Very few question whether the concept of a just war is appropriate or necessary. There are the pacifists, those who believe that war, intrinsically, goes against humanism. There are the pragmatists, who argue intervention can be justified. There are the realists, who contend that no nation state can survive without entering a state of conflict at some point in its cyclical history. There are the opportunists, for whom war is merely a means to an end. Whether war can be just, whether war can hereby be justified, approved, and conducted in a certain manner has been left to legal philosophers, the authors of conventions. Those conventions have evolved with time, with an ever-changing political landscape, but most importantly with technology. Certain principles however have not changed, and should never be the subject of compromise. They are fundamental in nature, and are currently under attack.
Operation Protective Edge, the name given to the 2014 Israeli assault on Gaza, signalled a new low in warfare. In the name of said protection, Israel killed over a thousand civilians, a third of them children. Images of scattered young body parts on beaches made the cover of newspapers. Accounts of dead bodies stored in ice-cream freezers for lack of burial capacity, appeared cautiously next to Israeli arguments for the necessity of the attack: stories of children turned into the most feared individual of the year, the military aged male, of the danger posed by Qassam rockets fired from United Nations schools and hospitals, of relatively small numbers of Israeli casualties, could not erase the atrociously disproportionate response to a threat always imminent but never factually existential. Journalist Max Blumenthal walked among the ruins of Shujaiyah, and provided a harrowing testimony of the profound disdain for human life that he witnessed that summer. One specific night comes back to the forefront: in the darkened Gaza night, among the low hum of a few remaining electrical generators, missiles screeched through the sky, and fell on the buildings left standing. Two years later, Gaza is still under attack; reconstruction has barely started; children under the age of 12 suffer from post-traumatic stress disorder; young boys try to commit suicide. The tears of a UN official, on TV, captured worldwide attention. Gaza had become the untouchable strip of foreign land; it had become a frontier behind which everything was fair game, every human body fit to kill; it evaded and escaped not just humanitarian law, but also emergency humanitarian relief and the principles of humanitarian access, hindered not just by Israel, but also by Egypt. Gaza was located beyond the protective edge.
Three specific types of putative war crimes have reemerged in recent years, attributed, depending on who one asks, to the changing nature of conflict – the proliferation of non international armed conflicts, the growing number of non-state armed groups – or the changing nature of political and legal commitment to the laws of war. The danger lies not only in asserting that the fundamentals of the laws of war no longer apply; it lies in removing them from the legal framework, hereby leaving a gaping hole where protections should apply. International human rights law would not suffice; areas where the two paradigms do not overlap, specifically the threshold of the right to life, would lead to rampant abuses. Those abuses have however already taken place. From the bombing of hospitals in Afghanistan and Yemen; from the assimilation of civilians to combatants due to sole demographics; and the resurgence of medieval methods of collective punishment, now, perhaps more than ever, is the time to reaffirm commitment to the fundamentals of the law of war, their blood-stained roots, and perhaps demand more of the Security Council than the base expectations. Of the five permanent members of the revered institution, three are currently assisting a country accused of war crimes; one has consistently used its veto against humanitarian assistance; another used this same right of veto against its twin body, the Human Rights Council’s demand for independent investigations into possible war crimes. Four are currently involved in proxy in the deadliest conflict since World War II. Perhaps the laws of war are not obsolete, relics of a bygone pacifist age, impossible to implement, or incapable of evolving with military technology. Perhaps what the Geneva Conventions need is a body entrusted with keeping peace and security actually vested in peace and security as opposed to its own financial and/or political interests.
