Courtroom drama and racism: Putting film on the stand

By Clémence Rebora

No other film genre conveys the idea of responsibility, to one’s beliefs and towards others, better than the courtroom drama. Using law as a tool to play with the audience’s belief in justice, courtroom dramas place a topical concept on trial rather than a single character. The success of the genre stems from its potential to captivate and engage an audience with tight pacing and camerawork, placing the viewer directly on the judge or jury’s stand. In a courtroom drama, a moral and legal responsibility is bestowed upon the litigating characters, but also implicitly on the audience. As the primary demographic targeted by film studios is white, the number of courtroom dramas aiming to put race on trial has exponentially grown since Robert Mulligan’s 1962 adaptation of To Kill a Mockingbird.

Through a contemporary lens, such movies can seem like an answer to what the world goes through, a solution to real-life prosecutions that do not benefit from the comfort of a fictional happy ending. The recent trial of Derek Chauvin, George Floyd’s murderer, has felt to many like a potential catalyst for change, despite many unsatisfactory elements. The use of single events as catalysts for movements or earth-shattering change is a good tool for fiction because it is engaging, especially emotionally. This is why we see such events translated into fiction, and the reason why the atrocious murder of George Floyd will likely become a narrative, much like the story of the Central Park Five.

Stories with a narrative, important to a specific moment in history, are often branded as relevant, but the concept of timeliness is dangerous to take at face value. The example of Aaron Sorkin’s The Trial of the Chicago 7 (2020) demonstrates how important the notion of ‘relevancy’ has become in contemporary filmmaking. The movie relates the events of early 1969, when eight men including Bobby Seale, Chairman of the Black Panther Party, and Abbie Hoffman, co-founder of the Youth International Party (‘Yippies’), were tried for conspiracy and rioting after demonstrating at the 1968 Democratic National Convention in Chicago. Considering the trial’s historical importance as encapsulating a deep-rooted political and racial dispute, representations in a limited runtime should have been cautious. Yet Sorkin’s movie misrepresents crucial parts of the trial’s events. While Bobby Seale barely resists when he is gagged in the courtroom in the movie, Seale in reality wiggled out of the restraints repeatedly. Another divergence from reality is the assassination of Fred Hampton by US police, which took place on December 4th, 1969 but which appeared before Seale was gagged in the movie. This dramatization of events is done unabashedly yet never acknowledged. Ironically, of all the reviews for The Trial of the Chicago 7, it would be challenging to find one that does not mention its ‘topical’ nature, especially at a time when the previous US President unequivocally denigrated (civil rights) protestors.

In reality, the movie failed to find the correct base for timeliness. Certainly, making a movie (or any piece of media) time-relevant has a marketing purpose, but one can wonder if the line between bait and sincerity is ever really set. This is all the more important when ‘bait’ becomes synonymous with ‘exploitation’, as academic Zoé Samudzi comments in her 2020 Art in America essay: “Where Blackness is en vogue and atrocity images are a hot commodity, it becomes difficult to produce a commentary or satire that does not read almost identically to the quotidian flows of violence”. The same can be seen in courtroom dramas, where the use of the white saviour trope often takes the focus away from anything that does not contribute to making the Black character(s) a worthy cause. When Black characters are relegated to plot devices and stripped of their agency solely to benefit a white character’s narrative, race becomes an ironic canvas for contradiction.
When films try and fail to illustrate reality, the risk becomes bigger than just that of a single trope or plot device; they come together in a dangerous rewritten history. Pretending that historical revision is acceptable even as it glosses over dark moments or waters down power struggles for the sole reason that audiences are expected to know the facts is harmful.

Furthermore, because film is a credible media, semi-fictional accounts of historical events risk supplanting our shared memory of events. This is even more damaging because it stops encouraging the viewer to question what they are watching. The example of The Trial of the Chicago 7 once again comes to mind, with its complete reduction of the pain inflicted upon Bobby Seale in the courtroom scenes. The movie misses the opportunity to relate the Chicago Trial in terms of the experiences of the eight men who faced it, and instead focuses on idealised versions of the white protagonists, particularly Sacha Baron Cohen’s Abbie Hoffman. This is made possible and effective thanks to director Aaron Sorkin’s reputation and acclaim as a potent political screenwriter, which allows the movie to surf a wave of wokeness. Yet this attitude to the source material does not only involve Sorkin but rather all of us, starting with the Academy who nominated The Trial of the Chicago 7 for seven awards, in the same breath as it nominated Judas and the Black Messiah, a black led movie recounting the events leading up to Black Panther figure Fred Hampton’s assassination, for three awards. The coexistence of such diverging versions of the history of Black people, some in which they are background characters and others in which they have a true place, confirms and upholds a gap between viewers: different interpretations of history are marketed towards different demographics based on how likely they are to believe them.

This is not a new phenomenon, but if movies like The Trial of the Chicago 7 work it is because audiences can weather seeing them, and because the glamourised rewritings of history are more comfortable to sit with than the often grimmer state of reality. This is also where relevancy becomes a trap: the implication of universal timeliness is a falsehood when a film is only really topical for those who fail to question the implications of its revised politics.

Call for Conversations: Beyond the Media Cycle

Summer 2021

With a 24-hour news cycle, we are constantly alerted to new crises breaking out across the world. Yet complex events seize the world’s attention for mind-bogglingly short amounts of time, causing constant shifts in public consciousness. Even when the world has stopped paying attention–even after the media cycle moves to the next big event–the tragedies continue. While we are no longer seeing an onslaught of news on a daily basis, India is still facing an extreme Covid-19 surge, dynamics in Israel and Palestine remain lethal to civilians, and police in America continue to murder black people at alarming rates. 

The Responsibility Collective invites contributions to our current Call for Conversations: Beyond the Media Cycle. How do we continue to care and take action to address events that are no longer prevalent in the media? How does the loss of the media attention feel to those directly impacted by these tragedies and by those a million miles away? We invite you to join the conversation. 

Submit Your Narrative

Eligibility Anyone and everyone is eligible to submit. You do not have to be affiliated with a school or institution. 

How to submit Send an email to our team at: responsibilitycollective@gmail.com.

Write “CFC Media” in the email subject line with your creative work attached. A member of our team will follow up with you.  We aim to create a space for open, respectful and constructive conversations through visual and written creative works. Share your experience on how the Black Lives Matter movement has impacted you. Show the world what’s going on in your community. Tell us your story. We can’t wait to hear from you.

“To Wash One’s Hands”: Challenges to International Justice in a Covid-19 Era

Stephanie Miller, University of St. Andrews, UK

A former research intern at the Global Centre for the Responsibility to Protect, Stephanie is currently studying for an MLitt in International Security Studies at the University of St. Andrews in Fife, Scotland. She previously earned her Bachelor of Science in Diplomacy and International Relations from Seton Hall University in South Orange, New Jersey.

Abstract

Since the World Health Organization officially declared Covid-19 a pandemic in March 2020, the ramifications of social distancing, quarantine, and other lockdown measures have been felt across the globe. The international human rights regime in particular has seen the detrimental consequences of limited judicial operations: increased violations compounded by the limited capacity of advocacy efforts have led to general impunity. This article assesses the state of affairs within the International Court of Justice and the International Criminal Court since the onset of the pandemic. It also highlights challenges for addressing abuses and conducting investigations and legal proceedings. Informed by public health guidelines and current attitudes towards justice and advocacy, it offers up considerations for future practice.

Introduction

As the Covid-19 pandemic continues to spread across the world, the international community faces unprecedented challenges to global justice. Exacerbated by a current climate “of global strengthening of authoritarianism and weakening of multilateralism, human rights and the rule of law” (Šimonović, 2020, p. 4), some states have utilized strictly mandated public health measures to suppress vulnerable populations, consolidate their power, and commit unspeakable acts of atrocity (Global Centre for the Responsibility to Protect, 2020).

In the midst of this crisis, the international justice mechanisms designed to combat such impunity are seemingly at a standstill. Caught between their mandates and the need to stop the virus, the courts can only offer a limited range of responses. The International Court of Justice (ICJ) grapples with questions of jurisdiction while using videoconferencing to handle procedural issues (ICJ, 2020, p. 1). The International Criminal Court (ICC) must juggle war crimes investigations with political and procedural obstacles (Mansour, 2020) while also considering requests for the prosecution of individual world leaders and the World Health Organization (WHO) for alleged international crimes committed under the guise of the Covid-19 pandemic (Canadian Institute for International Law Expertise, 2020).

Acknowledging the unique circumstances these mechanisms must now confront, this article poses the question: “What challenges does Covid-19 present to international justice?” It firstly seeks to provide a general assessment of the state of affairs within both the ICJ and the ICC since the onset of the pandemic. Secondly, this article details three broad aspects of international justice that have been impacted by the global pandemic and their relationship with court activities. Finally, this article draws on observations from key figures in the justice sector to propose considerations for the future. It ultimately asserts that in failing to adequately deal with the rising challenges posed by the pandemic itself and those who would seek to take advantage of it, the international community also fails in its responsibility to protect. While the continual failure of states to uphold this responsibility ensures that justice still remains elusive for many, the international court system has remained committed to responsibility, accountability, and timely management to the midst of the global health crisis.

Covid in the Courts: Assessing ICJ and ICC Action

Guidance and briefing notes from the ICJ and ICC offer insight into the priorities of each of these courts as the pandemic continues to unfold. The ICC Presidency’s “Guidelines for the Judiciary Concerning the Holding of Court Hearings during the COVID-19 Pandemic” centers around health and safety measures, limiting the capacity to conduct hearings to one hearing per day and closing all hearings to the general public (ICC, 2020b). While public statements reassuring the public of continued operations remain elusive, a review of ongoing activities reveal that the court has since been very active throughout the pandemic. For example, the trial in the case Prosecutor v. Al Hassan opened before Trial Chamber X of the International Criminal Court for crimes against humanity and war crimes allegedly committed in Timbuktu (Mali) on July 14, 2020, less than one month after the release of the ICC’s Guidelines (ICC, 2020a). The ICC previously managed the surrender, custody transfer, and initial appearance of alleged leader of the Sudanese “Janjaweed” militia leader Ali Kushayb in June (ICC, 2020c). It also began adjusting operational engagement so that its Trust Fund for Victims continued to provide service delivery to stakeholders (ICC, 2020d).

Outside of conducting its usual activities, the ICJ has been relatively quiet on how it is internally handling the pandemic. Its document “The Court adopts measures to ensure the continued fulfilment of its mandate during the COVID-19 pandemic” briefly outlines how the Court will continue vital operations despite the containment measures, citing the use of videoconferencing to handle procedural issues (ICJ, 2020). Nonetheless, the Court may yet play an important role in establishing accountability for the global health crisis. For instance, Alexander (2020) states that “the views of the world community are that China has not complied with the WHO’s International Health Regulations… This being the case, one could argue that China breached the human rights of its citizens.” Noting the Articles 6 and 7 of the International Health Regulations provide for timely, accurate, and sufficiently detailed public health information and information sharing respectively, Alexander goes on to argue that states looking to hold China accountable for pandemic-related crimes could invoke breaches of Articles 6 and 7 of the WHO’s International Health Regulations as a basis for establishing the ICJ’s jurisdiction.

In addition to this, De Herdt (2020) points out that the court may give an advisory opinion under Article 65 of the ICJ Statute, the purpose being to “offer legal advice to the organs and institutions requesting the opinion.” An advisory opinion from the ICJ would carry a sizeable deal of legal weight and moral authority in respect to the subject at hand, a move certainly more likely than any official action on the part of the court or the international community where China is concerned.

All in all, it appears that the international courts have remained active throughout the pandemic. However, emerging gray areas regarding justice and accountability within pandemic responses ensure that all is not business as usual. The rise of human rights abuses by states in recent months has called into question the general role of international criminal justice in the prevention of and response to public health emergencies. Guariglia (2020) asserts that despite the lack of a direct connection between international crimes and epidemics, “it can help isolate the actors behind the crimes, generate awareness of their actions and their potential consequences, and galvanize efforts to counter them.” Guariglia continues on to contemplate exploring the applicability of different modes of responsibility to authorities who deliberately fail to take necessary steps to contain the coronavirus. He notes that “it is not outside the realm of possibilities that the international criminal justice system be asked to hold to account those who use the COVID-19 crisis as an excuse to commit or perpetuate crimes against humanity or war crimes.”

In this vein, the ability of the ICJ and ICC to hold states accountable for such abuses is limited. While Chinese human rights abuses remain a question for ICJ jurisdiction, Ackerman (2020) says that similar complaints to the ICC will also likely go untouched, noting its role as a court for only the most egregious crimes. Though the Bolsonaro administration’s crimes against healthcare professionals in Brazil is most certainly a human rights issue (Al Jazeera, 2020), Ackerman points out that it does not meet the threshold for a crime against humanity and as such “will disappear into thin air at the Prosecutor’s office” (2020: 4). Ackerman ultimately asserts that bringing individual perpetrators to court for Covid-19 related human rights violations could devalue the ICC’s mandate in the eyes of the public. To be effective, he argues, civil society and international actors ought to utilize human rights law’s concern for the protection of individuals from the acts and omissions of States. Pressuring abusive regimes not only magnifies the issues but also expedites it to the court of public opinion, where humanitarian action is faster than a legal battle. In this sense, Guariglia’s considerations for holding perpetrators accountable for Covid-19 related abuses are more aspirational than particularly realistic.

Challenges

In May 2020, TRIAL International released a report identifying three aspects of international justice that have been affected by the global pandemic: an increase of human rights violations, crimes reporting and investigations, and the conduct of legal proceedings (TRIAL International, 2020a, pp. 1-11). While by no means exhaustive, the report gives a comprehensive overview of the challenges facing both states and international organizations as they wage a two-front war on the Covid-19 pandemic and those who would utilize global health measures to commit atrocities. For example, security forces continue to use excessive force against civilians in Nepal and the eastern regions of the Democratic Republic of the Congo (DRC) while enforcing quarantine lockdowns. Kasozi et al. (2020) observe that expectations of robust yet flexible pandemic control strategies have led to excessive use of force by police and armed forces in Kenya and South Africa. In doing so, they argue, government authorities contribute not only to serious human rights violations but also panic and anxiety amongst local populations. As with most state-sponsored atrocities, continued abuses of power and subsequent breakdowns in communal trust only perpetuate further violence.

With no end in sight for the Covid-19 pandemic, state abuses and violent communal responses will only perpetuate themselves unless intervention, governmental, local, or otherwise, takes place. UN special rapporteur Yanghee Lee warned that the Burmese military’s “significant” role in pandemic response has led to increased targeting of the Rohingya people (CNN, 2020). The military and its civilian government counterpart continue to target Rohingya civilians in Rakhine State, Myanmar, where a genocide against the Rohingya Muslim population began over three years ago (Independent International Fact-Finding Mission on Myanmar and United Nations, 2018). Abuses against the Rohingya minority and the general Burmese population have received attention since the pandemic began, with Human Rights Watch calling out excessive sentencing for Covid-19-related infractions (Human Rights Watch, 2020) and NPR reporting on restored internet access to Rakhine and Chin States (NPR, 2020). Nonetheless, with the genocide still ongoing and Covid-19’s disruption of ICC and ICJ operations, current arbitrations will be difficult to progress due to safety concerns and public health restrictions (ICC, 2020b).

Documentation of war crimes in the eastern DRC has also significantly reduced since the onset of the pandemic, mostly due to limited access to crime scenes. Because evidence collection is extremely time-sensitive, failure to act accordingly can result in the deterioration or disappearance of physical evidence and witness statements. This poses negative implications not only for investigations but also future legal proceedings. As noted by Labuda (2019), the International Criminal Court already has a severe “evidence problem,” as demonstrated by recurring system of evidence and oversight failures in Prosecutor v. Kenyatta and Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (Labuda, 2019). Pandemic-related issues with crime scene access and witness availability will only serve to exacerbate pre-existing conditions within the international justice system and jeopardize ongoing cases. This may be especially pertinent to the ICC’s ongoing war crimes inquiry in Afghanistan (ICC, 2019). Greenlit in March, the investigation already faces backlash of the United Stated government (Burke-White, 2020) and will continue to stall evidence collection as the pandemic devastates the country and limits mobility (World Bank, 2020).

In addition to this, TRIAL International points out that human rights advocacy and mobilization has “drastically slowed” since the onset of the pandemic (TRIAL International, 2020a). While combatting Covid-19 remains at the forefront of international attention, abuse monitoring and interventions have fallen to the wayside. Though the Human Rights Council condemned the Burundian government’s closure of the Office of the High Commissioner for Human Rights in March 2020, it is unlikely that cases of extrajudicial executions, torture, enforced disappearances, sexual violence and arrests, forced expropriations of property, and arbitrary detentions will be addressed while the pandemic is still ongoing (TRIAL International, 2020b). With international and regional judicial bodies operating at minimal capacity, much of the responsibility for reporting and action has fallen to local advocacy groups whose resources are already spread thin by the pandemic. This ‘out of sight, out of mind’ phenomenon not only reinforces the international community’s failure to exercise its responsibility to protect but also contributes to an overall loss of visibility that puts victims at risk and encourages perpetrators to commit further abuse.

Moving Forward

Given the limited capacity and overall challenges facing the international courts, options for justice for human rights violations in an era of Covid-19 may seem slim. However, with conscious considerations and adjustments for practice, reinforcing responsibility and achieving accountability is still within reach.

Despite Ackerman’s (2020) observations as to the feasibility of pursuing world leaders for human rights violations in international court, there is still a role for the ICJ and ICC to play in the crisis. As previously mentioned by De Herdt (2020), the ICJ’s ability to issue an advisory opinion upon request would bring much needed legal and moral authority while also contributing to the development and interpretation of international law. While the ICJ should be wary of the implications of issuing premature advisory opinion during this unprecedented time, this would help to close the gap regarding acceptable legal action about accountability for violations committed in the context of the pandemic. As far as the role of the ICC goes, the court’s continued commitment to maintaining a vital presence in communities affected by international crimes illustrates that building communal resilience remains a priority.

Reporting and conducting investigations while following pandemic health regulations will remain difficult for the foreseeable future. Social distancing measures and foreign travel restrictions will most likely make evidence collection challenging. However, Braga da Silva (2020, p. 1) offers a potential solution in third party investigations: “Evidence collected by third-party investigators will likely face challenges of admissibility in being introduced into trial. Those challenges could, however, be overcome if third-party investigations are regulated within the legal framework of the ICC”. While third parties would still have to adhere to public health protocol, with proper regulation and oversight third party investigators can preserve time-sensitive evidence needed for prosecution. While the potential for acquittals due to pandemic-related evidence loss remains to be seen, the very implication is enough to warrant a closer look at adapting current practices for the times.

In this same vein, both courts have already seen several changes in how legal proceedings are conducted during the pandemic. Barring public access and instituting necessary precautions are all positive steps towards continuing court operations under Covid-19 restrictions. Though limiting the number of hearings conducted each day certainly slows down due process (Crawford, 2020), it does not necessarily hinder it. Despite alterations to day-to-day procedure, all signs point towards the fact that it is still very much business as usual. Moving forward, each court should continue to be mindful of public health restrictions while also ensuring that justice is served and rights are not infringed upon.

Conclusion

In his statement on behalf of the International Center for Transitional Justice, Fernando Travesí (2020) writes: “The common expression “to wash one’s hands of something,” usually means to absolve oneself of responsibility for something. In the current global [health] crisis, the meaning seems to have been turned on its head. In washing our hands today, we are accepting, embracing our responsibility for others wherever they are. As we gaze upon the road ahead, may we similarly embrace our responsibility for the most vulnerable and for all victims of human rights violations all over the world.”

While the rise of human rights violations in the midst of the pandemic may appear to illustrate how states have washed their hands of their responsibility to protect, the same cannot be said for the international justice system. Though they face immense challenges to operation and procedure, many unprecedented, the ICJ and ICC remain open and active. Their capacity may be limited for now, but they have not forgotten their mandates to see justice and accountability for egregious crimes; investigations continue, and trials commence even as these courts grapple with the uncertain. How to investigate and try world leaders and other international actors for crimes committed during the pandemic? What is preferable, prosecution or advisory opinion? What is the role, if any, of the courts in the accountability process? These are the questions that must be solved.

What ultimate form international justice in the Covid-19 pandemic may take is still to be determined. In the meantime, civil society and the international community must remain vigilant. Despite these unprecedented circumstances, the international community is still responsible for bringing mass atrocity crimes to heel. Pandemic or not, failure to stop the most vulnerable cases from slipping through the cracks is a failure in the responsibility to protect. As Guariglia (2020) notes, “we need a global response. And global responses imply the international rule of law, global governance and accountability dimensions.” Supported by civil society, governance institutions, and international actors, that response must put human rights values at its core in order to be genuine and effective.

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Why China’s Treatment of the Uighur Minority Warrants an Investigation into Acts of Genocide

Inés Fernández Gallego, Utrecht University, The Netherlands

Inés Fernández Gallego holds a Law degree from the University of Valencia and an LLM in Public International Law from Utrecht University, specialising in international human rights law.

Abstract

In its Drélingas v. Lithuania judgment, the European Court of Human Rights ruled that the Genocide Convention can be raised when the aggressor’s conduct that falls within the scope of Article II of the Genocide Convention is carried out with an intent to physically destroy a part of a national-ethnic group that is composed of its most active and prominent members, regardless of their numbers, given their essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group. Whilst China’s treatment of the Uighur minority has been extensively studied from the perspective of ‘cultural genocide’, there is evidence suggesting that some acts carried out against certain Uighur figures, amid a wider context of political and cultural oppression, resemble those encompassed in Article II GC. If true, China’s actions could amount not only to cultural genocide, but also to genocide (within the scope of the Genocide Convention), due to the existence of certain key similarities between this case and the situation in the Drélingas v. Lithuania case.

Introduction

Since the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention or GC) entered into force in 1951, international courts and tribunals have interpreted its provisions in a dynamic and evolutive manner. The European Court of Human Rights’ (ECtHR) Drélingas v. Lithuania judgment, in 2019, was the first time that a supranational court ruled that the Genocide Convention can be raised when the aggressor’s conduct that falls within the scope of Article II GC is carried out with an intent to physically destroy a part of a national-ethnic group that is composed of its most active and prominent members, regardless of their numbers, given their essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group (para. 103).

China’s treatment of the Uighur national minority has been extensively studied from the perspective of ‘cultural genocide’, which is not recognised as a form of genocide under international law. However, credible and widespread reports show that some acts carried out against politically and culturally active and prominent Uighur individuals, amid a wider context of political and cultural oppression, resemble those encompassed in Article II GC. Whilst, if true, China’s actions could amount to cultural genocide, some similarities between this case and the situation in the Drélingas judgment suggest that they, too, could fall within the scope of the Genocide Convention.

The specific aim of this paper is not to prove the existence of a genocide against the Uighurs. Instead, this paper argues that even if China lacked an intent to physically destroy the entire national-ethnic group, this should not bar the international community from investigating whether acts of genocide are taking place. In putting forward this argument, the paper starts by describing the legal and political background to the Genocide Convention, followed by an explanation of some key terms found in Article II GC’s definition of genocide. The paper then analyses the role given to the Lithuanian nation’s representatives in the Drélingas judgment. Following this, it examines some key background information to the Uighurs’ situation, before laying out the reasons why such situation warrants an investigation into acts of genocide. In this regard, the paper first examines whether the Uighur minority is among the groups enumerated in Article II GC, and therefore protected. Secondly, it lays out and evaluates the evidence suggesting that acts described in Article II GC are being carried out against the Uighurs, through a series of policies. Lastly, it assesses whether the intent of such policies is genocidal. The paper concludes that, whilst it is clear that the Uighur are undergoing a cultural genocide, the international community should thoroughly investigate whether acts of genocide, within the meaning of the Genocide Convention, are also occurring.

