This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
Introduction
The practice of prosecuting sitting Heads of State by the International Criminal Court (ICC) was designed to revolutionize international politics by claiming that there are crimes of such magnitude that the perpetrators should be punished, regardless of their status. However, the record of the implementation of this practice is worrying; out of 3 situations (al Bashir in Sudan; Kenyatta in Kenya; and Gaddafi in Libya) not even one was finalized. This article focuses on the Libyan and Syrian cases to underline how the transition between the two is exemplificative of a paradoxical dynamic. Ronnie Hjorth, in his exploration of the work of one of the founding figures of the English School of international relations, Hedley Bull, explained this paradox in these terms: “it is a ‘paradox’ that while the balance of power can be viewed as an ‘essential condition of the operation of international law’, the maintenance of the balance would ‘often involve violation of the injunctions of international law.’”
Ronnie Hjorth, Hedley Bull’s Paradox of the Balance of Power: A Philosophical Inquiry, 33 (4) Rev. Int’l Studies 602 (2007).
In other words, states would violate or oppose injunctions of international law if they perceive said injunctions to be disruptive for the balance of power. Following this consideration, this article argues that international organizations like the ICC, channel disagreement on the fundamental norms that should shape interstate relationships, acting as decompression valves for malcontent in international society.
To sustain this argument, the article proceeds in five sections. First, the introduction unpacks the distinction between primary and secondary institutions and advances the claim that international organizations can act as decompression valves for malcontent among states. Second, the article highlights the relation between the balance of power and international law. With Hedley Bull,
See Hedley Bull, The Anarchical Society: A Study of World Order, World Politics, ch. 1 (1977).
this article contends that the relationship between the two is apparently paradoxical; international law works better in situations where the balance of power is in equilibrium; but violations of international law are sometimes used to re-establish it. In the third section, a review of the Libyan case highlights how a liberal-institutionalist paradigm advanced the idea that, for particular crimes, the perpetrators should be punished regardless of their status. Then, the article explains how the sentiment that pervaded the prosecution of Gaddafi vanished in Syria; and how this is not only indicative of a ‘revolt against the West’; but also a manifestation of a shifting balance of power. In the final section of the article, I urge international relations scholars to dedicate more attention to the practice of prosecuting sitting Heads of State for three main reasons: first, the growing disaffection showed by non-Western actors towards the post WWII neo-liberal project does not signal the collapse of international society but instead something quite the contrary. Second, international organizations constitute perfect fora to express hostility towards the norms that underpin inter-state relations. Finally, the practice of prosecuting sitting Heads of State (and perhaps more importantly the resistance to it) also unveils a blind spot in those ‘endist’
The term ‘endist literatures’ refers to those approaches that argued that the collapse of the Soviet Union constituted the culmination of history and the end of ideological frictions among nations.
literatures that have infused the international relations debate since the end of the Cold War.
Secondary Institutions as “Decompression Valves” in International Society
One of the major contributions of the English School to international politics has been the distinction between primary and secondary institutions. Buzan ascribes two features to primary institutions: first, they are relatively fundamental and durable practices that are evolved more than designed; and second, they are constitutive of actors and their patterns of legitimate activity in relation to each other.
Barry Buzan, From International to World Society? 167 (2004).
Primary institutions include anarchy, order, diplomacy, and war.
Secondary institutions “can make do with definitions such as those provided by Krasner and Keohane. Within such definitions there are nearly infinite possibilities for types or formal organization and regime”.
Secondary institutions are, in other terms, those phenomenological derivations formalizing the existence of normative patterns of behavior that shape inter-state relationships. These can include international organizations, such as the ICC, or regimes, like international justice regimes.
The relationship between primary and secondary institutions is deeply related to a dialectic proposition that underpins the pluralist/solidarist debate. Bull, Jackson, and Mayall, among other pluralists, claimed that states in international society should act as functional instruments to limit and curtail the spread of excessive disorder in the ontological condition of systemic anarchy.
See Bull, supranote 2, at 13; Robert H. Jackson, The Global Covenant: Human Conduct in a World of States 1–22 (2003); James Mayall, Nationalism and International Society 5–35 (1990).
This draws mainly on neorealist and rationalist approaches to the international system and proposes that “sovereignty is about the cultivation of political difference and distinctness”.
Pluralists believe that the promotion of ‘universal’ values, on which no clear consensus has been reached, can jeopardize efforts to achieve a stable international community.
This conceptualization of international society implies that humanitarian intervention constitutes a violation of the three principles of order in international society: sovereignty, non-intervention, and non-use of force.
Nicholas J. wheeler, Saving Strangers: Humanitarian Intervention In International Society 11 (2000).
This proposition was introduced by Bull, who contended that the need for order in ontological conditions of ethical diversity and anarchy might be undermined in the pursuance of universal ideals and norms.
