Introduction

In 2017 the Journal of the History of International Law, an important venue for showcasing the long-neglected historicist scholarship presently redefining the international legal field, published an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention.’ According to its author John Bennett, attacks by indigenous peoples against English settlers in early seventeenth-century North America constituted, under present legal standards, an act of ‘genocide’ (Jones and O’Donoghue 2017). Consequently, subsequent violence against indigenous peoples was ‘self-defence.’ A retrospective justification for settler colonial conquest that, in performatively eschewing ‘political correctness’, cast perpetrators as the actual victims, many of the more critical voices within the international legal field identified this article as an illustration of the far-right/white nationalist discourse of ‘white genocide.’ Accompanied by discursive formulations of ‘race suicide’ and the ‘great replacement’ that converge into an overarching victim narrative, this language of ‘white genocide’ forms a distinct evolution of white supremacist assertion in an era of ostensibly formalised racial equality (Ansah 2021). Given that the present day international legal field, through its promotion of universal equality in the name of universal human rights, is not normally inclined to such rhetoric, how exactly did ‘white genocide’ find its way into such an important international law journal?

Addressing this question raises deeper issues as to what ‘white genocide’ could possibly mean within the present international legal mind. With the publication of this article, debate focused largely on matters of peer-review/editorial standards and the scope of academic freedom (Heller et al. 2017; Reynolds 2020). Important as said matters may be, deeper substantive points remain. After all, why is it that despite genocide’s quality as a legal concept, and despite the historical complicity of international law in establishing and affirming patterns of racial hierarchy, so many international lawyers would see ‘white genocide’ as anathema to their field and, consequently, outside of their concern.Footnote 1 However, this approach has clearly demonstrated limits. The publication of Bennett’s ‘Forgotten Genocide’ article shows how lack of consciousness of far-right discourse and tactics by the international lawyers can enable the same far-right to infiltrate the field to disseminate its message (Jones and O’Donoghue 2022, p. 82). But what exactly might a more conscious and substantive international legal approach to the present far-right actually look like?.

In an oft-cited line popularised by Slavoj Žižek, Antonio Gramsci inadvertently spoke to many present sensibilities when he said ‘[t]he old world is dying, and the new world struggles to be born: now is the time of monsters’ (2012, pp. 42–43). What could be a more suitable depiction of a world where, despite a haemorrhaging of legitimacy, existing institutions appear utterly impotent when confronting issues that presently define a ‘futureless future’ (Goldberg 2021). On response to this has been a resurgence in explicit ideologies of race hierarchy previously believed to be discredited by faith in the inevitable march of progress. For such adherents, liberals seek to commit ‘white genocide,’ and their dismissal of this charge is an intellectually dishonest concealment of an argument feared for its truth (Reynolds 2020, pp. 170 − 71). However, while such beliefs may appropriately be described as monstrous, it makes little sense to view them in isolation from the greater ‘time of monsters’ sustaining them. International lawyers must not be ignorant of this reality. That said, I seek to contribute to a materialist approach that views pursuing a politics of emancipation as a touchstone for evaluating the worth of international legal engagement (Rasulov 2010, p. 253).

It is thus my argument that, in a manner symptomatic of our time, ‘white genocide’ discourse is profoundly enabled by the same liberal legalism that is consciously disgusted by any such belief. The great problem with liberal legalism on this point is, through its dual turns to abstracted individualism and incrementalistic aversion to fundamental systemic change, it eclipses radical alternatives while mischaracterising that which it criticises. In this instance, the ‘white genocide’ believing subject is an individualised failure of knowledge and morality as opposed to the outcome of complex social processes. Adapting this issue to Gramsci’s point, liberal legalism tepidly upholds institutional logics at odd with material realities that demand to be more radically responded to. As such, by propping up the decaying vestiges of an old order, it stunts a more suitably transformative alternative from coming into existence and thus empowers ‘monsters’ in the form of a cruel and nihilistic backlash against the vestiges of an old order hanging on to survival at all costs.

Beyond merely diagnosing this troubling state of affairs, I argue that a radical revival of utopian thinking offers perhaps the last best chance of defying this ‘time of monsters.’ On this point, the rhetoric of ‘white genocide’, in its various incarnations, provides a fascinating compass for navigating these dense patterns of meaning that speak directly to utopia, as well its conceptually animating other, ‘dystopia.’ After all, few things reveal the normative stakes of our shared inhabitation of the world more than the knowledge that human beings are capable of such destructive cruelty against one another. While centring these stakes as a matter of great urgency was a central pillar in the postwar project of liberal legalist legitimation (Shklar 1986 [1964]), in our present, ‘white genocide’ discourse is uncomfortable proof that the far-right can draw upon this rhetoric of genocide through a parodied exploitation of faltering liberal hegemony. The question then is how a left approach to underlying legal and political issues might transcend this troubling symbiosis of liberalism and the far-right while fully acknowledging the profound force of mass atrocity in the modern imagination.

Building an account on this basis, Part I provides an overview of ‘white genocide’ discourse and anticipates how a liberal international lawyer might rebut such claims. While there are certainly grounds to do so, namely through a focus on how genocide requires a high bar of intent to furnish criminal liability, such tactics risk diverting attention from the greater flaws and contradictions embedded within liberal legalism. In accounting for said flaws and contradictions, Part II turns to Jack Jackson’s Law Without Future and its portrayal of how radical right legal engagements undermine progressive politics. Applying this framework to international law, I construct a genealogy of the far-right as a constitutive ‘intimate other’ within the global regime of postwar liberal legalism — a troubling influence increasingly difficult to ignore. Part III then turns to issues endemic within the general concept of genocide that exceed the capacities of liberal legalism in a way that empowers the far-right.

