The United Kingdom's decision to leave the European Union has ramifications beyond the UK and the EU. This article analyses the impact of the Brexit referendum on the UK's political capital in the United Nations Security Council; a dimension of Brexit that has received little attention thus far. Drawing on extensive elite interviews we show that the UK has considerable political capital in the Council, where it is seen as one of the most effective actors, but the reputational costs of Brexit are tarnishing this image. With case-studies on the UK's role in Somalia and Yemen we show how the UK has been able to further its interests with dual roles in the EU and Security Council, and the risks posed by tensions between trade and human rights after Brexit. We also analyse what it takes to be influential within the Security Council and argue that more attention should be paid to the practices of diplomacy. Influence is gained via penholding, strong diplomatic skill and a well-regarded UN permanent representative. The UK accrues political capital as a leader on the humanitarian and human rights side of the Council's agenda, but this reputation is at risk as it exits the EU.

Summary

• The vast majority of state-to-state cyberattacks consist of persistent, low-level intrusions that take place below the threshold of use of force. International law, including the principle of non-intervention in another state’s internal affairs and the principle of sovereignty, applies to these cyber operations.
• It is not clear whether any unauthorized cyber intrusion would violate the target state’s sovereignty, or whether there is a threshold in operation. While some would like to set limits by reference to effects of the cyber activity, at this time such limits are not reflected in customary international law. The assessment of whether sovereignty has been violated therefore has to be made on a case by case basis, if no other more specific rules of international law apply.
• In due course, further state practice and opinio iuris may give rise to an emerging cyber-specific understanding of sovereignty, just as specific rules deriving from the sovereignty principle have crystallized in other areas of international law.
• Before a principle of due diligence can be invoked in the cyber context, further work is needed by states to agree upon rules as to what might be expected of a state in this context.
• The principle of non-intervention applies to a state’s cyber operations as it does to other state activities. It consists of coercive behaviour by one state that deprives the target state of its free will in relation to the exercise of its sovereign functions in order to compel an outcome in, or conduct with respect to, a matter reserved to the target state.
• In practice, activities that contravene the non-intervention principle and activities that violates sovereignty will often overlap.
• In order to reach agreement on how international law applies to states’ cyber operations below the level of use of force, states should put their views on record, where possible giving examples of when they consider that an obligation may be breached, as states such as the UK, Australia, France and the Netherlands have done.
• Further discussion between states should focus on how the rules apply to practical examples of state-sponsored cyber operations. There is likely to be more commonality about specific applications of the law than there is about abstract principles.
• The prospects of a general treaty in this area are still far off. In due course, there may be benefit in considering limited rules, for example on due diligence and a prohibition on attacking critical infrastructure, before tackling broad principles.

In discussions to date about how international law applies in cyberspace, commentators have tended to focus their attention on how the rules on the use of force, or the law of armed conflict, apply to cyber activities conducted by states that give rise to physical damage, injury or death.

But in practice, the vast majority of state cyberattacks fall below this threshold. Far more common are persistent, low-level attacks that may leave no physical trace but that are capable of doing significant damage to a state’s ability to control its systems, often at serious economic cost.

Such cyber incursions might include network disruptions in the operation of another government’s websites; tampering with electoral infrastructure to change or undermine the result; or using cyber means to destabilize another state’s financial sector.

For these kinds of cyber operation, the principle of sovereignty, and the principle of non-intervention in another state’s internal affairs, are the starting point.

A UN Group of Government Experts (GGE) agreed in 2013 and 2015 that the principles in the UN Charter, including sovereignty and the prohibition on intervention in another state’s affairs, apply to states’ activities in cyberspace. The 2015 GGE also recommended eleven (non-binding) norms of responsible state behaviour in cyberspace.

However, states have not yet reached agreement on how to apply these principles. Until recently, there has also been very little knowledge of what states actually do in cyberspace, as they usually conduct cyber operations covertly and have been reluctant to put their views on record.

A new Chatham House research paper analyses the application of the principles of sovereignty and non-intervention to state cyberattacks that fall below the principle of use of force. As well as analysing the application of the law in this area, the paper also makes recommendations to governments on how they might best make progress in reaching agreement in this area.

Existing rules or new rules?

As the research paper makes clear, there is currently some debate, principally between countries in the West, about the extent to which sovereignty is a legally binding rule in the context of cyberspace and, if so, how it and the principle of non-intervention might apply in practice.

In the last few years, certain states have put on record how they consider international law to apply to states’ activities in cyberspace, namely the UK, Australia, France and the Netherlands. While there may be some differences in their approaches, which are discussed in the paper, there also remains important common ground: namely, that existing international law already provides a solid framework for regulating states’ cyber activities, as it regulates every other domain of state-to-state activity.

There is also an emerging trend for states to work together when attributing cyberattacks to hostile states, enabling them to call out malign cyber activity when it violates international law. (See, for example, the joint statements made in relation to the NotPetya cyber attack and malicious cyber activity attributed to the Russian government).

However, other countries have questioned whether existing international law as it stands is capable of regulating states’ cyber interactions and have called for ‘new legal instruments’ in this area.

This includes a proposal by the Shanghai Cooperation Organization (led by Russia and China) for an International Code of Conduct on Information Security, a draft of which was submitted to the UN in 2011 and 2015, without success. The UN has also formed a new Open-Ended Working Group (OEWG) under a resolution proposed by Russia to consider how international law applies to states’ activities in cyberspace.

The resolution establishing the OEWG, which began work earlier this year, includes the possibility of the group ‘introducing changes to the rules, norms and principles of responsible behaviour of States’ agreed in the 2013 and 2015 GGE reports. In the OEWG discussions at the UN in September, several countries claimed that a new legal instrument was needed to fill the ‘legal vacuum’ (Cuba) or ‘the gap of ungoverned areas’ (Indonesia).

It would be concerning if the hard-won consensus on the application of international law to cyberspace that has been reached at past GGEs started to unravel. In contrast to 2013 and 2015, the 2017 meeting failed to reach an agreement.

On 9 December, a renewed GGE will meet in New York, but the existence of the OEWG exploring the same issues in a separate process reflects the fact that cyber norms have become an area of geopolitical rivalry.

Aside from the application of international law, states are also adopting divergent approaches to the domestic regulation of cyberspace within their own territory. The emerging trend towards a ‘splinternet’ – i.e. between states that believe the internet should be global and open on the hand, and those that favour a ‘sovereignty and control’ model on the other  – is also likely to make discussions at the GGE more challenging.

Distinct from the international law concept of sovereignty is the notion of ‘cybersovereignty’, a term coined by China to describe the wide-ranging powers it assumes under domestic law to regulate its citizens’ access to the internet and personal data within its territory. This approach is catching on (as reflected in Russia’s recently enacted ‘Sovereign Internet Law’), with other authoritarian states likely to follow suit.

The importance of non-state actors

In parallel with regional and UN discussions on how international law applies, a number of initiatives by non-state actors have also sought to establish voluntary principles about responsible state behaviour in cyberspace.

The Global Commission on the Stability of Cyberspace, a multi-stakeholder body that has proposed principles, norms and recommendations to guide responsible behaviour by all parties in cyberspace, recently published its final report. The Cybersecurity Tech Accord  aims to promote collaboration between tech companies on stability and resilience in cyberspace. President Macron’s ‘Paris Call for Trust and Security in Cyberspace’ has to date received the backing of 67 states, 139 international and civil society organizations, and 358 private-sector organizations.

It remains to be seen in the long term whether the parallel processes at the UN will work constructively together or be competitive. But notwithstanding the challenging geopolitical backdrop, the UN GGE meeting next week at the least offers states the opportunity to consolidate and build on the results of past meetings; to increase knowledge and discussion about how international law might apply; and to encourage more states to put their own views of these issues on the record.

Michelle Bachelet, as a young woman you became involved with political issues, supporting Chile’s transition to democracy following the Augusto Pinochet regime. What first sparked your interest in politics and what was it like for you as a young woman in Chile at this time?

I guess it’s related to the environment that I lived in as a child because none of my parents were involved in politics but they were people who were interested in what happened to other people. We would have interesting discussions about what was going on in Chile and around the world and I had grown up being a person who wanted to be part of finding solutions to different challenges.

When I was a student, there were lots of things happening in Chile that I became interested in even though I was in medical school at the time. Then came an important political moment in the 1970s for Chile and I thought that I needed to help make Chile a better place for everyone – that my voice alone would not be enough – so I wanted to meet other people who might have answers to the questions I had. That’s when I became politically active.

I always say that, in my milk bottle, the word responsibility was included because I always have felt responsible for things. My parents also always used to tell me that we’re all human beings and, although we might have differences, we should all have dignity and be respected and have the same rights and opportunities because it is the right thing to do. So that’s how I became what I became.

You became the first woman in Latin America to hold the post of minister of national defence in 2002 and pushed to include more women in conflict resolution. Given that the inclusion of women in peace processes increases the likelihood of agreements being reached, yet women are largely excluded from the negotiating tables, why should more women in peace and security be prioritized? 

I used to push hard to have more women as negotiators and mediators at different levels when I was minister of national defence but I was told ‘We don’t have enough women with the capacity’. Of course that was not true. So one of the tasks I set myself was to build a roster of capable women so that tomorrow nobody could use this excuse. 

We built a roster, but still, as you say, there was a tendency not to have women included at all levels. I think this is because there’s still machoism and sexism that exists at some levels. Some men feel that women are weaker, that they’re not capable enough, and that’s not true. Women are important because women have the right skills to be negotiators and mediators.

I have to say that UN Secretary-General António Guterres has done a great job by appointing women in half of all the posts for special envoys and special representatives in conflict places. But we still need to do more. 

Why do I believe women make a difference? Conflicts matter to both women and men because they impact both, but usually, the experiences of women are invisible in the eyes of many who work in negotiating and mediating peace. That’s why you need people that can bring this perspective to the table. 

The other thing is that women can often get close to other women in conflict places, and in that case, they can get a lot of useful information from women on the ground because they don’t feel threatened by other women. This is particularly true of women who have been victims of sexual violence who are more willing to tell another woman what they have experienced. 

But, at the end of the day, women are half of the population of the world and I think we need them to be represented adequately.

In 2006, you became the first female president of Chile, what was this like for you and did you feel pressure taking up this mantle?

Yes of course. I mean, there were a lot of people who would say ‘I want to vote for you but I don’t think it’s a woman’s place’. Journalists would also ask you ‘You are divorced and don’t have a man by your side. How are you going to cope?’ and I would respond by saying ‘I have always done it myself.’

Sometimes if I took some time to make a decision, because I thought it needed a bit more time to reflect on what to do, they would say ‘She doesn’t take decisions’ but if you made a quick decision then they would say ‘She improvises’. I’m not complaining, I’m just describing the kinds of things that go on, and these are the things I have spoken about with other female leaders from around the world. For example, I once talked to Helle Thorning-Schmidt, the former prime minister of Denmark, and she would tell me that during the election campaign they would discuss the size of her purse and if she had a boyfriend. I mean, really, people tend to diminish women by talking about unsubstantial issues – there will be a lot of attempts to try to bring a woman’s self-esteem down. 

What I would say is, if you know exactly why you are there and what you want to do as a president, parliamentarian or whatever and you’re sure that what you want to do is the right thing – and the smart thing – then do it. Pick a team that is honest, that works with the same passion as you and that is loyal to you but is not afraid to tell you when things aren’t working. But it’s hard and difficult and politics is getting nastier every day.

You said politics is getting nastier. Julia Gillard recently spoke to me about the dark side of social media for women. In what ways do you think politics is changing for women in particular?

I remember seeing that, in the European Parliament, about 85 per cent of women have experienced psychological violence whether they have received death threats or threats of rape and all kinds of things just because they’re female.

There is also a bias against women during election campaigns where people say she cannot be elected because she’s not capable just because she’s a woman. 

Then there are those that, as I mentioned before, try to talk about personal things or spread fake news. Politics has always been about debate between people with different positions, and that’s fine, but I think sometimes you see it goes past the limit in terms of respect for the other person.

Then there is the language. Failing to understand that the other person is a competitor, not an enemy, and using language to, sort of, symbolically destroy the other one is not right. I see it everywhere and I think that’s not what politics is for – we came to serve the people and words matter. 

I think all of these things are making a lot of people not want to get involved in politics anymore because it’s not the kind of environment that we want to be in. But I hope, on the other hand, that if we have more women in politics, maybe we can turn that trend to a more positive and constructive one, where there can still be intense debate but in a way where everybody feels that we’re all part of the same country and we can all build the country together.