Attacks on hospitals: Afghanistan, Yemen, and the threshold of intent
Nothing has perhaps highlighted the blatant violations of fundamental humanitarian principles than the October 3, 2015 attack on the MSF-supported hospital of Kunduz, in Afghanistan. While the fighting was raging between the Taliban and the US-supported Afghan army, MSF doctors and surgeons were working tirelessly in the hospital, which coordinates had been communicated with the belligerent, to tend to the wounded, children and adults alike. A blast at 2am led to frantic phone calls to the headquarters of the coalition to communicate that a missile had fallen on a hospital, a protected building. An account of what followed in the early hours of that fateful day is nothing short of blood-curdling. Dr. Kathleen Thomas told The Guardian:
But tomorrow never came for most of those patients. Nor did it come for most of the ICU staff working that night. When the US military’s aircraft attacked our hospital, its first strike was on the ICU. With the exception of one three-year-old, all the patients in the unit died. The caretakers with the patients died. Dr Osmani died. The ICU nurses Zia and Strongman Naseer died. The ICU cleaner Nasir died. I hope with all my heart that the three sedated patients in ICU, including our ER nurse Lal Mohammad, were deep enough to be unaware of their deaths – but this is unlikely. They were trapped in their beds, engulfed in flames. (…)
Our colleagues didn’t die peacefully like in the movies. They died painfully, slowly, some of them screaming out for help that never came, alone and terrified, knowing the extent of their own injuries and aware of their impending death. Countless other staff and patients were injured; limbs blown off, shrapnel rocketed through them, burns, pressure-wave injuries of the lungs, eyes and ears. Many of these injures have left permanent disability. It was a scene of nightmarish horror that will be forever etched in my mind.
Dr. Thomas’ account is one of many survivors’ stories that have scarred the public opinion. Atypically, US authorities decided to launch an investigation into the strike, that had killed 42 people that day, staff and patient alike. Photos of the damage done to one of the few hospitals left standing in the region were breathtakingly horrific. There was no escape from the dust and rubble; it would however be the first of many outraged and infuriating moments for Doctors Without Borders, a fearless, deeply respected organization that was told by the local head of the NATO coalition, “I will pray with you all” before the second blast hit.
But the investigation yielded little to no result; MSF decried the fact it had been conducted by one of the parties accused to be responsible for what amounts to a war crime. Indeed, the US exonerated itself of any war crime accusation by claiming the threshold intent had not been met. In the Guardian still, Spencer Ackerman writes:
At the Pentagon, Votel said the strike did not rise to the level of a war crime since striking the hospital was not an “intentional act” – something John Sifton of Human Rights Watch called “simply wrong as a matter of law”.
Interviews with Kunduz residents and relatives of the victims indicate a belief that the US purposefully targeted the hospital. Some rejected the commander’s apology as insincere and urged harsh punishment for the perpetrators.
Votel, a former special operations commander, said the investigation determined the hospital never served as a staging ground for attacks by the Taliban, nor did any enemy fire come from the hospital, as MSF has long said and in contradiction to Afghan officials.
The narrative on Kunduz shifted so many times that, unless an independent investigation is carried out, little will be known of the exact conditions of the multiple strikes that devastated a MSF-supported hospital, and those of Shiara in Yemen on January 10, as well as the destruction of Al-Quds pediatric hospital in Aleppo on April 28. The level of intent with which the US military attacked the wrong building, as the Pentagon report laid out, is not clear. Whether this is a war crime is not, to this day, entirely clear. That is because the criteria of intent for the law of armed conflict differs. For US authorities, there is no war crimes because the killing of civilians – and the targeting of a civilian building – was accidental. If there was no purpose of attacking the building, then the responsibility lies within the knowledge portion – a violation of the principle of distinction. This is where MSF differs with the Pentagon assessment: they maintain all belligerent parties knew of the location of the hospital; that phone calls had been placed after the first missile hit to inform the NATO coalition that they had hit a hospital; in spite of all these efforts, the bombing did not cease. A battle of wits between Jens David Ohlin and Kevin Jon Heller offers a conversation on the level of intent that doesn’t blur the lines as much as it blurs the possibility of accountability for Kunduz. Despite the chain of awful errors outlined by the Pentagon report, there is still much to debate on whether the intent threshold for a war crime was met. After a priceless argument on the two material elements of intent – conduct and consequence – Heller concludes:
In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.
