A profusion of international norms influences state behaviour. Ambiguities and tensions in the normative framework can give rise to contestation. While research on norm contestation has focused on open debates about norms, we identify a second type of norm contestation where norms are contested through particular forms of implementation. We therefore distinguish between contestation through words and actions, that is, discursive and behavioural contestation. Discursive contestation involves debates about the meaning and/or (relative) importance of norms. Behavioural contestation, by contrast, eschews such debates. Instead, different norm understandings become apparent in the different ways in which actors shape the implementation of norms. Despite being a potentially powerful mechanism of challenging and changing norms, behavioural contestation has fallen outside the purview of the literature in part because it frequently remains below the radar. The two forms of contestation overlap when the practices of behavioural contestation are brought to the attention of and discussed by the international community. Thus, discursive and behavioural contestation are not mutually exclusive but can happen at the same time, sequentially or independently of each other. This introduction to a special section of the May 2019 issue of International Affairs, on ‘The dynamics of dissent’, develops the concept of behavioural contestation and outlines triggers and effects of this hitherto under-researched expression of dissent.

The European Union is the ultimate ‘rules-based order’. Since the end of the Cold War, the world has become increasingly integrated, in a process that Dani Rodrik has called ‘hyper-globalization’ to distinguish this from the more moderate form of globalization that occurred during the Cold War period.

But Europe, which was already more integrated than the rest of the world, has gone even further in removing barriers to the internal movement of capital, goods and people. The consequence of this has been the need for a more developed system of rules to govern this deep integration.

For much of this period, many Europeans – and also many outside Europe who had a liberal view of international politics – believed that the EU was a kind of blueprint for global governance.

They believed that the rest of the world would simply catch up with the enlightened and apparently successful approach that Europeans had taken. In short, Europeans were showing the way forward for the world.

However, after a decade of crisis, it now seems as if Europe may have overreached. In particular with the creation of the single currency, European rules increasingly extended into areas of life in which member states had previously had relative autonomy.

Since the beginning of the euro crisis in 2010, there has been a backlash against EU rules, which has raised the difficult question of whether international rule-making can go too far.

What makes international rules problematic is that they depoliticize – that is, they take the policy areas they cover out of the realm of democratic contestation. This can be a good thing when applied to policy areas that we think should be non-negotiable, like human rights.

But since the 1980s, and especially since the end of the Cold War, international rules have increasingly applied to areas of policy that not only should be contested but that should be at the centre of contestation – in particular, economic policy areas that have distributional consequences (that is, they create winners and losers).

The EU’s rules constrain its member states even more than global rules – for example, those of the World Trade Organization (WTO) – or rules associated with other regional integration projects constrain nation states elsewhere in the world. In particular, the EU’s fiscal rules – created along with the euro – set strict limits on the ability of member states to run budget deficits and accumulate debt.

Since the beginning of the euro crisis, these fiscal rules have been further tightened, which in turn has magnified the political backlash against the EU system and fuelled tensions between member states.

In democratic nation states, rules are made through a process that gives them what is sometimes called ‘input legitimacy’. International rule-making, by contrast, is essentially the product of power relations between states and therefore lacks this specific kind of legitimacy.

Supporters of European integration as currently constituted – whom one might term ‘pro-Europeans’ – would argue that EU rules are more like domestic rules than international rules: after all, they are agreed through a process involving democratic institutions such as the European Parliament. But even within the EU, power matters – as notably illustrated by Germany’s prominent (and controversial) role in driving the development of fiscal rules since the beginning of the euro crisis.

In addition, because European integration is meant to be an irreversible process, it is extremely difficult to change or abolish rules that have already been agreed. To do so would be ‘disintegration’ in the sense that powers would be returned to member states.

For example, there are good economic and political arguments for abolishing the ‘debt brake’, based on a German model, that EU member states agreed to incorporate into their national constitutions as part of the Fiscal Compact in 2011. But anyone making those arguments is labelled as Eurosceptic or ‘anti-European’.

There is also insufficient differentiation between EU rules. Any decision taken at a European level – even those decisions, such as on the Fiscal Compact, that are outside the EU treaties – becomes part of the EU’s system of rules. To challenge such a decision is therefore to violate the rule of law and therefore the EU’s ‘values’.

As Dieter Grimm has shown, legislation that would normally have the status of secondary law in a nation state has constitutional status in EU law and is therefore ‘immunized against political correction’.[1]

Though European leaders still often speak of the EU as a model for the rest of the world, the reality is that it now illustrates what other regional integration projects should avoid as much as what they should emulate. Even before the euro crisis, few other regions were thinking of creating a common currency.

But they will now think even more carefully about how far to follow Europe down the route of economic integration it has taken – and in particular will be unlikely to introduce EU-style fiscal rules.