How did you find your male counterparts responding to you as leader? Was there a time, for example, your gender became an issue for you while you were in office?

When I was a student of medicine, what mattered was whether you were a good student or a good doctor, not if you were a man or a woman, but in politics, I found that when I appointed ministers, some of them struggled with me being a woman. For example, sometimes I would conclude a meeting by saying ‘We’re going to do this’ but there would be a male minister who would have to have the last word. Or some of them, particularly the more senior ones who had been in senior positions before, found it challenging to accept a secondary role to a woman.

On the other hand, with the military, I had no problem. Neither as minister of defence and neither as president because they understood the chain of command.

It’s interesting to look at women in other leadership positions too. For example, I remember a friend who worked in a place many years ago and she would tell me that she needed to swear and almost to spit on the ground so that men would respect her because the majority of the leaders there were men. I said to her ‘You don’t need to look like a man to be a leader.’

Perhaps sometimes it’s more difficult because strength is understood in different ways but my message would be that you can be a leader in your own way. 

While president of Chile, you introduced a number of policies aimed at addressing women’s rights issues notably on the gender pay gap and on sexual and reproductive rights for women.

How do you view your legacy on these issues? Were there other policies you wanted to implement but were unable to? And how would you like these initiatives to be furthered today in light of, for example, the rolling back of reproductive rights for women in some parts of the world?

We went from trying to improve the legal framework that applies to women to creating the Ministry of Women and Gender Equity. We also tried to push for changing the electoral roll with quotas for women which we got to an extent but not as much as I wanted. There was no appetite for having a quota for 40 per cent of all those elected to be women so we settled for 40 per cent of all candidates to be women. We still improved a little bit in terms of the number of women being elected from 14 per cent to 24 per cent through this but I didn’t get everything I wanted. Nevertheless, during my time in office, we were able to increase the representation of women in the Senate and the House which was positive. 

On sexual and reproductive rights, in Chile, abortion was criminalized so we were able to decriminalize abortion and we also advanced LGTBI rights and so on. We also developed a better legal framework for dealing with sexual violence but of course sexual violence is a complicated issue that cannot be solved in a short period of time and we need to continue working strongly on that.

The other thing I’m a believer of is the importance of early child development which is good for both boys and girls. So we set up a network of kindergartens free of charge, particularly for poorer people, because there are so many women who cannot afford to put their children in kindergartens while they study or work. So we tried to do lots of things to expand women’s opportunities and women’s rights during my time in office.

Women are increasingly making it to the top level of politics around the world, yet in Latin America, the number of female heads of states has dropped to 0 following a generation of female political leaders across the continent.

Why do you think this is the case and could we see this change again in the future? Do you think Chile is likely to see another female president soon, and if so, who do you think could take up the mantle?

The truth is that there was a moment that I think the region had four or so female heads of states, and although there are currently some female vice presidents, the number of presidents is 0 but I wouldn't be able to say that this is necessarily a bad thing. There doesn’t need to be a female president every time. We need to have female leaders where their citizens believe that they’re the best people to lead their countries.

But we do need to do more to support women making it to the top so they can have all the skills needed to be a president or a prime minister and work more with young women too so that they can think of themselves as being able to take up such positions of leadership in the future. 

In Chile, I hope, of course, there will be another woman president one day but I have no idea when. I will not run again, I can tell you that, but I hope when the time comes, the people of Chile will believe in them.

In your current role, you have said that ‘The climate crisis is the greatest threat to human rights’ and that climate change and gender equality are inextricably linked. How do you see this link and what does that mean for how these issues should be addressed?

Climate change is the biggest threat to human rights because it affects the right to life, to food, to health and to live without violence, and if we are not able to tackle it, it will lead to water scarcity, food insecurity, forced migration and conflict – all of which we are seeing already.

Why is it linked to gender equality? There are many reasons. One of them is that women, who make up half the global population, are usually among the most vulnerable people in the world. Today there are billions of people who don’t have access to water, sanitation or housing with women having less access to all of these tools that would permit them to adapt [to a changing climate].

For example, women will be more affected by food insecurity because imagine a woman who is pregnant without food. She will likely end up being underweight, and then afterwards, this will impact her child who will be at risk of malnourishment. We see it everywhere where women avoid eating so that their children can eat.

Furthermore, if we have water scarcity, that will also affect women because today, in many parts of the world, women and girls fetch the water for their families. If water becomes increasingly scarce, they will have to walk longer to fetch it, and today we already see women and girls who are subject to sexual gender-based violence as they carry out their day-to-day tasks. 

That’s why we need to provide women with the tools to empower them and to devise gender-responsive policies to climate change. 

Throughout your career, have you seen the scale and pace of change for human rights, particularly women’s rights, around the world that you would have wanted?

It depends on how you look at things. It has been over 70 years since the Universal Declaration of Human Rights was written when maternal mortality was incredibly high in many parts of the world and women did not have the vote everywhere.

If you look from that time to now, of course, women’s rights have seen a lot of progress. Maternal mortality has reduced and women can vote I think [in almost every democracy].

But over the last few years, we have seen a pushback on women’s rights, particularly in some areas like sexual and reproductive health rights, and that it something that concerns me a lot.

So I would say we’re not there yet. I hope we will be able to push back the pushback and move forward. Because if we go on along the same trajectory as we are now, we will have economic equality for women in 120 years, which is too long. I mean, nobody wants your great, great, great grandchildren to have to wait so long for equality. We need to stand up for women’s rights – and for all human rights – now and accelerate the progress we’ve been making.

In the past couple of months, there have been ongoing protests in Chile and around the world. What in your estimation is driving the protests and in what ways should governments, civil society and others respond to help address their demands?

I think it’s a phenomenon we are seeing in Chile and many places around the world. It’s a new process where young people are voicing their grievances but with no particular leaders. It’s what some people are calling a ‘new power’ and I think the situation in Chile is very similar to what’s happening in Lebanon, Hong Kong and elsewhere but with different triggers. 

In some places, people are challenging the outcome of an election; in other places, they are protesting because leaders want to change the constitution to be re-elected again; in other places, it can be, like in the case of Chile, a result of economic issues following the increase of the price of what you would call the Underground here. These inequalities lead to a mistrust in our institutions and in traditional leaders and I think this is a universal experience at the moment.

The current political and economic system is not delivering and it’s failing to meet people’s needs. So these young people protesting don’t see, in the current political and economic system, the solutions to the concerns they have.

The other thing that is interesting is the role social media has played in many of these recent protests. Social media has become a different way to allow people to learn from each other. When the students in Chile decided to protest against the increasing price of public transport, they went to the Metro and jumped over the barriers and then, two weeks’ later, I saw it in New York. Hundreds of students, for different reasons – against police brutality – doing exactly the same thing. So they learn from each other and they see what works in one place. 

So I think there is something in the world that is making people go to the streets. If it’s peacefully done then that’s fine. The problem is that sometimes it has triggered a harsh response from governments and that leads to more violence. 

I believe what needs to be done is to try to set up a national dialogue that includes all sectors of all societies where governments listen to the grievances that people have. You cannot change things in a day but I think people are reasonable enough to understand if you are committed to change. 

That’s why the UN has developed the Agenda 2030 on Sustainable Development to leave no one behind. It probably won’t solve everything, but it will, I guess, if we are able to achieve the goals, help us have a planet that’s for everyone. 

A healthy civic space is vital for an enabling business environment. In recognition of this, a growing number of private sector actors are challenging, publicly or otherwise, the deteriorating environment for civic freedoms.

However, this corporate activism is often limited and largely ad hoc. It remains confined to a small cluster of multinationals leaving potential routes for effective coordination and collaboration with other actors underexplored.

This roundtable will bring together a diverse and international group of business actors, civil society actors and foreign policy experts to exchange perspectives and experiences on how the private sector can be involved in issues around civic space. The meeting will provide an opportunity to explore the drivers of – and barriers to – corporate activism, develop a better understanding of existing initiatives, identify good practice and discuss practical strategies for the business community.

This meeting will be the first of a series of roundtables at Chatham House in support of initiatives to build broad alliances for the protection of civic space. 

Attendance at this event is by invitation only. 

PLEASE NOTE THIS EVENT IS POSTPONED UNTIL FURTHER NOTICE. 

The decision by the International Court of Justice (ICJ) that Myanmar should take all measures available to prevent acts of genocide against the persecuted Rohingya minority is truly ground-breaking. The case shows how small states can play an important role in upholding international law and holding other states accountable. 

The Gambia, acting with the support of the Organization of Islamic Cooperation, skilfully used Article IX of the Genocide Convention, which allows for a state party to the convention to pursue cases against another state party where it is felt there has been a dispute regarding the ‘interpretation, application or fulfilment’ of the convention.

Seventeen states have entered reservations against this specific provision but Myanmar is not one of them. It was on this basis that The Gambia was able to take its case to the ICJ. This exciting development expands the possibilities of international accountability at the state-to-state level.

But it should be noted that the current ruling is focused on provisional measures – the central case could still take years to conclude. There is still a long road ahead on the court determining whether the Myanmar authorities committed acts of genocide.

And, while the decision was unanimous and binding, the ICJ cannot enforce its ruling. Myanmar has shown itself resistant to international criticism and there is a real risk they will fail to comply.

One way forward, should Myanmar not respect the ruling, is that the UN Security Council could agree a resolution to compel action. However, it seems unlikely that China would ever vote for such a resolution, given its strong stance on non-intervention and its economic interests in the country. 

Attacks against journalists and challenges to media freedom are urgent and global. The sharp decline globally of democratic values which are underpinned in international values highlights the need for a free press and the necessity for states to take concerted action to protect media freedom.

The High-Level Panel of Legal Experts on Media Freedom is an independent body convened at the request of the UK and Canadian governments in July 2019.

The remit of the panel is to provide recommendations to governments on how to better protect journalists and address abuses of media freedom in line with international human rights law.

Drawing on the panel’s new report, the speakers will discuss the use of targeted sanctions to protect journalists and a free press. Can the threat of targeted sanctions help curb the trend of increasing abuses against journalists?

And what legal frameworks and mechanisms will be necessary to ensure targeted sanctions achieve their goal of identifying, preventing and punishing abuses against journalists?
 
This event is organized in collaboration with the International Bar Association’s Human Rights Institute which acts as the secretariat to the High-Level Panel of Legal Experts on Media Freedom.

 

Violations against cultural property – such as archaeological treasures, artworks, museums or historical sites – can be no less detrimental to the survival of a nation than the physical persecution of its people. These assaults on heritage ensure the hegemony of some nations and distort the imprint of other nations in world history, sometimes to the point of eradication.

As contemporary armed conflicts in Syria, Ukraine and Yemen demonstrate, cultural property violations are not only a matter of the colonial past; they continue to be perpetrated, often in new, intricate ways.

Understandably, from a moral perspective, it is more often the suffering of persons, rather than any kind of ‘cultural’ destruction, that receives the most attention from humanitarian aid providers, the media or the courts. Indeed, the extent of the damage caused by an assault on cultural property is not always immediately evident, but the result can be a threat to the survival of a people. This is strikingly exemplified by what is currently happening in Crimea.

Ukraine’s Crimean peninsula has been occupied by Russia since February 2014, meaning that, under international law, the two states have been involved in an international armed conflict for the last six years.

While much attention has been paid to the alleged war crimes perpetrated by the occupying power, reports by international organizations and the International Criminal Court (ICC) have been less vocal on the issue of cultural property in Crimea. Where they do raise it, they tend to confine their findings to the issue of misappropriation.

However, as part of its larger policy of the annexation and Russification of the peninsula and its history, Russia has gone far beyond misappropriation.

Crimean artefacts have been transferred to Russia – without security justification or Ukrainian authorization as required by the international law of occupation – to be showcased at exhibitions celebrating Russia’s own cultural heritage. In 2016, the Tretyakov Gallery in Moscow staged its record-breaking Aivazovsky exhibition, which included 38 artworks from the Aivazovsky Museum in the Crimean town of Feodosia.

Other ‘cultural’ violations in the region include numerous unsanctioned archaeological excavations, whose findings are often unlawfully exported to Russia or end up on the black market.

There is also the example of Russia’s plan to establish a museum of Christianity in Ukraine’s UNESCO World Heritage site, the Ancient City of Tauric Chersonese. This is an indication of Russia’s policy of asserting itself as a bastion of Orthodox Christianity and culture in the Slavic world, with Crimea as one of the centres.

