Blood begets blood

The Case Against ‘Humanitarian’ Intervention

Words by Thomas Abildgaard

At the time of writing the US has pulled out of the joint nuclear deal with Iran, has all but sabotaged the purportedly coming nuclear talks with the Democratic People’s Republic of Korea, and has been sliding towards increased involvement in Syria due to chemical weapons attacks that have just now been reported by the OPCW as likely, but have not been attributed to the al-Assad government . Meanwhile, the US has left many of their key diplomatic posts empty and is cutting funding to the State Department. The hollowing out of diplomatic options and appointment of warmongers like John Bolton, suggests it is likely that the US will enter a military conflict in one of these areas in the near future. However despite numerous  US conflicts, the US Congress has not declared an official ‘State of War’ since 1942, and it is unlikely they will here. Rather, despite inadequate attempts at non-military solutions, pointedly backing out of existing solutions, and sabotaging potential solutions, these coming conflicts will likely be publicly justified under the modern rubric of  ‘global security’ and ‘humanitarian intervention’ for the good of the people of Iran, Syria, or North Korea.

Beginning in the early 1990s there has been a movement in international relations towards a consensus that states have a ‘Responsibility to Protect’—known as R2P—their citizens, which if they fail through oppression, genocide, or other crimes against humanity, could justify military intervention from other concerned states. The NATO intervention in Kosovo during 1999 is often seen as the first real test case of R2P and is often held up as an unmitigated success in halting what was presented as an emerging genocide. While that perspective lingers, the reality of Kosovo in 1999 more closely resembled a vicious civil war, with what Chomsky has called scattered “ethnic cleansing attacks committed against civilians by both sides.

It was not until NATO’s illegal 78-day bombing campaign that conditions were created for the situation to deteriorate further. Before the bombing, around 2 500 people had been killed in a patchwork of ethnic violence, largely between Serb and Albanian civilians. While the situation was terrible, both NATO and OSCE reports in the lead up to the bombing do not show signs of violence accelerating towards genocide. However, the chaos and violence inflicted by the bombing of military and civilian infrastructure created the conditions for a concerted campaign of ethnic cleansing, resulting in 10 000 people killed, 1.4 million people driven from their homes, the destruction of the economy, and flooding nearby Albania and Macedonia with refugees housed in precarious camps.

Almost 20 years on, Kosovo has spent nearly ten years under an inadequate UN protectorate that allowed violence to continue, and has been independent for almost ten years. As of November 2017 there are still 201,047 registered internal displaced people in Serbia, mainly from Kosovo, corruption renders effective governance and economic revival impossible, and the war remains a palpable wound to many of its citizens. There were no easy answers to the situation in Kosovo 1999. However, the argument for the intervention relies purely on the counter-factual assertion that not intervening would have left a worse humanitarian situation despite evidence to the contrary. The stark reality is that Kosovo is a shattered region still far from recovery and that the NATO bombing and occupation contributed, and likely facilitated, this state of affairs.
Turning to the Middle East, the now seven-year-old intervention in Libya is  often presented as a successful case of humanitarian intervention. The reality is that while the intervention resulted in the capture, brutal torture, and summary execution of former leader Muammar Qaddafi, it also led to countless civilian deaths, escalated the conflict beyond any possible resolution, and left a once prosperous state in ruins.  According to Human Rights Watch, the initial 2011 US-NATO air strikes resulted in the deaths of 72 civilians, at least one-third of them children. As of 2017, war crimes including summary executions, civilian disappearances and corpse desecrations continue as the UN-backed Government of National Accord compete for power with the Interim Government. Other militia groups are active and terrorising the populace throughout the country, the economy is destroyed, public services such as the medical system and judiciary have been dismantled, and over 200 000 people have been internally displaced and subjected to torture, forced labour and sexual violence.

In their 2016 report on the Libya intervention, the British House of Commons Foreign Relations Committee found that the potential for genocide was  exaggerated by rebel groups and Western powers, and the intervention was based on “little intelligence.” While Qaddafi’s rule was both dictatorial and often brutal, Libya had made strides forward in women’s rights and equality, and had become the richest and most developed country in Africa whilst remaining debt free. Turning this country into a quagmire of death and dissolution was not a success for the citizens of Libya, and Qaddafi, while a horrendous dictator, was no more so than the leaders of other longstanding ‘friends’ of the USA.

‘Humanitarian’ military interventions should never be referred to as a success. They are a failure of prevention. In this country our Governments have been perfectly happy to support the USA’s interventions, joining in the bombings and arming competing sides. Meanwhile, programs that would help prevent these catastrophes, such as increased foreign aid, building diplomatic ties, rethinking sanctions, increasing aid to refugees, accepting refugees, and fostering civil society in troubled regions, are neglected and defunded. We are willing to pour our blood and treasure into the acceleration of killing, but never to prevent it, and never to protect its victims. Instead, we continue their abuse.

Please reach out to Amnesty International and urge your MP to both end the harmful practices on Manus, to say no to ‘humanitarian’ wars, and to increase foreign aid.

Justice in Myanmar

Myanmar and the International Criminal Court of Justice

Words by Adrienne Ringin

The desperate plight of the Rohingya in recent months has rightly evoked international outrage. On 1 May 2018, UNICEF reported that since August 2017, approximately 655, 000 Rohingya had fled Myanmar to neighbouring states. Vivid recounts of mass extrajudicial killings, arson, rape, torture and mutilation have prompted the international community to finally condemn Myanmar’s leaders for the systemic abuse of a people within their nation’s borders. While the spike of the crisis appears to have passed, the attempt to hold the perpetrators accountable has only just begun.