In detailing these perils of empowerment, Part IV identifies a dilemma that liberal legalists could face in responding to far-right antagonism. On the one hand, adhering to existing rigid standards of genocide liability leaves liberal legalists unable to account for a vast range of harm. This raises fundamental legitimacy questions. On the other hand, approaching genocide liability in a more incrementally contextual way (that is nevertheless bound by liberal aversion to confronting deeper structural issues) risks making ‘white genocide’ all the more conceivable within international law. Finally, Part V provides a theoretical sketch of how a radical left embrace of utopian possibility might transcend the limits of a liberal legalism besieged by ‘white genocide’ discourse. Here, I draw upon Enzo Traverso’s Left-Wing Melancholia to show how the left might explicitly confront the depoliticised construction of victimhood underpinning the concept of genocide (encased by the cosmopolitan legal liberalism) that ascended in the exact 1989 moment where left revolution was toppled as an actually-existing political project. The limits of legal liberalism exposed by ‘white genocide’ discourse could scarcely provide a better occasion for revisiting utopian alternatives to making sense of mass suffering and death.

‘White Genocide’ and the Liberal Conscience

In our present global moment, the idea of ‘white genocide’ is a source of transnational unity amongst far-right white nationalists whose present existence is intimately linked to historical patterns of world white-supremacy.Footnote 2 At its most basic, ‘white genocide’ expresses fear of declining demographic fortitude amongst populations deemed ‘white’ as a result of declining birthrates, miscegenation, the ‘multiculturalist decay’ of traditional nationalist and civilisational morality, and high birthrates amongst those labeled ‘non-white’ — especially in immigrant populations (Perry 2004). Far from a harmless discussion point isolated from worldly impact, fear of ‘white genocide’ has motivated actions of the most disturbing description.

The majority of the world’s citizens gained consciousness of this belief patterning the wake of mass-murders by far-right gunmen who proclaimed their acts to be in defence of ‘Western Civilisation’ and/or the ‘white race.’ From Anders Brevik who killed 77 in Norway in 2011 to Robert Bowers who killed 11 a synagogue in Pittsburgh, Pennsylvania in 2018 to Brenton Tarrant who killed 51 at a mosque in Christchurch, New Zealand in 2019 — all believed in some variation of the ‘white genocide’ threat. All hoped that their actions would inspire others to violently rise against the ‘invaders’ and ‘enemies within’ who they believed to be manipulating systems with the calculated aim of extinguishing the white race as a people (Ben Am and Weimann 2020). Extreme as this may sound, through the eyes of ‘white genocide’ adherents, such extreme measures are not only justified, but they are also necessary to prevent extinction.

For believers in human equality and human rights, a category most international lawyers fall within to some degree, this notion of ‘white genocide’ is appalling to the point of incomprehensibility. From their perspective, conflating a denial of the proclaimed right to live in the white-dominated fantasy with the actual experience of genocide victims can only but reveal a moral character as stunted as it is deformed. Any other depiction would validate an unjustifiable equivalence between entitled delusions and some of the most conception-defying violence ever visited upon human beings. Unsurprisingly, those fearful of ‘white genocide’ do not often share the same factual consensus with those who would condemn them. After all, such beliefs are typically co-morbid with fixations upon a wide range of conspiracy theories (Wilson 2018). This is very much true of theories that portray violence against politically inconvenient victims, especially migrants, as hoaxes fabricated by those with conspiratorial (and potentially ‘white genocidal’) agendas for doing so (Rone 2022). As such, it is rather unsurprising that international lawyers have dedicated little attention to carefully analysing charges of ‘white genocide’ through their own particular disciplinary understandings of genocide. Many would likely see doing so as a waste of time at best and an absurdly vile degradation of their field at worst.

But what if, despite impulses towards dismissal, there are actual reasons for concerted engagement with ‘white genocide’ discourse as an attention-worthy socio-legal phenomenon? As Dirk Moses has observed, the uptick in violence driven by fears of ‘white genocide’ has not been followed by adequate efforts to understand it. In Moses’s assessment, the Western media’s typical portrayal of ‘white genocide’ believing killers as isolated and deranged ‘lone wolves’ disconnects their actions from the greater political contexts surrounding them — namely, an intensifying far-right political ethos demonising migrants and/or people of colour as ‘invaders’ and/or ‘parasites’ (2019, p. 213). With such sentiments often informing assertions of ‘Take Back Control’ in Brexit Britain or ‘Make America Great Again’ in Trump’s US (to give just two examples), surely this is somehow connected to recent instances of racialised violence? The fact that this connection is often minimised, ignored, or dismissed is a testament to just how normalised the beliefs giving rise to ‘white genocide’ conspiracies actually are.

In taking these points seriously, how would a self-appointed guardian of the universal definition of genocide respond? For the international lawyer seeking to debunk claims that shifting demographic patterns necessarily amount to genocide, a highly important consideration is the way ‘white genocide’ discourse hinges on how, despite common associations, an act of genocide does not require mass killing as a medium of group destruction. This is highly pertinent when considering the acts of genocide named in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and substantively reproduced in the Rome Statute of the International Criminal Court that most overlap with ‘white genocide’ discourse. These include: ‘[c]ausing serious bodily or mental harm to members of the group’, ‘[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction’, and ‘[i]mposing measures intended to prevent births within the group (Rome Statute 2002, art 6 (b), (c), (d)).’Footnote 3 It is precisely these actions that ‘white genocide’ believers believe themselves to be victims of.

However, for one familiar with the legal dynamics of criminal liability for genocide, direct conflation of these provisions with a claim of victimisation disregards the need to show a linkage between the crime’s material (actus reus) and mental (mens rea) elements. As such, even if ‘white genocide’ believers can link criminal provisions with fears of demographic decline, they still have the burden of linking this to an agent’s deliberate intention. This is made apparent by the fact that the named examples of genocidal violence in the Genocide Convention/Rome Statute are prefaced by the requirement that ‘the following acts [be] committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (Rome Statute 2002, art. 6). Without this condition of intent, any demographic decline has the potential to generate liability as an act of genocide.