The harmful effects of Russia’s destructive cultural property policy can be seen in the situation of the Crimean Tatars, Ukraine’s indigenous Muslim people. Already depleted by a Stalin-ordered deportation in 1944 and previously repressed by the Russian Empire, the Crimean Tatars are now facing the destruction of much of the remainder of their heritage.

For example, Muslim burial grounds have been demolished to build the Tavrida Highway, which leads to the newly built Kerch Bridge connecting the peninsula to Russia.

The destructive reconstruction of the 16th-century Bakhchysarai Palace – the only remaining complete architectural ensemble of the indigenous people, included in the UNESCO World Heritage Tentative List – is another example of how the very identity of the Crimean Tatars is being threatened. This reconstruction is being conducted by a team with no experience of cultural sites, in a manner that erodes its authenticity and historical value – which is precisely as Russia intends.

There is a solid body of international and domestic law covering Russia’s treatment of Crimea’s cultural property.

Under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – ratified by both Ukraine and Russia – the occupying power must facilitate the safeguarding efforts of the national authorities in occupied territories. States parties must prevent any vandalism or misappropriation of cultural property, and, according to the first protocol of the convention, the occupying power is required to prevent any export of artefacts from the occupied territory.

The 1907 Hague Regulations and the 1949 Fourth Geneva Convention confirm that the authentic domestic legislation continues to apply in occupied territories. This leaves Russia with no excuse for non-compliance with Ukraine’s cultural property laws and imposing its own rules unless absolutely necessary.

Besides, both Ukrainian and Russian criminal codes penalise pillage in occupied territory, as well as unsanctioned archaeological excavations. As an occupying power, Russia must not just abstain from such wrongdoings in Crimea, but also duly investigate and prosecute the alleged misconduct.

The clarity of the international legal situation demonstrates that no exhibitions in continental Russia and no archaeological excavations which are not sanctioned by Ukraine can be justified. Likewise, any renovation or use of cultural sites, especially those on permanent or tentative UNESCO lists, must only be conducted pursuant to consultancy with and approval of the Ukrainian authorities.

But the resonance of the Crimean case goes beyond law and touches on issues of the very survival of a people. The Soviet deportation of the Crimean Tatars in 1944 did not only result in the deaths of individuals. Their footprints in Crimea have been gradually erased by baseless treason charges, the long exile of the indigenous community from their native lands and ongoing persecution.

First the Soviet Union and now Russia have targeted the Crimean Tatars’ cultural heritage to undermine their significance in the general historical narrative, making attempts to preserve or celebrate this culture seem futile. Russia is thus imposing its own historical and political hegemony at the expense of the Crimean Tatar and Ukrainian layers of Crimean history.

As exemplified by occupied Crimea, the manipulation and exploitation of cultural heritage can serve an occupying power’s wider policies of appropriating history and asserting its own dominance. Domestic cultural property proceedings are challenging due to the lack of access to the occupied territory, but they should still be pursued.

More effort is needed in the following areas: case prioritization; informing the documenters of alleged violations about the spectrum of cultural property crimes; developing domestic investigative and prosecutorial capacity, including by involving foreign expert consultancy; more proactively seeking bilateral and multilateral cooperation in art crime cases; liaising with auction houses (to track down objects originating from war-affected areas) and museums (to prevent the exhibition of the artefacts from occupied territories).

When possible, cultural property crimes should also be reported to the ICC.

Additionally, more international – public, policy, media and jurisprudential – attention to such violations is needed. Societies, courts and policymakers should have a clearer awareness that assaults against cultural heritage constitute a creeping encroachment on a people’s identity, endangering its very survival.

The International Criminal Court cannot act when crimes are being genuinely prosecuted in a state. The meeting will discuss whether the ICC complementarity rules apply when a state puts restrictions on the prosecution of war crimes committed in particular circumstances or within a particular time period. In this context, the discussion will also cover the extent to which such restrictions are precluded by international obligations such as those in the Geneva Conventions with regard to the investigation and prosecution of war crimes.

The United Nations (UN) Security Council is stuck in a peacekeeping trilemma. This is a situation where the Council's three strategic goals for peacekeeping operations—implementing broad mandates, minimizing peacekeeper casualties and maximizing cost-effectiveness—cannot be achieved simultaneously. This trilemma stems from longstanding competing pressures on how the Council designs UN peacekeeping operations as well as political divisions between peacekeeping's three key groups of stakeholders: the states that authorize peacekeeping mandates, those that provide most of the personnel and field capabilities, and those that pay the majority of the bill. Fortunately, the most negative consequences of the trilemma can be mitigated and perhaps even transcended altogether. Mitigation would require the Council to champion and implement four main reforms: improving peacekeeper performance, holding peacekeepers accountable for misdeeds, adopting prioritized and sequenced mandates, and strengthening the financial basis for UN peacekeeping. Transcending the trilemma would require a more fundamental reconfiguration of the key stakeholder groups in order to create much greater unity of effort behind a re-envisaged peacekeeping enterprise. This is highly unlikely in the current international political context.

Summary

• The 70th anniversary of the adoption of the 1949 Geneva Conventions was commemorated in 2019. But violations of the Conventions and of the 1977 Additional Protocols are widespread.
• Contemporary conflicts have been marked by violations of some of the foundational rules of international humanitarian law (IHL) relating to the protection of the wounded and sick and of providers of medical assistance.
• A further area of IHL that has come under strain and scrutiny are the rules regulating humanitarian relief operations and their application to sieges and blockades.
• War has a huge impact on children, and the treatment of children in armed conflict is another area of the law that requires further attention.
• In the current political climate, it is unlikely that new treaties will be negotiated to address emerging issues or uncertainties in the law.
• Other measures must be explored, including the adoption of domestic measures to implement existing law; support for processes that interpret the law; and initiatives to promote compliance with the law by organized armed groups.
• One overarching challenge is the interplay between IHL and counterterrorism measures. It can undermine the protections set out in IHL, and hinder principled humanitarian action and activities to promote compliance with the law by organized armed groups.

Russia’s ongoing occupation of Ukraine’s Crimean peninsula and support of separatist hostilities in the eastern provinces of Donbas have resulted in 1.5 million internally displaced persons, 3,000 civilians killed, and a growing list of alleged violations of international law and socio-economic hardship.

But Ukraine is struggling in its efforts to hold Russia accountable – either as a state or through individual criminal responsibility - as it cannot unilaterally ask any international court to give an overall judgment on the conflict.

So it focuses on narrower issues, referring them to authorised adjudication and arbitration platforms such as the International Court of Justice (ICJ), European Court of Human Rights, UNCLOS arbitration, and the International Criminal Court (ICC). These options are limited, but still worth taking - and their relevance is proving to be far wider than the Russia-Ukraine conflict.

Policy of cultural eradication

In 2017, Ukraine initiated proceedings against Russia at the ICJ on the basis of two international treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with regard to Crimea; and the International Convention for the Suppression of the Financing of Terrorism (ICSFT), with regard to Donbas.

Under the CERD, Ukraine alleges Russia has carried out a policy of cultural eradication of ethnic Ukrainians and Crimean Tatars in Crimea, including enforced disappearances, no education in the Ukrainian and Crimean Tatar languages, and the ban of the Mejlis, the main representative body of the Crimean Tatars.

Under the ICSFT, Ukraine alleges Russia has supported terrorism by providing funds, weapons and training to illegal armed groups in eastern Ukraine. In particular Ukraine alleges Russian state responsibility - through its proxies - for downing the infamous MH17 flight.

Both these treaties are binding upon Ukraine and Russia and entitle an individual state party to refer a dispute concerning them to the ICJ, but certain procedural pre-conditions must first be exhausted. These include a failed attempt to settle a dispute either through negotiations or the CERD Committee (for the CERD) or unsuccessful negotiations and arbitration (for the ICSFT).

Russia challenged Ukraine’s compliance with the pre-conditions, but the ICJ disagreed with Russia’s submission that Ukraine had to resort both to negotiations and to the CERD Committee. For the first time, the court clarified these procedures under the CERD were two means to reach the same aim, and therefore alternative and not cumulative.

Requiring states to avail of both procedures before going to the ICJ would undermine the very purpose of the CERD to eliminate racial discrimination promptly, and ensure the availability of effective domestic protection and remedies.

The relevance of this clarification transcends the Ukraine-Russia dispute. With the rise of discriminatory practices, from populist hate-filled rhetoric endangering vulnerable communities to large-scale persecution such as that of the Rohingyas, the UN’s principal judicial body is sending a clear larger message to the world: such practices are unacceptable and must be dealt with expeditiously and efficiently. If states fail to do so, there are now fewer procedural impediments to do it internationally.

The ICJ also confirmed Ukraine had complied with both procedural preconditions under the ICSFT and that it would give judgement on the alleged failure of Russia to take measures to prevent the financing of terrorism. The outcome of this will be of great importance to the international community, given the general lack of international jurisprudence on issues of terrorism.

The court’s interpretation of knowledge and intent in terrorism financing, as well as clarification of the term ‘funds’, is particularly relevant both for the Ukraine-Russia case and for international law.

As the final judgement may take several years, the ICJ granted some provisional measures requested by Ukraine in April 2017. The court obliged Russia to ensure the availability of education in Ukrainian and enable the functioning of the Crimean Tatar representative institutions, including the Mejlis.

When Russia contested Ukraine’s references to the alleged Stalin-ordered deportation of the Crimean Tatars and the rule of law in the Soviet Union being hypocritical, by arguing that history did not matter, the court disagreed.

In fact, Judge James Crawford emphasised the relevance of the ‘historical persecution’ of Crimean Tatars and the role of Mejlis in advancing and protecting their rights in Crimea ‘at the time of disruption and change’.

These conclusions are important reminders that the historical inheritance of injustices inflicted on vulnerable groups should be taken into account when nations address their imperial legacies.

The court’s provisional measures and Judge Crawford’s position are particularly relevant in light of Russia’s policy of the total - territorial, historical, cultural – ‘russification’ of Crimea, as they highlight the role of the historical background for assessing the alleged discriminatory and prosecutorial policy of Russia’s occupying authorities against the Crimean Tatars.

The ICJ’s judgement on the merits of this as well as other human rights, and terrorism issues of Crimea and Donbas will be an important consideration for the international community in its view of the Russia-Ukraine armed conflict and the sanctions policy against Russia.

The development of this case also has a mutually catalysing impact on Ukraine’s efforts to establish those individually criminally responsible for atrocities in Crimea and Donbas, through domestic proceedings and through the International Criminal Court.

Ukraine’s attempts to seek individual criminal responsibility for gross abuses in Donbas and Crimea at the International Criminal Court (ICC) are assessed in part two of this series, coming soon.

International criminal justice provides a stark reminder that state sovereignty is not an absolute, and that the world’s most heinous crimes should be prosecuted at an international level, particularly where domestic systems lack the capacity or will to hold perpetrators to account. 

The post-Cold War period witnessed a dramatic rise in the number of international tribunals with jurisdiction over war crimes and serious human rights abuses in countries including Cambodia, East Timor, Rwanda, Liberia, Sierra Leone and Yugoslavia. With these processes approaching, or having reached the end of their dockets, many have called for the creation of new tribunals to address more recent conflicts, including the army crackdown in Myanmar in 2017 that resulted in evidence of crimes against humanity against the Rohingya. 

In January this year, the International Court of Justice (ICJ) imposed emergency provisional measures on Myanmar, instructing it to prevent genocidal violence against its Rohingya minority. But a final judgement is expected to take years and the ICJ has no way of enforcing these interim measures. Myanmar has already responded defiantly to international criticism. 

Model for justice

Myanmar is not the first country to face scrutiny for such crimes in Southeast Asia. The Extraordinary Chambers in the Courts of Cambodia (ECCC), more commonly known as the Khmer Rouge Tribunal was established in 1997 to prosecute Khmer Rouge leaders for alleged violations of international law and serious crimes perpetrated during the Cambodian genocide. This provides an opportunity to consider whether the Tribunal can act as a ‘hybrid’ model for justice in the region. 

