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Challenges to the Rule of Law in Times of Crisis Series: America strikes again - Thoughts on Biden’s first military airstrike in Syria

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A U.S. Air Force B-1B Lancer flies over northern Iraq after conducting air strikes in Syria against ISIL targets. Photo Credit: US Department of Defense, Public Domain.

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

America is back in business, and a significant part of its stock in trade is the use of military force. Syria knows as much after being hit by two consecutive administrations in the past four years. Whatever differences Donald Trump and Joe Biden may have in style, demeanour, rhetoric, and politics, when it comes to the use of force their international record so far looks very similar.

Although the US is not formally engaged in an international armed conflict with the state of Syria, over the last years it has deployed military personnel on Syrian territory to stave off the threat of ISIS, and reportedly also to provide a geopolitical counterweight against Russian presence in the region. Moreover, the US has carried out military airstrikes on Syrian territory, most notably in 2017, again in 2018 alongside European allies, and recently on 25 February 2021. Ironically, Trump’s strikes against the Syrian government in 2017 and 2018 were prompted by an ostensible humanitarian rhetoric that is absent in Biden’s justification for his recent decision to strike Iran-backed non-governmental militias operating in Syria.

Indeed, among other grounds such as self-defence and an alleged mandate by the international community, four years ago Trump famously invoked humanitarian concerns in light of the shock produced by the Syrian government’s use of chemical weapons against its own population. Conversely, no chemical weapons were involved this time, and Biden steered clear of such humanitarian rhetoric and stuck to the traditional right of self-defence under the UN Charter to address attacks against US and its allies in Iraq.

This recent strike has been met with immediate condemnation by international law experts, mainly on the grounds that the right of self-defence must be exercised – always in a necessary and proportionate manner – against an armed attack that has occurred, or that is imminent. Since Biden’s strike was carried out ten days after the events motivating it, this US extraterritorial response seems to be too late to qualify as self-defence against an ongoing or imminent threat. Rather, it has been decried as an act of armed reprisal, which is illegal under international law.

Many questions remain to be answered or at least discussed from an international law perspective, bearing on the proverbial who, when and what. These include the legality of the use of force by one single state with no mandate in lieu of the collective security system represented by the UN Security Council; the deterrence of future threats instead of responding to current or past attacks; and the possibility of considering a series of discrete but coherent actions, in this case by non-governmental actors, as a single armed attack under the ‘accumulation of events’ doctrine.

Alongside international law, legal experts have also reflected on the justification for this recent attack under US domestic law, especially considering that this time the battered Authorization for the Use of Military Force or ‘AUMF’ – passed by the US Congress in 2002, its use spanning over two decades of strikes against Iraq, ISIS, and Iranian official Qasem Soleimani – was left on the shelf. Instead, Biden claimed to have direct authority under the US Constitution to conduct the attack.

Thus, the picture legal experts have painted when analysing Biden’s debutant strike is one of plausible justification under domestic law, and of highly dubious lawfulness under international law.

But even if all lawyers agreed that the attack was illegal under both domestic and international law, is the legal rationale the only one we need to take into account to assess Biden’s first use of military force? Is there something else we might say from a moral perspective? Even notorious legal positivists admit there is always room for moral scrutiny beyond the law. This becomes particularly relevant when legal discourse is quickly exhausted, as it is often the case with the scant provisions of international law bearing on the use of force. What will we do when we label an act as illegal, and yet global powers continue to commit it? Will we surrender to the cynicism of realpolitik, or will we fall back to a broader normative language to keep our moral judgments on the ball?

In the case of the use of force between nations, the articulation of such moral enquiries has taken over the centuries the form of the ‘Just War’ tradition, which unfolds into two separate lines of inquiry: when is it justified to resort to armed force (jus ad bellum)? And, what is permitted and prohibited in the conduction of hostilities once the war has begun (jus in bello)? In recent years the discussion has branched out into new avenues, including jus post bellum and jus ad vim (from the Latin vim or ‘force’). The latter was first suggested by Michael Walzer in the preface to the 2006 fourth edition of his canonical Just and Unjust Wars. Reflecting on the controversial invasion of Iraq a few years before, Walzer wrote:

“the Iraqi case invites us to think about the use of force-short-of-war; the containment regime of 1991-2003 that the UN endorsed and the United States enforced is only one possible example of this use. (…) force-short-of-war obviously comes before war itself. The argument about jus ad bellum needs to be extended, therefore, to jus ad vim. We urgently need a theory of just and unjust uses of force. This shouldn’t be an overly tolerant or permissive theory, but it will certainly be more permissive than the theory of just and unjust war.” (p. xv)

And we may add, certainly more permissive than international law, which clearly prohibits any ‘use of force’ by states under article 2(4) of the UN Charter, with very few exceptions (i.e. self-defence and Security Council authorization). But as we saw, the law is not the only framework to analyse instances of the use of force, and some scholars have taken up Walzer’s challenge, laying the groundwork for a new theory of jus ad vim. Among such theorists we find Daniel Brunstetter and Megan Braun, who in 2013 published their influential article titled “From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force.”