The solidarist strand challenges such views on the prioritization of order over justice. Solidarism “lean[s] towards the revolutionist side of rationalism”.
As Buzan noted, “solidarism focuses on the possibility of shared moral norms underpinning a more expansive and almost inevitably, more interventionist, understanding of international order”.
Id. at 478.
If for pluralists the prioritization of order over justice seems like a conditio sine qua non for the existence of international society, solidarists have focused on “the possibility of overcoming conflict developing practices that recognize the mutual interdependence between the two claims”.
The defining character of the solidarist view of international society is one in which “[s]tates accept not only a moral responsibility to protect the security of their own citizens, but also the wider one of guardianship of human rights everywhere”.
Id. at 12.
Linklater labels such propositions as assaults on the Westphalian order.
Andrew Linklater, Men and Citizens in International Relations, 7 Rev. Int’l Studies 23, 34–35 (1981).
Pluralists and solidarists seem to be divided by their different understandings of the primary institutions constituting the basis for inter-state relationships in international society. On one hand, pluralists lean towards the idea that respect for diversity grants order in international society, and so sovereignty constitutes the ultimate rational barrier to maintain a society of states transcending the competition problems of the Hobbesian international system. On the other, solidarists claim that sovereignty should be transcended in the quest for a world society. While the relationship between primary and secondary institutions has been widely debated, the notion that secondary institutions perform roles that transcend their mandates has received less attention. One of these roles is to galvanize dissent over the supremacy of certain primary institutions over others. In other terms, where the normative friction between two primary institutions is particularly pronounced, secondary institutions give dissatisfied actors a perfect, and yet rational, venue to express hostility towards the prioritization of some primary institutions over others. And this is why focusing on the resistance that emerged within the ICC sheds light not only on the institution itself, but also on the status of those norms that underpin the fabric of the society of states.
The Balance of Power, Bull’s Paradox, and the Revolts against the West
The balance of power is a core aspect of theorization in international relations. Brooks and Wohlforth have stated that the concept, its theoretical foundations, and its applications in the works of politicians and diplomats, is the most explored one in international relations.
Stephen G. Brooks & William C. Wohlforth, World out of Balance: International Relations and the Challenge of American Primacy 2008.
Typically associated with the works of Realists like Morgenthau,
Hans Morgenthau & Kenneth Thompson, Politics Among Nations, The Struggle for Power and Peace (Mcgraw-Hill Education, 2005).
and structural realists like Waltz,
Kenneth N. Waltz, Theory of International Politics 2010.
it found fertile ground also in English School approaches.
Richard Little, The Balance of Power in International Relations: Myths and Models 2007.
Recent debates varied from denying the fact that it ever operated, to articulations on its theoretical lines to include more nuanced approaches to it introducing ‘soft-balancing’; ‘bandwagoning’;
Stephen M. Walt, The Origins of Alliance 1990.
and ‘hegemonic declines’.
William C. Wohlforth, Testing Balance-of-Power Theory in World History, 13(2) European J. Int’l Relations 155–85 (2007).
According to Bull, the balance of power is not inevitable but historically contingent and dependent on states’ behavior.
In a similar vein, Butterfield argued that “an international order is not a thing bestowed by nature, but is a matter of refined thought, careful contrivance, and elaborate artifice”.
Martin Wight & Herbert Butterfield, Diplomatic Investigations: Essays in the Theory of International Politics 140 (1968).
Balance of power becomes a “conscious formulation” when “states limit their short-term objectives for the sake of long-term advantage”.
Id. at 141.
As a consequence, international anarchy is the result of conscious and deliberate actions by actors to commit to a set of rules regulating their relationships.
In situations of equilibrium, states, with the exception of the ones with hegemonic aspirations, attempt to crystallize the balance of power. In situations of disequilibrium, to rectify it. This understanding gives birth to Bull’s paradox, which intersects the notions of balance of power and international law.
According to Bull, international law performs three functions in international society: first, it helps identify the normative principles of it; second, it states the basic rules of coexistence between states and other actors; and third it helps to mobilize compliance with these rules.
Yet, Bull’s attempt to include both international law and the balance of power as primary elements of international society gives rise to a tension that can be summarized in two propositions:
The existence of a balance of power is an essential condition for the efficacy international law;
The steps necessary to maintain (or restore) it often involve violations of the injunctions of international law.
The formulation of these paradoxical inferences has crucial implications for the notion of international order seen by pluralists (like Wight, Bull, and Butterfield) as the result of conscious efforts to maintain the balance of power. But if international law is also one of the elements helping states behave in an orderly manner, then violations of international law should not contribute to order, but disrupt it. In most interpretations of this paradox, the relationship between international law and balance of power is seen as mutually reinforcing, because international law sustains the balance of power and vice-versa. This connotation dissipates when hegemonic powers “pose a direct challenge to the rules of co-existence and cooperation and so cannot expect to take advantage of these rules in order to satisfy [their] ambitions”.