The first lesson that can be taken from the Cambodian context is that the state must have the political will and commitment to pursue accountability. It was indeed the Cambodian government itself, who requested international assistance from the United Nations (UN), to organize a process for holding trials. The initial recommendation of the UN-commissioned Group of Experts was for the trial to be held under UN control, in light of misgivings about Cambodia’s judicial system. Prime Minister Hun Sen rejected this assessment and in prolonged negotiations, continued to spearhead the need for domestic involvement (arguably, in order to circumscribe the search for justice). This eventually resulted in the creation of a hybrid body consisting of parallel international and Cambodian judges and prosecutors with supermajority decision-making rules.   

It is worth noting that the Hun Sen government initially chose to do business with former Khmer Rouge leaders, until it became more advantageous to embrace a policy of putting them on trial. It is possible to infer from this that there will be no impetus for action in Myanmar until it is domestically advantageous to do so. At present, this appetite is clearly lacking, demonstrated by de-facto leader Aung San Suu Kyi shying away from accountability and instead defending the government’s actions before the ICJ.

One unique aspect of the Khmer Rouge Tribunal has been the vast participation by the Cambodian people in witnessing the trials as well as widespread support for the tribunal. This speaks to the pent-up demand in Cambodia for accountability and the importance of local participation. While international moral pressure is clear, external actors cannot simply impose justice for the Rohingya when there is no domestic incentive or support to pursue this. The reality is that the anti-Rohingya campaign has galvanized popular support from the country’s Buddhist majority. What is more, the Rohingya are not even seen as part of Myanmar so there is an additional level of disenfranchisement.

Secondly, the Cambodian Tribunal illustrates the need for safeguards against local political interference. The ECCC was designed as national court with international participation. There was an agreement to act in accordance with international standards of independence and impartiality, but no safeguards in place against serious deficiencies in the Cambodian judicial system. Close alliances between judges and the ruling Cambodian People’s Party, as well as high levels of corruption meant the tribunal effectively gave Hun Sen’s government veto power over the court at key junctures. Despite the guise of a hybrid structure, the Cambodian government ultimately retained the ability to block further prosecutions and prevent witnesses from being called. 

In Myanmar, political interference could be a concern, but given there is no popular support for justice and accountability for crimes committed against the Rohingya, the prospects of a domestic or hybrid process remain unlikely. However, there are still international options. The investigation by the International Criminal Court (ICC) into crimes that may have taken place on the Myanmar–Bangladesh border represents a potential route for justice and accountability. The UN Human Rights Council has also recently established the Independent Investigative Mechanism for Myanmar (IIMM), mandated to collect and preserve evidence, as well as to prepare files for future cases before criminal courts.

Finally, the Cambodian case illustrates the culture of impunity in the region. The ECCC was conceived partly as a showcase for international standards of justice, which would have a ‘contagion effect’ upon the wider Cambodian and regional justice systems. 

Cambodia was notorious for incidents in which well-connected and powerful people flouted the law. This culture of impunity was rooted in the failure of the government to arrest, try and punish the Khmer Rouge leadership. The Tribunal, in holding perpetrators of the worst crimes to account, sought to send a clear signal that lesser violations would not be tolerated in the same way. Arguably, it did not achieve this in practice as Cambodia still has a highly politicized judicial system with high levels of corruption and clear limits to judicial independence. 

What this illustrates is that the first step towards accountability is strengthening domestic institutions. The United Nation’s Special Rapporteur on the situation of human rights in Myanmar has urged domestic authorities to embrace democracy and human rights, highlighting the need to reform the judicial system in order to ensure judicial independence, remove systemic barriers to accountability and build judicial and investigatory capacity in accordance with international standards. Based on this assessment, it is clear that domestic institutions are currently insufficiently independent to pursue accountability.

The ECCC, despite its shortcomings, does stand as proof that crimes against humanity will not go completely unpunished. However, a process does not necessarily equal justice. The region is littered with justice processes that never went anywhere: Indonesia, Nepal, and Sri Lanka. International recourse is also challenging in a region with low ratification of the ICC, and the absence of regional mechanisms like the Inter-American Court of Human Rights, the European Court of Human Rights, and the African Court on Human and Peoples’ Rights (although their remit is not mass atrocity prosecutions). 

The Cambodian case study illustrates the challenges of ensuring justice and accountability within the region. The end of impunity is critical to ensure peaceful societies, but a purely legalistic approach will fail unless it is supported by wider measures and safeguards. It is these challenges, that undermine the prospects for ensuring justice for the Rohingya within Myanmar.

During this extraordinary global public health emergency, governments must strike the right balance between assertive measures to slow the spread of the virus and protect lives on the one hand, and respect for human autonomy, dignity and equality on the other.

International law already recognises the grave impact of pandemics and other catastrophic events on social order and provides criteria to guide states in their emergency action. The International Covenant on Civil and Political Rights permits curbs on the right to ‘liberty of movement’ so long as restrictions are provided by law, deemed necessary to protect public health, and consistent with other rights in that treaty.

Freedom of expression and association, and the rights to privacy and family life are also qualified in these terms under international and regional human rights treaties. But, as emphasised in the Siracusa Principles, any limitations must not be applied in an arbitrary or discriminatory way, and must be of limited duration and subject to review.

International law also guarantees the right to the highest attainable standard of health, while states are specifically required to take steps to prevent, treat and control epidemics under the International Covenant on Economic, Social and Cultural Rights. Even in health emergencies, access to health services must be ensured on a non-discriminatory basis, especially for vulnerable or marginalised groups.

Abuse of coronavirus emergency measures

Many governments have taken pains to craft emergency laws that respect human rights, such as permitting reasonable exceptions to lockdowns for essential shopping and exercise, and making them subject to ongoing parliamentary review and sunset clauses. But even laws that appear to be human rights compliant can still easily be misapplied, as the recent debates about over-zealous policing of people walking and travelling in the UK illustrate.

And disturbing stories are emerging from states where police brutality is entrenched. In Kenya, a 13-year-old boy was reportedly shot on the balcony of his home by police enforcing a coronavirus curfew. Authorities in the Philippines' are allegedly locking those caught defying the curfew in dog cages.

As the recent history of counterterrorism demonstrates, emergency laws tend to be sticky, remaining on the statute books far longer than desirable.

The virus is also proving a powerful accelerant for the current global authoritarian drift which is so detrimental to progress on human rights. Many authoritarian leaders have seized the opportunity to further reduce constraints on their power.

Hungary's prime minister Viktor Orbán has used the pandemic as a pretext for new laws enabling him to rule by decree, completing the country's transition to an elected dictatorship. In Brazil, president Jair Bolsonaro has suspended deadlines for public bodies to reply to freedom of information requests. Iran is the latest of many repressive states in the Middle East to ban the printing and distribution of all newspapers. In China, the government brushed off criticism over ‘disappearances’ of whistleblowers and citizen journalists who questioned its response to the crisis.

Others have exploited the turmoil to undermine justice for human rights abuses - Sri Lanka's president Gotabaya Rajapaksa pardoned one of the only soldiers held accountable for crimes during the country's brutal civil war.

Coronavirus also places liberal values under further strain. Fear is a major driver in the appeal of populist authoritarians and the virus is stoking it. One poll showed 73% of British citizens agreed coronavirus is just the latest sign that the world we live in is increasingly dangerous. Extremists are exploiting these fears to spread hate by blaming the outbreak on ethnic or religious groups, and encouraging those infected to spread it to these groups.

The closure of borders helps reinforce xenophobic tendencies, and high public tolerance of emergency measures could easily spill into normalisation of intrusive digital surveillance and restrictions on liberty for other reasons well into the future.

Disadvantaged groups face a higher level of risk from the crisis. The health of aboriginal Australians is so poor that those aged 50 and above are being urged to stay home, advice otherwise given to those over 70 in the general population. The Moria refugee camp on Lesbos is reporting no soap and just one water tap for 1,300 refugees. In the UK, asylum seekers struggle to self-isolate in shared accommodation and have a daily allowance of just £5.40 for food, medicine and toiletries. Women's rights groups are reporting a spike in domestic violence.

For countries racked by war and extreme poverty, the impact is catastrophic. The virus is set to run rampant in slums, refugee camps and informal settlements where public health systems - if they exist at all - will struggle to cope. And detainees are among the most at risk, with the UN calling for release of political prisoners and anyone detained without sufficient legal basis.

But the crisis has galvanised debate around the right to health and universal health coverage. Many governments have quickly bankrolled generous relief packages which will actually safeguard the socio-economic rights of many, even if they are not being justified in those terms. Portugal and Ireland have rolled back barriers to accessing healthcare for asylum seekers and other marginalised migrants.

The pandemic strikes as many powerful governments have become increasingly nationalistic, undermining or retreating from international rules and institutions on human rights. But as the crisis spreads, the role of well-established international human rights standards in shaping and implementing effective - but also legitimate - measures is becoming ever clearer.

The virus has reminded us of our interconnectedness as human beings and the need for global cooperation to protect our lives and health. This may help to revive popular support for human rights, creating momentum for the efforts to tackle inequality and repression - factors which have made the global impact of coronavirus so much worse than it might have been.

A controversial debate during COVID-19 is the state of readiness within governments and health systems for a pandemic, with lines of the debate drawn on the issues of testing provision, personal protective equipment (PPE), and the speed of decision-making.

President Macron in a speech to the nation admitted French medical workers did not have enough PPE and that mistakes had been made: ‘Were we prepared for this crisis? We have to say that no, we weren’t, but we have to admit our errors … and we will learn from this’.

In reality few governments were fully prepared. In years to come, all will ask: ‘how could we have been better prepared, what did we do wrong, and what can we learn?’. But after every crisis, governments ask these same questions.

Most countries have put in place national risk assessments and established processes and systems to monitor and stress-test crisis-preparedness. So why have some countries been seemingly better prepared?

Comparing different approaches

Some have had more time and been able to watch the spread of the disease and learn from those countries that had it first. Others have taken their own routes, and there will be much to learn from comparing these different approaches in the longer run.

Governments in Asia have been strongly influenced by the experience of the SARS epidemic in 2002-3 and - South Korea in particular - the MERS-CoV outbreak in 2015 which was the largest outside the Middle East. Several carried out preparatory work in terms of risk assessment, preparedness measures and resilience planning for a wide range of threats.

Case Study of Preparedness: South Korea By 2007, South Korea had established the Division of Public Health Crisis Response in Korea Centers for Disease Control and Prevention (KCDC) and, in 2016, the KCDC Center for Public Health Emergency Preparedness and Response had established a round-the-clock Emergency Operations Center with rapid response teams. KCDC is responsible for the distribution of antiviral stockpiles to 16 cities and provinces that are required by law to hold and manage antiviral stockpiles.

And, at the international level, there are frameworks for preparedness for pandemics. The International Health Regulations (IHR) - adopted at the 2005 World Health Assembly and binding on member states - require countries to report certain disease outbreaks and public health events to the World Health Organization (WHO) and ‘prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’.

Under IHR, governments committed to a programme of building core capacities including coordination, surveillance, response and preparedness. The UN Sendai Framework for Disaster Risk highlights disaster preparedness for effective response as one of its main purposes and has already incorporated these measures into the Sustainable Development Goals (SDGs) and other Agenda 2030 initiatives. UN Secretary-General António Guterres has said COVID-19 ‘poses a significant threat to the maintenance of international peace and security’ and that ‘a signal of unity and resolve from the Council would count for a lot at this anxious time’.

Case Study of Preparedness: United States The National Institutes of Health (NIH) and the Center for Disease Control (CDC) established PERRC – the Preparedness for Emergency Response Research Centers - as a requirement of the 2006 Pandemic and All-Hazards Preparedness Act, which required research to ‘improve federal, state, local, and tribal public health preparedness and response systems’. The 2006 Act has since been supplanted by the 2019 Pandemic and All-Hazards Preparedness and Advancing Innovation Act. This created the post of Assistant Secretary for Preparedness and Response (ASPR) in the Department for Health and Human Services (HHS) and authorised the development and acquisitions of medical countermeasures and a quadrennial National Health Security Strategy. The 2019 Act also set in place a number of measures including the requirement for the US government to re-evaluate several important metrics of the Public Health Emergency Preparedness cooperative agreement and the Hospital Preparedness Program, and a requirement for a report on the states of preparedness and response in US healthcare facilities.

This pandemic looks set to continue to be a grave threat to humanity. But there will also be future pandemics – whether another type of coronavirus or a new influenza virus – and our species will be threatened again, we just don’t know when.

Other disasters too will befall us – we already see the impacts of climate change arriving on our doorsteps characterised by increased numbers and intensity of floods, hurricanes, fires, crop failure and other manifestations of a warming, increasingly turbulent atmosphere and we will continue to suffer major volcanic eruptions, earthquakes and tsunamis. All high impact, unknown probability events.