Moreover, in a manner linked to preserving genocide’s top-tier status upon an informal hierarchy as the ‘crime of crimes’, the threshold for proving the requisite intention to commit genocide is distinct in its stringency. Influentially developed through the case law of ad hoc international tribunals created to adjudicate events publicly decried as genocide in the former Yugoslavia and Rwanda in the 1990s, a consensus emerged that, beyond the knowledge of wrongdoing that furnishes general intent, genocide requires a dolus specialis or specific intent (Aydin 2014). As foundationally established by the International Tribunal for Rwanda’s Akayesu case (1998, para. 122), the first genocide conviction of an individual in an international forum, the Court proclaimed this ‘intent’ entailed a distinct purpose to destroy a group in whole or in part. Mere knowledge of how an act will bring about group destruction is not enough; a perpetrator must consciously desire to achieve a genocidal result (Akayesu 1998, para. 498).

Adherence to the strict standard set in Akayesu was demonstrated by the International Criminal Tribunal for the former Yugoslavia’s (‘ICTY’) Krstić case (2004) which concerned the liability for the military commander who oversaw the infamous massacre of Bosniak Muslim men at Srebrenica. Despite the genocidal liability of the forces who directly committed the massacre, the ICTY’s Appeals Chamber overturned General Radislav Krstić’s conviction for genocide due to a lack of evidence he directly commanded his troops to act as they did, thus resulting in a failure to show specific intent (Krstić 2004, para. 134). Connecting the severity of the crime to the high bar for establishing liability, the Appeals Chamber stated that ‘knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent’ (Krstić 2004, para. 134). Though knowledge of the massacre justified convicting Krstić for aiding and abetting genocide, this was only possible through proving specific intent on the part of his troops (Krstić 2004, para. 143). Thus, for the international lawyer knowledgeable of such standards, if General Krstić could not be categorically convicted for genocide, how could this type of liability extend to someone who may, in the most attenuated and unconscious manner, be contributing to white demographic decline?

While it may seem a grotesque indulgence for many, comparing the facts informing the Krstić case to the fears of ‘white genocide’ believers reveals a chasm of incommensurability illustrating the character of this socio-legal phenomenon. In the mind of the ‘white genocide’ believing subject, racialised Others, conceived as animated by an inborn imperative to destroy whites and white society, are the massacring foot soldiers. The commanders akin to General Krstić (and his superiors) are a liberal intelligencia comprised of figures such academics, journalists, and progressive politicians who create and disseminate ideologies and policies of ‘multiculturalism’, and more recently ‘critical race theory’, that mobilise the natural impulses of those outside the category of ‘white’ to commit ‘white genocide.’ As such, requisite specific intent is obvious and even the very lack of evidence itself serves to reinforce this viewpoint. After all, such accusations of lack can be taken as proof of a conspiracy to deliberately conceal proof. Correspondingly, efforts to highlight the abject racism at the core of this thinking are liable to dismissal as ideological deflection from the ‘truth’ of the conspiracy and a refusal to engage in good faith debate.

Utterly ludicrous as it may seem to some, the ‘white genocide’ belief is fortified by a formidable barrier of mutually reinforcing racist and conspiratorial tropes that fit seamlessly with a coherent worldview that is alien to most who enter the international legal profession. This is evident in how many international lawyers concerned with such thinking choose to address it within the parameters of their skills and training. Prominent here is the larger metanarrative of how misinformation channels of ‘fake news’ and ‘alternative facts’, largely orchestrated outside the West (namely by Russia), are disseminating ‘white genocide’ conspiracies as part of an assault on the liberal international order (Aceves 2019). While there is certainly some truth to this characterisation, the attempts by international lawyers to synergistically apply their insights here (Ohlin 2020) generates several serious limitations. Chief among them is how, through its abstracted state-centric framing, international law provides a convenient means of externalising pathologies in a manner that diverts attention away from the forces within a society that produce and reproduce the very pathologies being confronted. A great problem with this line of engagement is that it portrays liberal legalism as a solution without careful scrutiny of how it might itself be complicit in bringing about the realities it consciously claims to disavow. After all, despite very real distinctions, both liberal and far-right conceptions of genocide rely on formulations of intent (however real or imagined) that fixate on individual malice at the direct expense of focus on the greater structural dimensions of power and violence (Krever 2013). An alternative jurisprudential framing is needed to make these connections.

A Genealogy of an Intimate Other

One text that provides an innovative framework for countering the externalisation of pathology from liberal legalism is Law Without Future by the American Constitutional scholar and political theorist Jack Jackson. Surveying varied manifestations of American law, Jackson identifies an emergent radical right jurisprudence fundamentally opposed to the defining traditions of both progress-based liberalism and precedent-based conservatism. Concerned with neither building a better future nor maintaining fidelity to the past, this radical right approach is prone to invoking law as matter of one-of exceptionality that fantastically affirms law’s authority not merely in spite of, but actively through, denying established legal justifications (Jackson 2019). To read this account through Paul Kahn’s (2019) recent depiction of ‘project’ and ‘system’ as the defining duality of American law, if liberal progressives see law largely in term of building ‘projects’ through exertions of agency and traditional conservatives as see law primarily as the discovery of a ‘system’ beyond human will, then the radical right jurisprudence in Jackson’s account is defined by its rejection of both ‘project’ and ‘system.’

Despite a vast array of logical inconsistencies when judged by more generally accepted jurisprudential theories, the socio-legal force of this radical right approach to law is difficult to overestimate. According to Jackson, a major issue concerns the deficient progressive response to this far-right usage of legal argument. In chastising the radical right for the dual sins of ‘lawlessness’ and ‘politicisation’ in relation to their deployment of legality, progressives affirm an ideal of the ‘rule of law’ closely associated with the precedent-based conservatism that was the traditional rival of liberal progressivism (Jackson 2019, pp. 3–11). Lost in the process is consciousness of how the ‘rule of law’, as a constraint on the exercise of political discretion, has historically limited transformative possibilities by enabling of the defence of established and entrenched interests. In other words, through its abstraction of actually-existing social relations, veneration of the ‘rule of law’ serves to obscure deep material inequities (Sultany 2019). Against such a backdrop, the imagination of ‘lawlessness’ is stripped of its revolutionary potential (Jackson 2019, p. 15).

