“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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Atrocity Prevention, 15 Years Since the Adoption of R2P: Interview with UN Special Adviser on R2P Dr. Karen Smith

Interview by Georgiana Epure, Charlotte Abbott and Emma Bapt

In 2005, governments unanimously agreed that they have both an individual and a collective responsibility to protect (R2P) populations, not just citizens, from four crimes: genocide, crimes against humanity, war crimes and ethnic cleansing. In 2008, UN Secretary-General Ban Ki-moon established the position of the Special Advisor on the Responsibility to Protect and since 2009 the Secretary-General has been publishing annual reports on R2P clarifying and developing what this concept means and what ‘tools’ it needs in order to be implemented more effectively. Fifteen years after the adoption of the R2P, we talked with Dr. Karen Smith, the UN Special Adviser of the Secretary-General on the Responsibility to Protect. Our interview touched on a series of issues that range from how the coronavirus pandemic affects atrocity prevention efforts to the role that religious leaders have in countering incitement to violence, and the relation between R2P and the Women, Peace and Security agenda – the topic of the Secretary-General’s upcoming report on R2P.

COVID-19

Recently, the UN Secretary General Antonio Guterres has called for an end to the ‘tsunami of hate and xenophobia’ sparked by the coronavirus pandemic. What is the state of the R2P norm in an age of increasing nationalism where more and more leaders legitimise hate speech, which may lead to hate crimes and other early warnings of atrocity crimes?

The rise in hate speech that we have seen accompanying a rise in nationalism and populism in many parts of the world underscores the fact that R2P is as relevant as ever. States – including their leaders – must be reminded of the responsibility they have, and the commitment they made in 2005, to protect their populations (including minorities and migrants). It is important to note that no country is immune from hate speech and its potential violent effects. During the current global pandemic, we have seen a worrying trend in which already vulnerable populations are targeted by hate speech and sometimes violent behaviour, based on accusations related to the spread of the coronavirus. The UN Secretary-General recognised the importance of addressing rising hate speech when, at the beginning of last year, he tasked the Office of the Special Adviser on the Prevention of Genocide to coordinate the development of a UN-wide Strategy and Plan of Action on Hate Speech, which is currently being rolled out, and has recently been supplemented by a guidance note on addressing COVID-19 related hate speech. Importantly, the Strategy and Plan of Action calls for more rather than less speech, underlining the importance of protecting freedom of expression whilst addressing hate speech that incites violence.

In May, the UN Security Council was close to voting on a resolution calling for a global ceasefire that would enable the international community to focus on ending the coronavirus pandemic. Conflict, fragile societies and the threat of atrocities may severely impact nations’ ability to confront COVID-19. Do you think the pandemic will reshape the way in which the international community thinks about global responsibilities and basic universal rights? 

The COVID-19 pandemic clearly has serious implications for the responsibility to protect, not least because it is likely to significantly increase the risk to already vulnerable populations. We are already witnessing that those parts of the population who already face high levels of risk – including ethnic, religious and sexual minorities, refugees, the poor, and women, are facing increased risk to their safety and their livelihoods. In many countries minorities have become the target of hate speech and in some cases even violence, based on their alleged association with the spreading of infections. In the development of national and global responses to the crisis, it is essential that any action takes into consideration the potential implications for the risk of atrocity crimes. Some of the lessons being learned in dealing with the COVID-19 outbreak are also relevant for atrocity prevention. These include the obvious, but consistently under-prioritised, fact that prevention is better than cure. Similarly, the importance of early warning – whether with reference to conflict, pandemics, or atrocity crimes, has been underlined. Like many other global governance challenges, the virus does not respect borders and therefore a multilateral, collective global response is really the only viable solution. Worryingly, over the past few years there has been a trend towards weakening multilateral institutions and, as part of growing nationalist and populist sentiments around the world, a general questioning of multilateralism. We must therefore also see the current crisis as presenting the international community with an opportunity to reflect on the nature of the current global order, and which issues should be prioritised, in the interests of building a better world.