Preparedness for an unknown future is expensive and requires a great deal of effort for events that may not happen within the preparers’ lifetimes. It is hard to imagine now, but people will forget this crisis, and revert to their imagined projections of the future where crises don’t occur, and progress follows progress. But history shows us otherwise.

Preparations for future crises always fall prey to financial cuts and austerity measures in lean times unless there is a mechanism to prevent that. Cost-benefit analyses will understandably tend to prioritise the urgent over the long-term. So governments should put in place legislation – or strengthen existing legislation – now to ensure their countries are as prepared as possible for whatever crisis is coming.

Such a legal requirement would require governments to report back to parliament every year on the state of their national preparations detailing such measures as:

• The exact levels of stocks of essential materials (including medical equipment)
• The ability of hospitals to cope with large influx of patients
• How many drills, exercises and simulations had been organised – and their findings
• What was being done to implement lessons learned & improve preparedness

In addition, further actions should be taken:

• Parliamentary committees such as the UK Joint Committee on the National Security Strategy should scrutinise the government’s readiness for the potential threats outlined in the National Risk register for Civil Emergencies in-depth on an annual basis.
• Parliamentarians, including ministers, with responsibility for national security and resilience should participate in drills, table-top exercises and simulations to see for themselves the problems inherent with dealing with crises.
• All governments should have a minister (or equivalent) with the sole responsibility for national crisis preparedness and resilience. The Minister would be empowered to liaise internationally and coordinate local responses such as local resilience groups.
• There should be ring-fenced budget lines in annual budgets specifically for preparedness and resilience measures, annually reported on and assessed by parliaments as part of the due diligence process.

And at the international level:

• The UN Security Council should establish a Crisis Preparedness Committee to bolster the ability of United Nations Member States to respond to international crisis such as pandemics, within their borders and across regions. The Committee would function in a similar fashion as the Counter Terrorism Committee that was established following the 9/11 terrorist attacks in the United States.
• States should present reports on their level of preparedness to the UN Security Council. The Crisis Preparedness Committee could establish a group of experts who would conduct expert assessments of each member state’s risks and preparedness and facilitate technical assistance as required.
• Regional bodies such as the OSCE, ASEAN and ARF, the AU, the OAS, the PIF etc could also request national reports on crisis preparedness for discussion and cooperation at the regional level.

COVID-19 has been referred to as the 9/11 of crisis preparedness and response. Just as that shocking terrorist attack shifted the world and created a series of measures to address terrorism, we now recognise our security frameworks need far more emphasis on being prepared and being resilient. Whatever has been done in the past, it is clear that was nowhere near enough and that has to change.

Case Study of Preparedness: The UK The National Risk Register was first published in 2008 as part of the undertakings laid out in the National Security Strategy (the UK also published the Biological Security Strategy in July 2018). Now entitled the National Risk Register for Civil Emergencies it has been updated regularly to analyse the risks of major emergencies that could affect the UK in the next five years and provide resilience advice and guidance. The latest edition - produced in 2017 when the UK had a Minister for Government Resilience and Efficiency - placed the risk of a pandemic influenza in the ‘highly likely and most severe’ category. It stood out from all the other identified risks, whereas an emerging disease (such as COVID-19) was identified as ‘highly likely but with moderate impact’. However, much preparatory work for an influenza pandemic is the same as for COVID-19, particularly in prepositioning large stocks of PPE, readiness within large hospitals, and the creation of new hospitals and facilities. One key issue is that the 2017 NHS Operating Framework for Managing the Response to Pandemic Influenza was dependent on pre-positioned ’just in case’ stockpiles of PPE. But as it became clear the PPE stocks were not adequate for the pandemic, it was reported that recommendations about the stockpile by NERVTAG (the New and Emerging Respiratory Virus Threats Advisory Group which advises the government on the threat posed by new and emerging respiratory viruses) had been subjected to an ‘economic assessment’ and decisions reversed on, for example, eye protection. The UK chief medical officer Dame Sally Davies, when speaking at the World Health Organization about Operation Cygnus – a 2016 three-day exercise on a flu pandemic in the UK – reportedly said the UK was not ready for a severe flu attack and ‘a lot of things need improving’. Aware of the significance of the situation, the UK Parliamentary Joint Committee on the National Security Strategy launched an inquiry in 2019 on ‘Biosecurity and human health: preparing for emerging infectious diseases and bioweapons’ which intended to coordinate a cross-government approach to biosecurity threats. But the inquiry had to postpone its oral hearings scheduled for late October 2019 and, because of the general election in December 2019, the committee was obliged to close the inquiry.

The recognition by Ukraine of the jurisdiction of the International Criminal Court (ICC) to consider grave crimes allegedly perpetrated in its territory has led to the ICC Prosecutor’s preliminary examination identifying a wave of alleged war crimes and crimes against humanity.

There are claims of persecution, forced conscription, deportation, sham trials, enforced disappearances, and property seizure - in Crimea. As well as killings, torture, inhuman treatment, sexual violence, and indiscriminate shelling - in Donbas. The court now needs to decide whether to open a full investigation which could lead to charges against specific individuals, as in the trial currently taking place in the Netherlands over MH-17.

However, the ICC does remain a court of last resort as Ukraine retains the principal power to prosecute grave violations perpetrated in its eastern regions and Crimea, with the court only stepping in if Ukraine (or another court with jurisdiction) is either unwilling or unable to do so.

As the evidence mounts up, Ukrainian investigators, prosecutors and judges are becoming more open to cooperation with foreign experts, law firms, human rights NGOs and younger domestic professionals - a significant proportion of whom are women.

Transformation shows determination

This is an unusual shift, given the rigid hierarchical nature of post-Soviet institutions, with elderly males in most of the top positions. The transformation shows the determination to see perpetrators of crimes in Crimea and Donbas tried by the ICC, with joint professional development trainings and joint communications about the alleged crimes.

Ukraine has also been strengthening its institutions. The Prosecutor’s Office of the Autonomous Republic of Crimea has been improving quality control of its war crime proceedings, and has taken a strong pro-ICC stance. The Office of the Prosecutor General established a special department to monitor the armed conflict proceedings, and two specialised war crime units have been formed in Donbas.

Although too early to assess progress - given recent prosecution reform and that much-needed legislation on international crimes is still pending – these are promising signs of Ukraine’s intent to take a specialised approach to armed conflict violations. And Ukrainian civil society organisations are also playing a more important role, documenting alleged crimes and sending evidence to the ICC.

Any intervention by the ICC in Ukraine also has a considerable impact on the wider dynamics of addressing international crimes, further extending the court’s reach beyond a focus on Africa which has attracted widespread criticism since it began in 2002.

The ICC has already opened investigations in Georgia, Bangladesh/Myanmar, and Afghanistan, with preliminary examinations in Colombia, Venezuela, Iraq/UK, Palestine, and The Philippines. But the Ukrainian case would further develop the European subtleties of the court’s jurisprudence.

Although the ICC is currently investigating the 2008 Russia-Georgia war, the active phase of that armed conflict lasted for just five days whereas Russia’s military involvement in Ukraine has been ongoing for the six years. The temporal difference in no way diminishes the suffering of victims and the necessity for the proper investigation, prosecution and compensation in the Georgian context.

And yet, going by even the preliminary findings of the ICC prosecutor, the spectrum of war crimes and crimes against humanity allegedly perpetrated in Ukraine is much wider. Some incidents, such as the illegal construction of the Crimean Bridge, is an amalgam of the violations against property, cultural heritage and the environment. Cumulatively, the Ukrainian and Georgian cases would substantially contribute to the development of the court’s emerging European lenses.

The Russia-Ukraine armed conflict is also the first instance of armed hostilities of such magnitude and duration in Europe since World War II and the Yugoslav Wars. The ICC’s readiness to take on such geopolitically challenging cases which leave itself open to attack will be tested.

But by examining new contexts - including Ukraine - the ICC would develop a more layered reading of the nature and scope of the crimes it works on. For example, alleged indoctrination and use of children by armed groups in eastern Ukraine is likely to differ from the known practices of abducting and recruiting child soldiers in Africa.

Investigating evidence of Russia’s persecution of pro-Ukrainian activists - forcing them out of Crimea - coupled with the creation of favourable conditions for Russian citizens to relocate to Crimea could lead to proving the existence of a policy of mass colonisation of the peninsula - adding new layers to the court’s jurisprudence on population displacement. And previously under-prosecuted crimes may come to the fore, such as attacks on cultural property or causing the destruction of the environment.

Although the ICC proceedings on Ukraine – along with those being held by the International Court of Justice (ICJ) - are unlikely to bring immediate results, Ukraine has developed an international adjudication strategy based on the available viable options and what can be practically delivered.

The simple act of a reputed international court outlining Russia’s alleged violations in Crimea and Donbas and naming those individually responsible would be an impactful achievement in itself, regardless of whether Russia pays any attention or compensation.

And any international judgments or those of domestic courts such as the Dutch MH-17 proceedings and Russia’s response - predicted to be non-compliance - is an important argument for continuing sanctions against Russia over its conduct in Ukraine.

The mutually reinforcing effect of both the Crimea and Donbas proceedings within Ukraine and at international courts should not be underestimated. These investigations into war crimes, terrorism and human rights issues are deeply relevant - not only for the conflict itself, but also for the development of international law.

Part One of this series assesses Ukraine’s efforts to hold Russia accountable as a state at the International Court of Justice (ICJ).

In April 2020, UN Secretary General Antonio Guterres called for a global ceasefire in order for communities and states to focus efforts on responding to the coronavirus outbreak. The consequences of armed conflict – including displacement, detention, lack of access to health services and disrupted social infrastructures – mean that those in conflict-ridden areas are amongst the most vulnerable to the virus. Observing international humanitarian law (IHL) could be one way of safeguarding against, at least, the provision of vital medical supplies and personnel for vulnerable groups. Against the backdrop of a growing health and economic emergency that is otherwise dominating government agendas, how do we emphasise the importance of humanitarian action and guarantee - or improve - compliance?

The panellists will discuss the remit and limitations of international humanitarian law and how the pandemic might complicate compliance. What is the framework for humanitarian action under international humanitarian law? What are the challenges to delivering relief? And how has COVID-19 impacted humanitarian action in conflict-ridden areas?

This event is for Chatham House members only. Not a member? Find out more.

When powerful liberal democratic states are found to be complicit in extreme violations of human rights, how do they respond and why do they respond as they do? Drawing on the example of the United Kingdom's complicity in torture since 9/11, this article demonstrates how reluctant the UK has been to permit a full reckoning with its torturous past. We demonstrate that successive UK governments engaged in various forms of denial, obfuscation and attempts to obstruct investigation and avoid accountability. The net effect of their responses has been to deny the victims redress, through adequate judicial processes, and to deny the public adequate state accountability. These responses are not simply aimed at shielding from prosecution the perpetrators and those who have oversight of them, nor preventing political embarrassment. The various forms of denial and obstruction are also designed to ensure that collusion can continue uninterrupted. A core concern of intelligence officials and ministers has been to prevent any process that would lead to a comprehensive prohibition on involvement in operations where torture and cruel, inhuman and degrading treatment are a real possibility. The door remains wide open, and deliberately so, for British involvement in torture.

While China and Russia's general policies towards the Responsibility to Protect (R2P) are similar, the two reveal nuanced differences in addressing specific emergencies. Both express support for the first two pillars of R2P while resisting coercive intervention under its aegis, as they share anxieties of domestic political security and concerns about their international image. Nonetheless, addressing cases like the Syrian crisis, Russian statements are more assertive and even aggressive while Chinese ones are usually vague and reactive. This article highlights the two states’ different tones through computer-assisted text analyses. It argues that diplomatic styles reflect Russian and Chinese perceptions of their own place in the evolving international order. Experiences in past decades create divergent reference points and status prospects for them, which leads to their different strategies in signalling Great Power status. As Beijing is optimistic about its status-rising prospects, it exercises more self-restraint in order to avoid external containments and is reluctant to act as an independent ‘spoiler’. Meanwhile, Moscow interprets its Great Power status more from a frame of ‘loss’ and therefore is inclined to adopt a sterner approach to signal its status. Although their policies complement each other on many occasions, there is nothing akin to a Sino–Russian ‘bloc’.