While Jackson focuses on the rarefied domain of US Constitutional law, his account of the radical right’s sustenance upon the inadequacy-cum-complicity of liberal legalism is very much relevant for critical scholars of international law. Much like Jackson’s subject matter, international law is arguably defined by a tension amongst its adherents as to whether it should be best understood as a ‘system’ or ‘project’ (Mitchell 2020a). Consequently, it displays similar vulnerabilities to those who would reject both logics from the inside. Understanding these dynamics in the present is aided immensely by a genealogy of the radical right as a neglected, but constitutive, force in the production of a liberal international legalism that consciously disclaims any such influence. While the exercise of tracing origins is characteristically fraught and contestable, when placing the radical right as something of an ‘intimate other’ within international law, it is appropriate to revisit the interwar period.

On questions of international law and world order, it was at this moment that the radical right and liberal legalists became consciously aware of their distinctions — if not their shared presumptions. Against the intertwined backdrop of Bolshevik-initiated world revolution and rising anti-colonial nationalism across various contexts, both liberals and reactionaries felt besieged (Greenman et al. 2021). However, against such radical challenge, a distinct fissure emerged amongst those dedicated to shielding entrenched hierarchies and the legal-institutional measures constituting them. With the far-right, especially (though not exclusively) amongst those defeated in the First World War, came a political agenda based on the self-perceptions that they were the ‘have-nots’ when it came to claiming what was rightfully theirs. By contrast, the victorious liberal powers were presented as the ‘haves’ and their efforts to establish a novel mechanism of international order via the League of Nations was a veiled effort to render this arrangement permeant.

Such was the infamous position of the German jurist Schmitt (2003 [1950]), who, in a manner linked to his legitimation of the Third Reich, lambasted the League system as a false benevolence providing cover for Anglo-American domination via its regime of ‘spaceless universalism.’ Against such fraudulently abstracted designs, for Schmitt, on what basis was it illegitimate for Germany to assert its authority as a Reich over the East-Central European Großraum as a matter of ‘concrete order’ (Carty 2001)? While much has been and can be said of this, what makes the Schmittian frame interesting for present purposes is how his position parallels the radical right jurisprudence identified by Jackson, whereby law is the naked fetishization of the actualised self-justifying will to proclaim something as ‘law.’ A simultaneous assault on continuous systemic discovery and progressively implemented projects, lawful authority cannot be bound by its fidelity to that which already exists, nor can it provide the groundings of an emancipated future. The logic of law as a ‘system’ is its status as a perpetually open ‘project’ only available to those who embrace the fundamental truth of brutality as inescapable destiny. This common core of Schmitt’s thinking provides coherence in the face of shifting, yet foundational, analytical categories within his body of work that would otherwise be fatal jurisprudential errors.Footnote 4

However, the end of the Second World War brought about a seeming removal of any such far-right influence or affinity from agendas of liberal legality. As the Allies demanded ‘unconditional surrender’ of the defeated Axis powers, it appeared that only the former’s conceptions of normative order could ever again constitute ‘law’, properly understood (Otomo 2016, pp. 85–116). Ascendant was a distinctly American pragmatic liberal legalism that, in a manner linked to the unprecedented project of American global supremacy conceived during the war, increasingly served as a template for building regimes of transnational/global governance (Wertheim 2020; Giovanopoulou 2021). Geopolitically, the Cold War was integral in disseminating this understanding of legality as the US competed with the Soviet Union in offering alternative models of ‘development’ (broadly construed) to states in the Global South (Bâli and Rana 2019, p. 272). Through American centralisations of law in this capacity, developmentalist efforts were an important catalyst for what Kennedy (2006) has deemed a ‘third globalisation’ of law and legal thought whereby adjudication and policy analysis could seemingly offer a more technical objective means of achieving what explicitly politicised contention could not.

Moreover, as legal thought came to more explicitly disavow certain questions as irrelevant due to their ‘political’ nature, leading approaches to conceptualising ‘politics’ underwent a profound change itself. As Forrester (2019) has shown, influential Anglo-American scholars in the postwar era recast political questions as abstracted matters of normative philosophy increasingly decoupled from realities of material contestation. From citizenship to war to global poverty, no issue seemed to be outside this particular lens of analysis. When considered in conjunction with the transformation of legal thought, as law displaced more and more issues into the political realm, political thinkers increasingly resembled lawyers in their distancing of themselves from the political realities of political questions (Honig 1993). Underpinning all of this was a fear of ‘totalitarianism’ and the steadfast belief that an anti-utopian liberalism, idealised as the ‘rule of law’, was the only force that could ward off ‘totalitarianism’ from both left and right (Humphreys 2010, pp. 75–84).

In retrospect, this specific configuration of legal/political thought was perfectly suited to ignoring the machinations of the radical right that lingered and reformulated in its shadow. According to Jackson’s genealogy, two events proved hugely consequential in creating the radical right that is currently transforming American law — the detonation of the atomic bomb and the creation of the State of Israel. The former elevated human destructiveness from ‘man’s inhumanity toward man’ — a pattern of visceral person-to-person violence most iconically embodied by the Holocaust — to the distanced harnessing of nature itself for purposes of potentially apocalyptic devastation (Jackson 2019, pp. 85–88). The later demonstrated the possibility that biblical redemption could be achieved through temporal political means (Jackson 2019, p. 89–92). Interesting as Jackson’s observations are, especially applied to the American context, viewed on a broader scale, many additional imprints and compatibilities between the far-right and postwar liberal legalism become readily visible.

For instance, there were the ways in which Western powers actively aligned with far-right forces in the name of ‘anti-communism’ during the Cold War. While such anti-communist alliances with authoritarians in the Global South are well-known, lesser-known pattern of collaboration in Western Europe, often with important members of defeated fascist regimes, were constitutive of political realities in the states depicted as the core nascent constitutors of the ‘liberal international order’ viewed as model for global promotion (Anievas and Saull 2020, p. 371).Footnote 5 Additionally, there is neglected role of the far-right within the imperial metropoles during decolonization. While one force amongst many, far-right defences of empire played a profound role in shaping an overarching political landscape whereby institutions preserving a variety of imperial privileges were implemented in a manner that placed nigh insurmountable burdens on newly independent states (Stocker 2020; Koram 2022).