Role of religious leaders

More and more attention is directed towards bringing religious leaders into efforts to prevent and counter incitement to violence, including identity-based violence. Last year, Ms Federica Mogherini, then European Union High Representative of Foreign Affairs and Security Policy, announced a new EU-sponsored Global Exchange on Religion in Society to connect and empower civil society actors who are working on faith and social inclusion. Notably, in 2017, under the stewardship of the UN Office on Genocide Prevention and the Responsibility to Protect,  the UN Secretary General launched the Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes. Where do we factor in an approach to R2P that mobilises members of civil society and focuses on particular areas (i.e. religion) for prevention purposes within the more common state-centric R2P approach? Is this a sign of a shift in approach, or R2Psimply diversifying its prevention ‘toolkit’?

While it remains the primary responsibility of states to protect their populations from atrocity crimes, this is not to the exclusion of other (non-state) actors. Particularly with regard to prevention, it is obvious that individual governments cannot build tolerant, resilient societies without the support of civil society. Many civil society actors can and have been playing important roles. These include women, youth, and religious leaders. As mentioned earlier, we have witnessed a disturbing rise in hate speech in recent years, much (but not all) of which targets religion. It is here that religious leaders can be particularly important in promoting tolerance and preventing incitement to hatred amongst their followers. As part of its Plan of Action for Religious Leaders, the Office of the Special Adviser on the Prevention of Genocide has worked with religious leaders from across different world regions and faiths to come up with a strategy that outlines specific targets aimed at preventing hate speech through enhancing education and capacity building, fostering inter-and intra-faith dialogue, and strengthening collaboration with traditional and new media. Religious leaders are undoubtedly essential partners in the fight against atrocities.

R2P focal points

Last year the Global Network of R2P Focal Points welcomed its second regional focal point (after the EU): the Organisation of American States. Why is it important that states and regional actors have such a focal point? What does the fact that most, if not all, R2P focal points are based in the Ministry of Foreign Affairs say about R2P? Doesn’t this pattern in a way contradict R2P’s focus on domestic prevention?

The global focal points initiative is another stepping stone to wider implementation of R2P. The idea behind having such focal points in governments and regional organisations is that they are tasked with raising atrocity prevention as a priority across the work of governments, whether that be conflict prevention, development assistance, or education. While it should, in essence, matter less which ministry the focal point is based in, but rather how active they are, the fact that most focal points to date have been appointed in ministries of foreign affairs does tell us something about how most states still view R2P. While the international community’s responsibility to assist prevention efforts and respond to the commission of atrocities in all states is of course an important element of R2P, this should not override the primary responsibility of states to protect their own populations. In this regard, more needs to be done to emphasise the importance of thinking of R2P in domestic terms – even in states where the commission of atrocity crimes seems unlikely. As mentioned above, we are seeing a worrying rise in intolerance, hate speech and incitement to violence in many countries, and these risk factors should be taken seriously and addressed appropriately.

Women, Peace and Security agenda

Many scholars and practitioners have noted that R2P lacks a gender lens. Where do you situate the Women Peace and Security agenda in the process of making the R2P norm more gender sensitive? Given R2P scepticism, do you think that moving towards merging these two agendas might risk bringing down the WPS agenda’s consensus power?

The criticism of R2P lacking a gender lens is partly justified. While explicit reference to gender is, for example, limited in tools such as the Framework for Analysis, in practice, there is greater emphasis on the role of gender inequality, gender-based violence, and the role of women in particular in assessments that are done using this tool. Having said that, there is certainly room for improvement, and a need to think more systematically about how to incorporate gender more effectively into R2P but also – and this is important – to make atrocity prevention an integral part of the WPS agenda. To this end, this year’s SG report on R2P will focus on this exact issue. It is particularly relevant given the significance of 2020 for both agendas – 25 years since the Beijing Declaration and Platform for Action for women’s rights, 20 years since the passing of the UN Security Council resolution 1325 on women, peace and security, and 15 years since the adoption of the R2P during the World Summit in 2005. I don’t think that highlighting the areas of complementarity have to mean merging the agendas. It is more about recognising the potential for mutual reinforcement that already exists.

