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

Stephanie Miller, University of St. Andrews, UK

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

Abstract

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

Introduction

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

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

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

Covid in the Courts: Assessing ICJ and ICC Action

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

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

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

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

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

Challenges

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

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

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

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

Moving Forward

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

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

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

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

Conclusion

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

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

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

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

Inés Fernández Gallego, Utrecht University, The Netherlands

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

Abstract

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

Introduction

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

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

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

The Journey to the Genocide Convention

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

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

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

The Crime of Genocide under International Law

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

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

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

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

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

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

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

The case before Lithuanian courts

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

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

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

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

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

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

The ECtHR’s decision

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

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

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

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

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

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

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

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

A brief history of Uighur nationalism and oppression

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

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

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

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

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

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

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

The Uighur as a group protected under the Genocide Convention

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

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

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

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

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

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

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

Actus reus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mens rea

Overall intent

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

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

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

Active and prominent

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

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

Essential

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

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

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

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

Conclusion

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

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

Aparajitha Narayanan, Leiden University, The Netherlands

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

Abstract

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

1 Introduction

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

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

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

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

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

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

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

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

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

2 Evolution of law applicable to the regulation of biological weapons

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

2.1 General prohibitions under IHL

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

2.1.1 Applicability of such principles to weapons

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

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

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

2.1.2 Biological Weapons and International Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3 Black Biology

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

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

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

4 Militarisation of Neuroscience and Biological Warfare

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

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

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

5 Conclusion

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

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

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

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

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

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R2P then and now: A conversation with Professor Gareth Evans about gross human rights violations in a changing global environment

Interview by Charlotte Abbott

Responsibility to Protect Student Journal Editorial Team

The Responsibility to Protect (R2P) concept was first outlined in 2001 with the International Commission on Intervention and State Sovereignty (ICISS) Report, authored by Professor Gareth Evans and Mohamed Sahnoun. In 2005 Governments unanimously agreed that they have a responsibility to protect populations from four crimes: genocide, crimes against humanity, war crimes and ethnic cleansing. Fifteen years on from the adoption of R2P, we spoke with Professor Gareth Evans regarding his involvement in the creation of R2P, and the global factors which have influenced it since 2005. We touched on topics such as the legacy of colonialism, changing power dynamics between States and corporations and the US presidential election.

Moral versus legal obligations

In your recent European Centre for the Responsibility to Protect (ECR2P) Lecture [based on your GCR2P blog piece] titled ‘R2P: The Dream and the Reality’, you suggest that R2P is centred around creating a ‘compelling new sense of moral and political obligation’, as opposed to creating new legal rules. If so, how do we then enforce differing moral and political obligations if these are not embedded in international law?

Being embedded in international law, treaty or customary, does not guarantee effective enforcement: that is international law’s eternal problem. What matters is the political will to enforce the relevant norms, and that has always been R2P’s objective. That applies both in respect of (a) the important international human rights and humanitarian law obligations that do already inhibit states’ treatment of their own citizens or wartime behaviour and which are R2P relevant, and (b) those obligations under Pillars Two and Three of R2P which are not presently (some limited obligations under the Genocide Convention apart) at all cast in legal terms although hopefully they will ultimately evolve, through practical acceptance in years to come, as customary international law. What is abundantly clear is that any attempt to negotiate an R2P treaty would have gone nowhere in 2005 – and has no better prospects now, not least given the attitude of the US Senate to treaty ratification even under adult presidential administrations. Achieving effective implementation of R2P in all its dimensions is overwhelmingly a matter for political, not legal, advocacy and action.

The International Commission on Intervention and State Sovereignty

The initial International Commission on Intervention and State Sovereignty (ICISS) report lacked attention on gender, climate change, business and human rights. Were the ICISS report to be written now, would you include these topics in relation to the prevention of gross human rights violations? What else would you focus on?