If certain developments of legal and political thought marginalised the visibility of the far-right during the Cold War era, such visibility became even more marginal in the post-Cold War era as visions of pragmatic anti-utopian legal liberalism now appeared to be without serious competition. While developments in this time are crucial, and will be discussed in greater detail below, it is important to first recognise how besieged this post-1989 hegemony actually is. Emblematic of this siege is the growing popularity of Schmitt across a number of contexts. Embraced by both the critical left and American Neoconservatives forming something a ‘pincer movement’ around triumphant liberal cosmopolitanism at the dawning of the Millennium (Teschke 2011, p. 180), two decades on, his thinking finds a newfound array of embrace in an era of increased multipolarity (Kalpokas 2016). In Russia, Schmitt plays a vital role in justifying militant projects of regional expansion in direct defiance of Western international legal proclamations (Lewis 2020). Relatedly, Schmitt commands an increasing audience in China as a proclaimed alternative to both liberal and state socialist groundings of lawful authority (Mitchell 2020b). However, rather than viewing such Schmittian invocations through the lens of indecipherable Otherness, an alternative is to uncover how weaknesses within existing models of liberal legal justifications create gaps susceptible to being filled by the far-right. In light of this extensive (if under-acknowledged) history, it is worth exploring how the discourse of ‘white genocide’ might fit within these broad patterns.

When is a Genocide not a Genocide?

When theorising how exactly ‘white genocide’ discourse has great potential to antagonise faltering regimes of liberal international legalism, we are aided immensely by recent substantive critiques of ‘genocide’ as a general concept. According to the political scientist Benjamin Meiches, to understand the political realities of genocide discourse, we must question the ‘hegemonic conception of genocide’ that serves as ‘a form of discursive practice which […] operates as if the concept of genocide may be defined by a more or less objective criteria, has stable political implications, and can be used to set up a static taxonomy or hierarchy for governing mass atrocities’ (2019, p. 12). In Meiches’ analysis, defining genocide in such a way necessarily means excluding forms of harm that fall outside the confines of the hegemonic definition, an exclusion that produces an endless wellspring of contested politics. Ironically, codifying genocide as a criminal offence preserves a source of permanent political contestation that, due to the legalistic disavowal of the political, is incapable of seeing itself as such. In contrast to the presumptions of legal liberalism, a universal definition of genocide will never be a source of universal political legitimacy.

In an intimately related capacity, Meiches (2019, pp. 66–71) also shows how genocide is unique in that it is explicitly based on recognising, and validating, distinct group identity. Thus, while every genocidal act is arguably chargeable as a crime against humanity, only genocide serves the vital political function of collective identity assertion. This issue is all the more complicated by the fact that group-identity formation is inseparable from extensive intertwined histories of imperialism, nationalism, and race hierarchy.Footnote 6 While extrapolating clearly-identifiable categories from these historical identity formation patterns (and their ongoing political legacies) creates innumerable challenges for abstraction-based models of liberal legalism, the crime of genocide as it presently exists rests upon the presumption that the reconciliation of liberalism and group identification is not only possible, but uncontroversial.

While Meiches’ analysis creates vast issues for defenders of liberal approaches to genocide, said issues become even greater when considering the recent intervention of genocide studies veteran Dirk Moses. Amongst his many points, Moses argues that, as a ‘language of transgression’, genocide presents a distorted view of mass violence and the reasons behind its commission. For Moses, depicting genocide as a ‘collective hate crime’, based on prejudice alone, places it in a measurably worse strata than violence justified through the language of military ‘necessity’ (2021, pp. 18–26). Genocide thus exists as a nigh-mythologised evil whose status as such in law furnishes a normalising defence to a grand array of violent acts from starvation via blockade/sanctions to arial bombardment to counterinsurgency warfare — practices that often originated through colonial imperialism. Even the violence of the Nazi Holocaust that became the template for the codification of genocide can be understood as exemplifying this logic of security through colonial expansion and pacification (Moses 2021, pp. 227–331). It was only through a reconfiguration of Holocaust memory in the 1980s that the ‘collective hate crime’ model of genocide became widely accepted as a depoliticised alternative capable of disavowing parallels and links between Nazism and Western colonialism (Moses 2021, pp. 479 − 81).

When considering these critiques of the genocide concept in light of the ‘law without future’ problem, we have a frame for interpreting ‘white genocide’ discourse and its significance. As the array of rules, principles, and institutions broadly deemed the ‘liberal international order’ precipitously declines (Porter 2020), many liberal international lawyers are retreating inward by doubling down on the internal logic of their field as the needed remedy. This reveals a particular duality. On the one hand, the violence of the present systemic breakdown results in situations where the legalistic condemnation of atrocity appears to be highly relevant. On the other hand, the ideological/discursive components of this breakdown fundamentally undermine the assumed conditions of an effective liberal legal ordering of world affairs. The confluence of these forces leaves no easy answers for liberal proponents of juridified accountability projects.Footnote 7 When considering how those who believe in ‘white genocide’ might exploit this situation, issues identified by Meiches, Moses, and Jackson assume a profoundly unsettling relevance.

In taking seriously Meiches’ observation on the problem of group identification, there is the matter of whether or not ‘whites’ constitute a group, and in what context. While many international lawyers would be less than comfortable rendering such a determination, especially in relation to charges of ‘white genocide’, the question nevertheless remains. This issue becomes all the more profound when considering under-acknowledged affinities. Even though ‘white genocide’ conspiracy theorists and liberal international lawyers often base their claims on incompatible factual presumptions they remain united by their pursuit of a hegemonic conception of genocide — albeit in parallel capacities. According to Meiches:

[t]he turn to the language of ‘white genocide’ mimics many of the discursive features of the hegemonic understanding of genocide and imports forms and motifs from the broader arena of genocide discourse […] [such as] territorial maps, descriptions of population flows, geographic tracking of violence and political factions, and, in essence, extensive histories that replicate the structure and cartographic practices of mainstream anti-genocide groups. (2019, pp. 232 − 33)

Such resonance is a testament to how consequentially under-theorised ‘race’ is within international law — especially international criminal law (DeFalco and Mégret 2019).Footnote 8 By viewing racialised categories as ahistorical objective designations, as opposed to the outcome of complex material-historical process, liberal legalists have recourse to an abstracted universality that solidifies their approach to genocide and its presumption of uncontroversial group identification. As such, an alternative view of ‘whiteness’ as a contingent historical identity formation inseparable from the exclusion and subordination of those deemed outside this category is not readily accounted for by the necessity of abstraction underpinning liberal legalists approaches to group identity.