Measuring R2P success

Despite the rich literature on R2P, much of it documents where R2P went wrong, and numerous scholars argue that it is obsolete or a “hollow norm”. Are there any success stories? The bigger question is: how do you measure R2P success today?

It is always easier to identify and focus on where things went wrong – this is also how we have been trained by the global news cycle. The focus on where R2P has not been successful is also linked to the emphasis on the use of military force to respond to atrocities. If we agree that the ultimate aim of R2P is to prevent atrocities from occurring in the first place, this is where we should measure success. This, however, is difficult, as it often leads us down the path of counterfactuals. Conflict averted and atrocities prevented are not newsworthy, and it is often difficult to say what would or could have happened had certain steps not been taken. There are, however, some examples of where collective action by states, regional actors and the international community successfully prevented the likely commission of atrocities. One often-cited case is Kenya, following election violence in 2008. Another is The Gambia. When the outgoing president Jammeh refused to hand over power to his elected successor and ordered troops to be deployed to act against the civilian population, ECOWAS deployed a mediation team. They were supported by the UNSC, the AU, EU and key states. When the mediation failed, ECOWAS deployed a coalition of military forces to protect the civilian population. Eventually President Jammeh stepped down, and ECOWAS forces remained to oversee the transition of power. These are two clear examples of the responsibility to protect in action.

A word for young people working on atrocity prevention

What advice do you have for young scholars and practitioners who are interested in working in the field of atrocity prevention?

I would strongly encourage anyone interested in this field to pursue it – there is much work that remains to be done, both on the academic side and in practice. In terms of students working on R2P and atrocity prevention: while there is certainly a place for theoretical work on issues such as norm evolution and contestation, my experience has been that there is an even greater need for policy-oriented research that can help to advance the implementation of the responsibility to protect in a very practical way. For example, this year’s Secretary-General’s report will focus on women and R2P. While there is evidence-based research showing a clear link between gender equality and women’s rights and a state’s propensity for conflict, much research is still needed to explicitly highlight the links between these issues and atrocity prevention in particular. Similarly, there is still much to learn about what causes atrocity crimes to be committed, and what types of responses are effective in preventing them in different contexts. More research is essential if we want to strengthen our prevention efforts. With regards to working in the field of atrocity prevention, I would underline that there is a need for individuals who are committed to prioritising atrocity prevention across all fields, so do not be discouraged if you do not find a job in an organisation specifically dedicated to it. What we need is for atrocity prevention to be mainstreamed and prioritised across domestic and foreign policy making, development cooperation, education, and so forth.

After a series of thought-provoking answers from Dr. Karen Smith, the interview came to a close with the R2P Student Journal engaging in role reversal. We invited Dr. Smith to state the most important and redundant questions regarding R2P today. In her opinion, the most important question related to the norm’s implementation: ‘How can we ensure effective prevention of atrocity crimes?’, whilst the most redundant question is: ‘Is R2P still relevant?’.

COVID-19 and the Responsibility to Protect Rohingya Refugees

Posted on September 13, 2020

By Amber Smith and Tom Welch

Amber is a PhD candidate at the University of Lincoln Law School and her thesis is on TWAIL, R2P and Regional Organisations. @amberamelismith

Tom is a PhD candidate at the University of Lincoln Law School. His thesis focuses on the relationship between vulnerable and displaced populations and the legal regimes that ostensibly seek to protect their rights. @TomWelch94

On 1st April 2020, the Global Centre for the Responsibility to Protect issued an atrocity alert special issue on COVID-19. This alert noted that COVID-19 would have particularly adverse implications for the ‘70 million people forcibly displaced by conflict, persecution and atrocity’, many of whom currently live in conditions which leave them vulnerable to the coronavirus.

Residing in a refugee or IDP camp is a condition which increases vulnerability to COVID-19, particularly in overcrowded and unsanitary camps which lack medical facilities and the ability to maintain social distancing, much like Cox’s Bazar in Bangladesh. Currently, over 900,000 Rohingya refugees reside in Cox’s Bazar after fleeing persecution and genocide by the Myanmar military. The Institute on Statelessness and Inclusion notes that whilst those living under refugee conditions were already in a crisis before the pandemic, COVID-19 has further highlighted structural inequalities. There are currently no intensive care medical facilities  in any of the camps in Cox’s Bazar, nor are there adequate means by which to clean hands or socially distance, both of which are vital for protection from COVID-19.