No. I would write it as it now is. Without the narrow focus on the ‘four crimes’ in 2005 R2P would have had no chance of being embraced by the World Summit. Of course rape and gender-related crimes are often at the heart of the worst mass atrocity crimes; business can be centrally involved in both abetting and preventing such crimes; and CO2 reduction is an absolutely critical existential issue for the planet. But we don’t help the R2P cause at all by diluting its focus to extend to other public goods issues, whether related or unrelated and whatever their merit. See further my answer to your last question below.

The ICISS report was drafted before the war on terror. In what ways has the war on terror affected R2P implementation? How have R2P and counter-terrorism interacted given their different conceptions of security (human centred for R2P and state-centered for counter-terrorism)?

Counter-terrorism and R2P strategies are conceptually distinct but complementary, in the sense that R2P-atrocity crimes are often perpetrated by terrorist organisations. (R2P is similarly conceptually distinct but complementary to the United Nations ‘Protection of Civilians’ agenda – the latter being concerned with a broader range of protection issues than just atrocity crimes, and only in a wartime/conflict environment.) The main impact of the ‘war on terror’ on R2P was the way in which 9/11 in 2001, just before the ICISS report was published, moved terrorism to centre stage in international security policy discourse, after a decade in which the big debate was about ‘humanitarian intervention’. It remains something of a miracle that we were able to keep enough focus on the broader issue of mass atrocity crimes to win through as we did at the 2005 World Summit.

The development of R2P

Would you agree that the discourse of colonialism continues to affect the way in which R2P operates, in a practical sense? If so, how and why?

Colonialism discourse had a very strong negative impact on Western attempts to gain traction for the ‘right of humanitarian intervention’ in the 1990s. One of the great breakthroughs of ICISS was to change the underlying basis of that discourse by reconceptualising ‘right’ as ‘responsibility’ and ‘intervention’ as ‘protection’. The measure of our success was the unanimity of the 2005 resolution with the states of sub-Saharan Africa, every last one of them passionately anti-colonialist, playing an absolutely crucial supporting role. That dynamic has largely continued, with some states – like Cuba, Nicaragua and Venezuela – regularly trying to play a spoiling colonialism card, but gaining little traction in UN General Assembly debates and elsewhere for their efforts: the basic elements of the R2P norm are still pretty much universally accepted.

The continuing fallout from the Permanent Three’s overreach in Libya in 2011, which enraged the BRICS countries (Brazil, Russia, India, China and South Africa) in particular, continues to inhibit consensus in the Security Council, and that has a whiff of anti-colonialist/imperialist sentiment about it – ‘these guys are never to be trusted’ –but this dispute has always been more about general geopolitics than anti-colonialism as such.

As Multinational Corporations (MNCs) are becoming increasingly wealthy and powerful, should the R2P be applied to MNCs as well as states (see the case of Uighur Muslims forced labour in Chinese and international MNCs and Facebook’s contribution to the spread of hate speech in Myanmar against the Rohingya)?

Non-state actors, including multinational corporations and terrorist and militia groups, have always been important players in an R2P context. Curbing their behaviour or – in the case of businesses – enlisting their support will often need to be addressed in crafting R2P preventive, reactive and peacebuilding strategies at both national and intergovernmental levels.

Before the US election, you argued that Trump vs Biden’s approach to the COVID-19 crisis would either ‘accelerate defensive nationalism and mistrust of international institutions and processes, or serve rather as a giant wake-up call as to the absolute necessity of effective international cooperation’. In light of Joe Biden’s election, where do you see international commitment to the ‘responsibility to protect’ heading in the next years, and in a ‘post-Covid’ world?