Turning to Moses’ point on the ‘collective hate crime’ view of genocide, this model opens its liberal proponents to a broad array of hypocrisy charges. After all, if violence can be justified in a way where invokers of liberalism can never be held conclusively liable, how can their proclaimed rhetoric of universality be accepted as true? Failure to confront this point can certainly act as a catalyst for conspiratorial thinking amongst those skeptical of liberalism. Related, and more disturbingly, there are the ways in which the issues surrounding the ‘collective hate crime’ model might serve to exacerbate the very antisemitism its adherents seek to quell. It is not hard to imagine how for some, a regime of legality and meaning that signals Jewish victimhood as beyond comparison to other forms violence fits all too easily alongside conspiratorial thinking about secret control and manipulation of the world by Jews. This is especially relevant when considering the conspiratorial role ascribed to Jews in orchestrating the patterns of migration and demographic shifting deemed ‘white genocide’ — a sentiment embodied in the infamous slogan ‘Jews will not replace us’ (Winston 2021).

Finally, when considering Jackson’s characterisation of radical right legalism in relation to ‘white genocide’ charges, it is crucial that this approach is unburdened by fidelity to either past or future. Regarding the past, ‘white genocide’ believers are hardly concerned with unifying their commitments in relation to the historical atrocities that form the basis of mainstream international law’s commitment to preventing and punishing acts of genocide. After all, the event at the very source of this commitment, the Nazi Holocaust, is a tremendous controversy amongst the far-right and/or White Nationalists. Some deny it, some celebrate it, some see it as unfinished, and some see it as analogous to the destruction of their own imagined communities.

Regarding the future, the disavowal of reigning legal justification is even more jarring. When individuals express their fear of ‘white genocide’ they do not do so in a manner that condemns genocide in principle, quite the opposite. Rather than envisioning the solution to their problem as a future where all peoples are protected due to universal acceptance of the premise that genocide can never be justified, those feeling threatened by ‘white genocide’ have advocated violence, including genocidal violence, against the source of this perceived threat. Analogous to the various case-studies Jackson chronicles, ‘white genocide’ is offered as a one-off exception that defies legal reasoning while nevertheless proclaiming the supreme importance of invoking legal authority. Interesting, within this framing, the status of ‘white genocide’ as a ‘genocide that is not a genocide’ works two ways. The belief in being victimized by a ‘genocide that is not a genocide’ justifies preventive measures that could include exterminatory violence that, since done out of the perceived necessity of self-defence, can itself be presented as a ‘genocide that is not a genocide.’

On the Dilemma of Context

When taking issues of theoretical contradiction seriously, a liberal international lawyer faces a profound dilemma when responding to claims of ‘white genocide.’ On the one hand, they could, true to the established doctrine of the ad hoc tribunals, maintain a highly restrictive view of liability for genocide that firmly adheres to specific intent and deliberate purpose as the touchstone of this crime. On the other hand, they could embrace a more flexible and contextually expansive view of what could qualify as genocide and liability for its commission. Yet if ‘white genocide’ discourse can be understood as a phenomenon feeding upon the shortfalls and contradictions of liberal legalism, in the world as it currently is, each approach presents its own risks when it comes to empowering the far-right.

Regarding the first possibility of maintaining a strict view on liability for genocide, there is the wide-ranging question of the harms that fall short of this ‘official’ genocide label and, by extension, who has the legitimacy to pose challenges. On this point, facing pressure from antagonists, the self-anointed gate-keepers of mainstream legal definition can easily fall into a tendency of excluding as meaningless any theory of genocide that is not their own. Under this view, critiques of established sensibilities acquire a degree of parity regardless of who is lodging the critique and why. To discriminate amongst categories of genocide heretics would require an explicit exercise of political judgement and social analysis at odds with the ideal of objectively applying abstracted legal standards. While genocide’s present status as the ‘crime of crimes’ could scarcely have been constructed as it was without a complex alignment of political and social factors, for preservationist lawyers, its very existence atop such a normative hierarchy is reason enough to affirm it as such. Thinking otherwise might undermine the political will needed to entrench the anti-genocide norm within the international system. After all, how can the world be convinced of something when its greatest experts and proponents are not entirely convinced of the certainty of their own cause?

This evasion of socio-political context can be incredibly dangerous given that ‘white genocide’ believers are nowhere near the only group that defies the mainstream hegemonic conception of genocide. Prominently, populations catastrophically impacted by colonialism, especially settler colonialism, have long asserted claims as victims of genocide (Strickland 1985; Tennent and Turpel 1990). However, in doing so, they have received little recognition from existing institutions of international criminal law. The ongoing suffering of such peoples, which often manifests in ways that defy genocide’s common (and legally consequential) association with deliberate mass-killing, was, and continues to be, justified through the very colonial ideologies that those who fear ‘white genocide’ unapologetically adhere to today. However, important as such revelations are, could those opposing genocide through mainstream international legal mechanisms really ever be so callous as to equate paranoid white supremacists with those who have suffered unimaginably at the hands of their ideology? Former Chief Prosecutor of International Criminal Court Luis Moreno Ocampo’s comparison of anti-colonial critique of the Court’s interventions in Africa with Holocaust denial points far too close in the direction of the answer being yes (Mann and Tzouvala 2016).

