This essay examines the unfinished as both a diagnostic and a tactic for how we engage with the terrain of international criminal law (ICL). The diagnostic: recognizing that justice struggles against a five-hundred-year racial-capitalist world order are unfinished and ongoing. The tactic: seeking opportunities for strategically interrupting ICL procedures to keep the ends of justice an open question. In articulating this notion of the unfinished, this essay analyzes the implications of this diagnostic for challenging and troubling how justice is defined and delimited within the terms of ICL, while also exploring the strategy and tactics of “unfinishing” in reframing the ends of ICL.

In 1833, slavery was abolished across the British Empire, but its specter continued to haunt the new labor regimes inaugurated in slavery's wake. While much of the analysis of these dynamics focuses on the triangular trade in the Atlantic, this essay focuses on the Indian Ocean. Slavery was largely replaced by indentured labor in the Indian Ocean world, marking a historically significant shift in the political economy of empire, the legal architecture of labor, and the discourses through which the imperial racial capitalist system was legitimated and contested. In the decades that followed, labor became incorporated into market institutions that continued into the post-colonial era. Yet, today, almost two hundred years later, slavery's spectral presence continues to inhabit international labor policy. I argue that the reference to slavery was incorporated into discourses of protection and free contract in ways that sought to sanitize and rationalize regimes of indenture and wage labor in the Indian Ocean world. Thus, paradoxically, slavery is often invoked in ways that are disconnected from its own material history. This essay seeks to trace the persistence of that double move of invocation and disconnection as itself symptomatic of the past in the present. In the context of the nineteenth century labor regime transitions, we might describe imperialism, humanitarianism, and capitalism as having a Weberian relationship of “elective affinities.” Slavery's haunting of the political and normative imagination of alternative labor systems encapsulated those affinities by fusing the denunciation of slavery with the promise of protection and profit, redeeming humanitarian imperialism and commodified labor.

In advancing a Third World Approaches to International Law (TWAIL) analysis of customary international law (CIL) and its dominant doctrinal conceits, B.S. Chimni shows how the jurisprudence of custom has been co-constitutive with colonization and capitalism. He contends that CIL's most fundamental assumption—the “supposed distinction between ‘formal’ and ‘material’ sources of CIL”—privileges Western states while legitimizing CIL as a neutral and universal body of law. In dialogue with Chimni, this essay extends the conversation in two directions. First, I show that there are important resonances between Chimni's deconstruction of the distinction between “formal” and “material” sources of CIL, and a feminist critique of the public/private distinction in international law. Chimni describes his approach as postmodern. I argue that its analysis of the conceptual architecture of the dominant doctrine and its systematic exclusions is also, at its core, a feminist approach to international law. Second, and inspired by Chimni's critique, I explore insurgent jurisprudential traditions that challenge the hierarchies, inequalities, and biases in received doctrine regarding the sources of CIL. Chimni's decolonial approach acknowledges CIL's imperial past, and prepares the ground for democratizing and pluralizing sources by paying attention to a so-called opinio juris communis that incorporates the interests of those critical of, or oppressed by, the dominant world order. Building on this ground, I draw on the Panchsheel principles, first nations’ conceptions of sovereignty and citizenship, and practices of fugitive freedom by maroon communities to begin to supply content and form to a counterrepertoire of custom.