The Journey to the Genocide Convention

The term ‘genocide’ was initially coined by Raphael Lemkin, who is colloquially known as the ‘Father of the Genocide Treaty’ due to his instrumental role in the drafting of the Genocide Convention (Hamilton, 2010, p. 643; Krstic, ICTY [Appeal] para. 10). The concept derived from the Greek genos, meaning ‘race’ or ‘tribe’, and the Latin suffix cide, which means ‘killing’ (Lemkin, 1944, p. 79). In his 1944 book Axis Rule in Occupied Europe, Lemkin defined genocide as “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves” (p. 79).

Subsequently, lobbied by Lemkin and passed unanimously, the UN General Assembly Resolution 96 of 11 December 1946, titled The Crime of Genocide, elevated the term to an international crime. Resolution 96 spoke in terms of the protection of human groups, specifically mentioning “racial, religious, political and other groups”. Furthermore, in 1947, in an article for the American Journal of International Law, Lemkin wrote that the term ‘genocide’ arose from the need to formulate a legal concept that described the destruction of human groups (p. 147). In the drafting of the subsequent Genocide Convention, however, fears that a broad definition of genocide would discourage states from ratifying the convention led to the drafting of a definition of genocide much narrower than that originally envisioned in Resolution 96 (Hamilton, 2010, p. 645; Nersessian, 2010, pp. 104 ff.). In this regard, “political and other groups” were omitted from the Genocide Convention, which was eventually adopted unanimously by the UN General Assembly on 9 December 1948.

For anyone familiar with the preparatory works of the Genocide Convention, it is hard to deny that the exclusion of political groups from protection under Article II had political undertones (UN GAOR 6th Comm. 3rd Session A/760/Corr. 2, p. 834; Schabas, 2000, pp. 139-40). In the late 1940s, the Soviet Union was heavily involved with the ‘Sovietisation’ of Eastern Europe. In pursuing these policies, Soviet forces had carried out, in recent years, numerous massacres to eliminate political opposition throughout Eastern Europe (Nersessian, 2010, p. 106). In that context, the Soviet Union would not have signed a treaty that covered political groups, as its own recent policies would have inevitably been questioned (Nersessian, 2010, p. 106). In the polarised post-World War II world, many other states would likely have followed the Soviet Union and also refused to sign the treaty. Therefore, while the records of the drafting process show that most states involved valued political groups as worthy of the same protection against destruction as national, ethnic, racial and religious groups, and initially hoped and voted for their inclusion in the Genocide Convention (see for example: UN Economic and Social Council, 1948, France, USA, China and Lebanon records), they eventually prioritised achieving a wider consensus sooner (Nersessian, 2010, p. 106).

The Crime of Genocide under International Law

In broad terms, genocide requires its perpetrators to carry out a certain prohibited conduct with an “intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such” (Article II GC).

The objective element of genocide has two dimensions. Firstly, it involves the carrying out of certain prohibited conducts; secondly, it relates to a specific targeted group. The conducts are: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group (Article II GC). Furthermore, the targeted group must be a national, ethnical, racial or religious group (Article II GC).

Likewise, the subjective element has two requirements. Firstly, it requires the criminal intent required to commit the specific offence, such as the intent to kill in the case of the act contemplated in Article II (a) GC (Darfur Report, para. 491). Secondly, it requires the perpetrator to have an aggravated criminal intent (dolus specialis): to destroy the group in whole or in part. In other words, the perpetrator has to consciously want the prohibited conduct to result in the destruction, in whole or in part, of the group as such, and the perpetrator has to know that the conduct will destroy, in whole or in part, the group as such.

The concept ‘in whole or in part’ refers to the perpetrator’s mens rea, not to the result (Schabas, 2000, p. 277). Following a quantitative approach to the term ‘in part’, a part of a group may fall within the scope of the Genocide Convention if it is substantial (numerically). The qualitative approach, on the other hand, entails that the destruction may target only one portion of the group, regardless of its size, because the perpetrators view its destruction as sufficient to destroy it in its entirety. Whilst judicial practice has traditionally placed greater importance on the substantiality requirement, it accepts a qualitative approach when the destruction of the targeted part would compromise the continued existence of the entire group.

The term ‘as such’ implies that the entity targeted is the group, not the individual (Akayesu, ICTR, para. 522; Kayishema and Ruzindana, ICTR, para. 99). So, destroying the individual is a means for achieving the ends of destroying the group: thus, the Genocide Convention protects the right to life of certain groups, ‘as such’ (Krstic, ICTY [Trial] para. 553). This trait distinguishes genocide from persecution, a crime against humanity, where the victims are targeted because of their membership in a specific group but the perpetrator does not necessarily seek to destroy the group as such, only (in some cases) the individuals targeted (for comparison, see Article 7 (2) (g) Rome Statute).

It can therefore be derived that international law only contemplates as genocide “the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups” (Lemkin, 1944, p. 79). In other words, it only classes as genocide the ‘physical’ or ‘biological’ destruction of a protected group. In contrast, the concept of ‘cultural genocide’ can be defined as the “disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups” (Lemkin, 1944, p. 79). In line with the above, the conduct known as cultural genocide is not recognised as a form of genocide by international law.

How the European Court of Human Rights’ Drélingas v. Lithuania judgment helped clarify some key differences between genocide and cultural genocide: the role of representatives

The case before Lithuanian courts

The Drélingas v. Lithuania judgment was the first time an international court ruled that the Genocide Convention can be raised when the aggressor’s conduct that falls within the scope of Article II (a)-(e) GC is carried out with an intent to physically destroy a part of a national-ethnic group composed of its most active members and representatives, regardless of their numbers, given their essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group.

In this case the applicant, Stanislovas Drélingas, was a former member of the Ministry of State Security (MGB) and of the Komitet Gosudarstvennoy Bezopasnosti (KGB) during the Soviet occupation of Lithuania (Drėlingas v. Lithuania, paras. 20-1). In 1956 he participated in the arrest of Vanagas, a leader of the Lithuanian anti-Soviet resistance (Drėlingas v. Lithuania, para. 8), and his wife Vanda, who was a Lithuanian partisan and liaison person of the partisans in the Dainava Region (Drėlingas v. Lithuania, para. 16). Following the arrest, Vanagas was killed and Vanda was sentenced to deportation in Siberia (Drėlingas v. Lithuania, paras. 29-32). Drélingas was tried in 2014 and convicted as an accessory to genocide under Article 99 of the Lithuanian Criminal Code (LCC), which came into force in 2003 (Drėlingas v. Lithuania, para. 33). This provision, enacted after Lithuania gained independence, expands the list of protected groups provided for in the Genocide Convention by including political and social groups in addition to national, ethnical, racial and religious groups.

The case reached the Lithuanian Supreme Court (LSC). Because a conviction for genocide can only be applied retroactively in accordance with its definition under international law (Vasiliauskas v. Lithuania, para. 184), the issue at stake was whether the applicant’s conduct constituted genocide under international law at the time of the facts. To determine that, the LSC had to decide whether the scope of the Genocide Convention extended to Lithuanian partisans, consisting of the members of the Lithuanian resistance to Soviet occupation, their liaison persons and their supporters (Drélingas v. Lithuania, para. 103), including Vanagas and Vanda.

In its judgment, the LSC defined the Lithuanian nation in terms of ethnicity and nationality. In this sense, an ethnic group was “a community of persons with a common origin, language, culture, and self-identity”, while a national group was “a historically developed community of people belonging to a certain nation, formed on the basis of language, territory, socioeconomic life, culture, national self-identity and other common characteristics” (LSC decision, para. 18 in Drėlingas v. Lithuania, para. 50). As such, Lithuanians were (or the Lithuanian nation was) a ‘national-ethnic group’, protected by the Genocide Convention. Meanwhile, Lithuanian partisans who engaged in armed resistance to Soviet occupation were described as a ‘national-ethnic-political group’ (LSC decision, para. 13 in Drėlingas v. Lithuania, para. 50).

Moreover, the LSC determined that Lithuanian partisans, as a distinct entity, formed, not only a substantial, but also a qualitatively significant part of the Lithuanian national-ethnic group. In this regard, the LSC found that the destruction of this distinct entity by Soviet forces “had the clear aim of influencing the demographic changes of the Lithuanian nation and its very survival, (…) facilitating the sovietisation of the occupied Lithuania” (LSC decision, para. 25 in Drėlingas v. Lithuania, para. 51). In other words, the LSC ruled that destroying the Lithuanian ‘national-ethnic-political group’ would result in the destruction of the Lithuanian national-ethnic group. This was not only because they represented a large number of people (around 150,000) and a substantial proportion of the population of 2.3 million but also because they played an essential role in ensuring the existence of the Lithuanian nation (LSC decision, paras. 26 and 29-30 in Drėlingas v. Lithuania, para. 52).

Consequently, the LSC upheld Drélingas’ conviction and he appealed against it before the ECtHR under Article 7 of the European Convention on Human Rights (ECHR) – “no punishment without law”. Specifically, he complained that the wide interpretation adopted by Lithuanian courts departed from the scope of genocide as laid down in international law, and therefore his conviction breached the principle of non-retroactivity (Drėlingas v. Lithuania, para. 76).

The ECtHR’s decision

In its 2019 judgment, the ECtHR found that there had been no breach of Article 7 of the ECHR. It ruled that, because they had played an essential role in protecting the national identity, culture and national self-awareness of a protected national-ethnic group, the destruction of Lithuanian partisans fell within the scope of the Genocide Convention (Drélingas v. Lithuania, para. 103). At first sight, this reasoning may seem to be based on the notion of cultural genocide.

However, whilst the Genocide Convention only prohibits the commission of ‘physical’ as opposed to ‘cultural’ genocide, this refers to the nature of the acts but not necessarily the intent (Krstic, ICTY [Appeal], Judge Shahabuddeen dissenting opinion ‘DO’, paras. 53-4). It can be derived from the ECtHR’s judgment in Drélingasthat the status of national-ethnic groups in the Genocide Convention has two dimensions. Firstly, any nation is protected. Secondly, a nation’s active and prominent figures can fall under the scope of the protected ‘part’ of the group, regardless of their numbers, when they are essential in protecting the nation’s culture and national identity and self-awareness (Drélingas v. Lithuania, para. 103).

Parting from the LSC’s definition of national and ethnic groups whereby a protected group (in this case the Lithuanian nation) is essentially formed as a result of the group identity of its members, surely, eradicating this group identity results in the destruction, physical and otherwise, of the group. In other words, if the group exists because of its members’ self-perception of belonging to the group, should this self-perception cease to exist the group would consequently cease to exist. Because the group existed due to a set of shared cultural features, it can be destroyed by putting an end to these cultural attributes. This idea seems to echo Rafter (2016, pp. 24-5), who described genocide as the destruction of the social or the physical characteristics that make up a group, as well as the Father of the Genocide Treaty himself (Lemkin, 1944, p. 79). Thus, by adding that a socially constructed group can be destroyed by destroying the group’s sense of identity, this line of thought builds upon the ‘theory of imagined identities’. This theory argues that all group identities are socially constructed and entirely subjective (Verdirame, 2000, p. 592 in Darfur Report, para. 499) rather than being physical, natural or hereditary, which is the argument posed by some proponents of objective approaches to group identity (see for example Akayesu, ICTR, paras. 512-4).

Judge Shahabuddeen made an interesting point in this respect in his dissenting opinion in Krstic’s appeal judgment (ICTY, Case No. IT-98-33-T, 2 August 2001), regarding the genocide in Srebrenica. He argued that the proposition that the intended destruction must always be physical or biological “overlooks a distinction between the nature of the listed “acts” and the “intent” with which they are done” (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 48). According to him, the question in Krstic was whether, to prove genocide, “it was necessary to show that the intent with which the individuals were killed was to cause the physical or biological destruction of the Srebrenica part of the Bosnian Muslim group” (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 49). In his opinion, a group is constituted by characteristics which are often intangible. Thus, if those characteristics, tangible or intangible, are destroyed through the commission of a listed act of physical or biological nature and with the required genocidal intent, it is illogical “that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological” (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 50).

Judge Shahabuddeen did not propose that the destruction of the culture of a group should be recognised as genocide under international law (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 53). Rather, he claimed that the “nature” of the act must be physical or biological, in accordance with the nature of the acts in Article II GC (with the exception of Article II (e) GC, which does not involve the physical destruction of the victims and is therefore considered to be considered cultural in nature (Schabas, 2007, para. 19)). But, he added, the “intent” to destroy the group “as a group” can be proved by evidence of an intent to destroy the cultural features of the group, except where physical destruction is expressly required in the law (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, paras. 53-4). For example, in Krstic, it was determined that the destruction of a mosque (an act of a cultural nature) confirmed an intent to physically destroy the Muslim community of Srebrenica (Krstic, ICTY [Appeal], Judge Shahabuddeen DO, para. 53).

In fact, such approach was not dissimilar to that of the International Court of Justice (ICJ). In Bosnia v. Serbia(para. 190), the ICJ recognised that whether a particular operation described as ethnic cleansing (arguably a form of cultural genocide) constitutes genocide “depends on the presence or absence of acts listed in Article II [GC], and of the intent to destroy the group as such. (…) [I]t is clear that acts of “ethnic cleansing” may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (…) inspiring those acts”.

Against this backdrop, this paper argues that the ECtHR’s decision is in line with the jurisprudence of international courts and tribunals. Even if killing the leaders of the Lithuanian resistance was done with the intent of destroying the cultural characteristics that created the group of Lithuanian partisans, this can still be considered evidence of genocidal intent. With the “nature” of the acts being physical or biological, that the “intent” of the perpetrator was, in a way, cultural or sociological does not prevent the case from falling within the scope of genocide under international law. In other words, the cultural (as opposed to physical or biological) qualitative significance of the Lithuanian partisans in relation to the Lithuanian nation does not prevent Lithuanian partisans from being a significant part of the protected group, thus protected under the Genocide Convention.

Recently, the Chinese Communist Party (CCP) has been accused of carrying out conduct which resembles the acts described in Article II GC against certain members of the Uighur community, in order to facilitate the full cultural assimilation into Chinese culture, known as ‘Sinicization’, of this community (see Finnegan, 2020; Zenz, 2019; Human Rights Watch, 2018). Whilst, if the accusations were true, the CCP’s actions could amount to cultural genocide, the ECtHR’s Drélingas judgment suggests that they, too, could be judged under the Genocide Convention as genocide. The following section gives some background information to the Uighurs’ situation, before laying out the reasons why such situation warrants an investigation into acts of genocide.

A brief history of Uighur nationalism and oppression

Most Uighurs live in the Xinjiang Uighur Autonomous Region (Xinjiang or XUAR), a North-western province of China with a Uighur-majority population, which was annexed by China in the eighteenth century (Human Rights Watch, 2005, p. 11). A Turkic-speaking national-ethnic minority, the Uighurs have a long history of rebelling against Chinese rule, but nationalist unrest grew stronger in the 1990s after the break-up of the Soviet Union. Because of the prevalence of ethnic Turkic population in the former-Soviet Central Asian Republics, when these territories became independent, the pro-independence movement in Xinjiang gained momentum, feeling that they, also, were entitled to national self-determination (Hyer, 2006, p. 79). While Chinese authorities initially claimed that the protests had been carried out by only “a handful of separatists”, since 11 September 2001 the government has connected the protests to international terrorism (Human Rights Watch, 2005, p. 16). To gain the support of the international community, the CCP portrayed the secessionist East Turkistan Islamic Movement (ETIM) as having direct links with Osama bin Laden and aspiring to launch a holy war to set up an Islamic state in Xinjiang (Information Office of the State Council of the PRC, 2002 in Clarke, 2007, pp. 337-8).

In the aftermath of 9/11, despite the absence of evidence that terrorist attacks were being orchestrated by the ETIM or other separatist groups, the Chinese and Xinjiang governments justified their repression of peaceful and lawful activities by arguing that “‘separatist thought’ is the new approach followed by dissident organizations that previously used violent tactics” and peaceful activists are “presumably waiting for the right moment to revert to their previous methods” (Human Rights Watch, 2005, pp. 19 and 21). This pre-emptive rationale was used by the CCP to justify arrests, heavy sentences and even the imposition of the death penalty on dissenting writers or non-violent groups advocating minority rights who were accused of and charged with terrorism (Human Rights Watch, 2005, pp. 19 and 21).

China passed its Counter-Terrorism Law (CTL) in 2015, whose scope was extended in Xinjiang by means of XUAR’s Implementing Rules on the Counter-Terrorism Law (XUAR-CTL). The latter “aims to prevent the spread of extremist ideas, whereas the counterterrorism law deals with terrorist acts” (Tiantian, 2017). The definition of terrorism in Article 3 XUAR-CTL is so broad that, “activities that may fall within the scope of legitimate religious practices in other jurisdictions are otherwise rendered as criminal acts” (Li, 2016, p. 381). As the US Department of State (2018) noted, China’s counter-terrorist activities are hard to distinguish from its suppression of ethnic-nationalism.

Under Article 38 XUAR-CTL, individuals who have been coerced to participate in terrorist or extremist activities which “do not yet constitute crimes” (Article 38 XUAR-CTL) can be detained in so-called vocational centres (detention camps). According to the Xinjiang government’s official website, the establishment of the centres responds to an urgent need to curb the “frequent occurrence of violent and terrorist cases and to eradicate the breeding ground for religious extremism” (XUAR Government Website, 2019). However, some activities that, according to China, cause national insecurity (defined as an external threat to a state’s sovereignty), in reality, only pose a threat to societal security (which concerns the protection of a society’s identity) (Clarke, 2007, p. 325). An example of this is Article 6(6) XUAR-CTL in connection with Article 3 XUAR-CTL. In addition, often Uighurs are detained without a charge when authorities suspect that they are practicing Islam. Examples of those arrested include restaurant owners who do not allow drinking alcohol or smoking in their restaurant and people who share Islamic teachings online (Human Rights Watch, 2018, p. 32).

In addition, no independent monitoring of these institutions is allowed and, according to former detainees, should they hope to ever be released, detainees are required to denounce their religious beliefs, language and culture and to assimilate into the Chinese language and culture instead (Human Rights Watch, 2018, pp. 3 and 35ff.). With over 3 million people either interned or forced to attend day and evening “study sessions”, there are widespread, credible reports of deaths, torture, and systemic political indoctrination in these institutions (Uyghur Human Rights Project, 2018, p. 3; Human Rights Watch, 2018, pp. 35ff. and 47ff ). Meanwhile, intellectuals and political and religious leaders who “keep the Uyghur culture alive through their dissemination of Uyghur history, knowledge, religious beliefs and language” (Finnegan, 2020, p. 10) have been sentenced to death for peacefully advocating the national self-determination of Xinjiang, under the name ‘Uyghuristan’ (Uyghur Human Rights Project, 2018, pp. 8-13).

Combined with the general policy of detaining individuals for practising their culture, the policy of killing, torturing and indoctrinating the most politically and culturally active Uighur risks destroying the Uighurs’ unique culture and national identity and self-awareness. Whilst Soviet propaganda disguised the genocide in Lithuania by framing it as ‘a central government’s fight against gangs’, as opposed to a ‘national resistance war’ (Vasiliauskas v. Lithuania, ECtHR, Judge Ziemele DO, para. 12), this resonates with the ongoing situation in Xinjiang, where the War on Terror is being used as a pretext to uphold the current legal framework that regulates national security, which formalises and systematises an intense suppression of non-violent Uighur culture and nationalism.

In line with the Drélingas judgment, if it can be demonstrated that China is carrying out acts which are described in Article II (a)-(e) GC against the most active and prominent members of the Uighur nation, intending to physically destroy them; that China does not intend to physically destroy the entire Uighur nation should not bar scholars and the international community from examining this situation from the perspective of genocide (as opposed to cultural genocide). Thus, the following sections evaluate, firstly, whether the Uighur minority is protected under Article II GC; secondly, whether any of the acts described in Article II GC are being carried out against the Uighurs (actus reus); finally, whether there is a genocidal intent behind such acts (mens rea).

The Uighur as a group protected under the Genocide Convention

In order to assess whether the Genocide Convention could be applied to the present case, it must first be established that the Uighur are among the groups protected in Article II GC. Concretely, they are a national-ethnic group (or nation), defined as a “community of people historically formed on the basis of a common language, territory, socioeconomic life, culture and national self-identity, with a common national, political and economic perspective” (LSC decision, para. 18 in Drėlingas v. Lithuania, para. 50).

The Uighur are a Turkic-speaking community of about 11 million, whose ancestors are traced back to the nomadic tribes who inhabited, in the seventh century, nowadays’ Southern Xinjiang (Human Rights Watch, 2005, p. 10). Their main religious traditions are moderate Sunni Islam and Sufism and they are a mostly rural population of commercial and cultural brokers, who were historically connected by the Silk Road (Human Rights Watch, 2005, pp. 12-3).

Self-identity refers to an individual’s awareness of what makes them who they are. In turn, national self-identity refers to an individual’s awareness of belonging to a group composed of people who share a common culture, history and national, political and economic outlook. National self-identity does not necessarily correlate with citizenship. In this respect, most Uighur have never fully accepted Chinese domination of Xinjiang (Human Rights Watch, 2005, pp. 13-4) and consider themselves different to China linguistically, culturally and historically (Hyer, 2006, p. 78).

According to the Human Rights Watch 2005 Devastating blows report, whilst Xinjiang was annexed by China in the eighteenth century, the central government’s effective control was temporarily lost as a result of the population’s opposition to Chinese rule (p. 11). In 1944, the Soviet Union backed an independent state under the name ‘East Turkistan Republic’, but negotiations between Stalin and Mao led to its reincorporation into China in 1949 (p. 11). The CCP promoted mass migration of ethnic Chinese (Han) into Xinjiang, to the point where the proportion of ethnic Chinese increased from 6 percent in 1949 to 41.5 percent in 1976 (p. 11). This policy sparked discontent among the Uighur, who, making up around half of the population, are the largest ethnic group in Xinjiang (p. 10). Firstly, they felt that their culture was being “diluted” (Clarke, 2007, n 5). Secondly, the Han population benefitted from the economic development in Xinjiang far more than the non-Han population, who remained politically and socioeconomically marginalised (Clarke, 2007, pp. 334-5). In relation to the rest of China, Xinjiang lags behind socioeconomically and, in relation to the Han population in the province, so do the Uighur – for example, their life expectancy is on average 10 years lower (Human Rights Watch, 2005, pp. 10 and 12).

The break-up of the Soviet Union and the independence of the Central Asian Republics, whose predominantly Turkic-speaking populations share cultural and ethnical links with the Uighurs, “invigorated the nationalist independence movement among Uighurs in Xinjiang” (Hyer, 2006, p. 78). According to Hyer (2006, p. 79), the “pro-independence demonstrations and other activities in 1997 were not momentary disturbances, but have deep historical and religious roots and will likely persist for the foreseeable future”.