According to these authors under jus ad vim a just cause for using force is aggression, whether by states or non-state actors, warranting recourse to the right of self-defence. The use of force must be also proportional, a last resort, authorized by a legitimate authority, and carried out with the right intent (all traditional jus ad bellum criteria). The thrust of their argument is that the use of force must always reduce the probability of escalation. In other words, vim resulting in bellum evidences a failure in the application of the characteristically de-escalatory rationale underlying jus ad vim. As to international law, Brunstetter and Braun argue that jus ad vim should ideally be anchored in that normative regime, but if international law proves to be too narrow to respond to the needs of states, then it will have to evolve through customary law to mirror the evolution of our shared ethical judgments.

Based on the foregoing, can we say that the recent US airstrike in Syria satisfies jus ad vim? There might be some room to argue that US forces and allies were attacked in Iraq and, therefore, that the use of force-short-of-war in self-defence was warranted. And even if we were extremely generous as to concede that the other criteria of last resort, legitimate authority, and right intent were met, a considerable problem from the perspective of jus ad vim remains: however localized and discriminate, such attacks risked escalating hostilities in an already hot and unstable environment. And considering the heavy involvement of Russia in the Syrian quandary, the risk of escalation of the armed conflict to turn into a Cold War-style proxy war between the US (and its allies) and Russia (and its allies) must be an ever-present consideration in every policy decision made by the US, regardless of who sits in the Oval Office.

America is back in business, but for many it just feels like business as usual. Yet, this does not mean that the use of force can continue simply unchecked or that we should surrender to pure realism, for there is a full normative framework in place to assess the legality and morality of such acts under the principles of international law, jus ad bellum and jus ad vim. By using the legal view as a departure point for further moral discussion, the interplay between all these standards offers the potential to strengthen our convictions and hone our judgments about the use of force and war.

Challenges to the Rule of Law in Times of Crisis Series: Prosecuting war crimes - Some thoughts for the new Prosecutor of the ICC

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The Permanent Premises of the International Criminal Court. Photo Credit: United Nations, licensed under Creative Commons

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

From 16 June this year, the International Criminal Court (ICC) will have a new Prosecutor, Karim Khan QC. The change provides a good opportunity to ask some questions about the ICC’s approach to prosecuting war crimes, as he takes over from Fatou Bensouda, at a time when two recent decisions of the ICC have been receiving much criticism. On 9 December 2020, the Office of the Prosecutor (OTP) announced that it would not be conducting a formal investigation into war crimes committed by British forces during the Iraq conflict (2003-09). The Prosecutor said that, although she had established that there was a reasonable basis for concluding that war crimes had been committed, she had been unable to conclude that the UK had been unwilling genuinely to investigate and prosecute those crimes. In the second decision, the Pre-Trial Chamber (PTC) approved the OTP’s request to open a formal investigation into war crimes committed in the Palestinian Occupied Territory controlled by Israel.

Much of the criticism in the international legal press has involved pouring over the 1998 Rome Statute, that established the ICC and governs its proceedings. I should like to take a step-back from that, although it is impossible to avoid it completely, and ask what we should expect of the ICC in its attempts to investigate and prosecute war crimes. I shall begin by explaining in broad terms how the ICC was set-up to prosecute war crimes, for those who are not familiar with it. I will then look at some of the main issues that are, or will be, significant for the decisions involving the UK and Israel. First, what level of war crimes the ICC was established to investigate and prosecute and, second, how national and international responsibility for prosecuting war crimes was apportioned through the concept of ‘complementarity’.

