Laura Collins: On entering academia, responsibility and the Central African Republic

The Responsibility Collective reached out to Laura Collins to chat about her journey through academia so far, her thoughts on responsibility and her key interest in the Central African Republic.

Laura Collins is a PhD candidate at the Jimmy and Rosalynn Carter School for Peace and Conflict Resolution at George Mason University in the United States and was a 2019-2020 USIP-Minerva Peace and Security Scholar. Her dissertation, “Guns and Prayers: Religious Organisations and Wartime Violence in the Central African Republic,” uses data gathered across the CAR to examine how religious organisations operate during wartime to shape non-state armed violence against civilians. In addition to her dissertation, Laura works as a Research Assistant at the University of Leeds for the Explaining Non-State Perpetration of Mass Atrocity Crimes project funded by the Economic and Social Research Council (ESRC). She is also an Editor for Genocide Studies and Prevention: An International Journal.

Entering Academia

What led you to your current role/and or field of work?

I’ve long been interested in global politics and international affairs. I studied International Relations and French at undergraduate level where I developed a keen interest in different forms of political violence, in understanding why states and armed groups target civilians, and how different actors, specifically those that operate internationally respond (or do not respond, as is often the case, or only in a narrow military sense). For my undergraduate thesis, I studied the cases of Rwanda and Kosovo, and started to more fully appreciate that the category of “civilian,” as it relates to violence, peace, and conflict, is much broader, complex, and diverse.

As I read the works of anthropologists, sociologists, and political scientists on different cases and forms of political violence, I noticed that religion was either not discussed in detail or viewed as largely irrelevant and not worth examination. Yet it became clear that the various dimensions of any one religion could manifest in really interesting ways during a conflict, even in cases that were not perceived to be religious. I read what I could find, which – at that time – centred around the role of religion in facilitating democratisation movements around the globe as well as religion and peacebuilding. Much of this early work focused on religion and reconciliation, including the role of religion in reconciling warring parties/states and even whole societies following mass atrocities. Given the emphasis that seemed to be placed on involving these actors as a society began to emerge from conflict, I was keen to know more about what they were actually doing during conflict – during wartime. For my PhD in Conflict Analysis and Resolution, I wanted to understand how religious organisations and their leaders (from priests, imams, and pastors) operate in war, their relationships with armed groups, as well as how and why these actors varyingly aid, constrain, contain, or even redirect violence through their actions. My research in the Central African Republic has underscored that visible interfaith conflict mitigation and peace-orientated actions by national level leaders during wartime can operate in tandem with the more obscure, subnational actions of local leaders.

What are some of the challenges that you have had in your academic career, and how have you tackled them? 

Embarking on a PhD and continuing with academia, doing policy-related work, or trying to do a combination of both carries with it various personal and professional challenges. Even prior to the pandemic, research-oriented work always came with a degree of uncertainty, especially in conflict settings. Like most PhD candidates, all the more as an international student studying in the US, I faced funding challenges for my field research. I was ultimately successful at securing funding from my university and from an external institute but that was after several funding proposals had been rejected. When you spend a lot of time developing a research project and a funding proposal or a research article is rejected, that experience can make you question your work or even question if you are good enough to succeed. Sharing rejections with friends and colleagues is just as important as sharing the high of winning a research grant. Doing so normalises rejection and reminds us that every research proposal or article started with a terrible first draft!

Grant writing takes a lot of time, so I find it helpful to be as strategic as possible regarding the grants I apply for. I look at the work of past grant recipients to have a better idea of the projects and general focus of the particular institute. This helps you know how good a fit your research is for the funding organisation. We are all – to an extent – at the mercy of what these institutes view as priority topics. There’s no easy way to change that. Nevertheless, writing research funding proposals is a skill that only improves with practice. I have definitely gained a lot from writing them even when the proposal was unsuccessful, particularly when grant reviewers provide feedback which you can then integrate into your work going forward.

Another challenge I have faced is knowing how to clearly frame the implications and overall importance of my research on religion to policy audiences. I want the research I do to inform policy, but learning how to speak in a language that is accessible to policy makers takes time and practice. Transforming the complexity of your research into digestible information points or even recommendations, as is often requested, is not only difficult but can make junior academics nervous perhaps for fear of being misunderstood or being accused of lacking nuance. I have benefitted from attending workshops on how to write policy pieces and op-eds as well as learning from the experiences of other researchers and academics.

Importantly, any challenges I face are done so as a white scholar from the Global North studying at a university in the Global North. I am in the privileged position of having access to numerous resources including events and workshops held to discuss challenges in academia and those specifically facing PhD candidates. My presence as a researcher at these events and elsewhere in academia is not questioned. While female PhD candidates and more established academics face unique challenges, I nevertheless navigate academic, research and writing, and policy spaces as a white PhD candidate whose first language, English, is the dominant language in many of these settings.

What do you consider to be the most pressing questions related to your discipline and academic interests today? Why?

