“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.

Bibliography

Ackermann, T. (2020). “COVID-19 at the International Criminal Court: Brazil’s health policy as a crime against humanity?”, V ̈olkerrechtsblog, doi: 10.17176/202 00814-155029-0.

Al Jazeera. (2020). Brazil medics seek ICC probe of Bolsonaro gov’t COVID-19 response. [online] Available at: https://www.aljazeera.com/news/2020/07/braz il-medics-seek-icc-probe-bolsonaro-gov-covid-19-response-200728070931384.html [Accessed 30 Aug. 2020].

Alexander, A. (2020). Gauging the Advisory Jurisdiction of the International Court of Justice in the Face of COVID-19. Jurist. Available at: https://www.jur ist.org/commentary/2020/04/atul-alexander-icj-covid/ (Accessed: 30 August 20 20).

Braga da Silva, R. (2020). Sherlock at the ICC? Journal of International Crim- inal Justice, 18(1), pp.59–86. Burke-White, W. (2020). The danger of Trump’s new sanctions on the International Criminal Court and human rights defenders. [online] Brookings. Available at: https://www.brookings.edu/blog/order-from- chaos/2020/06/11/the-danger-of-trumps-new-sanctions-on-the-international-cri minal-court-and-human-rights-defenders/ [Accessed 31 Aug. 2020].

Canadian Institute for International Law Expertise (2020). Complaint over the Covid-19 Outbreak before the Prosecutor of the ICC. [online] Available at: https://cifile.org/2020/05/complaint-over-the-covid-19-outbreak-before-the-pro secutor-of-the-icc-by-dr-poorhashemi/ [Accessed 30 Aug. 2020].

CNN. (2020) Coronavirus is ’emboldening’ Myanmar military to carry out ’war crimes’ says UN human rights expert. CNN. Available at: https://www.cnn.com /2020/04/30/asia/myanmar-war-crimes-coronavirus-hnk-intl/index.html (Acces sed: 30 August 2020).

Crawford, M.D. (2020). PART I OF III: Meaningful Access to the Court – Due Process in the face of Covid-19. [online] Clark Partington. Available at: https://clarkpartington.com/due-process-law-coronavirus/ [Accessed 31 Aug. 20 20].

De Herdt, S. (2020). A Reference to the ICJ for an Advisory Opinion over COVID-19 Pandemic. [online] European Journal of International Law: Talk! Available at: https://www.ejiltalk.org/a-reference-to-the-icj-for-an-advisory-opi nion-over-covid-19-pandemic/ [Accessed 30 Aug. 2020].

Global Centre for the Responsibility to Protect. (2020). Atrocity Alert Spe- cial Issue: COVID-19, Conflict and the Threat of Atrocities. [online] Available at: https://www.globalr2p.org/publications/aa-si-covid19/ [Accessed 30 Aug. 2020].

Guariglia, F. (2020). COVID-19 Symposium: COVID-19 and International Criminal Law. [online] Opinio Juris. Available at: http://opiniojuris.org/2020/ 04/04/covid-19-symposium-covid-19-and-international-criminal-law/ [Accessed 30 Aug. 2020].

Human Rights Watch. (2020). Myanmar: Hundreds Jailed for Covid-19 Viola- tions. [online] Available at: https://www.hrw.org/news/2020/05/28/myanmar- hundreds-jailed-covid-19-violations [Accessed 30 Aug. 2020].

Independent International Fact-Finding Mission on Myanmar and United Na- tions. Oce of The High Commissioner for Human Rights (2018). Report of the Independent International Fact-Finding Mission on Myanmar: Human Rights Council, thirty-ninth session, 10-28 September 2018, agenda item 4, hu- man rights situations that require the Council’s attention. Geneva, Switzerland: Oce of the High Commissioner for Human Rights. A/HRC/42/50.

International Court of Justice. (2020). The Court adopts measures to ensure the continued fulfilment. [online] Available at: https://www.icj-cij.org/files/press- releases/0/000-20200423-PRE-01-00-EN.pdf

International Criminal Court (2020a). Al Hassan trial opens at International Criminal Court. [online] Available at: https://www.icc-cpi.int/Pages/item.aspx? name=pr1531 [Accessed 30 Aug. 2020].

International Criminal Court. (2019). Situation in the Islamic Republic of Afghanistan. [online] Available at: https://www.icc-cpi.int/afghanistan.

International Criminal Court. (2020b). Guidelines for the Judiciary Concerning the Holding of Court Hearings during the COVID-19 Pandemic. [online] Avail- able at: https://www.icc-cpi.int/Pages/item.aspx?name=200623-guidelines-for- court-proceedings-covid-19.

International Criminal Court. (2020c). Initial appearance of Ali Kushayb sched- uled for 15 June 2020: Practical information. [online] Available at: https://www. icc-cpi.int/Pages/item.aspx?name=ma252 [Accessed 30 Aug. 2020].

International Criminal Court. (2020d). The Trust Fund for Victims remains committed to support victims while navigating the impact of COVID-19. [on- line] Available at: https://www.icc-cpi.int/Pages/item.aspx?name=200326-stat- tfv [Accessed 30 Aug. 2020].

Kasozi, K. I., Mujinya, R., Bogere, P., Ekou, J., Zirintunda, G., Ahimbisibwe, S., Matama, K., Ninsiima, H. I., Echoru, I., Ayikobua, E. T., Ssimbwa, G., Musinguzi, S. P., Muyinda, R., Ssempijja, F., Matovu, H., MacLeod, E., An- derson, N. E., Welburn, S. C. (2020). Pandemic panic and anxiety in develop- ing countries. Embracing One Health o↵ers practical strategies in management of COVID-19 for Africa. The Pan African Medical Journal, 35 (Suppl 2), 3. https://doi.org/10.11604/pamj.2020.35.3.22637

Mansour, N. and Physicians for Human Rights. (2020). Despite COVID-19, Five Milestones for International Justice. [online] Available at: https://phr.org/ our-work/resources/despite-covid-19-five-successes-for-international-justice/[Ac cessed 30 Aug. 2020].

NPR. (2020). Parts of Myanmar Unaware Of COVID-19 Due to Internet Ban, Rights Advocates Say. [online] Available at: https://www.npr.org/sections/coro navirus-live-updates/2020/06/24/882893419/parts-of-myanmar-unaware-of-covi d-19-due-to-internet-ban-advocates-say [Accessed 30 Aug. 2020].

Patryk Labuda, “The ICC’s ‘evidence problem’: The future of international criminal investigations after the Gbagbo acquittal”, V ̈olkerrechtsblog, 18 Jan- uary 2019, doi: 10.17176/20190118-145208-0.

Sˇimonovi ́c, Ivan H.E. (2020). Atrocity Crimes and Preventive Diplomacy: Re- flections on R2P’s 15th Anniversary. [online] Available at: https://www.globalr2 p.org/publications/simonovicr2p15/ [Accessed 30 Aug. 2020].

Traves ́ı, Fernando, and the International Center for Transitional Justice. (2020). Justice in the Era of COVID-19: Our Global Responsibility. [online] Available at: https://www.ictj.org/news/justice-era-covid-19-our-global-responsibility [Ac- cessed 30 Aug. 2020].

TRIAL International (2020). Justice in the time of coronavirus: How a global pandemic a↵ects victims of the gravest crimes. [online] Geneva, Switzerland: TRIAL International, pp.1–11. Available at: https://reliefweb.int/sites/reliefwe b.int/files/resources/Justice-in-the-time-of-coronavirus EN final.pdf [Accessed 3 0 Aug. 2020].

TRIAL International. (2020a). NGOs condemn the closure of the Oce of the High Commissioner for Human Rights in Burundi. [online] Available at: https://trialinternational.org/latest-post/ngos-condemn-the-closure-of-the-oc e-of-the-high-commissioner-for-human-rights-in-burundi/ (Accessed: 30 August 2020).

World Bank. (2020b). Hit Hard by COVID-19, Afghanistan Needs Continued International Support. [online] Available at: https://www.worldbank.org/en/ne ws/press-release/2020/07/15/hit-hard-by-covid-19-afghanistan-needs-continued -international-support [Accessed 31 Aug. 2020].

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.

Bibliography

Alfredsson, G., 2007. Peoples, Max Planck Encyclopedia of Public International Law. [Online]. [Accessed on 2 June 2020]. Available from https://opil.ouplaw.co m/view/10.1093/law:epil/9780199231690/law-9780199231690-e1454.

Amnesty International, 2017. China’s Deadly Secrets, ASA 17/5849/2017. [On- line]. [Accessed on 3 June 2020]. Available from: https://www.amnesty.org/en/ documents/asa17/5849/2017/en/.

Amnesty International, 2018. China: Where are they? Time for answers about mass detentions in the Xinjiang Uighur Autonomous Region, ASA 17/9113/2018. [Online]. [Accessed on 3 June 2020]. Available from: https://www.amnesty.org/e n/documents/asa17/9113/2018/en/.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, p. 47.

Austin, R. and Buckley, C. The New York Times, 2019. The Xinjiang Pa- pers: ‘Absolutely No Mercy’: Leaked Files Expose How China Organized Mass Detentions of Muslims. [Online]. [Accessed on 3 June 2020]. Available from: https://www.nytimes.com/interactive/2019/11/16/world/asia/china-xinjiang-d ocuments.html.

Australian Strategic Policy Institute, 2020. Uyghurs for sale: ‘Re-education, forced labour and surveillance beyond Xinjiang, Policy Brief Report No. 26/2020. [Online]. [Accessed on 3 June 2020]. Available from: https://www.aspi.org.au/re port/uyghurs-sale.

Cambridge international dictionary of English. Online, 2020. Cambridge Uni- versity Press. [Online]. [Accessed on 3 May 2020]. Available from: https://dictio nary.cambridge.org/.

Clarke, M., 2007. China’s Internal Security Dilemma and the “Great Western Development”: The Dynamics of Integration, Ethnic Nationalism and Terror- ism in Xinjiang, Asian Studies Review, Vol. 31(3):323-342.

Convention on the prevention and punishment of the crime of genocide, 1948. 78 UNTS 277. Opened for signature: 9 December 1948. Entered into force: 12 January 1951. [Online]. [Accessed on 7 November 2020]. Available from: https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021- English.pdf).

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 Novem- ber 1950, ETS 5.

Criminal Code of the Republic of Lithuania, Law No VIII-1968, Vilnius 26 September 2000 (as last amended on 21 November 2017 – No XIII-791).

Danilova, M. Associated Press, 2018. Woman describes torture, beatings in Chinese detention camp. [Online]. [Accessed on 3 June 2020]. Available from: https://apnews.com/article/61cdf7f5dfc34575aa643523b3c6b3fe.

Dre ̇lingas v. Lithuania (Application no. 28859/16). European Court of Human Rights (Section IV Chamber). 12 March 2019 (became final on 9 September 2019).

Finnegan, C., 2020. The Uyghur Minority in China: A Case Study of Cul- tural Genocide, Minority Rights and the Insuciency of the International Legal Framework in Preventing State-Imposed Extinction, Laws Vol. 9(1). [Online]. [Accessed on 3 June 2020]. Available from: https://doi.org/10.3390/laws9010001.

Hamilton, B. F., 2005. Lemkin, Raphael. In: Shelton, D. L. (ed), Encyclo- pedia of genocide and crimes against humanity George Washington Law School Public Law and Legal Theory Paper No. 2013-31, pp. 643-5.

Hoja, G. Financial Times, 2019. Uighur journalist Gulchehra Hoja on exposing China’s detention camps. [Online]. [Accessed on 6 June 2020]. Available from: https://www.ft.com/content/7ed40e3c-1624-11ea-9ee4-11f260415385.

Hoja, G. Radio Free Asia, 2019. Female Detainees at Xinjiang Internment Camps Face Sterilization, Sexual Abuse: Camp Survivor. [Online]. [Accessed on 6 June 2020]. Available from: https://www.rfa.org/english/news/uyghur/abuse- 10302019142433.html.

Hoshur, S. and Lipes, J. Radio Free Asia, 2017. Two Uyghur Students Die in China’s Custody Following Voluntary Return From Egypt. [Online]. [Accessed on 5 June 2020]. Available from: https://www.rfa.org/english/news/uyghur/stud ents-12212017141002.html.

Hoshur, S. and Lipes, J. Radio Free Asia, 2018. Prominent Uyghur Intellectual Given Two-Year Suspended Death Sentence For ‘Separatism’. [Online]. [Ac- cessed on 5 May 2020]. Available from: https://www.rfa.org/english/news/uygh ur/sentence-09282018145150.html.

Human Rights Watch, 2005. Devastating blows. [Online]. [Accessed on 3 June 2020]. Available from: https://www.hrw.org/reports/2005/china0405/china0405 .pdf.

Human Rights Watch, 2018. Eradicating ideological viruses. [Online]. [Ac- cessed on 3 June 2020]. Available from: https://www.hrw.org/sites/default/files/ report pdf/china0918 web2.pdf.

Hyer, E., 2006. China’s policy towards Uighur nationalism, Journal of Mus- lim Minority A↵airs Vol. 26(1):75-86.

Illmer, A. BBC, 2019. Tashpolat Tiyip: The Uighur leading geographer who vanished in China. [Online]. [Accessed on 5 June 2020]. Available from: https://www.bbc.com/news/world-asia-china-49956088

Lemkin, R., 1944. Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Washington, D.C.: Carnegie Endowment for International Peace 1944.

Lemkin, R., 1947. Genocide as a Crime in International Law, American Journal of International Law 41(1):145–151.

Li, E., 2016. China’s New Counterterrorism Legal Framework in the Post- 2001 Era: Legal Development, Penal Change, and Political Legitimacy, New Criminal Law Review 19: 344–81.

Moyu County Government Website, 2019. 2019 Moyu County People’s Gov- ernment Work Report (full text). [Online]. [Accessed on 17 December 2020]. Available from http://archive.is/hlcZiselection-347.0-350.0 [Google translation].

Nersessian, D. L., 2010. Genocide and Political Groups, Oxford: Oxford Uni- versity Press.

Nersessian, D. L., 2014. Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes against Humanity, Stanford Journal of In- ternational Law Vol. 43:221.

People’s Republic of China Counter-Terrorism Law, 15th session of the Stand- ing Committee of the Twelfth National People’s Congress 1 July 2015. [Online]. [Accessed on 7 November 2020]. Available from: https://www.uschina.org/china- hub/unocial-translation-counter-terrorism-law-peoples-republic-china.

Prosecutor v. Akayesu (Trial) (Case No. ICTR-96-4-T). International Crim- inal Tribunal for Rwanda. 2 September 1998.

Prosecutor v. Krstic (Appeal) (Case No. IT-98-33-A). International Crimi- nal Tribunal for the former Yugoslavia. 19 April 2004

Prosecutor v. Krstic (Trial) (Case No. IT-98-33-T). International Criminal Tribunal for the former Yugoslavia. 2 August 2001. Rafter, N., 2016. The Crime of All Crimes: Toward a Criminology of Genocide, New York: NYU Press.

Ramzy, A. and Buckley, C. New York Times, 2019. Absolutely No Mercy: Leaked Files Expose How China Organized Mass Detentions of Muslims. [On- line]. [Accessed on 6 June 2020]. Available from: https://www.nytimes.com/inte ractive/2019/11/16/world/asia/china-xinjiang-documents.html.

Rome Statute of the International Criminal Court (last amended 2010), 1998. 2187 UNTS 3. Opened for signature: 17 July 1998. Entered into force: 01 July 2002. [Online]. [Accessed on 7 November 2020]. Available from https://www.icc- cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatu teng1.pdf.

Schabas, W. A., 2000. Genocide in International Law, 2nd Ed, National Uni- versity of Ireland: Cambridge University Press.

Schabas, W. A., 2007. Genocide, Max Planck Encyclopedia of Public Interna- tional Law. [Online]. [Accessed on 2 June 2020]. Available from: https://opil.ou plaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e804.

Sharma, Y. University World News, 2019. Uyghur Scholars and Students In- terned or Disappeared. [Online]. [Accessed on 2 June 2020]. Available from: https://www.universityworldnews.com/post.php?story=20190130134847307.

Sintash, B. Radio Free Asia, 2002. Removal of Islamic Motifs Leaves Xinjiang’s Id Kah Mosque ‘a Shell For Unsuspecting Visitors’. [Online]. [Accessed on 6 June 2020]. Available from: https://www.rfa.org/english/news/uyghur/mosque- 05222020135801.html.

Tiantian, B. The Global Times, 2017. Xinjiang to Launch Anti-Extremism Reg- ulation. [Online]. [Accessed on 6 June 2020]. Available from: http://www.global times.cn/content/1036950.shtml.

UN Economic and Social Council, 19 April 1948. Ad Hoc Committee on Geno- cide: summary record of the 12th meeting, Lake Success, New York, Monday (E/AC.25/SR.12).

UN General Assembly, 11 December 1946. Resolution 96 (I): The Crime of Genocide, GAOR, 1st Sess., 55th mtg. at 188-89 (U.N. Doc A/RES/96(I)).

UN General Assembly, 6th Comm., 3rd Session, Continuation of the discus- sion on the draft convention on genocide: reports of the Economic and Social Council and of the Sixth Committee (A/760/Corr. 2).

UN Security Council, 25 January 2005. Report of the International Commis- sion of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council resolution 1564 of 18 September 2004 (‘Darfur Report’).

United States Department of State, 2018. Country Reports on Terrorism 2017. [Online]. [Accessed on 6 June 2020]. Available from: https://www.state.gov/rep orts/country-reports-on-terrorism-2017/.

Uyghur Human Rights Project, 2018. The Persecution of the Intellectuals in the Uyghur Region: Disappeared Forever? [Online]. [Accessed on 2 June 2020]. Available from: https://docs.uhrp.org/pdf/UHRP Disappeared Forever .pdf.

Vasiliauskas v. Lithuania (Application no. 35343/05). European Court of Human Rights (GC). 20 October 2015.

XUAR Government Website, 2019. Vocational Education and Training in Xin- jiang. [Online]. [Accessed on 2 June 2020]. Available from: http://gzw.xinjiang. gov.cn/gzw/zcwj/201911/11fc1f31ba1440f9892c32cc98b03502.shtml [Google tra nslation].

XUAR Implementation Regulation of the ”People’s Republic of China Counter- Terrorism Law”, Standing Committee of the 12th People’s Congress of XUAR 29 July 2016. [Online]. [Accessed on 4 June 2020]. Available from: http://gzw.xinji ang.gov.cn/gzw/zcwj/201906/212a9484e50d49f994a2da4379d95d46.shtml [Goog le translation].

Zenz, A. 2019. Break Their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang, Journal of Political Risk Vol. 7 No. 7. [Online]. [Accessed on 2 June 2020]. Available from: http://www.jpolrisk.com/break- their-roots-evidence-for-chinas-parent-child-separation-campaign-in-xinjiang/.

Zenz, A. Foreign Policy, 2020. China’s Own Documents Show Potentially Geno- cidal Sterilization Plans in Xinjiang. [Online]. [Accessed on 16 December 2020]. Available from: https://foreignpolicy.com/2020/07/01/china-documents-uighur- genocidal-sterilization-xinjiang/.

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.  

Bibliography

Ainscough, M.J. 2002. Next Generation Bio-Weapons: Genetic Engineering and Biological Warfare. The Gathering Biological Warfare Storm, pp. 165-186.

Andreasen, N.C. 2001. Brave New Brain: Conquering Mental Illness in the Era of the Genome. Oxford: Oxford University Press. 

Atlas, R.M. 1999. Combating the Threat of Biowarfare and Bioterrorism: Defending against biological weapons is critical to global security. BioScience49 (6), pp. 465-477.

National Center for Emerging and Zoonotic Infectious Diseases. Bioterrorism agents/diseases, Centres for Disease Control and Prevention, available at https://emergency.cdc.gov/agent/agentlist-category.asp, page last reviewed on 4 Apr. 2018.

Block, S.M. 1999. The New Terror: Facing the Threat of Biological and Chemical Weapons. Washington: Hoover Institution Press.

Royal Society Policy document 06/11. Brain Waves Module 3: Neuroscience, February 2012, Conflict and Security

Casadevall, A. 2012. The Future of Biological Warfare. Microbial Biotechnology, pp. 584-587.

Cohen, J. 2019. WHO panel proposes new global registry for all CRISPR human experiments, Science Magazine News. [Online]. 19 March. [Accessed 30 March 2020]. Available from: https://www.sciencemag.org/news/2019/03/who-panel-proposes-new-global-registry-all-crispr-human-experiments.

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction1972. [Online]. 26 U.S.T. 583, opened for signature 10 April 1972, entered into force 26 March 1975. Available from: http://disarmament.un.org/treaties/t/bwc/text.

Danzig R. and Berkowsky, P.B. 1997. Why should we be concerned about biological warfare? Journal of American Medical Association, pp. 278, 431-32. 

DaSilva, E.J. 1999. Biological Warfare, Bioterrorism, Biodefence and the Biological and Toxin Weapons Convention. 2 Electronic Journal of Biotechnology.

Docherty, B. et al. 2012. Losing Humanity: The Case against Killer Robots. International Human Rights Clinic, Human Rights Watch, pp. 32.

Elements of Crime. 2002. [Online]. U.N. Doc. ICC -ASP /1/3, opened for signature 17 July 1998, entered into force 1 July 2002. Available from: https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf.

Frinking, E. et al. 2016. The Increasing Threat of Biological Weapons- Handle with Sufficient and Proportionate Care. The Hague Centre for Strategic Studies, pp. 3.

Frith, J. 2012. The History of Plague- Part I- The Three Great Pandemics. 20 Journal of Military and Veterans’ Health, pp. 11.

Henderson, D.A. 1999. The Looming Threat of Bioterrorism. Science, pp. 283, 1279-1281.

International Committee for the Red Cross. No Year. Casebook. [Online]. https://casebook.icrc.org/glossary/fundamental-principles-ihl.

Ignatius, D. 2010. Dazzling New Weapons Require New Rules for War, Washington Post. [Online]. 11 November. [Accessed 30 March 2020]. Available from: https://www.washingtonpost.com/wp-dyn/content/article/2010/11/10/AR2010111005500.html?nav=hcmoduletmv.

International Committee for the Red Cross. 2009. Customary International Humanitarian Law Study. [Leaflet]. USA: Cambridge University Press.

Jansen, H.J. et al. 2014. Biological Warfare, Bioterrorism, and Biocrime. Clinical Microbiology and Infection. 20(6), pp. 488-496.

Kastan, B. 2013. Autonomous Weapons Systems: A Coming Legal “Singularity”? University of Illinois Journal of Law, Technology and Policy, pp. 5, 52.

Ken, A. & Handelman, S. 1999. Biohazard: The Chilling True Story of the Largest Covert Biological Weapons Program in the World-Told by the Man Who Ran It. New York: Random House.

Lawland, K. 2006. A Guide to the Legal Review of New Weapons: Means and Methods of Warfare, Measures to Implement Article 36 of Additional Protocol I of 1977. International Committee of the Red Cross.

Lawrence, R. 2013. Black Biology-A Threat to Biosecurity and Biodefense. 2 Biosafety.

Miller, J. 1999. In Soviet Dump, Deadly germs live on. International Herald Tribune. 3 June. Accessed 30 March 2020.  

Miller, M. et al. 2001. Germs: Biological Weapons and America’s Secret War. New York: Simon and Schuster.

Office of the General Counsel Depart of Defence, Law of War Manual. June 2015, p. 189. Available from https://www. defense.gov/Portals/1/Documents/pubs/Law-of-War-Manual-June-2015.pdf.

Office of the Historian, Bureau of Public Affairs, United States Department of State, Strategic Arms Limitations Talks/Treaty I and II, 3 July 2016.

Pearlman, M.D. 1996. Unconditional Surrender, Demobilization, and the Atomic Bomb. United States Army Command and General Staff College.

Pearson, A., Chevrier, M.I., and Wheelis, M. 2007. Incapacitating Biochemical Weapons: Promise or Peril? Lanham: Lexington Books.

Press, M. 2017. Of Robots and Rules: Autonomous Weapon Systems in the Law of Armed Conflict. The Georgetown Journal of International Law, pp. 1351.

Prosecutor v. Dusko Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT-94-1, ICTY, 2 October 1995.

Protocol Additions to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts. 1977. [Online]. 1125 U.N.T.S. 3, opened for signature 8 June 1977. Available from: https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf.

Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. 1925. [Online]. Opened for signature 17 June 1925, entered into force 8 February 1928. Available from: https://www.un.org/disarmament/wmd/bio/1925-geneva-protocol/.

Public health response to biological and chemical weapons. 2004. WHO guidance Available from: https://www.who.int/csr/delibepidemics/biochemguide/en/.

v. Mohammed Sharif. 2010. Criminal Court of Appeal, England and Wales.

Research and Technology Organization. North Atlantic Treaty Organization. 2004. Non-Lethal Weapons and Future Peace Enforcement Operations’, TR-SAS-040.

Riedel, S. 2004. Biological Warfare and Bioterrorism: A Historical Review. Proceedings. 17(4), pp. 402.

Rogers P. et al. 1999. Biological Warfare against Crops. Scientific American, pp. 280, 70-75. 

Schmitt, M.N. & Thurnher, J.S. 2013. Out of the Loop: Autonomous Weapon Systems and the Law of Armed Conflict. Harvard National Security Journal, 4, pp. 231.

Stewart, A., quoted by Patricia Reaney. 2001. Animal Disease is a reminder of bioterrorism danger. Reuters. 3 September. 

Thomas, B.T. 2015. Autonomous Weapon Systems: The Anatomy of Autonomy and the Legality of Lethality.Houston Journal of International Law, 37, pp. 235.

Toscano, C.P. 2015. Friend of Humans: An Argument for Developing Autonomous Weapons Systems. Journal of National Security and Policy, 8, pp. 196.

Triffterer, O. 2008. Commentary on the Rome Statute of the International Criminal Court. Oxford: Hart Publishing.

United Nations General Assembly, Rome Statute of the International Criminal Court, A/CONF.183/9, 17 July 1998.

Wehner, M. 2019. World Health Organisation joins fight against lax genetic editing standards. BGR. [Online]. 20 March. [Accessed 30 March 2020]. Available from: https://bgr.com/2019/03/20/human-genome-editing-who-framework/.

Wheelis M. & Dando. September 2005. M. Neurobiology: A Case Study of the Imminent Militarization of Biology. 87 International Review of the Red Cross 859.

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.

Bibliography

Acharya,A. 2009.‘Whose ideas matter? Agency and power in Asian regionalism.’ New York:Cornell University Press.

Adams, S. 2019. ‘If not now When?’, The Responsibility to Protect, The Fate of the Rohingya and the Future of Human Rights.’ Global Centre for the Responsibility to Protect. [Online] Available from: https://papers.ssrn.com/sol3/papers. cfm?abstract id=3319491. [Accessed 18/12/19, 5:40pm].

Al Yafai, F.2019. Turkey’s incursion into Syria is making the EU and Kurds rethink their friends.39; [Online]. Available from: https://www.euractiv.com/sect ion/global-europe/opinion/turkeys-incursion-into-syria-is-making-the-eu-and-k urds-rethink-their-friends/. [Accessed 21/12/19, 11:15am].