Incendiary comparisons such as Moreno Ocampo’s are exceedingly dangerous if one takes seriously the political tactics of the contemporary far-right. Exemplified by the so-called ‘Alt-Right’ who proved so influential in the election of Donald Trump, a primary tactic is not to frontally advance a substantive vision of the good life, but rather to showcase the hypocrisy that manifests as their liberal (and conservative traditionalist) opponents tend to the internal contradictions of their belief structure. Largely developed within the sphere of online discourse, such fixations on hypocrisy go hand-in-hand with the techniques of ‘trolling’ and ‘triggering’ whereby extreme assertions are made to provoke a reaction that is then upheld as an enduring object of exemplification and ridicule (Nagle 2017). Upon becoming increasingly contemptuous of, yet captivated by, these displays of liberal hypocrisy and reactivity, newly politicised individuals become increasingly vulnerable to captivation by the substantive political agendas of a far-right disseminating these depictions of liberals — including the belief in ‘white genocide’ (Miller-Idriss 2022).

Regarding the second possible response, it is noteworthy that several scholars have taken issue with the strictness to which international tribunals have treated genocide and proposed more doctrinally open liability standards (Greenawalt 1999; Vest 2007; Ambos 2009). For Kai Ambos, a contextual distinction between planners and implementors could enable ‘knowledge’ of genocidal actions to furnish implementor liability beyond the strict standard of ‘purpose’ in a manner that better accounts for the command structures behind mass atrocities (2009, pp. 845 − 50). For Luban (2006), a broader approach is truer to Raphael Lemkin, coiner of the term ‘genocide’, and his vision of a world where assaults upon human plurality were roundly criminalised. However, the more substantive and contextual one is willing to go, the more one must confront the dynamics of racialisation that underpin group distinction in the modern world. In few instances was this truer than in the context of interwar Europe where Lemkin developed his ideas (Meiches 2019, pp. 44–51; Shahabuddin 2016, pp. 98–135). Here, visions of group protection were often inseparable from understandings of essentialised group identity presumed by territorially-exclusionist visions of ethno-nationalism.Footnote 9 As detailed above, for liberal international lawyers, the question is how one can meaningfully account for these contexts while nevertheless remaining behind a ‘veil of ignorance’ that enables formalised abstractions to ground universal judgment? There is no clear dividing line.

While this matter of ‘how much context’ raises numerous issues surrounding the status of ‘whites’ as a protected group, it also questions the certainty to which international criminal law can be used a medium for dismissing charges of ‘white genocide.’ As Robinson (2010, pp. 116 − 17) has shown, international criminal law is beset by a constitutive tension between a logic of criminal law premised on guaranteeing fairness to the accused, and a logic of international human rights/humanitarian law premised on expanding justice and protection for the victims. Since much critique in favour of using more contextual consideration to expand liability is directed towards the criminal law aspect of international criminal law, the human rights aspect would be a likely source of expansion towards this end. However, not only does international human rights law demonstrate similar blind spots regarding race and racism (Spain Bradley 2019), but it has already been deployed in a capacity showing the utter conceivability of ‘white genocide’ within international law (and how a modicum of contextual consideration could be said to have enabled this result).

Such conceivability was eminently displayed in the 2008 case of Campbell v. Republic of Zimbabwe before the Tribunal of the Southern African Development Community (SADC). In this case, a group of white Zimbabwean farmers, led by plaintiff Mike Campbell, challenged the legality of President Robert Mugabe’s land redistribution policy on the grounds of race discrimination against whites. Agreeing with Campbell’s contentions, the tribunal ruled that, although the regime’s policy never explicitly set forth a racially discriminatory standard, it nevertheless amounted to a violation of the 1969 International Convention on the Elimination of All Forms of Racial Discrimination due to its disproportionate impact on whites who owned vast swarths of the nation’s agricultural land despite being a very small percentage of the population (Campbell2008, IV). As such, the Campbell judgement represented an engagement with greater contextual considerations as a means of assessing social impacts invisible within the stated terms of the law.

However, the SADC Tribunal’s efforts to incorporate some context directly magnified how much additional context was missing. Absent in Campbell was consideration of how concentration of so much Zimbabwean land in the hands of whites cannot be separated from a colonial history where racial-cum-material legacies survived minority rule through capitalist presumptions on safeguarding the right to accumulated property interests regardless of the justice of their original acquisition. As Tendayi Achiume (2018) has shown, this history and political economy of race hierarchy and its legacies defines the consciousness of the vast majority of Southern Africans whose lives were, and continue to be, indelibly shaped by these meta-phenomena. Consequently, the decision represented a major instance of sociopolitical dissonance that vitally contributed to Mugabe’s largely successful campaign to limit the tribunal’s jurisdiction post-Campbell. Even Southern Africans highly critical of the Mugabe regime and its human rights record could not readily abide a decision that configured white landowners as victims of race discrimination without accounting for the social conditions which define Southern Africa (Achiume 2018).

When viewing the Campbell case and its surrounding context through the lens of how ‘white genocide’ discourse challenges liberal legalism, we can see how this issue of ‘context that is not context’ demonstrated through Campbell can enable the far-right. Violence in post-minority rule Southern Africa has fixated the imaginations of white nationalists globally as a site where ‘white genocide’ is actively taking place — a view efficiently transmitted through elaborate networks of far-right activists (Pogue 2019). For individuals inclined to this belief (in Southern Africa and beyond), the decision in Campbell can be taken as documented proof that ‘white genocide’ is in fact occurring and the accompanying backlash against the tribunal further affirms this point.Footnote 10 Here postcolonial critique of the tribunal can be depicted as a tragic afront to the ‘rule of law’ — a strangely ironic move given how many of the same far-right actors often conspiratorially view international tribunals as opposing ‘the people’ in the name of a cosmopolitan (and potentially ‘white genocidal’) elite (Koskenniemi 2019). Such is the power of a jurisprudential strategy whose sustenance upon the hypocrisies and contradictions of liberal legalism spares it from the burdens of internal consistency.

For a Utopia of the Vanquished

When carefully scrutinised, the seemingly nonsensical discourse of ‘white genocide’ wields vast power by enabling the radical right to lodge a future-eclipsing ‘law without law’ that exposes its opponents as ‘progressives without progress.’ In fixating upon the achievement and safeguarding of a hegemonic conception of genocide, international lawyers are made vulnerable through the very pursuit of what they perceive to be strength. Does this mean that the term ‘genocide’ should be categorically banished? Regardless of whether such a banishing is desirable at a metaphysical level, it is simply not feasible. For better or worse, genocide has captivated the imaginative sense of the world and thus sunk its roots deeply into political discourse on all levels — the force of ‘white genocide’ discourse is a testament to this.