The purpose of the ICC is set out in the Preamble to the Rome Statute as being to ensure ‘that the most serious crimes of concern to the international community as a whole must not go unpunished [and]…to put an end to impunity for the perpetrators of those crimes’. As well as war crimes, these include genocide, crimes against humanity, and aggression. At the same time, the Preamble recognized that it was ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ and that ‘the International Criminal Court…shall be complementary to national criminal jurisdiction’. The Statute provided a compromise over the division between national and international responsibility through the concept of complementarity. It had been the result of protracted negotiation between those who thought that crimes should only be prosecuted with the consent of the State having jurisdiction over them and those who thought that the Prosecutor should have independent discretion to prosecute war crimes. The compromise left the Prosecutor having to defer to a State’s investigation and prosecution unless it was ‘unwilling or unable genuinely’ to prosecute crimes committed by their citizens or on their territory. However, it was the Prosecutor who would decide after her own inquiry – a decision which is, however, revisable by the Pre-Trial Chamber. The first stage of an OTP inquiry is known as a preliminary examination and it may be initiated by the Prosecutor, often after receiving information from NGOs and victim-support groups. In the Iraq/UK case, the OTP opened a preliminary examination in 2004 after receiving information of alleged war crimes but quickly terminated it after finding that there was no ‘reasonable basis’ for concluding that war crimes had been committed – having a ‘reasonable basis’ is the required standard for it to proceed. However, after receiving further information in 2014, the OPT reopened the inquiry but in 2020 concluded that, although there was a reasonable basis to conclude that certain war crimes had been committed and there had been few prosecutions and only one conviction, the UK was not unwilling genuinely to investigate and prosecute those responsible. If we put this case together with the opening of the Palestinian investigation, they raise a fundamental question over what we expect of the ICC in these cases, which it would be worth addressing before the Prosecutor spends years on assessing whether Israel is unwilling genuinely to prosecute war crimes in the Palestinian Occupied Territory.

The first issue is what level of war crimes the ICC should prosecute. There is little history of the prosecution of war crimes but it is clear enough that there have been few domestic prosecutions within the UK and Western States generally and that the main forums for prosecution have been the international tribunals set up after the Second World War and then after the atrocities committed in the former Yugoslavia and Rwanda, which included very serious war crimes. There was a wide divergence of views among the delegates at the Rome conference as to whether the Prosecutor should have complete discretion to investigate all allegations of war crimes or only those that could be said to be particularly serious. The debate resulted in the introductory words to Article 8 of the Rome Statute which lists the types of war crimes, the ‘chapeau’ as it is called, stating that ‘[t]he Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy of a large scale commission of such crimes’. The wording ‘in particular’ was supposed to represent a compromise that, at least to some, meant that the Prosecutor’s discretion was limited to large scale situations but in practice the Prosecutor has virtually ignored the restriction. Instead, it is common to refer to ‘serious’ cases but serious is even more ambiguous as it may refer to the quantity or the quality of the crimes. This may then lead to an invidious process where crimes are ranked in terms of ‘seriousness’.

The second issue is how the principle of complementarity should work in practice. To some extent this problem is connected to the first as, if the bar is set high at large scale crimes, then those situations falling below that bar will be matters only for the States concerned. However, there is also a more general problem which results from the implementation of the principle in the Statute. The Prosecutor may begin a preliminary examination to establish whether there is reasonable basis to proceed with an investigation (Art. 15(3)). In the Iraq/UK inquiry the Prosecutor interpreted this as there being a reasonable basis to believe that war crimes had been committed. However, the test of that is considerably different from the test required to proceed with a prosecution which is usually stated as being that there is a reasonable or a realistic prospect of conviction. At trial, the test then becomes that the evidence to convict is true ‘beyond any reasonable doubt’. The Prosecutor decided that these differences required her to determine whether there were decisions not to prosecute in the cases she had identified that showed that the UK was unwilling genuinely to do so, and she concluded that they did not. The allegations which were at the heart of Iraq/UK issue were, therefore, being tested from two different standards, the evidence that a crime has been committed and the evidence that would be necessary to have a reasonable prospect of a particular conviction. The difference in standards is not only a practical matter of the use of limited court resources and funding but also one of the rights of the accused not to be detained for trial unless there is reasonable suspicion that he or she has committed an offence.

It seems, therefore, that the uncertain compromises made in the Rome Statute remain unresolved and problematic in practice. The appointment of a new Prosecutor provides an opportunity to address these issues. He might begin by attempting to resolve the uncertainties through a policy statement that addresses the disparity in evidential standards required between preliminary examination and prosecution. This could, for example, be achieved through the exercise of Prosecutorial discretion to decline to pursue investigations that have no reasonable prospect of securing convictions as it is not in the interests of justice to do so. At a more technical level, he could require legal organizations submitting evidence to include a legal opinion that it meets the evidential standard of proof. He might also seek an interpretation from the Court of the chapeau to Article 8 and whether the words ‘in particular’ are words of limitation to large-scale cases.