Video: Marianne Schneider-Petsinger and Dr Yu Jie discuss key themes from the research paper

Summary

• The underlying driver of the ongoing US–China trade war is a race for global technological dominance. President Trump has raised a number of issues regarding trade with China – including the US’s trade deficit with China and the naming of China as a currency manipulator. But at the heart of the ongoing tariff escalation are China’s policies and practices regarding forced technology transfer, intellectual property theft and non-market distortions.
• As China’s international influence has expanded it has always been unlikely that Beijing would continue to accept existing global standards and institutions established and widely practised by developed countries based on ‘the Washington Consensus’.
• China’s desire to be an alternative champion of technology standard-setting remains unfulfilled. Its ample innovation talent is a solid foundation in its quest for global technology supremacy but tightening controls over personal freedoms could undermine it and deter potential global partners.
• It is unclear if Chinese government interventions will achieve the technological self-sufficiency Beijing has long desired. China’s approach to macroeconomic management diverges significantly from that of the US and other real market economies, particularly in its policy towards nurturing innovation.
• Chinese actors are engaged in the globalization of technological innovation through exports and imports of high-tech goods and services; cross-border investments in technology companies and research and development (R&D) activities; cross-border R&D collaboration; and international techno-scientific research collaboration.
• While the Chinese state pushes domestic companies and research institutes to engage in the globalization of technological innovation, its interventions in the high-tech sector have caused uneasiness in the West.
• The current US response to its competition with China for technological supremacy, which leans towards decoupling, is unlikely to prove successful. The US has better chances of success if it focuses on America’s own competitiveness, works on common approaches to technology policy with like-minded partners around the globe and strengthens the international trading system.
• A technically sound screening mechanism of foreign investment can prevent normal cross-border collaboration in technological innovation from being misused by geopolitical rival superpowers.

2019 has seen a record number of people migrating from Central America’s Northern Triangle – an area that covers El Salvador, Guatemala and Honduras. Estimates from June 2019 have placed the number of migrants at nearly double of what they were in 2018 with the increase in numbers stemming from a lack of economic opportunity combined with a rise in crime and insecurity in the region. The impacts of migration can already be felt within the affected states as the exodus has played a significant role in weakening labour markets and contributing to a ‘brain drain’ in the region. It has also played an increasingly active role in the upcoming US presidential election with some calling for more security on the border to curb immigration while others argue that a more effective strategy is needed to address the sources of migration. 

What are the core causes of Central American migration and how have the US, Central American and now also Mexican governments facilitated and deterred migration from the region? Can institutions be strengthened to alleviate the causes of migration? And what possible policy alternatives and solutions are there that could alleviate the pressures individuals and communities feel to migrate?   

Anita Isaacs, professor of Political Science at Haverford College and co-director of the Migration Encounters Project, and Juan Ricard Ortega, principal advisor for Central America at the Inter-American Development Bank, will join us for a discussion on the core drivers of migration within and across Central America.

Attendance at this event is by invitation only. 

Why are these protests happening now?

The truth is, Chile is unequal, even though it actually reduced poverty from 1989, the time of the democratic transition, until today, from 40% to 16%.

There are a number of reasons for the protests. One is the most proximate cause, which is the increase in the subway fares, but that really doesn’t explain the underlying tensions.

One of those tensions is despite reductions in poverty, social mobility remains a large problem in Chile. It remains a very elitist country with limited social mobility. So, poverty may be reduced, but the likelihood that someone in the working middle class would reach the upper middle class has always been a stretch.

The second issue is a lack of political change. The last four presidents were the same two people.

Chile’s been governed, with the exception of Piñera, basically by the same political coalition, La Concertación, which is a combination of the Christian Democratic and Socialist parties. Piñera came from the right, an outside party, but even he has remained. There has been no renewal of the political leadership which again reinforces that lack of social mobility. 

Do the protesters have any other demands or grievances? 

The demands are amorphous and that’s part of the issue – they’re going to be difficult to meet. People are expressing a genuine desire for change but what would that change mean?

Chileans don’t necessarily want to change the economic model; they simply want more mobility. That’s difficult to do and these are untested demands. 

Chileans also want political reform. What Piñera offered is to rewrite the constitution, which was created under military government in 1980. Other than some changes here and there in terms of the electoral system and reduction of military power, it has pretty much remained intact.

Will constitutional change really address these demands? It’s simply a document that may create the rules for how power is allocated and conducted, but it’s not going to dramatically remake Chilean society.

You mentioned inequality as a key driver of the protests. Can you expand a bit more on the current economic situation of ordinary Chileans?

Chile is going to grow at only around 2-3%, but it was growing at around 4-5% earlier. A lot of those funds were ploughed into social programmes that have since been reduced. 

Chile’s economy really boomed in the early 2000s because of Chinese demands of Chilean imports. But as with any sort of commodities-based economy, the jobs it provides tend to be lower wage.

As a result, despite the fact that Chile tried to diversify its economy by investing in entrepreneurship and innovation, it hasn’t grown in a way that provides jobs that many associate with upward mobility. As Chile's economy cooled, its ability to lift people out of poverty lagged as well.

Two major issues for the protesters are education and pensions – can you explain why this is?

These are two issues of the economic and social model that was held up at one time as being a model for the region, the neoliberal models that are really coming under question and are in some ways at the heart of this.

One is the privatized pension system which is failing to produce the returns that retirees need to survive. The second is the education system. Chile created a voucher system where parents can shop around and send their kids to the best schools. The idea was to create competition among schools to improve.

The problem was like any market, it created a certain amount of inequality among schools. There was a problem of some schools underperforming and being relegated poorer performing students, or students being forced to go to those schools because the more successful schools were already spoken for. 

At the end of October, the government announced a series of social reforms. Will this be enough to satisfy the protesters’ demands?

Social reforms may address some of the issues of insufficient pensions or lack of quality education, but it will take a while for them to have an effect.

The second thing is, social reforms don’t address the issues of power. At the heart of this is this idea of closed economic, political and social power. That comes about through economic growth and how you break up concentrations of wealth. Social reforms aren’t going to do that, although they’ll help on the margins. 

We’re seeing horrific scenes of police violence against protesters and dozens of people have died. Has this deterred the protesters in any way? 

No, in many ways it has sort of inspired them. It has, I think, sustained the protests.

We’re not talking massive repression and tanks rolling in like Tiananmen Square. We’re talking about tear gas, rubber bullets, some injuries and deaths, and even credible reports of torture.

It’s funny you should mention this – a class I’m teaching today is about social media and protests. One of the central arguments is that successful social protests need a martyr; they need a rallying cry.

The deaths and the repression sort of help sustain that, but moreover, social media helps communicate what’s happening through videos and pictures. It really helps maintain this sense of righteousness, disdain for the government, and this idea of the need to demand change.

Where do you see this going next?

I don’t think we know. In the 60s and 70s, the political scientist Samuel Huntington argued in Political Order in Changing Societies that as economies grow, political institutions often strain to contain and channel demands. I think we’re seeing this now.

This social ferment over political, economic and social demands is uncharted water. I don’t know where this will go, but I think we’ll see a change in the constitution. We’ve already seen a fragmenting of the party system, which I think will continue. Hopefully, that will lead to new leadership that can help reflect a change in Chile itself. 

The vote to impeach Donald Trump holds almost no surprises - on both the abuse of power and obstruction of congress articles, the votes were split entirely on party lines with nearly all the majority-led House Democrats but not a single Republican voting to impeach Trump.

However, this ‘pre-ordained’ outcome of the House impeachment inquiry does serve to highlight that the US is in the midst of a hyper-partisan political moment. Policy gridlock has led to two government shutdowns during Donald Trump’s presidency, with one further budgetary fight narrowly avoided.

With a few notable exceptions (such as USMCA), policy areas that lend themselves to bipartisanship - including infrastructure and drug pricing - have seen very little progress under divided congressional chambers. Party identification can now be overlaid with the cable news channel one watches or the newspaper one reads.

Impeachment now moves to the Senate for a trial, requiring a two-thirds majority of the Republican-led senate (or 67 senators) for a conviction. Given the congressional partisanship we are seeing, the baseline scenario continues to be that the senate will not vote to convict Trump and remove him from office - despite much being made of how many senators are likely to vote for a Senate conviction.

Why public opinion could be crucial

There is another story to keep a close eye on. The number to track is 47.2 – the current polling average of public support for Trump’s impeachment. Polling averages from the end of September 2019 (before the hearings began, but after House Speaker Nancy Pelosi announced a formal inquiry) had 49.4% supporting impeachment versus 47.2% this week.

Here’s why this number matters. If those pushing for impeachment and removal are unable to drive popular support across a critical threshold level, then those against impeachment and removal are not going to abandon the president and vote for a senate conviction. With Trump consistently polling in the low 40s on job approval, but in the high 80s/low 90s within the Republican party, this means Republican congress members concerned about re-election are extremely hesitant to distance themselves from him without a clear mandate from the domestic public. 

A tale of the two most recent presidents to face impeachment underscores this point. Gallup polling claimed 58% of adults supported impeaching and removing President Richard Nixon from office in August 1974, whereas only 35% of the public supported impeaching President Bill Clinton in December 1998, the month he was impeached.

Given the respective outcomes of those two impeachments, it suggests public support for impeachment and removal needs to increase well beyond the current 47.2%, to avoid the foregone conclusion of acquittal in the Senate (even if there are signs of the tide moving in the opposite direction with those against impeachment overtaking support for the first time in December).   

What does this mean for Democrats?

In the short term, if the Democrats want to make inroads into the hearts and minds of those across the partisan gulf, it will be critical to secure senate testimony from those in Trump’s inner circle at the time of the Ukrainian affair.

After Trump ordered individuals with first-hand knowledge of the administration’s efforts vis-à-vis Ukraine not to testify, House investigators were unable to call many witnesses with direct evidence (which in fact left the House testimony exposed to Republican claims of hearsay). With Trump impeached, more of the public is likely to tune in to the senate proceedings, and direct evidence by inner circle administration officials required to testify presents an opportunity to move public opinion.

House speaker Nancy Pelosi recognizes how crucial the procedures and participants for the senate trial will be, and has said she could delay sending the articles of impeachment to the senate as leverage for a 'fair trial'.

Democrats also have to consider how an impeachment inquiry that - at least from this vantage point - does not end in a conviction of the president plays out for the 2020 election campaign, especially if this also likely means that public opinion - and certainly Republican-party views - of Trump have not shifted.

Trade has received a lot of attention recently with the US and China still negotiating a trade agreement and the World Trade Organization coming under threat. But the global trade system is also adapting to changing geopolitical dynamics and rapid technological transformations. In light of a backlash against globalization, how can trade be made more sustainable and inclusive? What actions are needed for global trade and the trading system to adjust to changes in technology and environmental considerations? What efforts are key players such as the US, EU and China taking on these fronts?

Against this backdrop, Ms Arancha González will join us for a roundtable discussion on the future of trade and how trade can play a key role in adjusting to the changes that will take place in societies over the next decade. 

The Chatham House US and Americas Programme would like to thank founding partner AIG and supporting partners Clifford Chance LLP and Diageo plc for their generous support of the Chatham House Global Trade Policy Forum.

On Thursday, the US House of Representatives passed a resolution affirming its authority under the War Powers Resolution Act, and reminding the president, the American people and the world that when it comes to the use of military force, Congress must be taken into account. 

President Donald Trump replied by retweeting John Bolton, his former national security advisor, who tweeted that the War Powers Act was ‘unconstitutional’, effectively dismissing Congressional efforts to rein in the president.

This round of legal Twitter diplomacy came days after the president tweeted that ‘legal notice (to Congress) is not required, but it is given nevertheless’ and that ‘should Iran strike any US person or target, the United States will quickly and fully strike back, and perhaps in a disproportionate manner.’ 

President Trump’s overt attacks on Congressional authority and disregard for the law are not normal for a US president, but legal constraints over the president’s authority to use military force have been eroding for several years.

In 1973, Congress passed the War Powers Act, requiring the president to report to Congress and acquire Congressional approval for continued overseas troop deployments. But Congressional authority over the use of military force has continued to diminish, especially since the 9/11 attacks. 

Now, Congress is pushing back – a resolution similar to that passed by the House is likely to be voted on by the Senate soon. Given the intense frustration of some senators over the president’s handling of the current conflict, this resolution may pass, though the president is still likely to veto. 

The bigger problem, of which this is one part, is the expansion of executive authority, and it predates this presidency. Many argue that executive power is greatest on matters of foreign policy, and that in this domain the US president is unconstrained. As partisanship has increased and the demands on Congress have made it harder for its members to cultivate foreign policy expertise, the power of the president has grown.