Alattrash, A. 2018. ‘Responsibility to Protect: in Light of Yemen Case.’ [Online]. Available from: https://eeas.europa.eu/headquarters/headquarters-home page en/53984/EU-Yemen%20relations. [Accessed 21/12/19, 12:30pm].

Badescu, C.G. 2014. ‘The Evolution of International Responsibility: from Responsibility to Protect to Responsibility while Protecting’. International Studies Journal. 11(1). Pp. 45–77.

Badescu, C.G., and Weiss, T. 2010. ‘Misrepresenting R2P and Advancing Norms: An Alternative Spiral?’ International Studies Perspectives, Vol.11, No.4. Pp.354-374.

Badescu,C.G.2011.‘Humanitarian Intervention and the Responsibility to Protect’.London and New York: Routledge.

Barbi`ere, C. 2016. ‘EU looks to confirm aid as a lever on human rights issues’. [Online] Available from: https://www.euractiv.com/section/development-policy /news/eu-looks-to-confirm-aid-as-a-lever-on-human-rights-issues/. [Accessed 18 /12/19, 10:45am].

Barbour, B., and B. Gorlick. 2008. ‘Embracing the ‘Responsibility to Protect ‘: A Repertoire of Measures including Asylum for Potential Victims.’ International Journal of Refugee Law. 20(4). Pp.533–566.

Baron, A. 2016. 39;Yemen’s Forgotten War: How Europe Can Lay the Foundations for Peace.39; [Online] Available from: https://www.ecfr.eu/publications/s ummary/yemens forgotten war how europe can lay the foundations for peace. [Accessed 20/12/19, 3:30pm].

Bartlett, W. and Prica, I. 2016. ‘Interdependence between Core and Peripheries of the European Economy: Secular Stagnation and Growth in the Western Balkans.’ LSE ‘Europe in Question’ Discussion Paper Series. Paper No.104. Pp.1-24.

Bellamy, A.J. 2009. ‘Responsibility to Protect’. Cambridge: Polity Press.

Bellamy, A.J. 2011. ‘The Responsibility to Protect and the Problem of Regime Change.’ In: Stark, A. (Ed.). ‘The Responsibility to Protect: Challenges and Opportunities in light of the Libyan Intervention.’ E-International Relations. [Online] Available from: https://www.e-ir.info/wp-content/uploads/R2P.pdf. [Accessed 10/12/19, 3:30pm].

Bellamy, A.J. 2015. ‘A Death Foretold? Human Rights, Responsibility to Protect and the Persistent Politics of Power.’ Cooperation and Conflict. 50(2). Pp.286–293.

Bellamy, A.J. 2016. ‘The humanisation of security? Towards an International Human Protection Regime.’ European Journal of International Security. 1(1). Pp.112-133.

Betts, A., and Orchard, P. 2014. ‘Introduction: The normative institutionalization-implementation gap’. In: Betts, A., and Orchard, P. (Eds.). ‘Implementation and world politics: How international norms change practice.’ Oxford: Oxford University Press.

Branch, A. 2011. ‘The irresponsibility of the responsibility to protect in Africa’. In: Cunliffe, P. (ed.). ‘Critical Perspectives on the Responsibility to Protect: Interrogating Theory and Practice’. Abingdon: Routledge.

Brockmeier, S., Kurtz, G., and Junk, J. 2014. ‘Emerging norm and rhetorical tool: Europe and a responsibility to protect.’ Conflict, Security amp; Development. 14(4). Pp.429-460.

Brosig, M. 2011. ‘The emerging peace and security regime in Africa: The role of the EU’. European Foreign Affairs Review. 16. Pp.107-122.

Carment, D., Winchester, S., Landry, J. 2016. ‘The Role of Regional Organizations’. In: Bellamy, A.J., and Dunne, T. (Eds.) ‘The Oxford Handbook of the Responsibility to Protect’. Oxford: Oxford University Press.

Castle, S. 2011. ‘Discontent over foreign policy chief goes public.’ [Online]. Available from: https://www.nytimes.com/2011/05/24/world/europe/24iht-ash ton24.html. [Accessed 16/12/19, 10:05am].

Clark, H. 2014. Quoted In: Tran, M. ‘South Sudan Failed by Misjudgment of International Community, Says UN Chief.’ [Online]. Available from: http://www. theguardian.com/global-development/2014/jan/22/south-sudan-failed-internati onal-community. [Accessed 16/12/19, 4:18pm].

Coen, A. 2015. ‘R2P, Global Governance, and the Syrian refugee crisis.’ The International Journal of Human Rights, Vol.19, Iss.8. Pp.1044-1058.

Coen, A. 2017. ‘Capable and Culpable? The United States, RtoP, and Refugee Responsibility-Sharing.’ Ethics and international affairs. 31(1). Pp. 71-92.

Cohen, R. 2016. ‘An R2P Framework for North Korea’. Global Responsibility to Protect. 8(4). Pp.410-430.

Council of the European Union (CoEU). 2008. ‘Report on the Implementation of the European Security Strategy: Providing Security in a Changing World.’ [Online]. Available from: https://www.consilium.europa.eu/uedocs/cms data/docs /pressdata/en/reports/104630.pdf. [Accessed 19/12/19, 10:50am].

Council of the European Union (CoEU). 2018. ‘Council Conclusions on Yemen.’ [Online]. Available from: https://www.consilium.europa.eu/en/press/press-rel eases/2019/02/18/yemen-council-adopts-conclusions/. [Accessed 21/12/19, 9:0 5pm].

Cuyckens, H. and De Man, P. 2012. ‘The responsibility to prevent: on the assumed legal nature of responsibility to protect and its relationship with conflict prevention.’ In: Hoffman, J. and Nollkaemper, A. (Eds.). ‘Responsibility to protect: from principle to practice.’ Amsterdam: Amsterdam University Press. Pp.111-123.

Darusman, M. 2019. ‘Statement to the 74th session of the General Assembly Chair of the Independent International Fact-Finding Mission on Myanmar 22 October 2019’. Human Rights Council: Independent International Fact-Finding Mission on Myanmar. Geneva: United Nations.

Davies, S., and L. Glanville. 2010. ‘Protecting the Displaced: Introduction.’ In: Davies, S., and L. Glanville. (Eds.). ‘Protecting the Displaced. Deepening the Responsibility to Protect.’ Leiden: Nejhof. Pp.1-12.

De Baere, G. 2012. ‘Some Reflections on the EU and the Responsibility to Protect’. Leuven Centre for Global Governance Studies, Working Paper 79. Pp.1-23.

De Benedictis, V. 2015. ‘Protection of civilians.’ In: Rerhl, J. and Glume, G. (Eds.). ‘Handbook: Missions and operations: the common security and defence policy of the European Union.’ Vienna: Federal Ministry of Defence and Sports. Pp.137-140.

De Franco, C. and Rodt, A. 2015. ‘Is a European Practice of Mass Atrocity Prevention Emerging? The European Union, Responsibility to Protect and the 2011 Libya Crisis’. Politics and Governance, Vol.3, Iss.44. Pp.44-55.

Diez, T. 2005. ‘Constructing the Self and Changing Others: Reconsidering ‘Normative Power Europe’. Millennium. 33(3). Pp.613–636.

Eggleston, E. 2014. ‘Advancing transatlantic linkages on Responsibility to Protect and mass atrocity prevention’. The Stanley Foundation: Policy Dialogue Brief. [Online]. Available from: http://www.stanleyfoundation.org/publications /pdb/R2PSPC2014PDB1114.pdf. [Accessed 16/12/19, 11:35am].

Ercan, P. G. and Gu ̈nay, D. 2019. ‘How can a ‘Responsible’ European Union Contribute to the Implementation of the Responsibility to Protect?’ European Review. 27(4). Pp. 490–505.

European Centre for the Responsibility to Protect (ECR2P). 2019. ‘Eritrea.’ [Online]. Available from: https://ecr2p.leeds.ac.uk/research-2/r2p-in-brief/erit rea/. [Accessed 11/12/19, 11:55am].

European Commission (EC). 2015. ‘A European Agenda on Migration – Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.’ [Online]. Available from: https://ec.europa.eu/antitrafficking/sites/antitraffick ing/files/communication on the european agenda on migration en.pdf. [Access ed 14/12/19, 4:45pm].

European Commission (EC). 2017. ‘The New European Consensus on Development ‘Our World, Our Dignity, Our Future.’ [Online]. Available from: https://ec.europa.eu/europeaid/new-european-consensus-development-our-world-our-dignity-our-future en. [Accessed 18/12/19, 4:23pm].

European External Action Service (EEAS). 2018a. ‘EU Responsibility to Protect – Atrocity Prevention Toolkit.’ [Online]. Available from: https://eeas.europ a.eu/delegations/un-new-york/64721/eu-statement-%E2%80%93-united-nation s-general-assembly-debate-responsibility-protect-and-prevention en. [Accessed 19/12/19, 11:20am].

European External Action Service (EEAS). 2018b. ‘EU-Myanmar Relations.’ [Online]. Available from: https://eeas.europa.eu/headquarters/headquarters-homepage en/4004/EU-Myanmar%20relations. [Accessed 13/12/19, 8:30am].

European Parliament (EP). 2009a. ‘Resolution of 17 December 2009 On violence in the Democratic Republic of Congo.’ [Online]. Available from: https://www.e uroparl.europa.eu/sides/getDoc.do?type=TAamp;reference=P7-TA-2009-0118 amp;language=EN. [Accessed 15/12/19, 9:50am].

European Parliament (EP). 2009b. ‘Resolution of 26 November 2009 on a political solution to the problem of piracy off the Somali coast.’ [Online]. Available from: https://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEX T+TA+P7-TA-2009-0099+0+DOC+XML+V0//ENamp;language=EN. [Acces sed 19/12/19, 10:20am].

European Parliament (EP). 2011. ‘Resolution of 11 May 2011 on the development of the Common Security and Defence Policy following the entry into force of the Lisbon Treaty.’ [Online]. Available from: https://www.europarl.europa.eu /sides/getDoc.do?reference=P7-TA-2011-0228amp;type=TAamp;language=EN amp;redirect. [Accessed 12/12/19, 5:05pm].

European Parliament (EP). 2013. ‘Report with a proposal for a European Parliament recommendation to the Council on the UN principle of the ‘Responsibility to Protect’ (‘R2P’).’ [Online]. Available from: https://www.europarl.europa. eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2013-0130+0+D OC+XML+V0//EN. [Accessed 09/12/19, 12:02pm].

European Union (EU). 2006. ‘The European Consensus on Development.’ [Online]. Available from: https://ec.europa.eu/europeaid/sites/devco/files/publica tion-the-european-consensus-on-development-200606 en.pdf. [Accessed 11/12/1 9, 10:50am].

European Union (EU). 2007. ‘European Consensus on Humanitarian Aid.’ [Online]. Available from: https://ec.europa.eu/echo/who/humanitarian-aid-and-civil-protection/european-consensus en. [Accessed 11/12/19, 10:40am].

European Union (EU). 2008. ‘Report on the Implementation of the European Security Strategy: Providing Security in a Changing World’. [Online]. Available from: https://www.consilium.europa.eu/uedocs/cms data/docs/pressdata/en/ reports/104630.pdf. [Accessed 11/12/19, 2:50pm].

European Union (EU). 2009. ‘UN General Assembly 64 th Session: EU Committed to the concept of Responsibility to Protect’. [Online]. Available from: http://register.consilium.europa.eu/pdf/en/09/st10/st10809.en09.pdf. [Accessed 08/12/19, 3:22pm].

European Union (EU). 2016a. ‘UN Human Rights Council – 26th Special Session – Human Rights in the South Sudan: Statements on behalf of the EU.’ [Online]. Available from: https://eeas.europa.eu/delegations/un-geneva/17208/un-human-rights-council-26th-special-session-human-rights-south-sudan en. [Accessed 22/12/19, 7:45pm].

European Union (EU). 2016b. ‘Shared Vision, Common Action: A Stronger Europe: A Global Strategy for the European Union’s Foreign And Security Policy.’ [Online]. Available from: https://eeas.europa.eu/sites/eeas/files/eugs review w eb 0.pdf. [Accessed 15/04/2020, 12:02pm].

European Union (EU). 2018. ‘Debate on “the responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.’ [Online]. Available from: https://eeas.europa.eu/delegations/un-new-york/47293/node/47293 ka. [Accessed 11/12/19, 1:24pm].

European Union (EU). 2019. ‘From Vision to Action: The EU Global Strategy in Practice – Three years on, looking forward.’ [Online]. Available from: https://eeas.europa.eu/topics/eu-global-strategy/64034/vision-action-eu-global-strategy-practice-three-years-looking-forward en. [Accessed 15/04/2020].

Evans, G. 2004. ‘When is it Right to Fight?’ Survival, Vol.46, Iss.3. Pp.59-81.

Evans, G. 2008. ‘The Responsibility to Protect: An Idea Whose Time Has Come . . . and Gone?’ International Relations. 22(3). Pp.283–298.

Finnemore, M., and Sikkink, K. 1998. ‘International Norm Dynamics and Political Change’. International Organization. 52(4). Pp.887-917.

Ford, S. 2010. ‘Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis.’ Denver Journal of International Law and Policy. 38. Pp.227-277.

Franklin, J. C. 2015. ‘Human rights naming and shaming: International and domestic processes.’ In Friman, H.R. (Ed.). ‘The Politics of Leverage in International Relations’. London: Palgrave Macmillan.

Frelick, B. 2016. ‘Is Turkey Safe for Refugees?’ Policy Review March 2016. [Online]. Available from: http://www.policyreview.eu/is-turkey-safe-for-refugees. [Accessed 14/12/19, 4:45pm].

Gallagher A. 2015a. ‘The Responsibility to Protect Ten Years on from the World Summit: A Call to Manage Expectations’. Global Responsibility to Protect. 7(3-4). Pp.254-274.

Gallagher, A. 2015b. 39;The Promise of Pillar II: Analysing International Assistance Under the Responsibility to Protect.’International Affairs. 91(6). Pp.1259-1275.

Genser, J. 2018. 39;The UN Security Council’s Implementation of the Responsibility to Protect: A Review of Past Interventions and Recommendations for Improvement.39; http://www.globalr2p.org/media/files/un-security-council-application-of-r2p-jared-genser.pdf

Georgieva, K. 2011. ‘Statement on the deteriorating humanitarian situation in Misrata’. [Online]. Available from: http://eu-un.europa.eu/articles/en/article10981 en.html. [Accessed 14/12/19, 11:45am].

Gifkins, J. 2012. ‘The UN Security Council Divided: Syria in Crisis’, Global Responsibility to Protect. 4(3). Pp.377-393.

Global Centre for the Responsibility to Protect (GCR2P). 2017. ‘International justice and the bones of the Rohingya.’ [Online]. Available from: http://www.gl obalr2p.org/publications/616. [Accessed 17/12/19, 4:45pm].

Global Centre for the Responsibility to Protect (GCR2P). 2019. ‘Syria.’ [Online]. Available from: http://www.globalr2p.org/regions/syria. [Accessed 14/12 /19, 9:10am].

Gottwald, M. 2012. ‘Humanizing security? The EU’s Responsibility to Protect in the Libyan crisis’. FIIA Working Paper. Helsinki: The Finnish Institute of International Affairs.

Graubart, J. 2013. ‘R2P and Pragmatic Liberal Interventionism: Values in the Service of Interests’. Human Rights Quarterly. 35(1). Pp.69-90.

Green, P., MacManus, T. and de la Cour Venning, A. 2018. ‘Genocide Achieved, Genocide Continues: Myanmar’s Annihilation of the Rohingya.’ London: International State Crime Initiative.

Haacke, J. 2016. ‘Myanmar’. In: Bellamy, A.J. and Dunne, T. (Eds). ‘The Oxford Handbook of the Responsibility to Protect.’ Oxford: Oxford University Press. Pp.801–824.

Haddad, E. 2010. ‘EU Migration Policy: Evolving Ideas of Responsibility and Protection.’ Global Responsibility to Protect. 2(1). Pp.91-6.

Haslett, B. 2014. ‘No Responsibility for the Responsibility to Protect: How Powerful States Abuse the Doctrine, and Why Misuse Will Lead to Disuse.’ North Carolina Journal for International Law and Commercial Regulation. 40(4). Pp.170-216.

Hehir, A. 2012. ‘The Responsibility to Prevent: The last Refuge of the Unimaginative?’ In: Hehir, A. (Ed.). ‘The RtoP: Rhetoric, Reality and the Future of Humanitarian Intervention’. London: Palgrave.

Hehir, A. 2013. ‘The Responsibility to Protect as the Apotheosis of Liberal Teleology.’ In: Hehir, A. and Murray, R.W. (Eds.). ‘Libya, The Responsibility to Protect and the Future of Humanitarian Intervention.’ New York: Palgrave Macmillan.

House of Commons Foreign Affairs Committee (HoCFAC). 2018. Global Britain: The Responsibility to Protect and Humanitarian Intervention.’ [Online]. Available from: https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/ 1005/1005.pdf. [Accessed 17/12/19, 7:45pm].

Human Rights Council (HRC). 2014. ‘Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea.’ https://www.ohchr. org/en/hrbodies/hrc/coidprk/pages/reportofthecommissionofinquirydprk.a spx

International Commission on Intervention and State Sovereignty (ICISS). 2001. ‘Report of the International Commission on Intervention and State Sovereignty: The Responsibility to Protect, 2001.’ [Online]. Available from: http://responsib ilitytoprotect.org/ICISS%20Report.pdf. [Accessed 07/12/19, 10:15am].

Jean-Robert, H. 2012. ‘Sarkozy, the Mediterranean and the Arab Spring’. Contemporary French and Francophone Studies. 16(3). Pp.405–415.

Keukeleire, S. and Delreux, T. 2014. ‘The Foreign Policy of the European Union.’ (2 nd Edition). Basingstoke, Palgrave.

Khadiagala, G.M. 2014. ‘South Sudan: The Perils of New States.’ E-International Relations. [Online]. Available from: http://www.e-ir.info/2014/04/15/south-sudan-the-perils-of-new-sta tes/. [Accessed 21/12/19, 5:20pm].

Lantis, J. S., and Wunderlich, C. 2018. ‘Resiliency dynamics of norm clusters: Norm contestation and international cooperation.’ Review of International Studies. Vol.44, Iss.3. Pp.570–593.

Maletta, G. 2019. 39;Legal challenges to EU member states’ arms exports to Saudi Arabia: Current status and potential implications.39; [Online]. Available from: https://www.sipri.org/commentary/topical-backgrounder/2019/legal-cha llenges-eu-member-states-arms-exports-saudi-arabia-current-status-and-potenti al. [Accessed 21/12/19, 5:45pm].

Manners, I. 2006. ‘Normative Power Europe Reconsidered.’ Journal of European Public Policy. 13(2). Pp.182–99.

Manners, I. 2008. ‘Normative Ethics of the European Union’. International Affairs. 84(1). Pp.45–60.

MacFarlane, S., Thielking, C., and Weiss, T. 2004. ‘The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention?’ Third World Quarterly. 25(5). Pp.977-992.

Mogherini, F. 2018. ‘Statement by HR/VP Federica Mogherini on the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime’. [Online]. Available from: https://eeas.europa.eu/delegations/nigeria/55057/statement-hrvp-federica-mog herini-international-day-commemoration-and-dignity-victims-crime en. [Access ed 16/12/19, 11:54am].

Morris, J. 2015. ‘The Responsibility to Protect and the Great Powers: The Tensions of Dual Responsibility.’Global Responsibility to Protect. 2(4). Pp.398–421.

Murray, R.W. 2013. ‘Humanitarianism, Responsibility or Rationality? Evaluating Intervention as State Strategy’. In: Hehir, A., and Murray, R. (Eds.). ‘Libya, the Responsibility to Protect and the Future of Humanitarian Intervention’. London: Palgrave Macmillan.

Newman, E. 2017. ‘The Limits of Liberal Humanitarianism in Europe: The ‘Responsibility to Protect’ and Forced Migration’. European Review of International Studies. 4(2-3). Pp.59-78.

Newman, E., and Stefan (formerly Badescu), C.G. 2019. ‘Normative Power Europe? The EU’s Embrace of the ‘Responsibility to Protect’ in a Transitional International Order.’ Journal of Common Market Studies, 2019. Pp. 1–19.

Office for the High Commissioner for Refugees (OHCHR). 2016. ‘26th special session of the Human Rights Council on the human rights situation in South Sudan.’ [Online]. Available from: https://www.ohchr.org/EN/HRBodies/HRC/SpecialSessions/Sessio n26/Pages/26thSpecialSes sion.aspx. [Accessed 21/12/19, 3:45pm].

Office of the High Commissioner for Human Rights (OHCHR). 2019. ‘Yemen: Collective failure, collective responsibility – UN expert report.’ [Online]. Available from: https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.asp x?NewsID=24937amp;LangI D=E. [Accessed 21/12/19, 7:45pm].

Oppenheim, B. 2019a. ‘Europe Is at War Over Arms Exports.’ [Online]. Available from: https://foreignpolicy.com/2019/09/18/europe-is-at-war-over-arms-exports/. [Accessed 21/12/19, 6:25pm].

Oppenheim, B. 2019b. ‘You Never Listen to Me: The European-Saudi Relationship After Khashoggi.39; [Online]. Available from: https://www.cer.eu/publica tions/archive/policy-brief/2019/you-never-listen-me-european-saudi-relationshi p-after. [Accessed 21/12/19, 6:07pm].

Pace, M. 2007. ‘The Construction of EU Normative Power’. Journal of Common Market Studies. 45(5). Pp.1041–1064.

Panebianco, S. 2016. ‘The Mediterranean Migration Crisis: Border Control Versus Humanitarian Approaches.’ Global Affairs. 2(4). Pp.441–445.

Panebianco, S., and Fontana, I. 2018. ‘When responsibility to protect ‘hits home’: the refugee crisis and the EU response.’ Third World Quarterly. 39(4). Pp.1-17.

Pantuliano, S. 2014. ‘Donor-Driven Technical Fixes Failed South Sudan: It’s Time to Get Political.’ [Online]. Available from: http://reliefweb.int/report/ south-sudan-republic/donor-driven-technical-fixes-failed-south-sudan-it-stime-get-political. [Accessed 22/12/19, 3:35pm].

Paris, R. 2014. ‘The ‘Responsibility to Protect’ and the Structural Problems of Preventive Humanitarian Intervention.’International Peacekeeping. 21(5). Pp.569-603.

Powers, M. 2015. ‘Responsibility to protect: dead, dying, or thriving?’ The International Journal of Human Rights. 19(8). Pp.1257-1278.

Ralph, J. 2014. ‘Mainstreaming the responsibility to protect in UK Strategy.’ [Online]. Available from: https://www.una.org.uk/r2p-report-2-mainstreaming-responsibility-protect-uk-strategy-professor-jason-ralph. [Accessed 15/12/19, 12:50pm].

Ralph, J. 2018. ‘What Should Be Done? Pragmatic Constructivist Ethics and the Responsibility to Protect.’ International Organization. 72(1). Pp.173-203.

Ralph, J., and Gallagher, A. 2015. ‘Legitimacy Faultlines in International Society: The Responsibility to Protect and Prosecute After Libya’. Review of International Studies. 41(3). Pp.553–73.

Ralph, J., and Gifkins. J. 2017. ‘The Purpose of Security Council Practice: Contesting Competence Claims in the Normative Context Created by the Responsibility to Protect.’European Journal of International Relations. 23(3). Pp.630–53.

Ralph, J., and Souter, J. 2017. ‘Introduction: The Responsibility to Protect and the Refugee Protection Regime.’ Ethics amp; International Affairs. 31(1). Pp.47–50.

Reiff, D. 2011. ‘R2P, R.I.P.’ [Online]. Available from: https://www.nytimes.com /2011/11/08/opinion/r2p-rip.html. [Accessed 08/12/19, 2:33pm].

Rossi, C.P. 2016. The International Community, South Sudan and the Responsibility to Protect.’ New York University Journal of International Law and Politics. 49(1). Pp. 129-180.

Seligman, L. 2019. ‘Kurdish Commander Calls on Trump to Prevent ‘Ethnic Cleansing.’ [Online]. Available from: https://foreignpolicy.com/2019/12/16/kur dish-commander-mazloum-abdi-trump-prevent-ethnic-cleansing-kurds-turkey/. [Accessed 23/12/19, 5:55pm].

Shannon, V. (2000). ‘Norms Are What States Make of Them: The Political Psychology of Norm Violation’.International Studies Quarterly. 44(2). Pp.293-316.

Smith, K.E. 2018. ‘The EU and the Responsibility to Protect in an Illiberal Era’. Dahrendorf Forum: IV Working Paper. London: LSE Ideas.

Souter, J. 2014. ‘Towards a Theory of Asylum as Reparation for Past Injustice.’ Political Studies. 62(2). Pp.326-342.

Southwick, K. 2015. ‘Preventing Mass Atrocities against the Stateless Rohingya in Myanmar: A Call for Solutions’. Journal of International Affairs. 68(2). Pp.137–156.

Specia, M. 2018. ‘383,000: Estimated Death Toll in South Sudan’s War.’ [Online]. Available from: https://www.nytimes.com/2018/09/26/world/africa/south-sudan-civil-war-deaths.html. [Accessed 09/12/19, 10:35am].

Spencer, Z. 2012. ‘The Responsibility to Protect after Libya and Syria.’ Melbourne Journal of International Law. 13. Pp.1-35.

Staunton, E., and Ralph, J. 2019. ‘The Responsibility to Protect norm cluster and the challenge of atrocity prevention: an analysis of the European Union’s strategy in Myanmar’. European Journal of International Relations. 00(0). Pp.1–27.

Task Force on the EU Prevention of Mass Atrocities (TFotEUPoMA). 2013. ‘The EU and the prevention of mass atrocities: An assessment of strengths and weaknesses.’ Budapest: Budapest Centre for the International Prevention of Genocide and Mass Atrocities.

UN News. 2017. ‘UN Human Rights Chief Points to “Textbook Example of Ethnic Cleansing” in Myanmar.’ [Online]. Available from: https://news.un.org/en /story/2017/09/564622-un-human-rights-chief-points-textbook-example-ethnic-cleansing-myanmar. [Accessed 19/12/19, 11:35am].

UN Security Council (UNSC) . 2011. ‘Monthly Briefing on Libya.’ [Online]. Available from: https://www.secu ritycouncilreport.org/un-documents/docum ent/libya-s-pv-6566.php. [Accessed 15/12/19, 4:45pm].

UN Security Council (UNSC). 2011. ‘The Situation in Libya.’ [Online]. Available from: https://www.securitycouncilreport.org/atf/cf/ %7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Libya%20S%20PV% 206528 .pdf. [Accessed 15/12/19, 4:25pm].

UNICEF. 2015. ‘Libya: Humanitarian Situation Report.’ [Online]. Available from: http://www.unicef.org/ appeals/files/UNICEF Libya Sitrep March 2015. pdf. [Accessed 17/12/19, 11:24am].