Challenges to the Rule of Law in Times of Crisis Series: Australia and the quest for accountability after the Brereton Report

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Trooper Douglas Birchall (Mornington, Victoria) looks back to his section commander while approaching an obstacle during a reconnaissance patrol with 2CAV in the Shoalwater Bay as part of Exercise Predator’s Strike in 2011. Photo Credit: Photo by Andrew Dakin, US Department of Defense, Public Domain

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

With the impending retreat of U.S. forces from Afghanistan after two decades of armed conflict, it is time to take stock of the legacy of this seemingly never-ending war. The conflict drove not just U.S. forces into the fray, but also an international coalition of forces under the mandate of the United Nations Security Council, which in 2001 established the International Security Assistance Force to combat global terrorism. Among these forces were Australian troops.

For the past years, the alarming rumours of alleged war crimes committed by Australian Special Forces deployed in Afghanistan, documented originally by Samantha Crompvoets, have been under investigation. The findings of this inquiry resulted in the Brereton Report, an official document released by Australian authorities on 19 December 2020. It was a day of reckoning for Australians, who were confronted with the terrible deeds of some of their most trusted and admired professionals – 39 unlawful killings and instances of cruel treatment between 2005 and 2016. In the words of Major General Brereton, Assistant Inspector-General of the Australian Defence Force and author of the Report: “We embarked on this inquiry with the hope that we would be able to report that the rumours of war crimes were without substance. None of us desired the outcome to which we have come. We are all diminished by it.” (Ch. 1.01, par. 83)

Yet, there are at least two ways in which the findings of the Brereton Report have actually diminished us all as humankind. In a moral sense, each of us will be moved by the compelling words written by the English poet John Donne in 1623: “Any man’s death diminishes me, because I am involved in Mankind.” In a political sense, as already pointed out, Australian and other foreign forces have been deployed in Afghanistan for the past two decades on behalf of the international community, complying with the United Nations mandate to stave off global terrorism. Therefore, the findings of the Brereton Report are arguably not solely the business of Australia, but of the international community as a whole.

As for its contents, the Report raises several significant normative issues, not least from a military professional ethics perspective, as well as from the standpoint of criminal law.

Concerning military professional ethics, the Report is rife with references to adequate standards that are deemed becoming of a member of a Special Forces unit and that were shamefully breached in Afghanistan. Moreover, the Report is unique as an official document in that it attaches an Annex specifically dealing with professional ethics. Indeed, Annex A to Chapter 3.03, titled “Special Operations Command: Leadership and Ethics Review,” was drafted by Prof. David Whetham, Director of the Centre for Military Ethics. King’s College London. Whetham’s conclusions are endorsed in the main body of the Report. In his judgment evidence strongly suggests that war crimes have been committed, and that soldiers who receive effective ethics education and training are less likely to commit such atrocities (par. 5). But training and educating are not enough, just as it is not enough to know the Law of Armed Conflict; according to Whetham: “Military ethics should be considered as a core competency that needs to be updated and refreshed if it is to be maintained” (par. 9).

He also points to a worrisome sense of exceptionalism among Special Forces (par. 22), as well as the development of a deleterious “warrior mentality,” as opposed to military professionalism (par. 29). Staggering behaviour was ultimately normalised as a result of this gradual erosion of professional standards (par. 65). An analogous sustained decline of professionalism has led to other dark passages in military history, such as the My Lai massacre, as pointed out by Philip McCormack.

Whetham’s final recommendations include more ethics education, espousing dissenting narratives among Special Forces that lead to healthy ethics discussions, and accountability for wrongdoing (pars. 68-73). Admittedly, much more research is needed in this area, and specialized literature on ethical standards tailored for Special Forces might ground further critical studies inspired by the findings of the Brereton Report.

As to legal accountability, it is worth mentioning that the released version of the Report is heavily redacted precisely because of potential criminal prosecutions that might ensue in the following years. In that sense, it is certainly salutary that a week before the Report was released, the Australian Prime Minister appointed a special investigator to look into possible criminal prosecutions under Australian law. Admittedly, the ‘culture of silence’ decried throughout the Report promises to pose a formidable challenge to such internal inquiries.