So the fact that Congress is taking active steps to check the president’s power not only on the question of impeachment, but also on foreign policy, is significant, even if the law is not likely to restrain President Trump. But Congress is also playing a long game. And its growing determination to assert its authority matters not only for this presidency, but also for the future.

Political constraints

In the short term, other constraints matter more. Even if President Trump rejects legal restraints – and shuns diplomatic pressure that might have mattered to other presidents – he is not impervious to political restraint.

Already there are signs that Trump listens to his key Republican allies in Congress. When Senator Lindsay Graham pushed back against the president’s threat to attack cultural heritage sites in Iran, and the Pentagon failed to shore up the president’s threat, the president changed his position. The threats also provoked an overwhelming response in Europe, and across the Middle East, but the president has shown that he is willing to disregard international admonishment. Not so for domestic allies.

Nor is this the first time that Senator Graham’s views have mattered. When the president announced his decision to pull troops from northeast Syria, effectively abandoning the Kurds, a key partner to the US in its fight against ISIS, Senator Graham and Senator Mitch McConnell pushed back and it mattered. 

Public opinion also matters to the president, especially Republican public opinion, and this is likely to affect the president’s next steps. Recent polls suggest that Americans feel less safe as a result of the killing of General Qassem Soleimani by a considerable margin of 55% to 24%.

But the same survey also shows that a majority of Americans support the decision to kill Soleimani. Already Vice President Mike Pence has spoken at a rally in Ohio designed to bolster support for this Presidential action.  

So what might change public opinion and will this alter the president’s future steps?

Americans are very reluctant to support further deployments of troops overseas. President Trump knows this and he has consistently stated that he seeks to pull US troops out of the Middle East.

In fact, the opposite has happened. And once again, the decision to kill General Soleimani is pulling the US further into the Middle East and putting into stark light the inconsistency of Trump’s foreign policy ambitions. In recent days, the United States has committed to sending thousands of troops to the region.

Continued US troop deployments may not play well with Trump’s base, though they currently support his Iran policy. But absent an obvious justification, this could change, so it is not surprising that this has become a rallying point for Vice President Pence.

An even greater political risk, and one that will matter to the president, is the risk to US military personnel and civilians overseas. Public support for the killing of Soleimani and increased US presence in the region is bound to dissipate if Americans are killed.

But it isn’t clear how the president will respond, and already the death of one American in the militia attack on 27 December seems to have been a critical factor in Trump’s decision to authorize the assassination of General Soleimani.  

So far, Iran’s response appears to be calibrated to avoid this kind of public backlash, and keep the door open to some sort of managed resolution of the current crisis.

But the considerable risk of miscalculation and mistakes has already been born out. A week after the killing of Soleimani, the world is tuning in to the tragic news that a civilian airliner departing Iran for Ukraine appears to have been accidentally shot down by an Iranian missile, resulting in the deaths of all 176 people on board, including 82 Iranians and 63 Canadians.

Whether the US president is constrained is a critical question for Americans, for US democracy and for the rest of the world. Trump is different, but he is not unconstrained. Steps taken by Congress along with diplomatic and political pressure mean he is still operating within boundaries. But it is clear that these boundaries are being redefined.

Global trade policy is not going back to the consensus that prevailed over the past few decades. Even if the growing cycle of tariffs and trade threats is tamed in 2020, the economic consensus that underpinned broad support for open trade is breaking down, and escalation in trade tensions is likely.

What next for the US and China?

The US and China are currently at the centre of these tensions. The equity and bond markets started 2020 off euphorically as news of a ‘phase one’ trade deal between the two dominated headlines. Such a deal involves the US reducing some previously imposed tariffs and tabling another round of threatened ones, while China agrees to buy more US goods, including agriculture. This represents a détente of sorts, but don’t expect it to last; trade between the two countries is not actually at the heart of their trade war.

The question instead is which country will have the biggest economy, based on excellence in industries such as artificial intelligence, machine learning and quantum computing. There is a national security component to this issue as well, given how much these high-tech industries feed into military and national security operations. This has increasingly become a concern for the United States as China has adopted a more aggressive regional stance, particularly in the South China Sea.

Tariffs have been used as a tool by both countries to try to prevent the other from dominating the global economy, and while they have dented both economies, they aren’t a particularly effective tool. In particular, tariffs do nothing to address US concerns about intellectual property rights in China, forced technology transfers and state subsidies for high tech industries. The phase one deal, therefore, is a superficial one that fails to get at the heart of the matter.

US–EU tensions

However, with a temporary US-China détente, the US may turn its attention to Europe. The EU and US are in the midst of negotiating a trade deal, but obstacles have been present from the start.

Last July, France adopted a 3% digital tax that applies to firms with global revenues over €750 million per annum generated from digital activities, of which €25 million are made in its territory. A US investigation determined that the digital tax discriminates against US companies such as Google, Amazon, Apple and Facebook, and so the US has threatened France with 100% tariffs on luxury exports, including wine.

The long-standing tensions between the US and EU over their aircraft manufacturing behemoths, Boeing and Airbus, make reaching a US–EU trade deal more complicated. They also risk undermining US–EU collaboration on some joint concerns regarding China’s trade policies and practices.

The United States recently threatened to increase its punitive measures against European goods as retaliation for Airbus subsidies. The World Trade Organization (WTO) gave the US the green light to impose tariffs of up to 100% on $7.5 billion of EU exports last October, but the US had limited them to 10% on aircraft and 25% on industrial and agricultural products. Now, the US is threatening to escalate.

Finally, the US has repeatedly threatened to impose tariffs on imported cars from the EU. This threat looms large for Germany in particular, which is a significant producer of automobiles and whose industry is still recovering from the diesel emissions scandal. Germany has for the past two decades been the powerhouse economy in the EU, but has more recently seen sclerotic growth.

US election implications

It is an election year in the United States, and while it is too early to call the election (or even guess who the Democratic candidate might be), the ballot could bring about change on trade. Protectionism has historically been more of a Democrat policy than a Republican one, so there won’t be a complete reversal of Trump’s trade policy if a Democrat were to win. But there might be some changes.

If a Democrat controlled the White House, the US would still want to pressure China, but it might adopt a more international approach in that effort. The US might also reverse the steel and aluminium tariffs that kicked off these heightened trade tensions.

Most importantly, the US might stop hindering the WTO by appointing judges to the appellate body (without which the WTO cannot address rulings that are being appealed) and would likely work with other countries to reform the WTO. The focus would shift from confrontation to negotiation. This, of course, depends on which Democrat is in the White House.

In the meantime, President Trump has a difficult balancing act. Being tough on China and bringing home American jobs were successful slogans in his first presidential bid. He will want to indicate he has delivered on both and will continue to do so. At the same time, tariffs have sparked dips in the markets that have caused the president to de-escalate trade tensions. As the 2020 election approaches, expect the administration to balance these two concerns.

Looking beyond the vote, there may be some changes to the US approach to trade over the next decade, depending on which party is in government. The most pernicious aspect of the trade tensions on the global economy has been the uncertainty they have caused; businesses have deferred and delayed investment as they wait to see what the new rules of the global order are. They know the old consensus on trade won’t come back, but don’t yet know what the new consensus is.

As long as the limbo persists, and it probably will for at least a few more years, trade issues will remain a risk for the global economy.

This article is the first in a series of publications and roundtable discussions, part of the Chatham House Global Trade Policy Forum.

Conventional wisdom says that foreign policy takes a backseat role in US elections. But last autumn’s Democratic primary debates suggest a potential shift is taking place in the conventional view. While healthcare dominated the discussion (Democrats attribute their 2018 midterm gains to the issue), through November foreign policy followed closely behind in second place in terms of minutes devoted to the discussion.

This trend is consistent with President Donald Trump’s America First approach to foreign policy, in which an eye is always kept on how decisions abroad play for the domestic audience. One former Trump administration official has called this dynamic the ‘recoupling’ of foreign policy with domestic policy.

The US–China trade conflict, which commanded headlines throughout 2019, is perhaps the best example of this recoupling, tying trade imbalances less with the geopolitical than with domestic impact on farmers. Immigration is another policy area in which Trump has linked domestic implications and indeed domestic opinion with foreign policy. It’s in the title: America First.

Now, for better or worse, the targeted killing of Qassem Soleimani, Iran’s response and the subsequent fallout may make US foreign policy towards Iran and the US role in the Middle East a central issue for the 2020 US elections. As it comes just ahead of the Democratic presidential primaries, voters will be looking to the candidates to differentiate their foreign policy experience and proposals for America’s Middle East policy.

To President Donald Trump, Soleimani’s assassination represents a campaign promise kept to confront Iran’s aggression.

The Trump administration initially justified the action by citing intelligence of an imminent threat to US personnel and targets, but after Defense Secretary Mark Esper called this into question, Trump tweeted that ‘it doesn’t really matter because of [Soleimani’s] horrible past’. Ultimately, Trump’s message, on the campaign trail and any general debate stage he agrees to be on, is that he has overseen a new national security strategy for Iran.

Soleimani’s removal from the Iranian calculus is just a part of this broader policy, which also includes neutralizing the Iranian government’s destabilizing influence in the Middle East, denying Iran and especially the Islamic Revolutionary Guard Corps’ access to funding for its malign activities, and rallying the international community against domestic human rights violations and unjust detentions.

To counter Trump, Democrats and democratic presidential candidates would be best-served by offering a simple argument that too links domestic interests and foreign policy: the killing of Soleimani and Trump’s national security strategy for Iran have not made the US or its interests safer.

Iran’s ballistic missile attack on US forces in Iraq, which Iran’s Supreme Leader Ayatollah Ali Khamenei called a ‘slap in the face’ for the US, makes the risks to US assets and personnel abundantly clear. Even if Iran reverts entirely to covert, proxy efforts to counter US interests, the current US–Iran tensions remain unresolved and will likely continue to persist through the 2020 elections in November.

As a matter of the first order, Soleimani was replaced by his deputy Brigadier General Esmail Ghaani within a day of the former’s death, with Khamenei saying that the Quds Force will be ‘unchanged’.

At the second order, Iraq’s parliament voted in favour of a nonbinding resolution to rescind the invitation to US forces, which led Trump to threaten sanctions and demands for reimbursement. Whether US troops will ultimately leave Iraq (following a ‘mistaken’ report that the US was preparing to depart) remains to be seen, but the destabilization of the US military presence in Iraq fulfils a key Iranian objective.

In the interim, the US-led coalition in Iraq and Syria fighting ISIS announced that it would at least temporarily cease its counterterrorism efforts to instead fortify its outposts and prepare for Iranian retaliation, opening a wider door for the resurgence of the terror group.

By arguing that the US, its troops and interest have not been made safer by Trump’s Middle East policy – from withdrawing from the Iran nuclear deal to the imposition of a ‘maximum pressure campaign’ to Soleimani’s killing – Democrats will be able to point to every post-Soleimani US injury, death, regional terrorism attack, asset compromise, cyberattack and shipping disruption as evidence.

Democratic presidential candidates also ought to be explicit about how they plan to manage tensions with Iran – strategic, diplomatic and military – particularly their position on the future of the nuclear deal.

Iran has made clear that the path to de-escalation is through sanctions relief. Asserting leverage need not always involve taking away all of your counterparty’s options (‘maximum pressure’). It also involves knowing what your adversary wants (sanctions relief) and showing a willingness to offer it (especially where it means less to you) in exchange for something of greater worth (avoiding war/a non-nuclear Iran).

Clarity around future policy of a potential Democratic president may bring de-escalation forward in a way that Trump’s statement of Iran standing down are unlikely to do.

The Chagos archipelago in the Indian Ocean has garnered media attention recently after the UK failed to abide by a UN deadline to return the islands to Mauritius. The US has landed in the middle of the dispute as a 1965 agreement with the UK has allowed the US to establish a military base on one of the islands, Diego Garcia, which has since become instrumental in US missions in the Asia-Pacific and the Middle East. 

In February 2019, an Advisory Opinion of the International Court of Justice (ICJ) found that the Chagos archipelago was unlawfully dismembered from Mauritius, in violation of the right to self-determination and that the United Kingdom is under an obligation to end its administration of the Chagos archipelago ‘as rapidly as possible’. The UN General Assembly subsequently voted overwhelmingly in favour of the UK leaving the islands by the end of November 2019 and the right of the former residents who were removed by the UK to return. The UK does not accept the ICJ and UN rulings and argues that the islands are needed to protect Britain from security threats while Mauritius has made clear the base can remain.