United Nations (UN). 2009. ‘Implementing the Responsibility to Protect, Report of the Secretary-General.’ UN Doc. A/63/677. New York: United Nations. [Online]. Available from: https://www.un.org/ruleoflaw/blog/document/report-of-the-secretary-general-implementing-the-responsibility-to-protect/. [Accessed 09/12/19, 1:05pm].

United Nations (UN). 2011a. ‘Resolution 1970 (2011). Adopted by the Security Council at its 6491st meeting, on 26 February 2011.’ UN Doc. S/RES/1970. [Online]. Available from: https://www.undocs.org/S/RES/1970%20(2011). [Accessed 21/04/2020, 5:04pm].

United Nations (UN). 2011b. ‘Resolution 1973 (2011). Adopted by the Security Council at its 6491st meeting, on 26 February 2011.’ UN Doc. S/RES/1973. [Online]. Available from: https://www.undocs.org/S/RES/1973%20(2011). [Accessed 21/04/2020, 5:10pm].

United Nations (UN). 2011c. ‘The Role of Regional and Sub-Regional Arrangements in Implementing the Responsibility to Protect.’ UN Doc. A/65/877.UNSG. [Online]. Available from: http://www.responsibilitytoprotect.org/FINAL%20rep ort%20summary%202011(2).pdf. [Accessed 08/12/19, 9:50am].

United Nations General Assembly (UNGA). 2005. ‘UN World Summit Outcome Document.’ UN Doc. No.A/RES/60/1. New York: United Nations.

United Nations High Commission for Refugees (UNHCR). 2016. ‘Global Trends: Forced Displacement in 2015.’ Geneva: UNHCR.

United Nations High Commissioner for Refugees (UNHCR). 2018. ‘The Refugee Brief – 11 October 2018.’ [Online]. Available from: https://www.unhcr.org/refug eebrief/the-refugee-brief-11-october-2018/. [Accessed 19/12/19, 12:39pm].

United Nations Press Release. 2013. ‘Statement by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, and Jennifer Welsh, United Nations Special Adviser on the Responsibility to Protect, on the Situation in South Sudan, 24 December’. [Online]. Available from: http://www.un.org/en/g enocideprevention/documents/media/statements/2013/English/2013-12-24-Sta tement%20on%20South%20Sudan.pdf. [Accessed 22/12/19, 9:20pm].

United Nations Press Release. 2017. ‘Statement by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, on the Situation in South Sudan’, 6 February.’ [Online]. Available from: http://www.un.org/en/genocide prevention/documents/Statement%20S%20Sudan%20Kajo-Keji.pdf. [Accessed 22/12/19, 8:45pm].

Van Rompuy, H. 2011. ‘Address by the President of the European Council, H.E. Mr Herman Van Rompuy, at the 66th United Nations General Assembly General Debate, 22 September’ [Online]. Available from: http://eu-un.europa.eu/articles/en/article 11407 en.htm. [Accessed 12/12/19, 7:30pm].

Welsh, J.M. 2011. ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into RtoP.’ Ethics amp; International Affairs. 25(3). Pp.255-262.

Welsh, J.M. 2013. 39;Norm Contestation and the Responsibility to Protect.’ Global Responsibility to Protect. 5(4). Pp.365–396.

Welsh, J.M. 2014. ‘Fortress Europe and the Responsibility to Protect: Framing the Issue.’ European Union Institute Forum. [Online]. Available from: https://www.eui.eu/Documents/RSCAS/PapersLampedusa/FORUM-Welshfin al.pdf. [Accessed 14/12/19, 2:20pm].

Welsh, J.M. 2019. ‘Norm Robustness and the Responsibility to Protect.’Journal of Global Security Studies. 4(1). Pp.53–72.

Wouters, J. and De Man, P. 2013. ‘The Responsibility to Protect and regional organisations: The example of the European Union.’ Leuven Centre for Global Governance Studies, Working Paper 101. Pp. 4–27.

Zarni, M. and Cowley, A. 2014. ‘The Slow-Burning Genocide of Myanmar’s Rohingya.’ Pacific Rim Law and Policy Journal. 23(3). Pp.681–752.

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

Valentina Uccioli, University College London, UK

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

Abstract 

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

Introduction

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

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

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

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

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

Doctrine

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

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

Context 

Libya

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

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

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

Venezuela

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

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

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

Criteria and their application 

Criteria

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

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

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

Libya

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

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

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

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

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

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

Venezuela

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

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

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

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

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

Geopolitical interests

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

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

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

Libya

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

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

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

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

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

Venezuela

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

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

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

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

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

R2P discrediting

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

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

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

Conclusion

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

Bibliography

Annan, K. (1999). Two Concepts of Sovereignty. The Economist. [Online] 16 September. [Accessed 22 December 2019] Available at: https://www.economist.c om/international/1999/09/16/two-concepts-of-sovereignty

Al Jazeera. (2011). Arab states seek Libya no-fly zone. Al Jazeera [Online] 12 March [Accessed 17 December 2019] Available at: https://www.aljazeera.com/ne ws/africa/2011/03/201131218852687848.html

Al Jazeera. (2011). Libya protests spread and intensify. Al Jazeera. [Online] 22 February. [Accessed 17 December 2019] Available at: https://www.aljazeera.com /news/africa/2011/02/2011221133557377576.html?xif=al-Jazeera

Bahar, D. and Dooley, M. (2019). Venezuela refugee crisis to become the largest and most underfunded in modern history. Brookings. [Online] 9 December. [Accessed 19 December 2019] Available at: https://www.brookings.edu/blog/up-front/2019/12/09/venezuela-refugee-crisis-to-become-the-largest-and-most-unde rfunded-in-modern-history/

BBC. (2011). Libya protests: Defiant Gaddafi refuses to quit. BBC. [Online] 22 February. [Accessed 11 December 2019] Available at: https://www.bbc.co.uk/ne ws/world-middle-east-12544624

Blitz, J. (2011). Cameron ardent in support of rebels in Libya. Financial Times. [Online] 9 March. [Accessed 7 December 2019] Available at: https://www.ft.com/ content/f279b98a-4a9b-11e0-82ab-00144feab49a

Blomdahl, M. (2018). Interacting Interests: Explaining President Obama’s Libyan Decision. European journal of American studies. 13(2), pp. 1-15.

Bradley, M., Fraihat, I. and Mzioudet, H. (2016). Precarious Refuge: Displaced Libyans in North Africa. In: Bradley, M., Fraihat, I. and Mzioudet, H. (Eds). Libya’s Displacement Crisis: Uprooted by Revolution and Civil War. Georgetown: Georgetown University Press, pp. 29-51.

Casey, N. (2016). Venezuelans Ransack Stores as Hunger Grips the Nation. New York Times. [Online] 20 June. [Accessed 15 December 2019] Available at: https://www.nytimes.com/2016/06/20/world/americas/venezuelans-ransack-st ores-as-hunger-stalks-crumbling-nation.html

CBS News. (2019). President Trump on ”Face the Nation”. CBS News. [Online] 3 February. [Accessed 6 April 2020] Available at: https://www.cbsnews.com /news/transcript-president-trump-on-face-the-nation-february-3-2019/?

Chen, Z. and Yin, H. (2020). China and Russia in R2P debates at the UN Security Council. Chatham House: International Affairs. Iiz229, pp. 1-19.

Chrisafis, A. (2011). Libya protests: ’Now we’ve seen the blood our fears have gone’. The Guardian. [Online] 21 February. [Accessed 23 December 2019] Available at: https://www.theguardian.com/world/2011/feb/21/libya-protests-blood-fears-gone

Corrales, J. (2015). Don’t Blame It On the Oil. Foreign Policy. [Online] 7 May. [Accessed 17 December 2019] Available at: https://foreignpolicy.com/2015/05/07 /dont-blame-it-on-the-oil-venezuela-caracas-maduro/

Cunliffe, P. (Ed.) (2011). Critical Perspectives on the Responsibility to Protect: interrogating theory and practice. New York: Routledge.

Davey, E., Borton, J. and Foley, M. (2013). A history of the humanitarian system. Western origins and foundations. [Online]. London: Humanitarian Policy Group. [Accessed 3 April 2020] Available at: https://www.odi.org/sites/odi.org. uk/files/odi-assets/publications-opinion-files/8439.pdf

Davidson, J. W. (2013). France, Britain and the intervention in Libya: an integrated analysis. Cambridge Review of International Affairs. 26(2), pp. 310-329.

Deng, F. M., Kimaro, S., Lyons, T., Rothchild, D., and Zartman, W. I. (Eds) (1996). Sovereignty as responsibility: conflict management in Africa. Brookings Institution Press.

Dietrich, J. W. (2013). R2P and Intervention after Libya. Journal of Alternative Perspectives in the Social Sciences. 5(2), pp. 323-352.

Doward, J. (2019). US asks world to ‘pick a side’ on Venezuela as UK calls for fair elections. The Guardian [Online] 26 January. [Accessed 19 December 2019] Available at: https://www.theguardian.com/world/2019/jan/26/european-lead ers-ready-to-recognise-guaido-as-venezuelan-president

Evans, G. (2012). The Responsibility to Protect After Libya and Syria. In: Annual Castan Centre for Human Rights Law Conference, 20 July 2012, Melbourne. [Online] Melbourne. [Accessed 19 December 2019] Available at: http:// http://www.gevans.org/speeches/speech476.html

Evans, G. (2013). R2P down but not out after Libya and Syria. Open-Democracy. [Online] 9 September. [Accessed 13 December 2019] Available at: https://www.opendemocracy.net/en/openglobalrights-openpage/r2p-down-but-not-out-after-libya-and-syria/

Evans, G. (2015). The evolution of the Responsibility to Protect: From concept and principle to actionable norm. In: Thakur, R. and Maley, W. (Eds). Theorising the Responsibility to Protect. Cambridge: Cambridge University Press, pp. 16-37.

Evans, G. and Sahnoun, M. (Eds) (2001). The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, Ottawa: International Development Research Center.

Evron, Y. (2013). Chinese Involvement in the Middle East: The Libyan and Syrian Crises. Strategic Assessment. 16(3), pp. 79-91.

Falk, R. (1997). False Universalism and the Geopolitics of Exclusion: The Case of Islam.. Third World Quarterly. 18(1), pp. 7-23.

Foreign Affairs. (2011). What Qaddafi Said Excerpts from Libyan Leader Muammar al-Qaddafi’s Last Televised Address. Foreign Affairs. [Online] 4 June. [Accessed 15 December 2019] Available at: https://www.foreignaffairs.com /articles/libya/2011-06-04/what-qaddafi-said

Gallagher, A. M. (2014). Syria and the indicators of a ’manifest failing’. The International Journal of Human Rights. 18(1), pp. 1-19.

Gutterman, S. (2011). Sacked Libya envoy criticises Russian ’betrayal’. Reuters. [Online] 24 March. [Accessed 15 December 2019] Available at: https://af.reuters. com/article/libyaNews/idAFLDE72N04D20110324

Hanke, S. (2019). Venezuela’s Hyperinflation Drags On For A Near Record—36 Months. Forbes. [Online] 13 November. [Accessed 17 December 2019] Available at: https://www.forbes.com/sites/stevehanke/2019/11/13/venezuelas-hyperinfl ation-drags-on-for-a-near-record36-months/68ba4e686b7b

Hehir, A. (2013). The Permanence of Inconsistency: Libya, the Security Coun-cil, and the Responsibility to Protect. International Security. 38(1), pp. 137-159.

Herbst, J. E. and Marczak, J. (2019). Russia’s Intervention in Venezuela: What’s at Stake?, Washington: Atlantic Council. [Accessed 22 December 2019] Available at: https://www.atlanticcouncil.org/wp-content/uploads/2019/09/Ru ssia-Venezuela-Policy-Brief.pdf

Human Rights Council. (2011). Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya (A/HRC/17/44), Human Rights Council. [Accessed 23 December 2019] Available at: https://www2.ohchr.org/english/bodies/hrcouncil /docs/17session/A.HRC.17.44 AUV.pdf

Human Rights Watch and Johns Hopkins.(2019). Venezuela’s Humanitarian Emergency. Large-Scale UN Response Needed to Address Health and Food Crises. Human Rights Watch. [Accessed 4 January 2020] Available at: https://w ww.hrw.org/report/2019/04/04/venezuelas-humanitarian-emergency/large-scale-un-response-needed-address-health

International Criminal Court. (2018). Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the referral by a group of six States Parties regarding the situation in Venezuela. [Online] 27 September. [Accessed 8 April 2020] Available at: https://www.icc-cpi.int/Pages/item.aspx?name=18092 7-otp-stat-venezuela

Jeifets, V. (2018). Russia in Latin America: Focus on Venezuela [Interview] 1 May. [Accessed 23 December 2019] Available at: https://www.wilsoncenter.org/ article/russias-role-the-venezuela-crisis

Joint UNHCR-IOM Press Release. (2019). US$1.35 billion needed to help Venezuelan refugees and migrants and host countries. [Online] 13 November. [Accessed 5 December 2019] Available at: https://www.unhcr.org/news/press/20 19/11/5dcbd7284/us135-billion-needed-help-venezuelan-refugees-migrants-host-countries.html

Junbo, J. and M ́endez, A ́. (2015). Change and Continuity in Chinese Foreign Policy: China’s Engagement in the Libyan Civil War as a Case Study. LSE Global South Unit Working Paper Series. No. 5/2015, pp. 1-18. [Accessed 4 January 2020] Available at: http://eprints.lse.ac.uk/64375/1/LSE Working Pap er 05 15%20%28Junbo%20%20Mendez%29.pdf

Kaczmarski, M. (2011). Russia on the military intervention in Libya. [Online] 23 March. [Accessed 8 December 2019] Available at: https://www.osw.waw.pl/en/publikacje/analyses/2011-03-23/russia-military-intervention-libya

Kaplan, S. B. and Penfold, M. (2019). China-Venezuela Economic Relations: Hedging Venezuelan Bets with Chinese Characteristics, Washington: Wilson Center – Latin American Program. [Accessed on 5 January 2020] Available at: https://www.wilsoncenter.org/sites/default/files/media/documents/publication /china-venezuela relations final.pdf

Ki-Moon, B. (2011). The role of regional and subregional arrangements in implementing the responsibility to protect: report of the Secretary-General, UN Security Council. 28 June. A/65/877-S/2011/393. [Accessed 3 January 2020] Available at: https://www.refworld.org/docid/4e7713912.html

Kozloff, N. (2007). Hugo Ch ́avez: Oil, Politics, and the Challenge to the U.S. London: Palgrave Macmillan.

Kuhrt, N. (2014). Russia, the Responsibility to Protect and Intervention. In: Fiott, D., Koops, J. (Eds) The Responsibility to Protect and the Third Pillar. New York: Palgrave Macmillan, pp. 97-114.

League of Arab States. (2011). The outcome of the Council of the League of Arab States meeting at the Ministerial level in its extraordinary session On The implications of the current events in Libya and the Arab position. [Online] 12 March. [Accessed 9 April 2020] Available at: https://www.securitycouncilreport .org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Libya%20 7360.pdf

Maduro, N. (2020). Carta a la Honorable Senora Fatou Bensouda, Fiscal de la Corte Penal Internacional, La Haya, Pa ́ıses Bajos. [Online] 12 February. [Accessed 8 April 2020] Available at: https://www.icc-cpi.int/itemsDocuments/2002 12-venezuela-referral.pdf

Mamdani, M. (2010). Responsibility to Protect or Right to Punish?. Journal of Intervention and Statebuilding. 4(1), pp. 53-67.

Medecins Sans Frontieres. (2002). The responsibility to protect. Medecins Sans Frontieres [Online] 15 February. [Accessed 13 December 2019] Available at: https://www.msf.org/responsibility-protect

Meikle, J. and Black, I. (2011). Libya crisis: UN security council to meet over Gaddafi crackdown. The Guardian. [Online] 22 February. [Accessed 3 December 2019] Available at: https://www.theguardian.com/world/2011/feb/22/libya- crisis-un-security-council

Menon, R. (2016). Why humanitarian intervention goes horribly wrong. AEON [Online] 29 March. [Accessed 13 December 2019] Available at: https://aeon.co/i deas/why-humanitarian-intervention-goes-horribly-wrong

Morris, J. and Wheeler, N. J. (2007). The Security Council’s crisis of legitimacy and the use of force. International Politics. 44, pp. 214-231.

Newman, E. (2013). R2P: Implications for World Order. Global Responsibility to Protect. 5(3), pp. 235-259.

Nuruzzaman, M. (2013). The ”Responsibility to Protect” Doctrine: Revived in Libya, Buried in Syria. Insight Turkey. 15(2), pp. 57-66.

Obama, B., Sarkozy, N. and Cameron, D. (2011). Libya’s Pathway to Peace. New York Times. [Online] 15 April. [Accessed 13 December 2019] Available at: https://www.nytimes.com/2011/04/15/opinion/15iht-edlibya15.html

Observatorio Venezolano de la Violencia. ( 2018). Informe Anual de Violencia. [Online] [Accessed 13 December 2019] Available at: https://institutolacso.org/wp- content/uploads/2019/10/INFORME-ANUAL-DE-VIOLENCIA-2018-1.pdf

Olmo, G. D. (2019). Venezuela: la FAES, la pol ́emica polic ́ıa de ́elite creada por Nicol ́as Maduro a la que se acusa de ser un ”grupo de exterminio”. BBC [Online] 11 December. [Accessed 22 December 2019] Available at: https://www.bbc.com /mundo/noticias-america-latina-50677411

Paal, D. H. (2011). China: Mugged by Reality in Libya, Again. Carnegie Endowment. [Online] 11 April. [Accessed 14 December 2019] Available at: https://carnegieendowment.org/2011/04/11/china-mugged-by-reality-in-libya-a gain-pub-43554

Pape, R. A. (2012). When Duty Calls. A Pragmatic Standard of Humanitarian Intervention. International Security. 37(1), pp. 41-80.

Pina, C. E. (2019). China will determine the future of Venezuela. Al Jazeera. [Online] 14 July. [Accessed 10 December 2019] Available at: https://www.aljazee ra.com/indepth/opinion/china-determine-future-venezuela-190709143930431.ht ml

Pingeot, L. and Obenland, W. (2014). In Whose Name? A critical view of the Responsibility to Protect, New York/Bonn: Rosa Luxemburg Stiftung—New York Office and Global Policy Forum. [Accessed 27 December 2019] Available at: https://www.globalpolicy.org/component/content/article/265-policy- papers-archives/52620-new-gpf-report-on-r2p-in-whose-name.html

PROVEA. (2016). Situaci ́on de los Derechos Humanos en Venezuela – Informe Anual. Programa Venezolano de la Educaci ́on-Acci ́on en Derechos Humanos. [Accessed 5 January 2020] Available at: https://www.derechos.org.ve/informe- anual/informe-anual-enero-diciembre-2016

Reuters. (2011). Up to 15,000 killed in Libya war: U.N. rights expert. Reuters [Online] 9 June. [Accessed 10 December 2019] Available at: https://www.reuters. com/article/us-libya-un-deaths/up-to-15000-killed-in-libya-war-u-n-rights-expert- idUSTRE7584UY20110609

Rieff, D. ( 2011). R2P, R.I.P. New York Times. [Online] 8 November. [Accessed 8 April 2020] Available at: https://www.nytimes.com/2011/11/08/opinion/r2p- rip.html

Rouvinski, V. (2019). Russian-Venezuelan Relations at a Crossroads, Washington: Wilson Center – Latin American Program. [Accessed on 7 January 2020] Available at: https://www.wilsoncenter.org/sites/default/files/media/document s/publication/russia-venezuela report rouvinski final.pdf

Sceats, S. and Breslin, S. (2012). China and the International Human Rights System, London: Chatham House. [Accessed 8 January 2020] Available at: https://www.chathamhouse.org/sites/default/files/public/Research/Internation al%20Law/r1012 sceatsbreslin.pdf

Sollom, R. (2011). Witness to War Crimes: Evidence from Misrata, Libya August 2011, Physicians for Human Rights. [Online] 1 August. [Accessed 20 December 2019] Available at: https://phr.org/our-work/resources/witness-to- war-crimes-evidence-from-misrata-libya/

Stephens, P. (2011). Cameron must put himself on the line. Financial Times. [Online] 21 March. [Accessed 5 December 2019] Available at: https://www.ft.co m/content/7904312e-53f2-11e0-8bd7-00144feab49a

Telhami, S. (2011). Libya Action in U.S. National Interest. Brookings. [Online] 28 March. [Accessed 22 December 2019] Available at: https://www.brookings.ed u/opinions/libya-action-in-u-s-national-interest/

Thakur, R. (2013). R2P after Libya and Syria: Engaging Emerging Powers. The Washington Quarterly. 36(2), pp. 61-76.

The Economist. (2011). Responsibility to protect: The lessons of Libya. The Economist. [Online] 19 May. [Accessed 23 December 2019] Available at: https://www.economist.com/international/2011/05/19/the-lessons-of-libya

Toro, F. (2019). With U.S. military action, Venezuela could become the Libya of the Caribbean. Washington Post. [Online] 25 February. [Accessed 27 December 2019] Available at: https://www.washingtonpost.com/opinions/2019/02/25/wit h-us-military-action-venezuela-could-become-libya-caribbean/

UN General Assembly. (2005). 2005 World Summit Outcome: resolution/adopt ed by the General Assembly. A/RES/60/1. 24 October. [Accessed 12 December 2019] Available at: https://www.refworld.org/docid/44168a910.html

UN Office of the High Commissioner for Human Right. (2019). Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela. A/HRC/41/18. 5 July. [Accessed 11 December 2019] Available at: https://www.ohchr.org/en/NewsEvents/ Pages/DisplayNews.aspx?NewsID=24788LangID=E

UN Security Council. (2011). Security Council resolution 1970 (2011) [on establishment of a Security Council Committee to monitor implementation of the arms embargo against the Libyan Arab Jamahiriya]. S/RES/1970. 26 February. [Accessed 11 December 2019] Available at: https://www.refworld.org/docid/4d6 ce9742.html

UN Security Council. (2011). Security Council resolution 1973 (2011) [on the situation in the Libyan Arab Jamahiriya]. S/RES/1973. 17 March. [Accessed 11 December 2019] Available at: https://www.refworld.org/docid/4d885fc42.html

UN High Commissioner for Refugees. (2011). Southern Tunisia Weekly Update. 1 August. Issue 2, pp. 1-2.

UN High Commission for Refugees. (2019). Refugees and Migrants from Venezuela. [Online] [Accessed 27 December 2019]Available at: https://r4v.info/e n/situations/platform

Venezuelan, A. and Ausman, J. (2019). The devastating Venezuelan Crisis. Surgical neurology international. 10, pp. 1-6.

World Bank. (2018). Total Population, RB Venezuela. [Online] [Accessed 22 January 2020] Available at: https://data.worldbank.org/indicator/SP.POP.TOT L?locations=VE

Zifcak, S. (2012). The Responsibility to Protect after Libya and Syria. Melbourne Journal of International Law. 13(1), pp. 1-35.

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

Evan Supple, Athabasca University, Canada

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

Abstract 

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

Introduction

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

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

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

The Sovereign State in Philosophy of Right

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

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

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

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

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

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

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

International Relations in Philosophy of Right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hegel and the Pillars of R2P

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

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

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

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

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

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

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

Hegel and the Foundations of R2P

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

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

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

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

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

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

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

Conclusion

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

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

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

Bibliography

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

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

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

Evidentiary Challenges of New Technologies in International Criminal Trials

Aparajitha Narayanan, Leiden University, The Netherlands

Aparajitha Narayanan 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 three years, after which she pursued her LLM in Public International Law, with a Specialisation in International Criminal Law, from Leiden University. Her LLM thesis entitled ‘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 on the course Global South and International Law, taught by Prof. Dr. B.S. Chimni.

Abstract

Modern international criminal justice, and particularly the evolution of digital evidence, owe their exposition to the war crimes trials of World War II. During the time of establishment of such tribunals and their functioning systems, many felt that international criminal law (ICL) did not possess the legal finesse necessary to reprobate the atrocities committed then. While certain crimes were ostensibly considered to be morally wrong by the international community as a whole, legal sanctions against such actions were not entirely present. International criminal law thus had to develop and draw level with the expectations of the world, against the backdrop of the acts of savagery that took place at the time. Contemporary times also dictate that as technology becomes more and more boundary-less, it tends to take crimes in its stride, thereby enhancing their outreach as well. This paper will trace the history of evidence collection in ICL and will highlight the linkage between digital evidence and contemporary times. While delving into specific cases, the paper will elaborate on the present and future use of digital technology in international crimes. It will also deal with the confluence of digital technology and open source evidence. This paper will argue that digital evidence in ICL may be disadvantageous to defence teams, owing to lack of resources, and certain solutions will be discussed to address the above problem. In conclusion, the positive and negative aspects of technology’s influence on ICL will be espoused, while underscoring the need to take a cautious approach.

1 Introduction

Law is an evolutive paradigm; its development is directly affected by changes in society and politics. We live in a digital age, the effects of which also trickle down to the legal field. Evidence collection is a specific facet of law that has taken technology in its stride.

International Criminal Law (ICL) is multifaceted in both its yield and its outreach, since grave international crimes are typically rife with factual complexities (Ford, 2014, p. 5; Ford, 2015, pp. 151-152). During the investigation of a crime of murder, it will not suffice if the elements of actus reus (the constituent element of a crime, the physical ‘act’ of the commission of crime) and mens rea (the mental element of the crime, the ‘intention’ to commit the crime) are proven (simultaneously). Apart from the specific elements of a crime, the contextual elements, the individual criminal responsibility of the perpetrator (linkage evidence) are also required to be established. Failing at this, the charge falls flat (Dörmann, 2003, pp. 241, 357). For instance, in order to prove the crime against humanity of sexual slavery, it is also necessary to establish that the perpetrator engaged in purchasing, selling, bartering etc. the victim or deprived his/her liberty, made the victim participate or carry out acts of sexual nature, or that the conduct was committed as a “widespread or systematic attack against a civilian population,” among other elements (Article 8, Elements of Crime, 2002). From the above, we can clearly comprehend that the complexity of an international crime is enormous, and therefore, that its adjudication is also trammelled by composite intricacies.

International criminal courts and tribunals are ideal platforms that can use and showcase advancements in digital technology in an elucidatory manner. They may even set a good example for domestic processes provided they achieve high evidentiary thresholds. Courtroom evidence is now focused on new tools, which have changed the very identity of the said field. The high connectivity, easy availability, and expansive capabilities of internet enabled devices and cameras have successfully made their way into the realm of evidence gathering (Bergasmo and Webb, 2007). They have proved to be instrumental in devising updated methodologies for investigators to follow. International criminal trials require prosecutors to collect a wide array of evidence and present a diverse body of proofs to establish multiple crimes. Advanced digital technology is capable of storing copious amounts of information about any ‘case’ or even a ‘situation;’ it also assists lawyers and prosecutors to strengthen evidence by way of introducing time stamps etc.