Still, since the misconduct of Australian forces are also the concern of the international community, the applicability of international criminal law is also worth considering. Some preliminary ideas in this regard have already been noted by Prof. Douglass Guilfoyle from the University of New South Wales. In his analysis, Guilfoyle raises a few interesting legal issues, such as the conceptual gap in command responsibility between Australian criminal law and the Rome Statute of the International Criminal Court (ICC). In a word, the standard of conviction for command responsibility is much lower in the Rome Statute than under Australian criminal law. Guilfoyle also flags the problem of the alleged complicity of military lawyers in the covering up of misconduct, a phenomenon that is gaining increasing interest.

There is another issue specifically concerning Australia-ICC relations that is not touched upon by Guilfoyle’s analysis: complementarity. Pursuant to the Rome Statute, the ICC is to operate in a complementary capacity whenever the domestic jurisdiction of states fails to prosecute international crimes (preamble, arts. 1, 17). It is in this subsidiary nature where lies the ultimate strength of the ICC to take root and flourish amidst the dense vegetation of the Westphalian system of sovereign states.

Now, complementarity can be either positive or negative. We talk of positive complementarity when the ICC renders assistance to a state for it to exercise its own criminal jurisdiction. Negative or ‘classical’ complementarity kicks in whenever the state is unwilling or unable to exercise its ius puniendi, under the conditions spelled out in art. 17 of the Rome Statute (for instance, if there is a failed state or mock trials are conducted).

It is worth noting that the Office of the Prosecutor (OTP) of the ICC is already conducting an investigation on possible war crimes and crimes against humanity perpetrated in Afghanistan, albeit at this stage the investigation refers only to actions by US personnel and Afghan nationals, and the Brereton Report styles itself a ‘significant obstacle’ to an ICC inquiry, precisely on complementarity grounds (Ch. 1.12, par. 51). Yet, there is no legal impediment for the OTP to expand the scope of its survey to include conducts detailed in the Brereton Report, as both Afghanistan and Australia are parties to the Rome Statute since 2003 and 2002, respectively.

Indeed, the spectre of international involvement looms large across the text of the Brereton Report, which is adamant in that there will be no need for the ICC to intervene at all since the Australian judiciary will mete out criminal punishment where it is deserved. Although the Report claims to be fulfilling Australia’s obligations as a party to the Rome Statute (Ch. 1.01, par. 80), it confidently states that the ICC “lacks jurisdiction” (Ch. 1.10, par. 43), and that there will be no extradition unless Australia’s Attorney-General deems the state has been unwilling or unable to prosecute (Ch. 1.10, par. 51). It further reads that “the only courts current or former Australian Defence Force members may face are those established by the laws of Australia” (Ch. 1.01, par. 81). One sentence therein strikes as particularly defensive: “The conduct of this Inquiry, and a domestic prosecution, or a considered and bona fide decision by Australian prosecutors not to prosecute, denies the International Criminal Court jurisdiction” (Ch. 1.10, Executive Summary, p. 264, emphasis added). Still, the Report concedes that ‘contested complementarity’ between the ICC and Australia remains a possibility (Ch. 1.10, par. 52), and it concludes on a more conciliatory note that: “so long as Australia can satisfy the ICC Office of the Prosecutor that it is making the requisite inquiries and taking appropriate consequential action, the jurisdiction of the ICC is not enlivened” (Ch. 1.10, par. 53).

To be sure, Australia is a country with a strong tradition in the rule of law, and Major General Brereton, who is a Justice of the New South Wales Court of Appeals, is a towering exemplar of such a laudable legacy. Yet, if Australians have discovered that even their most elite and professional state agents could engage in appalling acts, the logical possibility that its judiciary could also fail must at least be entertained. The ultimate test of negative complementarity should rest with the ICC, an institution envisaged to address injustice not only in Africa, but wherever it is committed.

It remains to be seen how the relationship between Australia and the ICC will unfold hereafter. Given that there is a functional and credible judicial system in place in the Oceanic country, it is conceivable that an ambiguous love-hate relation might develop whereby positive complementarity will be fostered under the threat of the Damocles sword of negative complementarity, as has been the case in Colombia. It is also certainly possible for the OTP to decide not to conduct a full investigation if the Australian legal system is working as expected for a state party to the Rome Statute, just as in the case of the UK regarding alleged crimes committed in Iraq.

Australia finally met its Abu Ghraib, its Baha Mousa, its Airborne Regiment, like the US, the UK, and Canada before it. The disgraceful events recounted in the Brereton Report will arguably damage Australia’s international reputation to an extent that remains to be seen in coming years. They may also deter Australia and other countries from engaging in international peace operations in the future.