Professor Philippe Sands QC, professor of law at University College London and lead counsel for Mauritius on the ICJ case on Legal Consequences of the Separation of the Chagos archipelago from Mauritius in 1965, will be joining Ambassador Richard Burt, US chief negotiator in the Strategic Arms Reduction Talks with the former Soviet Union for a discussion on the fate of the archipelago including the future of the military base and the right of return of former residents.  

Attendance at this event is by invitation only. 

In the run-up to the 2016 US presidential election, then-candidate Donald Trump made a series of campaign promises concerning US foreign policy towards the Middle East. Since assuming office, President Trump has withdrawn the US from the Joint Comprehensive Plan of Action, withdrawn troops from Syria, relocated the US embassy in Israel to Jerusalem and orchestrated the strike against ISIS leader Abu Bakr al-Baghdadi.

Against a backdrop of Trump's inclination towards withdrawing from the region, countries across the Middle East are being rocked by protests, Turkey’s purchase of Russia’s S-400 missile has threatened to undermine cohesion within NATO and the much hoped for ceasefire in Libya between UN-backed government leader, Fayez al-Sarraj, and opposition leader, Khalifa Haftar, failed to materialize.

In light of the upcoming US elections in November 2020, the future of US national security policy promises to be a prominent issue for the next administration. In this vein, the US and Americas Programme at Chatham House plans a yearlong focus on the pivotal US 2020 elections.

At this event, Dr Kori Schake, director of foreign and defense policy studies at the American Enterprise Institute will discuss the future of US foreign policy towards the Middle East. How have domestic and party politics in the US – and the unfolding presidential campaign – shaped recent policy decisions by the Trump administration? Should we expect policy objectives in the Middle East to remain consistent or shift under a second Trump term? And what direction could US foreign policy towards the region take under a Democratic administration?

Attendance at this event is by invitation only. 

As part of this initiative, we are launching the Chatham House US Foreign Policy Forum as an incubator for foreign policy dialogue and shared expertise outside of the Washington DC framework.

Meeting regularly, in its inaugural year the Forum will largely focus on the 2020 elections, facilitating discussions around developments in the election and critical policy insights.

These activities support the development of a multi-authored volume outlining the current state of play and potential priorities of a second Trump term, as well as a Democratic administration. The text will contribute to the public debate and research considering the resiliency of US institutions as well as the future of US policy engagement abroad.

Situated in London, this project leverages Chatham House’s world-leading, independent foreign policy institute and unparalleled experience in convening multi-stakeholder discussions to provide a unique, international perspective on the 2020 elections.

In the face of multiple competing pressures, most especially intense pressure by the US president and Secretary of State Mike Pompeo, the UK government has carved out an independent choice on the role that Huawei will play in its 5G mobile networks. Announced just days before the UK exited the European Union, a move designed to allow the UK to reclaim its sovereignty, this was a model example of a sovereign decision, but one that carries risk and will create ongoing uncertainty.

The government’s assessment is that this will bolster Britain’s economic competitiveness through a rapid rollout of its 5G mobile network while staving off pressure from the United States and economic retaliation from China.

Britain’s decision treads a cautious line. The effort to balance the drive for competitiveness, the imperatives of national security and, especially, to appease while not appearing to appease America, has meant that the UK faces multiple pressures just as it seeks to forge an independent political future. So far, the UK government has handled these pressures artfully.

After months of intense scrutiny that at times looked like prevarication, and at other times looked a lot more contentious, the UK has decided to restrict Huawei’s access to a maximum of 35% of the market share of what it argues is the non-core part of its 5G mobile networks, and to enforce a total ban on Huawei’s access to the core.  

But no one should rest easy with the current choice. The UK has been divided internally on this decision, even among those on its National Security Council who have had privileged access to the intelligence offered by GCHQ. As the UK’s decision loomed, Tom Tugendhat, chair of the House of Commons Foreign Affairs Committee, cited Huawei’s connection to China’s intelligence services and its police state in Xinjiang and asked ‘is the risk worth it?’.

This division created latitude for the Johnson government to stake out its own position. But it also suggests that when it comes to national security, the case is not clear.  

The US response is more puzzling. Donald Trump and Pompeo have been coming down hard on the UK. But in the lead up to the UK’s decision, US Treasury Secretary Steven Mnuchin struck a much more nuanced tone, at least on the public record.

Despite weeks of pressure by Trump and Pompeo leading up to the announcement, the UK’s Huawei decision has so far failed to make headlines in the US, or garner much of an official response.

In an oped published in the Financial Times just days after the UK’s decision, acting US Assistant Secretary of Defense David Helvey took a strong line on China, calling for transatlantic unity and stressing the comprehensive nature of the competition that China presents. But he refrained from any specific mention of the UK’s announced decision. 

Given the previous US threat that allowing Huawei access would compromise future US–UK intelligence sharing and undermine the prospect for a free trade deal, this relatively muted response is surprising. Few among US national security experts have diverged from the view that Huawei presents a singular threat to national security.

This suggests one of two things: either that, even among those in the US who agree about the threat that Huawei presents for national security, opinion differs on how to deal with this threat; or, that America has conceded to the UK’s choice, even if it is a different position to its own.

What comes next is less certain. Now that Boris Johnson’s decision has been announced, the US has good reason to lay low. Restricting US–UK intelligence is a hollow threat: the US is a major beneficiary of this relationship and any attempt to unravel it would be costly for both parties.

The same is true of a future US–UK free trade deal, from which the US will most certainly reap substantial benefits, politically as well as economically.

The risk for the United States, of course, is that if it does not follow through, future threats to retaliate against the UK’s sovereign choices will become increasingly meaningless. And President Trump is not just any president. The current quiet could quickly be reversed if he sees a reason to make an example of the UK to signal to other countries currently debating their position on Huawei that proceeding will carry significant penalties.

The question remains whether in forging ahead, but with elements of caution, Britain has made the right decision. If the measure of success is political independence befitting the moment of Britain’s historic exit from the European Union, then the answer would appear to be yes. National security is an entirely different matter, and on this the debate is not over.

The outbreak of popular discontent in Chile in October of last year caught many observers by surprise. What began as a protest against a metro fare hike has transformed into widespread rejection of the economic and political model in place since the return to democracy in 1990, accompanied with unprecedented violence which raises questions about the state's ability to maintain rule of law. 

Professor Andrés Velasco, Dean of the School of Public Policy at the LSE, and Dr Robert Funk, Assistant Professor of Political Science at the University of Chile will join us for a discussion on the causes of the current protest.

What are the prospects for reform and a return to normality? Is this the end of the much-lauded Chilean model?

The US and China have entered into an increasingly confrontational relationship over trade and technology. This may force Europe to make difficult choices between the two economic superpowers – or perform a balancing act. Although the recent US-China phase-1 trade deal has eased the relationship for now, the trade and technology tensions are a structural issue and are likely to persist.

The debate over Huawei’s participation in 5G networks is an example of how the UK and other countries may face competing priorities in economic, security and foreign policy. Can Europe avoid a binary choice between the US and China? Is it possible for the EU to position itself as a third global power in trade, technology and standard-setting? What strategies should Europeans adopt to keep the US and China engaged in the rules-based international order and what does the future hold for trade multilateralism?

Sir Simon Fraser will join us for a discussion on Europe’s future role between the US and China. Sir Simon is Managing Partner of Flint Global and Deputy Chairman of Chatham House. He previously served as Permanent Secretary at the Foreign and Commonwealth Office (FCO) and Head of the UK Diplomatic Service from 2010 to 2015. Prior to that he was Permanent Secretary at the UK Department for Business, Innovation and Skills. He has also served as Director General for Europe in the FCO and Chief of Staff to European Trade Commissioner Peter Mandelson.

We would like to take this opportunity to thank founding partner AIG and supporting partners Clifford Chance LLP, Diageo plc, and EY for their generous support of the Chatham House Global Trade Policy Forum.

In the aftermath of World War II, the United States cemented its role as the leader of a new global order, characterized by the creation of international institutions and treaties like the United Nations and North Atlantic Treaty Organization. More recently, however, the United States has appeared to take an inward turn, a trend which has been mirrored across the globe and has led to the international order being challenged more now than ever before.

As the Trump administration and US members of Congress attempt to address multiple challenges from a rising China and a disruptive Russia to a nuclear North Korea and shifting Middle East, Senator Chris Coons will offer his vision for restoring American leadership on the world stage.What is the role of Congress in setting and shaping US foreign policy?  How will the outcome of the consequential 2020 elections shape the future of America’s global role? Would a change in administration necessarily increase prospects of American reengagement, and if so, across which international spheres?

There are two well-established ideas in trade. Individually, they are correct. Combined, they can lead to a conclusion that is unfortunately wrong.

The first idea is that, across a range of economic sectors, the EU and the US have been engaged in a battle to have their model of regulation accepted as the global one, and that the EU is generally winning.

The second is that governments can use their regulatory power to extend strategic and foreign policy influence.

The conclusion would seem to be that the EU, which has for decades tried to develop a foreign policy, should be able to use its superpower status in regulation and trade to project its interests and its values abroad.

That’s the theory. It’s a proposition much welcomed by EU policymakers, who know they are highly unlikely any time soon to acquire any of the tools usually required to run an effective foreign policy.

The EU doesn’t have an army it can send into a shooting war, enough military or political aid to prop up or dispense of governments abroad, or a centralized intelligence service. Commission President Ursula von der Leyen has declared her outfit to be a ‘geopolitical commission’, and is casting about for any means of making that real.

Through the ‘Brussels effect’ whereby European rules and standards are exported via both companies and governments, the EU has indeed won many regulatory battles with the US.

Its cars, chemicals and product safety regulations are more widely adopted round the world than their American counterparts. In the absence of any coherent US offering, bar some varied state-level systems, the General Data Protection Regulation (GDPR) is the closest thing the world has to a single model for data privacy, and variants of it are being adopted by dozens of countries.

The problem is this. Those parts of global economic governance where the US is dominant – particularly the dollar payments system – are highly conducive to projecting US power abroad. The extraterritorial reach of secondary sanctions, plus the widespread reliance of banks and companies worldwide on dollar funding – and hence the American financial system – means that the US can precisely target its influence.

The EU can enforce trade sanctions, but not in such a powerful and discriminatory way, and it will always be outgunned by the US. Donald Trump could in effect force European companies to join in his sanctions on Iran when he pulled out of the nuclear deal, despite EU legislation designed to prevent their businesses being bullied. He can go after the chief financial officer of Huawei for allegedly breaching those sanctions.

By contrast, the widespread adoption of GDPR or data protection regimes inspired by it may give the EU a warm glow of satisfaction, but it cannot be turned into a geopolitical tool in the same way.

Nor, necessarily, does it particularly benefit the EU economy. Europe’s undersized tech sector seems unlikely to unduly benefit from the fact that data protection rules were written in the EU. Indeed, one common criticism of the regulations is that they entrench the power of incumbent tech giants like Google.

There is a similar pattern at work in the adoption of new technologies such as artificial intelligence and the Internet of Things. In that field, the EU and its member states are also facing determined competition from China, which has been pushing its technologies and standards through forums such as the International Telecommunication Union.

The EU has been attempting to write international rules for the use of AI which it hopes to be widely adopted. But again, these are a constraint on the use of new technologies largely developed by others, not the control of innovation.

By contrast, China has created a vast domestic market in technologies like facial recognition and unleashed its own companies on it. The resulting surveillance kit can then be marketed to emerging market governments as part of China’s enduring foreign policy campaign to build up supporters in the developing world.

If it genuinely wants to turn its economic power into geopolitical influence – and it’s not entirely clear what it would do with it if it did – the EU needs to recognize that not all forms of regulatory and trading dominance are the same.

Providing public goods to the world economy is all very well. But unless they are so particular in nature that they project uniquely European values and interests, that makes the EU a supplier of useful plumbing but not a global architect of power.

On the other hand, it could content itself with its position for the moment. It could recognize that not until enough hard power – guns, intelligence, money – is transferred from the member states to the centre, or until the member states start acting collectively, will the EU genuinely become a geopolitical force. Speaking loudly and carrying a stick of foam rubber is rarely a way to gain credibility in international relations.

This article is part of a series of publications and roundtable discussions in the Chatham House Global Trade Policy Forum.