The Biden administration will be genuinely committed to both human rights protection and cooperative multilateralism, and as such I look forward to a renewed commitment by the US to the key elements of the R2P agenda – and certainly to the values which underlie it, and for that to be influential in underpinning wider international support for R2P. There will probably still be over-caution – which I found incredibly frustrating under the Obama administration – about publicly embracing R2P in a domestic, as distinct from UN context (because it implied commitment to certain courses of action, and Washington, whoever is in power, likes to be seen by domestic critics as absolutely unconstrained in keeping all its options open). And there will certainly be extreme resistance – in the prevailing domestic political environment – to rushing into new foreign military adventures. But I don’t think a Biden presidency would just wash its hands should another Rwandan or Bosnian genocide situation erupt on its watch. Syrian type cases – not to mention cases like Xinjiang’s Uighurs – will be much harder, but they always are.

Advice for young scholars and practitioners

What advice do you have for young scholars and practitioners who are interested in working in the field of atrocity prevention/responses to gross human rights violations?

I have spelt this out, in the context of international careers generally, at considerable length in an article for The Conversation. In short, acquire the right professional skills; do your best to acquire relevant experience, through internships in relevant organisations and as much adventurous travel as you can, Covid permitting; give trust to luck; and stay optimistic. It really is crucial that the next generation of scholars and practitioners – those with a serious practical policy, not just theoretical, bent – carry on the fight for effective implementation of R2P in all its dimensions. The task is not just to analyse the world’s behaviour, but to change it. Go for it!

We’d like to end this interview with a question, but this time you’re the one asking it. When it comes to R2P today, what question do you find to be most important? What do you find is the most redundant?

The question I continue to find most unhelpful is the kind originally asked me by the Canadian Foreign Minister Lloyd Axworthy, who initiated the ICISS Commission, and which has been repeated in endless variants in different settings (including this interview request!) since: ‘R2P is such a beautiful idea: why shouldn’t we talk about a ‘responsibility to protect’ the Inuit people of the Arctic Circle from the ravages of climate change?’

The point is that any concept which is about everything ends up being about nothing, certainly when it comes to effective operational implementation. ‘Human security’ – though making the valuable point that individuals count as much as states – has suffered that fate. R2P was designed above all else with an operational objective: to energise effective international responses to mass atrocity crimes, threatened or occurring, behind sovereign state borders: if you make it about lots of other (unquestionably valuable) causes, you completely lose any such traction.

The most important continuing question for me is ‘How do we recreate effective consensus on the UN Security Council when it comes to responding to the most extreme mass atrocity crime cases?’.

Plenty will say that comes down the list, and that the whole present advocacy focus should be on prevention rather than reaction because if the former is effective the latter is redundant. Apart from the practical reply that achieving preventive perfection is unhappily still a distant aspiration, effective reaction to the really hard cases – the Cambodias and Rwandas and Bosnias – is where R2P’s credibility, and longevity, really stands or falls. Get unanimity on these issues in the world’s most important security forum and everything else falls into place; fail, and the cynics and sceptics will continue to gnaw away at the very concept of R2P and its utility in every other context.

Book Review: Responsibility to Protect and the Failures of the United Nations Security Council by Patrick M. Butchard

Posted on July 11, 2020 

By Blake Lawrinson 

Blake Lawrinson is a PhD researcher in the School of Politics and International Studies at the University of Leeds. His thesis examines the changes and continuities in the UK’s commitment to human protection from mass violence and atrocity crimes (1997-2020). His research is funded by a Leeds Doctoral Scholarship (2017-2020).

Book Review: “Responsibility to Protect and the Failures of the United Nations Security Council” by Patrick M. Butchard. Oxford: Hart. 2020. 308pp. ISBN: 9781509930814.

‘Responsibility is a continuum, and it does not cease to exist with failure’ (p.269)

In the event of UN Security Council deadlock and paralysis, should we simply give up on implementing the responsibility to protect (R2P) populations from atrocity crimes? The UN Security Council’s response to the crisis in Syria (2011-) encapsulates this dilemma having failed to establish common ground on action after almost a decade of conflict. In Responsibility to Protect and the Failures of the United Nations Security Council, Patrick Butchard argues that R2P implementation does not end with such UN Security Council failure, but rather that this legal responsibility can transfer to other actors through a ‘tertiary responsibility to protect’ (pp.3-4).