This does not mean that war is hell and that there is nothing for it. There are rules that govern even the most brutal and trying of human experiences. This is what Just War thinkers mean by ‘war convention’. The important thing is that, whenever such rules are breached, institutional arrangements need to be in place to mete out justice, including penal measures, as appropriate. And among those arrangements, Australian authorities must not forget, there is a permanent International Criminal Court standing at the ready.

Challenges to the Rule of Law in Times of Crisis Series: Peace in the Time of Pandemic 2 - A Clash of Rights and Security

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Photo by Martin Sanchez on Unsplash

This article is part of our series on Challenges to the Rule of Law in Times of Crisis. Read the series introduction at this link.

Likely since the creation of the concept of human rights, and certainly in its modern understanding that emerged after the devastation of World War II, protection of human rights has continuously found itself at odds with the security priorities that many scholars would argue are at the centre of what a state is, and what underlies the social contract between citizen and government. Namely, it is easier to ensure strong security for the citizens of a state if they are permitted fewer freedoms, but these freedoms are foundational to many modern – and in particular liberal democratic – states. The COVID-19 pandemic has done much more than complicate our personal and professional lives; it has had a profound impact on our identity as members of a society, and on the social fabric that keeps communities together, precisely because it has intensified this clash of rights and security.

The International Center for Not-for-Profit Law (ICNL), with research support from the UN Special Rapporteur Fionnuala Ní Aoláin[1], have developed the COVID-19 Civic Freedom Tracker. This tracker notes that states of exception, or states of emergency, have been applied in 107 countries due to the pandemic, while 56 countries have enacted measures that affect freedom of expression, 139 countries have enacted measures that affect freedom of assembly, and 59 countries have enacted measures that affect privacy. 31 countries have measures formally enhancing militarization, including through enforcement of public health measures, while many others are de facto using their militaries or increasingly militarized police, in many places hired as a surge force, to enforce measures and in some places to assist with vaccine distribution logistics.

Indeed, in its COVID-19 Guidelines for Law Enforcement, INTERPOL notes not only the significant role of the police in managing this pandemic and addressing a possible increase in criminality, but also highlights the importance of ensuring “the centrality of human rights in shaping the pandemic response” for law enforcement. It notes that the pandemic has led to the adoption and use of “exceptional measures limiting or suspending the full and effective exercise of certain fundamental human rights”, among these freedom of movement and freedom of peaceful assembly. These exceptional measures, according to INTERPOL, are purely taken for the purpose of emergency response, and protecting societal health and well-being.

However, the reality that is emerging is a more threatening one to many societies. Ní Aoláin explains the risk of this intensified securitization and of a generalized adoption of these exceptional measures: that “states and security sector institutions will find emergency powers attractive because they offer shortcuts, and that such powers will, therefore, tend to persist and become permanent.” UN Secretary General António Guterres in fact calls this a “pandemic of human rights abuses”. To be clear, these rights are not a question of the staggering egotism of the anti-mask movement. This is a question of gender equality, in which women are leaving the workforce in huge numbers compared to men, primarily due to lack of support for child care, and which has seen domestic violence against women and girls skyrocket. This is a question of income inequality and poverty, not least as evidenced by vaccine distribution, in which just “10 countries have administered more than 75% of all Covid-19 vaccines. Meanwhile, more than 130 countries have not received a single dose.” (Guterres, as of February 2021) – an inequality that could prolong both the pandemic as well as economic recovery. And, critically, “the virus has been used as a pretext in many countries to crush dissent, criminalise freedoms and silence reporting” (Guterres), all in the name of security. Human rights defenders, journalists, lawyers, NGO workers, activists, and even medical professionals “have been detained, prosecuted and subjected to intimidation and surveillance for criticising government responses to the pandemic. Pandemic-related restrictions have been used to subvert electoral processes and weaken opposition voices.” (Guterres)

Of course, to ensure the security – in this case, the health, or human security – of citizens, and to manage public health resources and capacity, some restrictive measures are inevitable to mitigate the risk and potential damage of this pandemic. Even under normal circumstances, human rights necessarily are subject to certain lawful restrictions, in order to respect the rights of others, and public order and health more generally. However, in this context of information manipulation, suppressed freedoms, and the primacy of security, it should perhaps be of no surprise that what has also emerged is increased resistance: protests around key political and social issues have emerged globally and with great force and intensity during a time when a majority of governments are trying to limit, among other rights, freedom of assembly. Some of these protests relate to inequalities arising from the pandemic itself – as King’s College London Professor Funmi Olonisakin argues, in countries where people have experienced great inequality as a result of COVID-19, vocal dissent is “on the rise, and it creates a transnational pattern.” In addition, protests have also emerged in many countries protesting prolonged COVID-19 movement restrictions or pandemic mismanagement.