The difficult question is where exactly the limits of international rule-making should be set. The European experience in the past decade suggests that rules on economic policy are particularly problematic because of the distributional consequences they have.

But European integration focused on economic policy from its beginnings with the European Coal and Steel Community in the 1950s. Moreover, because globalization is to a large extent an economic phenomenon, economic policy is precisely where international rules are needed.

A good place to start in thinking about where to set the limits of international rule-making may be in terms of the objectives of rules. During the early phase of European integration and the more moderate phase of globalization in the 30 years after the end of the Second World War, integration strengthened nation states – indeed, Alan Milward argued that integration ‘rescued’ the nation state in Europe.[2]

But since the end of the Cold War, rules at both the global level and a European level have been driven by the maximization of economic efficiency. This has undermined the nation state. As Rodrik has argued, a reprioritization is now needed – rules should be made above all with their impact on democracy in mind.[3]

In order to regain legitimacy, Europe should apply this idea of democracy-enhancing rules to its own approach to integration. It should begin by differentiating more clearly between rules that are fundamental to the European project and those about which Europeans can – and should – disagree.

The consequence of thinking of rules above all in terms of legitimacy may be that in some policy areas, particularly those with distributive consequences, rules should be abolished and power returned to member states.

‘Pro-Europeans’ should be open to this kind of ‘disintegration’ as a way to help the EU regain legitimacy and thus be sustainable in the medium term. It is also only by successfully recalibrating the balance between rules and democracy that the EU will once again be seen as a model for regional integration projects in the rest of the world, and for global governance more generally.

Notes

[1] Grimm, D. (2015), ‘The Democratic Costs of Constitutionalisation: The European Case’, European Law Journal, Volume 21, Issue 4, July 2015, https://onlinelibrary.wiley.com/doi/abs/10.1111/eulj.12139.

[2] Milward, A. (1999), The European Rescue of the Nation State, London: Routledge.

[3] Rodrik, D. (2006), ‘Put Globalization to Work for Democracies’, New York Times, 17 September 2006, https://www.nytimes.com/2016/09/18/opinion/sunday/put-globalization-to-work-for-democracies.html.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

The 1998 treaty which established the International Criminal Court (ICC) was adopted at a time when the world (or most of it) was willing to reach multilateral agreements on a variety of topics and was encouraging the development of international criminal justice. The two tribunals, set up by the UN Security Council, for the former Yugoslavia and for Rwanda had been relatively successful. The time was ripe for states to agree together to set up a permanent international court with wider scope than the two tribunals.

So the ICC was created, with jurisdiction over the international crimes of genocide, crimes against humanity and war crimes; its jurisdiction for the crime of aggression developed later. The court was given the power to prosecute nationals of states that were parties to the ICC Statute, and also to prosecute where the crime was committed in the territory of a state party, whatever the nationality of the alleged criminals. The court had further jurisdiction when the Security Council referred a situation to it.

That was some 20 years ago. There is now a perception in many quarters that the ICC has not fulfilled the expectations of its founders. The court’s proceedings are cumbersome and lengthy. Many of the accused are still at large, including Omar al-Bashir, the former president of Sudan. Some €1.5 billion has been spent, and there have been only three convictions for the core international crimes.

There have been criticisms of the judges, the former Prosecutor and other officials, as well as concern over particular decisions of the court. The allegation that the court is only interested in crimes in Africa[1] is perhaps heard less frequently now than it once was (most of the African governments concerned referred the situations in their countries to the ICC themselves), and there has not been the mass walk-out of African states that was once predicted.

But in other quarters there is serious unease about the situation in the court. As the UK representative said at a meeting last year, ‘We cannot bury our heads in the sand and pretend everything is fine when it isn’t.’[2]

The negative assessment of the ICC’s work may be countered by the fact that it is the failure of states to cooperate with the court that causes many of the problems. Further, the expectations of states and civil society about the possibilities of international criminal justice have been so high that no court would be able to meet them. It is not possible for one court actually to ‘end impunity’ for international crimes,[3] nor to prevent war-related violence and mass atrocities, nor to satisfy all victims.

Moreover, the criticisms of the ICC come against the background of the global crisis for multilateralism more generally. The present US administration is notoriously hostile towards this international institution.[4]

On the plus side, the establishment of the court has encouraged states to revise their own laws on international crimes and to institute their own prosecutions where it is possible to do so. It is also claimed that the very existence of the court can be a deterrent to potential perpetrators of international crimes. The court has begun to add to the body of international criminal law and has increased the possibility that mass atrocities will be investigated.

But there is indeed some truth in the criticisms made of the internal workings of the court. One problem is that the particular combination of the civil and common law systems that has developed has produced cumbersome procedures regarding the representation of victims at most stages of the proceedings. It has also resulted in endless appeals from huge numbers of small decisions made by one chamber or another.