Currently, in ICL, there are no rules of procedure that may be exclusively applied to digital technology related evidence, indicating that it is perhaps not keeping up with the changing times. The ‘best evidence rule’ followed in most criminal trials requires investigators to collect and present only evidence that is best suitable for establishing the factual circumstances (Freeman, 2018). However, extrapolating the said rule to evidence gathered via digital technology is difficult, since there is a barrage of information that may become available, thereby flooding the evidence table with superfluous information.

This paper will argue that digital technology and its influence on the functioning of international criminal law have complex nuances. It is imperative to first understand the import of advancement of new technologies before relying on them for evidentiary purposes. In order to develop this argument, this paper will firstly discuss the types of evidence (including the three-prong test in ICL) and the applicable provisions of the Rome Statute of the International Criminal Court (hereinafter called the Rome Statute) in relation to digital evidence. Then, the paper will trace the history of collection of evidence in ICL. Further, an examination of the evidence-gathering and submission methodologies used in some recent cases brought before international criminal courts and tribunals will be done, highlighting some of the contemporary nuances of international crimes and their linkages with the digital age. Moving on, the paper will elaborate on the applicable law of evidence and the practical changes carried out by investigators owing to advancements in technology, thereby filtering it further and understanding whether there is any ‘tunnel vision’ approach. Certain specific cases that throw distinctive light on the present and plausible future use of digital technology in evidence gathering concerning international crimes will then be discussed. The paper also attempts to comprehend the disadvantages faced by defendants when trials focus on digital evidence. Therefore, the paper will also discuss some suggestions on how to address the said problems. Finally, the present-day challenges of new advancements in the international criminal law sphere will be evaluated, while leaning principally towards its ambivalent potentialities.

2 Collection of evidence in international criminal law

There are different types of evidence: testimonial (where written or oral evidence is offered as truth in a court of law), documentary (where documents are submitted to a court of law as evidence), physical (material evidence used to prove the fact in issue) and forensic (evidence obtained via scientific methods, submitted in a court of law). Article 69(2) of the Rome Statute deals with giving testimonies via audio or video conferencing (Rome Statute, 1998). Rule 67 of the Rules of Procedure and Evidence (RPE) of the ICC concerns itself with the procedural requirements of such testimonies (RPE, 2004). It is relevant to note that Regulation 26(4) of the Regulations of the ICC (2004) states that “in court proceedings, evidence shall be presented in electronic form whenever possible, however, the original form shall be authoritative” (Regulations of the ICC, 2004).

Further, Article 69(4) of the Rome Statute enumerates a three-prong test for admission of evidence, structured around the following elements:

(i) “relevance” (whether it relates to the circumstances of the case), (ii) “probative value” (whether it contributes to proving the issue at hand) and (iii) “relevance to outweigh any potential prejudicial effect that may be caused by its admission” (Rome Statute, 1998).

It is pertinent to keep in mind that the above conditions must be met even while presenting digital or electronic evidence. Digital evidence may be defined as “data that is created, manipulated, stored or communicated by any device, computer or computer system or transmitted over a communication system, that is relevant to the proceeding” (Mason, 2008, p. 35).Digital evidence was first used by national jurisdictions, before its extrapolation to ICL. While witness testimony generally forms the focal point of international criminal trials (Article 69(2), Rome Statute, 1998; Prosecutor v. Bemba, Trial Chamber, 2011, para. 76), other forms of evidence also contribute to the smooth functioning of the trial process. They may include photographs, aerial imagery, recordings (audio and video), forensic evidence, ballistic reports, DNA etc.

With the advent of technology, nowadays any digital/electronic device is capable of being used as evidence, be it a mobile phone, a laptop, or a camera. While it is true that an eyewitness account is essentially the person’s rendition of a recollected memory of the incident, it may not be as all-encompassing as an electronic device. For instance, a satellite image may be capable of pinpointing an inaccessible spot, and mobile call records could enable one to identify the exact communications which may in turn assist in identifying the accused’s activities. Such information may potentially help courts in ascertaining the truth about the incident and further provide much-needed support in the proper execution of the investigation and its appropriate adjudication. Even so, while Rule 68 of the RPE provides that prior recorded testimony can be used as an alternative to viva voce testimony, it comes ridden with restrictions (RPE, 2004).

3 History of collection of evidence in international criminal law

3.1 The Nuremberg International Military Tribunal 

The International Military Tribunal (IMT) at Nuremberg was unique in a plethora of ways. It was set up just about six months after the surrender of Germany post World-War II (US Holocaust Memorial Museum, IMT at Nuremberg) and was lauded for its quick prosecutions. Prior to the establishment of the IMT, trials used to heavily rely on witness testimonies. However, for the first time, the IMT emphasised documentary evidence rather than live witness testimonies. The widespread and systematic persecution of the Jewish population by the Nazis was diligently documented (including registration forms for Jewish people, containing their names and other details, inventory lists for Jewish properties etc.) by official government and military records, thereby strongly assisting in proving genocidal intent, among other elements (Boender and Wichert, 2012, p. 10). Films and photographs were also widely prevalent since World-War II was an infamously important conflict (Freeman, 2018, p. 299). Reporting of crimes was done through the use of photography, and films also played the role of an educational and informative tool in spreading the news about war crime efforts in different parts of the world. Not only were whispers regarding the atrocities committed during the biggest war in history heard by one and all: actual footage of the heinous crimes committed were also virtually witnessed by many. Thus began the reliance on digital technology for the prosecution of international crimes.

Ad-hoc tribunals like the International Criminal Tribunal at Rwanda (ICTR), the International Criminal Tribunal of the former Yugoslavia (ICTY), Special Court for Sierra Leone (SCSL), Special Tribunal for Lebanon (STL) and the Extraordinary Chambers of the Courts at Cambodia (ECCC) also depended on digital evidence, in a direct or indirect manner, which will be discussed in the sub-sections below.

3.2 International Criminal Tribunal at Rwanda 

In proceedings before the ICTR, the Office of the Prosecution (OTP) relied on a video recording of a rally to prove that the accused had attended the rally (where the Interahamwe were present) and given a speech inciting violence against the Tutsis, and had also submitted a radio transcript of the same (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 508). The ICTR, based on this information, held that the radio transcript effectively authenticated the video’s date, thereby proving conclusively that the defendant had indeed attended the rally (Prosecutor v. Karamera et al., ICTR, Trial Chamber, 2012, para. 598).

More radio announcements were submitted by the OTP wherein it was stated clearly that Tutsis were to be pursued and harmed (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 358). The ICTR held that the recordings were authentic, when combined with an expert witness’ testimony (among two other testimonies) (Prosecutor v. Rutaganda et al., ICTR, Trial Chamber, 1999, para. 363). Additionally, to prove ‘control,’ video footage along with a transcript was submitted by the OTP. This was used by the ICTR to establish that the person in the video, the defendant, was indeed the Minister of Defence at the time of the conflict, thereby exercising effective control over the military forces (Prosecutor v. Bagosara et al., ICTR, Trial Chamber, 2008, para. 493, 494). Although the ICTR blatantly refused to admit any evidence without the author’s testimony (supporting the digital evidence), it was considered a laudable effort at the time (Prosecutor v. Renzaho, ICTR, 2007, pp. 1, 2).

3.3 International Criminal Tribunal for the former Yugoslavia

Upon obtaining the testimonies of intercept operators, the ICTY admitted into evidence certain intercepted communications produced by Bosnian Muslims (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 63). In the same instance, the intercepts’ printouts were corroborated with the original notebooks of the intercepted communications. Furthermore, the evidence was seconded via notes of UN officials, increasing its probative value, by way of telephone books, aerial imagery and witness statements (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 64). The Tolimir decision, wherein the accused was held guilty of having committed the crimes of genocide and other crimes against humanity, is particularly significant. In the case of Prosecution v. Tolimir, the OTP submitted aerial imagery evidence obtained from the United States of America, which came embedded with instructions not to discuss the methods used to obtain such evidence (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 68). Such evidence was found to be reliable regardless of the absence of direct evidence tracing its origin and collection methods since witnesses and investigators from the OTP gave testimonies authenticating the said aerial images (Prosecutor v. Tolimir, ICTY, 2012, Trial Chamber, para. 70). The ICTY was also imperative in establishing that upon the authentication of digital evidence, contrary testimonial evidence may be impeached (Prosecutor v. Krstić, ICTY, 2001, Trial Chamber, para. 278). The OTP also submitted video and other scientific evidence for authentication and the ICTY categorically held that since the digital evidence was separately corroborated by other pieces of evidence, its veracity could not be challenged (Prosecutor v. Galić, ICTY, 2003, Trial Chamber, para. 549).

Chain of custody as such is generally a controversial aspect of the use of evidence in criminal trials. However, identification of a witness via voice interception proved the authenticity of a piece of digital evidence in the case of Prosecutor v. Brdanin, even though it had certain chain of custody issues (Prosecutor v. Brdanin, ICTY, 2004, Trial Chamber, para. 34). Handwritten notes converted to digital notes were permitted by the ICTY instead of audio recordings, which would have been considered ‘best evidence’ (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). Regarding the preservation of digital evidence, this was not a pre-requisite for it to satisfy the ‘best evidence’ rule popularly applied in international criminal trials, which was a considerable departure from earlier jurisprudence (Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39). In respect of altered evidence, the ICTY held that such alterations do not affect the credibility of the evidence (Prosecutor v. Popovic et al., ICTY, 2010, Trial Chamber, para. 73-75). In addition, even when one of OTP’s analysts stated that certain intercepts could have been tampered with, the OTP contended that the transcripts and notes (instead of the recordings) ought to be admitted, despite the defence’s objections to the transcripts being incomplete (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29). The ICTY chose to admit the transcripts, stating that the transcripts were authentic since their preservation procedures were in order (Prosecutor v. Blagojević and Jokić, ICTY, 2005, Trial Chamber, para. 29; Prosecutor v. Popovic et al., ICTY, 2007, Trial Chamber, para. 39).

3.4 Special Tribunal for Lebanon

Trials in the Special Tribunal for Lebanon (STL) were entirely held in absentia of the defendants, in a series of firsts for the STL (apart from being the first hybrid tribunal that tried domestic cases on terrorism) (Fassbender, 2007). Telecommunication records (in this case, “call data records, cell site information and subscriber records”) were submitted as evidence by the OTP (first of its kind evidence) since it was alleged that the terrorists who killed the former Prime Minister of Lebanon Mr. Rafik Hariri had been tracking his movements using mobile networks (Public Information and Communications Section of the Special Tribunal for Lebanon, 2017). Further, video footage evidence has been submitted by the OTP, which contains surveillance cameras in the area where the attack occurred, and it is to be considered in conjunction with forensic evidence (STL Bulletin, 2018, p. 5). To understand the use of explosives and the epicentre of the detonation, the OTP submitted expert evidence that used the aid of computer programmes and mathematical algorithms to ascertain the various permutations and combinations (STL Bulletin, 2017, p. 1). The said evidence substantiates the OTP’s assertion that the explosion was above-ground and not under-ground as contended by the defence, and was the work of a suicide bomber (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). It is relevant to note that cellular signals are neither accurate nor highly reliable, and while there is no judgment on this matter yet, once the above case is adjudicated, the haziness surrounding the evidentiary value of such items will conceivably abate.

3.5 Extraordinary Chambers in the Courts of Cambodia

Film recordings of prison camps during the Khmer Rouge regime were not admitted by the Extraordinary Chambers in the Courts of Cambodia (ECCC) owing to the objections raised by the defendant about their reliability and authenticity. The ECCC, in Case 001 (regarding two sequences of film footage submitted by the co-prosecutors), held that the said films would end up intruding on the court’s valuable time (Case 001, ECCC, 2009, Trial Chamber, para. 5, 15). The OTP corroborated the said video recordings with a live witness testimony, however, the ECCC did not budge from its decision of rejecting their credibility. Further, video evidence was submitted by the OTP to the ECCC in another case as well (Case 002), but owing to its ‘low probative value,’ the ECCC did not admit it as evidence (Case 002, ECCC, 2018, Trial Chamber, para. 69).

By noting the pronouncements made by the above tribunals and courts, it becomes clear that digital evidence served as an important addition to the evidentiary procedures of international criminal trials. When combined with other corroborative evidence, its weightage multiplies two-fold and its vast potentialities may see the light of day when all the stakeholders understand the import of its influence in criminal trials. However, the above paragraphs also highlight that courts are extremely cautious (as they ought to be) before admitting digital evidence not corroborated by other pieces of evidence which they believe aid in strengthening its authenticity and veracity. Further, it is also evident that if preservation procedures are strictly followed while preserving digital evidence, courts trust that such evidence is credible.

4 The International Criminal Court and its treatment of digital evidence

The ICC, in its formative years, did not depend heavily on digital evidence during investigations. Later on, in 2008, the OTP relied on digital evidence while arresting Jean-Pierre Bemba, who had been accused of committing war crimes and crimes against humanity in the Central African Republic (CAR) (Prosecutor v. Bemba et al., ICC, 2017, Appeals Chamber, para. 5), and Callixte Mbarushimana, accused of committing war crimes and crimes against humanity in the Democratic Republic of Congo (Prosecutor v. Mbarushimana, ICC, 2011, Pre-Trial Chamber, para. 23). The investigation process produced a surfeit of digital evidence, which had to be processed by the national authorities in CAR and Congo respectively, since presumably, the OTP did not have experts who could attest to its credibility (Freeman, 2018, p. 306). After 2008, digital evidence became the norm, rather than the exception, and its usage was proportionally augmented owing to the increased use of many sources of digital evidence, like laptops, mobile phones and social media (Digital Fingerprints, 2014, p. 5).

The OTP has investigated cases where digital evidence was of paramount importance, such as in the situations in Libya and the Ivory Coast. The new trend urgently demanded preservation of digital evidence and the creation of a system governing the same. The Scientific Response Unit (SRU) in the OTP then added a sub-branch within it, that of a Forensics Science Section, consisting of Forensic, Cyber and Imagery sub-units (Ambos, 2016, p. 119). The focus was now placed on how technology and its widespread use  may assist criminal investigations. For the past years, the OTP has been encouraging open-ended investigations with a view of  promoting digital evidence, as a form of non-witness based evidence collection. The OTP started hiring experts in digital forensics for its SRU and also trained its investigators in cyber investigations conducted by INTERPOL (Digital Fingerprints, 2014, p. 8).

The remainder of this section will review some important cases adjudicated by the ICC, like those of Lubanga, Katanga, Al-Mahdi, Bemba and Al-Werfalli. Since the ICC is the most important court for prosecuting international trials, it is essential that we look into its treatment of digital evidence. The ICC’s handling of digital evidence could serve as a blueprint for other courts and tribunals and aid in further understanding the procedural and substantive aspects of the importance of digital evidence in the prosecution of international crimes.

4.1 Lubanga

The trial of Lubanga was the first trial before the ICC. Thomas Lubanga Dyilo was the founder and leader of the Union of Congolese Patriots (UPC), a rebel group responsible for committing mass atrocities in the Democratic Republic of Congo (DRC). Lubanga was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. The OTP introduced oral, written and audio-visual evidence, while physical and forensic evidence was not submitted at all (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93), a decision which was touted to be a gamble by many. Transcripts of interviews, videos, photographs, maps etc. were also introduced, either while taking the oral evidence of witnesses, or by way of a special application made by the respective counsel (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 93). The OTP also introduced video footage showcasing the defendant inspecting and conscripting his troops, the majority of whom seemed to be children under the age of 15 years (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 793, 794). Ostensibly, the probative value of the digital evidence in this case was known to be minimal. The OTP chose to rely on such evidence as a way of corroborating the oral testimonies of witnesses. The defence, however, argued that the video footages were simply unreliable since they could not definitively conclude whether the children were 12-13 years old or 15-16 years old (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 716). The Trial Chamber then held that the defendant intended to recruit children below the age of 15 and that the video footage clearly proved that he had no genuine intention of avoiding recruiting children (Prosecutor v. Lubanga, ICC, 2012, Trial Chamber, para. 1335).

4.2 Katanga

During the proceedings in the trial of Germain Katanga, who was the commander of the rebel group Force de résistance patriotique en Ituri, was convicted of being an accessory to war crimes and a crime against humanity committed on 24 February 2003 during the attack on the village of Bogoro, in Ituri, DRC. The OTP included the following digital evidence:

(a) a 360° visual representation of the ‘Institut de Bogoro’ (where civilians would take refuge whenever an attack would occur), along with a visual technician’s report;

(b) over 200 photographs taken by the visual expert and by drone, used to produce the visual presentation;

(c) a ballistic expert report;

(d) a video showing footage of the crime scene investigation by the ballistic experts and its log;

(e) aerial photographs;

(f) videos showing the exhumation and examination of human remains (and their logs); among others 

(Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2).

The defence countered the admission of the above evidence by arguing that they were complex enough to be challenged by counter experts of the defence (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 7). Except for the ballistic report, the Trial Chamber admitted the others into evidence, while specifically stating that “the material in itself is not incriminating and has very limited evidentiary value. It is simply a tool for orientation, just like a diagram or drawing” (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 39). It is necessary to note that the OTP was severely reprimanded for not having consulted the defence while preparing such digital evidence and for taking evidentiary decisions unilaterally (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 74).

4.3 Al-Mahdi

Ahmad Al Faqi Al Mahdi, an alleged member of Ansar Eddine, a movement associated with the Al Qaeda, was convicted of acting as a co-perpetrator of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012. The OTP’s evidence against the defendant included inter-alia: satellite images (showcasing the sites before and after their destruction), archive photographs, internet audio recordings from armed groups, video recordings showing destruction of the sites, geolocation and time-stamping expert reports, and 360° panoramic images (Freeman, 2018, p. 316; Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, pp. 28, 29). The defence did not refute the admissibility of the above evidence, and therefore, the court did not have to rule on its admissibility. It is particularly noteworthy to mention herein that the amount of ‘open-source evidence,’ i.e. information taken from public sources for specific purposes of trials (Mehandru and Keonig, 2019, p. 130), used by the OTP in the above trial was unprecedented. The defendant had also recorded videos where he was seen writing sermons dedicated to mausoleums’ destruction and directly participating in the attacks, while also giving moral support (Prosecutor v. Al Mahdi, ICC, 2016, Trial Chamber, para 37, 38). The public had also uploaded videos of the said destruction, which inadvertently resulted in the enhancement of public participation (indirectly albeit) in the trial process. Furthermore, the use of digital evidence assisted the OTP in establishing a solid, wholesome and strong case against the defendant.

However, the treatment of digital evidence by the OTP in this case was not viewed positively by one and all. Open-source evidence is to be approached warily, since they may be doctored, fake or downright falsified. Additionally, the satellite images of Google Earth were also viewed apprehensively by some digital experts since no background check was carried out by the OTP authenticating such images. It is relevant to note that the above approach is cause for concern since meta-data issues may crop up, in light of the fact that Google Earth constantly keeps updating itself, which means that positional accuracy may keep varying (Freeman, 2018, p. 318; Mohammed et. al., 2013, pp. 6, 9). An interactive platform was also devised by the OTP, which was included as demonstrative evidence, enabling the OTP to “optimally present various videos found on the internet” (Prosecutor v. Al Mahdi, ICC, 2016, Transcripts, p. 44). It could be said that such a technologically sound and innovative approach was rightly praised by participants and onlookers alike and greatly assisted in finding the defendant guilty.

4.4 Bemba

Jean Pierre Bemba was the President and Commander-in-chief of the Mouvement de libération du Congo and was charged with the commission of war crimes and crimes against humanity. The OTP introduced ten audio recordings of radio programmes, in spite of authenticity challenges made by the defence (Prosecutor v. Bemba et al., ICC, 2015, Prosecution’s request, para. 18). Telephone intercepts, call data and financial records were also extensively used during the appeals stage (Prosecutor v. Bemba et al., ICC, 2016). At the investigations’ stage, the OTP submitted as evidence emails and other electronic data belonging to the defendant, after having confiscated his laptop and mobile phone. It was, however, argued by the defence that the OTP had failed to authenticate the emails and that they must consequently be excluded. The OTP also relied on photographs found on a Facebook profile, however, the defence countered the same by contending that since Facebook does not require any authorisation prior to account-creation, attribution would not be possible (Prosecutor v. Bemba, ICC, 2015, Defence’s Response, para. 44). Even though the judgment did not rule on the admissibility of this social media evidence, it may contentiously pave the way for the OTP and the defence to make use of the wide array of digital evidence in the future. Needless to say, future jurisprudence will, in all likelihood, have to address challenges posed by admission (or rejection) of social media evidence in this growing digital age.

Other tricky issues, such as the right to privacy of the defendant, may also encumber the positive influence of digital evidence. In Bemba, it was contended by the defence that by virtue of the release and potential use (as evidence) of the financial records of the defendant, his right to privacy was being violated, since the evidence collection was done prior to the receipt of the first order by a relevant judge, thereby flouting Austrian laws (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 11). The defence thereby submitted that the admission of such financial records as evidence would violate the integrity of the proceedings, as per Article 69(7)(b) of the Rome Statute (Prosecutor v. Bemba, ICC, 2016, Trial Chamber, para. 14). It was then held by the Trial Chamber that although the said evidence was obtained prior to receipt of an approval from the competent domestic authorities, the nature of such information is also not particularly sensitive and will thus not violate the internationally recognised human right to privacy (Prosecutor v. Bemba, ICC, 2018, Appeals Chamber, para. 338, 348). Jurisprudentially, this was the first time the ICC recognised any international human right, which proved to be the rightful cause for celebration among the human rights’ aficionados of the criminal justice process.

4.5 Al-Werfalli

The International Criminal Court’s (ICC) investigations in Libya posed many legal challenges in this respect. Citizen and victim engagement in fact-finding was unparalleled: social media platforms like Twitter, Facebook and the YouTube were inundated with potential usable evidence that documented the conflict on a real time basis (Hamilton, 2019). In 2017, a public arrest warrant was released by the ICC against Mr. Mustafa Busayf Al-Werfalli regarding the situation in Libya. Mustafa Busayf Al-Werfalli was a commander in the Al-Saiqa Brigade and is alleged to have directly committed and ordered and commission of war crimes in Benghazi and other surrounding areas in Libya. The said warrant was primarily issued based on information derived from social media, such as execution videos (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 14). In a video, the defendant is seen to be wearing a rebel uniform, carrying a weapon and shooting three people in the head (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 12). Another video also points to his raising his left hand and sweeping it down as if ordering the execution. Though the source of the video is not conclusively ascertained, the OTP did note that “the evidence supporting the application for the arrest warrant comes from social media posts by the Media Centre of the Al-Saiqa Brigade” (Prosecutor v. Al-Werfalli, ICC, 2017, Public Warrant of Arrest, para. 3). Notably, Article 15(3) of the Rome Statute stipulates that a ‘reasonable basis’ must be established to proceed to the investigation stage, using the available material (Article 15(3), ICC Statute, 1998). Clearly, this threshold has to be met by the OTP and time will tell whether the above arrest warrant was validly issued or not.

The above section is  an important contribution to the discussion of the use of digital evidence since the ICC is the principal court as far as the prosecution of individuals committing heinous international crimes is concerned. Arguably, international criminal justice practitioners have bestowed upon it the status of ‘first responders.’ Hence, the ways of handling digital evidence by bodies of the ICC serve as a reference material for other courts and tribunals.

5 Digital evidence in international criminal law – posing a serious disadvantage to the defence?

In order to uphold the integrity of the criminal justice system, the rights of the accused must always be protected; be it the accused’s right to effective legal representation, defence independence or, chiefly, the principle of equality of arms. The defence cannot work in a dysfunctional setting, especially one that may primarily concentrate on recognising and endorsing the efforts of the prosecution. Justice cannot be meted out if one party is at an obvious advantage and the other’s hands are essentially tied in an inordinate manner (perhaps, due to budgetary constraints, lack of communication, unequal resource allocation etc.). In the Tolimir decision, for instance, the ICTY held that the defence has to prove that the digital evidence submitted by the prosecution is unreliable before admitting any challenge on such grounds. Digital evidence could be construed as that invisible tripwire which aids only the prosecution, perhaps at the cost of defence rights. For instance, when the defence team in the previously mentioned Ayyash case objected to the acceptance of certain aerial images, the STL held that such digital evidence cannot be excluded without a counter-reliability and authenticity scrutiny conducted and proven by the defence (Prosecutor v. Ayyash et al., 2012, STL). It is extremely problematic for the defence to accumulate enough expertise to put forth counter evidence challenging that of the OTP’s since, unlike the prosecution, it does not boast of budgetary leniencies.

A quintessential fair-trial requirement is that of the principle of ‘equality of arms,’ which dictates that at no point during the criminal proceedings should any party “be put in a disadvantaged position vis-à vis the other” (Tuinstra, 2009, Summary). This principle is, however, ignored in ICL trials, and while it may arguably help in achieving the goal of ending impunity, it does so at the expense of the rights of the defence. As noted in the preceding section, judges at the ICC reproached the OTP for not working with the defence during the Katanga trial, particularly in relation to evidentiary submissions (Prosecutor v. Katanga, ICC, 2009, Trial Chamber, para. 2). In the Ayyash case, the overwhelming amount of digital evidence submitted by the prosecution is so technologically complex that it is nearlyimpossible for the defence to refute it without expending similar resources and comprehending the true import of such evidence (Prosecutor v. Ayyash, STL, Key Developments, Case Timeline). Furthermore, due to budgetary constraints, it would not be feasible for the defence team to formulate and successfully prove its counter theories. Devoid of an abundance of resources at its disposal, defence teams cannot collate sufficient evidence favouring the defendants or debunking the OTP’s technically advanced evidence.

At various international criminal tribunals and courts, the Registry is placed at the helm of the servicing branch. Owing to the fact that it is ordained to fulfil the administrative needs of all the participants, defence interests occasionally take a hit. Setting up a separate body to address the needs of the defence teams could serve as a solution-primer for the above misgivings. A good example of equal representation would be the ICC’s Legal Aid Commission where the defence team may make its own arguments in relation to defence funds  (Tuinstra, 2009, Summary). To encourage transparency for the defence and enable it to participate in the decision-making process, the proposal of establishing a separate defence body could be given some credence. While it is a known fact that members of the OTP undergo regular training in honing their prosecutorial skills for better comprehension of evidentiary methods, the defence body could conduct similar workshops for the defence teams as well. Reducing disclosure obligations only for the defence could also polemically aid in tipping the partisan imbalance scale and righting apparent wrongs, although, as a workable suggestion, it may not be altogether viable. Justice that is seen to favour the ostensibly ‘good side’ is antithetical since its very fulcrum rests on equal treatment of all parties. Nonetheless, one must tread such an unpaved path with caution, since at no point can it lead to friction among the teams or cause conflicts of interest, inadvertently harming the very integrity of the judicial process (Mercuri, 2010, p. 132). In the future, in an effort to understand and appreciate the various facets of potential digital evidence, all the organs of courts may devise a strategy (forging partnerships with technology companies, programmers, government agencies, investigatory organisations etc.) to foresee digital evidence-related complications and counter them effectually (Digital Fingerprints, 2014, p. 12).