Kunduz will therefore add itself to the pile of incidents in which the responsible party never intentionally attacked civilians, denounces the presence of civilians, refuses independent investigators access to determine the civilian status of the deceased or the attacked object, or, worse yet, claims the civilians killed were not even civilians in the first place. Initially, US authorities had claimed Taliban had taken up post in the hospital, firing at Afghan soldiers. In Gaza, the Israeli Defense Forces claimed that Hamas members were hiding inside UN schools, firing rockets from over the heavily guarded borders. It took months to establish evidence of the presence of military objects in UN offices in Gaza; MSF has strongly denied that any weapon had been lodged or hidden in the hospital. In Syria, the damage on Al-Quds, which also killed one of the last pediatricians left in the city, is again on a long list of possible war crimes committed by all parties to the conflict. In Afghanistan, the longest war ever waged by the United States, accountability has always been thin. In Yemen, countries assisting Saudi Arabia in its assault against the destabilized and feudal nation raise their hands in the air, insisting their help is only logistics.
For Afghanistan, for humanitarian organizations such as MSF, this lack of established liability due to lack of effort, or willingness, to investigate, means not just a lack of accountability, but impunity. In the aforementioned Guardian piece, the belief that the US targeted the hospital on purpose is spreading like wildfire – and could have devastating consequences:
The anger may stem from a widespread belief in Kunduz that the US military targeted the hospital on purpose. Nobody the Guardian spoke to seemed to believe that a military with such sophisticated equipment and surveillance would mistake a hospital.
“I don’t know why they targeted the hospital, but there were white Taliban flags on all the buildings around it, so why didn’t they target them?” said Hamdullah Salarzai, a worker at the hospital who was injured in the attack, and whose uncle, Aminullah, was killed.
As of the date of publication of this piece, there is no other planned investigation into the attack. The matter was further complicated thanks to an in-depth, on the ground investigation conducted by reporter Matthieu Aikins for the New York Times which leads to the conclusion that Afghan forces deliberately misled their American allies, targeting the hospital due to mistrust of MSF’s duty of neutrality. This is perhaps even more sombre than any contingency: the very principles underlying the fundamental protections of war are now perceived and interpreted as, in fact, taking sides, protecting belligerents over the fate of others. In this specific case, MSF, seeking to build and practice from remote, Taliban-held areas, were seen by the Afghan forces are taking the side of the Taliban, tending to their wounded the way they would their own soldiers, civilians, or other members of coalition forces. This is however what the humanitarian duty of neutrality, that MSF has always maintained even in the face of litigation possibly benefiting them, and what they ought to maintain at all costs. The level of distrust of any foreign intervention even for humanitarian purposes has become a fixture of the war on terror, in which the paradigm has shifted from what we believed was acquired and safe to utter uncertainty and unreliability, even to the extent of questioning what the protection of civilians could be – when one does not know who is considered a civilian.
Attacks on civilians: the end of by-default protection
The undeniable consequence of 15 years of the so-called war on terror was the redefinition of concepts we had come to think as familiar, of ideas that we had firmly held as self-evident, and of the respect of legal requirements that we, as an international community, lawyers, journalists and activists alike. The most contested and controversial one is the persistent myth of the “military-aged male”, any target fitting those vague and broad criteria that determine that they could very well be militants, and not civilians. Of course, the requests that belligerent parties were identifiable uniforms allowing observers to identify them as military, and therefore legitimate targets, could no longer apply and/or become a receivable argument for the proliferation of non-state armed groups in the conflicts emerging in the 21st century. Increasingly, battlefields became centers of guerilla warfare, those very same battlefields were also not always officially declared as such, turning rules of emergency applicable to the troops deployed in the area difficult to obtain, if at all, and remaining malleable due to the ever changing nature of the landscape. As a result, even with the rapidly changing surveillance technology, that has made considerable strides in the last decade, could not always determine with a degree of certainty that was reliable enough, whether a given individual in a crosshairs was a civilian or a belligerent.
