Introduction
Since the Russian invasion of Ukraine on 24th February 2022, the conflict has rarely left Western media headlines. Both parties have been accused of breaking international human rights law, and Russian forces in particular have been accused of war crimes including the targeting of civilians, use of torture, rape, and cluster munitions.
The response from the international community has been unequivocal. Russia has been demoted to an ‘observer’ at the Human Rights Council. NATO Allies and European Union countries have sent aid and munitions to support Ukraine’s ability to defend itself against attack. Most recently, the United States agreed to a $40 billion aid package, bringing the total US commitment during the Russian invasion to roughly $54 billion. Even those previously NATO-sceptic states in Western Europe, such as Finland and Sweden, have now applied for membership. The consensus in condemning Russia’s actions is, in many ways, shocking but not surprising. Any broad based international consensus that brings together states with different political structures and ideologies can be considered remarkable. However, in this case it is concerns about the precedent Russia’s invasion might set that have helped bring these states together.
Although the strength of the international consensus is new, its foundations are old; each state has had its own national interest concerns at heart when reacting to Russia’s war in Ukraine. Eastern European states worry that Russian success in Ukraine would encourage them to push further into Europe, while for others regional power aggression has its own implications. Even the decision to relegate Russia within the Human Rights Council was considered in terms of national interests; half the UN General Assembly chose to abstain or voted in Russia’s favour. The strength of national interests in this case has also led to the neglect of other important issues affected by the conflict. In particular, non-governmental organisations including the Global Centre of the Responsibility to Protect have pointed to the importance of atrocity prevention. This article suggests that the absence of atrocity prevention from discussions of the conflict in Ukraine, despite this non-governmental advocacy, demonstrates a critical juncture.
Critical Junctures and the Context for Atrocity Prevention
Critical junctures are found in path dependence theorising and refer to situations of uncertainty in which decisions made by important actors are causally decisive in the selection of one path of institutional development over others. Simply, critical junctures are major turning points in the development of any entity. Many examples exist in international relations, including the Treaty of Versailles, the establishment of the United Nations and the invasion of Iraq. At each of these points, the decisions of the major actors have had an impact on the development of future international relations.
To discuss the critical juncture posed by the ongoing war in Ukraine for the development of atrocity prevention as a principle of international relations, we must first understand the context in which this juncture takes place.
Atrocity prevention as a discipline in international relations had been in a stage of accelerated development in the early 2000s following documented atrocities in Kosovo, Bosnia and Rwanda in the 1990s. This culminated in the unanimous state support of the Responsibility to Protect (R2P), a principle designed by the International Commission on Intervention and State Sovereignty specifically to facilitate international efforts towards atrocity prevention, in the 2005 World Summit Document. This document also agreed the ‘four crimes’ under the atrocity prevention banner: genocide, war crimes, crimes against humanity and ethnic cleansing. The first three of these have legal definitions found in codified international agreements. The fourth, ethnic cleansing, has been acknowledged in judgments at the International Criminal Tribunal for Yugoslavia but has no agreed definition in codified international law.
The architects of R2P had intended it to support international action, up to and including military intervention through the UN, to prevent these four crimes. The ‘pillars’ of R2P outline potential responses in the face of potential and ongoing atrocity crimes. Despite the high hopes of architects and supporters of R2P, the principle has failed to live up to their aspirations. The NATO intervention in Libya, the first operationalisation of R2P, and the failure of campaigners to precipitate action in the ongoing conflict in Syria have been damaging to the principal overall. Atrocity prevention efforts were criticised for failing to reach their aims and for being co-opted by other agendas, including regime change. It is in this context, where the development of AP has somewhat slowed, that the critical juncture of Ukraine must be considered.
The Fork in the Road
Any path of development forward from this critical juncture in the development of atrocity prevention must start from within this context. That is, recognising the challenges from the overriding perception of R2P, its slowing development and the dominance of national interest framing in the case of Ukraine. Unfortunately, in the labyrinth of possible paths for development, there are far more dangerous paths than safe ones. Of all the possibilities, three stand out.
The Substitutes Bench
The national interests of states have dominated major discussions of the conflict in its first 100 days. Ukraine’s European neighbours have supplied weapons, at least partly, out of their own fear that Russian success in Ukraine would encourage them to push further into Europe. Steps towards European Union candidacy for Ukraine - which was finally granted candidate status by the European Council on 23 June - are further designed to prevent aggression in the region in future. This framing has likely set the tone for the rest of the conflict as the drive to introduce an atrocity prevention framing, where it existed at all, is inclined to lose steam.
The introduction of the atrocity prevention framing was already a significant challenge as atrocity prevention advocates had to grapple with the dominance of national interest framing, R2P’s negative image and Russia’s veto at the UN Security Council. Any one of these would pose a significant challenge, and the combination suggests that AP is likely to remain on the fringes of discussions of the war in Ukraine, at least for the most part.