The Global Centre for the Responsibility to Protect noted two factors in a joint letter to Prime Minister of Bangladesh Sheikh Hasina which are placing Rohingya lives at greater risk. The first factor includes Internet access for Rohingya within the camps, which is currently restricted. This limits the spread of safety information, ultimately causing discriminatory healthcare outcomes. The second factor includes plans to install barbed wire fences around the camps for the purposes of restricting the movements of the Rohingya and confining them, rather than protecting them. The letter states this will create ‘obstructions to humanitarian access’, which is largely counterproductive for refugee protection. This form of structural violence is likely to cause disproportionate death tolls within camps.

Myanmar’s government has also used the pandemic to further discriminate against the Rohingya by closing borders between Rakhine State and Bangladesh, which has resulted in Rohingya refugees being pushed back into the sea. Refugee camps at breaking point, coupled with the lack of responsibility for vulnerable refugees at sea, raise serious questions about the responsibility to protect.

Since its conception, prevention has been cited as one of the most important dimensions of R2P. The Global Centre for the Responsibility to Protect notes that COVID-19 has increased the risk factors for mass atrocity in divided and fragile societies which suffer from identity-based conflict. Therefore, an opportunity to prevent possible future atrocity has arisen: to protect the Rohingya who still reside within Myanmar and to extend prevention efforts through international assistance to Rohingya residing in refugee camps. This could be achieved through pillar two of R2P’s three-pillar strategy, that is to once again encourage Myanmar to recognise its primary responsibility to protect the Rohingya. Using pillar two could improve humanitarian assistance measures through increased aid efforts and improved access to medical facilities within the camps.

A critical barrier to the successful implementation of R2P in these circumstances is the refusal of many Southeast Asian states to engage with protection mechanisms which encourage the greater safety of displaced populations living within their borders. Neither Bangladesh nor Myanmar have signed or ratified the Refugee Convention, its Protocol, nor the Statelessness Conventions, on the ground that the protections and responsibilities outlined within such documents are Eurocentric and irrelevant to the Asian experience of refugeehood.

Whilst such excuses have been largely dismissed as either poor attempts to absolve state responsibility toward vulnerable and indigent populations, or as insidious efforts by oppressive regimes to continue advancing anti-minority agendas, there is some merit to the arguments posed by Southeast Asian governments. The growth of internal Rohingya populations in Bangladesh has already had a severe impact on local unemployment rates and has resulted in considerable environmental degradation. As a densely populated low-income food deficit nation, Bangladesh lacks the infrastructure to successfully integrate its large Rohingya population. Without the guarantee of considerable external assistance, the expectation that Bangladesh should sign and ratify the various Refugee and Statelessness Conventions at this time is largely infeasible.

Therefore, to encourage alignment between the values espoused by the wider refugee protection regime and those of Southeast Asian nations, a responsibility-sharing mechanism must be introduced to ensure greater collective liability for displaced populations amongst global actors.

The Global Compact on Refugees (GCR) is demonstrative of the movement toward a refugee protection regime predicated on the ideals of collective action and international solidarity. Non-binding agreements such as the GCR can play a pivotal role in the development of normative legal concepts in international law by delineating the technical standards by which existing law can be applied or by taking the initial step in the norm-making process. The GCR’s non-binding nature thereby functions as a “nodal point” in the endeavour to link refugee-hosting states, such as Bangladesh, to the wider refugee protection regime.

The GCR presents certain deficiencies, including a failure to examine in detail what is meant by the term ‘responsibility-sharing’ and to delineate the precise ways in which private sector engagement and resettlement opportunities might take shape. Whether the GCR is fit for purpose in a post-Covid environment is a question yet to be answered.

Much work is still required to protect vulnerable populations, an endeavour that is made more complex given current global circumstances. We propose that a response through R2P’s second pillar, with a focus on the need to ensure greater inter-state solidarity, is a means to protect the Rohingya from further abuse and mistreatment.