But other protests, that in many cases are powerful and far-reaching, concern fundamental social and political issues that have crystallised or reached a peak in tension during the pandemic: the Black Lives Matter movement in the U.S., pro-democracy protests in Hong Kong; farmer protests in India; protests against violence against women and sexual assault in Spain, Chile, and the UK; Lebanon’s protests responding to compounding crises; the popular struggle against the military coup in Myanmar; protests against political instability in Peru. Across the world, these all have a key characteristic in common – resistance against violent abuse of power and suppression of freedoms. Even if the pandemic did not start these movements, they have been intensified during this time. This finding is supported by ACLED[2]’s special coverage of COVID-19 Disorder, which has seen an overall increase in demonstrations in 2020 relative to the previous year, and found that “overall, state repression increased around the world” due to the pandemic.

In parallel, others are capitalizing on the social fragmentation resulting from the socio-political issues and inequalities described above – as seen during the Capitol riots on 6 January, where “extremists – including white supremacists and neo-Nazis – have exploited the pandemic to boost their ranks through social polarisation and political and cultural manipulation” (Guterres). All the while, countries like Germany, Argentina, Canada, and Portugal have encouraged (anonymous) citizen denunciation of those breaking COVID-19 restrictions, which will do nothing to improve social and community relations. Conflicts globally have barely if at all been affected, according to the International Crisis Group. At the domestic level, however, “The pandemic has tended to aggravate precisely the factors that were feeding discontent beforehand. In many countries, inequality is more extreme than ever. Living costs are rising. Public resources are scarcer. Middle classes are squeezed. Opportunities for young people, who’ve often sacrificed the most during lockdowns, are fewer. It’s easy to see populists thriving and storms ahead” (ICG). Indeed, Robert Malley, the former President of ICG and current U.S. Envoy to Iran, argues that “if the benefits of the recovery are not more equitably spread out, we are going to go into a much darker period yet”. He warns that if leaders do not try to understand the reasons for the emergence of populism, nativism, and xenophobia that intensified prior to the pandemic, and if recovery strategies do not take these factors into account, then these are going to return “with even greater intensity” in the post-pandemic world. This would present a great threat not just to political orders, but to social ones as well.

And so, while many are already bracing for the expected global economic downturn that may follow the pandemic, we should also be concerned about our state-society relations and, perhaps inevitably, prepare for a renegotiation of our social contract between citizen and government. As Olonisakin argues, the disruption created by COVID is a necessary and welcome opportunity for some leaders, countries, and societies to “rethink their relationships”. The social fabric of many states has been damaged, not just through social isolation and rising discontent, and those that would capitalize upon that polarization, but also through a state-supported fostering of distrust between citizens during this time. In the global prioritization of security during the pandemic, fundamental human rights have been strained, and the way that we view social contact and relationships have been radically altered as we have experienced what Federica Mogherini calls “unforeseeable circumstances, unimaginable for any of us just one year ago.” We must work to ensure that these will not cause lasting damage to the foundation of liberal democratic societies, or cause a slide back to greater repression in places where any gains in rights have been fraught and hard-won. This is especially true as we can now expect new, deadlier pandemics with greater frequency, if significant global environmental and economic reforms, reflecting more equitable economic priorities, are not urgently carried out.

[1] Fionnuala Ní Aoláin’s full title is UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

[2] ACLED is The Armed Conflict Location & Event Data Project

Challenges to the Rule of Law in Times of Crisis Series: Introduction

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The Supreme Court of the United Kingdom. Photo Credit: Shark Attacks, licensed with CC BY 2.0

There has been a great deal of academic interest in recent years regarding a ‘backlash’ against the liberal international order and, in particular, the rule of law. At the time, it resonated with the actions of the Trump Administration, for example in withdrawing from the 2015 Paris Agreement on climate change and the Iran nuclear deal. The focus was often on political, societal and cultural explanations for the backlash and there was less discussion of what was meant by the rule of law and how it related to the liberal international order. Beyond the withdrawal from international agreements, the inherent legal issues involved in the Trump Administration’s actions were often overlooked, for example in the reaction to the US cruise missile strikes on Syria following reports of the Syrian regime’s use of chemical weapons. The strikes were generally seen as an unlawful use of force although, for some, still a legitimate act rather than a violation of the rule of law. If an unlawful act does not violate the rule of law, does the rule of law have no meaning or is it so pliable that it effectively becomes meaningless?