Finally, deriving from the theory of imagined identities, all group identities are socially constructed and can only be determined subjectively, not objectively (Verdirame, 2000, p. 592 in Darfur Report, para. 499). Accordingly, a group is protected against genocide to the extent that the perpetrators perceive the shared identity of its members to possess the features socially associated with an ethnic, racial, religious or national group. In this regard, stigmatisation is a central element of the subjective approach to group identification. Uighur opponents to Chinese rule have been stigmatised throughout history, which increases the distrust between the Uighur and ethnic Chinese communities in Xinjiang. In the 1950s and 1960s, they were labelled ethnic-nationalists; in the 1970s and 1980s, counterrevolutionaries; in the 1990s, separatists; and currently, terrorists (Human Rights Watch, 2018, p. 8). These labels also reflect that the Uighur are seen as a national-ethnic group, particularly given that the CCP equates separatism (typically a nationalistic movement) with terrorism and extremism (describing them as ‘the three evil forces’) (Human Rights Watch, 2005, p. 10).

In brief, the Uighur, as a national-ethnic group, are protected under Article II GC.

Actus reus

Article II (a) GC: Killing of members of a protected group

In 2014-2016, Xinjiang launched a ‘strike hard’ campaign against terrorism (Amnesty International, 2017, pp. 29-30). Since then, prominent Uighur intellectuals have been sentenced to death for advocating separatism (Hoshur and Lipes, 2018; Illmer, 2019; Uyghur Human Rights Project, 2018, pp. 8-13). Usually, during this kind of campaign, the imposition of the death penalty, the lack of due process and wrongful executions tend to spike. However, according to the official records, no death sentence related to terrorism was imposed during that period (Amnesty International, 2017, pp. 29-30). Under domestic law, issues related to national security remain a state secret, so executions involving terrorism or separatism may not be recorded in the official database (Amnesty International, 2017, pp. 29-30). Therefore, whilst it is known that prominent Uighur intellectuals are being sentenced to death for advocating separatism, the exact magnitude of this issue remains unknown (Uyghur Human Rights Project, 2018, pp. 3ff.; Amnesty International, 2018, pp. 6ff.).

Article II (b) GC: Causing of serious bodily or mental harm to members of a protected group

Serious bodily and mental harm “results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life” which must be assessed on a case-by-case basis (Krstic, ICTY [Trial], paras. 512-3). In the trial against Adolf Eichmann, the District Court of Jerusalem stated that serious bodily or mental harm of members of the group can be caused “by their detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture” (District Court of Jerusalem, Adolf Eichmann Case, para. 199 in Akayesu, ICTR, para. 503).

In Xinjiang, reports of former detainees note their subjection to immense suffering in the camps, including having been forced to stand up for 24 hours, not having been fed for a week and having been forced to wear a metal outfit which does not let one bend their head for twelve hours (Human Rights Watch, 2005, pp. 47ff.). Under custody, women have been raped and subjected to sexual abuse (Hoja, RFA, 2019). Deaths in the camps have been recorded, some presumably caused by violent treatment or torture by authorities and others, by suicide (Human Rights Watch, 2005, pp. 47ff.; Hoshur and Lipes, 2017; Uyghur Human Rights Project, 2018, pp. 8-13). Detainees are constantly under surveillance, and so are the other Uighurs living in Xinjiang (Raza, 2019, p. 493; Human Rights Watch, 2018, pp. 15, 40, 75, 77; Australian Strategic Policy Institute, 2020, pp. 3-7; Hoja, FT, 2019; Danilova, 2018). In addition, there is an increasing number of prominent intellectuals and community leaders who keep disappearing and of detained people who are held incommunicado, which often results in torture or ill-treatment (Uyghur Human Rights Project, 2018, pp. 3ff.).

The Australian Strategic Policy Institute has also uncovered that an estimated 80,000 Uighur are subjected to forced labour, through a scheme facilitated by the government (Australian Strategic Policy Institute, 2020, p. 3).

In Xinjiang’s camps, detainees are subjected to severe physical and psychological trauma and, upon release, most are unable to lead a normal and constructive life and many of them turn to alcohol (Hoja, RFA, 2019). Even those who have family abroad often cannot leave Xinjiang, as they are denied passports (Hoja, RFA, 2019; Hoja, FT, 2019).

The testimony of a former detainee in China’s re-education camps, found in Human Rights Watch’s Eradicating ideological viruses 2018 report (p. 50) represents the general feeling of severe anxiety among members of the Uighur community, caused by the legal uncertainty and arbitrariness surrounding detention:

I couldn’t bear it anymore. I hit my head on the wall and I had the feeling of powerless, helplessness, and rage. I lost consciousness and when I woke up I was in a doctor’s room. They had taken me to a hospital. So, they examined me and said my head was seriously injured. The guard said, ‘We’re going to sentence you for another seven years for having attempted suicide’.

Article II (d) GC: Imposing measures intended to prevent births within the group

According to Zenz (2020), “comprehensive new evidence from government documents reveals a systematic state campaign of suppressing minority births”, including Uighur. Government policies in this regard include handing out monetary incentives for undergoing sterilisation, punishing individuals with detention for violating birth control policies and forcing surgical and medicine-induced sterilisation. This is supported not only by anecdotical evidence of such policies, through first and second-hand testimonies (for example: Hoja, RFA, 2019; Danilova, 2018), but also by the dramatic decrease in population growth in Uighur-majority regions. According to the 2019 Moyu County People’s Government Work Report, “the birth rate and natural population growth rate have dropped significantly”, whilst authorities have continued to “severely crack down on illegal childbirth”. In Karakax County, for example, population growth dropped by 83 percent between 2016 and 2018 (Zenz, 2020).

Article II (e) GC: Forcibly transferring children of the group to another group

Evidence suggests that Xinjiang has established a system of forcible separation of children from their parents (Uighur national-ethnic group), placing them under state custody (Chinese national-ethnic group) from a very young age (Zenz, 2019; Sharma, 2019). The facilities are highly secured and tightly controlled, forcing “intensive, state-controlled and highly coercive Chinese language education and immersion, along with political indoctrination and psychological correction” (Zenz, 2019). Children are forced to report on their parents and parental influence and intergenerational cultural and religious transmission are “quite possibly almost completely eliminated” (Zenz, 2019).

In brief, whilst there is no evidence of mass killings, there is evidence to suggest that other acts that fall under the scope of Article II GC could already be being perpetrated.

Mens rea

Overall intent

In Drélingas, the ECtHR determined that “Soviet repression had been targeted at the most active and prominent part of the Lithuanian nation (…), defined by the criteria of nationality and ethnicity”, with “the clear goal of creating an impact on the demographic situation of the Lithuanian nation” (Drėlingas v. Lithuania, para. 103).

‘Demographic situation’ refers to a territory’s “national or ethnic composition, language spoken, religion practised, or other cultural characteristics” that define the populations living in a given territory (Alfredsson, 2007, para. 7). Demography has sociological, rather than physical, connotations which implies that the intent of the perpetrator was to destroy the cultural characteristics that made up the group. Furthermore, because national-ethnic groups exist as a result of a set of sociological features (their members’ sense of shared culture and national identity and self-awareness), destroying those features would, in reality, destroy the group.

Drawing on Judge Shahabbuddeen’s dissenting opinion in \textit{Krstic}’s appeal judgment, the destruction of culture can be used as proof of intent to destroy a protected group (\textit{Krstic}, ICTY [Appeal], Judge Shahabuddeen DO, para. 53). The documented destruction of mosques and other elements of the Uighur lifestyle and culture (Sintash, 2020) and forced, systematic indoctrination of children and adults (Zenz, 2019) reinforces the view that the CCP’s counter-terrorist efforts in Xinjiang are taking place amid a wider context that suggests that the War on Terror may be being used as a pretext to destroy the protected group by eradicating their culture and national identity and self-awareness (Raza, 2019, pp. 495-8; Li, 2016; Finnegan, 2020; Ramzy and Buckley, 2019; Zenz, 2019).

Active and prominent

According to the online Cambridge Dictionary, to be active means to be “involved in a particular activity”, while something prominent is “very noticeable, important, or famous”.

Some aspects of China’s counter-terrorist policy specifically target community, cultural, and intellectual leaders who “keep the Uyghur culture alive through their dissemination of Uyghur history, knowledge, religious beliefs and language” (Finnegan, 2020, p. 10). The research conducted by different international news and non-governmental organisations shows “a very clear pattern that Uighur academics who have been researching Uighur culture, and those with international contacts have been targeted” (Uyghur Human Rights Project, 2018, p. 5). For example, state-produced films reveal that some high-profile Uighur intellectuals, such as Halmurat Ghopur, president of the Xinjiang Food and Drug Administration’s Department of Inspection and Supervision and former president of Xinjiang Medical University Hospital, are being given two-year suspended death sentences on separatism charges (Hoshur and Lipes, 2017; Illmer, 2019) which, taking other factors into consideration, could fit within the scope of Article II (a) GC.

Essential

In line with the reasoning in Drélingas, a ‘part’ of a national-ethnic group may be significant within the meaning of the Genocide Convention if the perpetrators consider its members essential to ensure the survival of the entire group as such (Drélingas v. Lithuania, para. 103). According to its ordinary meaning, the term ‘essential’ is synonymous with ‘necessary’, which means “needed in order to achieve a particular result” (Cambridge Dictionary). Meanwhile, ‘survival’ means “continuing to exist” (Cambridge Dictionary). The final step is, therefore, to establish whether those who are targeted for physical destruction are necessary to ensure their nation’s continued existence.

For it to be genocidal, the aggressor can destroy the ‘essential part’ of the group with the objective of facilitating the cultural assimilation of its society. In Drélingas, the elimination of the Lithuanian partisans aimed to facilitate the Sovietisation of Lithuanian society (LSC decision, para. 25 in Drélingas v. Lithuania, para. 51) and the victims had been chosen with that goal in mind (Drélingas v. Lithuania, para. 103). Similarly, in Krstic the ICTY determined that ‘significant’ meant that the aggressor “could not have failed to know (…) that this selective destruction of the group would have a lasting impact upon the entire group” (Krstic, ICTY [Trial], para. 595).

In Xinjiang, the relevant authorities cannot fail to know that destroying the part of the Uighur nation in charge of keeping “the Uyghur culture alive through their dissemination of Uyghur history, knowledge, religious beliefs and language” (Finnegan, 2020, p. 10), would have a serious and lasting impact on the group’s demographic situation. This is because intellectual, cultural and religious leaders constitute “the repository of cultural and scientific knowledge of a people, and in order to break the ethnicity you need to break the ethnic life” (Sharma, 2019), so this part of the group is necessary to ensure the survival of the Uighur national identity, culture and national self-awareness.

Amid the general widespread and systematic scheme of cultural genocide, there is a case that China could be destroying this part of the group with the aim of facilitating its aim to achieve the full assimilation of the Uighur community into Chinese culture, or, in other words, to destroy this national-ethnic group.

Conclusion

This paper has argued that China’s lack of intent to physically destroy the entire national-ethnic group should not prevent a full examination of the ongoing situation in Xinjiang under the Genocide Convention. There is evidence to suggest that acts falling under the scope of Article II GC are already being perpetrated against the most outspoken and active Uighur individuals, within a wider context of extreme suppression of Uighur cultural and national realisation which aims to facilitate the full Sinicization of the Xinjiang province. Whilst it is clear that the Uighur are undergoing a cultural genocide, it is time for the international community to thoroughly investigate whether acts of genocide, within the meaning of the Genocide Convention, are also occurring.

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Biological Weapons as New Types of Weapons: Applicable and Future International Humanitarian Law

Aparajitha Narayanan, Leiden University, The Netherlands

Aparajitha has a Bachelor of Laws degree from I.L.S. Law College, India, 2015. She has worked in a corporate law firm for a period of 3 years, after which she pursued her L.L.M. in Public International Law, with a Specialisation in International Criminal Law, from Leiden University. Her LL.M. thesis on ‘Command Responsibility: A Contemporary Exposition’ was supervised by Professor William Schabas. Her areas of interest include International Criminal Law (specifically, defence rights), Public International Law and International Humanitarian Law. She currently works as a Lecturer at Jindal Global Law School, the course Global South and International Law, taught by Prof. Dr. B.S. Chimni.

Abstract

While it is true that regulating the possession or use of weapons is not an easy feat, states do seem to respect the objective and essence of the regulations once they are formulated and enacted. Prohibitions against the use of expanding bullets and biological weapons are considered quite effective and have managed to put a stopper to their unregulated use. Prohibition on the use of chemical weapons was also predominantly implemented, until their use in the Iran-Iraq conflict, effects of which resonate till date. Land Mine and Booby Traps prohibitions also performed well during and after the Falklands war. In effect, International Humanitarian Law (“IHL”) has successfully managed to ensure at least its minimal compliance is met by those in conflict situations, an example other fields must swiftly follow. Disarmament and IHL go hand in hand, the latter’s folly could lead to the former’s redemption. This paper will focus on the evolution of the law relating to biological weapons, depicting firstly the IHL regime, then gradually detailing new-age inventions/discoveries in the biological weaponry field. It will also provide certain suggestions that may ensure improved compliance of international law, from the biological weaponry perspective, concluding with remarks on challenges faced in light of futuristic advancements in biotechnology.

1 Introduction

Bio-warfare, since time immemorial, has been a cause of concern for many. However, not many are aware of the fact that even the infamous bubonic plague has implications in the military parlance and has been categorised by the Centres for Disease Control and Prevention as a Category A bioterrorism agent (Frith, 2012, p. 11). Nowadays, any discussion regarding biological weapons is seemingly reflective of fact masquerading as fiction, reality juxtaposing as myth, wherein scenarios such as those forming the central plot point of a film such as Tomb Raider (2018), may actually transpire.

It would hardly be hyperbole to state that post-battle diseases have contributed to more deaths than actual battle itself. For instance, the influenza epidemic, post-World War I, killed at least 20 million people or more (Block, 1999, p. 58). Nevertheless, characteristically so, it came as a shock to many, even within the scientific community when the Chinese scientist Mr. He Jiankui revealed that he was successful in editing the genes of human embryos, which, if carried to term, would result in the existence of the first genetically modified human beings (Wehner, 2019). It is rather unfortunate that there is no regulatory regime controlling such discoveries and ensuring that they fit within a stringent framework. There is growing concern in the scientific community that genome editing could have effects that could lead to bio-terrorism. Accordingly, the World Health Organisation (WHO) has positively stated that it supports the formulation of a regulatory framework for genome editing. 

In 2016, the North Atlantic Treaty Organization (NATO), the WHO and the United States Blue Ribbon panel published elaborate reports on the inevitable risks directly linked to biological weaponry (Frinking et al., 2016, p. 3). Moreover, as recently as the beginning of 2017, the World Economic Forum, in its Global Risks Report 2017, highlighted that innovations and advancements in technology provided dangerous biological weapons to both states and non-state actors, adding fuel to the volatile fire of geopolitical relations (Frinking et al., 2016, p. 3). 

So far, 35 agents have been listed by CDC as potential biological weapons, categorised into 3 different groups, based on their threat levels: 

Category A: Have the highest potential for dissemination and mortality rates. Pose the greatest risk to national security as well as causing massive public fear and civil disruption. Require the most public health preparedness.

Category B: Also pose a potential risk through dissemination, although with fewer incidents of illness and lower rates of mortality. Considerable public health preparedness.

Category C: Not considered a significant threat as category A and B, although there is the potential for these agents to be developed as future weapons with better scientific understanding. Could still potentially lead to incidents of morbidity. Non-specific preparedness through overall bio-terrorism assessment.” (National Center for Emerging and Zoonotic Infectious Diseases, 2018).

While it is true that regulating the possession or use of weapons is not an easy feat, it is expected that States respect the objective and essence of the regulations once they are formulated and enacted. Prohibitions against the use of expanding bullets and biological weapons are considered quite effective and have managed to put a stop to their unregulated use (International Committee of the Red Cross, 2010). Prohibition on the use of chemical weapons was also predominantly implemented, until their use in the Iran-Iraq conflict, effects of which resonate today (Ali, 2001, p. 43). Land Mine and Booby Traps prohibitions also performed well during and after the Falklands war. In effect, International Humanitarian Law (IHL) has successfully managed to ensure at least its minimal compliance is met by those in conflict situations. Disarmament and IHL go hand in hand, the latter’s folly could lead to the former’s redemption. Even though technology has advanced to an unfathomable level, we address 21st century concerns erupting from such development with laws made in the 20th century (Jensen, 2014, p. 253).  

This paper examines whether the body of the laws of armed conflict is equipped to counter new bio-challenges.  It focuses on the evolution of the law relating to biological weapons, depicting firstly, the IHL regime, then gradually detailing new-age inventions/discoveries in the biological weaponry field. It will also discuss certain suggestions that may ensure improved compliance of international law, from the biological weaponry perspective. It will then examine whether the present laws are sufficient to counter or even address new-biological technology concerns, particularly the law of armed conflict and whether state practice allows for its smooth functioning. Certain suggestions will be made on how best to counter the challenges faced in light of futuristic advancements in biotechnology.

2 Evolution of law applicable to the regulation of biological weapons

This section will first elaborately discuss the laws applicable to the regulation of biological weapons. Then, it will attempt to demystify the problems present in such laws and the specific challenges faced in the biological weaponry sphere, while also addressing such concerns by discussing possible solutions. 

2.1 General prohibitions under IHL

The behaviour of parties to armed conflicts is not unrestricted. Restrictions are imposed by, among others: the United Nations Charter, human rights law, environmental law, law of neutrality, and most importantly, jus in bello or the law of war, which is solely dedicated to put constraints on the waging of war. IHL is that branch of law whose objective is to constrict certain behaviour or behavioural patterns during armed conflicts. Concomitantly, in IHL, the right of a party to use any means or methods of warfare is circumscribed. Article 35 of the Additional Protocol-I to the Geneva Conventions of 1949 (hereinafter referred to as AP-I) stipulates that any means or methods of warfare that are indiscriminate or that cause superfluous injury or unnecessary suffering are strictly prohibited (Additional Protocol I, 1977). The aim of IHL is to mitigate human suffering, not eliminate it altogether, which would explain why collateral damage is within the permissible boundaries imposed by IHL.  IHL was promulgated in an effort to humanise war and Article 35 is central to that purpose. IHL purports that it is irrelevant if one relies on Article 51 of the United Nations Charter or if the act is sanctioned by the United Nations; protection of civilians is at the core of IHL’s essence and will always be superlative. The principles governing such protection are primarily those of military necessity (stemming from the prohibition of superfluous injury and unnecessary suffering), proportionality, humanity (derived from the Martens clause) and distinction (between civilians and combatants and between civilian and military objectives) (ICRC Casebook). 

2.1.1 Applicability of such principles to weapons

Article 36 of AP-I, which has garnered the status of customary international law, depicts what constitutes a legal weapon under IHL. The said provision purports that States are to determine whether “any new weapon, means or method of warfare” that States plan to use, is prohibited by international law. Such review is ‘multidisciplinary, including military, legal, environmental and health related considerations (Lawland, 2006). Generally, there are two methodologies used to ascertain such determination. The first is ‘weapons law’, wherein, if any weapon contravenes certain factors, by virtue of its ‘normal or expected use’, it will be considered as a lethal weapon. Further, its use would be illegal since under no circumstance would it manage to uphold the basic principles of IHL, if used in combat (Docherty et al., 2012, p. 32). Furthermore, if a weapon cannot distinguish between legal and illegal targets, based on “accuracy and reliability of targeting, the type of munitions used, and the area (of impact) covered”, it can be concluded that it flouts the quintessential principle of distinction and will have recalcitrant consequences even if it can strike any target precisely (Lawland, 2006). The reasoning employed while classifying biological weapons as ‘indiscriminate’ is owed to the fact that their effects cannot be immediately controlled by actors and their pathogenic reach could cascade to illegal targets like civilians. The next prohibition pertains to weapons causing ‘unnecessary suffering or superfluous injury’ which in principle aims to limit the opponents’ ability to devise strategies to injure the enemy, like expanding bullets, barbed lances etc. (Kastan, 2013, pp. 5; 52). An important criterion while deciphering whether a weapon is intended to cause ‘unnecessary suffering or superfluous injury’ depends largely on whether the suffering or injury is targeted at serving a legitimate purpose, rather than a personal goal, for instance, “attrition of enemy combatants” rather than say, “vengeance.” (Kastan, 2013, p. 5;52). The last prohibition relates to the new weapon forming a part of the ‘prohibited’ list under any specific treaty/convention or agreement (but with further advancements in formulae and such), like Abrin, African swine fever, Bacillus anthracis, Ebolavirus etc. as mentioned in the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (hereinafter referred to as 1972 BWC) (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). Many weapons clearly violate the first two prohibitions, but States, on their own volition, execute agreements prohibiting the use or production of certain weapons, regardless of any existing prohibition under international law (Strategic Arms Limitations Treaty, 2016). 

The second methodology used to make the Article 36 determination is that of ‘targeting law’ which primarily deals with the conduct of hostilities and the circumstances of a weapon’s use (Thomas, 2015, p. 235). Targeting law requires an assessment of discrimination, wherein a weapon may be used only in circumstances where targets may be reasonably distinguished from legal and illegal, and not where such a distinction is not possible; for instance, the weapon may be permitted only where it can distinguish between combatants and civilians (Toscano, 2015, p. 196). Further, military necessity, postulated in Article 52 of AP-I, purports that the force used by weapons must relate to the legitimate military objective to be achieved, wherein such legitimacy is determined by the military advantage such use of force may provide in combating against the enemy (Article 52(2), Additional Protocol-I, 1977). Next, the principle of necessity differs from proportionality, wherein the amount of force used must be directly proportional to the exact military advantage sought (Article 52(2), Additional Protocol-I, 1977). To illustrate, in a populated area, with a certain amount of force, the damage that the civilian population may face may be massive, as opposed to an unpopulated area with little to no civilians. The most important criterion needed to assess the above quantification is whether the collateral damage would be excessive (Schmitt and Thurnher, 2013, p. 231).  Proponents of the above postulate contend that the amount of military advantage to be gained through a weapon’s use is directly relates to the collateral damage tolerated under IHL (Schmitt and Thurnher, 2013, p. 264), which is a dangerous assumption to make. The most popular exponent of the above idea was the United States of America, which justified using the nuclear bombs in Japan, in the provinces of Hiroshima and Nagasaki in 1945, using the above argument. The said justification is a polemic one, although arguably the nuclear bombing triggered the surrender of Japan, the consequence being that the United States of America did not have to stage a hostile military takeover which would have led to multiple civilian casualties (Pearlman, 1996).