When this situation occurs, states recall that in the hierarchy of those norms that should facilitate coexistence, the balance of power comes second to none.
Deeply intertwined with this conceptualization is the “Revolt against the West”. Ralph outlined its five defining characteristics:
a psychological awakening in the non-Western world, a weakening of the will on the part of the Western powers to maintain their position of dominance, or to at least accept the costs necessary to do so, the rise of new powers such as the Soviet Union, a more general equilibrium of power, and a transformation of the legal and moral climate of international relations, which was influenced by the majorities of votes held by third world states.
Id.
The three waves of revolt, according to Bull, challenged Western actors’ “sense of self-assurance, about the durability of their position in international society and its moral purpose”.
Hedley Bull & Adam Watson, The Expansion of International Society 219 (1984).
The latest development in this construction happened in the first decade of the 21st century, when modernization encompassed the rejection of impunity for the gravest crimes in the international arena
Ruti G. Teitel, Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 73 (2003); John M. Czarnetzky & Ronald J. Rychlak, Empire of Law: Legalism and the International Criminal Court, 79 Notre Dame L. Rev. 55 (2003).
(of which global accountability is a ramification), as well as establishing patterns for justified military interventions in times of humanitarian crisis, in accordance with, for example, the Responsibility to Protect.
There is a tendency to perceive actions situating themselves in contraposition with dominant political projects as necessarily posing a threat to them. For this reason, it is important to remember that, in English School terms, revolts against the West happen within the rational boundaries of international society. This sustains English School’s definitions of international society that stress the importance of intersubjective dialogue.
Wight & Butterfield, supranote 24, at 268; Bull & Watson, supranote 33, at 1.
It is this confrontation that differentiates international society from the Hobbesian international system and the Kantian world society. Revolts against the West need to be perceived as moments of high intersubjectivity in which non-Western actors express dissatisfaction on some of the diktats permeating international society. In other terms they constitute a negative movement (or antithesis) in the dialectic process, maintaining the primacy of rationalism over realism and revolutionism.
In this sense, violations of international law, and resistance towards the institutions that are tasked with its implementation, are manifestations of a normative dissatisfaction. However, neither vetoing the referral of the Syrian situation nor un-signing the Rome Statute, as Russia did in 2016
Shaun Walker & Owen Bowcott, Russia Withdraws Signature from International Criminal Court Statute, The Guardian (Wed. 16 Nov. 2016 14.14 GMT) https://www.theguardian.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-statute.
constitute violations of the international law per se. Similarly, it is unclear whether the repeated failures to comply with ICC requests, constitute violations comparable to the crimes for which the Court was set up. The main point of contention here is whether or not those who are allegedly complicit in a crime can be treated as criminals themselves.
In this article, I do not focus solely on formal violations of international law, but I draw more attention to those actions that aim at challenging a legal order associated with specific hegemonic traits. In this I am, once more, with Bull who argued that “it is wrong not merely to engage in an unlawful war, such as one that involves deliberate killing of the innocent, but also to engage in conditional preparation for it”.
By extension, it is not only unlawful to commit genocide, war crimes, and human rights violations, but it is also unlawful to allow the perpetrators of these crimes to escape prosecution, or impede those proceedings that aim at shedding light on potential abuses of such magnitude. So, even if the Russian and Chinese vetoes, and the subsequent Russian withdrawal from the ICC, are legal, they are also hostile to a norm of international law established in the wake of WWII, the prosecution of sitting Heads of State, and its institutional poster-child, the ICC. Also, the vetoes can be read as not deterring the recurrence of the crimes committed in Libya and Syria. The point here does not concern the criminalization of African resistance or blaming Russian and Chinese diplomats for vetoing Assad’s referral. This has already been done abundantly by policy-makers and academics. It is rather to set the basis to discuss the relationship between them and the balance of power.
Libya: The “Just Death” of Muammar Gaddafi
When, on March 3, 2011, the UN passed Resolution 1973 authorizing the establishment of a no-fly zone and the taking of all means necessary to protect Libyan civilians,
G.A. Dec. 63/677 (Jan. 12, 2009).
it was a pivotal moment for international society because, for the first time, the United Nations authorized military intervention on the grounds of a non-cooperating state.
Justin Morris, Libya and Syria: R2P and the Spectre of the Swinging Pendulum, 89 Int. Aff. 1271 (2013).
The Resolution was supported by evidence of violations of international law that failed to heed the United Nations Security Council call for “utmost restraint and respect for human rights and international law’.
S.C. Res. 1970 (Feb. 26, 2011).
What the international community witnessed with the referral of the Libyan situation was, to put it in Teitel’s terms, an attempt to normalize extraordinary proceedings.