Leaving AP aside is likely to set the principle on a path to stunted development, particularly given the significant risk of atrocity crimes in the ongoing conflict in Ukraine. It would point to R2P and AP broadly remaining subservient to the national interest of states and, as a result, receiving less attention. The damage done could be greater than that of Libya or Syria, not because AP was co-opted or failed in its mission but because it failed to make its presence known. In this scenario atrocity prevention could be relegated to the international relations substitute bench, never certain to make a difference.
Scrap Heap Challenge
Introducing AP thinking to Ukraine is not a simple task. Atrocity prevention was already suffering in the aftermath of Libya and Syria. These examples demonstrate a second dangerous path, one where AP thinking is introduced but poorly executed.
This could begin with a misapplication of the threshold for R2P. Broad human rights abuses are not covered by R2P and any state leading AP advocacy should be wary of the definition of the four crimes to which R2P applies. The manipulation of the threshold for R2P would invoke comparisons with the Libyan intervention and damage R2P further.
Concerted action under Pillar 2 of R2P (which involves supporting states with their own responsibility to protect), if not entirely faultless, would also be damaging. The duty to authorise interventions rests with the UN Security Council, meaning that the Permanent 5 would most likely need to lead in some way. (This would need Russia to accept any proposal, which is incredibly unlikely.) This could initiate suspicion even before any failings in the mission itself. Should the mission fail, those states who have supported AP or proposals to improve the application of R2P, including Brazil and much of the Global South, would most likely withdraw support in future. Distrust of R2P and its supporters would hurt further advocacy led by the West.
Following this path is unlikely to simply relegate atrocity prevention to the substitutes bench. More likely is that the principle of R2P becomes a non-starter at an international level in the same way that humanitarian intervention is no longer an accepted principle. Along this path, the development of atrocity prevention will rely on greater grassroots and non-governmental advocacy. Unless these groups can reinvent atrocity prevention, and ‘sanitise’ it in the long term, it may be consigned to the international political scrap heap.
Up and Up
Atrocity Prevention thinking is beginning to be introduced in the context of Russia’s war in Ukraine. The human rights lens has been present from the beginning of the conflict, providing the scaffolding around which to introduce AP thinking. The International Criminal Court has deployed an investigative team to Ukraine. The UK has also sent its own team of ‘war crimes experts’. War crimes trials have already begun in Ukraine and various non-governmental organisations have been vocal about the risk of atrocity crimes. This will not be sufficient to ensure atrocity prevention remains on the positive path, however.
The effective introduction of atrocity prevention thinking will require state advocacy. To be most effective, and to initiate any interventions, this will need the support of members of the Permanent 5. However, the activism needn’t start there. Those non-Western states who have previously been engaged in atrocity prevention can begin to gather support. The Gambia, for example, recently filed a case against Myanmar at the International Court of Justice for alleged genocide in Rakhine State. A similar leadership effort by a Global South state to introduce an atrocity prevention lens would be hugely significant.
To be successful in setting atrocity prevention thinking on the right path, efforts to introduce the lens would need to do more than begin using the R2P lexicon. AP informed economic sanctions and travel bans, focused on those financing and facilitating atrocities, are necessary as is prevention-informed post-conflict reconciliation. Introducing the AP lens to all these areas would also begin to break down the conception of R2P as a doctrine of military intervention. Down this path, the future of AP and R2P is a more positive one. The trajectory of atrocity prevention would be on the up and we could eventually see it integrated into international political action as a matter of course.
Conclusion
Setting atrocity prevention on the right path is not a simple task. As we have seen, prior to the Russian invasion of Ukraine, atrocity prevention and R2P were already suffering from the image of R2P as a ‘doctrine of humanitarian intervention’. In Ukraine, they have further faced the challenge of competing with traditional self-interested perspectives. While the latter of these challenges is likely to endure, at the very least in Ukraine where the Permanent 5 have clear interests, the paths set out above demonstrate the critical juncture.
Although we have discussed just three, there are more other potential paths for development. Most recently the Atrocity Crimes Advisory Group (ACA), announced by the EU, US and UK, suggests a path where AP is advanced by states outside of the UN Security Council. What this means for the principle of R2P is unknown. Even this path, however, suggests a focus on accountability, investigation and preservation of evidence, rather than pro-active preventative action. The ACA also remains national interest driven, Western states intending to hold Russia to account.
What is clear from the above, including the announcement of the ACA, is that the decisions of key actors in Ukraine will affect the future development of AP. For atrocity prevention to take the ‘Up and Up’ path a human rights framing is not enough. Evidence of one or more of the four crimes should act as a threshold to introduce AP and R2P. What is also clear is that the stakes are higher in Ukraine than they have been at previous junctures. Libya has already stunted R2P’s development, Ukraine risks halting it entirely. And, while it is ‘entirely correct to say that the international community’s inaction in Rwanda and Srebrenica was crucial in its Libya decision’, in the same way the international community’s (in)action in Ukraine will be crucial in AP’s future.
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