This argument is constructed through a comprehensive analysis of the legality of alternative forms of forcible and non-forcible coercive measures beyond the UN Security Council. This is achieved by first, addressing the historical context and establishing the legal framework for the tertiary R2P (chapters 1-3); and second, examining the legality of forcible and non-forcible coercive measures and their implementation by other actors (chapters 4-6). According to the author, Article 2(4) of the UN Charter on the prohibition of the threat or use of force and Article 2(7) on non-intervention in the domestic affairs of a state are fundamental to locating the existing legal debates on intervention through the UN Security Council. Pre-R2P, debates focused on the legality of unilateral humanitarian intervention, which was witnessed more notably during the 1999 NATO-led action in Kosovo. The author is quick to debunk this ‘myth of humanitarian intervention’ (p.7), given the lack of support in both state practice and opinion juris (p.28). With unilateral humanitarian intervention failing to provide a credible legal avenue for protecting populations from atrocity crimes, focus then shifted to a reconfiguration of sovereignty as a responsibility through the R2P.

The author suggests that R2P has two core responsibilities contained in paragraphs 138 and 139 of the 2005 World Summit Outcome Document. The first relates to a state’s primary responsibility to protect its population from the four crimes of genocide: war crimes, crimes against humanity, and ethnic cleansing, and the international community’s responsibility to assist a state in preventing these crimes (pillars I and, respectively, pillar II). The second concerns the responsibility to take ‘timely decisive action’ through the UN Security Council to protect populations from these four crimes (pillar III) (p.3). But what happens when the UN Security Council fails to take such timely and decisive action? Does R2P simply end with UN Security Council inaction? According to the author, just because the UN Security Council fails this does not necessarily rule out legal R2P action from other actors as ‘there is no reason why it should not continue’ (p.4, emphasis in original). Such action beyond the UN Security Council thus constitutes a third responsibility in the form of the tertiary R2P.

Given that legal responsibility for the implementation of forcible and coercive measures under the R2P lies first and foremost with the UN Security Council, the first step in acting beyond this requires a connection between R2P and maintaining international peace and security (p.55). This is essential given that the R2P is not a legal doctrine, whilst maintaining international peace and security ‘is enshrined in international law – in the UN Charter – and brings with it the force of a duty, and not just an aspiration, to do something’ (p.266). Crucially, the author argues that the UN Security Council ‘does have a legal obligation to maintain international peace and security and, by extension, to protect populations from atrocity crimes covered by the R2P framework’ (p.84, emphasis added). This is a particularly convincing argument, since it establishes a potential legal avenue for actors to implement the R2P when the UN Security Council has failed (p.55). The only potential drawback in this instance is that this legal action would require actors to make a connection between R2P and maintaining international peace and security.

By establishing that there is a legal opportunity for the implementation of a tertiary R2P when (1) respecting the territorial integrity and political independence of a state; and (2) ‘it is consistent with the purposes of the United Nations’ under Article 2(4) (p.124), the author shifts the focus to considering the legal implementation of non-forcible coercive measures. This centres largely on the ‘doctrine of countermeasures’ when the state in question has committed atrocity crimes (p.125). Legal countermeasures may include economic sanctions as witnessed in the case of Russia following the annexation of Crimea in 2014, and in Myanmar in 2017 following the outbreak of mass atrocities (pp.172-178). An obvious limitation here, and one rightly acknowledged by the author, is that such legal countermeasures are only available after a state commits such acts. Moreover, since such actions do not involve direct forcible action, it is difficult to envisage whether this would help to directly prevent mass atrocities in the same way as timely and decisive action through the UN Security Council.