Despite early warnings about how the ICC involvement in Libya could hinder the prospects of a peaceful resolution of the conflict in African countries,
Simon Tisdall, This Arrest Warrant Could Make Gaddafi More Dangerous, The Guardian, Jun. 27, 2011.
Western political elites showed themselves to be determined to prioritize the criminalization of Gaddafi over such concerns. William Hague, then British foreign secretary, argued that “the warrants demonstrate why Gaddafi has lost all his legitimacy and why he should go immediately”.
Id.
Similar statements were made by French foreign minister Alain Juppé, who argued that France and the U.K. were in “perfect co-operation in Libya”,
Theo Usherwood, Gaddafi Must Relinquish Power Says William Hague, The Independent, Jul. 26, 2011.
and received support from U.S. President Obama.
Paul Adams, Libya: Obama, Cameron and Sarkozy Vow Gaddafi Must Go, BBC News (Apr. 15, 2011), http://www.bbc.co.uk/news/world-africa-13089758.
With the unfolding of Gaddafi’s situation, which eventually led to his death, the debate on the release of the warrants of arrest focused on the relationship between the ICC, the practice of prosecuting sitting Heads of State, and regime change. In fact, at least in the West, Gaddafi’s death was met with a sense of “justice achieved”, evident in the American, French, and British that prioritized the removal of the leader over a trial.
Qaddafi’s Death Met with Little Sadness, CBS News (Oct. 20, 2011). http://www.cbsnews.com/news/qaddafis-death-met-with-little-sadness/; Luke Harding, Gaddafi’s Will Tells Libyans: We Chose Confrontation as a Badge of Honour, The Guardian, Oct. 23, 2011.
This consideration raises two intertwined corollaries. The first relates to the popularity of Democratic Peace Theory after the end of the Cold War, and the way in which this Kantian view of international politics is currently challenged by the Syrian situation. The second relates to Adam Watson’s conceptualization of international society as moving in four hegemonic stages.
See Adam Watson, Systems of States, 16 Rev. Int. Stud. 99 (1990).
These corollaries can serve as analytical tools for understanding that the current international climate (sometimes described as a “New World Disorder”
See, e.g. The New Statesman Cover, The New World Disorder, New Statesman, Jul. 19, 2017.
) is neither new nor necessarily a disorder.
The ICC attempts to prosecute sitting Heads of State are consonant with the dominance of liberal ideas since the end of the Cold War. The emphasis of Democratic Peace theorists on the idea of a safer world through promotion of democracy also encompasses aspects of Kant’s ‘Cosmopolitan Law’. Kant, in fact, referred to the possibility (and necessity) of a non-statist framework of international relations designed to promote individual freedom in times of accelerated globalization.
Immanuel Kant, Perpetual Peace: a Philosophical Sketch, Third Definitive Article for a Perpetual Peace (1795). See Antonio Franceschet, Popular Sovereignty or Cosmopolitan Democracy?: Liberalism, Kant and International Reform, 6 Eur. J. Int. Relat. 286 (2000).
As Held has noted, in fact,
Sovereignty is an attribute of the basic democratic law, but it could be entrenched and drawn upon in diverse self-regulating associations, from states to cities and corporations, all without the illusion that each of these agents can remain entirely autonomous from a cosmopolitan legal order.
David Held, Democracy and Global Order: From the Modern State to Cosmopolitan Governance 234 (1995).
Although Cosmopolitan Democracy models do not wish to eliminate states, they would remove the discretion for states to exempt themselves from international law.
Id. at 233.
In Kant’s Cosmopolitan Law people hold certain inalienable rights; and violations of such rights hinder the possibility of a democratic international environment that would eradicate the violations themselves.
For these reasons authors like Archibugi, while admitting Kant’s failure to indicate the means whereby [this] cosmopolitan law was to be enforced, have argued that the ICC constitutes an extension of a Kantian view of international politics.
Daniele Archibugi, A Cosmopolitan Perspective on Global Criminal Justice, (Jan. 23, 2015). Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2554996.
Does this mean that the international community has the duty to use any means necessary to promote democracy? Would this mean that in the pursuit of peace the ICC should legitimize such actions? In Libya, Western political elites seemed convinced they have an affirmative answer to both questions.
But Watson, one of the founders of the English School of international relations, has warned about a certain hubris, typical of those hegemonies ascending to a “dominion” stage to make such arguments. It is precisely in a stage where international society is perceived to be dominated by “hegemon-specific” norms aiming at changing the internal composition of other actors, that other states reassert the centrality of the balance of power as a tool to constrain hegemonies.
Violations of international law broadly conceived are often the tool that states use to rectify the balance of power. This is not only consistent with Wight’s predicaments on the recurrence and repetition that characterizes international politics, and with Bull’s paradox, but also with a general skepticism towards Kantianism on the part of Classical English School theorists. It is useful to note that this skepticism has to do with the fact that Kantianism has served as an ideological tool to justify the promotion of liberal-institutionalist projects since WWII and after the end of the Cold War. For this reason, Franceschet’s argument that aspects of Kantianism have been prioritized to sustain liberal-institutionalist pushes becomes particularly compelling,
as does Onuf’s claim that liberal views starting from a liberal understanding of Kant are largely misleading.