On 9 April 2018, International Criminal Court Prosecutor Fatou Bensouda requested a determination from the judges as to whether the ICC has the jurisdiction to open a probe into the crisis in Myanmar. The determination is necessary as Myanmar is not a signatory to the Rome Statute which would have automatically granted the ICC jurisdiction. An investigation could have been launched had Myanmar accepted the ICC’s jurisdiction (Rome Statute Article 12(3)) or if the United Nations Security Council referred the situation to the ICC (Rome Statute Article 13 (b)) but both of these avenues remain unemployed. Prosecutor Bensouda’s argument is unique as it attempts to utilise the Rome Statute membership of Bangladesh and the crime of deportation to justify the jurisdiction of the ICC. The success of this endeavour will be revealed eventually. In the interim, advocates have an opportunity to turn their minds to the legal requirements of the crimes with which the perpetrators could be charged with.

The ICC’s jurisdiction, found in Article 5 of the Rome Statute, is limited to the “most serious crimes of concern to the international community as a whole” – genocide, crimes against humanity, war crimes and the crime of aggression. The UN’s Special Rapporteur to Myanmar Yanghee Lee, told the Human Rights Council in March that she was ‘increasingly of the opinion that the events in the Rakhine State bear the hallmarks of genocide’. Indeed, accounts of the act perpetrated against the Rohingya are strikingly similar to those acts perpetrated against the Tutsi population of Rwanda in 1994 and the Muslim population of Srebrenica during the Yugoslavian conflict – both atrocities later branded as genocide.

But what does it entail to charge an individual with the crime of genocide? So far, the international community has demonstrated a great reluctance to use this term, preferring to use the watered down ‘ethnic cleansing’ which is encapsulated under ‘crimes against humanity’. This is because genocide holds an elevated place in the hierarchy of crimes; it is considered the most egregious resulting in great caution around its use. This distinction is evident in the complex legal definition which consists of three separate requirements, each featuring numerous elements and thresholds. A further complication is the fact that the ICC has never convicted an individual of genocide : limited resources, lack of state support and selectivity of the cases so far presented are some reasons why this is the case.  It is therefore likely that the pursuit of a genocide charge will adhere to the case law stemming from the International Criminal Tribunals of Rwanda and the former Yugoslavia respectfully, with the judgements of Akayesu, Kayishema and Ruzindana, Krstic, and Blagovoc and Jokic the most informative.

Article 6 of the Rome Statute uses the definition of genocide from the Convention on the Prevention and Punishment of the Crime of Genocide. It states that:

‘For the purpose of this Statute, ‘genocide’ means any of the following act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

  1. Killing members of the group;

  2. Causing serious bodily harm or mental harm to members of the group;

  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  4. Imposing measure intended to prevent births within the group;

  5. Forcibly transferring children of the group to another group’

The three separate requirements are the ‘acts’ requirement, the ‘group’ requirement and the ‘dolus specialis’ or ‘special intent’ requirement. The ‘acts’ requirement is set out in the subparagraphs of the definition featuring subtle nuances which prevent this requirement from being straightforward. For example, Akayesu ruled that intent and knowledge must be displayed to qualify as ‘killing’ while Kayishema and Ruzindana found that ‘conditions of life’ has been said to include instances of rape, lack of hygiene, medical care, excessive work and physical exertion. There is a real possibility that one or more of these acts could be found to apply to the Rohingyan crisis.

The protected groups are the ones enumerated explicitly in the list. These terms remain  mostly undefined, allowing case-by-case determinations to be made using both subjective and objective criteria (as determined in Nahimana) but using the broad parameters established in Akayesu. ‘National’ groups people with a common legal bond based on a common citizenship, while ‘ethnical’ is considered to be more cultural. ‘Racial’ applies to those bound by common descent, with ‘religious’ binding people through common theistic beliefs. The list has been interpreted as exhaustive resulting in social and political groups being excluded. The Rohingya would likely qualify as a national, ethnical or religious group.

The ‘dolus specialis’ is the requirement which distinguishes the crime of genocide from the crime against humanity. It is also the requirement which is usually the downfall of the prosecution as it is incredibly hard to obtain evidence of an individual’s specific intent to destroy, in whole or in part, a group. Direct evidence, such as government documents ordering one of the above acts, is rare. Tyrannical governments learnt the lessons of the Holocaust in that respect. Prosecutors are therefore forced to rely on circumstantial evidence such as speeches, the presence and conduct of officials at killings and the nature and scope of control. Additionally, a determination of genocidal intent can only be made where it is the ‘only reasonable inference from the totality of the evidence’ . Where another inference is plausible, the special intent cannot be established, obliterating the chance of a conviction of genocide.

The choice to pursue genocide in this situation would be precarious but not impossible. Of course, there are additional challenges that would need to be overcome due to the imperfect system of the ICC, such as the reliance placed on states to transfer the accused to the Court. It is also important to continue to support the victims during these legal deliberations. Bangladesh, which hosts most of the refugees, is about to enter into its monsoon season. Agencies are anticipating flooding in the refugee camps, resulting in more chaos and uncertainty for those who have already suffered enough.

Take action

While it is imperative to work towards a legal solution, also consider making a pledge to count your voice among those who stand against violations of international law.