Ultimately, while using weapons, “feasible precautions must be taken, based on reasonability” (Press, 2017, p. 1351)Such precautions include ensuring that all feasible precautions are being taken to verify whether the reasons for attack run parallel to military objectives and not civilian objectives, and that the attack does not target civilians. Further, it must also be confirmed that precautions are taken in “avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Article 57(2), Additional Protocol-I, 1977). It may be noted that while ‘feasible precautions’ must be taken prior to initiating an attack, the said term does not impose a blanket ban on attacks that may result in civilian casualties, by virtue of the fact that the principles of necessity and proportionality would then come into play. However, as an illustrative counter-assertion, it could be said that a soldier would not be guilty of an IHL violation, while firing at a combatant, who then moves out of the way, resulting in a civilian’s death, since there was no indication that a civilian would be standing behind the enemy combatant (Law of War Manual, 2015, p. 189). Therefore, transposing the above IHL prohibition to the use of biological weapons, it is amply clear that such use is specifically prohibited, since it could result in superfluous injury or unnecessary suffering, result in indiscriminate effects, cannot distinguish between military and civilian objectives, and in no way can respect the principles of both necessity and proportionality. The central issue with “any microbial threat list is that it is necessarily a backward-looking document” (Casadevall, 2012, pp. 584-587). It is clear that new diseases will constantly be identified and will continue to threaten us, like the coronavirus disease- COVID-2019, which has now been classified as a pandemic. It is also important to keep in mind that such microbial threats may possess substantial weapon potential, which humanity may fail to take note of, until it is too late. 

2.1.2 Biological Weapons and International Law

It is generally understood by States that biological weapons are toxins or organisms via whose deliberate use, diseases could either be created or spread or both, with the specific intention to cause harm or kill human beings, animals or plants, i.e. all living forms. WHO defines biological agents as “agents designed to target human beings, plants, or animals with the intention of war, death, and/or harm by infecting them with disease-causing microorganisms and other biological entities, including viruses, infectious nucleic acids, prions, and toxins” (World Health Organization, 2004). Biological warfare is a very specific kind of warfare that focuses its single-minded intensity on the intentional use of agents (micro-organisms, toxins) of microbial, plant or animal origin, to wreak havoc in living beings by producing diseases and consequently, terror and death. It is asserted that one of the major reasons for their continual existence and use is their low production costs. Apart from the said reasoning, there are other advantages of using biological weapons. It is also believed that biological weapons (Atlas, 1999, pp. 465-477):

  1. are not easily detectable by security systems (unless specifically created to detect them, which are few and far between);
  2. are easily transportable from one area to another, while also being cost-effective and biological toxins and organisms are easily available;
  3. both instantaneously, and over time, decimate entire populations;
  4. possess properties of “invisibility and virtual weightlessness rendering detection and verification procedures ineffectual and make their non-proliferation impossible.”

There are several other reasons that make biological warfare the most terrorising of all, its high morbidity rate, high toxicity, suitability for mass production and distribution (which, being virtually undetectable), easy storage sans the loss of pathogenic potential etc. (Jansen et al., 2014, pp. 488-496).

There is, however, a twin-use conundrum when it comes to deciphering the motives underscoring the production of biological weapons. It could be said that positive biological research may lead to microbial discoveries and inventions in pathology and disease-fighting abilities, which could eradicate epidemics and lead to the production of vaccines combating the outbreak of diseases. However, simultaneously, the dark side of such research may result in the production of vaccine-resistant strains used to aid or promote biological warfare, for instance, an anthrax weapon production facility at Al Hakam operating under the translucent veil of a normal civil biotechnological laboratory (DaSilva, 1999). The duality of such usage of biological weapons is counter-intuitive since it stems from the lack of a feature differentiating any biological research resulting in positive and negative consequences. Therefore, there is a growing need to identify such counter-effects and devise differential equations classifying belligerent biological discoveries and inventions. 

Biological and chemical weapons share certain commonalities, both have been used in terrorist attacks against masses of people, however, there is a severe dearth of defence strategies and efforts to combat the havoc caused by such weapons are either non-existent or are unfortunately futile, owing to minimal awareness. However, biological weapons are more attractive to many actors in light of their many advantages, as stated above. It is commonly believed that the killing capacity of the most lethal biological agents are exponentially higher than that of the most lethal chemical warfare agents (Office of Technology Assessment, 1993, p. 50). Further, amongst all lethal weapons of mass destruction – chemical, biological and nuclear – the ones most feared are bioweapons (Danzig and Berkowsky, 1997, pp. 278; 431-432).

The evolution of chemical and biological weapons is inter-linked. The first phase was propelled by the World War I, where “gaseous chemicals like chlorine and phosgene were used in Ypres”the second phase began with “the use of nerve agents e.g. tabun, a cholinesterase inhibitor”, and the attacks using the anthrax and the plague bombs in World War II, the Vietnam war then began the “use of lethal chemical agents like Agent Orange, a mix of herbicides stimulating hormonal function resulting in defoliation and crop destruction”, and also led to the emergence of a new kind of weapon, one that possessed characterises of both biological and chemical warfare; the fourth phase then drove the advent of genetic engineering, where potential bioweapons may be produced, inter-alia (DaSilva, 1999; Henderson, 1999, pp. 283; 1279-1281): 

“organisms functioning as microscopic factories producing a toxin, venom or bioregulator; organisms with enhanced aerosol and environmental stability; organisms resistant to antibiotics, routine vaccines, and therapeutics; organisms with altered immunologic profiles that do not match known identification and diagnostic indices and organisms that escape detection by antibody-based sensor systems.”

Many are unaware that one of the major objectives of biological warfare is disruption, and preferably, complete obliteration of the economic stability of the target state(s). The origin of the said objective can be linked to the production and subsequent use of toxins to specifically target food-sources, notwithstanding, livestock and crops (Rogers et al., 1999, pp. 280, 70-75). A dangerous premise under which biological warfare seems to operate is that the destruction of such food sources can be endemically connected to inexplicable natural occurrences, rather than specific man-made catastrophes. Further, the tainting of the environment is also attributed to “dump burial, the use of disease-producing micro-organisms in terroristic attacks on civilian populations”; and non-compliance with existing international law (Miller, 1999; Jansen et al., 2014, pp. 488-496).

There is a growing threat of the rise of “immunosuppressed populations resulting from xenotransplantation and cancer chemotherapy, loss of biodiversity, and the re-emergence of old diseases” that have propelled the idea of review of the decision to destroy protective sources (DaSilva, 1999). Field tests have not stopped devoting their attention to ascertaining the minimum dosage of the bio-agent causing infections in large targeted populations, the stipulated time period for spreading of the said infection, and the manipulation of their entry systems, like “inhalation, ingestion, use of vectors, and the contamination of natural water supplies and food stocks” (DaSilva, 1999). As far as international law is concerned, the 1972 BWC was the first multilateral disarmament treaty banning the development, possession, and transfer of biological weapons, and obligates State Parties to destroy or divert to peaceful purposes all such weapons in their possession or under their jurisdiction or control (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). Further, the Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 1925 (hereinafter referred to as the “1925 Gas Protocol”), specifically prohibits the use of bacteriological weapons, i.e. biological weapons (Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, 1925). As per Article 1 of 1972 BWC, state parties to the said convention are obligated to not “develop, produce, stockpile or otherwise acquire or retain: 

  1. microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes and
  2. weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.”

While there is no definition of the term ‘biological weapon’ per se in the 1972 BWC, its prohibition is effectually linked to the purpose of its usage, as explained above in the ‘twin-use conundrum.’ The reason the term finds no definition is because biological agents or toxins, may be used in both times of peace and war. If such weapons are used to further purposes of war, they are strictly prohibited, however, if pathogens are developed to counter diseases and infections, i.e. their purpose is not devoted to propagating war efforts, their prohibitive boundaries diminish. 

The use of biological weapons is prohibited under IHL since biological weapons are unique in the sense that they are the only kinds of weapons that cannot fulfil ‘only’ military objectives, since a virulent pathogen is incapable of differentiating between a combatant and a civilian. For instance, during World War-II, the Japanese decided to attack the Chinese city of Chang-de using a biological weapon. The death toll was around 10,000, with 1700 being Japanese (Riedel, 2004, p. 402). The 1925 Gas Protocol stipulates a direct prohibition on the use of bacteriological weapons, which is considered to be customary international law (Boserup, 1973, p. 126). At this juncture, it would be pertinent to observe that the use of biological weapons is prohibited under customary international law (1925 Gas Protocol and IHL), applicable only in cases of international armed conflicts. However, the International Committee of the Red Cross has opined that there is a blanket ban on biological weapons, both during international armed conflicts and non-international armed conflicts, which view was expressed by the International Criminal Tribunal for the former Yugoslavia as well (Henckaerts and Beck, 2005, p. 257; Prosecutor v. Tadić, ICTY, 1995, pp. 96-127). The International Criminal Court Statute (Rome Statute, 1998) also does not criminalise biological weapons explicitly, but it prohibits the use of ‘poison or poisoned weapons’. The negotiations’ rounds leading to the drafting of the Rome Statute justify the understanding that powerful States deemed that nuclear weapons must not be explicitly banned; hence, counterintuitively, it was claimed that ‘the poor person’s weapon of mass destruction, biological/chemical weapon’ must not be prohibited either (UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, 1998, p. 74). Such a warped sense of faux-equality seems fatuous, having seen in the preceding paragraphs, the level of destruction a biological weapon can leave in its wake. 

Perhaps a solution to counter the twin-use conundrum is by way of strengthening the foothold of the 1972 BWC, wherein provisions for conducting thorough inspections (with cause) and increased law enforcement including sharing important information relating to bioweaponry threats, could be introduced. Any agent that may potentially have a dual-use advantage should be restricted for peaceful purposes (if such use is predictable) and biosafety standards and controls must be tighter, particularly while exporting such agents. Information sharing in relation to these weapons within the scientific community must also be wider, so that there is a system of checks and balances, thereby increasing the culture of responsible conduct, even within the arms control regime. The collocation of biology and military weaponization has always been prevalent, but the challenges surrounding such juxtaposition need to be addressed at the earliest. A fool-proof and efficient way to deal with the above is via promoting awareness of the dangers involved in potential use of biological advancements in weaponry. For instance, the process of procurement by military personnel of cognitive enhancement drugs could be made more transparent, thereby creating a sense of preparedness, which will aid in countering risks associated with the said technology. 

Currently, international interest in formulating codes of conduct for bio-scientists is on the rise, which may aid in preventing the misuse of life sciences for violent and war-ridden purposes (Wheelis and Dando, 2005). Scientific boards and institutes of sciences, domestic or international, could come together in drafting methodologies for the same, including implementing systems or mechanisms of oversight, thereby regulating arms control. The Chemical Weapons Convention of 1993 has a stringent scrutiny framework, wherein the Organisation for the Prohibition of Chemical Weapons assists in verification of its implementation and addresses security threats. However, the 1972 BWC has no such mechanism for monitoring the progress of its implementation by States. Introduction of a similar system in the biological weaponry regime may prove to be fruitful. Another possible way to introduce liability could be via the Rome Statute. The Rome Statute recognises that grave crimes threaten the peace, security and stability of the world, it also affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” (Rome Statute, 1998, Preamble). The Rome Statute is also determined to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” (Rome Statute, 1998, Preamble). As has been detailed above, biological weapons are the most dangerous amongst all lethal weapons, owing to their ability to completely annihilate both lands and populations, for generations to come. However, the Rome Statute does not provide an explicit prohibition on the usage of biological weapons. The word ‘poison’ in the Rome Statute does not seem to include biological weapons within its ambit. The Elements of Crimes in the Rome Statute contains the definition of ‘poison’ as a substance causing “death or serious damage to health in the ordinary course of events because of its toxic properties” (Article 8(2)(b)(xvii), Elements of Crime, 2002). Biological weapons are microorganisms that can cause damage or disease, which are not used for prophylactic, protective or other peaceful purposes (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). Toxins are poisonous substances produced by living beings; toxin weapons are either toxins or chemicals, biological agents are neither toxin weapons or chemicals, therefore, they do not fulfil the definition of ‘poison’ as per the Rome Statute (Cottier, 2008, p. 413). Thus, it is proposed that the Rome Statute be broadened to include a specific prohibition on the use of biological weapons. 

3 Black Biology

Black biology is defined as the use of genetic engineering to augment a pathogen’s virulence (Ainscough, 2002, pp. 165-186). We live in times where science fiction is closer to reality than science itself. Genetic engineering is not a skill possessed by a select few anymore; it is all the more accessible in present times. Therefore, black biology is a threat that may be used by States and non-state actors alike. A classic example of the use of black biology was the work done by Sergei Popov, head of the Soviet Bioweapons programme, who allegedly developed a strain of plague resistant to multiple antibiotics, and another strain of anthrax, resilient to both the anthrax vaccine and multiple antibiotics (Miller et al., 2001; Lawrence, 2013). His entire work is captured as non-fiction literature, titled ‘Biohazard’, excerpts of which will throw light on how menacing the Soviet efforts were (Ken and Handelman, 1999):

“On a bleak island in the Aral Sea, one hundred monkeys are tethered to posts set in parallel rows stretching out toward the horizon. A muffled thud breaks the stillness. Far in the distance, a small metal sphere lifts into the sky then hurtles downward, rotating, until it shatters in a second explosion. Some seventy-five feet above the ground, a cloud the colour of dark mustard begins to unfurl, gently dissolving as it glides down toward the monkeys. They pull at their chains and begin to cry. Some bury their heads between their legs. A few cover their mouths or noses, but it is too late: they have already begun to die. At the other end of the island, a handful of men in biological protective suits observe the scene through binoculars, taking notes. In a few hours, they will retrieve the still-breathing monkeys and return them to cages where the animals will be under continuous examination for the next several days until, one by one, they die of anthrax or tularaemia, Q fever, brucellosis, glanders, or plague.”

It is highly disconcerting to even envisage a world where the above phenomenon may find some basis in grounded realism, however, black biology emphasises that such technology could render any solution futile, resulting in bio-terrorism. There are other equally trenchant discoveries that may be classified as biological warfare, including, militarisation of neuroscience.

4 Militarisation of Neuroscience and Biological Warfare

The field of neuroscience is a rapidly evolving one, wherein advancements in technology may very well result in medical and societal advantages, such as diagnoses and treatment of psychiatric or neurological ailments. However, conversely, the said advancements may also converge with the new-age malicious purposes of the military and can be designed for hostile reasons. It is considered that the military applications of neuroscience are aimed to serve two particular interests – “performance enhancement or improvement of the efficiency of one’s own forces, and performance degradation, i.e. diminishing the performance of one’s enemy” (Royal Society Policy Document, 2012, p. 11). 

Traditional negative uses of biological agents may easily be categorised under the purview of biological weapons, however, modern advancements in technology (like militarisation of neuroscience) make it extremely difficult to fit such purposes within ‘biological weaponry.’ Performance enhancing biological agents may not respect the general principles enshrined under IHL, as their purposes will rarely be convergent with military objectives and will predominantly be hostile. There is no general prohibition for agents used in militarisation of neuroscience. However, their use may be prohibited under Article I of the 1972 BWC, since such agents are not to be ‘used in armed conflicts.’ Further, the principle of distinction under IHL posits that parties to any armed conflict must, at all times, distinguish between civilians and combatants, and that attacks must never be directed against civilians (Articles 48, 51(2) and 52(2), Additional Protocol-I, 1977). Military use of neuroscientific applications must therefore respect the above principle of distinction, which would not be easy to achieve (Herby, 2007, p. 288). Such use may also cause unnecessary or superfluous injury, thereby affronting IHL principles. 

Performance degradation, on the other hand, may lead to cognitive impairment, wherein military and civilian objectives may be difficult, if not altogether impossible, to distinguish. Once an attack perpetrated by a cognitively impaired person has occurred, the perpetrator would not be prosecuted, since he/she “will have been rendered mentally incapable of being responsible for the offences” (Article 1(a) and 1(b), Rome Statute, 1998; Royal Society Policy Document, 2012, p. 11; R v. Mohammed Sharif, 2010, p. 1709). However, a school of thought theorizes that the 1972 BWC prohibits “microbial or other biological agents, or toxins whatever their origin or method of production, that have no justification for prophylactic, protective or other peaceful purposes” (Article 1.1, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1972). The 1972 BWC is therefore quite broad in its prohibition, since some incapacitating agents like bioregulators including neurotransmitters, could be categorised as biological agents or toxins (Royal Society Policy Document, 2012, p. 11). However, the 1972 BWC does not prohibit defensive research into the mechanisms of action of neuro-weapons, that use biological agents to release neurotoxins (Andreasen, 2001). Popular opinion states that a detailed study may be conducted by medical boards, on the legal, moral and ethical implications on biophysical degradation techniques, that are primarily targeted at the central nervous system (NATO, 2004). Mechanisms exploring methods to protect humanity from the dark side of biological inventions must be devised, which can only happen with the active, cooperative involvement of the scientific, legal and legislative communities. Even the WHO believes that there must be safe, transparent and responsible genetics research. WHO also plans to formulate a “central registry on human genome editing research so that scientists around the world can update colleagues on progress of various genome-research efforts, holding everyone accountable” such that the entire process, from the beginning to the end, is well documented (Cohen, 2019). A governance framework needs to be structured for all kinds of genetic research,  human genome editing or otherwise, wherein perspectives of all stakeholders, including civil societies, scientists, military officials, medical representatives, patients, etc. should be considered and accountability at every level is strategically upheld. Further, while reviewing emerging trends in the biological weapons realm, neuroscience should also be considered, since, as explained above, there is a propensity to use neuroscience advancements for hostile purposes, while not respecting the principle of distinction. Science and technology experts may weigh in on how the above scientific problem may be tackled since cognitively impaired perpetrators cannot be tried as per international criminal law either. 

5 Conclusion

The principles of proportionality and necessity hold a lot of weightage in assessing whether the attacks devised by a biological weapon fall within the permitted boundaries of IHL or not. It is close to impossible to identify any object as a legitimate military target, with the purpose of fulfilling military objectives, while unleashing a biological weapon on it, since biological weapons, by their ‘nature’, are capable of resulting only in indiscriminate effects. Further, the twin-use conundrum adjoining the contours of the characterisation of biological weapons dumps an additional burden on such classification. 

Presently, all populations, regardless of a military or civilian distinction, are vulnerable to a biological attack, owing to lack of adequate preparedness. It is also widely believed that “the first world war was chemical; the second world war was nuclear; and the third world war, god forbid, will be biological” (Stewart, cited in Reaney, 2001). If warfare could be asymmetric, which it is, more often than not, biological weapons are viewed as the ‘great equaliser’, since a miniscule amount of a biological agent or toxin can lead to the chaotic ruin of the entire planet. Furthermore, the meaning and import of armed conflicts have changed now, and such a change is owed primarily to technologically advanced means and methods of warfare. The Washington Post was not far off when it commented that:

“The ‘laws of war’ may sound like an antiquated concept in this age of robo-weapons. But, in truth, a clear international legal regime has never been more needed: It is a fact of modern life that people in conflict zones live in the perpetual cross hairs of deadly weapons. Rules are needed for targets and targeters alike” (Ignatius, 2010).

Also, practises relating to Ruses of War directly permit camouflaging (Article 37(2), Additional Protocol-I, 1977), however, if biological agents with negative effects are camouflaged to resemble those with positive effects, or are characterised as benign, instead of malignant, it would be counter-productive, implying that IHL has to keep up with changing times of technological and biological developments, else parties would lose the protective umbrella of its outreach. The twin-use conundrum posed by the biological weaponry debate bears a resemblance to the philosophical ‘trolley problem’, however unfortunately, the similarity stops there, since the expanse of biological weapons is more controversial. Its disruptive usage not only has moral repercussions but may also lead to legal complications. 

While addressing the curiosity surrounding biological weapons and their odious, destructive properties, we must leave naivety at the doorstep and presuppose the existence of any and all possibilities speculated by the universe of science fiction and urban folklore. In the domain of biological weaponry, the development of scientific and technological advancements seemingly focuses on a ‘hall of mirrors’ approach, while distorting its own reflections. The potential ramifications of the use of biological agents for offensive purposes are truly a wellspring of terrors in this day and age and with good reason. The international community cannot hide behind its tunnel vision while addressing the growing concerns of the eruptive atmosphere of biological weaponry, and the recommendations suggested above may aid in oiling out such clogged wheels. As has been said by many, law can never be an afterthought, and certainly not a postscript to morality and acerbic biological ammunition. The law governing the usage of biological weapons must resemble a macrocosm, rather than a microcosm, the whole must always be greater than the sum of its parts.  

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The European Union and the R2P Norm: A Marriage of Convenience

Sam Greet, University of Leeds, UK

Sam Greet is a final year undergraduate student in International Relations at the University of Leeds, with a year exchange at KU Leuven, Belgium. His main interests include the R2P, Terrorism Studies and China’s role in global power politics.

Abstract 

The European Union’s (EU) fulfilment of the Responsibility to Protect (R2P) largely follows the logic of ‘marriage of convenience’. The Union’s bureaucracies have been committed – and somewhat successful – champions in developing the norm and its principles since the Report of the International Commission on Intervention and State Sovereignty (ICISS) in 2001 and its inclusion in the subsequent UN World Summit Outcome Document (WSOD) in 2005. It has demonstrated considerable capacity in its ability to assist in the responsibility to prevent as well as employing more indirect coercive measures as an economic power. Yet, in practice, the disingenuity of its rhetoric shows the EU and its member states only deliver R2P when it is convenient to do so, based on matching pre-existing resource allocation to other normative pursuits or the foreign policy interests of both the EU as a whole and its individual member states. The EU can be seen to demonstrate inconsistent application and illegitimate inaction in delivering its R2P capacity, as well as bringing detriment to the norm’s development when its member states misuse its invocation for their national benefit. Whether in dereliction of its ‘special responsibility’ towards refugees on and beyond its borders, lack of prioritisation of mass atrocity prevention in South Sudan, continued aid support for Myanmar despite ongoing genocide and ethnic cleansing, or its arms sales to Saudi Arabia used to commit war crimes in Yemen, the EU is a hollow R2P advocate. Until the R2P and its principles are genuinely internalised into both EU and member states’ priorities in the international arena, this marriage of convenience is unlikely to change.

Introduction

The Responsibility to Protect (R2P) emerged as a solution to the flaws of humanitarian (non)intervention, and as an international norm has faced both its life and repeated ‘death’ (Reiff, 2011). Indeed, R2P has been conceptually developed, misapplied, not applied, praised and criticised. The European Union (EU) has played a prominent role in this process. ‘Fulfilment’ of R2P is judged based on coherent and repeated contributions towards norm development, implementation and legitimacy (henceforth consistency, Wheeler, 2000, p.305), with a wide range of case studies chosen to show trends in the EU’s R2P approach. The extent to which these efforts are fulfilled is benchmarked against the principles of R2P agreed at the UN, as well as by the standards publicly advocated for by the EU. Upon analysis, the extent to which the EU can be claimed to ‘fulfil’ its R2P becomes clearly limited to situations when the norm aligns with the EU and its member states’ existing domestic and foreign policies. Firstly, this is demonstrated through the stark contrast between the EU’s external norm championing and its limited internal capabilities and commitment. Secondly, disingenuous R2P fulfilment through ‘norm clustering’ is exposed when one compares the EU’s Responsibility to Prevent potential to case studies where they could tangibly deliver it. Lastly, illegitimate inconsistency in R2P action abroad, when challenged internally, reaffirms the conclusion that R2P fulfilment is a means to other ends rather than an end in itself for the EU.