Nicholas Greenwood Ouf, The Republican Legacy in International Thought 241 (1998).
The removal of Gaddafi in Libya, therefore, can be considered as the zenith of such experiments, representing a consensus for the commitment to the persecution of perpetrators of the most heinous crimes regardless of their status. This somehow confirmed that the West, led by the United States, transcended its hegemonic role towards dominion by attempting to change the internal composition of other states. The fact that the ICC has been perceived as legitimizing this transition, had important repercussions in Syria. The prolongation of the Libyan conflict and the impossibility of bringing Gaddafi to trial, coupled with the emergence of the Syrian quagmire now cast a looming shadow over the continuation of the project. The next section indicates how resistance to the ICC emerged in Africa and continued then in 2013 with the Russian and Chinese vetoes over the referral of Syria. This not only endangers the prospects of an efficient ICC prosecution of sitting Heads of State, but indicates a shift in the balance of power from the West to the Rest, consistent with Bull’s Paradox.
Syria and the Rectification of the Society of States
On 27 April 2011 the United Nations’ Security Council discussed for the first time the deterioration of the Syrian situation.
Rep. of the S.C., U.N. Doc. S/PV.6524 (2011).
By the end of 2011, France, the United Kingdom, Germany, and Portugal attempted to pass a resolution to condemn the violence of the Syrian authorities against civilians,
Rep. of the S.C., U.N. Doc. S/2011/612 (2011).
however, Russian and Chinese vetoes to a non-coercive resolution
suggested that the Libyan case was already in the past. Hostility towards any form of interventionism on Syrian soil by Russia and China was to continue for more than 6 years, culminating with the vetoes against a referral to the ICC.
It is necessary to acknowledge that the reasons for such vetoes respond to a complex array of factors and, as Morris has noted, “[a]ny analysis of the Syrian case must, therefore, be undertaken in full cognizance of such case-specific variables”.
Id. at 1275.
In particular, Russian interests and political ties with the regime of President Assad have infused the debates within the United Nations Security Council, with France even accusing Moscow of “merely wanting to win time for the Syrian regime to crush the opposition”.
Rep. of the S.C., U.N. Doc. S/PV.6627 (2011).
Syria is even more complicated because, allegedly, the Assad government has deployed chemical weapons against civilians. The use of chemical weapons has been considered unacceptable in international politics since, at least, WWI Reactions to the use of chemical weapons are, generally speaking, more forceful than for other human rights’ violations. Precisely because of the magnitude of the crime, agreement on the prosecution of Assad could have been straightforward.
See, e.g., Brett Edwards & Mattia Cacciatori, The Politics of International Chemical Weapon Justice: The Case of Syria, 2011–2017, 39 Contemp. Sec. Pol’y 1–18 (2018).
An analysis of these factors is not the aim of this section, which focuses on the narratives of justification used to legitimize the vetoes as an indication of a return to pluralism (as conceived in English School terms), a shift in the balance of power and a return to multi-polarity in international relations.
The Syrian step-back from the optimism pervading international politics with Libya was picked up, among the others, by Ainley who argued that the ICC and Responsibility to Protect ‘are now in crisis, due in large part to their failure to prevent or prosecute recent acute human rights abuses in Syria’.
Kristen Ainley, The Responsibility to Protect and the International Criminal Court: Counteracting the Crisis, 91 Int. Aff. 37 (2015).
Ralph and Gallagher state: “[t]he legitimacy deficit that accrues from excluding significant parts of the Security Council’s social constituency is exacerbated by the ICC’s lack of progress in ending the culture of impunity”,
Jason Ralph & Adrian Gallagher, Legitimacy Faultlines in International Society: The Responsibility to Protect and Prosecute after Libya, 41 Rev. of Int. Stud. 566 (2015).
which eventually results in what Hehir and Lang identified as a ‘gap between law and enforcement.”
Aidan Hehir & Anthony Lang, The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect, 26 Crim. L. Forum 179 (2015).
As Morris noted “their concerns were not merely based on and restricted to an extrapolation from Libya to Syria, but rather extended to include western interventionist practices more broadly. Debate was no longer simply about specific cases, however they might be linked; it was about a wider normative agenda.”