6 Conclusion

The increased reliance on digital technology in every single aspect of our lives is an irrefutable fact and it would not be a hyperbolic prediction if one were to hypothesise that we will be inextricably woven to its clutches as time progresses. We live in an era spearheaded by technological revolutions and the universal acceptance of the unfettered dependence on digitalisation must be viewed with a certain level of apprehension. The criminal justice system is also caught up in the technological web, be it in the national or international jurisdictions. Anyone who perceives digital evidence as a good Samaritan would argue within reason that the use of digital evidence has made the justice system more efficient, rendering quick yet effective decisions (Susskind, 2010, p. 166). Remarkably, digital technology “is held by many to be if not the panacea then at least a fundamental building block in any credible attempt to reform the criminal justice system” (Susskind, 2010, p. 160). However, those who err on the side of caution would contend that the existence of an unmanageable amount of digital evidence may create a backlog (Goodison et al., 2015, p. 15) and torrentially disparage the quality of evidence submitted in international criminal trials.

Specifically, in relation to open-source evidence, which has been gathering specific momentum in ICC trials (or even during pre-trial stages), the OTP is currently collating data from various stakeholders involved in an effort to strengthen the process and comprehend whether any further assistance is required. Concomitantly, the OTP is playing an active role in the formulation of the ‘International Protocol’ that may standardise the use of open-source evidence, which is expected to be up for public viewing soon (Mehandru and Koenig, 2019). Strategic tie-ups with law enforcement agencies, non-governmental organisations and educational institutions were instrumental in ensuring that those practising international criminal trials were kept abreast of relevant technological advancements (International Bar Association, 2016, Recommendations, p. 32).

Growing concerns are being voiced out by one and all regarding the negative impacts of the admission of digital evidence and the international community cannot take shelter in its ‘tunnel vision’ of securing the interests of justice in an unfastidious manner, thereby letting inter alia, defence rights (and the right to privacy) take a backseat. Training and funding on all levels (be it for the defence or the victim representatives) may be provided to allow technology to realise its full potential in the evidentiary scheme of the criminal justice system. A structured, cautious approach needs to be taken while espousing the advantages of the ready acceptance of technological innovations within the realm of ICL, preferably resulting in the converging of divergent minds. Law must never act as an afterthought, certainly not criminal law; it must resemble a macrocosm, rather than a microcosm, the whole must always be greater than the sum of its parts.

Bibliography

Ambos, K. 2016. Treatise on International Criminal Law. Oxford: Oxford University Press.

Bergsmo M. and Webb P. 2007. Innovations at the International Criminal Court: bringing new technologies into the investigation and prosecution of core international crimes’ in Radtke H. et al. (eds.), Historische Dimensionen von Kriegsverbrecherprozessen nach dem Zweiten Weltkrieg, Studien zum Strafrecht.

Boender B. and Wichert ten Have (eds.). 2012. The Holocaust and other Genocides.

Cox, G. 2003. The Interpretation Factor: Overcoming the Language Barrier at the Trial of the Major War Criminals before the International Military Tribunal at Nuremberg.

Case 001, Submission of the Co-lawyers for Kaing Guek Eav alias Duch Concerning the Two Sequences of Film Footage Presented by the Co-Prosecutors, 2009. Case No. 001/18-07-2007-ECCC/TC, T.Ch., 24 March.

Case 002, Judgment, 2018. Case No. 002/19-09-2007/ECCC/TC, T.Ch., 16 November.

Digital Fingerprints: Using Electronic Evidence to Advance Prosecutions at the International Criminal Court, Human Rights Center – UC Berkeley School of Law, February 2014.

Dörmann, K. 2003. War Crimes under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes. 7 Max Planck Yearbook of United Nations Law 241, p. 357.

Dr. Mohammed N.M.Z. et al., 2013. Positional Accuracy Testing of Google Earth. 4 International Journal of Multidisciplinary Science and Engineering.

Elements of Crime. 2002. [Online]. U.N. Doc. ICC -ASP /1/3. Opened for signature 17 July 1999. Entered into force 1 July 2002. Available from: https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf.

Evidence Matters in ICC Trials. 2016. Recommendations, International Bar Association.

Fassbender, B. 2007. Reflections on the International Legality of the Special Tribunal for Lebanon. 5 Journal of International Criminal Justice 1091.

Ford, S. 2014. Complexity and Efficiency at International Criminal Courts. 29 Emory International Law Review 1, p. 5.

Ford, S. 2015. The Complexity of International Criminal Trials is Necessary. 48 The George Washington International Law Revie151, p. 152.

Freeman, L. 2018. Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials. 41 Fordham Journal of International Law.

Goodison S. E. et al. 2015. Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence. Priority Criminal Justice Initiative.

Hamilton, R. 2019. The Hidden Danger of User-Generated Evidence for International Criminal Justice. Just Security, 23 January. Accessed on 1 April 2020. Available from: www.justsecurity.org/62339/hidden-danger-user-generated-evidence-international-criminal-justice/.

International Military Tribunal at Nuremberg. United States Holocaust Memorial Museum. Accessed on 1 April 2020. Available from encyclopedia.ushmm.org/content/en/article/international-military-tribunal-at-nuremberg.

Key Developments (Case Timeline), Prosecutor v. Ayyash et. al., STL-11-01. Accessed on 1 April 2020. Available at www.stl-tsl.org/en/the-cases/stl-11-01/5740-key-developments.

Mason, S. ed. 2008. International Electronic Evidence.

Mehandru, N. and Koenig, A. 2019. Icts, Social Media and the Future of Human Rights. 17 Duke Law and Technology Review.

Mehandru, N. and Koenig, A. 2019. Open Source Evidence and the International Criminal Court’, Harvard Human Rights Journal. 15 April. Accessed on 1 April 2020. Available from: harvardhrj.com/2019/04/open-source-evidence-and-the-international-criminal-court/.

Mercuri, R. 2010. Criminal Defense Challenges in Computer Forensics’ in Sanjay Goel (eds.), Digital Forensics and Cyber Crime.

Pilishvili C. and Kelly. 2016. Chief Interpreter at Nuremberg Trials leaves his mark on Georgetown. School of Foreign Service (SFS Georgetown). 16 November. Accessed on 1 April 2020. Available from: sfs.georgetown.edu/chief-interpreter-nuremberg-trials-leaves-mark-georgetown/.

Primer on Telecommunications Evidence-Guide to Understanding the testimony in Ayyash et al.’, Public Information and Communications Section of the Special Tribunal for Lebanon, 24 August. pp. 2-3. Accessed on 1 April 2020. Available from: www.stl-tsl.org/en/media/stl-bulletin/5752-primer-on-telecommunications-evidence.

Prosecutor v. Jean-Pierre Bemba Gombo, 2011. Decision on the admission into evidence of materials contained in the prosecution’s list of evidence, ICC-01/05-01/08-1386, T.Ch. III, 3 May 2011, para 76.

Prosecutor v. Rutaganda et al. 1999. Judgment and Sentence, Case No. ICTR-96-3-T, T.Ch. I, 6 December.

Prosecutor v. Krstić. 2001. Judgment, Case No. IT-98-33-T, T.Ch., 2 August.

Prosecutor v. Galić. 2003. Judgment, Case No. IT-98-29-T, T.Ch. I, 5 December.

Prosecutor v. Brdanin. 2004. Judgment, Case No. IT-99-36-T, T.Ch. II, 1 September.

Prosecutor v. Blagojević and Jokić, 2005. Judgment, Case No. IT-02-60-T, T.Ch. I, Sec. A, 17 January.

Prosecutor v. Renzaho. 2007. Decision on Exclusion of Testimony and Admission of Exhibit, Case No. ICTR-97-31-T, ICTR, 20 March.

Prosecutor v. Popovic et al. 2007. Decision on Admissibility of Intercepted Communications, Case No. IT-05-88-T, T.Ch. II, 7 December.

Prosecutor v. Bagosora et al. 2008. Judgment and Sentence, Case No. IT-98-41-T, T.Ch. I, 18 December.

Prosecutor v. Katanga. 2009. Decision on the Disclosure of evidentiary material relating to the Prosecutor’s site visit to Bogoro, ICC-01/04-01/07, T.Ch. II, 9 October.

Prosecutor v. Popovic et al. 2010. Judgment, Case No. IT-05-88-T, T.Ch. II, 10 June.

Prosecutor v. Callixte Mbarushimana, Decision on the Confirmation of Charges, ICC-01/04-01/10, P.T.Ch. I, 16 December 2011.

Prosecutor v. Karamera et al. 2012. Judgment and Sentence, Case No. ICTR-98-44-T, T.Ch. III, 2 February.

Prosecutor v. Lubanga. 2012. Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, T.Ch. I, 14 March.

Prosecutor v. Tolimir. 2012. Judgment, Case No. IT-05-88/2, T.Ch. II, 12 December.

Prosecutor v. Bemba et al. 2015. Prosecution’s First Request for the Admission of Evidence from the Bar Table, ICC-01/05-01/13-1013-Red, 16 June.

Prosecutor v. Bemba. 2015. Defence Response to Prosecution’s Third Request for the Admission of Evidence from the Bar Table, ICC-01/05-01/13-1245, 9 October.

Prosecutor v. Bemba. 2016. Decision on Requests to Exclude Western Union Documents and other Evidence Pursuant to Article 69(7), ICC-01/05-01/13-1854, 29 April.

Prosecutor v. Bemba. 2016. Decision on Requests to Exclude Dutch Intercepts and Call Data Records, ICC-01/05-01/13-1855, 29 April.

Prosecutor v. Bemba et al., 2016. Decision on Requests to Exclude Western Union Documents and other Evidence pursuant to Article 69(7), ICC-01/05-01/13, T.Ch. VII, 29 April.

Prosecutor v. Al Mahdi. 2016. Transcript, ICC-01/12-01/15-T-4-Red-ENG, 22 August.

Prosecutor v. Al Mahdi. 2016. Judgment and Sentence, ICC-01/12-01/15, T.Ch. VIII, 27 September.

Prosecutor v. Ayyash et al. 2016. Decision on the Admission of Call Sequence Tables Related to the Movements of Mr. Rafik Hariri and Related Events, and Four Witness Statements, STL-11-01/T/TC, T.Ch., 31 October.

Prosecutor v. Al-Werfalli. 2017. Public Warrant of Arrest, ICC-01-11-01/17-2, 15 August.

Prosecutor v. Jean-Pierre Bemba Gombo et al. 2017. Further Corrected version of ‘Prosecution’s Consolidated Response to the Appellants’ Documents in Support of Appeal’, ICC-01/05-01/13, A.Ch., 13 October.

Prosecutor v. Bemba et al. 2018. Judgment, ICC-01/05-01/13 A-A2-A3-A4-A5, A.Ch., 8 March.

Special Tribunal for Lebanon Bulletin. Prosecutor v. Ayyash et al., STL-11-01, Public Information and Communications Section of the Special Tribunal for Lebanon, February 2018, p. 5. Accessed on 1 April 2020. Available from: www.stl-tsl.org/en/media/stl-bulletin/6261-stl-bulletin-february-2018.

Special Tribunal for Lebanon Bulletin, Prosecutor v. Ayyash et al., STL-11-01, Stages of Evidence, Public Information and Communications Section of the Special Tribunal for Lebanon, June 2017, p. 1. Accessed on Available from: www.stl-tsl.org/en/media/stl-bulletin/5869-stl-bulletin-june-2017.

Rome Statute on the Establishment of an International Criminal Court.1998. 2187 UNTS 3. Opened for signature on 17 July 1998. Entered into force on 1 July 2002.

Rules of Procedure and Evidence of the International Criminal Court. 2002. UN Doc. PCNICC/2000/1/Add.1 (2000).

Regulations of the International Criminal Court, adopted on 26 May 2004, ICC-BD/01-01-04.

Susskind, R. 2010. The End of Lawyers? Rethinking the Nature of Legal Services. Oxford: Oxford University Press.

Tuinstra, T. 2009. Defence Counsel in International Criminal Law. Summary.

Not Possible in the World That Actually Exists? Examining the Value of The Responsibility to Protect in a World of Systemic Violence

Ananya Sriram, University of Leeds, UK

Ananya Sriram is a final year undergraduate student in French and International Relations at the University of Leeds. Her research interests include atrocity prevention, postcolonial perspectives and human rights.

Abstract

The ongoing proliferation of atrocity crimes has led many to question whether or not the Responsibility to Protect (R2P) is ‘possible in the world that actually exists’. This essay argues that expectations for R2P are set too high, and that it cannot possibly hope to eradicate mass violence altogether. This does not necessarily represent a failing of R2P as a norm in itself, but rather, a failing of the liberal market system in which it was created. Mass violence cannot be eradicated because it is systemic, and rooting out the structural causes of this violence is beyond the remit of R2P. This essay will critically analyse Reiff’s statement by examining three key points: a) that R2P exists in a world which systemically creates and reproduces mass violence, and therefore cannot hope to eradicate it, b) that in ‘the world that actually exists’, the national interest will always supersede human rights norms, and, c) whether R2P as a norm is experiencing a ‘backsliding’ from the Global North and Global South alike, as the world order moves away from liberal democracy.

Introduction

In a world plagued by the ongoing proliferation of atrocity crimes, it is all too easy to argue that the Responsibility to Protect (R2P) is ‘not possible in the world that actually exists’ (Reiff, 2018). Although this statement is to some extent true, expectations of R2P are ultimately set too high. At its core, the R2P is a norm designed primarily to shape states’ behaviour. It is not, and has never been, an initiative to eliminate atrocity crimes, despite the promises made by many R2P advocates since its emergence. Eradicating mass violence altogether is well beyond the remit of R2P because the system in which it was created consistently creates and reproduces violence. This represents not a failure of R2P as a norm in itself but rather a failure of the liberal market system in which it was created.

When discussing whether or not R2P is ‘possible’, it is first critical to define R2P itself. At the 2005 World Summit, the then 191 member states agreed to protect their populations from four clearly defined crimes: genocide, war crimes, ethnic cleansing, and crimes against humanity. More importantly, the World Summit Outcome Document outlined the international community’s responsibility to protect civilian populations around the world from these four crimes should national authorities ‘manifestly fail’ to do so (United Nations General Assembly, 2005). Using this document as the framework for my understanding of R2P, as well as the UN Secretary General’s ‘three-pillar’ approach (Ki-Moon, 2009), I will argue that R2P is only possible to a certain extent because ‘the world that actually exists’ is made up of power structures which create and reproduce violence, thus creating the conditions for repeated instances of mass atrocity crimes. Challenging these power structures is beyond the remit of R2P, designed to be more of a response to mass violence than a solution. This essay will critically analyse Reiff’s statement by examining three key points: a) that R2P exists in a world which systemically creates and reproduces mass violence and therefore cannot hope to eradicate it, b) that in ‘the world that actually exists’, the national interest will always supersede human rights norms and, c) whether R2P as a norm is experiencing a ‘backsliding’ from the Global North and Global South alike as the world order moves away from liberal democracy.

R2P and Systemic Violence

Reiff places the blame for the ‘failure’ of R2P squarely on the shoulders of its architects. The promise made by Australian foreign minister Gareth Evans that R2P would bring the world closer to ‘ending mass atrocity crimes once and for all’ (Reiff, 2018) simply sets expectations too high, creating ambitions that are impossible to fulfil due to the underlying structural violence produced by capitalism. R2P is simply one liberal norm among many that promises peace without having the capacity to implement it since the forces that seek to limit it are much stronger. Indeed, instead of creating an age of peace, the liberal world order has in fact created more violence. A study undertaken by the UN and World Bank (2018) demonstrates an increase in mass violence in the last forty years (1976-2016), with the number of major violent conflicts tripling since 2010. This counters the prevalent narrative that emerged with Pinker’s (2010) argument that we live in the most peaceful time in human history. In an era in which mass violence has increased on such a large scale in such a short time-frame it seems disingenuous to claim that R2P is capable of eradicating mass atrocity crimes altogether.

In limiting its sphere of activity to four crimes only, R2P cannot hope to root out mass violence from modern society, as mass violence often stems from conditions of inequality that are deeply entrenched in society. Though R2P may have a strong foundation in human rights, its moral project will ultimately always be limited by international structures which prioritise economic growth (Reiff, 2018; Duncome and Dunne, 2018; MacArthur, 2008). In many ways, capitalism itself is a system of violence as it is not only built upon the existence of inequality, but it also exacerbates it in order to pursue the accumulation of wealth and capital (Duncome and Dunne, 2018). This allows for the proliferation of mass violence at both the national and international level. At the national level, the unequal distribution of capital can lead to the polarisation of wealth, which creates the underlying conditions of rising inequality. This, in turn, gives rise to populism and prejudice against certain groups, thus creating the conditions for mass violence (Burchill, 2005; Duncome and Dunne, 2018). These can be seen, for example, in Duterte’s rise to power in the Philippines. By ramping up social puritanism and the middle class’s fear of drug use to get elected as President (Coronel, 2019), Duterte then weaponised these fears to justify his ‘war on drugs’ amounting to crimes against humanity (Gallagher, Raffle, and Maulana, 2019). This example demonstrates how violence escalates; as populist leaders exploit inequality by scapegoating minority groups during electoral campaigns, once in office they have the power and capacity to escalate this prejudice into large-scale violence, thus committing atrocity crimes. This establishes a pattern in which the road to mass violence is a long one, starting with domestic structural conditions that are much larger than anything R2P could hope to dismantle.

At the international level, it is impossible to discuss structural violence without first discussing colonialism. The idea of modernity is constructed upon the European colonial project, which involved exploiting labour and extracting wealth from the Global South. The subsequent integration of states into the global economic system through empires created a systemic imbalance between North and South which continues to this day, and in which mass violence occurs daily (Dussel, 1995; Quijano, 2007). The conditions of global inequality are such that every day, millions of deaths occur resulting from poverty, hunger and disease – deaths that would otherwise have been avoidable. Although these deaths do not fall under the remit of the four crimes, they are nevertheless indisputable examples of mass violence, or ‘everyday atrocity’ (Dunford and Neu, 2019). Moreover, states considered part of the Global North actively create the conditions for violence in the Global South by stoking ethnic tensions and supplying arms to both state and non-state actors who then use them to commit atrocity crimes (Dunford and Neu, 2019). For example, it has been established that UK weapons companies profit from arms sales to Saudi Arabia, where weapons are being used to commit atrocity crimes against civilians in Yemen (Amnesty International, 2015; The Independent, 2017). R2P deliberately does not recognise these underlying structural causes of violence as to do so would acknowledge the faults of the liberal market system, as well as the inherent violence of capitalism. Indeed, R2P was never designed to dismantle the liberal world order because it was built by it, and we cannot expect the master’s tools to dismantle the master’s house (Lorde, 1984).

As a liberal norm, R2P is limited by the system in which it was created. Further, it was never intended to challenge existing power structures. Gallagher argues that we have come to expect too much of R2P, and that the ‘inherited expectations’ of ‘Never Again’ following the Holocaust have fuelled an ‘expectations gap’ in R2P, wherein expectations for the norm exceed its capacity (Gallagher, 2015). It is thus crucial to manage the expectations for R2P if it is to be considered a norm of any utility, and acknowledge the fact that it is simply an immediate response, designed only to protect populations from the worst crimes against humanity (Piiparinen, 2012). Although many have argued that R2P is too narrow in its focus on the four crimes, it is equally important to remember that R2P is specific by design: ‘if R2P covers everything, it means nothing’ (Badescu and Weiss, 2010, pp. 367). Although there are valid arguments to be made whereby casting the net of R2P wider risks encroaching on the field of development, the crux of the issue is that R2P requires a narrow approach in order to ensure the agreement of the majority of states, particularly the wealthy and powerful (MacArthur, 2008). Yet R2P’s failure to challenge structural violence may not constitute a failure of the norm itself. By compelling the international community to take action against mass atrocity crimes, it can be argued that the saving of thousands of lives is infinitely more valuable than inaction (Wheeler, 2000). Ultimately, though R2P is severely limited by ‘the world that actually exists’ as it is a world which creates and reproduces violence, R2P still has the potential to provide an immediate, short-term response to this violence. Longer term, structural responses, however, remain unlikely.

National Interest as an Obstacle to R2P

The high expectations placed on R2P have often brought about one-dimensional critiques of the norm that fail to interrogate the complex and nuanced structural forces that stand in the way of R2P’s success. One argument is that states will only implement R2P if it is line with their national interest. This is of course problematic for R2P as a human rights norm as it implies that states will always have an ulterior motive for upholding R2P rather than upholding it for the humanitarian reason of protecting civilians. However, the concept of national interest carries little weight and cannot be taken as a de facto reason for the failure of R2P. The fact that national interest is interpreted differently by most schools of thought in International Relations demonstrates the lack of consensus on what it actually means, leaving it, on the whole, ‘devoid of substantive meaning and content’ (Burchill, 2005, p. 206). Critically, national interest is a fluid concept that may be influenced by factors ranging from leadership to geopolitics. The nebulousness of the term makes introspective analysis difficult, and impedes efforts to account for distinctions between the foreign policy of different leaders (differences in foreign policy approaches between Trump and Obama for example) and differences in state interests. For example, though national security or economic growth are high priorities for the interests of the state, they differ from the interests of the people, which focus more on human need, human rights and wellbeing (Thakur, 2019; Burchill, 2005).

In order to comprehensively evaluate the argument that national interest impedes R2P, it is important to examine the perspectives of different schools of thought in the field of International Relations.

Realist Perspectives

Realists consider national interest as the pursuit of security and territorial gain (Burchill, 2005), and locate it as the primary factor motivating states’ behaviour. In fact, Jackson (1990) claims that states are only ‘morally permitted’ to intervene if such an intervention is in line with national interest, going as far as to argue that this is a fundamental principle of ‘good statecraft’ (Wheeler, 1996, p. 125). However, the assumption in Jackson’s logic that national interest benefits a state’s citizens lays bare the limitations of this approach. Numerous examples expose instances in which states have embarked on interventions in the name of national interest that actively harm its citizens. For example, during the 1993 US-led intervention in Somalia, US soldiers were dragged through the streets of Mogadishu, provoking domestic outrage in the United States (BBC News, 2017). This illustrates the discord between the interests of the state and the interests of its people; the harm that came to US soldiers in Mogadishu effectively turned the tide of public opinion against the intervention, highlighting how US foreign policy was at odds with the interests of its people. Moreover, such losses of domestic legitimacy often have severe impacts on the effectiveness of interventions on the ground, as was the case in Somalia.

It is also worth noting states have intervened in cases where there are no apparent benefits to their citizens, but where the underlying motives of state leaders are clear. For example, the US, UK and France have been accused of seeking to implement regime change in Libya, where the 2011 intervention resulted in the capturing and killing of Colonel Muammar Gadhafi (Reiff, 2011; The Economist, 2011). These two examples demonstrate how national interest is not sufficient to provide effective critiques of R2P; rather, it occludes a nuanced and holistic analysis of the complex, overarching forces which influence states’ behaviour. Situating the realist conception of national interest within a world which routinely creates and reproduces violence exposes the limitations of its critique, as it is clear that the realist perspective overlooks the divergence between the interests of the state and the interests of the people, as well as the larger geopolitical factors that influence state behaviour.

Critical Perspectives: Marxism and Critical Theory

What the realist perspective fails to do is account for ‘whom’ the national interest serves. Critical theorists argue that the idea of a common national interest is a myth created by the elite to present their own interests in a way that appeals to the masses. Elites present R2P in a morally palatable package underpinned by humanitarian values in order to garner public support for interventions. However, this ‘package’ is ultimately a ‘Trojan horse’ (Bellamy, 2015) used to justify interventions furthering the interests of the elite, namely the pursuit of wealth, power and capital (Burchill, 2005). It is true that there is often dissonance between public opinion and the actions of the political elite when it comes to interventions. This was especially visible in public opinion polls regarding the 2011 allied intervention in Libya, wherein 79% of the British public stated that given the post-recession economic climate, the country could not afford to undertake a costly foreign intervention (Ipsos MORI, 2011). Here, the divergence between domestic and foreign interests is clear. It is also important to note that at the time of the 2011 intervention in Libya, then British Prime Minister David Cameron was also implementing austerity measures which were vastly unpopular with the public: 62% of people agreed that spending cuts would harm the economy (Glover, 2011). This illustrates a foreign policy at odds with the domestic one, in which a political leader prioritised investment in the nation’s foreign interests over the welfare of its people, all whilst implementing a harmful economic programme.

The critical theory view provides a useful lens through which to view the complexities of national interest, and also forces us to acknowledge the structural power that political elites can wield – one which does not have the interests of humanity at its heart. It is also perhaps the sole theory to provide us with a means of analysing the underlying structural forces creating violence, which Marxists would argue are a product of capitalism. According to the Marxist view, the only way in which a norm such as R2P could work in ‘the world that actually exists’ is if the capitalist system was overthrown by revolution (Burchill, 2005). This clearly lies beyond the capacity of R2P; as a product of its own system, it was never meant to instigate radical change.

Liberal Perspectives: liberalism, cosmopolitanism and the English School

As a liberal endeavour, the strongest arguments defending R2P are likely to come from a liberal perspective. Advocates of R2P counter the realist view that national interest supersedes R2P by citing two examples where violence was successfully de-escalated through preventative mechanisms, first in Kenya from 2007-13 and in the 2008-10 crisis in Guinea (Welsh, 2016). Welsh argues that the successes of UN preventive diplomacy in Kenya and Guinea lie in their framing through an R2P lens, as well as their operationalisation through the UN secretariat and regional actors. This provides significant examples of the international community coming together solely in the interests of preventing violence (Welsh, 2016). Indeed, it can be argued that at the core of R2P lies a humanitarian project to promote human security as the utmost priority. This is common not only in liberal thought but also amongst English School and cosmopolitan scholars (Bull and Hurrell, 2002; Bohm and Brown, 2015; Burchill, 2005). Indeed, Thakur (2019) argues that R2P aims to elevate the national interest to the international interest, promoting the idea of the universal value of human life above all else. Following this line of thought, cosmopolitan scholars would defend R2P and humanitarian intervention on the grounds of serving a ‘common humanity’ (Newman, 2016), arguing that it is in the common and global interest to intervene in order to save lives (Burchill, 2005). An English School perspective would incorporate the idea of preserving the international order (Bull and Hurrell, 2002), arguing that civilian protection is in the international interest of states because mass violence threatens to destabilise international peace and security (MacArthur, 2008). However, defining mass violence solely in terms of four crimes limits R2P to a method of ‘containment’, only having the capacity to stop the worst instances of crimes against humanity from occurring. If the aim of R2P is truly to elevate the national interest to an international, humanitarian interest, its success is limited by an international system in which mass violence proliferates on a structural level. Though Bohm and Brown (2015) have highlighted this hypocrisy in the cosmopolitan view, their proposal of ‘Jus Ante Bellum’ wherein R2P comprises addressing the systemic causes of mass violence risks extending the remit of R2P to one that is beyond its capacity. As previously mentioned, there is indeed a risk of spreading R2P too thin. The four crimes are what defines R2P; to expand its focus would simply render it meaningless.