Then there are the management failures which have led to officials of the court being awarded compensation by the administrative tribunal of the International Labour Organization (ILO) because of the way they were treated by the court, and finally the decision of a few of the judges to take proceedings themselves at the ILO to have their salaries increased. 

Some ICC decisions have been met with surprise. For example, a former vice-president of the Democratic Republic of the Congo, Jean-Pierre Bemba, who was in the custody of the ICC for 10 years, was convicted by a unanimous trial chamber of various crimes and then succeeded on his appeal. Following this and the acquittal of former Côte d’Ivoire president Laurent Gbagbo,[5] there are concerns about the ability of the prosecution to succeed in cases against high-level alleged perpetrators.

Most recently, there has been criticism of the reasoning behind the appeal court decision regarding the immunity – or, rather, lack of immunity – of former president Bashir. And a decision of a chamber of the ICC not to authorize the opening of an investigation in Afghanistan has been seen as shielding the US from possible proceedings (though it has been welcomed by others as a pragmatic approach).

The message that certain problems with the ICC need fixing is coming not just from the writings of academics and the legal blogs,[6] but from governments too, including those, like the UK, which are among the foremost supporters of the court.

The former presidents of the ICC’s Assembly of States Parties (which comprises the representatives of all states parties) say that they ‘are disappointed by the quality of some of [the court’s] judicial proceedings, frustrated by some of the results, and exasperated by the management deficiencies that prevent the Court from living up to its full potential’.[7] 

Changes to remove the worst excesses of the procedures that have evolved could be effected without amendments to the treaty incorporating the ICC Statute. It may be that a change in culture is also needed. More modesty by the court, along with more realism from governments and civil society, is needed.

And, attractive as it might seem to push at the boundaries of the law, the court should be realistic in what it can achieve. It is next to impossible to prosecute a case effectively where there is no cooperation from the state on whose territory the crimes were committed.

What is needed is a court that can undertake efficient and effective criminal proceedings, delivering fair and impartial justice in the small number of cases which it is reasonable to expect it to address, in the light of the evidential challenges, limited resources and limited state cooperation.

Governments should decide together at the Assembly of States Parties to set in hand a review of the ICC’s operations. It has been suggested that a group of experts might be mandated to assess the management of the court;[8] on the basis of their report, governments could agree on the necessary improvements.

Not everything, however, can come within the remit of such a group. Governments should adopt new rules and practices to address matters such as the election process for judges and their training; governments might consider reaching their own understandings on how some provisions of the ICC Statute should be interpreted in practice. Governments should reach out to the many civil society organizations which have supported the court over the years, to ensure that they are involved in the process.

Measures of this kind cannot detract from the fact that the ICC is fundamentally sound and that its role is as necessary as when it was first established. As Richard Goldstone, former chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, has said, ‘If there were no ICC in existence today, many people in many countries would be agitating for and demanding one. That we have one is a singular achievement. It behoves us to make it the best possible and to assist it, as States, civil society, and individuals, in the best and most productive way possible.’[9]

Notes

[1] See, for example, du Plessis, M., Maluwa, T. and O’Reilly, A. (2013), Africa and the International Criminal Court, London: Royal Institute of International Affairs, July 2013, https://www.chathamhouse.org/publications/papers/view/193415.

[2] GOV.UK (2018), ‘UK statement to ICC Assembly of States Parties 17th session’, 5 December 2018, https://www.gov.uk/government/speeches/uk-statement-to-icc-assembly-of-states-parties-17th-session.

[3] As the preamble to the ICC Statute desires. See ICC (2011), Rome Statute of the International Criminal Court, p. 1, https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.

[4] See the speech of John Bolton, US National Security Advisor. Just Security (2018), ‘Bolton’s Remarks on the International Criminal Court’, 10 September 2018, https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/.

[5] Gbagbo was accused of various crimes which took place after Côte d’Ivoire’s election in 2010, in which Gbagbo lost power to Alassane Ouattara. The case was terminated by the court following a year’s hearings in which the prosecution put forward its evidence.

[6] See, for example, Guilfoyle, D. (2019), ‘Reforming the International Criminal Court: Is it Time for the Assembly of State Parties to be the adults in the room?’, EJIL:Talk! blog post, 8 May 2019, https://www.ejiltalk.org/reforming-the-international-criminal-court-is-it-time-for-the-assembly-of-state-parties-to-be-the-adults-in-the-room/.

[7] Al Hussein, Z. R., Stagno Ugarte, B., Wenaweser, C. and Intelman, T. (2019), ‘The International Criminal Court Needs Fixing’, Atlantic Council, 24 April 2019, https://www.atlanticcouncil.org/blogs/new-atlanticist/the-international-criminal-court-needs-fixing.

[8] Ibid.