If the abstention of Russia and China from vetoing United Nations Security Council Resolution 1973, which eventually “cleared the road for NATO military intervention in Libya”, leads to the culmination of the liberal-institutionalist view on justice,
Yun Sun, Syria : What China Has Learned from Its Libya Experience, East-West Center (Feb. 27, 2012), https://www.eastwestcenter.org/system/tdf/private/apb152_1.pdf?file=1%26type=node%26id=33315.
then the vetoes in 2013 demonstrate the traits of a step-back. More importantly for the scope of this article, the justifications that followed the vetoes highlight how these states sought to legitimize their actions. The analysis highlights three intertwined dynamics: first, continuous references to Libya, Russia and China exacerbate the limits of the liberal-institutionalist project and, consequently, challenge the Western domination of international politics. Second, the appeals to sovereignty as the ultimate rational barrier of international society indicate a return to pluralism after a period of solidarism which began at the end of the Cold War. And third, these factors, if framed in the context of recent events (e.g. the Russian presence in Crimea, or the exclusion of more than 700 American diplomats from Russian soil), indicate a rectification of the balance of power from the West to the Rest, and a prolongation of those revolts against the West.
See infra notes 89, 90 & 91.
In the wake of the 2013 Russian and Chinese vetoes, UN Secretary General Ban Ki Moon remarked “Syria is now the biggest humanitarian and peace and security crisis facing the world, with violence reaching unthinkable levels. Syria’s neighbors are bearing the increasingly unbearable humanitarian, security, political and socio-economic effects of this conflict”.
United Nations Secretary-General, Statement Attributable to the Spokesman for the Secretary-General -- on Syria, Un. Org (Mar.12, 2014) http://www.un.org/sg/STATEMENTS/index.asp?nid=7520.
The vetoes, of course, attracted criticism, in particular, for irresponsible behavior.
Ian Black, Russia and China Veto UN Move to Refer Syria to International Criminal Court, The Guardian, May 22, 2014; Russia, China on Wrong Side of History: US on Syria Veto, Rediff.Com (Jul. 20, 2012), http://www.rediff.com/news/report/russia-china-on-wrong-side-of-history-us-on-syria-veto/20120720.htm.
But while it can be easy to be sympathetic with the humanitarian pleas, Russian and Chinese resistance to intervention (referral included) can hardly be mimicked as only license to kill.
Marek Menkiszak, Responsibility to Protect ... Itself? Russia’s Strategy Towards the Crisis in Syria, Fiia (May 28, 2013), https://www.fiia.fi/en/publication/responsibility-to-protect-itself.
In fact, this resistance followed a long-standing Russian criticism of western powers’ “use of pseudo-humanitarian arguments” and China’s opposition to “military intervention under the pretext of humanitarianism and externally imposed solutions aimed at forcing regime change”.
Rep. of the S.C., U.N. Doc. S/PV.6826 (2012).
After NATO’s coalition began airstrikes against Gaddafi’s regime, Putin accused the United States, and generally the West, of subverting the nature of the resolution from protection of Libyan civilians to satisfaction of crusade-like actions.
Since 2011, Libya has become one of the cornerstones of Russia and China’s justifications for vetoing Western interventionism. In 2014, for instance, Putin declared that he would not allow the UN to pass a resolution to intervene in Syria because “anything that the US touches turns into Iraq or Libya”.
RT, Putin: Anything US Touches Turns into Libya or Iraq, YouTube (Aug. 29, 2014), https://www.youtube.com/watch?v=qGwWD-VVBEc.
In 2016 he claimed Russia and China were just trying to prevent a reiteration of Libyan mistakes in Syria.
Julian Robinson, Putin Attacks ‘Imperial Ambitions’ of US During Annual Marathon TV Show… and Can’t Resist a Swipe at Obama by Praising His ‘Strong’ Decision to Admit Libya Was the Worst Mistake of His Presidency, Mail Online (Apr. 14, 2016) https://www.dailymail.co.uk/news/article-3539704/Putin-spot-12-year-old-girl-asks-save-Turkish-Ukrainian-leaders-drowning-s-not-good-news-them.html.
Criticism of the Libyan situation was coupled with a broader normative argument advanced in favor of the respect of sovereignty. Wang Min, Chinese Ambassador to the UN, declared that China had serious difficulties with the draft resolution, stressing that “any action seeking referral to the International Criminal Court should be based on the premise of respect for the judicial sovereignty of States and the principle of complementarity”.
Wang Min, Explanatory Remarks by Ambassador Wang Min after Security Council Voting on Draft Resolution on the Referral of the Situation of the Syrian Arab Republic to the International Criminal Court, Ministry of Foreign Affairs of The People’s Republic of China (May 22, 2014), http://www.fmprc.gov.cn/mfa_eng/wjb_663304/zwjg_665342/zwbd_665378/t1161567.shtml.
An agreement on an immediate ceasefire was urgently needed between Syrian government and the opposition, Wang Min noted. He also warned that “forcibly referring the situation to the Court in the current environment was neither conducive to building trust nor to the resumption of negotiations in Geneva”.
Id.