Post-colonial Perspectives

When considering how national interest may inhibit R2P, the post-colonial perspective is key. Not only does it provide a vital insight into the importance of historical precedent when discussing R2P but also proves essential to counter unchecked Western imperialism still present today (Chomsky, 2011). The emerging world powers of Brazil, Russia, China, India and South Africa, otherwise known as BRICS, as well as numerous other non-Western states, have expressed concern over R2P on the grounds that it infringes upon state sovereignty (Steunkel, 2014; Ziegler, 2016). Though it can be tempting to argue that this opposition is driven by national interest, a more nuanced critique should incorporate an understanding of colonial history. The desire to protect sovereignty stems from the colonial experience of most BRICS countries excluding Russia, when sovereignty was entirely disregarded by colonial powers and only gained through hard-fought struggles for independence (Ziegler, 2016). Taking this history into account, along with the vastly unjust and unequal world that resulted from it, the concerns of many non-Western states over R2P being a neo-imperial project that justifies Western intervention in the Global South are better understood when situated in context, as is the desire of China and Russia to balance against Western powers in the UN Security Council. These anxieties were particularly salient following the 2011 intervention in Libya which resulted in regime change, propelling an immense backlash from Brazil, China and Russia in particular who felt they had been ‘betrayed’ by Western powers (Steunkel, 2014; Ziegler, 2016). Subsequently, many have taken a position of non-intervention which often inhibits progress on R2P, as demonstrated by China and Russia’s repeated use of the veto against intervention in Syria (Morris, 2013). The 2009 UN General Assembly debate revealed a somewhat precarious consensus on R2P, with the majority of states raising concerns over sovereignty, legitimacy and authority (Newman, 2013). Concerns over R2P being wielded by the ‘strong [to] do as they wish while the weak suffer as they must’ (Chomsky, 2011, p. 11) were summarised in a statement made by the President of the General Assembly: ‘we first need to create a more just and equal world order’ (Brockmann, 2009, p. 6). This statement demonstrates that the problems of R2P lie not in the norm itself, but rather in the international system in which it was created. R2P is often accused of compromising sovereignty and highlighting inequality, uncertainty and instability at a global level, but this is symptomatic of the entrenched problems of capitalism that inhibit R2P.

As we have seen, arguments that national interest acts as an obstacle to R2P limit the discourse surrounding R2P to a state lens; rather, an international lens is required. The global problems of inequality, class divisions and power imbalances inhibit R2P from reaching its full potential (Newman, 2016). R2P cannot fix these problems, as Newman advocates, nor can it be separated from them since such problems make up ‘the world as it actually exists’. Moreover, expectations that R2P will elevate the national interest to an ‘international interest’ (Thakur, 2019) which implores states to act in the best interests of a ‘common humanity’ (Newman, 2016) are too ambitious. R2P is simply one norm among many, and while it can be internalised to shape states’ behaviour, we cannot expect it to be the only reason for states to act.

R2P in a Transitional World Order: Normative ‘Backslide’?

Born in a unipolar world order, R2P is coming of age at a time of great change in which multiple powers challenge the defining norms and institutions of our era (Newman, 2013). Reiff argues ‘the global balance of power has tilted away from governments committed to human rights norms and toward those indifferent or actively hostile to them.’ (Reiff, 2018) Though the international order may be a subjective construct (Newman, 2016), the measures used to define it indicate a relative shift in terms of where power is concentrated, exemplified by the rise of the BRICS. The transitional world order also reflects changes in norms and institutions, R2P being a prime example of a liberal norm facing increasing normative challenges. R2P faces an obstacle in that it is entering a multipolar world order in which the rising, non-Western powers are no longer taking a passive role in norm diffusion and are actively questioning R2P on the grounds of preserving sovereignty, non-intervention, and challenging the hegemony of liberal internationalism (Newman, 2013). Reiff argues that the rise of the BRICS, in which each country has populist or authoritarian governments, presents a challenge to R2P as the global balance of power shifts away from the prevailing liberal ideology. It could be argued that this has led to a normative ‘backsliding’ of R2P, wherein attention and commitment to the norm has waned in recent years. However, there is no evidence that the BRICS are solely responsible for this backsliding. Reiff’s argument that the opposition to human rights norms comes largely from the Global South risks being somewhat colonialist, as the West has proved itself equally susceptible to the rise of populist, right-wing governments which do not prioritise humanitarianism. Examples range from the Trump administration, to Brexit, and the wave of nationalism that has swept across Europe in recent years. Furthermore, the myth that R2P is largely a Western norm has largely been debunked. Indeed, many non-Western scholars have made valuable contributions to the development of R2P, from Francis Deng to Ramesh Thakur (Bellamy, 2015; Smith, 2019). Instead of conceiving of the transitional world order as presenting a challenge to R2P, it is perhaps more useful to see the contestation surrounding it as an essential opportunity to develop and refine the norm in a truly multipolar way. Concerns about R2P’s implementation, in particular, are in need of being ironed out (Newman, 2016; Badescu and Weiss, 2010).

In any case, the fact that R2P is still being debated and contested fifteen years after its inception shows that it is still very much a norm that occupies a strong position on the global political agenda. Advocates would point to this as an indicator that R2P is not undergoing backslide, arguing that the success of R2P lies in its ability to shape state behaviour. Following the model of the ‘norm life cycle’ created by constructivist scholars Martha Finnemore and Kathryn Sikkink (1998), R2P’s ‘tipping point’ occurred in 2005, when a ‘critical mass of actors’ supported the norm by agreeing to the World Summit Outcome Document. The consequent ‘norm cascade’ followed with the norm being further institutionalised with the appointment of a UN Special Adviser for the Prevention of Genocide, as well as the establishment of R2P focal points and prevention networks around the world. Many would claim that the basic principles of Pillar I and II are not only widely accepted but internalised, even by the BRICS (Bellamy, 2015; Welsh, 2016; Steunkel, 2014). Not only is R2P being discussed more in the UN Security Council, but it has also instilled a duty to protect civilians in the international psyche, with inaction becoming less justifiable in the face of mass atrocities (Welsh, 2016). The prevention aspect of R2P has also proven a useful part of the R2P toolkit, with the successes of Kenya and Guinea in mind.

This illustrates that R2P is possible to an extent in ‘the world that actually exists’ given the internalisation of the first two Pillars as well as prevention offering real potential to effectively address mass atrocity crimes. However, R2P remains problematic; this is largely a result of the gap between the institutionalisation of the norm and its implementation. Agreeing to protect civilians is much easier said than done, and the lack of clarity and precedent for ‘good’ interventions have given rise to a ‘gap between rhetoric and reality’ in which states know that they should act and promise to do so, but a lack of consensus on how to act means they seldom do (Welsh, 2016; Newman, 2016; Powers, 2015). This manifests itself in ‘expectations clouding’ (Gallagher, 2015), in which a lack of clarity on the expected outcomes for R2P leaves actors with no moral guidance, no means of evaluating success and no accountability mechanisms (Gallagher, 2015; Newman, 2016). This has resulted in a lack of models for a ‘good’ intervention, and the high probability of worsening the situation leads many actors to take no action at all. The international system is set up in such a way that there is no ‘perfect’ outcome: it is not possible to eradicate mass violence, neither is it possible to intervene without grave consequences. Whatever action is taken will inevitably have consequences further down the line, whether that be immediate loss of life, or the destabilising of entire regions. Ultimately, R2P is a norm that is not built to tackle the complexity of the international system.

Going forward, advocates must accept that R2P is not separate from discussions of poverty eradication, climate change, and systemic inequality. Some have already put forward ways to address the underlying causes of violence. For example, Karen Smith (2019) argues for the integration of R2P into development agendas (ECR2P Lecture, 2019), whilst Bohm and Brown (2015) propose ‘Jus Ante Bellum’, a commitment to addressing underlying causes of violence before engaging in military intervention. Though these propositions may be promising, it is vital to remember that the underlying causes of violence are entrenched in the international system, and cannot be overcome by R2P alone. R2P was never set out to be radical; it is a norm that can only exist within the confines of the system that created it.

Conclusion

In conclusion, the statement that ‘R2P is not possible in the world that actually exists’ is true to an extent. Although R2P has made normative progress in instilling in states the duty to respond to instances of mass violence, the expectation that it would eradicate mass violence altogether is one that it will never live up to since the forces it comes up against are too strong. The international system is one which creates and reproduces violence through market capitalism, and since R2P was a norm created by this system, it will never have the tools nor the power to dismantle it. The high expectations surrounding R2P also bring about critiques, which assume that R2P can transcend all other norms to be the sole motivating factor shaping states’ behaviour. This is simply not the case; R2P does not exist in a vacuum, and there are numerous other norms and institutions which influence how states act. Locating national interest as a focus of these critiques prevents a nuanced and meaningful analysis of the obstacles facing R2P, and often does not take into account the structural limitations of the international system in which it resides. Finally, the transitional world order acts not as an obstacle to R2P, but rather as an opportunity for the norm to develop. Overall, R2P has made as much progress as it can in ‘the world that actually exists’, but is ultimately limited by a system which creates and reproduces structural violence.

Bibliography

Amnesty International. 2015. UK Government Breaking the Law Supplying Arms to Saudi Arabia, Say Leading Lawyers. [Online]. [Accessed 26th December 2019]. Available from: https://www.amnesty.org/en/latest/news/2015/12/u k-government-breaking-the-law-supplying-arms-to-saudi-arabia/

Badescu, C. and Weiss, T. 2010. Misrepresenting R2P and Advancing Norms: An Alternative Spiral?. International studies perspectives. 11(4), pp. 354-374.

BBC News. 2017. Black Hawk Down: The Somali Battle that Changed US Policy in Africa. [Online]. [Accessed 6th January 2020]. Available from: https://www.bbc.co.uk/news/av/magazine-38808175/black-hawk-down-the-som ali-battle-that-changed-us-policy-in-africa

Bellamy, A. 2015. The Responsibility to Protect: A Defense. Oxford: Oxford University Press.

Bohm, A. and Brown, G. 2015. Introducing Jus Ante Bellum as a Cosmopolitan Approach to Humanitarian Intervention. European Journal of International Relations. 22(4), pp. 897-919.

Brockmann, M. 2009. Statement by H. E. Miguel d’Escoto Brockmann, President of the United Nations General Assembly at the Opening of the 97th Session of the General Assembly. [Online]. [Accessed 30th December 2019]. Available from: http://www.responsibilitytoprotect.org/PGA dEscoto ENG.pdf

Bull, H. and Hurrell, A. 2002. The Anarchical Society: A Study of Order in World Politics. 3rd edition. New York; Chichester: Columbia University Press.

Burchill, S. 2005. The National Interest in International Relations Theory. Basingstoke: Palgrave Macmillan.

Chomsky, N. 2011. The Skeleton in the Closet: The Responsibility to Protect in History. In: Cunliffe, P. ed. Critical Perspectives on the Responsibility to Protect. Routledge, pp. 11-18.

Coronel, S. 2019. The Vigilante President: How Duterte’s Brutal Populism Conquered the Philippines. Foreign Affairs. September/October 2019.

Dearden, L. 2017. UK weapons companies have made £6bn from Saudi Arabia since it started bombing Yemen. The Independent. [Online]. [Accessed 26th December 2019]. Available from: https://www.independent.co.uk/news/uk/home-news/yemen-war-saudi-arabia-human-rights-british-weapons-trade-uk-6bn-war-child-report-crimes-civilians-a7953496.html

Duncombe, C. and Dunne, T. 2018. After Liberal World Order. International Affairs.94(1), pp. 25-42.

Dunford, R. and Neu, M. 2019. R2P in a World of Already Existing Intervention. European Journal of International Relations. 25(4), pp. 1080-1102.

Dussel, E. 1995. Eurocentrism and Modernity (Introduction to the Frankfurt Lectures).boundary 2. 20(3), pp. 65-76.

Finnemore, M. and Sikkink, K. 1998. International Norm Dynamics and Political Change. International Organization. 52(4), pp. 887-917. Gallagher, A. 2015. The Responsibility to Protect Ten Years On From the World Summit: A Call to Manage Expectations. Global Responsibility to Protect. 7(3-4), pp. 254-274.

Gallagher, A. Raffle, E. and Maulana, Z. 2019. Failing to Fulfil the Responsibility to Protect: The War on Drugs as Crimes against Humanity in the Philippines. The Pacific Review. 31/01/2019. pp. 1-31.

Glover, J. 2011. Spending Cuts Causing Public Backlash Against Coalition, Says Opinion Poll. The Guardian. [Online]. [Accessed 30th December 2019]. Available from: https://www.theguardian.com/politics/2011/sep/23/public-opi nion-turns-against-cuts

Ipsos MORI, 2011. Intervention in Libya, And Public Opinion around Our Involvement.[Online].[Accessed 30th December 2019]. Available from: https://ww w.ipsos.com/ipsos-mori/en-uk/intervention-libya-and-public-opinion-around-ou r-involvement

Lorde, A. 1984. The Master’s Tools Will Never Dismantle the Master’s House. In: Lorde, A. Sister Outsider: Essays and Speeches. Ed. Freedom, CA: Crossing Press, pp. 110-114.

MacArthur, J. 2008. A Responsibility to Rethink? Challenging Paradigms in Human Security. International Journal. 63(2), pp. 422-443.

Morris, J. 2013. Libya and Syria: R2P and the spectre of the swinging pendulum. International Affairs. 89(5), pp. 1265-1283.

Newman, E. 2013. R2P: Implications for World Order. 5(3), pp. 235-259.

Newman, E. 2016. What Prospects for Common Humanity in a Divided World? The Scope for RtoP in a Transitional International Order. International Politics. 53(1), pp. 32-48.

Piiparinen, T. 2012. McDonaldisation of Sovereignty: A Foucauldian Analysis of the Responsibility to Protect. Global Society. 26(4), pp. 473-493.

Pinker, S. 2010. The Better Angels of our Nature: The Decline of Violence in History and its Causes. London: Allen Lane.

Powers, M. 2015. Responsibility to Protect: Dead, dying or thriving?. The International Journal of Human Rights. 19(8), pp. 1257-1278.

Quijano, A. 2007. Coloniality and Modernity/Rationality. Cultural Studies. 21(2), pp. 168-178.

Reiff, D. 2018. The End of Human Rights? [Online]. [Accessed 12 November 2019]. Available from: https://foreignpolicy.com/2018/04/09/the-end-of-human-rights-genocide-united-nations-r2p-terrorism/.

Rieff, D. 2011. R2P, RIP. [Online]. [Accessed 12 November 2019]. Available from: https://www.nytimes.com/2011/11/08/opinion/r2p-rip.html

Smith, K. 2019. Responsibility to Protect 15 Years On: Where to Now? 25th November 2019, European Centre for the Responsibility to Protect.

Steunkel, O. 2014. The BRICS and the Future of R2P. Global Responsibility to Protect. 6(1), pp. 3-28.

Thakur, R. 2019. Global Justice and National Interests: How R2P Reconciles the Two Agendas on Atrocity Crimes. Global Responsibility to Protect. 11(4), pp. 411-434.

The Economist. 2011. The Lessons of Libya. The Economist. 399(8734), pp. 70-71.

United Nations and World Bank. 2018. Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict. [Online]. Washington, D. C.: World Bank. [Accessed 27th December 2019]. Available from: https://openknowledge. worldbank.org/handle/10986/28337

United Nations General Assembly. 2005. Draft resolution 60/1: World Summit Outcome Document (16th September 2005). [Online]. A/60/L.1. [Accessed 18th December 2019]. Available from: http://responsibilitytoprotect.org/world %20summit%20outcome%20doc%202005(1).pdf

United Nations General Assembly. 2009. Implementing the Responsibility to Protect (12th January 2009). [Online]. A/63/677. [Accessed 18th December 2019]. Available from: http://responsibilitytoprotect.org/SGRtoPEng%20(4).pdf

Welsh, J. 2016. The Responsibility to Prevent: Assessing the Gap between Rhetoric and Reality. Co-operation and Conflict. 51(2), pp. 216-232.

Wheeler, N. 1996. Guardian Angel or Global Gangster: a Review of the Ethical Claims of International Society. Political Studies. 4(1), pp. 123-135.

Wheeler, N. 2000. Saving Strangers: Humanitarian Intervention in International Society. Oxford: Oxford University Press.

Ziegler, 2016. Critical Perspectives on the Responsibility to Protect: BRICS and Beyond. International Relations. 30(3), pp. 262-277.

The Responsibility to Protect and Counter Terrorism: An Incompatible but Inevitable Interaction

Macaulay Eddy, University of Leeds, UK

Macaulay Eddy is a final year undergraduate student in International Relations at the University of Leeds.

Abstract

The relationship between the Responsibility to Protect and counter terrorism will be critically analysed – arriving at the conclusion that the doctrines are conceptually and practically incompatible. Nonetheless, it will be discovered that their interaction is inevitable and, as this is likely to only increase, their incompatibility should be studied and managed. It is revealed that counter terrorism has the potential to override the Responsibility to Protect and, therefore, it will be argued that they should be maintained as separate doctrines, particularly in light of their continued interaction. To achieve this conclusion, the concepts of state-centricity and impartiality are analysed with respect to this relationship.

Introduction

This paper will argue that the Responsibility to Protect (R2P) and counter terrorism are both conceptually and practically incompatible. However, there is considerable overlap and interaction between the two doctrines, which means this incompatibility must be examined and managed when R2P and counter terrorism are found to operate alongside one another. If their relationship is not critically engaged with then, it is argued, R2P becomes subordinate to and marginalised by counter terrorism, which has significant implications for the accountability of atrocity crimes. Therefore, it will be concluded that the two doctrines should be maintained separate from one another. This will be achieved by analysing two concepts with respect to counter terrorism and R2P’s relationship: first, their state-centricity, followed by their implications regarding impartiality. Within the state-centricity concept, the paper will discuss non-state actors’ inclusion within R2P in order to ground its argument before moving on to assess R2P and counter terrorism’s underlying logics. This subsection on the doctrines’ logics will highlight that, in spite of their incompatibility, interaction between counter terrorism and R2P is inevitable. The transnational nature of terrorism and – finally – how counter terrorism takes precedent over R2P will also be explored. Turning to impartiality, the increasing use of force in peacekeeping and its interaction with counter terrorism operations will be discussed, as is the risk of the United Nations (UN) becoming complicit in mass violence and the consequences of the label of terrorism regarding the relationship between these two doctrines. State-centricity is the condition upon which the international order – and, therefore, the UN, R2P and counter terrorism – is predicated, but its caveats also hold important consequences for R2P, counter terrorism and their relationship. Impartiality is important to discuss because whilst it is central to the UN and peacekeeping, which, it is argued, operationalises R2P, counter terrorism remains inherently partial – therefore, this concept reveals crucial insights into this relationship in practice.

State-Centricity

The Role of Non-State Actors within R2P

It will now be proposed that non-state actors (NSA) – the form that terrorism is conventionally viewed as taking – can be included within the parameters of R2P. R2P has been conceptualised and implemented in a fundamentally state-centric manner since its inception (Luck, 2015; Matthews and Mulcair, 2015; Welsh, 2016). This is likely due to the framing of R2P in the UN 2005 World Summit Outcome Document as concerning the responsibilities of states, thereby marginalising the role of NSA (Matthews and Mulcair, 2015; United Nations General Assembly, 2005). Luck makes the important observation that R2P was destined to be conceived state-centrically because the question posed to the International Commission on Intervention and State Sovereignty (ICISS) was inherently state-centric, and therefore so was its answer (ICISS, 2001; Luck, 2015). Indeed, this analysis should not be understood as contradicting the state-centricity of R2P, but rather complimenting it – as the primary responsibility must always lie with states (Welsh, 2016). However, the rise of the Islamic State (IS), among other terrorist organisations, and the atrocities that have been committed by them implores us to reconsider R2P in how it relates to such actors (Bellamy, 2015; Ralph, 2015). From a legal perspective, NSA arguably hold protection responsibilities under the Geneva Conventions, which designate to all members of the international community a duty to uphold human rights – this can be extrapolated to the atrocities of R2P (Zimmerman, 2020). Although the Geneva Conventions apply only in times of armed conflict, because atrocity crimes – with the exception of war crimes – occur outside of armed conflict, NSA can be considered to have a R2P (Zimmerman, 2020). This legal basis is becoming increasingly salient with the recognition that not all states possess a monopoly on the use of force within their territory (Matthews and Mulcair, 2015; Zimmerman, 2020). In former UN Secretary-General Ban Ki-Moon’s first report on R2P the notion of incorporating NSA into the doctrine was proposed, wherein it is claimed that international assistance against NSA committing atrocities can help the host state restore its sovereignty (Ki-Moon, 2009). This implies that a NSA can inherit sovereignty from a state if it acquires the monopoly on force in a given territory, and therefore the protection responsibilities that come along with it – as sovereignty is now conditional on the fulfilling of the R2P (ICISS, 2001). So, NSA can be considered applicable to R2P, as can terrorist organisations, which represents an overlap between the doctrine and counter terrorism. However, this only accounts for the international legal basis for their protection responsibilities, and we must therefore also account for the committing of atrocity crimes by NSA.

Non-state actors, as well as having protection responsibilities, also relate to R2P through their committing of atrocity crimes. Terrorist attacks and atrocity crimes can often overlap, where atrocities are adopted as a terror tactic because they garner publicity and attention and represent a challenge to international and national authorities (Karlsrud, 2019; Luck, 2015; Matthews and Mulcair, 2015; Zimmerman, 2020). Luck appears to suggest that the committing of atrocities as part of terrorist tactics is a challenge to R2P itself (Luck, 2015). To demonstrate this, violence committed by IS in the territory that it controls across Syria and Iraq is widely believed to be tantamount to atrocity crimes (Bellamy, 2015; Luck, 2015; Matthews and Mulcair, 2015; Ralph, 2015; Welsh, 2016; Zimmerman, 2020). Specifically, the terrorist organisation has been accused of committing genocide against Yazidi peoples and for having attempted the ethnic cleansing of Shi’ite, Alawite, Christian and moderate Sunni populations (Bellamy, 2015). The UN Office of the High Commissioner for Human Rights has claimed that terrorist acts committed by IS and its affiliate organisations in Iraq may constitute war crimes and crimes against humanity (Office of the United Nations High Commissioner for Human Rights, 2015). Here, then, IS has been accused of committing the full spectrum of atrocity crimes in a territory in which it has a legal R2P. Indeed, Bellamy emphasises that acts of terrorism must fall under the remit of R2P as well as counter terrorism because, when they constitute atrocity crimes, they are essentially the same phenomenon: mass violence against civilians (Bellamy, 2015). Therefore, NSA can be viewed as applicable to R2P through atrocity crimes committed by them. Bellamy’s assertion, however, conceals a wider issue: if terrorist acts fall under the jurisdiction of both R2P and counter terrorism then their interaction is inevitable – this is what the remainder of the paper will address. While this analysis may lead one to think that R2P and counter terrorism are complimentary and mutually reinforcing doctrines, it will be argued that they are not compatible. A significant reason for this is the fundamentally different logics underpinning them.

The Contradictory Logics of R2P and Counter Terrorism

The underlying logics of R2P and counter terrorism have considerable implications for their relationship. Zimmerman contends that, with counter terrorism’s ongoing shift from its original state-centric focus toward a more human rights focus, the two doctrines are increasingly compatible (Zimmerman, 2020). Because they both emphasise the primacy of the state as the first responder but also instil obligations on the international community to act when necessary, it is suggested that they share a conceptual basis and are mutually-reinforcing (Zimmerman, 2020). Whilst I agree with Zimmerman’s assertion that there are overlaps in the prescriptions for preventing both atrocities and acts of terrorism, such holistic measures have hardly been implemented (Karlsrud, 2019). Indeed, Pillar Two of the UN Global Counter-Terrorism Strategy (UN General Assembly, 2006), which largely concerns direct military operations, has been considerably prioritised over the other components (Karlsrud, 2019; Ki-Moon, 2016). Therefore, the conceptual shift of counter terrorism toward human rights does not seem to have materialised in practice. Zimmerman acknowledges this to a certain extent but insists on emphasising the increasingly clear link between counter terrorism and human rights, and therefore with R2P – which this paper disagrees with (Zimmerman, 2020). This deals with only the methods that might be employed by the two doctrines in the pursuit of their aims – whilst this is important to consider, as will be done to a greater extent later in the paper, this raises the question of what the aims of R2P and counter terrorism are.

Now that it has been established that counter terrorism remains largely conceptually state-centric, its underpinning logic can be identified and juxtaposed with that of R2P. Counter terrorism emphasises the state-centric tenets of non-intervention against a sovereign state and that the nation-state’s monopoly on the use of force should be consolidated (Gallagher and Lawrinson, Forthcoming; Zimmerman, 2020). R2P, on the other hand, derives from moral considerations that privileges human rights and human protection (Gallagher and Lawrinson, Forthcoming; Welsh, 2016). With these two different standpoints, it can be observed that counter terrorism and R2P conceive of security differently. On the one hand, counter terrorism, which emphasises state-centricity, considers security as that of the state in that it seeks to protect and reinforce its sovereignty and territorial integrity (Welsh, 2016; Zimmerman, 2020). On the other hand, R2P conceptualises security as that of the individual and of populations against mass violence; human security is as important as the security of the state and, indeed, state sovereignty becomes conditional on the fulfilment of this (ICISS, 2001; Rhoads, 2019; Welsh, 2016). Whilst it will be maintained that R2P and counter terrorism do not possess mutually reinforcing logics, their individual conceptual foundations are more complex than the state-centric versus human-centric dichotomy that this might imply. This argument will be expanded upon fully in the following section, but it will be argued that R2P is human-centric in its interpretation of security but bound by state borders in its approach to ensuring this conceptualisation of security. This also somewhat reconciles the debate as to whether R2P is human- or state-centric. Counter terrorism, on the other hand, is considered state-centric in how it defines security, but it transcends the boundaries of states in its approach to ensuring the security of them. Therefore, there is a clear conceptual conflict between the two. If they were to be implemented alongside each other under the assumption that they are complimentary, their contradictory logics would mix in a detrimental manner and work against each other, risking the overriding of R2P’s protection by the national security regime (Luck, 2015; Welsh, 2016). Ralph makes the astute point that, with counter terrorism being inherently national interest-based, self-interestedness could seep into R2P and thereby compromise its legitimacy (Ralph, 2015). It could allow states to claim that they are fulfilling their R2P through counter terrorism operations which, because of their opposing logic, do not constitute these protective measures (Ralph, 2015). These tensions can be seen playing out in the context of Mali where R2P – embodied in the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) – emphasises protecting the population from atrocities committed by both the Malian government and the jihadist terrorist and Tuareg rebel groups, while counter terrorism prioritises the restoration of Mali’s territorial integrity through the Sahel-wide Operation Barkhane and its French predecessor Serval (Charbonneau, 2019; Gallagher and Lawrinson, Forthcoming; Karlsrud, 2017; Karlsrud, 2019). The contrast in logics and purposes is clear which, therefore, serves to demonstrate the incompatibility of R2P and counter terrorism.