The EU and R2P Norm Development 

International Norm Champion

The EU has been a key proponent of the R2P norm and its development since its inception in the ICISS Report (2001) and was a critical player in ensuring its provisions in Article 138 and 139 were included in the World Summit Outcome Document (WSOD) (UNGA, 2005)(Brockmeier et al., 2014, pp.436-439; Bellamy, 2009, p.60). The WSOD agreed on conditional sovereignty within the international community to prevent and react to four mass atrocity crimes: ethnic cleansing, genocide, crimes against humanity and war crimes. This responsibility emerges from every state’s agreement to ‘responsible sovereignty’ (Pillar I) alongside the international community’s responsibility to support (Pillar II) – and if necessary, intervene (Pillar III) – if other states are ‘manifestly failing’ to protect their citizens, otherwise articulated as the ‘Three Pillars of R2P’ (UNSG, 2009). R2P has been and remains a ‘contested’ norm without definitive meaning (Welsh, 2013). The EU has been a prominent voice at the UN to try to develop and ‘cascade’ the norm internationally towards worldwide internalisation (see Finnemore and Sikkink, 1998, pp. 895–6 for norm development process).

At the UN-level since the WSOD, the EU pursued ‘high-level coordination’ for the seminal 2009 GA debate (Brockmeier, et al., 2014, pp.443-444); it was the first region to have its own ‘Focal Point’ to champion the norm (Ralph and Staunton, 2019, p.8); its member states are prominent in the ‘R2P Group of Friends’, and the EU and member states have consistently contributed to the UNGA debates, ‘Interactive Dialogues’ and UNSG ‘Annual Reports’ (ibid; Newman and Stefan, 2019). At the EU-level, the R2P has been repeatedly recalled across numerous documents (EU, 2016a; 2008; 2007; 2006; European Parliament, 2011; 2009a; 2009b, Council of the EU, 2008; European Commission, 2017) as a shared value and crucial objective the EU is ‘determined to make operational’ (EU, 2009). This is perhaps most notable recently in its inclusion within the EU Global Strategy (EUGS), where the union commits to ‘promote the responsibility to protect’ alongside other key normative judicial commitments such as ‘international humanitarian law, international human rights law and international criminal law’ (EU, 2016b, p.42). It has helped establish at least Pillar I as an accepted norm in that the question is now not if there is a R2P against the four crimes but rather what circumstances justify assistance or intervention (Bellamy, 2015, p.289; Powers, 2015, p.1274). If ‘rhetoric is action’ for norms (Franco and Rodt, 2015, p.50), then the EU has fulfilled its R2P through leveraging its diplomatic tools towards the norm’s promotion and continued relevance.

Between Rhetoric and Reality

Promotion of the norm has been an active EU foreign policy decision (Brockmeier et al., 2014, 431), because the spirit of R2P is in keeping with the EU’s pursuit of ‘normative’ and ‘ethical’ power perceptions (Newman and Stefan, 2019, pp.5-6; Manners, 2008; 2006). Its ‘constructive ambiguity’ (Shannon, 2000, p.294) and foundations as a ‘principled’ or ‘political’ ideal (Ercan, P. G. and Gu ̈nay, 2019, p.492; Betts and Orchard, 2014) – rather than an accountable legal obligation for any particular state or party (Welsh, 2019, p.54) – has allowed for easy EU norm acceptance and advocacy (Franco et.al. 2015, p.1006). ‘Internalisation’ at the EU-level refers to the bloc and its member states’ incorporation of the norm into its internal apparatus, decision-making, actions and reporting. Rarely does the EU’s R2P go beyond simple platitudes and reaffirmation of what was agreed at UN-level (Smith, 2018, p.3; TFotEUPoMA, 2013), with the European Parliament’s (2013) rallying cry for ‘consensus’ doing little to engender change towards genuine internalisation and implementation. The semantics of the EUGS committing to ‘promote’ the R2P norm alongside other laws is indicative of this agreement to endorse the norm in principle (EU, 2016b, p.42) but without a pledge to ‘deliver’ or ‘enforce’ it in practice. This is demonstrated by the absence of explicit reference to R2P in the 2019 EUGS report, which implies it is not a global strategy feature to which the EU is truly committed to convert from ‘Vision to Action’ (EU, 2019). Whilst the EU advocates the ‘never again’ discourse of R2P at the global level (Mogherini, 2018), it actively chooses to pursue ‘procedural’ rather than ‘substantive’ R2P outcomes when given the opportunity (Brockmeier et al., 2014, p.444). This erroneously fuels over-expectant R2P discourses (Gallagher, 2015a; Paris, 2014, p.579). Additionally, the EU has only pursued the norm’s development once existing UN power structures favouring EU member states were guaranteed (Brockmeier et.al.,2014, p.438). This demonstrates values-based ‘norms’ such as R2P serve as a useful foreign policy tool for Europe, yet not enough that it would risk changing the status quo it benefits from to see it fulfilled.

The contrast between external championing and limited internalisation (De Franco et al., 2015, pp.995-998; Wouters and De Man, 2013, p.17) has created the EU’s own external ‘capabilities-expectations gap’ between rhetorical support and the reality of what EU foreign policy is capable of (see Gallagher, 2015a, p.259; Hehir, 2012, p.88). In failing to properly integrate R2P strategies into key internal policy documents beyond simple ‘promotion’ and consistently failing to ‘live by example’ the EU, now 15 years into the norm’s existence, is continuing to undermine its potential to be a ‘credible international leader’ (Newman and Stefan, 2019, pp.3-4; Smith, 2018, pp.20-21). In expecting certain external norms to be upheld by others yet not genuinely seeking to deliver them themselves, the EU exposes the ‘double standards’ (Newman and Stefan, 2019, p.13) that emerge from its disjunction between normative projections compared to the practical reality a recurring trend in wider European foreign policy (Pace, 2007, p.1061; Diez, 2005, p.625). There is scope for defence of the EU in that it has a far too complex and conflicted foreign policy apparatus, as well as external pressures and internal member state divergences, to deliver R2P in a consistent manner (Fabbrini, 2014; De Baere, 2012, p.23). However, if this was the case then why does it continue to ‘unambiguously’ commit to the norm so explicitly (Carment et al., 2016, p.10)? Whilst norm localisation – its ‘mainstreaming into existing policies and resource allocation’ (Franco and Peen Rodt; 2015, p.46) – might ‘prune’ the EU’s available options (Acharya, 2009), it still has ‘enormous capacity’ to fulfil R2P (Evans, 2008; see Ercan and Gu ̈nay, 2019, pp.495-500; Smith, 2018, p.1,6-7 for tools available). In fact, international-level advocacy for R2P from the EU bureaucracies has continued despite member states’ failed internalisation of the norm and an internal ‘expectations vacuum’ (Newman and Stefan, 2019, pp.12-14; Gallagher, 2015a, p.260), with member states holding at best internal ‘ambivalence’ (Newman and Stefan, 2019, p.2) and at worst outright disagreement (Smith, 2018, p.4) over the R2P norm. One example is the disinterested case of Germany, which despite being the ‘core’ of the EU project (Bartlett and Prica, 2016), saw the R2P as a largely external norm project. Alongside China and Russia, Germany abstained from one of the most flagrant R2P cases in Libya (De Baere, 2012, p.9). Practical commitment to deliver the R2P has been slow and sparse, acted upon only when convenient (Dembinski et al., 2014, pp.368-370). The EU should be held accountable to the level of international expectation it espouses for itself and for others. As such, it is not fulfilling the R2P to the extent that its international support for the norm predicates it should.

The EU, Norm Clusters and the Responsibility to Prevent

The EU’s Prevention Toolbox

This is not to say that the EU has not taken any action to fulfil its R2P. Regarding Pillar II, we have observed an extensive role foreseen and in part delivered through its ‘Responsibility to Prevent’. Given its limited military instruments and NATO facilities (see Keukeleire and Delreux, 2014, Chapter 3), it would be unfair to judge the EU based on its unfulfillment of ‘rapid and timely’ intervention as this option is not readily available, agreed upon between member states or something the EU has only suggested it could deliver (Fabbini, 2014; Welsh, 2014, p.136). The EU Global Strategy, whilst not directly referring to the R2P norm, notes that ‘we need to collectively take responsibility for our role in the world’ (EU, 2016, p.3). Whilst largely in reference to their extensive ‘civilian power capacities’ in their ‘diplomatic’, ‘development cooperation’ and ‘trade’ tools (EU, 2016, pp.3-4), the EU recognises the combination of ‘soft and hard power’ it can offer for the delivery of global norms through their more structural, long-term military and civilian foreign policy operations (EU, 2016, p.4). This non-explicitly recognises its capacity to operate as Pillar II support of states’ security apparatus, in that it may not be able to intervene directly or rapidly, but it does have the military and civilian apparatus to support other states in their delivery of their own R2P should they request for assistance.

Both commentators (Smith, 2018, p.1; Brosig, 2011) and the EU itself (2018) recognises its primary tools and expertise centre on the delivery of prevention, mainly through ‘structural’ support i.e. in addressing root causes, ‘operational’ support i.e. early warning systems, and ‘direct’ efforts i.e. economic reward/sanctions (see Carment et.al., 2016, p.3; UNSG, 2013; Haugevik, 2009, p.352, EU, 2016, pp.28-32 for prevention tools). For the EU, ‘development, governance, civil society and human rights are all relevant to reducing the risk of atrocities occurring’ and sees its R2P in part fulfilled by the long-term work on these agendas (De Benedictis, 2015; De Baere, 2012, p.22). If the UNSG is correct that ‘development is the best prevention’ (UNSG, 2011), then the EU as the largest aid donor is fulfilling important R2P prevention work (Eggleston, 2014). The EU has also been a prominent supporter of the International Criminal Court (ICC), coined the ‘legal arm’ of R2P (Adams, 2019), as a method of prevention based on prosecution against impunity (Ercan and Gu ̈nay, 2019, p.500; Ford, 2010). Under a wider understanding of R2P action, the EU could be perceived to be fulfilling its responsibility to prevent quite extensively. However, the fact that these actions are rarely – if ever – framed under R2P auspices both hinders norm development (Newman and Stefan, 2019, p.7; Badescu 2014; 2011) and suggests EU ‘R2P’ is simply ‘reframing’ existing EU action (ibid, p.11; Barqueiro et al., 2016, p.37) rather than genuinely committing to specific mass atrocity prevention at the expense of resources, other normative pursuits or foreign policy goals.

The Problem of Norm Clustering

The extent to which the EU is fulfilling its R2P is characterised by a ‘norm clustering’ that groups its mass atrocity prevention with numerous existing actions (Staunton and Ralph, 2019, pp.1-6,17; Lantis and Wunderlich, 2018), most notably becoming synonymous with conflict prevention (Cuyckens and De Man, 2012, p. 111). This conflates the two despite the necessary responses (Badescu and Weiss, 2010, p.451) and risk factors (Ralph, 2014) differing significantly. This allows for easy if somewhat disingenuous ‘implementation’ of R2P without significant change in EU or member states commitments. Both within member states and the EU’s internal apparatus there has been ‘deep rooted suspicion’ over R2P’s added value beyond existing human rights, conflict prevention, governance and humanitarian work (Wouters and De Man, 2013, p.4,19; Cuyckens and De Man, 2012). This scepticism and failure to recognise the uniqueness of atrocity prevention, as well as prioritisation of other interests, has grave consequences.

The Rohingya in Myanmar have faced ‘slow burning genocide’ and ‘ethnic cleansing’ (Darusman, 2019; UNHCR, 2017, UN News, 2017), orchestrated by the military and enabled by the government. The EU pursues democracy promotion and development as their priorities in Myanmar, allocating 688 million in financial support for 2014-20 (EEAS, 2018b). Whilst in theory this is delivering structural prevention, this ‘norm clustering’ only serves to detract from specific mass atrocity action and fails to bring in ‘democracy’ in any more than a procedural sense (Adams, 2019, p.8; Southwick, 2015, p.150). The EU’s position stems from a strategic decision to prioritise norms of democracy (Adams, 2019, p.3; GCR2P, 2017) and other foreign policy gains (Staunton and Ralph, 2019, p.10; Haacke, 2016, p.819) over mass atrocity prevention, despite repeated warnings of the consequences (Green et al., 2018; Zarni and Cowley, 2014). Europe’s role in brokering the repatriation of Rohingya refugees from Bangladesh despite no guarantees of safety from further atrocity crimes (EEAS, 2017; Cappaert and Qu, 2018) and continued minimal conditionality on the aid it provides (Staunton and Ralph, 2019, p.12; Gallagher, 2015b) – despite recently withdrawing aid from Burundi on human rights grounds (Barbière, 2016) – demonstrates the EU’s inconsistent regard for its R2P. Its limited response through refugee aid, varying statements of concern and minor targeted sanctions (EEAS, 2018b) has been slow to materialise and came only after atrocities took place, illustrating that the EU has not truly committed to fulfilling its responsibility to prevent potential mass atrocity in Myanmar (Adams, 2019; Smith, 2018, pp.14-17).

In South Sudan, the outbreak of civil war was not prevented despite the presence of an EU civilian mission prior to its outbreak in 2013 (Smith, 2018, pp.19-20). Notwithstanding sustained warnings of ‘crimes against humanity’ and even fear of ‘genocide’ by both international and European commentators (UN Press Release, 2017; 2013; EU, 2016), an estimated 383,000 deaths were recorded (Specia, 2018). During the pre-conflict ‘peace process’, the EU and others had pursued technocratic and socio-economic driven norms of democratisation and state-building (Pantuliano, 2014; Khadiagala, 2014) that ignored the ‘profound legacy of long-term conflict’ (Clark, 2014; Young 2012), likely to return, and in turn failed to create a South Sudan that could truly bear its own ‘responsible sovereignty’ (Rossi, 2016, p.179). In response to the crisis, the EU took some steps towards its R2P, but most of its interventions called on those involved to act rather than doing so themselves (see Smith, 2018, pp.17-20). The R2P provides a platform to justify a continued EU foreign policy which deepens development dependency and asymmetries with weaker states abroad under the auspices of R2P Pillar II support, reinforced by rhetoric – although contested (Graubart, 2013; Branch, 2011) – that the norm is non-Western and of global consensus in principle (Carment et al., 2016, p.10; De Baere, 2012). Coupled with a reluctance to act on agreed normative principles such as R2P when necessary – or only doing so when it overlaps with existing priorities – this exposes the strategic interests that underpin the EU’s R2P (Barqueiro et.al., p.46; Paris, 2014, p. 572). The Atrocity Prevention Toolkit (EEAS, 2019) could represent a crucial breakaway for mass atrocity prevention away from the ‘policy paradigm’ or ‘norm clusters’ in which it has been ‘entangled’ (Cuyckens and De Man, 2012, p.111) and may represent a genuine commitment to mass atrocity prevention as an end in itself. However, until implementation of this toolkit is consistent, the case studies above show that the EU fulfils its R2P to the extent that it correlates to existing ‘norm clusters’ and priorities such as democratisation or statebuilding, rather than re-prioritising its foreign policy towards mass atrocity prevention.

The EU, Inconsistency and the Responsibility to Protect

Inconsistency in Action

The EU fulfils its R2P not just when it is convenient for the bloc’s normative identity and external activity but also when it serves the interests of its powerful member states. The case of Libya began as a rapid and resounding international community response to a genuine threat of mass atrocity crimes under Colonel Ghaddafi in 2011. This resulted in Resolution 1970, which ‘Recall[ed] the Libyan authorities’ responsibility to protect’ and member state enforced series of restrictive measures (UN, 2011a, p.1), before escalating into Resolution 1973 which invoked the international community’s R2P and permitted member state intervention ‘to take all necessary measures [. . . ] to protect civilians’ (Brockmeier et al., 2014, p.445, UN, 2011b, p.2). In some ways, the EU fulfilled its non-military R2P measures such as ‘asset freezes’, coercive sanctions and ‘travel bans’ effectively and rapidly to bring an end to the Gaddafi regime (see Wouters and De Man, 2013, p.24; Koenig, 2011). Yet, the lack of accountability within the EU foreign policy apparatus allowed for an ‘unchecked […] Franco-British directoiré to act on the EU’s behalf through the European Council (Fabbrini, 2014, pp.189-91) and alongside NATO, using ‘all necessary’ means to go well beyond the agreed mandate in pursuit of their self-interests for regime change (Spencer, 2012; Bellamy, 2011; Pattison, 2011). The partiality and selective protection of rebel civilians showed a flagrant disregard for genuine mass atrocity prevention (Haslett, 2014; Welsh, 2011). This prompted internal EU condemnation with a public statement of criticism against the British-French action from Belgium, The Netherlands and Luxembourg (Castle, 2011, p.4), whilst external BRICS states such as South Africa repeatedly condemned the motives of their actions (UNSC 2011a; 2011b). In keeping with the UK’s inappropriate use of the ICCC report as ‘ex post facto humanitarian justification’ for invading Iraq (MacFarlane, Thielking, and Weiss, 2004; Evans, 2004) and Burma in 2008 by France (Brockemeier et al., 2014, pp.441-4), Libya demonstrates the risk of neo-colonial character emerging in R2P as a rearticulation of long-criticised humanitarian intervention (Jean-Robert, 2012). The UK’s reaffirmation of the legality of liberal interventionism (HoCFAC, 2018) and France’s continued non-R2P droit d’ingérence (Staunton, 2018, p.380) suggests these powers have not seen substantial change within their security cultures, nor genuine commitment to the R2P norm other than co-opting both it and the EU apparatus to deliver their long-standing foreign policy goals (Brockmeier et.al., 2014).

The responsibility to rebuild, initially part of the ICISS report, was omitted from WSOD. However, the EU’s lacklustre post-intervention support in Libya has fallen short of its own commitments to assist with ‘the reconciliation and the reconstruction’ of the country following R2P intervention (see Van Rompey, 2011, Georgieva, 2011), not to mention civilians at risk of human trafficking and wide-spread abuse (Gottwald, 2012). Instead, the EU has since prioritised non-R2P norms and foreign policy interests around security and migration (Coen, 2015, p.1051; Wouters and De Man, 2013, pp.25-6) whilst the population continues to suffer immensely (UNICEF, 2015). The Libya case evidences long-held reservations from non-Western states about the true character of R2P’s Pillar III (Morris, 2013; Murray, 2013, p.43) and the EU more generally as a ‘post-colonial power’ (Nicola ̈ıdis, 2015; Coen, 2015, p.1045). Thus, the EU is in part failing to fulfil R2P due to dominant member states co-opting it for their own foreign policy interests and the damage this does to norm development by delegitimising Pillar III (Dembinski et al., 2014, p.366; Hehir, 2011).

Legitimate and Illegitimate Inaction

There are cases of ‘legitimate inconsistency’ where the EU cannot be expected to take extensive action and fulfil R2P abroad based on ‘genuine cost-benefit’ analysis (Gallagher, 2015a, pp.272; Bellamy, 2015, p.137). To ‘deny the relevance of politics’ and its limitations on available actions (Weiss, 2004), especially when the power resides with an often divergent UNSC (Morris, 2015, pp.5-7), is to overstate the pragmatic expectations set out in the WSOD (Ralph, 2018, p.191, Gallagher, 2015a, p.267). The case of the Democratic People’s Republic of Korea is a fair example, being both isolated from the international community and somewhat under the protection of China, a veto wielding UNSC power. The fact that the EU and its member states led calls for an R2P-focused Human Rights Council inquiry into the abuses taking place in North Korea (HRC, 2014), and that this report created behavioural change and restarted human rights relations between the EU and North Korea, is a notable EU R2P success when inaction would have largely been considered legitimate (Cohen, 2016). The complexity and heavily politicised case of Syria – despite overwhelming R2P relevance with extensive war crimes and crimes against humanity committed (GlobalR2P, 2019) – could be another legitimate case as it stands now, especially given its similar ties to vetopower Russia (Coen, 2015, Haslett, 2014, p.203). Yet, it was not always destined to be so complicated. Member states’ failure to internalise the principles of R2P whilst simultaneously using it as a means to justify other foreign policy aims such as ‘accountability’ and ‘regime change’ against Assad (Ralph, 2018, p.193; Gifkins, 2012, p.383) – especially given international suspicion of motives post-Libya (ibid, p.195 and above) – can be seen as a contributing factor to why the R2P failed so cataclysmically in the Syrian case. The EU and its member states restricted potential for genuine de-escalation of mass violence by isolating the more sovereignty-prioritising states who were fearful of further regime changes (Ralph and Gifkins, 2017). This gives further credence to the view that the EU’s R2P is only fulfilled to the extent that it matches existing priorities.

Situations of ‘illegitimate inconsistency’ are even more damaging to the EU’s R2P credentials, where ‘simple selfishness’ means they can neglect action or contribute to atrocities themselves (Gallagher, 2015a, pp.272; Bellamy, 2015, p.137). Simple disinterest produces illegitimate inaction and is a failure of EU R2P fulfilment. For example, the EU was unwilling to contribute to the Democratic Republic of Congo crisis in 2008 despite UN R2P-based request that was well within their means (Smith, 2008, p.4). Likewise, Member States have failed to pursue any of their own mass atrocity prevention initiatives individually (Brockmeier et al.,2014, p.444). In the aforementioned inaction in South Sudan, disinterest again undermined concerted EU delivery of the R2P in a case where it could have had great impact. Conflict of interest also creates illegitimate inaction. In the current civil war in Yemen, atrocities and war crimes are essentially ‘facilitated’ by the EU member states’ support of Saudi Arabia (Baron, 2016; OHCHR, 2019). Despite ‘condemnation’ (Council of the EU, 2018) and comprehensive financial aid (Alattrash, 2018) provided to Yemen, fundamentally the EU has failed to hold its member states accountable to their legally binding 2008 Common Position on arms exports (Oppenheim, 2019a) and to international humanitarian law, leaving this to national courts (Maletta, 2019). National interests, for both arms and non-arms trade and exports, have crippled the EU’s response to Saudi Arabia’s actions (Oppenheim, 2019b) and have meant the EU has not only failed to fulfil its R2P, but its main powers are actively contributing to the crisis. Similar criticisms against their self-interest have been levied against Europe remaining ‘silent’ over abuses by Saudi Arabia and Bahrain (Hehir, 2013, pp.44-45). Likewise, the EU has failed to ‘name and shame’ Eritrea since 2016 despite ‘crimes against humanity’ taking place there (UNHCR, 2018), and continue to provide aid without conditionality because of the country’s role in Europe’s migration strategy (ECR2P, 2019). Likewise, the Kurdish population in Syria and Turkey face ‘ethnic cleansing’ and ‘war crimes’ by Turkish armed rebels as a result of the departure of US forces from Syria in October 2019 (Seligman, 2019; Roebuck, 2019). Key EU member states sell a plethora of arms to the country, and some public condemnation alongside an embargo on new arms sales remains insufficient for the EU to fulfil its R2P as long as old contracts continue to be delivered whilst atrocity crimes take place (Al Yafai, 2019). These cases exemplify an underlying challenge in EU foreign policy in that despite Lisbon’s apparent coordination of activity of member states (Fabbrini, 2014), these will prioritise their foreign policy interests (or disinterests) at the expense of the EU’s espoused goals or commitments, such as R2P.