Vitaly Churkin, Russian Ambassador to the United Nations, had earlier dismissed the vote as a ‘publicity stunt’ and warned that passing the resolution would hinder efforts to end the country’s three-year war.
Ian Black, Russia and China Veto UN Move to Refer Syria to International Criminal Court, The Guardian, May 22, 2014.
Marek Menkiszak, Head of the Russian Department, Centre for Eastern Studies, has argued, in a briefing paper for the Finnish Institute of International Affairs, that “Moscow seems to believe this constitutes a lesser evil compared to a regime change, which would bring forces perceived as pro-Western to rule the country”.
While it is difficult to dissect the reasons of the vetoes, it is clear that their legitimization followed the idea that sovereignty constitutes a fundamental pillar of international society that cannot be overridden to favor dubious solidarist practices as in Libya. A claim that Russia and China only acted because of domestic interests does not explain the potential impact that their vetoes carry for the pluralism of international society. In fact, in challenging the legal basis for foreign or international military intervention against Syria, both Russia and China were also envisaging, the possibility that the West would bomb another Arab state, and the possibility of the West actually engaging militarily in Syria.
Qu Xing, The UN Charter, the Responsibility to Protect, and the Syria Issue, C.I.I.S (Apr. 16, 2012) http://www.ciis.org.cn/english/2012-04/16/content_4943041.htm.
In this sense, Putin’s response was described as being framed
within a largely rational argument rooted in statist international law; the R2P norm is widely contested in a pluralist international system and Russia’s political elite naturally seeks to shape its evolution, particularly in respect of its impact on security developments outside the solidarist security community of Western liberal democracies.
Derek Averre & Lance Davies, Russia, Humanitarian Intervention and the Responsibility to Protect: The Case of Syria, 91 Int. Aff. 813, 813–14 (2015).
Webb remark that “the veto is a technique—it is not inherently ‘good’ or ‘bad’”,
Philippa Webb, Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria, 19 J.Conflict & Security L, 486 (2014).
gains particular relevance because it lays the foundations to understand Russian and Chinese actions as a dissatisfaction on certain aspects of international law that have proven to be fallacious. At the same time, because these injunctions of international law are associated with an expansion of Western rights, such actions also reassert the centrality of sovereignty and pluralism as fundamental pillars of international society.
The realization that the Court is inherently conditioned by great power politics influenced post-Syrian narratives on the ICC as well. According to Delmas-Marty “the ICC is weakened by a policy that remains dominated by a sovereign model, despite operating in a legal framework with universal aspiration”
Mireille Delmas-Marty, Ambiguities and Lacunae: The International Criminal Court Ten Years On, 11 J. Int. Crim. Just. 544, 553–61 (2013).
because as Gegout argued “[t]he institutional autonomy of the ICC is conditioned by the goodwill of states parties and non-party states to the ICC Statute.”
Catherine Gegout, The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 Third World Q. 800, 801 (2013).
The idea of a Court with global aspirations but dominated by power politics, raised questions about the effective legitimacy of it. Tiemessen wrote that
politicization of the ICC is, however, not an inevitable outcome of global governance that advocates of international justice should resign themselves to. The ICC’s independence and impartiality can best be assured with greater distance from the UNSC and states, and with more genuine support for the Chief Prosecutor to select situations and cases.
Alana Tiemessen, The International Criminal Court and the Politics of Prosecutions, 18. Int’l J. Hum. Rts. 391, 458 (2014).
To what extent Tiemessen’s remarks remain utopic in the current international environment is beyond the scope of this article. However, the transfer of concern from Libya to Syria has confirmed that states remain the most important actors in international society and as such will be reluctant to cooperate with an international instrument that they cannot control. On this, Kaye and Raustiala suggest “[f]or all its power and promise, the ICC functions in a larger framework of global governance. At the core of this framework rests the great powers”,
David Kaye & Kal Raustiala, The Council and the Court: Law and Politics in the Rise of the International Criminal Court, 94 Tex. L. Rev. 713 (2016).
because “[t]he Court operates in a world where the commitment of states and international institutions to the underlying goal of international justice is sometimes subordinated to other political considerations”.
Allen S. Weiner, Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence, 12 Wash. U. Global Stud. L. Rev. 545 (2013).
The political considerations raised by Ainley, Tiemessen, Kaye, Raustiala, and others as interpreted through Bull’s Paradox, suggest a view of attempts by Russia and China to rectify a balance of power that had tipped too much in favor of the West. This view is further sustained by a progressively antagonistic Russian stance adopted since the late 2010s, exemplified by the annexation of Crimea,
Jonathan Marcus, Ukraine: The Military Balance of Power, BBC News (Mar. 3, 2014), http://www.bbc.co.uk/news/world-europe-26421703.
the institutionalization of Russian bases in the Eastern Mediterranean,
Alexander Mercouris, Russia Just Tipped the Balance of Power in the Mediterranean, The Duran (Aug. 15, 2016), http://theduran.com/transforming-balance-power-eastern-mediterranean-russia-makes-syrian-base-permanent/.
and the recent dismissal of 755 American diplomats from Russian soil.