Bearing this in mind, what then is an appropriate strategy for a left whose political exclusion is an inseparable component of the ‘law without future’ problem? In answering this question, a promising figure is the Marxist historian and theorist Enzo Traverso. A prolific scholar of fascism, antisemitism, and twentieth century atrocities, Traverso has not written anything irrelevant to how the left should confront the politics of genocide discourse. For present purposes, the key text of focus is Left-Wing Melancholia. Here Traverso examines the fate of Marxist utopia-building after the 1989 collapse of ‘real socialism’ that, in ushering in the liberal ‘end of history’, forced the worldwide left into a state of wayward melancholy. Before even engaging Traverso’s insights, we must remember that the same post-89 moment is precisely what empowered the grand triumph of liberal international legalism that now mimicked the utopian discourse of the defeated left — including its axiomatic language of ‘revolution’ (see e.g. Slaughter 1990). However, the women and men of 1989 did not, as we do now, have to consider the influence of a radical right capable of turning post-Cold War liberalism’s hallowed discourse of genocide prevention against itself. This subsequent development should give liberal cosmopolitan international lawyers every reason to feel melancholic.

While liberals and the left may both be experiencing melancholia, this does not at all translate into congruent political options. Following Traverso’s analysis, the left’s actually-existing melancholy may just be the secret to its construction of renewed utopian futures for the present world. Grasping this possibility of possibility requires a critical re-imagination of the meaning of human suffering that genocide discourse tirelessly seeks to explain. In Traverso’s framing, the left’s ability to understand its past traumas through its own theoretical tools was hamstrung by the mass-proliferation of liberal notions of victimhood after 1989 (2016, p. 57). From this perspective, victims are defined by their abstracted ‘pure humanity’ as opposed to the political convictions they held as actual tangible people. The rise of victim memorialisation along this particular line was devastating for the left.

As Meister (2011) has observed in the study of the ‘human rights discourse’ that emerged in 1945, but became hegemonic post-89, the depoliticised moral economy of victimhood was deliberately offered as an alternative to the left’s vision of revolutionary social transformation. It was at this time of enhanced international legalism that liberal humanitarian experimenters in post-conflict transformation saw profound opportunities to implement models of accountability and political reordering that were simply impossible against the geopolitical backdrop of earlier times (Soirila 2021). According to Meister’s analysis, the victim, according to this post-Cold War model of transitional justice, is provided a moral victory in exchange for abandoning efforts to radically redistribute wealth and reorder material social relations (2011, p. 69). Within the cannons of ‘human rights discourse’, such disavowal was necessary for breaking the cycles of violence enabled by revolutionary understandings that viewed nothing as beyond political contestation. However, without the possibility of revolutionary rupture, the ensuing state of affairs can be described as one of ‘permanent transition’ (Meister 2011, pp. 84–87).

When seeking an alternative configuration, despite vastly entrenched opposition, for Traverso, the contemporary left is more than capable of drawing upon its extensive ‘culture of defeat’ to devise alternatives to liberal victimhood rituals. This alternative, according to Traverso (2016, p. xv), is to replace the image of the depoliticised victim with the image of the vanquished who are remembered in direct relation to the political struggles they never lived to see succeed. On this account, imagining future utopias provides the possibility that the sacrifices of these vanquished might be redeemed in time.Footnote 11 In pursuit of this end, the left is well-served by revising its traditional conception of a history (through which it sought to scientifically chart its deliverance) through engaging subjective memory as source of political meaning in and of itself — even if just to overcome the trauma of a culture of defeat (Traverso 2016, pp. 83–84). At a moment when the utopias of the twenty-first century have yet to be built, consciously mobilising accumulated left-wing memory in the name of redeeming the vanquished might just be a source of revitalisation in awakening new visions of future emancipated societies.

Embracing this alternative, nebulous though it may be, has untapped potential in confronting the radical right in ways that defy the liberal conceptions that are proving so vulnerable in the present moment. The great problem with liberal victimhood narratives is their presumption that universal humanity commands a moral force that all can be convinced to affirm. So long as they remain unshakeable this presumption, liberal theorists cannot account for a belief system that rejects universal human equality and cannot be shamed into accepting it. Having placed itself outside the liberal vision of totality, the radical right is thus an inexplicably metaphysical evil to be feared as opposed to a worldly force to be analysed. The great liberal response to this fear has been to retreat ever-deeper into realms of increasing legalistic abstraction and abstracted legalism, an approach that stunts liberalism from within. The left, by contrast, has a far extensive tradition of materially and ideological analysing the far-right, including its conceptualisations of death and the dead (Neocleous 2005), and is thus able engage its operation in an exceedingly less paralysed capacity.

Perhaps even more fundamentally, those who mobilise in the name of redeeming the vanquished cannot abdicate their fight for the future. Liberalism’s victim commemoration impulse is, by contrast, adverse to radical imaginations of the future, especially in light of its tendency to emphasise how the victims it fetishises were produced out of the very desire to build utopian futures that resulted in dystopias. The mere fact that such victims were produced at all is grounds for dismissing any inquiry into the material context through which the production of these victims occurred. Lost in this focus is searching consideration of how failing to envision a utopian future might be just as, if not more, dangerous than actually envisioning utopia. After all, one need not assert a utopia to create a dystopia. This is arguably what post-Cold War liberal internationalism’s long series of disastrously failed interventions, and their curtailing of sovereignty, have in fact created (Cunliffe 2020). The philosophical premises of these interventions, which configure ‘humanity’ through depoliticised efforts to rectify its most extreme suffering a la an anti-utopian cosmopolitan morality, leaves little room for a politics of emancipating human potential (Cunliffe 2020, pp. 10–11). The radical right is more than eager to exploit such failures for its own purposes. Such are the stakes of engaging international law in this present ‘time of monsters.’