As a result, the determination often became circumstantial or contextual. With the development of surveillance drone, the rapid fluidity with which signal intelligence is exchanged and stored between preferred partners, the pattern of a given situation emerges with better clarity than it would have in the days of counter-insurgency and counter-terrorism at a time when recruitment of informants – and hereby the use of human intelligence in addition to phone tapping – was the only way to obtain an incomplete but verifiable picture of the insurgent group in the crosshairs. In the absence of several layers of verifications, or missing information on the direct, immediate identification of a civilian, often on the move, the decision was based on contextual information: the company the individual kept, the nature of his presence in the area, but most importantly, the area itself. An area under heavy counter terrorism scrutiny and chosen as a battlefield of intense value – such as North Waziristan, at the border between Pakistan and Afghanistan – the difficulty to identify a local tribal elder from a Taliban leader became impossible for US forces, so little was the cooperation on the ground, so eager were they to strike, that it was decided as a matter of policy that a “military aged male”, meaning 19-60, and male, able-bodied, could possibly be a recruit of a local or global terrorist or insurgent organization – hereby becoming a target solely due to the fact that violent activity was recorded in the area; this sounds more like guilt by association, than it is averred risk assessment before a strike peddled as so surgically precise it considerably reduces the odds of a knowingly unlawful strike. This slides from the civilian-by-default of the Geneva Convention, in which no one easily identifiable as a belligerent had to be protected until further information or investigation could determine its status; it became the default status for may young and less young men in those non-declared battlefields, in areas were intelligence was difficult to gather, but where the necessity to ask took precedence over caution.
An excellent illustration of this issue is Operation Haymaker, a two-year campaign in the Hindu Kush to destroy elements of the Taliban and Al-Qaeda between 2011 and 2013. Analysis documents he obtained, national security reporter Ryan Devereaux takes a close look (1) at the elements that, together, form the larger picture of a targeted killing program that has resulted in more non-combatant casualties than the concept suggests and puts forward. The confidence resulting from the appeal of being able to select and identify a specific target then removing them from the battlefield – by capturing them but, more often than not, killing them – has formed in large part the presumptive successes of the war on terror. The determination of the status of those casualties is left to intelligence and military sources, in a situation in which independent verification is close to impossible. By February 2013, towards the end of Operation Haymaker, Devereaux says thirty-five “jackpots” – the actual target – had been reached, with over two hundred others, not directly identified, were also killed, dubbed “enemies” without further additional information.
In the complex world of remote killing in remote locations, labeling the dead as “enemies” until proven otherwise is commonplace, said an intelligence community source with experience working on high-value targeting missions in Afghanistan, who provided the documents on the Haymaker campaign. The process often depends on assumptions or best guesses in provinces like Kunar and Nuristan, the source said, particularly if the dead include “military-age males”(…) Certainty about the death of a direct target often requires more than simply waiting for the smoke to clear. Confirming that a chosen target was indeed killed can include days of monitoring signals intelligence and communication with sources on the ground, none of which is perfect 100 percent of the time. Firing a missile at a target in a group of people, the source said, requires “an even greater leap of faith” – a leap that he believes often treats physical proximity as evidence.
This is not a problem solely confined to US drone warfare. Israel’s assault on Gaza has often referred to hordes of Hamas fighters invading UN-run schools, UN-run hospitals and other protected buildings; Gaza, the most densely populated area in the world, also its youngest, could then be flooded with recruits – or potential recruits, which would justify a preemptive strike – and become justifiable and legitimate targets. We are seeing the end of non-engagement; the end of hors-de-combat; women and children become fair game. In the name of an overwhelming principle of precaution, preemption takes over determination, and targeted killing becomes led by a threshold of near certainty heavily contested by legal organizations, but most importantly, the targeting system itself has revealed itself flawed despite the combination of both evolving HUMINT and SIGINT, with the reliability of what was deemed actionable intelligence put into question through heavy meddling of intelligence agencies, the lack of definition of terrorism, the opacity of the legal policy of the targeted killing, and in the case of the UK, the complete absence of a reliable chain of command upon which lies the burden of making a decision that could very well later amount to a violation of the right to life.