Yet whilst R2P and counter terrorism exhibit contradictory logics, reality shows they coexist in practice, as most clearly seen in Mali (Gallagher and Lawrinson, Forthcoming). Indeed, the question is not whether the two doctrines can coexist, but how they might coexist: because of the changing nature of conflict, and that UN peace operations are increasingly deployed in volatile and ongoing situations, R2P and counter terrorism are going to continue to interact. This is problematic due to their incompatible natures, but there must be space for their coexistence as it is inevitable. Establishing a clear division of labour and roles between the two parallel forces would be essential: notably with peacekeepers refraining from excessive use of force and physically distancing themselves from the counter terrorism operation (Andersen, 2018; Rhoads, 2019). MINUSMA has been coordinating and sharing intelligence with Operation Barkhane and such closeness should be avoided (Gallagher and Lawrinson, Forthcoming; Griffen, 2016; Karlsrud, 2015). Resolving the tensions between R2P and counter terrorism will prove to be very difficult, as often solutions that are implemented to improve peacekeeping produces a host of new issues that require addressing. For instance, Western militaries’ return to UN peacekeeping has been long-awaited by some, but their participation in MINUSMA has produced more concerns with excessive use of force as advanced military technology is employed in an increasingly combative nature (Karlsrud, 2015). This seems to have been exacerbated by the presence of terrorist groups in Mali. Therefore, interaction between R2P and counter terrorism is inevitable and – with their incompatibility in mind – efforts should be made to reconcile their tensions, in order to minimise the damage inflicted to R2P.

The Transnational Nature of Terrorism and Counter Terrorism

The regional nature of terrorism holds significant implications for R2P because the doctrine’s approach is state-centric: it can address atrocities only within the geographical borders of the state in which it is authorised to do so. If a regional terrorist group commits atrocity crimes within the borders of another state – where R2P is not authorised to act – then this threat poses a considerable challenge to R2P. Terrorism is becoming increasingly regional in nature, defying state borders which traditionally demarcate the geographical boundaries of conflict; Boko Haram, al-Shabab and IS are often cited as typical regional terrorist groups (Bere, 2017; Charbonneau, 2017; Karlsrud, 2019; Matthews and Mulcair, 2015). The situation in Mali demonstrates the regional nature of terrorism with attacks being launched from Mali’s territory against neighbouring states, particularly Burkina Faso, Niger and Cˆote d’Ivoire (Bere, 2017). Indeed, Operation Barkhane and the G5 Sahel Joint Force were deployed to counter the increasingly regional threat terrorism poses to the Sahel region (Charbonneau, 2017; Charbonneau, 2019; Karlsrud, 2017). Beyond the incidence of violence, the spreading of extremist ideologies can also become a regional problem. In Mali, the traditional Maliki Islam has been influenced and increasingly overridden by Wahhabi Islam, originally from the region around the Persian Gulf, which is forming the basis of the extremist jihadist ideology inspiring terrorist acts in the Sahel (Karlsrud, 2019).

This reveals more about the state-centricity of counter terrorism as its methods appear to transcend national borders, more than its fundamental logic might imply. R2P faces a problem here if a terrorist organisation commits atrocities against civilians on a regional scale because its prescriptions and responses are limited to the borders of the state in which the violence was committed. In this sense, R2P may encounter difficulty in assembling a regional response to atrocity crimes as this would rely on the willingness of states to cooperate. This expands upon the argument posed in the previous section that R2P and counter terrorism are state-centric in different respects. Counter terrorism, in its privileging of the security and sovereignty of the nation-state, is state-centric in what it seeks to secure. However, due to the transnational nature of the terrorist threat, its approach in ensuring this security transcends this state-centrism by engaging in conflict on a regional scale. On the other hand, R2P emphasises the security of the individual and, in this sense, can be considered more human-centric, while its ability to respond to threats that endanger this individualised security are more restricted by state borders. Therefore, R2P and counter terrorism, in different ways, both challenge and reinforce state-centricity and this demonstrates further the conceptual incompatibility of the two doctrines. Moreover, insight into NSA’s protection responsibilities can also be gleaned from the implications of borderless terrorism: it suggests that a NSA can acquire sovereignty – and, therefore, a R2P – from multiple states if the territory that it controls transcends national borders. IS is the archetypal example of this, with its monopoly on force having stretched across the Iraqi-Syrian border (Matthews and Mulcair, 2015).

The regional nature of counter terrorism also has consequences for state sovereignty and intervention. Charbonneau argues that by emphasising the transnational nature of a terrorist threat, counter terrorism operations are able to claim that they are not interfering in a sovereign state’s internal affairs (Charbonneau, 2017). For instance, Operation Barkhane possesses an unprecedented level of freedom of movement across regional borders in the Sahel (Charbonneau, 2019). This allows counter terrorism – and specifically, Operation Barkhane – to bypass the traditional debates around sovereignty and intervention that other international doctrines are often subjected to and frustrated by (Charbonneau, 2017). R2P is certainly one of these doctrines, as it is the target of much contestation by the international community (Rhoads, 2019). This could, perhaps, mean that counter terrorism has the potential to override R2P due to it avoiding these international debates as it allows it to respond to an act of violence swiftly, while R2P may be still being subjected to contestation. This argument will be explored more in the following section, as avoiding the contestation around sovereignty and intervention might, in part, explain why counter terrorism seems to take precedence over R2P.

Counter Terrorism Taking Precedence Over R2P

Luck highlights that although R2P may have a theoretically close relationship with other norms, parallel implementation can be more complex as other doctrines can often be privileged over it (Luck, 2015). This appears relevant to R2P’s relationship with counter terrorism as the threat of terrorists often seems to take priority for states, with the chances of international assistance or intervention being much higher if there is a threat of terrorism rather than a threat of mass violence (Ralph, 2015). It appears as though a discursive division can, and has been, established between R2P and counter terrorism through labelling acts of violence that constitute atrocity crimes as terrorism, thereby placing the response exclusively within the realm of counter terrorism (Zimmerman, 2020). This has the effect of subordinating R2P to other doctrines and infers that terrorist threats are of a higher priority than atrocities, even when, paradoxically, the act of terrorism qualifies as an atrocity crime. This also serves to demonstrate that the doctrines are not compatible.

Relatedly, this prioritisation of terrorism can also serve to undermine R2P when atrocities are committed in the name of counter terrorism. For example, during the Sri Lankan government’s war against the Liberation Tigers of Tamil Eelam both sides of the conflict committed atrocities against civilians (Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 2011; Zimmerman, 2020). However, the UN Security Council (UNSC) predominantly condemned the Liberation Tigers and rarely the government because it was able to invoke counter terrorism and thereby downplay its committing of atrocities – Sri Lanka even claimed that R2P supported their counter terrorism campaign because it contributed to protecting civilians (Zimmerman, 2020). We observe here how the UNSC became caught between the contradictions of these two doctrines, to the detriment of R2P. Therefore, these norms should not be considered complimentary as counter terrorism has served to undermine the central function of R2P in the prevention of and accountability for atrocity crimes. This echoes Charbonneau, who claims that the label of terrorist seems to set the boundaries for what is legitimate violence and what is not: which is further analysed later in this paper (Charbonneau, 2017).

Impartiality

The Increasing Use of Force in UN Peacekeeping

The use of force has been a central point around which contestation of peacekeeping has revolved (Andersen, 2018; Karlsrud, 2015; Rhoads, 2019; Tardy, 2011). Over the last two decades this debate has evolved through different phases, moving from the so-called crisis of confidence in the 2000s to the crisis of overstretch in the 2010s (Andersen, 2018). This conceptual vacuum led to the Panel on United Nations Peace Operations, resulting in the 2000 Brahimi Report which birthed the concept of ‘robust peacekeeping’ as the solution for protecting civilians (Panel on United Nations Peace Operations, 2000). Robust peacekeeping is broadly understood as peacekeeping missions with freedom of movement and the means to protect itself and prevent spoiling of the mission mandate – intended to confer a greater degree of credibility on the institution of peacekeeping (Panel on United Nations Peace Operations, 2000; Tardy, 2011). However, the Brahimi Report, while very significant, did not resolve the UN’s crisis of confidence and while debate continued, peacekeeping began yet again to shift into new territory – into what Karlsrud argues is peace enforcement (Karlsrud, 2015; Tardy, 2011). The crisis of overstretch, also coined the ‘pragmatic turn’, represented a doctrinal shift with the principal change centring around the increase in targeted military action (Andersen, 2018; Karlsrud, 2015). Whereas, previously, the use of force in peacekeeping was exercised limitedly and within tight legal parameters under Chapter 7 of the UN Charter, force was now being built into mission mandates and, further, specific targets began to be identified for this military action (Karlsrud, 2015; Rhoads, 2019). For example, since stabilisation has been written into MINUSMA’s mandate, it has constituted peace enforcement having been mandated, essentially, to militarily engage the jihadist group Al-Qaeda in the Maghreb (Karlsrud, 2015). It can be proposed here that perhaps MINUSMA was pushed into the terrain of peace enforcement not only because of the incidence of terrorist groups in the Malian conflict, but because of the counter terrorism operations against them. Peacekeeping missions, therefore, have been pushed into a realm for which they were not designed. The High-Level Independent Panel on Peace Operations (HIPPO) sought to explicitly resist this transition and emphasised a political and enabling role for the UN (Andersen, 2018; HIPPO, 2015). Beyond this, the increasingly militarised role for the UN challenges the traditional principles of peacekeeping: impartiality, host state consent and minimum use of force become at risk from a militarily aggressive peacekeeping mission (Andersen, 2018; Karlsrud, 2015; Karlsrud, 2019; Rhoads, 2019). The violation of these principles through robust peacekeeping undermines the protection of civilians, as will be revealed later in the paper (Karlsrud, 2015; Rhoads, 2019; Tardy, 2011). If, then, we maintain that the UN should be impartial and employ minimum use of force, it becomes clear that counter terrorism would conflict with this – and by extension, R2P. The remainder of the paper will address this.

Peacekeeping Missions and Counter Terrorism Operations

Considering Gallagher and Lawrinson’s assessment that R2P and peacekeeping are congruent doctrines because peacekeeping operationalises R2P, it seems prudent that R2P is discussed regarding counter terrorism and impartiality (Gallagher and Lawrinson, Forthcoming). Peacekeeping and counter terrorism have been deployed alongside one another and there are increasingly vocal calls from the international community for the UN to begin conducting both operations themselves using peacekeepers (Karlsrud, 2017; Karlsrud, 2019). However, UN counter terrorism operations would be highly problematic because they, at their core, involve the identification and suppression or neutralisation of an enemy, which would severely damage the traditional UN principle of impartiality (Andersen, 2018; HIPPO, 2015; Karlsrud, 2017; Karlsrud, 2019; Rhoads, 2019). Indeed, the UN would come to be viewed as a party to the conflicts it is attempting to mediate (Andersen, 2018; Karlsrud, 2019; Rhoads, 2019). This would be detrimental for R2P as, if the UN is considered to be involved in the conflict or to be partial, it could put civilians in greater danger by inciting retaliation against peacekeepers whom civilians may be near to (Andersen, 2018; Karlsrud, 2015; Rhoads, 2019; Tardy, 2011). For instance, MINUSMA’s peacekeepers have been repeatedly targeted by terrorist groups resulting in a death toll of two-hundred and six, as of October 2019 (Charbonneau, 2017; Gallagher and Lawrinson, Forthcoming; Karlsrud, 2019; United Nations, 2019b). Retaliation may also occur against sectors of the population that the UN is perceived to favour: particularly, in South Sudan, the government has – by restricting and monitoring the UN Mission in South Sudan’s (UNMISS) freedom of movement – been able to identify the location of civilians by knowing where peacekeepers are operating (Rhoads, 2019). With the South Sudanese government being a significant committer of atrocity crimes, this, therefore, endangers civilians (Griffen, 2016; Rhoads, 2019). The UNSC has also stated that these attacks may constitute war crimes (UN, 2019a), which compromises R2P further by potentially inciting atrocity crimes which then go unaccounted for. These concerns have become increasingly salient with the realisation that the UN, in both Mali and South Sudan, is increasingly viewed as not only a party to the conflict but a part of the Global War on Terror, rendering peacekeepers even more attractive targets for terrorist organisations (Karlsrud, 2019).

Complicity in Atrocity Crimes

Impartiality proves difficult when several parties to the conflict are involved in the committing of atrocity crimes, especially so when one of these parties is the host state (Luck, 2015; Welsh, 2016). This moral hazard becomes more complicated when the host state requests Pillar Two assistance under R2P against a NSA when both sides are implicated in mass violence (Welsh, 2016). The implication here is that the UN could end up supporting actors complicit in atrocity crimes, thereby becoming complicit themselves. For instance, in South Sudan the government has been one of the most significant committers of atrocities, while the Malian government has committed human rights violations potentially amounting to atrocity crimes (Bere, 2017; Griffen, 2016; Karlsrud, 2019; Rhoads, 2019). In such situations, it is advised that peacekeeping should terminate state-building activities so as to avoid strengthening governments complicit in atrocities and preserve impartiality and R2P (Andersen, 2018). While the pragmatic turn in UN peacekeeping has involved a receding role in state-building, it has encouraged missions to extend state authority – for instance, MINUSMA – (Andersen, 2018; Griffen, 2016; Karlsrud, 2015) which becomes problematic when R2P and counter terrorism are implemented as parallel operations. Indeed, with the recognition that the South Sudanese government had manifestly failed its R2P by committing atrocities against its own population, the UNSC stripped UNMISS of its state-building mandate with Resolution 2155 (Rhoads, 2019; United Nations Security Council, 2014). This communicated a clear message: that the UN would not support a host state guilty of perpetrating mass violence. While this was important for R2P, the resultant deteriorating relationship between UNMISS and the government produced a host of new challenges – perhaps most importantly, the exclusion of the UN from the politics of the peace process (Rhoads, 2019). This demonstrates, therefore, that attempting to reconcile the consequences of the interaction between counter terrorism and R2P has limited success, reinforcing their incompatibility and that, ideally, they should not be interacting in the first place. Of course, however, they are destined to. Further, Operation Barkhane replaced Serval to allow collaboration between France, Mali and its neighbouring states in the Sahel to confront the regional terrorist threat (Charbonneau, 2017; Charbonneau, 2019; Gallagher and Lawrinson, Forthcoming; Karlsrud, 2017; Karlsrud, 2019). This has meant that counter terrorism operations in Mali have been cooperating with states with a record of human rights violations, particularly Chad and its own Operation Epervier (Amnesty International, 2018; Bere, 2017). This is problematic for R2P because it can be observed again how its relationship with counter terrorism can involve it in human rights violations.

The Politicised Label of Terrorism

The use of the label of terrorism – and, by extension, counter terrorism – is problematic for R2P. Terrorism is an inherently political term as it entails moral judgements on certain actors which then affect the legitimacy that actor is granted (Andersen, 2018; Bere, 2017; Charbonneau, 2017; Charbonneau, 2019). This becomes difficult as terrorism is not a stable concept and is highly contested, therefore the label is at risk of being applied inconsistently and politically (Andersen, 2018; Karlsrud, 2019). The UN has shifted its rhetoric from counter terrorism to preventing violent extremism in order to avoid its toxicity and the connotations of the Global War on Terror, and this has proven less controversial than the terrorism narrative – portraying its politicised nature (Karlsrud, 2019). The implication here is – returning to Charbonneau – that the label of terrorist is able to set the boundaries of legitimate and illegitimate violence (Charbonneau, 2017; Charbonneau, 2019). This has significant consequences for R2P because if counter terrorism has the power to determine the legitimacy of violence, this could override R2P’s ability to condemn atrocity crimes and hold perpetrators accountable for them. Therefore, if a NSA has been depoliticised and delegitimised by being labelled as terrorists, this could allow the state to wield legitimate violence – in the name of counter terrorism – irrespective of the scale or severity of it (Charbonneau, 2017). This violence could be tantamount to atrocity crimes, but R2P might not be able to confront it because of the guise of counter terrorism – this, therefore, presents a considerable challenge to R2P. We observed this scenario earlier with respect to Sri Lanka (Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 2011; Zimmerman, 2020). Furthermore, a potential result of this toxicity of the labelling of terrorism is that UN peacekeeping missions could be susceptible to manipulation by host states in their operationalisation by aiming it toward political opposition that they have labelled terrorists – a possibility Karlsrud cautions against (Karlsrud, 2019). It could be argued that this was attempted in Mali but MINUSMA has, to a large extent, been able to resist the government’s demands for it to militarily engage jihadists and Tuareg rebels in the North, with the exception of Al-Qaeda in the Maghreb perhaps (Bere, 2017; Charbonneau, 2017; Karlsrud, 2019). Therefore, the terrorism label illustrates that R2P can be marginalised and disarmed by the politicised nature of counter terrorism, reinforcing that they should be maintained as separate.

Conclusion

This paper has argued that R2P and counter terrorism hold an incompatible relationship. Their contradictory underpinning logics and the consequences of their parallel operationalisation in practice serves to illustrate this argument. There are points of overlap, however – such as terrorist organisations potentially having protection responsibilities and being able to commit atrocity crimes – but these should not be understood as evidence of their compatibility. Instead, they highlight that the two doctrines are inevitably going to clash – as they are increasingly invoked and implemented alongside one another – and therefore demonstrate the need for this relationship to be examined and managed both conceptually and in practice. This is all the more urgent when counter terrorism takes precedence over R2P and disarms it with terrorism’s highly politicised nature, inhibiting R2P’s fundamental purpose of identifying and responding to atrocity crimes. Therefore, R2P and counter terrorism’s separate and contradictory nature should be emphasised in order to preserve R2P’s mission and legitimacy, particularly in light of the realisation that the doctrines are going to increasingly interact.

Bibliography

Abebe, A. M. 2011. Al-Shabaab’s responsibility to protect civilians in Somalia. [Online]. [Accessed 3rd January 2020]. Available from: https://www.fmreview.o rg/non-state/Abebe

Amnesty International. 2018. Chad 2017/2018. [Online]. [Accessed 12th January 2020]. Available from: https://www.amnesty.org/en/co untries/africa/cha d/report-chad/.

Andersen, L. R. 2018. The HIPPO in the room: the pragmatic push-back from the UN peace bureaucracy against the militarization of UN peacekeeping. International Affairs. 94 (2), pp. 343-361.

Bellamy, A. 2015. The Islamic State and the case for Responsibility to Protect. [Online]. [Accessed 26th November 2019]. Available from: https://www.openca nada.org/features/the-islamic-state-and-the-case-for-responsibility-to-protect/.

Bere, M. 2017. Armed Rebellion, Violent Extremism, and the Challenges of International Intervention in Mali. African Conflict and Peacebuilding Review. 7 (2), pp. 60-84.

Charbonneau, B. 2017. Intervention in Mali: building peace between peacekeeping and counterterrorism. Journal of Contemporary African Studies. 35 (4), pp. 415-431.

Charbonneau, B. 2019. The Military Intervention in Mali and Beyond: An Interview with Bruno Charbonneau. [Online]. [Accessed 3rd January 2020]. Available from: https://www.oxfordresearchgroup.org.uk/blog/the-french-inter vention-in-mali-an-interview-with-bruno-charbonneau.

Day, A., Hunt, C. T., Kumalo, L. and Yin, H. 2019. Assessing the Effectiveness of the UN Mission in South Sudan (UNMISS). [Online]. Oslo: Norwegian Institute of International Affairs. [Accessed 5th January 2020]. Available from: https://effectivepeaceops.net/wp-content/uploads/2019/07/EPON-UNMISS-Report-Executive-Summary.pdf.

Di Razza, N. 2019. Massacre in Mali Demonstrates Need to Prioritize Protection of Civilians in MINUSMA’s Mandate. [Online]. [Accessed 3rd January 2020]. Available from: https://theglobalobservatory.org/2019/04/massacre-mali-demo nstrates-need-prioritize-protection-civilians-minusma/.

Gallagher, A. 2017. Peacekeeping in South Sudan: One year of lessons from under the blue beret (Review). African Affairs. 116 (465), pp. 721-722.

Gallagher, A. and Lawrinson, B. Forthcoming. Norm Cluster or Clusterfuck? Analyzing human protection and counterterrorism norm interaction in Mali (2013-2018).

Griffen, A. 2016. South Sudan. In: Bellamy, A. and Dunne, T. eds. The Oxford Handbook of the Responsibility to Protect. Oxford: Oxford University Press, pp. 857-875.

High-Level Independent Panel on Peace Operations. 2015. Report of the High-level Independent Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people (17th June 2015). [Online]. A/70/95 – S/2015/446. [Accessed 5th January 2020]. Available from: https://peacekeeping. un.org/en/report-of-independent-high-level-panel-peace-operations.

International Commission on Intervention and State Sovereignty. 2001. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty. [Online]. Ottawa: International Development Research Centre. [Accessed 29th December 2019]. Available from: http://responsibilityto protect.org/ICISS%20Report.pdf.

Karlsrud, J. 2015. The UN at war: examining the consequences of peace-enforcement mandates for the UN peacekeeping operations in the CAR, the DRC and Mali. Third World Quarterly. 36 (1), pp. 40-54.

Karlsrud, J. 2017. UN Peacekeeping and Counter-terrorism. [Online]. [Accessed 7th December 2019]. Available from: https://www.oxfordresearchgroup.org.uk/ Blog/un-peacekeeping-and-counter-terrorism.

Karlsrud, J. 2019. UN Peace Operations, Terrorism, and Violent Extremism. In: de Coning, C. and Peter, M. eds. United Nations Peace Operations in a Changing Global Order. Cham, Switzerland: Palgrave Macmillan, pp. 153-167.

Ki-Moon, B. 2009. Report of the Secretary-General: Implementing the Responsibility to Protect (12th January 2009). [Online]. A/63/677. [Accessed 7th January 2020]. Available from: https://www.un.org/ruleoflaw/files/SG reportA 63677 en.pdf.

Ki-Moon, B. 2016. UN Secretary-General’s Remarks at General Assembly Presentation of the Plan of Action to Prevent Violent Extremism [As Delivered]. [Online]. [Accessed 12th April 2020]. Available from: https://www.un.org/sg/ en/content/sg/statement/2016-01-15/un-secretary-generals-remarks-general-as sembly-presentation-plan

Luck, E. 2015. The Responsibility to Protect at Ten: The Challenges Ahead. [Online]. [Accessed 5th December 2019]. Available from: https://stanleycenter. org/publications/pab/LuckPAB515.pdf.

Matthews, K. and Mulcair, C. 2015. R2P10: The Responsibility to Protect and Counter-terrorism. [Online]. [Accessed 26th November 2019]. Available from: https://icrtopblog.org/2015/07/22/r2p10-the-responsibility-to-protect-and-counter-terrorism/.

Office of the United Nations High Commissioner for Human Rights. 2015. Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups (27th March 2015). [Online]. A/HRC/28/18. [Accessed 3rd January 2020]. Available from: https://digitallibrary.un.org/record/791021?ln=enrecord-files-collapse-header

Panel on United Nations Peace Operations. 2000. Report of the Panel on United Nations Peace Operations (21st August 2000). [Online]. A/55/305-S/2000/809. [Accessed 9th March 2020]. Available from: https://www.un.org/en/events/past events/brahimi report.shtml.

Petrasek, D. 2013. Misinterpreting Mali: The Uses and Abuses of R2P. [Online]. [Accessed 3rd January 2020]. Available from: https://www.cips-cepi.ca/2013/0 2/11/misinterpreting-mali-the-uses-and-abuses-of-r2p/.

Popovski, V. 2011. Siblings, but not twins: POC and R2P. [Online]. [Accessed 3rd January 2020]. Available from: https://unu.edu/publications/articles/siblin gs-but-not-twins-poc-and-r2p.html.

Ralph, J. 2015. R2P10: The Responsibility to Protect and Counter-terrorism: A Response. [Online]. [Accessed 5th December 2019]. Available from: https://icrt opblog.org/2015/09/22/r2p10-the-responsibility-to-protect-and-counter-terrorism-a-response/.

Reeve, R. 2014. Five strategic failures of the French intervention in Mali. [Online]. 28th December 2019]. Available from: https://www.thebrokeronline.eu/fi ve-strategic-failures-of-the-french-intervention-in-mali-d98/.

Rhoads, E. P. 2019. Putting Human Rights up Front: Implications for Impartiality and the Politics of UN Peacekeeping. International Peacekeeping. 26 (3), pp. 281-301.

Richmond, O. P. and Tellidis, I. 2012. The Complex Relationship Between Peacebiilding and Terrorism Approaches: Towards PostTerrorism and a Post-Liberal Peace?. Terrorism and Political Violence. 24 (1), pp. 120-143.

Secretary-General’s Panel of Experts on Accountability in Sri Lanka. 2011. Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka. [Online]. [Accessed 2nd January 2020]. Available from: https://www.securityco uncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/ POC%20Rep%20on%20Account%20in%20Sri%20Lanka.pdf.

Tardy, T. 2011. A Critique of Robust Peacekeeping in Contemporary Peace Operations. International Peacekeeping. 18 (2), pp. 152-167.

United Nations General Assembly. 2005. Resolution 60/1: 2005 World Summit Outcome (24th October 2005). [Online]. A/RES/60/1. [Accessed 29th December 2019]. Available from: https://www.un.org/en/development/desa/populati on/migration/generalassembly/docs/globalcompact/A RES 60 1.pdf.

United Nations General Assembly. 2006. Resolution 60/288: The United Nations Global Counter-Terrorism Strategy (20th September 2006). [Online]. A/RES/60/288. [Accessed 12th April 2020]. Available from: https://undocs.org /en/A/RES/60/288

United Nations Security Council. 2014. Resolution 2155: Revision of the mandate of UNMISS to focus on protection of civilians, facilitation of humanitarian access and human rights verification and monitoring (27th May 2014). [Online]. S/RES/2155. [Accessed 7th January 2020]. Available from: https://www.securitycouncilreport.org/un-documents/document/sres2155.php.

United Nations. 2019a. Two peacekeepers killed in an attack against UN convoy in Mali. [Online]. [Accessed 8th January 2020]. Available from: https://news.un. org/en/story/2019/01/1031342.

United Nations. 2019b. Fatalities. [Online]. [Accessed 8th January 2020]. Available from: https://peacekeeping.un.org/en/fatalities.

Welsh, J. M. 2016. R2P’s Next Ten Years: Deepening and Extending the Consensus. In: Bellamy, A. J. and Dunne, T. eds. The Oxford Handbook of the Responsibility to Protect. Oxford: Oxford University Press, pp. 984-999.

Zimmerman, S. 2020. Strange Bedfellows: Terrorism/Counter-terrorism and the Responsibility to Protect. In: Hunt, C., and Orchard, P. eds. Constructing the Responsibility to Protect: Contestation and Consolidation. Boca Raton, Florida: CRC Press.

Realpolitik vs. Human Rights’ Protection: The Rohingya Crisis and The Failure of the Responsibility to Protect

Diletta Alparone, University of Leiden, the Netherlands

Diletta graduated with a 1st class degree from the University of Exeter (UK), and is now doing an MSc in International Relations Diplomacy at the University of Leiden. She is also interning at the OPCW department of the Mexican Embassy in the Netherlands.