The real crux of the argument is addressed in the final chapter on the those responsible for implementing forcible and non-forcible coercive measures through the tertiary R2P. Two actors in particular are identified as having both the legal competence and capability for implementation. The first is the General Assembly, which has the power to implement the tertiary R2P through recommending the use of force. Such powers of recommendation are captured by the Uniting for Peace Resolution (1950), the use of which has been widely debated (Carswell, 2013; Kenny, 2016; Melling and Dennett, 2018; Nahlawi, 2019). However, there are three important qualifications on this power. First, this has to remain consistent with the principles outlined in Article 2(4) of the UN Charter; second, the General Assembly can only implement the R2P through establishing its relationship with the maintenance of international peace and security; third, any such recommendation requires a two-thirds majority in the General Assembly (p.230). Whilst acknowledging that the General Assembly ‘provides the best institutional legitimacy for such action’ (p.264), commanding the necessary political will and consensus are significant barriers to the implementation of the tertiary R2P through the General Assembly.

That said, the General Assembly does have the potential to implement non-forcible coercive measures, such as sanctions, by drawing on the doctrine of countermeasures. This again, however, is guided and limited by existing international law. Regional organisations, recognised in Chapter VIII of the UN Charter, are the second actor with the legal competence to implement the tertiary R2P. Whilst legal forcible measures without prior UN approval would be illegal, the author finds room through the doctrine of countermeasures, which ‘provides a further legal basis for collective action’ (p.240). Again, however, the use of such measures requires consensus and political will from regional organisations to bypass the UN Security Council. This in turn has the potential to act as a major impediment to implementing the tertiary R2P.

The author openly acknowledges that the book ‘has not sought to offer simple solutions to complex problems’ (p.265). The author convincingly argues that there is in fact legal space to implement a tertiary R2P amid UN Security Council deadlock and paralysis. This is by no means an easy task, and to the author’s credit, they do not shy away from this. Rather, they provide an original contribution to contemporary debates on the implementation of the R2P in the context of UN Security Council politics. The real strength of the argument is how it does not simply cover the same ground as existing debates, such as the wealth of literature on the responsibility not to veto (Gifkins, 2012; Webb, 2014; Essawy, 2020), but attempts to set out a new trajectory for R2P implementation in the face of the same deadlock and paralysis witnessed more recently on Syria. Notably, the author recognises from the outset the importance of legality and draws on a wealth of knowledge of international law and the R2P to provide a comprehensive, and convincing, account on the alternatives to R2P action beyond the UN Security Council.

The real appeal of the book is how the author is able to summarise and apply detailed legal debates to practice on R2P. Whilst the author acknowledges their ‘disappointment’ that such a book is required given that ‘the body tasked with maintaining international peace and security too often fails to uphold its responsibilities’ (p.265), they do justice to the topic through providing a foundation for considering the legality of R2P action beyond the UN Security Council. This is an original account of such an important issue in the field and should be key reading for students, academics, and practitioners across the spectrum hoping to continue an exploration of legal alternatives for R2P implementation in the face of UN Security Council failure.

References 

Carswell, A.J. (2013) ‘Unblocking the UN Security Council: The Uniting for Peace Resolution’, Journal of Conflict and Security Law, 18(3), pp.453-480.

Essawy, R.M. (2020) ‘The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’, Global Responsibility to Protect, Advanced Access.

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

Kenny, C. (2016) ‘Responsibility to recommend: the role of the UN General Assembly in the maintenance of international peace and security’, Journal on the Use of Force and International Law, 3(1), pp.3-36.

Melling, G. and Dennett, A. (2018) ‘The Security Council veto and Syria: responding to mass atrocities through the “Uniting for Peace” resolution’, Indian Journal of International Law. 57(3-4), pp.285-307.

Nahlawi, Y. (2019) ‘Overcoming Russian and Chinese Vetoes on Syria through Uniting for Peace’, Journal of Conflict and Security Law, 24(1), pp.111-143.

Webb, P. (2014) ‘Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria’, Journal of Conflict and Security Law, 19(3), pp.471-488.