The Geneva Conventions, however, remain clear. They also belong to an era where soldiers wore uniforms, where guerilla warfare was contained to small, localized insurgencies, where wars were fought on frontlines, trenches, and other clearly visible areas. By extending a battlefield to any place where a KST might be, the war reached civilian structures, facilities, protected personnel and other non-targetable objects. Not only are clear, known targets difficult to pinpoint regardless of the advancement of technology, but deliverance of ordnance through the air carries an inherent risk of additional casualties. International humanitarian law does take it into account; what is at fault here is the immediate and uninformed classification of those collateral bodies as enemies, legitimizing every aspect of the strike, endorsing the targeted killing program as a flawless, surgical weapon of war that, instrinsically, makes the extension of the war zone both lawful and legitimate, because necessary and proportionate. Advocates of a reform of IHL that would fit the paradigm of the war on terror seem to consider that this end of default protection of civilians – an acceptance of an enemy status automatically extended to whomever happens to be in an area. By Devereaux’s conclusion, confirming the death of a target is difficult; assessing the status of a casualty can be just as difficult. The advanced destruction of the bodies hit by missile, often charred beyond recognition, make a positive identification by the family impossible, or have their word be weighed against the impossibility of scientific determination. It isn’t that the law is inadequate, doesn’t adapt to the new context of counter-terrorism. It’s that the convenience of giving in to the utmost secrecy of an intelligence-led operation prevails over the demand for accountability.
The myth of disarmament
The 71st General Assembly of the United Nations will open on September 13th in New York City, with an agenda largely focusing on peace and security, the spectre of several wars leading to unprecedented humanitarian crisis looming over the large building dominating the Upper East Side. The damage caused by those wars was, to some extent, preventable. The horror wrought upon Syria and Yemen is compounded by paralysis for the former, and profit for the latter. If the situation in Syria is extremely complex and deserves an essay of its own, addressing disarmament without addressing the facilitation of potential war crimes in Yemen would risk unsubstantiality. As of right now, the coalition led by Saudi Arabia aiming at “restoring legitimacy” in Yemen following the overthrowing of the government by the Houthis has displaced millions of civilians, left just as many without access to food or basic aid, and the constant bombing of medical facilities pushed MSF to pull out of northern Yemen entirely.
Saudi Arabia could not wage this war alone. The kingdom does not manufacture weapons; it relies on arms imports for everything from fighter jets to missiles, and has become the first beneficiary of arms transfers for 2015. Generating relevant databases via SIPRI (the methodology of which can be accessed here) shows a very disturbing picture given the extent of the carnage in Yemen. It also considerably illustrates the issue of the Security Council’s inaction over the two-year conflict, trapped between the responsibility of being a permanent member and the significant domestic profit that can be ramped up by war.
The role of weapons manufacture and arms transfers has been denounced as early as late 2014 by anti-war organizations. In two countries specifically, the UK and Canada, the issue of the efficacy of the application of domestic legislation regulating arms trade has been raised by Amnesty International over the alleged war crimes in Yemen. Two reports detailing the destruction of civilian facilities have been released, leading to calls for suspension of arms trade with Saudi Arabia. It is difficult to argue for the respect of human rights when arms trade is so profitable for states. France, for instance, struggling with national debt, has closed a contract worth €3bn with Saudi Arabia; codenamed DONAS, the contract concerns the proxy arming Lebanon, paid for by the kingdom. Canada has modified its own regulation methods in order to balance it with what leadership considers it to be national interest, helping current Prime Minister Justin Trudeau to accept a $15bn deal at the peak of the horror in Yemen.
Database generated on SIPRI on August 20, 2016: top 10 arms suppliers, numbers in trend-indicator value, the TIV, known production cost of the weapons instead of core financial value.
From this table, we can see the top 5 arms suppliers in the world consist in 4 of the 5 permanent members of the Security Council, in charge of maintaining peace and security. The 5th member is listed close, taking the 6th spot. While the United States is far, far ahead of its cohorts, it is striking that the world order is left in the hands of those who have more to profit from war.