Abstract

After the massacres of Rwanda and Srebrenica, the international community claimed a solemn “Never Again” – never again it will permit such overt human suffering without doing anything to stop it. The Responsibility to Protect (R2P) was adopted in 2005, as a response to Kofi Annan’s call for justice and humanity. Nevertheless, while R2P presented successful cases like Kenya (2008) and Cote D’Ivoire (2011), the Rohingya case in Myanmar exemplifies the deep inconsistencies of its application. The Rohingya people have been suffering from state-sponsored destruction and a slow-burning genocide, evidencing a form of laissez-passer from the international community. This paper looks at the factors which have led to the international community’s failure to apply the Responsibility to Protect in Myanmar, claiming that the over-dependence on the UNSC consensus, as well as the presence of broader political and economic considerations, have weakened the demand for R2P in Myanmar.

Introduction

“We cannot let the evil of ethnic cleansing stand. [. . . ] If we let an evil dictator range unchallenged, we will have to spill infinitely more blood and treasure to stop him later. . . ” (Blair, 1999).

The Responsibility to Protect (R2P) was born as a reaction to the systematic violation of human rights in Rwanda and Srebrenica and embodied the international community’s commitment to “never again” stand in front of gross human suffering without doing anything to halt it. The R2P was unanimously accepted by 150 heads of states at the 2005 United Nations (UN) World Summit, but despite its adoption, the R2P has been applied inconsistently (Paris, 2014, p. 570). R2P presents successes such as Kenya in 2008 and Cote d’Ivoire in 2011, but also failures such as Sri Lanka in 2009, Syria since 2011 (Evans, 2015, p. 7) and Myanmar, where the Rohingya population has been subject to state-sponsored destruction and slow-burning genocide, as reported by Zarni and Cowley (2014, p. 681).

This paper focuses on the application of R2P concerning the Rohingya crisis in Myanmar. More specifically, it looks at the multidimensional reasons behind the laissez-passer of the international community in the face of overt human suffering. The paper thus examines the factors which led to the international community’s failure to apply the Responsibility to Protect in Myanmar. It argues that the international community failed to apply R2P for two main reasons; first, China’s veto and the United Nation’s over-dependence on Security Council consensus for action; and second, the presence of broader political and economic considerations which diluted the need for R2P-related action.

This paper is split into four sections. First, I introduce the theory and debate around the Responsibility to Protect. Second, I provide the historical background of the Rohingya crisis and examine how the Rohingya case is suitable for R2P application. Third, I analyse, in two separate sections, the reasons which obstructed R2P’s application. Finally, I discuss the main results, suggest how to get over this impasse and draw my conclusions.

The Responsibility to Protect

The R2P was created as a response to the failure of the international community to respond to the civil wars and humanitarian crises in the 1990s (Ibrahim and Nordin, 2015, p. 2). The UN was divided between states claiming that “nothing should authorise intervention in matters essentially within the domestic jurisdiction of any state” (UN Charter art. 2, par. 7, 1945), and those who argued that it is possible to use force “to maintain or restore international peace and security” (U.N. Charter art. 42, 1945). Seeking to reconcile the principles of sovereignty and human rights, the International Commission on Intervention and State Sovereignty (ICISS) published its 2001 report which formed the basis of the Responsibility to Protect norm (ICISS, 2001, vii).

Following its endorsement at the 2005 World Summit, former UN-Secretary-General, Ban Ki-moon, defined the R2P as consisting of three pillars (UN General Assembly, 2009): pillar one being that states have “the primary responsibility to protect their population from genocide, war crimes, crimes against humanity and ethnic cleansing”; pillar two that the international community should “assist states in fulfilling their protection obligations”; and pillar three that “when a state fails to protect its population or is, in fact, the perpetrator of these crimes, the international community has a responsibility to take collective action in a timely and decisive manner . . . ” (UN General Assembly, 2009). R2P has since been endorsed as a “core principle” by states during the yearly R2P debates at the UN General Assembly (UNGA) – even after the military intervention in Libya – signalling the establishment of R2P as an international norm (Evans, 2015, pp. 3-4). R2P supporters are accused of glorifying R2P as a legitimate and fundamental principle to solve a country’s structural problems (van Mulken, 2018, p. 11). They emphasise atrocity prevention rather than reaction, since R2P’s primary means are a case-by-case combination of diplomatic, economic and political efforts, as stated in Chapter VI and VIII of the UN Charter (ibid

However, the recognition of R2P as an international norm has not automatically translated into the norm’s absorption by states (Cunliffe, 2017, p. 478). As claimed by Hehir (2017, p. 338), while pillar one is rooted in existing international law, pillar two and three are not entrenched in any legal framework and have the sole scope to “guide” state behaviour by providing a normative framework. Thus, unless states go through an alteration of their ideational, material and institutional practices, R2P cannot become a constitutive norm (ibid, p. 343). Consequently, if R2P’s application in one country jeopardises another state’s national interests, the “R2P signatory state” will likely act according to realpolitik, prioritising its interests and compromising its interests only if it expects greater future benefits (Khan and Ahmed, 2019). This claim can also explain R2P’s reputation of inconsistency (Orford, 2013, p. 99). While R2P is based on the generous purpose of preventing and protecting against atrocity crimes, states’ interventions are more realistically connected with power and geo-strategic interests (Paris, 2014, pp. 572-573). As a result, it can be assumed that inaction can derive from a threat to a state’s core interests, which can create an impasse; from the lack of economic-political incentives to act, or conversely, by the gains that “non-action” can produce.

States’ “mixed feelings” towards R2P are observable in their overall acceptance of Pillar I and II and their “discomfort” with the implication of Pillar III, as evident in the position of “cautious supporters” such as China and Russia (Garwood-Gowers, 2016, p. 98). Interestingly, China does not outright obstruct R2P, but rather consistently shows its resistance towards non-consensual military operations (Teitt, 2011 p. 302). China maintains that national authorities have primary protection responsibilities and that military action is an extreme “last resort”, to be considered only after the exhaustion of diplomatic, economic and political means of solution (Garwood-Gowers, 2016, p. 104). China reinvigorates its normative position asserting the primacy of sovereignty, non-coercion and non-interference in a state’s internal affairs (Teitt, 2011, p. 301). No humanitarian military action can be pursued without the consent of the host state, demonstrating the moral argument that human rights protection should not be an excuse for violating state sovereignty (van Mulken, 2018, p. 7). China’s resistance towards non-consensual intervention into another sovereign state has been displayed in its use of veto power inside the Security Council. China’s veto is leading R2P supporters to question the Security Council’s legitimacy in arbitering over human rights crises (ibid, p. 11) and to argue that the UNGA should intervene in instances of deadlocks (Khan and Ahmed, 2019, p. 16).

The Rohingya Crisis

“What can we do, Brother, they (the Rohingya) are too many? We can’t kill them all” (Thet Oo Maung, 2012, in Zarni and Cowley, 2014).

From 1978, Myanmar has been pursuing and executing national and state-level plans to exterminate the Rohingya people in Rakhine State, Myanmar (Zarni and Cowley, 2014, p. 689). The Rohingya is a Muslim ethno-regionalist group, who live in a state composed of 90 per cent Buddhist citizens (Rosenthal, 2019, p. 7). Rakhine State is the ancestral home of the Rohingya, but Myanmar sees the Rohingya as “illegal immigrants” and “Bengalis”. Consequently, the Myanmar government decided to exclude the Rohingya from the list of the 135 state-recognised ethnic groups through the 1982 Citizenship Act (Zarni and Cowley, 2014, p. 689). The 1982 Citizenship Act made the Rohingya stateless. It deprived them of their rights to education, health services, freedom of movement, ownership, marriage and procreation (Ibrahim and Nordin, 2015, p. 4). The strong anti-Muslim sentiment cemented among the Buddhist majority caused episodes of intra-communal violence, but one of the most lethal attacks took place in 2012 (Rosenthal, 2019, p. 7). This incident attracted a heavy military response which led to the destruction of villages and the internal displacement of 140,000 Rohingya (ibid).

Notably, these acts of brutality occurred during “Myanmar’s democratic transition”. From 2011, Myanmar has been implementing reforms to democratise the country, modifying the constitution and establishing a quasi-civilian government, co-led by Aung San Suu Kyi and the military (Rosenthal, 2019, p. 7). Yet, Myanmar’s democratisation in no way halted the most extreme attack against the Rohingya. In August 2017, the Arakan Rohingya Salvation Army killed 12 members of the country’s border security, instigating a ferocious military response (Anwary, 2018, p. 96). The military security forces launched a “clearance operation”, during which 660,000 Rohingya were forced to flee, 7000 people died, and many were raped (Rosenthal, 2019, p. 9). The government pushed the remaining Rohingya to move to “security camps” and placed landmines on the borders between Bangladesh and Myanmar to stop the Rohingya from coming back (Anwary, 2018, p. 96). This episode has been described as a “textbook example of ethnic cleansing” (Al Hussein, 2018).

The Rohingya Case and R2P

As outlined by the R2P, if national authorities are not able to protect its people from genocide, war crimes, ethnic cleansing and crimes against humanity, then the international community should intervene to support these people (Arashpuor and Roustaei, 2016, p. 390). For the international community to act, it must ascertain that atrocity crimes have been committed and that the government is failing to protect its population (ibid, p. 390). As demonstrated through the definition of genocide, articulated in Art. 2 of the UN Genocide Convention (1948), the Burmese government has not just failed to protect its people, but it has taken an active part in the perpetration of violence. As explained by Arashpuoir and Roustei’s analysis (2016), the government’s crimes against humanity and intent to destroy the Rohingya is first evidenced by the 1982 Citizenship Act, which stripped them of their collective identity and cultural heritage. The authors claim that the Rohingya have been targeted and killed since 1978 (UN Genocide Convention art. II, part a) and that the group has received serious physical and mental harm due to forced labour and inadequate health rights (UN Genocide Convention art. II, part b) (Arashpuor and Roustaei, 2016, p. 391). The Rohingya have been isolated in apartheid-like “security camps” and denied instruction, deliberately inflicting a poor standard of life to achieve annihilation (UN Genocide Convention art. II, part c); and finally, they have been subject to laws which constrain their marriage and procreation rights (UN Genocide Convention art. II, part d) (Arashpuor and Roustaei, 2016, p. 391).

These acts of violence are clear warning signs which demonstrate the vulnerability of the Rohingya and the failure of its government to protect them. The international community once promised to “never again” stand in front of an act of gross human rights violation without doing anything to stop it. However, the neglect of the Rohingya genocide appears to be a contradiction which requires further examination.

Reasons behind the International Community’s failure to protect the Rohingya

The UN’s structural weakness

Despite the 2005 agreement that affirmed the UNSC’s commitment to take appropriate action when a state openly fails to protect its population, the Security Council has been largely silent on Burma (Global Centre for the Responsibility to Protect, 2010, p. 1). Following the “clearance operations”, diplomats representing the Security Council met with civilian representatives which provided them with satellite evidence and eyewitness reports which showed the violence committed against the Rohingya (Adams, 2019, p. 8). Similarly, Council members participated in several meetings to discuss the underlying sources of conflict in Rakhine State (Adams, 2019, p. 8). The Security Council was clearly conscious of the high degree of violence taking place in Myanmar – however, it took ten weeks for the Security Council to release a Presidential statement that only blatantly emphasised the government’s responsibility to protect its population (ibid, p. 8).

The Presidential statement was watered down by China’s refusal to negotiate any resolution (Joy, 2018, p. 2). China imposed the removal of any reference to the Rohingya’s statelessness and the UN fact-finding missions, reducing the statement’s effectiveness (ibid). China has been vetoing any resolution concerning the Rohingya crisis due to its support of the Burmese authorities and its extensive economic and geopolitical interests in the country (ibid). As expressed by China’s ideological position on humanitarian intervention, any operation supporting the peace process in Myanmar must have the approval and support of Myanmar’s government and people (United States Institute of Peace, 2018, p. 3). The Rohingya issue is considered a matter of internal affairs and any “infringement” would damage China’s foreign policy as well as bring attention to China’s own internal affairs (Joy, 2019, p. 4). Indeed, China likely equates Myanmar’s view of the Rohingya threat to its perception of the Uyghur threat in Xinjiang (United States Institute of Peace, 2018, p. 31). Thus, an R2P resolution in Myanmar would put China’s violation of human rights in the spotlight.

China’s support of R2P in Myanmar would also jeopardize its economic benefits in the region for two reasons. First, China has been assuming a mediating role in the Rohingya issue by ignoring social grievances and claiming that economic underdevelopment is the root cause of the conflict in Rakhine (Joy, 2019, p. 3). Consequently, China has been promoting large-scale infrastructure investments as a means of conflict resolution – as evidenced by the “Kyaukpyu Special Economic Zone” project, which reflects China’s ambition to gain greater access to the Indian ocean and achieve global connectivity (ibid, p. 2). Second, an application of R2P and an achievement of positive peace would downplay China’s economic gains. Indeed, China is benefiting from “neither hot war nor complete peace”: a cessation of fighting would increase its border security and foster its economic investments, however, hostilities between the central government and the Rohingya population increase Beijing’s meddling powers as “friendly neighbour” (United States Institute of Peace, 2018, p. 7). Thus, genuine peace might reduce Beijing’s influence over Naypyidaw and dangerously attract American foreign investments in the region.

As evidenced above, China’s economic and political interests in Myanmar are one of the causes of the Security Council’s impasse. The “UNSC determines whether a specific case poses a threat to international peace [. . . ] or counts as an aggression” (U.N. Charter Art. 39). Thus, as the only legitimate body tasked with the maintenance of international peace and security (Adams, 2019, p. 9), a lack of authorisation from the UNSC constrains the work of the UN High Commissioner on Human Rights (Khan and Ahmed, 2019, p. 7). China’s veto on resolutions and its insistence that the Rohingya issue is Myanmar’s domestic concern created deep inertia in the UN, blocking any enforcement measure (ibid, p. 6). UNSC action was limited to rhetoric, vague statements and refrainment from any tangible diplomatic solution, which demonstrated how the unwillingness of a permanent member can create a complete paralysis in front of gross human rights violations.

Mixed Motives and Policy Misjudgements

The deadlock of the UNSC, due to China’s veto, imposed a hard stop to any concrete resolution concerning the Rohingya humanitarian crisis. China’s position towards R2P is linked to “cautious” and pragmatic behaviour, while the US and European countries are usually described as normative supporters of R2P (van Mulken, 2018, p. 16). Still, it appears that even these actors had economic and political reasons for not encouraging robust R2P related action in Myanmar. Indeed, as part of its “China containment policy”, the United States has been focused on improving its relationship with the Asian countries neighbouring China, as demonstrated by the 1.42 billion USD arms deal with Taiwan (ibid, p. 16). Consequently, introducing new economic sanctions or pressuring to implement R2P would have arguably antagonised Myanmar’s government, going against its “China containment policy” scope (ibid, p. 16). Similarly, the EU had lifted its sanctions on Myanmar, strengthening their bilateral agreements and allocating 688 million to support reforms in education, peacebuilding, governance and rural development (EEAS, 2018, p. 4). The EU preferred a development-based strategy due to its special interests in Myanmar’s regional position, natural resources and investment potentials (ibid). The EU’s approach, therefore, resembled China’s “economic promotion” as a conflict management strategy at the expense of R2P application (ibid).

As a result of Myanmar’s economic potentials for Western states, no country took a strong position in favour of an application of R2P in Myanmar. Due to an overwhelming focus on R2P’s coercive elements, supporters failed to sufficiently emphasise that one of R2P’s core elements is prevention (Kingston, 2015, p. 1164). Despite the lack of a UNSC resolution, states could still engage in atrocity prevention strategies through diplomatic means – however, the absence of a leading actor in the Myanmar case had the effect of curtailing preventive diplomacy efforts. As a fact, France’s leading role during the Central African Republic crisis in 2012 positively pushed for EU preventive action (Smith, 2018, p. 16). Comparably, the prompt response of the Economic Community of West African States (ECOWAS), under the leadership of Senegal, achieved a coordinated mobilisation of regional actors, successfully tackling the humanitarian crisis in the Gambia in 2017 (Adams, 2019, p. 11).

The preventive aspects of R2P were further limited by a significant policy misjudgement. Indeed, the international community’s approach was blinded by the international reputation of Aung San Suu Kyi, the Nobel Peace Prize recipient and Myanmar’s de facto leader from 2016 (Carroll, 2019). Indeed, given Myanmar’s democratic transition after decades of authoritarian military rule, the EU and the US thought that by incentivising conflict prevention and democratic promotion, the human rights’ protection in Myanmar would automatically follow (Staunton and Ralph, 2019, p. 12). However, the use of conventional “conflict prevention tools” were unable to address Rohingya’s vulnerability, since they were not involved in any active conflict despite their ongoing suffering (Staunton and Ralph, 2019, p. 12). Similarly, the focus on “democracy promotion” rather than “atrocity prevention” led the international community to exclusively identify the Rohingya crisis as a “human right challenge” that Myanmar had to tackle as soon as possible to safeguard its democratic transition (ibid). Consequently, the emphasis was not placed on the Rohingya’s suffering, but on the possible jeopardization of Myanmar’s developing democracy (ibid). The implementation of the R2P in Myanmar was therefore subsumed by larger political and economic considerations, particularly the belief that the government was a “necessary partner to bring about a successful political transition in Myanmar” (Smith, 2018, p. 12). As a result, the UN and the EU turned a blind eye in the face of Myanmar’s failure to protect its citizens because they believed that the government would have adjusted its behaviour after further democratisation efforts, thus diluting the need for any R2P-related actions.

Discussion and Conclusion

The Responsibility to Protect was created to halt mass atrocities and prevent the occurrence of humanitarian crises as atrocious as the ones which took place in Kosovo, Somalia and Srebrenica. R2P has subsequently been accepted by the international community – nevertheless, “acceptance” has not translated into the “absorption” of R2P, and it revealed how the absence of a constitutive legal framework “which forces the states to do the right thing” weakened R2P’s efficacy in Myanmar (Hehir, 2017, p. 343). The crimes inflicted on the Rohingya have been described as “a textbook example to ethnic cleansing” (Al Hussein, 2015) and “a slow-burning genocide” (Zarni and Cowley, 2014, p. 681), but the international community has decided to ignore these warning signs by turning a blind eye. While Rosenthal’s (2019) report attributes a “collective responsibility” to the international community for R2P’s failure in Myanmar, China’s unwavering veto in any resolution related to the Rohingya crisis allows pointing an accusing finger at the Asian regional power. China’s behaviour reflects the view of an R2P based on the respect of sovereignty and non-intervention, but it also demonstrates pragmatic realpolitik, a precise predilection for the pursuit of national interest and personal gains.

The deadlock created by the Chinese veto has been further worsened by the Western powers’ economic interest in Myanmar, which has both diminished their willingness to create pressure for the application of R2P, and accentuated R2P’s “inconsistency” problem in the eyes of the world (Paris, 2014, p. 570). Moreover, the absence of strong leadership, which emphasises the non-military aspects of R2P, as well as the international community’s significant policy misjudgements, have further undermined preventive diplomacy efforts in Myanmar. Overall, the West’s biggest mistake consisted in the belief that Myanmar’s government was a necessary piece of the puzzle to end the humanitarian crisis in Rakhine State. For this reason, the government was hardly accepted as a perpetrator.

While R2P’s failure in Myanmar results both from mixed motives and a lack of political will, the biggest obstacle still lies in the UN’s over-dependence on the Security Council’s consensus to undertake any humanitarian action. Given the unlikelihood of China lifting its veto on Myanmar, further research should explore the possibility to apply the “Uniting for Peace” principle in Myanmar’s case. The resolution states that, as a result of the UNSC’s failure to exercise its primary responsibility for the maintenance of international peace and security due to a lack of unanimity, the General Assembly, if supported by half of its members, can take power and make appropriate recommendations for collective measures (U.N. General Assembly res. 377A, 1950). The resolution would de facto enable the UN to overcome the impasse.

While the UN has already failed once in Myanmar, completely mismanaging its humanitarian crisis, the international community has now the chance to redeem itself. What it must do is to find the willingness to use the right tools, the courage to regain public trust, and the strength to reaffirm its foundational pledge of “never again”.

Bibliography

Adams, S. 2019. If Not Now, When? The Responsibility to Protect, the Fate of the Rohingya and the Future of Human Rights. Global Centre for the Responsibility to Protect. Occasional Paper Series. Vol. 8, pp. 1-28

Al Hussein, Z.R. 2018. Darker and more dangerous: High Commissioner updated the Human Rights Council on human rights issues in 40 countries. 11 September, Geneva. Available from: ¡http://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=2204 4LangID=E¿

Anwary, A. 2018. Atrocities against the Rohingya Community of Myanmar. Indian Journal of Asian Affairs. Vol. 31(1/2), pp. 91-102.

Arashpuor, A. and Roustaei, A. 2016. The investigation of committed crimes against Myanmar’s Rohingya and the invoke necessity to the theory of responsibility to protect. Juridical Tribune. Vol. 6 (2), pp. 384-401

Blair, T. 1999. Doctrine of the International Community. 24 April, Chicago. Available from: http://www.britishpoliticalspeech.org/speech-archive.htm?spe ech=279

Carroll, J. 2019. Why the UN failed to save the Rohingya. Al Jazeera. [Online]. 28 June [Accessed 20 December 2019]. Available from: https://www.aljazeera.co m/news/2019/06/united-nations-failed-save-rohingya-190628024749391.html

Cunliffe, P. 2016. The Doctrine of the ‘Responsibility to Protect’ as a practice of political exceptionalism. European Journal of International Relations. Vol. 23(2), pp. 466-486.

European External Action Service. 2018. EU-Myanmar Relations. Factsheets. [Online]. [Accessed 19 December 2019]. Available from: https://eeas.europa.eu /headquarters/headquarters-homepage en/4004/EU-Myanmar%20relations

Evans, G. 2015. Responsibility to Protect Ten Years On. 9 December, South African Institute of International Affairs, Pretoria. Available from: https://www.g-l-f.org/site/g l f/assets/pdf/evans-responsibility to protec -ten years on.pdf

Garwood-Gowers, A. 2016. China’s ‘Responsible Protection’ Concept: Reinterpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes. Asian Journal of International Law. Vol. 6(1), pp. 89-118.

Global Centre for the Responsibility to Protect. 2010. Applying the Responsibility to Protect to Burma/Myanmar. [Online]. Policy Brief. [Accessed 19 December 2019]. Available from: http://responsibilitytoprotect.org/Applying%20the%20Responsibility%20to%20Protect%20to%20Burma%20Myanmar.pdf

Hehir, A. 2017. Utopian in the Right Sense: The Responsibility to Protect and the Logical Necessity of Reform. Ethics and International Affairs. Vol. 17, pp. 335-355.

Ibrahim, H. and Nordin, R. 2015. The Principle of Responsibility to Protect: The Case of Rohingya in Myanmar. Pertanika J. Soc. Sci. Hum. Vol. 23, pp. 1–18

ICISS (International Commission on Intervention and State Sovereignty). 2001. The RtoP: Report of the International Commission on Intervention and State Sovereignty. [Online] Ottawa: International Development Research Center. [Accessed 19 December 2019]. Available from: http://responsibilitytoprotect.org/I CISS%20Report.pdf

Joy, A. 2018. Understanding China’s Response to the Rakhine Crisis”. United States Institute of Peace. Special Report. [Online]. [Accessed 18 December 2019]. Available from: https://www.usip.org/sites/default/files/2018-02/sr419-understanding-chinas-response-to-the-rakhine-crisis.pdf

Khan, M. T. and Ahmed, S. 2019. Dealing with the Rohingya crisis: The relevance of the general assembly and R2P. Asian Journal of Comparative Politics. pp. 1-23.

Kingston, L.N. 2015. Protecting the world’s most persecuted: the responsibility to protect and Burma’s Rohingya minority. The International Journal of Human Rights. Vol. 19 (8), pp. 1163-1175

Orford, A. 2013. Moral Internationalism and the Responsibility to Protect. European Journal of International Law. Vol. 24(1), pp. 83–108.

Paris, R. 2014.The ‘Responsibility to Protect’ and the structural problems of preventive humanitarian intervention. International Peacekeeping. Vol. 21(5), pp. 569-603.

Rosenthal, G. 2019.A Brief and Independent Inquiry into The Involvement of The United Nations in Myanmar from 2010 To 2018. [Online]. Office of the UN Secretary General. pp.1-36. [Accessed 20 December 2019]. Available from: https://digitallibrary.un.org/record/3809543

Smith, K. 2018. The EU and the Responsibility to Protect in an Illiberal Era. [Online]. Dahrendorf Forum IV Working Paper No. 03. pp. 1-28. [Accessed 20 December 2019]. Available from: https://www.dahrendorf-forum.eu/wpcontent/uploads/2018/08/EU-and-RTP-in-an-illiberal-era.pdf

Staunton, E. and Ralph, J. 2019. The Responsibility to Protect norm cluster and the challenge of atrocity prevention: an analysis of the European Union’s strategy in Myanmar. European Journal of International Relations. pp. 1-27.

Teitt, S. 2011. The Responsibility to Protect and China’s Peacekeeping Policy. International Peacekeeping. Vol. 18(3), pp. 298-312.

United Nations. 1945. Charter of the United Nations. 24 October. [Online].1 UNTS XVI. Available at: https://www.refworld.org/docid/3ae6b3930.html [accessed 12 March 2020]

United Nations General Assembly.1950. Resolution adopted by the General Assembly at its 5th plenary meeting”. (19 September to 15 December). [Online]. A/1775. Available from: https://www.un.org/en/ga/search/view doc.asp?sym bol=A/1775%20(Supp)

United Nations General Assembly. 2005. Resolution 60/1: 2005 Word Summit Outcome. Sixtieth Session. (16 September). [Online]. A/RES/60/1. Available from: https://www.un.org/en/development/desa/population/migration/general assembly/docs/globalcompact/A RES 60 1.pdf

United Nations General Assembly. 2009. Implementing the responsibility to protect: report of the Secretary-General. 12 January. [Online]. A/63/677. Available from: https://www.refworld.org/docid/4989924d2.html

United Nations Genocide Convention .1948. [Online]. Convention on the Prevention and Punishment of the Crime of Genocide. A/RES/3/260 opened for signature on 9 December 1948, entering into force 12 January 1951. Available from: https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.as px

United States Institute of Peace. 2018. China’s Role in Myanmar’s Internal Conflicts. [Online]. USIP Senior Study Group Final Report. No.1[Accessed 21 December 2019]. Available from: https://library.leeds.ac.uk/referencing-examples/9/leeds-harvard/92/e-book-online-or-via-e-book-reader

van Mulken, C. 2018. The Rohingya crisis in Myanmar’s Rakhine state: the final deathblow to the ‘Responsibility to Protect’ principle?. Dissertation. Bachelor of Art. University of Utrecht

Zarni, M. and Cowley, A. 2014. The Slow-Burning Genocide of Myanmar’s Rohingya. Pacific Rim Law Policy Journal. Vol. 23 (3), pp.681-752.