The Refugee Crisis and R2P as Selective Foreign Policy

Whilst for the most part the EU is agreed to have a ‘unique’ role in R2P as a non-traditional, international proactive foreign policy acting region (Ercan and Gu ̈nay, 2019, p.491), it also has a mixed fulfilment of the norm internally and on its borders. The post-war formation of the EU and its guarantees of Pillar I for European states offers an opportunity for ‘region-to-region learning processes’ on how this may be replicated abroad (ibid, p.499; Wouters and De Man, 2013, p.10). Likewise, its enlargement and accession processes for new members were declared its ‘greatest contribution’ to R2P because it implements structural prevention by spreading EU values to neighbouring states and aspiring EU member states such as Bosnia and Herzegovina, Serbia etc. (De Baere, 2012, p.10). Its enlargement and accession processes help to internalise EU norms and standards into such nations, ensuring they have the safeguards and normative aspirations long-term to uphold Pillar I. Yet none of this work was done for the R2P norm. When its internal R2P is put under pressure, it is evident how little the norm is fulfilled, such as in the case of the EU’s response to the refugee crisis (Panebianco and Fontana, 2018, p.10). Whilst the WSOD and reports may not necessitate states take in refugees (Bulley, 2017), literature comprehensively suggests asylum and refugee protection represent a prudent and viable Pillar I and II avenue to fulfil R2P commitments as well as existing international humanitarian law (Panebianco and Fontana, 2018; Coen, 2017; Welsh, 2014; UNSG, 2009, Para.35;68; Barbour and Gorlick, 2008). The EU Agenda for Migration (European Commission, 2015) did not reference R2P directly, but acknowledged the ‘duty of protection’ and need for ‘solidarity’ for those fleeing abuse as well as states burdened with their immediate protection or arrival. The manifestation of Europe’s actions on this crisis demonstrate how other factors took and continue to take priority over R2P, with intense securitisation of refugees (Newman, 2017; Ralph and Souter, 2017, p.48); variation in the response of different member states i.e. Germany’s one million intake against Hungary’s mishandlings (Barqueiro, et al.,2016, pp.40-43); and an overall failure to live up to their ‘cosmopolitan commitments’ to human security and protection (Newman and Stefan, 2019, p.13; Newman, 2017, p.60). When one considers the fact that most asylum seekers originated predominantly from Syria, Iraq and Afghanistan (UNHCR, 2016), the lack of fulfilment is a dereliction of Europe’s ‘special responsibility’ to protect (Ralph and Souter, 2015). EU member states had a considerable direct contribution to the conflicts and creation of these ‘atrocity crime refugees’ and their failure to provide subsequent civilian refuge and protection suggests a lack of norm internalisation (Ralph and Souter, 2017Souter, 2014), especially as it is refugees who can be ‘at most risk’ of further mass atrocity crimes (Davies and Glanville, 2010).

This is not to say the EU did not fulfil its R2P in other ways for refugees, including comprehensive packages of financial, operational and political support for Middle Eastern and North African states, as well as efforts through the UN and international organisations (Bulley, 2017, pp.62-67). Yet this crucially remained a ‘downstream’ foreign policy agenda (Ralph, 2018, p.195; Barqueiro, 2016, p.994; Welsh, 2014), and has fundamentally been criticised as an ‘outsourcing’ of responsibility (Newman, 2017, p.60, Bulley, 2017, p.61) to ensure refugee burdens remain abroad. The precedence of other foreign policy objectives over the R2P is exposed by the Action Plan with Turkey, which poses serious questions over its ‘safe country’ status (Frelick, 2016) and, even worse, allows for potential refoulement of ‘irregular migrants’ back to the atrocities they fled to Europe to avoid (Bulley, 2017, p.66). This fits into a wider picture of an EU unwilling to bear the political costs of R2P compared to other domestic pressures and foreign policy interests (Coen, 2015, p.1047). In demonstrating ‘solidarity’ with states themselves through Pillar II and not refugees, the EU may be able to technically fulfil its ‘R2P’ through an ‘externalized politics of protection’ through state capacity-building (Panebianco and Fontana, 2018, Bulley, 2017, p.64; Haddad, 2010). Yet the questions remaining over the types of states this reinforces (Gallagher, 2015b) and lack of guaranteed long-term protection compared to what would be secured with asylum demonstrate that foreign policy goals around security, migration and terrorism are – and likely always have been – most important in EU decision-making, with the likes of R2P a normative commitment only fulfilled when convenient.

Conclusion

Judging the extent to which the EU fulfils its R2P is complex and multi-faceted. Its inability to always fulfil R2P is not necessarily a critique, as the self-interest with which it has been approached is both understandable and was predicted by the original R2P norm entrepreneurs (Evans, 2004). The EU has, in many cases, technically fulfilled the R2P in more ways than most, particularly in their structural prevention investment. Yet, this should not be confused with genuine internalisation of the R2P principle. What is worthy of condemnation is both the bloc and its member states’ willingness to claim to be supporting and fulfilling the norm at the UN-level whilst simultaneously failing to consistently deliver their potential for it. The R2P is utilised both for the ‘normative power Europe’ identity as well as pragmatically to excuse member states foreign policy exploits without remorse. Failing to commit politically, economically or conceptually to the necessary uniqueness of R2P at an EU-level means the EU has under fulfilled the immense role it could have, and claim to want, for R2P worldwide. Their co-optation of the concept does damage to the norm’s legitimacy and in turn, has and will continue to have real consequences for those suffering mass atrocities. When truly tested on its R2P credentials, the EU has failed to live up to its ‘own moral logic’ (Newman, 2019, p.59) and ultimately its R2P fulfilment is exposed as only delivered to the extent that it is accidental, convenient or useful to do so, demonstrating little to no sense of true ‘responsibility’ at all.

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Between Realpolitik and Humanitarianism: Why Is the Application of the R2P Inconsistent? A Closer Look at Libya and Venezuela

Valentina Uccioli, University College London, UK

Valentina Uccioli is a final-year student at University College London, graduating in European Social and Political Studies. Originally from Italy, her interest for international development, human rights and the Hispanic culture has brought her to Madrid (Spain), Santiago (Chile), and Granada (Spain) as visiting student. She has interned at the Organization of American States in the Dominican Republic.

Abstract 

This paper critically examines the inconsistent application of the concept of the Responsibility to Protect (R2P), focusing on the case studies of Libya in 2011 and Venezuela today. The application of R2P requires a ‘manifest failure’ of the state to protect its citizens. However, it is unclear what threshold ‘manifestly failing’ entails. I use Gallagher’s (2014) criteria to show how in both crises, the Libyan and the Venezuelan governments respectively, were ‘manifestly failing’ their responsibility. In light of this, the paper examines the geopolitical interests of the 5 permanent members (P5) of the UN Security Council (US, UK, France, Russia, China) involved in each crisis. The result shows how the lack of particular interests from China and Russia in Libya prevented them from vetoing Resolution 1973 that allowed a NATO coalition to intervene to protect Libyans. However, in Venezuela, the interests of the P5 diverge, preventing the UN Security Council from providing the country with proper relief, despite the evidence of severe human suffering. Further, this paper finds that the intervention in Libya has led to a discrediting of R2P, since, given the controversial outcome of such intervention, R2P has been linked to regime change. This increased political weight has severely reduced the chances that the UNSC will apply R2P in relation to Venezuela.

Introduction

Humanitarian interventions have been increasingly common since the end of WWII – owing to the emerging idea that mass atrocities should no longer be protected behind the shield of “national sovereignty”, and that states should act ‘in defence of common humanity’ (Annan, 1999). These notions culminated in 2001 with the formulation of the doctrine of the Responsibility to Protect (R2P), articulated by the International Commission on Intervention and State Sovereignty (ICISS). The project was aimed at creating a moral imperative for the international community to intervene when a state was failing its responsibility to protect its population from war crimes, crimes against humanity, genocide, and ethnic cleansing (“the four crimes”, as agreed at the 2005 World Summit).

The relevance of the doctrine relies on three main elements. First, it has managed to solve the controversies around the concept of humanitarian intervention, the result of a history of colonial powers invading and conquering countries of the global South on supposed humanitarian grounds. Second, it has achieved a balance between the notion of sovereignty and intervention for humanitarian purposes. It has done so by drawing inspiration from Francis Deng’s idea of ‘sovereignty as responsibility’ (1996), shifting the concept from sovereignty as a right of the state over the population to sovereignty as a duty of the state toward the population in terms of protection. Third, it has created a moral duty for the international community to intervene when faced with mass atrocities.

However, inconsistency seems to be the main trend since the global adoption of the doctrine (Hehir, 2013), formalised through the 2005 World Summit Outcome Document (WSOD). The concept has been invoked several times, but it was never used to allow a military intervention until the crisis in Libya broke out in 2011, when a United Nations Security Council (UNSC) resolution invoking R2P authorised a North Atlantic Treaty Organization (NATO) coalition to protect civilians. However, in the same year heinous crimes were being committed in Syria, but the UNSC did not vote in favour of a similar resolution despite greater atrocities being perpetrated.

In light of this, the aim of this paper is to understand why the application of R2P has been so uneven and what the contributing factors are. In order to understand how these factors interplay, I will use the Libyan and Venezuelan crises as case studies. Libya, considered ‘a textbook example of the doctrine working as it was supposed to’ (Evans, 2012), was the first time the UNSC authorised the intervention in a functioning state against its will. Venezuela is one of the gravest humanitarian crises in Latin American history and serves as a case study to show how crimes against humanity can be perpetrated even in absence of an armed conflict.

One would expect that once it has been determined that a state is failing its responsibility, the international community should feel compelled to act. Nonetheless, as we have seen in multiple cases – Syria in 2012, for instance – there are several other factors that determine whether states will intervene to stop mass atrocities. My hypothesis is that, given the current structure of the UNSC and the veto power, geopolitical interests play a determinant role in the application of R2P, and alongside with the discrediting of the doctrine, they help explain the inconsistent application of R2P.

Doctrine

The doctrine of R2P is composed of three pillars. The first one relies on the assumption that the state has a responsibility for the population’s protection. The second pillar is concerned with the international community’s responsibility to assist and engage with those states that are unable to uphold their responsibility. Finally, the third and most controversial pillar claims that ‘The international community, through the United Nations, [is] prepared to take collective action, in a timely and decisive manner, […] on a case-by-case basis [when] national authorities are manifestly failing to protect their populations’ (WSOD, 2005). However, there is no specific definition for what “manifestly failing” entails, and this is why Gallagher, in his paper “Syria and the indicators for ’manifest failing’” (2014), sets out a series of criteria to determine what is the boundary a state has to cross to show a manifest failure of its responsibility. According to Gallagher, these are: government’s intentions to neglect its responsibility, death toll, displacement of people, weapons of choice, and targeting of children, women and elderly.

I will use these criteria as variables in the comparison between the Libyan and Venezuelan crises to determine whether they meet the criteria and will argue that they do. Secondly, I will analyse the P5’s (permanent five members of the UNSC) geopolitical interests and claim that they did play a role in determining the intervention in Libya and the inaction in Venezuela. Finally, I will evaluate whether the criticism and discrediting suffered by the doctrine of R2P since the intervention in Libya is hindering states’ willingness to use the doctrine to authorise another intervention.

Context 

Libya

The Libyan crisis started on the 17th of February 2011 when protests broke out following uprisings in Tunisia and Egypt as part of the Arab Spring. Libya’s President and Revolutionary Leader Muammar Qaddafi responded with violent suppression of the demonstrations. In just six days, according to the International Federation of Human Rights, the death toll was estimated at 300 to 400 (Meikle and Black, 2011). Facing this widespread violence, regional organisations, traditionally anti-Western and sympathetic to the Middle Eastern and North African governments, ‘joined the chorus of international protest’ (Zifcak, 2012, p.5). The Organization of Islamic Cooperation (OIC), the League of Arab States (LAS) and the African Union (AU), all condemned the violence and called for immediate talks.

The statements issued by these regional organisations ‘signalled the international community’s heightened concern with respect to events in Libya and provided the necessary backing for decisive action’ (Zifcak, 2012, p.5). In fact, on February 26th, the Security Council issued Resolution 1970, which condemned the Qaddafi regime and demanded an immediate end to violence (S/RES/1970, 2011). However, the Libyan regime refused the allegation, and the further escalation of violence consequently pushed the Arab and African states to become even more vehement in their insistence for action to be taken. The League of Arab States after declaring that the Libyan authorities had lost all their legitimacy, demanded the Security Council to enforce a no-fly zone (LAS, 2011, p. 2).

Nevertheless, Qaddafi started bombing rebel-held areas and, on March 17th, the UNSC adopted the ground-breaking Resolution 1973, authorising coercive military measures to prevent a mass atrocity. This resolution allowed Member States to take ‘all necessary measures to protect civilians and civilian-populated areas under threat of attack’ (S/RES/1973, 2011), imposing a no-fly zone and authorising a coalition of states under the NATO’s umbrella to enforce a ban on flights. Two days after the resolution was adopted, the coalition started bombing the regime’s military positions. However, NATO’s strategy quickly ‘stretch[ed] the terms of Resolution 1973 to their absolute limits’ (Zifcak, 2012, p.8) and soon morphed into regime change.

Venezuela

In contrast with the Libyan crisis, Venezuela’s situation does not have a specific starting date, and does not involve an armed conflict – rather, it is the result of two decades of mismanagement, corruption and authoritarianism. President Nicolás Maduro’s predecessor, Hugo Chávez, implemented a series of populist economic policies to eradicate poverty and inequality, providing the population with access to public services. Thanks to the popularity acquired through these social programmes, the government developed into ‘semi-authoritarian and hyper-populist’ (Corrales, 2015) in order to secure control over the country’s highly profitable oil resources. However, in 2014, one year after Chávez’s death and Maduro’s election, the drop in oil prices led to Venezuela’s economic collapse, caused also by the nature of the regime that disincentivised the government from managing the oil boom efficiently (Corrales, 2015). However, instead of restoring the foundations of a thriving economy and a democratic society, Nicolás Maduro ‘chose the road to overt authoritarianism’ (Venezuelan and Ausman, 2019), leading to one of the worst socio-economic and humanitarian crises in the history of the Western Hemisphere.

In May 2019, the High Commissioner for Human Rights (HCHR), Michelle Bachelet, visited Venezuela and published a report concluding that ‘there are reasonable grounds to believe that grave violations of economic and social rights, including the rights to food and health, have been committed in Venezuela’ (2019, p.14). In terms of political rights, the regime has been undermining the rule of law and the democratic institutions in order to neutralise the opposition and repress any political opponents. The OHCHR (2019, p. 6) has ‘documented a number of cases of arbitrary detention of people for expressing opinions on social media’ and according to the NGO Foro Penal Venezolano, between 2014 and 2019, 15,045 people were detained for political reasons. In several cases, people detained are subject to various forms of torture and degrading treatments such as beating, electric shock, sexual violence and water boarding (OHCHR, 2019).

Moreover, armed ”colectivos” (paramilitary groups that support the regime) have been contributing to the maintenance of the regime’s social control through repression of demonstrations and dissent. As a consequence, the number of extrajudicial executions has risen dramatically. The NGO Observatorio Venezolano de la Violencia (2018) has reported 7,523 extrajudicial killings only in 2018. As a result of the extrajudicial killings, arbitrary detentions, and tortures carried out by Maduro’s forces, in September 2018, the situation in Venezuela has been referred to the International Criminal Court (ICC) for crimes against humanity (ICC, 2018). In February 2020, Maduro responded to such allegations by making its own referral to the ICC, arguing that such crimes were the consequence of ‘the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela’ (Maduro, 2020, author’s translation).

Criteria and their application 

Criteria

Firstly, Gallagher (2014, p. 6) argues that the government’s intentions to neglect its responsibility should be the starting point of the analysis as the state is the key actor of interest in the doctrine of R2P. Gallagher argues that the best way to assess governments’ intentions is to analyse the policies implemented and whether these are ”deliberately facilitating and/or perpetrating” mass atrocities. Secondly, Gallagher (2014, p. 8) claims that the death toll is the second-best indicator for ’manifest failing’, since the higher the number of people being killed the more the state is clearly unable or unwilling to stop the atrocities. As definition of death toll, Gallagher favours Robert Pape’s (2012, p. 43): ‘thousands have died and thousands more likely to die’, as it demonstrates that a systematic ongoing process is taking place, and there is no need for thousands of people more to die before action is undertaken.

Thirdly, the displacement of people indicator is meant to highlight how a massive flow of refugees is a sign of a state’s failure to fulfil both its internal and external responsibility to protect. Gallagher (2014, p.9) explains that R2P’s shift in the concept of responsibility implies that the state is responsible of the safety and welfare of its citizens and therefore, massive flows of refugees ‘help demonstrate that the government is failing its internal responsibility to protect the safety of its citizens as well as its external responsibility as refugees destabilise regional order’.

Fourthly, the weapons of choice is probably the most controversial indicator because, on one hand if government weaponry is being used systematically to carry out the violence, then it is a clear indicator that the government is involved. However, historically, mass atrocities have been carried out without the use of government’s heavy weaponry, therefore making this criterion less indicative to determine a state’s failure to protect its citizens. (Gallagher, 2014, p. 10). Finally, the targeting of children, women and elderly is another controversial indicator, but Gallagher (2014, p.12) argues that ‘the systematic targeting of civilians implies that a policy has been forged’, which means that ‘the government is either responsible for the plan being implemented or is incapable of preventing non-state actors from implementing this strategy’. In the next section, I turn onto the application of these criteria on both Libyan and Venezuelan crises.

Libya

The peculiarity of the situation in Libya in 2011 was that Colonel Qaddafi explicitly said what his intentions were. On a televised speech, he explicitly encouraged his supporters ‘to go out and attack the “cockroaches” (protesters) demonstrating against his rule’ (BBC, 2011) and then assured that he ‘would “cleanse Libya house by house”’ (The Economist, 2011). Since the very outbreak of the protests, Qaddafi showed no hesitation in using his security apparatus to violently suppress the demonstrations. Despite the adoption of Resolution 1970 condemning Qaddafi’s actions, the brutal leader had no intentions of stopping until ‘the country [was] purified from the unclean (protesters)’ (Foreign Affairs, 2011). Given the straightforwardness of Qaddafi’s purposes, there is no doubt on his intentions to neglect his responsibility to protect his population.

In terms of death toll, it is hard to establish a number of people killed before the NATO’s coalition intervened. However, within four months from the outbreak of the protests, it is estimated that the death toll has reached between 10,000 and 15,000 (Reuters, 2011). In conclusion, ‘there is sufficient evidence to suggest that Government forces used excessive force against demonstrators, […] leading to significant deaths and injuries’ (Human Rights Council, 2011, p.4).

Gallagher argues that a mass displacement proves that the State is failing its responsibility internally and externally, as refugees destabilise regional order. According to the UN High Commissioner Refugees (UNHCR), in the first half of 2011, 834,207 Libyans crossed the border into Tunisia (2011), a figure that in 2014 was estimated to have reached almost 1,5 million (Bradley, Fraihat and Mzioudet, 2016). Massive flows of migrants, by putting such a burden on the host country and its economy, carry the risk of creating instability, increasing the chances of dangerous instability in an already volatile region.

For what concerns the kinds of weapons used to repress dissidents, there have been reports and witnesses accounts of Qaddafi’s forces using fighter jets (Al Jazeera, 2011) on anti-government marches: ‘deafening sound of military aircraft targeting demonstrators in what opposition groups warned was a “massacre”. For the second night running, [Qaddafi] appeared to have deployed a shoot-to-kill policy to disperse the protests’ (Chrisafis, 2011). The report by the Human Rights Council (HRC, 2011, p.6) also mentions ‘mortars […] and expanding bullets, cluster, munitions and phosphorus weapons in highly populated areas’. Again, there is little doubt concerning the involvement of the Government in the violence that has been inflicted upon the Libyan populations.

Finally, in terms of intentional targeting of women, children, and elderly, various reports, including the one published by the ICC and one by the HRC (2011), have highlighted how rape had been used as a weapon to instil fear in the population and force it to flee. Physicians for Human Rights (PHR)’s 2011 report shows that at least one school was used by Qaddafi forces as detention places where women as young as 14 years old were repeatedly raped. Moreover, the report also mentions eyewitnesses recounting Qaddafi’s security forces forcibly detaining 107 civilians and using them as human shields; other eyewitnesses reporting that the Government forces had ‘demolished a home for the elderly and abducted its 36 resident disabled, elderly, and homeless civilians’.

In conclusion, the Qaddafi regime was manifestly failing to protect its populations from mass atrocities, and it has triggered international action. In the next section I will assess whether the same can be said for Venezuela. However different the nature of the crisis may seem, ‘the conditions Venezuelans face daily are not much different than those in active war zone’ (Bahar and Dooley, 2019).

Venezuela

While Qaddafi was more explicit regarding his intentions of repressing dissidents and using violence, Maduro has nonetheless caused a similar extent of human suffering. Firstly, in order to falsely demonstrate that there is no humanitarian crisis, the government has begun censoring data regarding the conditions under which Venezuelans live and a Human Rights Watch/Johns Hopkins 2019 report explained that, by doing so, the authorities have exacerbated the crisis and that they are ‘responsible for needless loss of life that their denial and destruction have inflicted on Venezuelan people’. Moreover, the OHCHR also provided an account concerning violence, repression and extrajudicial executions. First of all, it details the excessive use of force from security forces during some of the anti-government protests, with the deliberate aim of infusing fear and to discourage demonstrators. Secondly, the HCHR has reported that the security forces in charge of combating drug trafficking and crime, the FAES (in the Spanish acronym, Fuerzas de Acciones Especiales) are responsible for thousands of killings that might amount to extrajudicial executions. The OHCHR (2019, p.10) is concerned that the regime ‘may be using FAES and other security forces to instil fear in the population and to maintain social control’. As a result, the extrajudicial executions and the arbitrary detentions are clear indicators of the intentionality of Maduro’s policies.

Regarding the death toll, as we have seen, the repression in Venezuela has been systematic since at least 2014, when the Maduro regime started evolving into an authoritarian regime and started repressing dissidents. However, probably the most relevant data for the death toll is that regarding FAES’ raids in poor neighbourhoods which are considered to represent almost 8,000 extrajudicial executions (OHCHR, 2019). According to Roberto Briceno-León, director of the NGO Observatorio Venezolano de la Violencia, the total impunity with the FAES shows that the Government is proud of what is being done, and he believes that this represents a state policy of extermination (Olmo, 2019). The deliberateness of FAES’ violent killings and the impunity from the Government prove that a systematic process of unlawful and inhumane killing has been taking place.

In terms of displacement of people, as a result of the regime violating basic rights such as that of health, food, life and safety, according to the UNHCR (2019) currently there are more than 4.7 million Venezuelan refugees. The burden of the crisis has fallen on neighbouring countries, particularly Colombia, Ecuador, Peru ́, and Brazil, creating a considerable risk of instability. In conclusion, by provoking such an outflow of Venezuelans, Maduro is putting his citizens in further danger, while placing the burden on neighbouring countries, pressuring their weak economies, and consequently increasing the risk of instability throughout the whole region.

As already said, in contrast with Libya, the conflict in Venezuela is of a non-armed nature. This does not mean that the extent of human suffering is smaller, but it makes it more problematic to analyse whether the crisis meets the criterion regarding the kind of weapons used. In Venezuela, the Maduro regime is starving its people to death, it is not providing them with the basic needs like healthcare, which has led to a massive spread of once-eradicated diseases that are increasing the death toll exponentially (OHCHR, 2019). In contrast with armed crises like Libya, the Maduro regime is ultimately achieving atrocity crimes as well, but without resorting to weapons. However, given the lack of heavy weaponry involved in the conflict, it is hard to argue whether this crisis meets the criterion regarding the kinds of weapons involved.