Disarmament has been a long standing goal of the United Nations, and first focused on nuclear disarmament, which continues to be underway and has taken a considerable step forward thanks to the diplomatic negotiations around the Iran deal. The regulation of other types of mass and non mass destruction weapons is now covered by the Arms Trade Treaty, which entered into force on December 24th, 2014. For the United Nations, regulation of arms trade is a core principle to prevent humanitarian crisis and uphold the protection of civilians in war:
Inadequate controls on arms transfers have led to widespread availability and misuse of weapons. One serious consequence: the disruption of life-saving humanitarian and development operations because of attacks against staff of the United Nations and other humanitarian organizations. In many areas of work, the United Nations faces serious setbacks that ultimately can be traced to the consequences of the poorly regulated arms trade. We see weapons pointed at us while maintaining international peace and security, in promoting social and economic development, supporting peacekeeping operations, peacebuilding efforts, monitoring sanctions and arms embargoes, delivering food aid or helping internally displaced persons and refugees, protecting children and civilians, promoting gender equality or fostering the rule of law. That is why the adoption of the Arms Trade Treaty is so significant for the UN system as a whole.
Because not every arms transfer necessarily falls short of regulation, let alone is in blatant violation of domestic and international regulation, a closer look at the obligations resting upon states having ratified the ATT sheds a light on the situation of Yemen and the persistence of arms trade with nations known or suspected to commit war crimes. An implementation toolkit, released for states about to ratify, includes various modules, the fifth one concerning the prohibition of transfers. The first two sub-categories regard the prohibition of transfers to states under UN-imposed embargo; the second, on illegal trafficking; the third one finally tackles transfers despite knowledge of the use of those weapons to commit grave breaches of the Geneva Conventions:
Where a State Party has knowledge, at the time of the authorization, that the items subject to a transfer authorization would be used to commit genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party, the State Party must prohibit such transfer.
If it authorizes the transfer, the State Party would not only be in non‐compliance with the ATT, but it could also be responsible under the law of state responsibility for aiding or assisting in the international wrongful act. Article 16 of the Articles on Responsibility of States for international wrongful acts provides: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State”.
Canada, mentioned above as having modified domestic legislation in order to facilitate the transfer of arms to Saudi Arabia, is not a state party to the ATT (it is currently seeking to accede it, after previous Prime Minister Harper refused to sign in 2013). The United States has signed the treaty, but has not ratified it. France was among the first 54 state parties praised by the General Assembly. In the United Kingdom, also a state party, an investigation has been requested from the Ministry of Defence (MoD) in order to evaluate how much was known by British authorities of the use of those weapons by Saudi Arabia at the time of transfer; how much had been communicated by Saudi Arabia as to how those weapons would be used; and how the MoD had assessed news reports of war crimes allegations knowing arms transfers were pending.
The ATT’s prohibitions on transfers seem self-evident, but require several factors of investigations from state parties that are perhaps deemed too complex to comply. The political interests of a state party seem to prevail over its legal obligations under international law. A parliamentary debate taking place in June 2016 in the House of Commons considering the suspension of arms transfers with Saudi Arabia has led to this statement by conservative MP Sir Alan Duncan:
The thing about Yemen—the hon. Lady did not mention this at all—is that we are in conflict for a reason. The conflict started because a legitimate Government were displaced by highly armed Houthi rebels who had raided heavy weapons stores and used those weapons against the legitimate Government. They pushed them out of Sana’a and headed down towards Aden. The hon. Lady did not mention the human rights violations committed by the Houthis. They have rounded up teenagers, put them in rooms and blown them up (…) There are very different sorts of weapons. In Yemen, every teenager has a rifle on their shoulder. That is the sort of country we are dealing with. I question the hon. Lady’s bold assertion that there has been deliberate targeting of civilians. That is a very serious accusation.
The debate later continued, from the opposition side of the bench,
It is clear that the UK Government will not conduct their own investigations into the issue. That was confirmed on the BBC World Service in an interview with an MOD official, who said:
“We are not launching an investigation”.
I have written to the Prime Minister to ask what the position is. Are we having an investigation, or are we not? I am waiting for a response from both the Ministry of Defence and the FCO on this matter. There is absolutely no doubt that the evidence suggests that this merits an investigation. I simply do not know what the Government are waiting for to justify that.
