value, or useful article, therefore, has value only because abstract human labour is objectified [vergegenstiindlicht] or materialized in it’. Ibid 129. On the controversial character of the labour theory of value see: G.A. Cohen, ‘The Labor Theory of Value and the Concept of Exploitation’ (1979) 8(4) Philosophy and Public Affairs 338; Nancy Holmstrom, ‘Marx and Cohen on Exploitation and the Labor Theory of Value’ (1983) 26(3) Inquiry 287.

97

Rosa Luxemburg, The Accumulation of Capital (Routledge, 2003 [1913]), 440.

98

On the climate-altering attributes of capitalism see: John Bellamy Foster, Marx’s Ecology (Monthly Review Press, 2000); Kohei Saito, Marx in the Anthropocene: Toward the Idea of Degrowth Communism (Cambridge University Press, 2023).

99

See notes 56–58.

100

‘The corporation “absorbs” any bad faith (or worse) on behalf of the individual: as per Lord Halsbury in Salomon: “the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are”’. Baars (supra note 47), 72.

101

Concurring Opinion (supra note 54), 1213. This frustration also speaks to the centrality of modern division of labour, bureaucratisation and rationalisation in the diffusion of responsibility in modern legal systems. See Veitch (supra note 76), 42–51.

102

Paul Langley, ‘Assets and assetization in financialized capitalism’ (2021) 28 (2) Rev Int Political Econ 382; Kean Birch, Callum Ward, ‘Assetization and the “New Asset Geographies”’ (2022) 14(1)Dialogues Hum Geogr 1; Lisa Adkins, Melinda Cooper, Martijn Konings, ‘The Asset Economy: Conceptualizing New Logics of Inequality’ (2022) 23 (1) Distinction J Soc Theo 15.

103

See Katharina Pistor, The Code of Capital: How Law Creates Wealth and Inequality (Princeton University Press 2019); Hyo Yoon Kang, ‘Patents as Assets: Intellectual Property Rights as Market Subjects and Objects’ in Kean Birch, Fabian Muniesa, Assetization: Turning Things into Assets in Technoscientific Capitalism (MIT Press, 2020).

104

Ibid 54.

105

Veitch (supra not 76) 28.

106

As I have argued elsewhere, the argument that paying attention to structural constrains (otherwise known as ‘necessity’) paralyses transformative action, while emphasising contingency enables it, is not convincing if we take seriously twentieth-century history: Ntina Tzouvala, ‘Contingency in the History of International Law?’ (Voelkerrechtsblog, 15 June 2021), available at: https://voelkerrechtsblog.org/contingency-in-the-history-of-international-law/.

107

Robison (supra note 38).

108

Ibid 8.

© The Author(s) 2024. Published by Oxford University Press on behalf of Faculty of Laws, University College London.