As we emerge from the darkest moments of the COVID-19 pandemic, an immediate question for peace and conflict studies revolves around how to resume fieldwork and what fieldwork will look like for qualitative research questions on political violence in conflict-affected, fragile, and violent contexts. Global COVID vaccine inequality has further compounded the power and access disparities that already existed between researchers like me and any future interlocutors such as the many Central Africans who gave their time to speak to me as I travelled the country. Variation in how different governments define “fully vaccinated” will likely create further obstacles for academics and researchers, specifically those from the Global South, to attend in-person only events in Europe and North America. I think hybrid ways of working that combine in-person and remote access should be maintained (and improved) to mitigate their associated challenges.

During the pandemic, many researchers reworked their research designs in creative and innovative ways, doing what they could remotely. In some cases, people had to change their focus entirely. In conflict-affected, fragile, and violent contexts, online interviews are impractical if not impossible. This all raises broader issues around how we do research and who does the research and where. None of these questions have an immediate answer.

Responsibility

What is the most important moral and/or societal responsibility in your career/research going forward?

I think one of my most important responsibilities is to be an ethical researcher. Part of that obligation entails engaging in and promoting responsible fieldwork practices. As a qualitative researcher who examines the dynamics of political violence in a conflict-affected, fragile, and oftentimes violent context, I had and continue to have a responsibility to actively work to dismantle both overt and implicit exploitative and extractive research practices. Although more reflection is occurring on these issues in articles as well as in conversations between researchers, more is needed.

Being more attuned to how I was positioned during field research, as a Global North researcher, and how I positioned myself relative to the diverse array of actors operating in the CAR was essential. Many local Central Africans assumed I had links to or, at a minimum, had easy access to international government/non-governmental organisations linked to humanitarian and development assistance. Within this environment, there was a high chance people would agree to talk to me because of this perceived association and the belief that assistance might follow any meeting with me. We therefore have a responsibility to learn how to clearly explain who we are and why we are in a specific country to potential interviewees, and manage our associations with different actors carefully.

I was genuinely interested in listening to those I spoke to, but also understood that no one was obliged to speak to me (there were people who refused, and some made that very clear!). Fleeting encounters with researchers and journalists can leave people with feelings of being used. I tried to create connections with people I spoke to where appropriate and in a way that was not an added burden to them – we already ask a lot of people we interview, requesting they give up a few hours of their time sometimes on multiple occasions.

Lastly, how we compensate research assistants is a significant issue. I asked many people about this prior to travelling and once in the CAR. I heard examples that not only bordered on exploitation, but that were overtly exploitative. Though budgetary constraints will always be an issue, a small research budget cannot be used as an excuse to exploit those whose assistance helps us reach overall career goals. We have a responsibility to reflect profoundly on how we allocate research funds to ensure we can compensate research assistants appropriately. 

What do you consider the most important question related to human responsibility in the world today?

An important (overarching) question for me would be our responsibility to think about how we can more accurately and effectively reflect, acknowledge, and confront disparities around power and access to create more ethical spaces and relationships. These dynamics structure anything from interpersonal relations to the unequal effects some experience from global climatic changes. The burden of this responsibility to reflect, acknowledge, and confront these disparities is not carried equally by everyone. Some of those who have profited from these disparities continue to contribute to their maintenance.

Academic Interests

What is your view on the role of religious leaders in peacemaking and why?To what extent does this differ across regions within CAR and why?

The role of religious leaders and their organisations in peacemaking is complex and varied. The same can be said of the role they play with regards to the outbreak of conflict and the escalation of violence. Much of the earlier work on religion and peacemaking from the mid-1990s / early 2000s was a direct response to scholarship at the time that subscribed to the understanding that religion was part of the problem of conflict and violence. Thanks to this earlier work on religion and peacebuilding, however, the notion of the ambivalence of religion toward peace and violence is now a well-established premise – that is, just as religions through their leaders, organisations, and specific texts and verses can permit and support violence so, too, can they reject violence and work towards peace.

In the case of the Central African Republic, national level religious leaders occupied a prominent and visible role. They promoted inter-faith conflict mitigation and peace-oriented actions by appearing together, advocating for a UN peacekeeping mission to be established in the CAR, and calling for armed actors to lay down their weapons and engage in dialogue. Perhaps counterintuitively, the more national level leaders engaged and worked with international/external actors, the more some within their faith communities viewed these leaders as profiting from the conflict to improve their status. Specifically, for some leaders, their actions increased an already existing credibility gap they had within their own religious community. As with any external intervention or outreach, when thinking about how to support religious leaders in peacemaking, external actors have a responsibility to reflect on the potential consequences of their actions and assistance so as not to exacerbate existing tensions that exist within religious communities, particularly at the leadership level. 