It will require more than just one state to suspend arms transfers to Saudi Arabia to help stop the terrifying onslaught on Yemen. Not one state is entirely responsible of being in violation of regulation. Generating a database on states providing Saudi Arabia with weaponry provides a similar, but more complex vision:
Database generated on August 20, 2016, exports to Saudi Arabia, 2014-2015, expressed in TIV via SIPRI.
Despite five exceptions, exports to Saudi Arabia have increased from 2014 to 2015; the war intensified, violence increased, the humanitarian disaster revealed figures that “dwarfed Syria’s”. A long, detailed analysis by reporter Samuel Oakford details the dysfunction and hypocrisy to the US and Saudi Arabia deafness to calls to respect international law. And why would they: there is virtually no attempt that could be remotely successful at enforcing any resolution. Responding to MSF’s withdrawal from northern Yemen, Saudi Arabia commented to Reuters that they “deeply regret” the move, feel “concerned” and “appreciate” the work the leading humanitarian organization has carried out for the Yemeni people – without mentioning they have been performing it under considerable strain and danger, recording unsustainable losses. Saudi Arabia is operating outside of any framework applicable to any other member state; is fully aware of the impunity somehow extended to its actions – and can afford to release statements to the press about seeking to reach out to MSF to help them maintain the operation centers they have themselves bombed. Earlier, writes Oakford,
In September, as the civilian toll in Yemen continued mounting, Zeid had called for an independent, international inquiry into the conflict. At the Human Rights Council in Geneva, Dutch representatives introduced a resolution that would have created such a body, only to see their support melt away in the face of intense pressure from the Saudis and their allies. Instead, the council passed a Gulf-authored resolution endorsing a national investigation controlled by the exiled Hadi government. That inquiry was widely seen as biased and unequipped, and moreover had no access to most of Yemen.
According to diplomats, the U.S. was largely quiet during negotiations over the text, allowing the Saudis to bully the Netherlands—literally sitting with them at a coffee table and crossing out sections of the resolution the U.N. human rights chief wanted.
The Arms Trade Treaty is a strongly worded covenant that has been long in the writing, and in enforcing. The commitment to disarmament, a core principle of the United Nations, that had an opportunity to cease being an unattainable dream at the end of the Cold War, feels strained in an increasingly polarized world, a vision of western political leadership conflated with the use of force, a wave of regime change in the Middle East – the Arab Spring – that has led to either fragile stability or military rule, the constant presence and expansion of terrorism, and the slow realisation that collective security had always been seen through the prism of national interest. While incendiary weapons engulf Syria and burn it to the ground, while photos of young children carrying heavy artillery circulate from Yemen, Turkey builds cemeteries for traitors and Russia enforces a parallel narrative on its non-presence and non-action following its non-annexation of sovereign territory. More than ever, the United Nations has been facing the test of whether it was capable of enforcing peace and security. More than ever, the United Nations becomes a sum of its member states’ parts, instead of an autonomous supranational organization. The Security Council can not vote on an arms embargo to Saudi Arabia while every single one of its permanent members are directly cashing the financial rewards of arms transfers, civilians be damned. War has come to define the institution more than peace and diplomacy ever did.
When we fail to protect
The legitimacy of the United Nations is being increasingly questioned in activists’ circles; the self-preserving ways of the super powers is being criticized during general assembly, with nations from Africa and Asia seeking access to seats of power they do not deserve to share on a rotating basis due to a world order that is over 70 years old. The two main organs, the Security Council in New York and the Human Rights Council in Geneva, appear to be at odds over the constant gridlock that was illustrated in the latest Gaza war. The passing of UNSC Resolution 2286 is one of those instances when the strong wording and the reiteration of commitment to basic principles rings even more shallow in the face of the conflicts that are perpetuated by the states represented at this very council. The question of whether the Security Council continues to embody shared, common values is now all over newspaper, justifiably arguing that the post-war supremacy of the organization has outstayed its welcome.
