Dr. Thamil Ananthavinayagan, teaching associate at the University of Nottingham School of Law (UK), discusses the implications of racialized violence under international law in the wake of the recent mass shooting in Buffalo, New York...
“Either the United States will destroy ignorance or ignorance will destroy the United States,” said W.E.B. DuBois once. And now we have another day in the USA, another shooting by a white supremacist. Authorities say that an 18-year-old white male who apparently shot and murdered ten people in Buffalo, New York, was motivated by hatred and targeted a store in the center of a primarily Black neighborhood.
Officials say 11 of the total number of 13 victims shot by the white suspect at the Tops Friendly Market were African-American. Others grocery shopping, a gallant former police officer who tried to stop the attacker, a long-term substitute teacher, and a cab driver were all among the dead, who ranged in age from 20 to 86.
This article wishes to investigate: what could be the response of international law to racialized violence and white supremacy?
White Supremacy, Replacement and the US
It is alleged that the white supremacist from Buffalo was fueled by the “replacement theory”—a term which refers to the concept that immigrants and minorities are taking over white people’s political power and culture. The conspiracy theory has been linked by anti-immigration organizations and white nationalists to their baseless claim that pro-immigration policies were engineered by elites to destroy or undermine the white race.
According to the National Immigration Forum, iterations of this argument can be found in numerous forms, but the dominating talking point tends to rely on the false assumption that non-white immigrants would all vote a specific way and collectively weaken the dominance of the white race. Critical Race Theory (CRT) and the Third World Approaches to International Law (TWAIL), are two fields of inquiry/networks which will help us to dismantle the underpinning ideology of white supremacy. While CTR attempts to “… through the study of law and U.S. history, … reveal how racial oppression shaped the legal fabric of the U.S. … [and] is traditionally less concerned with how racism manifests itself in interactions with individuals and more concerned with how racism has been, and is, codified into the law,” TWAIL focuses on “revising the general theory of international law and unveiling its global history; questioning the functioning of the international order and the role of international lawyers within it; re-theorising the state and revising current discourses of constitutional order …” The analytic tools provided by CRT and TWAIL can assist in further investigation to encounter white supremacy. Why?
These analytical tools will help us to better understand how national security laws and practices in the United States racialize the Muslim population and other non-white people. This necessitates looking at these and other linkages between domestic and international law, because there is no domestic law without international law. This type of racialization analysis would go beyond legal theory in domestic and international law to see how these regimes are shaped by racist assumptions and presuppositions, some of which are more visible than others.
To this end the current United Nations Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Tendayi Achiume, wrote in her Annual Report in 2018:
Nationalist populism often successfully advances heteronormative, patriarchal visions of the nation, and a version of “traditional values” that leads to serious violations against marginalized social groups (including women, gender and sexual minorities, and persons with disabilities), especially when those who are socially marginalized are also racial, ethnic or religious minorities. It shores up the dominance of men and enforces rigid gender roles, denying women and others full agency, especially over their reproductive and sexual rights.
Nationalism and white supremacy are, to this end, a cultural phenomenon which then metamorphoses into a political form. Some argue that the new wave of resurgent nationalism around the world contains the potential to become a new internationalism. How can this type of martialism and racism be replied to in international law?
Racism and International Law:
Mohsen al Attar writes:
Racism, as we understand it today, was devised to justify the dehumanisation of the peoples whose lands and bodies Europe coveted. Denial of their humanity provided moral cover for plunder. Try as the European Union does today, it is impossible to whitewash Europe’s history of racial subordination, for Europe without racism is not Europe at all.
Eradicating racism on a global scale requires responding to specific acts in specific governments. Individual cases of racist police killings should not be treated as isolated, sporadic incidents that can be addressed solely by prosecuting perpetrators—asking why this happens, what are the domestic and global narrative that have contributed to it and how it manifests in other ways than police violence, such as socioeconomic inequality, is also essential. James Baldwin famously wrote:
At the root of the American Negro problem is the necessity of the American white man to find a way of living with the Negro in order to be able to live with himself. And the history of this problem can be reduced to the means used by Americans—lynch law and law, segregation and legal acceptance, terrorization and concession—either to come to terms with this necessity, or to find a way around it, or (most usually) to find a way of doing both these things at once. The resulting spectacle, at once foolish and dreadful, led someone to make the quite accurate observation that “the Negro-in-America is a form of insanity which overtakes white men.” In this long battle, a battle by no means finished, the unforeseeable effects of which will be felt by many future generations, the white man’s motive was the protection of his identity; the black man was motivated by the need to establish an identity.
The white supremacist and his emboldening structures is afraid of losing livelihood—but his livelihood is predicated upon the anonymity of the black body. To combat racism, as Anna Spain Bradley explains, one must first recognize it as a symptom of racial ideology. Racism’s function in creating a social hierarchy that positions some individuals are under and above based on manufactured racial categories is a common element that unites racism across countries and spaces. This racial ideology hierarchy maintains a power system that pervades law, the political arena, economic market, and the cultural sphere. Racism, on the other hand, causes suffering not only because of the offensive action committed, but also because of the humiliation experienced when a person or group behaves in the idea that they are superior to another group based on racial identification.
As the late bell hooks said once:
Understanding marginality as position and place of resistance is crucial for oppressed, exploited, colonized people. If we only view the margin as sign, marking the condition of our pain and deprivation, then a certain hopelessness and despair, a deep nihilism penetrates in a destructive way the very ground of our being. It is there in that space of collective despair that one’s creativity, one’s imagination is at risk, there that one’s mind is fully colonized, there that the freedom one longs for is lost.
Racism is finding its shelter in nationalist populist ideologies; however, racial equality remains a low priority for prominent players in the global human rights system. The long and enduring legacy of colonialism, as well as modern global mechanisms of racialized exclusion, necessitate a new, substantive approach to racial equality that clashes with the systemic forms of racial discrimination. The global human rights system must take an integrated approach to racial discrimination and carefully consider the experiences and knowledge of communities of color living on the frontlines of racial subordination in the Global North and South. But the agreement and the fight is not hierarchal: it is built by an international law from below: history tells that it will come from the citizens on the streets; the community organizers; the grassroots activists—all forms of dehumanization and bloodshed must cease, and that the institution of white supremacy shall end after more than 500 years.
Dr. Thamil Ananthavinayagan is a teaching associate in international human rights law at the University of Nottingham School of Law.
Suggested citation: Dr. Thamil Ananthavinayagan, To the Person Sitting in Darkness: Buffalo, Racialized Violence, and International Law, JURIST – Academic Commentary, May 19, 2022, https://www.jurist.org/commentary/2022/05/thamil-ananthavinayagan-racialized-violence-international-law/.
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