The intentional targeting of vulnerable populations is another problematic criterion. The extrajudicial killings carried out by the FAES are indiscriminate in terms of who the targets are, since it seems that the common factor is political opinion. However, the interesting element concerning this criterion is the mention that Gallagher makes to a “third dimension”, drawing from a Save the Children report of March 2013. The report exposes how children are particularly vulnerable to the spread of disease in conflict zones, where it is juxtaposed with the collapse of the healthcare system. This is particularly true for the case of Venezuela, where children are subject to an unprecedented spread of diseases. Alongside with malnutrition, diseases have produced an increase by 65% in infant mortality rate, only in 2016 (PROVEA, 2016). Similarly, in 2016, the maternal mortality rate has increased by 30% (PROVEA, 2016) because of the lack of prenatal and maternal care, and contraceptives, which leads to homemade abortions that put women’s lives in great danger. Furthermore, the vulnerability of women goes beyond Venezuelan borders since, when forced to flee, women undertake dangerous journeys that subject them to risks such as sexual exploitation and trafficking, abuse and violence (Human Rights Watch and Johns Hopkins, 2019). In conclusion, a state is not targeting vulnerable populations only when heavy weaponry is involved, but also when it is failing to provide access to basic medical care, violating the right to health.

Geopolitical interests

After analysing the crisis in Venezuela through Gallagher’s criteria, one could argue that R2P should be applied and the international community take action. However, these criteria are fundamental but not sufficient to determine a multilateral action under Chapter VII of the UN Charter. This is because any international coercive action must be approved by the UNSC. This requirement represents a double-edged sword since, on one hand, it is pivotal in it prevents powerful states from undertaking illegitimate unilateral actions. On the other hand, however, given the current structure of the UNSC, it makes the decision to halt mass atrocities susceptible to the interests of the P5 and their veto power. While it worked in Libya, where there were no major clashing interests, regarding Venezuela the opposite is true.

On general terms, the P5 have differing ideological positions and are to be understood along with their geopolitical interests. While, on one hand, the US, UK, and France have historically always placed great emphasis on humanitarianism, human rights, and democracy, China and Russia have had different approaches. It is argued that the origins of the modern international humanitarian system lie in the Western/European experiences of war (Davey, et al., 2013, p. 1). Indeed, it has even been criticised that human rights are a Western concept and there is a ‘false universalism’ that ‘obscure[s] Western civilizational hegemony’ (Falk, 1997, p. 8). However, the West’s position on human rights and humanitarianism has generally been consistent in terms of support for these regimes. In terms of national sovereignty, while defending such concept, Western states have increasingly defended the idea that, in case of gross violations of human rights, an intervention can be legitimate because the protection of civilians is prioritised – as it was the case with the NATO intervention in Kosovo, 1999.

On the other hand, China and Russia maintain a ‘restrictionist view of the Charter, which sees sovereignty as ranking higher than human rights’ (Kuhrt, 2014, p. 99). In fact, these concepts of “humanitarian intervention” and “limited sovereignty” were considered “unacceptable” by Russia (Kuhrt, 2014, p. 98). Kuhrt (2014, p. 98) relates Russia’s reticence to these concepts to the fall of the Soviet Union, which made Russia ‘far more sensitive to the idea that the sovereignty norm might be eroded’. Similarly to Russia, China has ‘regularly spoken out against interference on human rights grounds in its internal affairs’ (Sceats and Breslin, 2012, p. 1). Moreover, after the widespread condemnation of the Tiananmen Square events in 1989, ‘it became a central plank of [China’s] general agenda within the UN to promote ultra-statist conceptions of sovereignty and the principle of non-interference’ (Sceats and Breslin, 2012, p. 6). China’s strong position on national sovereignty is evident also in its frequent invocation of the principles of non-intervention or non-interference in domestic affairs (Sceats and Breslin, 2012). More generally, ‘for both Beijing and Moscow, safeguarding domestic political security is a predominant concern. They strongly opposed external interventions that could lead to regime change and state fragmentation’ (Chen and Yin, 2020, p. 18).

Libya

Russia’s neutral position in the decision to adopt Resolution 1973 in Libya was strategic. North Africa had been of secondary relevance in Russia’s foreign policy, limited to arms and energy issues. Kaczmarski (2011) explains the reasons behind Russia’s position as twofold. Firstly, with no crucial interests in Libya, Russia was more focused on maintaining good relations with the Arab countries who all condemned Qaddafi. Hehir (2013), similarly, argues that the endorsement of a no-fly zone by the LAS was key to the decision of Russia to abstain in Resolution 1973. Secondly, Kaczmarski interprets Russia’s decision as aimed at preserving the growing relations with the West and by not vetoing the resolution, Russia ‘gave very clear political support to France’ (2011). While agreeing with Kaczmarski, Gutterman (2011) also argues that vetoing the resolution would have harmed its prospects of preserving an economic foothold in the country. Thus, Russia’s decision was a low-cost action that would improve its position and involvement in the multilateral system, while not harming any national interests.

China’s relations with Libya were already problematic from before the Arab Spring, since Libyan Foreign Minister in 2009 ‘accused China of exploiting Africa’s resources and people, and condemned its behaviour [. . . ] as neo-colonialism’ (Evron, 2013, p.81). Moreover, similarly to Russia, China attached great importance to the Arab States’ positions in the conflict since maintaining good relations with them was more crucial in China’s national interest (Evron, 2013; Paal, 2011; Hehir, 2013). This is even more so given that China had limited investments in the country. Libya was the fifth country in Africa for Chinese investments, and ‘most Chinese enterprises in Libya had no direct investment in the country’ (Junbo and Méndez, 2015, pp.4-5). In conclusion, similarly to Russia, it was more strategic for China to abstain rather than vetoing Resolution 1973, so as to maintain good relationships with the Arab countries without affecting national interests.

For the United States, the crisis in Libya represented a particular opportunity where its national interests converged with its humanitarian values. Firstly, President Obama claimed US’s responsibility to prevent mass atrocities (Blomdahl, 2018). Second, there was a considerable risk that escalating violence between the Government and the rebels might sow the seeds of a favourable environment for fundamentalist and extremist militancy. In conclusion, the US had little to lose in getting involved while having the chance of promoting ‘a new form of humanitarian intervention, […] they had been sketching out for nearly a decade’ (Blomdahl, 2018, p.4).

France’s interests in Libya were twofold. First, in terms of economic resources, France imported from Libya 15% of its oil (Davidson, 2013). Second, security issues were of crucial importance given the proximity of Libyan shores to France and Europe, thus threatening France with a massive flow of refugees that could heighten security and terroristic risks in the continent. In conclusion, ‘maintaining access to Libyan oil and minimizing the terrorist threat from Libya were important contributing factors in the Sarkozy government’s decision’ (Davidson, 2013, p.319)

For the United Kingdom, the interests involved in the Libyan crisis were similar to France’s, but they assumed a more “humanitarian” stance. In fact, several journalists reported that UK Prime Minister David Cameron’s decision was influenced by the regret of the West’s failure to protect civilians in Srebrenica in 1995 (Blitz, 2011; Stephens, 2011). Moreover, Cameron feared that if Qaddafi was not ousted he would ‘go back to being the recruiting sergeant for terror he was in the 1980s’ (Blitz, 2011). To conclude, the UK Government was determined to stop the mass slaughter and violations of human rights in Libya both for humanitarian reasons and for security reasons, given the fear that was violence to increase in Libya, a new wave of terrorism might have threatened Europe.

Venezuela

The crisis in Venezuela, given its geographical location and its oil reserves, has attracted a variety of actors. According to John E. Herbst and Jason Marczak (2019, p.1) ‘[e]xternal actors are using Venezuela as a battleground for their own selfish national interests, bolstering the corrupt and faltering Maduro regime’.

While pursuing advantageous economic and military deals, Russia’s interest in Venezuela is mainly political. Putin sees Venezuela as a partner in ‘constructing a new multipolar, anti-US world’, a point of leverage in the US’s backyard (Rouvinski, 2019, p.1). In fact, the primary value for Russia is Venezuela’s geographical proximity to the US. Moreover, Putin is exploiting the Venezuelan crisis to show that Russia’s influence goes beyond its natural area of interest, namely, Asia or the Middle East, and to ‘portray Russia’s return as a global power’ (Rouvinski, 2019, p.1). In order to strengthen its position, at the beginning of 2019, Moscow provided Maduro with S-300 systems with two geostrategic goals. First, it was supposed to deter any US military intervention in Venezuela. Second, the equipment ‘came with Russian “experts” (soldiers), who, along with the thousands of Cuban intelligence personnel in the country, could provide security for Maduro’ (Herbst and Marczak, 2019, p. 5). Moreover, were Putin to lose this bet, Venezuela would become ‘a symbol of one of Putin’s greatest failures in the international arena’ (Rouvinski, 2019, p.17). These reasons help understand why ‘there is no doubt that Russia will use its veto power to block any resolution [in the Security Council] that would harm Maduro’ (Jeifets, 2018).

Venezuela’s relations with China date back to two decades ago when Ch ́avez decided to diversify away from the country’s export dependence on the US, with the aim of ‘counterbalance[ing] US influence in Latin America’ (Kaplan and Penfold, 2019, p.15), and saw China as a crucial partner. As Pina (2019) explains, China views ‘the oil-rich socialist country as a significant trading partner and geopolitical ally in its main political and economic rival US’ backyard’. Moreover, “south-south” cooperation is one of China’s foreign policy’s central pillars and Beijing ‘does not want to risk its reputation as a leading partner and trustworthy investor in the global south by siding with a US-backed opposition group and supporting its attempt to unlawfully topple the legitimate government of a sovereign country’ (Pina, 2019). Given the deep financial investments in the country and the geopolitical value it places on the country, China is standing with Russia in the Security Council and vetoing any attempt to adopt resolutions that may alter the situation in Venezuela.

The United States is deeply involved in the crisis and the Trump administration has been repeatedly pushing for international involvement in the crisis – still considering military intervention ‘an option’ (CBS News, 2019). While the US’s desire to restore democracy and protect human rights might be part of the equation, it would be na ̈ıve to ignore its interests in the Latin American country. First of all, Venezuela has the largest oil reserves in the world and both Chavez and Maduro have tried to diversify Venezuela’s oil exports to limit the country’s dependence on the US, therefore threatening key US’ economic interests. Secondly, Chávez and Maduro have always openly attacked the US, with the aim of fostering political integration and anti-imperialism (Kozloff, 2007). In conclusion, the US has considerable interests in pushing for new elections in Venezuela since the current situation represents a threat to its core economic and ideological interests.

In contrast with Russia, China and the US, the UK and France, have no major interests in Venezuela. In addition, given the long history of support for humanitarian values and human rights, they have participated, as part of the European Union bloc, in efforts to promote a political transition in Venezuela and insist on the need to call free and fair elections to restore democracy in the country (Doward, 2019).

R2P discrediting

Resolution 1973 that authorised the NATO coalition in Libya had authorised Member States ‘to take all necessary measures [. . . ] to protect civilians and civilian populated areas under threat of attack’ (S/RES/1973, 2011). While it could be said that Qaddafi was the main perpetrator of the mass atrocities in Libya, it has been widely argued that his death represented an attempt at regime change that exceeded the mandate of the Resolution. A considerable number of UN ambassadors argued that the NATO-led coalition was no longer acting in defence of the population at risk but pursuing the overthrow of Qaddafi. This idea was further encouraged by the op-ed jointly written by the then leaders of the US, the UK, and France – Barack Obama, David Cameron, and Nicholas Sarkozy, in which they argued that NATO was not pursuing regime change, but that it was ‘impossible to imagine a future Libyan government with Qaddafi in power’ (Obama, Sarkozy and Cameron, 2011). Shortly after, various states began questioning the legitimacy of the action and vocally arguing that such actions were exceeding the mandate given by Resolution 1973.

Considering that Russia and China were not supportive of the intervention in Libya, rather, they were focused on preserving their own interests, once the intervention morphed into regime change, they became extremely vocal against it. They insisted on the idea that ‘there was no way in which the relevant resolution could have permitted the extension of the conflict beyond the protection of civilians and towards the objective of regime change’ (Zifcak, 2012, p. 11). This “mission creep” has severely undermined the global consensus around R2P. As Nuruzzman (2013, p.66), ‘[t]he hidden policy of regime change in Libya has, in fact, killed the R2P doctrine’.

In other words, the failure of the NATO-coalition to remain within the Resolution’s boundaries has severely undermined the global support of the doctrine. As a result, it is argued that ‘the campaign in Libya has done grave, possibly even irreparable, damage to R2P’ (Rieff, 2011). Rieff further argues that it is highly unlikely that interventions under R2P will ‘get sanction from the U.N. in the foreseeable future’ (Rieff, 2011). For instance, scholars have argued that ‘If Libya happened again today, China would not abstain’ (quoted in Sceats and Breslin, 2012, p. 49). The intervention in Libya inevitably linked R2P to regime change, increasing the political risk of employing such a principle. Consequently, the result has been that even if the members of the UNSC had agreed on the need to protect civilians in Venezuela, it became highly unlikely they would apply R2P, given its considerable political weight. It could be argued that Venezuelans are not safe unless Maduro is ousted – and wary of the outcome of the intervention in Libya, the UNSC would be extremely reticent to apply the principle of R2P.

Conclusion

The aim of this paper was to understand why the doctrine of R2P, particularly Pillar III, has been applied inconsistently. After analysing the contexts of the Libyan and Venezuelan crises, this paper examined whether these crises met Gallagher’s criteria for ‘manifestly failing’. In the second section, the paper first described the differing positions of the P5 on issues such as sovereignty and human rights. Secondly, reflecting these positions, I analysed what role the geopolitical interests of the P5 have played in each crisis and whether they have determined the outcome. I find that the crisis in Libya represented no threat to Russian nor Chinese interests and therefore they were both refrained from vetoing UNSC resolutions; while the US’s, UK’s, and France’s interests converged with the need to protect Libyans. In this way, the UNSC was able to authorise military intervention to protect civilians. However, the same cannot be said for Venezuela, which has become a playground for East-West geostrategic interests and rivalries. The great relevance both Russia and China put on Venezuela in economic and political terms has prevented the international community from intervening to provide Venezuelans with proper relief. I thus find that geostrategic considerations do have influence on R2P’s application, affecting its consistency. Finally, another element that further explains such inconsistency is the backlash that NATO intervention in Libya had on the consensus around R2P, associating it to the concept of regime change, therefore fostering countries’ reticence to apply it. This paper argues that, as a consequence of this political weight, even if the P5 had converging interests in Venezuela as they did in Libya, it would be highly unlikely they would apply R2P. In conclusion, there are various factors that interact to determine the irregular application of R2P and, while the geopolitical interests are probably the key factor, one cannot overlook how the association of the doctrine to regime change has influenced this inconsistency.

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Responsibility to Protect and the Immanent Logic of Freedom: A Hegelian Analysis of Humanitarian Intervention

Evan Supple, Athabasca University, Canada

Evan Supple is an MA candidate in Interdisciplinary Studies at Athabasca University, Canada. His research interests include international law, environmental politics, and political ontology, based on the work of G. Agamben, A. Badiou, G.W.F. Hegel, and S. Zizek.

Abstract 

The Responsibility to Protect (R2P) was one of the first major gestures made by the international community to ascribe primacy to human rights over sovereign rights. While the version eventually ratified by the UN Member States in 2005 is far less controversial in scope than its initial 2001 theorization, it remains a hotly contested norm. Much of said debate, however, does not directly pertain to R2P but to the international legal constellation in which it is situated. Thus, for a coherent analysis and critique of R2P to emerge, a comprehensive philosophical analysis of both state sovereignty and international relations is necessary. It is the political philosophy of German idealist G.W.F. Hegel that provides the most rigorous dialectical delineation of what form sovereignty and international relations ought to take. This paper begins with an exegesis of Hegelian sovereignty and proceeds to analyze the pillars and foundations of R2P from a Hegelian perspective, ultimately concluding that the programme is largely uncontroversial in itself, but for a just practical deployment, significant renovations to the framework within which it exists are in order.

Introduction

In the aftermath of the humanitarian disasters of the 1990s, the international community was forced to reconsider how it was to address such atrocities using a framework which had hitherto privileged sovereignty and the concomitant ‘right’ to non-intervention over human rights. In 2000, United Nations Secretary-General Kofi Annan (ICISS, 2001) posed the question ‘…if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?’. This challenge prompted the international community to theorize how these seemingly contradictory principles might be reconciled.

In 2001, the International Commission on Intervention and State Sovereignty (ICISS) formulated ‘Responsibility to Protect’ (R2P). Its core principles were eventually refined and adopted by UN Member States at the 2005 UN World Summit, a meeting wherein the necessity of multilateral operations was unequivocally reaffirmed. At the heart of R2P is the notion that every state has a responsibility to protect its population and encourage others to do the same. If a state fails to fulfill this duty, evidenced by the occurrence of a mass crime – genocide, war, ethnic cleansing, or crimes against humanity – the responsibility to protect (in this case, intervene) falls to the international community, notwithstanding the norms surrounding sovereignty (United Nations, 2005, para. 138-39). The responsibility to protect has superseded the right to non-intervention, at least as the international law-making community perceives it.

The purpose of this paper is to analyze and critique R2P using Hegel’s (1896) Philosophy of Right. It will become clear that although Hegel would endorse the programme’s theoretical formulation, the framework within which it is invoked in practice is rife with corruption and is decisively incongruous with the normative framework for international relations which Hegel develops. Thus, an analysis of contemporary international relations must necessarily precede and inform any critique of R2P, which is what we seek to accomplish here.

The Sovereign State in Philosophy of Right

Philosophy of Right develops the immanent logic of freedom in an anti-foundatio nalist way. Beginning with the sheer indeterminacy of the individual will, Hegel navigates the dialectic of freedom during which he rebukes the liberal conception, viz. absence of restrictions, since the absence of restrictions is itself a restriction, thus necessitating the conception’s sublation and further determination. Freedom, according to Hegel, must be self-determining, such that it wills only its own development, as opposed to having a transcendental concept like choice for its content. In terms of freedom and its relation to choice, as imminently conceived, it is freedom of choice that matters, not freedom of choice*. Prematurely emphasizing choice in freedom’s dialectical development gives rise to insurmountable impasses.

Of course, the development of freedom does not eliminate choice tout court – it is not a totalitarian order at which Hegel’s dialectic arrives – but its primacy is subverted, and its coordinates are determinately constrained. Hegel’s use of fully self-critical reasoning, absent of transcendental imports not arising from within the dialectic itself, is what necessitates our fidelity to the text, despite our current situation’s waning congruence with it.

The individual will, from its initial moment of sheer indeterminacy, passes through various essential moments such as abstract rights, morality, and the institutions of civil society. These moments are pertinent in and of themselves, but their true significance can only be apprehended from the perspective of the substantive unity that emerges at the dialectic’s self-completion: the state. Each of these moments are sublated (simultaneously negated and preserved) at their points of contradiction as a necessity immanent to freedom’s development, but they are not erased from existence. They simply do not constitute the actualization of freedom. Though parsing out the entirety of Philosophy of Right is beyond the scope of this paper, it is necessary to delineate the concept of sovereignty – the telos of the dialectic – as presented in the third section entitled Ethical Life, where Hegel explicates its two faces: internal sovereignty qua the Constitution and sovereignty vis-à-vis international relations.

The Hegelian quasi-corporatist state, distinct from a Republic, is the realisation of freedom as a concrete universality in which both form and content are identical, as opposed to its less-developed incarnation as an abstract universality in the preceding sphere of morality (civil society without its actualization by the state). The state is ultimately conceived as ‘the supersession of the clash between right (i.e. empty abstract freedom) and welfare (i.e. the particular content which fills that void)’ (Hegel, 1896, p. 319); both elements, the positive and the negative, are systematically reconciled and wedded to one another in the state. The state’s substantive unity is the result of the interconnectedness of its various essential moments (i.e. individuals, families, businesses, police and authority, and the various branches of government), producing the absolute realization of freedom which cannot be formally superseded by any greater entity.

The state is obligated to care for and protect its people, albeit not in the Hobbesian sense since the Hegelian state is to be apprehended as an extension of the individual rather than a politico-theological structure transcendentally imposed in opposition to the individual. The Hegelian state must, for example, work to make charity less necessary by preventing the emergence of a rabble and perpetuating the necessary structures of freedom which enable such prevention (see Hegel, 1896, p. 152). The relationship between the state and its citizens must, however, be reciprocal, such that the individual’s primary duty is to preserve the state at all costs, even when one’s life or property are placed at risk in fulfilling this duty.

In contrast to any objection that such a duty would stand in diametric opposition to one’s freedom, Hegel (1896) maintains that it is in duty that individual freedom is actualized, emphasizing the obverse of freedom’s negativity as integral to its actualization (p. 155). The duty to preserve the state (or conversely, the duty of the state to protect its people) should not logically fall outside of one’s individual interests, since citizens of a legitimate state apprehend their public and private ends as identical. Protecting the state is synonymous with protecting oneself or, in other words, with the perpetuation of freedom’s perennial self-determination. Hegel (1896) explicates that ‘[i]t has often been said that the end of the state is the happiness of the citizens’, to which he responds is ‘imperfectly true . . . if they do not find that the state as such is the means to their satisfaction, then the footing of the state itself is insecure’ (Hegel, 1896, p. 155). The legitimately free state does not thwart the self-determination of its individual citizens. The will (which we must mention in passing must not be conflated with any other capricious psychological faculties such as desire; the will is the pure abstract ego) of individuals and the will of the state must be self-identical. Any state in which such reciprocity does not exist cannot be recognized as a legitimate state.

In contrast to the ‘good’, or civilized, state is what Hegel terms the ‘bad state’ which ‘merely exists … but it has no genuine reality. A hand which is cut off still looks like a hand, and it exists, but without being actual’ (Hegel, 1896, pp. 257-258). Here, ‘actual’ refers to the immanently determined substantive unity of form and content. Dictatorships and totalitarian regimes, often the subjects of intervention, can be classified as bad, or ‘barbaric’ states. A bad state, in other words, can be said to lack the structures of freedom integral to its self-promulgation.

International Relations in Philosophy of Right

Moving beyond the state’s interior composition, the state vis-à-vis foreign relations necessitates a more meticulous examination. The sovereign state has as ‘its essential character from its own point of view . . . singleness . . . exclusive of other units. So characterised, the state has individuality … and in the sovereign an actual, immediate individual’ (Hegel, 1896, p. 310). Since the single state, in the global aggregation of individual states, is aware of its existence as distinct from others and thus does not require anything politically external to function, it can be said to be autonomous. Autonomy constitutes ‘the most fundamental freedom which a people possesses as well as its highest dignity’ (Hegel, 1896, p. 311). Autonomy is directly compatible with the principle of non-intervention; however, autonomy is characteristic of a ‘good’ state and insofar as it maintains this positive designation, legitimate intervention would not be necessary. The same cannot be said of the ‘bad’ state.

Moreover, Hegel posits that states are self-subsistent. Autonomous states are ‘principally wholes whose needs are met within their own borders’ (Hegel, 1896, p. 318). Of course, today states’ needs are often outsourced and satisfied in the territories of other states or via trade. Thus, apropos of the manifold trade networks and global alliances constitutive of the present, sovereign self-subsistence appears as more of a ruse than Hegel purports; however, we must maintain that globalizing dynamics do not necessarily eradicate the possibility of political self-subsistence altogether, despite the advantages of beneficent international cooperation, especially in relation to imminent ecological crises and increasing digital connection.