Importantly, to fully understand the role of religious leaders in peacemaking, it is essential to also examine what these actors are doing subnationally. The actions of local level religious leaders may mirror those at the national level, or they may even undermine them. Local leaders can change how they operate and engage with conflict actors. Open communication, facilitated by a shared religious identity, can exist between religious authorities and armed actors, which religious leaders can use as an entry point to mediate disputes between and within armed groups. In some cases, armed group leaders seek out religious authorities to mediate internal conflicts. Although religious leaders have played a role in managing CAR’s increasingly local patchwork of conflicts, as mediators and parties to local peace and stabilization processes, their influence and role varies. It became increasingly more challenging for local religious authorities to work across religious lines, as religious difference became a more prominent feature of the conflict. Relatedly, local religious leaders in the CAR often preferred to work discreetly with other leaders of the same faith, particularly when they share a religious identity with armed groups whose intergroup violence and targeting of civilians negatively affects their faith community. Some armed groups in the CAR viewed the Catholic Church as increasingly partial because they perceived church officials to be providing sanctuary to the members of other armed groups.

Can you see religious leaders being useful for conflict stability and peacemaking becoming more or less prevalent in the next 10 years? Would it have the same impact in other African states or is religious leadership used in CAR because it is a local, internally-influenced initiative

Religious leaders have always been and will continue to be a relevant actor to study and engage to develop more locally attuned conflict stability and peacemaking strategies. To be sure, their influence varies from one conflict-affected environment to the next. Their influence can even fluctuate during the course of a conflict and religious communities are not immune to internal disputes and divisions, particularly among their leaders. Prominent female authorities within a religious community can also be marginalised. Accessing these women is often mediated by men. Nevertheless, the promotion of sustainable peace in the Central African Republic, as in many other places, requires that attempts to de-escalate violence and break cycles of armed conflict are informed by realistic understandings of local politics, violence, and impediments to peace. Within many countries the religious sector is an integral element of local dynamics that should not be overlooked, side-lined, or shunned for actors more favoured under the Western-state centric liberal peacebuilding approach.

It would be my hope that future efforts to support religious leaders in their peacemaking attempts is premised on collaborations with a diverse group of religious leaders from a conflict-affected country. This must include women and be approached creatively, including a range of fora that recognise the existing local expertise of these authority figures. Such collaborations must avoid tokenism and recognize the risk for external support to exacerbate existing divisions, especially if approached without adequate religious literacy among policymakers or a full appreciation of the internal dynamics of a given faith community at the leadership level. 

What, ultimately, do you consider to be the most important steps that need to occur in order to move forward with decreased levels of violence and conflict in the Central African Republic? Whose responsibility is it to help implement these steps?

That’s a great question and one we need to ask Central Africans more. Addressing the impunity gap that exists for serious crimes, including alleged atrocity crimes in CAR is one essential element. The CAR took an important step forward last month in that direct. The first trial before the Special Criminal Court in the country’s capital, Bangui, for war crimes and crimes against humanity began. However, further efforts should be made by international actors to support the ongoing work of the International Criminal Court, as it relates to the CAR, as well as the work of the Special Criminal Court. The 2015 Bangui Forum that brought together hundreds of delegates from a cross-section of Central African society from political representatives, civil society organisations, armed groups, and community associations emphasised the need for justice. All of these actors have a role to play in moving CAR forward in the direction of stability. Central Africans have experienced profound material and personal losses due to repeated and interconnected cycles of violence. For many, a blank amnesty provision would only serve to undermine any attempts at sustainable peace by helping to facilitate future conflicts.

International actors should likely think twice about supporting or facilitating the creation of a strong, centralised state as a vehicle through which to create stability. The Central African state and elites have and will likely continue to play a complex role related to dynamics of violence throughout the country. Equally, superficial attempts at decentralising governance and fostering a state accountable to its citizenry may only serve to reignite longstanding grievances around neglect and exclusion felt by those in CAR’s peripheral areas and, particularly among Muslims throughout CAR.  

Laura’s published work includes

The Central African Republic and the Responsibility to Protect. European Centre for the Responsibility to Protect (ECR2P), University of Leeds. (leeds.ac.uk)

Central African Republic: A Role of Religious Leaders in Calming Conflict? United States Institute for Peace, Washington DC. (usip.org)

Her co-authored article (with Dr. Gino Vlavonou), “A State of (Dis)unity and Uncertain Belonging: The Central African Republic and the Muslim Minority,” is forthcoming in spring 2022 in a special issue edition of Islamic Africa on Muslim minorities in sub-Saharan Africa.

*EXTENDED DEADLINE: 31 JAN 2022* Call for Papers for first Special Issue

What does responsibility mean in today’s globalised world? How do different disciplines tackle this question?

These are questions we want to engage with in the Responsibility Collective’s first Special Issue. We are therefore currently welcoming submissions concerned with responsibility from a variety of disciplinary perspectives. Relevant topics include, but are not limited to, climate change, public health, technology, education, social and economic inequity, human rights, mass atrocity prevention and peace building.

To find out more about how to submit, check out our submission guidelines.

Submissions are now open until 31st January.

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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