Neil MacFarquhar, Putin, Responding to Sanctions, Orders U.S. to Cut Diplomatic Staff by 755, N.Y. Times, (Jul. 30, 2017), https://www.nytimes.com/2017/07/30/world/europe/russia-sanctions-us-diplomats-expelled.html.
On the Chinese side, their growing influence on the African continent,
China Goes to Africa, The Economist (Jul. 20, 2017) https://www.economist.com/news/middle-east-and-africa/21725288-big-ways-and-small-china-making-its-presence-felt-across.
renewed dominion on the South China Sea,
Bill Hayton, The Week Donald Trump Lost the South China Sea, Foreign Policy (Jul. 31, 2017), http://foreignpolicy.com/2017/07/31/the-week-donald-trump-lost-the-south-china-sea/.
and the general extension of Chinese military influence across the globe
The Economist, The New Gunboat Diplomacy, Facebook (Aug. 5, 2017), https://www.facebook.com/TheEconomist/videos/10155684548719060/.
also sustain this analysis. These are examples of the rectification of the balance of power, but read in conjunction with the opposition to Assad’s prosecution, can be considered to represent the tip of the iceberg of a much deeper shift in an international community, experience a power rebalancing with the aim of redressing past Western imperial aspirations. In fact, it is not just Russia and China currently contesting the prosecution of sitting Heads of State and the institution tasked with its implementation. Most African states are resisting the prosecutions of former President of Sudan, Omar Al Bashir and President Uhuru Kenyatta of Kenya. In conjunction with the proposal of the African Union to withdraw from the Court en masse, the transfer of contention from Libya to Syria does indeed suggest a manifestation of a revolt against the West.
Conclusion
The theoretical assumption of this article has been that secondary institutions like the ICC can preserve the existence of the international human rights community by acting as a decompression valve when the normative friction on primary institutions becomes too contentious. This has been examined by reference to the opposition to the potential ICC prosecution of Syrian President Assad. While ethical considerations are beyond the scope of this article, the fact that these have been deployed to preserve equality in international society cannot be disregarded. There are ethical arguments to be advanced to argue that this kind of resistance serves the ideal of preventing states from overriding the sovereign will of other states thereby ensuring that all states should be equal in international society.
Also, the prosecution of sitting Heads of States is contested for many reasons. The vetoes reflect the resistance of a number of states in international society, and the enforcement of a contested norm would contradict the principles associated with a tradition that, both on pluralist and solidarist sides, credited consensus for norm enforcement. Despite the reasons for vetoing Assad’s referral, China and Russia became the unwilling champions of non-Western resistance to this practice. Without their vetoes the dissenting voices would have gone unheard and a breakdown of dialogue between Western and non-Western political elites ensued.
In English School terms, there has been abundant discussion on how norms spread and become institutionalized in international society. There seems to be a quasi-consequential correspondence between the establishments of hegemonic projects; the promotion of certain norms over others; the creation of secondary institutions tasked with the implementation of such norms; and the emergence of practices that sustain such institutions. This article claims that revolts against the West walk this path backwards. Actors start resisting specific practices (the prosecutions of sitting Heads of State); then criticize secondary institutions tasked with their implementations (the ICC) to question the primacy of certain norms over others (justice over order). If this analogy is relevant, it seems legitimate to assume that resistance to the prosecution of sitting Heads of State carries an implicit criticism for the liberal-institutionalist project that should not be perceived as necessarily dismantling the society of states, but perhaps at promoting a more egalitarian one.
Therefore, the early 1990s “endists” that forecasted the perpetual dominion of liberalism, the end of power politics, and the potential vanquishing of superpowers are met by the notion that the resistance to international law, the return to pluralism, and the resurgence of sovereignty indicate a “return to history” after its end. This is because, in contingency with Watson, international society is deeply rooted in its anti-hegemonic nature. The fact that in the space of two years the attitude towards the prosecution of a sitting Head of State changed dramatically seems to indicate that international law has yet to gain a constitutive status in international society. Its subservience to other constitutive elements (such as the maintenance of international anarchy through logics of balance of power) makes it susceptible to rapid changes.
However, the implications that this article has explored are not justification of the apparent lack of interest on the part of the international community toward securing a resolution for the conflict in Syria. The article does not suggest abandonning the search for a solution that can respond to the logics of renewed statehood nor does it justify violations of international law as an instrument to pacify conflict between and among nations. The article provides an explanation of underlying dynamics that signal a return to pluralism, and a rectified balance of power more similar to pre-Cold War dynamics than to the early 2000s. Efforts to solve the Syrian conflict should be directed at non-invasive tools to create a space of dialogue between the West and the Rest.