In reference to international ‘law’, it emerges from relations between states; however, since the state is an autonomous totality, what is absolute in international law ‘retains the form of an ought-to-be, since its actuality depends on different wills each of which is sovereign’ (Hegel, 1896, p. 317). International relations mimic the relations between individuals and institutions in the sphere of morality which precedes the state. A concept of welfare informs the workings of this sphere in both its national and international incarnations, but since it cannot be politically actualized in the latter (an autonomous totality cannot be officially governed by a superior court), it remains abstract and open to individual interpretation. The implication of this is that while the logic of freedom, despite the impossibility of a supranational enforcement mechanism, ought to inform international relations, states are not officially prevented from acting in a way that is contrary to the logic of freedom, thereby creating the possibility for duplicitous action. Such action, apposite to the discussion of R2P below, can be of a positive form, in the sense of manipulating other states to further the state’s own particular self-interest, or a negative form, in the sense of failing to fulfill on the duties determined by the logic of freedom if they hinder the state’s particular self-interest (for example, purportedly unnecessary expenditures delegated toward protecting an external population, with which it shares limited interests or contact, in instances of war or genocide). Hence international ‘rights’, such as that of non-intervention, are purely abstract. This illuminates the fallaciousness of international ‘law’ as it currently exists. This is not to suggest that we ought to ignore such ‘laws’, as they are often invested with great potential, but rather to simply emphasize their non-binding character.

With this position, Hegel departs from Kant who theorized the notion of ‘perpetual peace’ to be secured by a legitimate League of Nations. Hegel (1896) insists that this utopian ideal presupposes an agreement between states, ‘but in any case would always depend ultimately on a particular sovereign will and for that reason would remain infected with contingency’ (p. 319). This will become unambiguous later on when we direct our attention toward the UN Security Council. There can be no Kantian international praetor; at best there may be an arbitrator or a mediator, but such a figure cannot be invested with binding juridical power, as is often (mistakenly) ascribed to the International Criminal Court.

A state is an individual and individuality implies negation, insofar as the state must negate that which it is not in order to clearly delimit its own boundaries and affirm its autonomy. It follows that ‘even if a number of states make themselves into a family, this group as an individual must engender an opposite and create an enemy’ (Hegel, 1896, p. 313). The enemy, or the Other, is tethered to the very concept of the state, albeit not a part of the state’s foundation since it develops out of an immanent necessity and thus independently of an Other. A cluster of states can form an alliance based on their similarities or interests, but such an alliance is not possible for all states because of the necessity of exteriority. To suggest otherwise would be to suggest we could escape from contradiction tout court, which is precisely opposed to Hegel’s stance.

Keeping with the logic justifying the impossibility of a binding international juridical authority, state sovereignty and autonomy are purely formal in the sphere of international relations and consequently, the demand for recognition is also abstract. Recognition, the genuine acknowledgement of another individual’s legitimate existence, depends exclusively on the judgements of individual states. Since each legitimate state represents a particular and actualized set of interests integral to its self-determination, no binding authority can demand that one state recognize another. If a free state is a concrete embodiment of freedom’s self-willing, it would likely recognize an external individual with which it shares a similar end, but the subjective act of international recognition cannot be regulated or prescribed by an international authority.

In reference to the idea of the good that ought to inform international relations, Hegel (1896) posits that ‘the subjective will has not yet been caught up into it and established as according with it. Consequently, it stands in a relation to the good, and the relation is that the good ought to be substantive for it’ (p. 123) but the absence of a supranational concrete universality leaves only an empty shell that can and should be used as a guiding tool but which is vulnerable to manipulation. What is more, ‘[t]he right of giving recognition only to what my insight sees as rational is the highest right of the subject, although owing to its subjective character it remains a formal right’ (Hegel, 1896, p. 124). The abstract nature of this ‘ought’ leaves us without a concrete universal, so any conception of it cannot be realized until it ‘acquires the character of particularity’ (Hegel, 1896, p. 126) which erects an obstacle at the international level. Again, if recognition and its concomitant normative implications ultimately infringe upon a state’s self-interest, there are no legal ramifications should it fail to recognize another.

Despite that Hegel (1896) proposes that legitimate states ought to recognize one another, he clarifies that ‘the absolute right of the Idea to step into existence in clear cut laws and objective institutions’ justifies ‘civilized nations in regarding and treating as barbarians those who lag behind them in institutions which are the essential moments of the state’ (p. 325). If such ‘barbarians’ lack these essential moments, then their claims to sovereignty may be vacuous and thus, their ‘rights’ an empty formality. In striving for recognition by civilized states, less civilized states may be left with no other choice than to develop and actualize freedom; however, as evidenced by manifold historical examples, this is not always the case. Nonetheless, a free state’s genuine recognition of ‘unfree’ states would be antithetical to freedom’s universal willing of itself. Recognition is unequivocally conditional, regardless of whether it is a ‘good’ or ‘bad’ state in question; however, since Hegelian freedom must have itself for its content by universally willing itself, a free state cannot logically disregard the structures of freedom found within other states without being in contradiction with its own freedom. The dilemma, once again, is that no supranational authority can enforce this; self-determination must develop immanently.

The authority of states, albeit absent of looming threats and further legitimated once external recognition is acquired, is a ‘purely domestic matter (one state should not meddle with the domestic affairs of another)’ (Hegel, 1896, p. 318). Of course, the bracketed statement can only function prescriptively (e.g. should not); however, coupled with the fact that he rejects Kant’s utopian theory of ‘perpetual peace’, this is indicative of Hegel’s approval of Westphalian sovereignty, at least its formal character. The latter has as its foundation the sovereign state’s internal right (albeit purely formal) to non-intervention and its duty to respect this right of other states as per the logic of freedom. Hegel (1896) insists ‘not [to] infringe on personality and what personality entails’ (p. 49), which is applicable in the realm of international relations. The implication of this is that he would not endorse an immoral intervention into a free state, perhaps motivated by the dialectical drive toward colonial or imperial expansion (Hegel, 1896, p. 224), as this would be incompatible with the logic of freedom; however, he cannot but leave the international community without a binding mechanism to prevent such an act. While other states can withdraw their official recognition of the unjustly-intervening state (i.e. by imposing sanctions, withdrawing foreign aid, etc.) in response, there is no legal mechanism to thwart the intervening state’s decision to act. A free state would not logically conduct such a mission, but it remains a possibility to be considered.

Conversely, while infringing upon sovereignty by way of an immoral intervention (i.e. on the basis of difference rather than unfreedom or on the basis of a disavowed injustice which is pervasive in the intervening state, such as sexual violence) is to be interpreted as an infringement upon freedom itself, regarding a case in which intervention is conducted to terminate a genocide or war, the same reasoning would not apply. One could not argue that such an intervention would be an infringement upon freedom, despite being an intrusion onto foreign territory. A state in which a genocide or a similar crime occurs cannot be said to be a free or legitimate state and hence, such an intervention would not be found to be opposed to the logic of freedom.

The final point of Philosophy of Right to which we must attend pertains to philanthropy, a concept inherent to any humanitarian programme like R2P. Hegel (1896) states that ‘the substantial welfare of the state is its welfare as a particular state in its specific interest and situation and its no less special foreign affairs’ (p. 320). Though the state is the actualization of freedom, it nonetheless embodies particularity vis-à-vis the global conglomeration of states, in the form of interests and customs, with ‘custom being the inner universality of behaviour maintained in all circumstances’ (Hegel, 1896, p. 321). Hegel (1896) then posits that the state’s aim ‘in relation to other states and its principle for justifying wars [or interventions] and treaties is not a universal thought (the thought of philanthropy) but only its actually injured or threatened welfare as something specific and peculiar to itself’ (p. 320). Though it would be immoral for a state to claim that its welfare has been jeopardized by another state on the basis of claims found to be in contradiction to the logic of freedom, the international community, as stated above, cannot regulate this in a legalized way. It is incumbent upon the state to decide what constitutes a threat to its individuality.

The implication here is that when humanitarian catastrophes, dire as they may be, infringe upon another state’s financial or geopolitical interests, it might be compelled to intervene in the state in which said catastrophe is occurring, often under a philanthropic guise, such that human life must be protected to serve its particular interests (i.e. economic hegemony). One has little grounds to argue against this if it results in the termination of a mass crime; however, the greater dilemma this poses is how to motivate states to intervene into genocidal or war-torn states with which they maintain a limited connection. Since intervening in a crisis that does not directly impact a particular state would drain the latter’s resources, adversely impacting its internal situation, it is unlikely that it would carry out such an intervention based purely on good intention without a modicum of certainty as to what it would gain by doing so. The unavoidable result of this is an unequal distribution of aid which perpetuates the strength of the states which would purportedly be likely to intervene. Thus, a key issue with R2P which we can prematurely surmise here is not so much the aid that is deployed but that which is not. Notably, anticipating the objection that with programmes like R2P it is an international body that decides when interventions are necessary and conducts them, we must reassert that any such body is composed of individual sovereign wills that can withdraw support at any time.

Before concluding this section, we must briefly inquire whether or not Hegel’s theory of the state leaves us with a relativist stance on the value of human life. Hegel (1896) states in the section Morality that substantive right implies the positive action of duty (as opposed to simply the negativity of abstract formal rights) in which ‘the welfare of others too is in question’ (p. 110) and free will ‘has responsibility in general for its deed’ (p. 112). He later posits that welfare pertains ‘in universal terms . . . [to] the welfare of others’ (p. 127), which would logically extend beyond sovereign borders. The protection of life, the ultimate aim of R2P, would therefore be necessary as ‘no one shall be sacrificed altogether on the altar of right’ (Hegel, 1896, p. 122). In other words, the preservation of human life is a universal imperative, as the failure to preserve life equates to the failure to preserve freedom. While freedom is absolutely realized in the state, and despite the primacy of the duty to protect and preserve one’s own state at all costs, the immanent logic that leads to the state’s inception implies a worth and dignity inherent to human life regardless of its sovereign locus. To not further the global development of freedom, regardless of a state’s particular interests, would be in contradiction to the universal self-willing of freedom. Again, such a commitment cannot be enshrined into a binding international law, but its prescriptive significance must not be disregarded.

Despite its inherent deficiencies which cannot eliminate the potential for manipulation by individual states (and despite that a body like the UN is meant to serve as a structure of accountability), Hegel’s logic of international morality remains the most fruitful vehicle to ensure the protection and preservation of human life on a global scale. There is no possible sphere which could supersede it, so it remains fragile, but the international community must be vigilant in harvesting its emancipatory potential.

Hegel and the Pillars of R2P

The precepts of R2P mistakenly presuppose a binding authority invested in the UN, ignoring the issue of the latter’s composition of particular wills, or individual states. Despite numerous contestations based on the interwovenness of the global community, as evidenced by the increase in trade, military alliances, international debt, transnational business, and treaty agreements, nothing has officially replaced the nation-state, so sovereignty retains its absoluteness despite that few, if any, Hegelian states presently exist. Consequently, the international ‘legal’ constellation is essentially a symbolic fiction, though not one wanting an emancipatory dimension to be gleaned from an interpretation aligned with Hegel’s morality. Despite its non-juridical nature, the UN (or a similar body) remains the sole entity that might feasibly prescribe and direct international action.

It is ‘humanity’ that occupies the role of R2P’s subject; however, it is a floating signifier as what the designation concretely typifies varies in terms of its interpretive locus. Because the relationship between states can only be apprehended within the coordinates of morality, R2P must be conceived as an abstract universality. The tenets of R2P take the form of an ‘ought’ insofar as human welfare forms its core, but what constitutes welfare’s materiality cannot be explicitly determined on a global scale without (neo)imperialist implications, thereby leaving this up to individual states to determine. It is possible to identify structures of freedom but the differences which animate them internally cannot always be discerned from the exterior. Thus, an invocation of R2P must solely be directed toward a rehabilitation or implementation of the subject’s structures of freedom, and not the inner universalities (viz. customs) that animate them.

R2P is composed of three pillars, the first being that ‘[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (United Nations, 2005, para. 138). While its initial formulation in the 2001 ICISS document included crimes of sexual violence and famine within its scope, the agreed upon 2005 version is considerably narrower in scope. This certainly mitigates the possibility for UN-sponsored imperialist interventions, as it is definitively evident that a state ravaged by war or genocide would lack the structures of freedom intrinsic to an actual state, whereas the same cannot be so unequivocally asserted about a state with, say, a high presence of sexual violence or famine. Notably in reference to the pillar at hand, international lawmakers often use floating signifiers like ‘protection’ without explicitly defining them, so the content of such designations is specific to particular circumstances. One can, of course, identify a genocide or war, but it is the threshold separating crime and non-crime, the dialectical moment at which quantitative change becomes qualitative, on an international scale that must occupy some of our concern here, as this line could easily be manipulated in an intervention. Irrespective of the abstractness of ‘protection’, one could argue that Hegel would concur with this stipulation as it directly pertains to human life. This pillar, then, is not a site of contestation because of its derivation within the parameters of Westphalian sovereignty.

The second pillar indicates that “[t]he international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability” (United Nations, 2005, para. 138). Informing this principle is precisely the Hegelian moral sentiment that states ought to participate in the universal willing of freedom, which amounts to enabling all states to implement the necessary structures of freedom for this to be possible. Despite possible claims that encouraging the implementation of particular structures of freedom which allow the exercise of this responsibility might amount to an imperialist imposition of liberalism (for example, such ‘help’ may only be offered if an initiative is concretely commensurate with a particular state’s ideological or economic interests), we can quell such opposition by highlighting the pillar’s broad scope. Solely in question here is the enablement of freedom and the protection of human life; concrete life-worlds are no object of concern for this particular stipulation, despite that such objections may have validity in reference to other UN initiatives.

The third pillar of R2P reads ‘[t]he international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means… to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (United Nations, 2005, para. 139). In other words, sovereignty is subordinated to the ambiguous international moral authority – the particular wills of wealthy states – when mass crimes occur. Diplomatic tactics are initially encouraged, but humanitarian intervention remains an option. One might suggest that Hegel (1896) would not concur, as he argues that states have the duty not to ‘meddle in the domestic affairs of another’ (p. 317) but bearing in mind his stance on what is requisite for freedom’s actualization, his disagreement is unlikely.

Pertinent here is Hegel’s contention that civilized states are justified in regarding less-civilized states as barbarians. This position, coupled with the notion that recognition of other states is a matter of a state’s particular will, partially justifies intervention. Moreover, if a state whose population is faced with an existential political threat would logically lack the essential moments of a free state, as such suffering would not occur in the latter, then more ‘civilized’ states would be justified in intervening on the basis of freedom and the preservation of life. Thus, an intervention truly carried out as a means of promulgating welfare would not be antithetical to the logic of morality.

Prior to continuing, a likely conflation must be clarified: while ‘barbarian’ typically evinces a racist sentiment, interventions based on racism or a failure to respect customary differences are unequivocally unjustified, as per the logic of Hegelian international morality. Freedom must universally will itself and, therefore, not impede the structures of freedom abroad, different as they may appear. A state could not permissibly intervene in another on the basis of anything but their lack of freedom in whatever obvious form this may take, such as war or genocide. Of course, this imperative only exists as an ‘ought’ but if it is not adhered to, freedom itself becomes compromised and consequently, so does the intervening state’s actuality. Historically speaking, it is often non-Western states which lack said structures of freedom, typically due to the impacts of (de)colonization or the Western imposition of neoliberalism, or conversely lack the resources necessary to intervene in other states, which results in the perpetuation of the superpowers’ global hegemony. This historical facticity is not something Hegel foresaw so we must adjust any future R2P efforts accordingly.

Hegel and the Foundations of R2P

R2P rests upon four foundations found in the initial ICISS theorization of R2P but are not expressly stated in the 2005 clauses. It is, nevertheless, useful to direct our attention toward them as they inform the larger set of coordinates within which the ratified clauses are situated. The first foundation lies in the ‘obligations inherent in the concept of sovereignty’ (ICISS, 2001, XI). While the implied conception of sovereignty is not delimited, if we interpret the foundation with Hegel’s conception of sovereignty in mind, we could conclude that he would concur since the state is bound by right to protect its people and is duty-bound to protect human life, again due to the necessity of a state’s universal willing of freedom.

The second foundation lies in ‘the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security’ (ICISS, 2001, XI). This is commensurate with Article 139 of the 2005 World Summit Outcome Document which clarifies that any invocation of R2P is to be carried out via the Security Council (United Nations, 2005, para. 139). It is worth noting the corruption of the United Nations Security Council (UNSC) and hence, of this foundation. Hegel indirectly privileges the notion of sovereign equality, at least among the ‘civilized’ states, which the UNSC inherently betrays. With its five permanent members (China, France, UK, Russia, and USA) endowed with a mostly unfettered veto power, what ought to remain a neutral international entity becomes corrupted by hegemonic interests. What ‘the UN as a neutral body is duty-bound to preserve’ translates to ‘what the global superpowers choose to maintain’, bringing us back to the point that responsibility can only be conceived as a contingent choice, not subject to binding law. Thus, while a majority of Member States might decide in a moral way on whether or not to intervene, this decision could swiftly be vetoed by the possibly immoral (or purely self-interested) will of a Permanent Five member. It is possible to delineate normative criteria to which these powerful states should adhere; however, such adherence is unlikely in the current situation rife with corruption, as they would possess no obligation to accede.

Hegel (1896) was accurate in proposing that any international law body ‘would always depend ultimately on a particular sovereign will [or sovereign wills in this case] and for that reason would remain infected with contingency’ (p. 319). Even though ‘treaties, as the ground of obligations between states, must be kept’ (Hegel, 1896, p. 319), the veto power automatically robs the Permanent Five of any accountabilities to which they should be held. Resultantly, they are legitimately permitted to pursue their particular interests, despite whether they are moral or not. We can infer that Hegel would reject this foundation due to the corruption of the UNSC; however, this does not yet imply that R2P as a whole must be jettisoned. This illuminates the virtual dimensions which surround it, given that it can only be activated by the UN and hence, leads one to infer that its underlying framework is more the object of concern than R2P itself.

The third foundation lies in ‘specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law’ (ICISS, 2001, XI). The Hegelian conclusions about this statement should be self-evident by now. The fourth foundation lies in ‘the developing practices of states, regional organizations and the Security Council itself’ (ICISS, 2001, XI), which presents the paradox of contingent foundations. If still-developing practices constitute its foundation, then the latter lacks stability. As per Hegel’s stance on civilized states in relation to ‘barbarians’, he would not wholly reject this foundation. It begs the question of whether, since arguably no states are truly emblematic of the Hegelian framework but since some are far closer than others, any states are justified in intervening in less developed states or states in unrest even if they do not purely embody the Hegelian framework themselves. Perhaps given the reduction of R2P’s scope to mass crimes, the answer to this inquiry is less controversial.

Since the contemporary neoliberal circumstances do not resemble a truly Hegelian paradigm, the reasoning that an intervention might be in alignment with the ‘universal willing of freedom’ would be incoherent, as most states are not exemplars of freedom as it stands. One might, nevertheless, formulate a set of prescriptions for justified intervention that would be founded not upon imperial-expansionist principles but would aim toward the genuine protection of human life and freedom. For example, no intervention motivated by (neo-)colonial interests would be permissible and interventions ought not to be pursued if a commitment cannot be made to leave the subject-state in a better condition than before. An intervention must also not harm the intervening state, as this would conflict with its freedom. Of course, the particulars surrounding interventions must be determined on a case-by-case basis given that radical contingencies cannot be preemptively accounted for in an abstract theoretical framework. It is with such particulars that a more incisive Hegelian critique (or approval) can be developed as opposed to what is possible from our presently formal perspective. Given R2P’s locus in the UN, it is the bridge from theory to practice wherein flaws that, while are perhaps not intrinsic to R2P itself but invariably emerge when the UN deploys it, come to light and necessitate rigorous scrutiny.

The culminating point to be made here is that in cases where unrest is not a singular event to be addressed once but rather a symptom of or a reaction to a larger global dynamic, intervention would all but tend to the root of the problem and may in fact worsen circumstances in general. In the era of global capitalism, when the potency of state sovereignty is receding against the thick texture of capitalism colonizing every inch of the space we inhabit, and when little motivates states to act antithetical or indifferent to their financial or geopolitical interests, prescriptions derived from the logic of morality, certainly leave much to be desired. However, deficient as they may be insofar as implementation is concerned, they are all we can theorize in advance and act in fidelity toward in practice.

In order for R2P’s truly legitimate enactment, aside from the obvious benefits of terminating an egregious instance of lethal violence, internal renovations would be necessary for states most likely to intervene, such as the wealthy and powerful (most particularly the United States). We must assert that internal recovery, specifically for the corrupt members of the Permanent Five, would greatly reduce the number of humanitarian crises requiring intervention since the latter are often stemmed by the brutal forces of unbridled globalization constitutive of the current moment. While no genocidal reaction to the forces of globalization is justified, we must situate any critique within a broader landscape than merely the singular crisis in question. Any intervention would need to be radical, such that the underlying structural causes would be addressed, as well as the material circumstances of the crisis in question.

Conclusion

Despite the predicaments associated with the sphere of morality, within which any legitimacy accorded to R2P is determined, it is all we possess as a guide for ethical international relations. Thus, we must conclude that while Hegel’s account of international relations perhaps yields feelings of impotence, it remains indisputable. It is we who must readjust to the Hegelian paradigm and not the inverse. To equate the lack of an enforcement mechanism to an insurmountable deficiency which cannot but enable international relations dominated by right-of-might would be to lapse into moral vacuity and not to harness the emancipatory possibilities that exist in the formal framework of morality.

As it pertains to R2P itself, we can conclude that if it is interpreted in such a way as to be congruent with the international ‘ought’, such that its purpose is commensurate with the universal willing of freedom and no other particular agenda, then it is wholly permissible and even desirable. It remains relatively uncontroversial to assert that mass crimes ought to be urgently addressed. However, as has crystallized, one cannot enforce such an interpretation at the international level, no matter how the tenets of R2P are formulated. Hence, the object of concern pertaining to any humanitarian intervention must be the locus from which it is activated. In the case of R2P, this means addressing the corruption of the UNSC in order to ensure the most just and consistent commitments to intervene, regardless of what is at stake for the individual states. It must be a universal commitment to human life that informs any decision to invoke R2P and subsequently, must thwart any decision not to invoke it when clearly warranted. Hegel’s case for international morality is not just the best available option but, being devoid of any transcendental imports, the only philosophically justifiable option.

* I am indebted to my advisor, Dr. Wendell Kisner, for this clarification of emphases regarding freedom and choice.

Bibliography

Hegel, G. W. F. 1896. Philosophy of right. Translated by S.W. Dyde London, UK: G. Bell. [Online]. Available from: https://www.marxists.org/reference/arc hive/hegel/works/pr/philosophy-of-right.pdf (Accessed 6 April 2020).

International Commission on Intervention and State Sovereignty. 2001. The responsibility to protect. Ottawa, ON: International Development Resource Center. [Online]. Available from: http://responsibilitytoprotect.org/ICISS%20Rep ort.pdf (Accessed 6 April 2020).

United Nations General Assembly. 2005. World Summit Outcome Document. New York, NY: UN. [Online]. Available from: https://www.un.org/en/developm ent/desa/population/migration/generalassembly/docs/globalcomglob/A RES 60 1.pdf (Accessed 6 April 2020).