There is much the UN can do. The politicization of human rights and the struggle between national interest and collective security are not new concepts, new issues, new empirical political and legal conflicts. Just like everywhere else, the role the UN plays on the international scene is best exemplified by its leadership. In 2014, shortly before the end of her term as High Commissioner for Human Rights, Navi Pillay issued a statement of significance on the role of the Security Council at a time when the worst conflicts of this year were emerging, and global chaos already felt endemic. Her interpretation of this specific climate of conflict was clear: it was in part due to the inaction of the Security Council.
The Council’s interest in human rights has increased markedly during my tenure. But despite repeated briefings regarding escalating violations in multiple crises – by OHCHR and other human rights mechanisms – there has not always been a firm and principled decision by Members to put an end to crises. Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of – and long-term threats to – international peace and security. I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives.
The role of member states within the UN apparatus must be understood through a realist perspective. It is evident that the global ideology that holds the organisation together is a western one, and those shared values around shared legislation that has been drafted and enacted by those member states. The universality of human rights may be questioned not in their principles, but in their enforcement, in the application of accountability, in the consistency with which we, as an international community, denounce violations of human rights as they occur. But self-preservation is a much bigger instinct, and alliances form at the UN the way they form everywhere else, in turn preserving a status quo supposed to be dismantled or at least challenged by the very institution sustaining it. In a scathing criticism of UN shortcomings, Dr Rosa Freedman writes that (2), because Global North country retain considerable control of UN human rights bodies, it also controls the positions and decisions those bodies are tasked with undertaking.
While that slowly is changing, with more independent experts coming from universities from other regions, and indeed from NGOs and private practice, the imbalance still remains. (…) The legal and political infrastructure more clearly reflects Western ideologies than those of Eastern Europe or beyond. This frequently assists the US when it comes to scrutiny by those experts. Russia and China, then, rely on greater number of allies while the US relies on stronger allies who are better equipped to navigate the UN infrastructure. The end result is the same. All three countries are protected from UN action despite committing serious human rights abuses. Realist power-politics win when it comes to the most powerful states. Their might on the world stage affords near-impunity when it comes to violating human rights.
This system of alliances is exactly what Samuel Oakford exposed as having been practiced by Saudi Arabia. The position of the UN Secretary-General, Ban Ki-moon, has been to finally come clean about the interference, stopping short of calling it illegitimate, and seeking to remove Saudi Arabia from advisory panels in which they would be in position to directly influence decision-making. But this, assuming it could be done, would not end the reign of financial dominance that plays in bilateral relations between nation-states that translates into UN backchannel deals; if former High Commissioner Navi Pillay ended her farewell speech by demanding adherence to the Arms Trade Treaty, violations of its terms by any state party must be followed by immediate investigation of the circumstances in which the obligations were breached, and referral to the competent jurisdiction. There is no reliable assurance that this would be performed. Dr. Freedman continues,
Comparing the most powerful countries with the ‘pariah states’, such as Israel and apartheid-era South Africa, demonstrates how world politics is crucial when it comes to the UN protecting and promoting human rights. The same power-politics than enable disproportionate scrutiny of some countries also allow powerful states to continue to behave as they wish. Unlike Sudan and even Italy and Greece, the most powerful countries do not need to provide excuses or justifications for their violations. Instead, their positions of power protect them from scrutiny and from any action being taken by UN human rights bodies. While the UN is mandated to protect rights across all member states, one might be forgiven for thinking that the most powerful countries commit violations that require UN action.
By reinforcing the legitimacy of non-elite positions, by supporting the work of independent experts, and by shaming permanent members of the Security Council can we end this reign of impunity – but the enforcement of the rule of law must either shift away from the Council, or demand reform of the Council. Either way, the last three biggest conflicts that resulted in the worst possible form of horror for civilians were a failure of collective security, a failure that has come to define our current era.
(1) In The Assassination Complex, Jeremy Scahill and the staff of the Intercept, pp. 156-157. 2016.
(2) in Failing to Protect, Rosa Freedman, pp. 94-95. 2014.