Once we start to examine the meaning of the rule of law, we find that, as with many legal concepts, it is generally grounded in state-based models of law which are difficult to transfer to the international arena. For example, for Tom Bingham, the rule of law means ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’. This concept of the rule of law has within it some legal elements, such as legal personality and access to the courts, that are deeply embedded in municipal law but are different in the international legal system. ‘Legal personality’ is the term given to those who have legal rights and duties within a legal system and so there is an issue as to the extent to which actors within states, such as individuals and companies, who have legal personality can be equated to actors, such as states and international organizations, within the international legal system. Furthermore, unlike those with legal personality within a state who may be brought to account before the courts, states have to give their consent to the jurisdiction of the international courts before they may be subject to proceedings before them. Joseph Raz has a similar conception of the rule of law but thought that the essence of the rule of law is that, for law to be law, it must be capable of guiding behaviour, and conformity to the law is then required in order to secure whatever purposes the law is designed to achieve. For Raz, both law and the rule of law are instrumental. The law guides behaviour but, unlike the concept of natural law, is morally neutral as to the ends to which it is put. The rule of law is a virtue of the law as an instrument to achieve those ends, not a moral virtue that upholds other public goods. There is much that might be debated about this conception of the rule of law but it provides a starting point for it to be examined in a domestic or an international context, or both. In particular, it centres the concept on questions of whether the law is still guiding behaviour and whether the rule of law is securing its purposes in a satisfactory manner rather than on questions to do with the possession and effects of legal personality within the international legal system. It also helps to identify where the rule of law is being drawn into arguments over moral or political values that go beyond mere instrumentalization of the law itself.

In this series of articles by members of the Society, Culture and Law theme within the School of Security Studies at King’s, we look more closely at the rule of law and the contemporary challenges to it. By challenges to it, we mean, on the one hand, challenges in the sense of what is meant by it and what it comprises and, on the other, how it is applied and enforced. For example, we might agree (or not) that the methodology of the instrumentalism of the rule of law is useful for an understanding of international criminal law. Here the instrumentalism of the law, as seen in the Preamble to the 1998 Rome Statute of the International Criminal Court, is quite apparent: in particular it includes respect for and the upholding of international criminal law so as to hold accountable those responsible for mass atrocity crimes and to deter the commission of future crimes. There may be more difficulty with other areas of law such as international human rights law, international trade law or international refugee law where the challenges may be to explain how they fit into the conception of the rule of law or in how it is applied. Furthermore, issues of atrocity crimes, human rights, trade and asylum have in common that they are based on bodies of law and have been recognizable elements of the rule of law that have been established since the Second World War or even earlier, but what of other contemporary issues such as climate change or the impact of the COVID-19 pandemic, how do they fit into the concept of the rule of law?

In the first article of the series, “Peace in the Time of Pandemic 2: A Clash of Rights and Security”, Constance Wilhelm considers the impact that the COVID-19 pandemic and accompanying state securitization has had on the state of human rights and on social cohesion and resilience. She then highlights the challenges that societies may face if a more rights-based balance is not struck in such clashes of rights and security.

In the second article, “Australia and the quest for accountability after the Brereton Report: Some ethical and legal considerations”, Francisco Lobo considers the Brereton Report into alleged war crimes committed by Australian Special Forces in Afghanistan during more than a decade of enforcing the mandate of the international community to fight the global threat of terrorism as part of the International Security Assistance Force, including some ethical aspects and the potential for a prosecution of such crimes by the International Criminal Court.

In the series’ third article, “Prosecuting war crimes: Some thoughts for the new Prosecutor of the ICC”, David Bicknell considers some of the challenges to the application and enforcement of international criminal law. The challenges here are those facing the new Prosecutor at the International Criminal Court, Karim Khan QC, in the making of decisions on who to investigate and prosecute for war crimes which have highlighted by the wide-spread criticism of two recent decisions by the Court.

Finally, in the last installment of the series, “America strikes again: Some thoughts on Biden’s first military airstrike in Syria”, Francisco Lobo analyses the normative factors surrounding the first military strike on Syrian territory authorized by the incoming Biden administration, drawing on both legal considerations and the wider ethical framework of ‘jus ad vim’.