[9] Goldstone, R. (2019), ‘Acquittals by the International Criminal Court’, EJIL:Talk! blog post, 18 January 2019, https://www.ejiltalk.org/acquittals-by-the-international-criminal-court/. Richard Goldstone is also a former justice of the Constitutional Court of South Africa.

This essay was produced for the 2019 edition of Chatham House Expert Perspectives – our annual survey of risks and opportunities in global affairs – in which our researchers identify areas where the current sets of rules, institutions and mechanisms for peaceful international cooperation are falling short, and present ideas for reform and modernization.

With more protracted and urbanized conflicts, the character of warfare is changing in a manner that is having a greater impact on children. Aside from physical harm, they face the trauma of family separation and displacement, are vulnerable to sexual abuse and recruitment as soldiers and suffer severe disruption to their education. This event will discuss how international humanitarian law applies to the protection of children. Are offences against children in armed conflict being prosecuted adequately? Are there better ways of ensuring compliance with the law?

This meeting is the second in a series of three commemorating the 70th anniversary of the 1949 Geneva Conventions.

This event, which is supported by the British Red Cross, will be followed by a drinks reception.

THIS EVENT IS NOW FULL AND REGISTRATION HAS CLOSED.

Does the rule of law matter to maritime security? One way into the question is to examine whether states show a discursive commitment that maritime security practices must comply with international law. International law thus provides tools for argument for or against the validity of certain practices. The proposition is thus not only that international law matters to maritime security, but legal argument does too. In this article, these claims will be explored in relation to the South China Sea dispute. The dispute involves Chinese claims to enjoy special rights within the ‘nine-dash line’ on official maps which appears to lay claim to much of the South China Sea. Within this area sovereignty remains disputed over numerous islands and other maritime features. Many of the claimant states have engaged in island-building activities, although none on the scale of China. Ideas matter in such contests, affecting perceptions of reality and of what is possible. International law provides one such set of ideas. Law may be a useful tool in consolidating gains or defeating a rival's claims. For China, law is a key domain in which it is seeking to consolidate control over the South China Sea. The article places the relevant Chinese legal arguments in the context of China's historic engagement with the law of the sea. It argues that the flaw in China's approach has been to underestimate the extent to which it impinges on other states' national interests in the maritime domain, interests they conceptualize in legal terms.

Since assuming office, President Donald Trump’s many encounters with litigation have exposed significant irregularities of the American legal system as it applies to the president.

These encounters – including but not limited to accusations of defamation, obstruction, perjury and non-disclosure agreements – have shown President Trump to hold a particular interpretation of how the rule of law should apply to someone holding the highest elected office in the United States of America.

However, an analysis of Trump’s legal history prior to his assumption of office reveals a tried and tested method of using litigation – or the threat of it – to quieten criticism and opponents. As Trump faces possible impeachment in the House of Representatives, what – if any – influence might his combative approach towards legal battles have on the political proceedings?

Drawing on New York attorney James Zirin’s new book, Plaintiff in Chief, this event examines the relationship between President Trump’s litigation history and his approach to the presidency.

How has the American legal system facilitated Trump’s attitude towards litigation? How can his litigation toolkit be countered?

And what impact has the president’s approach to litigation had on the domestic and global reputation of the American legal system and the office of the president as accountable and credible institutions?

 

The UK Supreme Court’s ruling last Wednesday has, at least temporarily, scuppered the prime minister’s plans to limit parliamentary debate before the looming Brexit deadline. Some of the prime minister’s allies have attacked the ruling as a ‘constitutional coup’. But a close reading reveals that the court has stayed within its remit to interpret, rather than make, the law.

In a carefully reasoned judgment, the court emphasized that the case was not about Brexit. But the judges certainly did not shy away from the extraordinary nature of the matters before it, noting that such factual situations have ‘never arisen before and are unlikely ever to arise again… But our law is used to rising to such challenges and supplies us with the legal tools to enable us to reason to a solution.’

The key question before the court was whether the prime minister’s decision to seek prorogation was ‘justiciable’ – i.e. amenable to being reviewed by a court. The English and Scottish courts earlier on in these proceedings had come, dramatically, to opposing views on this.

The Supreme Court was not dissuaded by the inherently political considerations involved in the prime minister’s decision, stating that while ‘courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it’.

The court went on to emphasize that the Crown’s remaining prerogative powers (exercised on the advice of the government or directly by ministers) have long been subject to judicial scrutiny; such oversight is essential to guarding the separation of powers underpinning the UK’s constitution.

So far, so conventional. The full bench of the Supreme Court was required to grapple, though, with a prerogative power that had never been tested before in the courts. And so they delved back to the 1611 Case of Proclamations: ‘the King hath no prerogative, but that which the law of the land allow him’. In the court’s view, the legal issue to be resolved was the scope of the power to prorogue (the existence of this particular prerogative not being in dispute).

With no case law available to provide direct guidance on this question, the court, instead, relied on two fundamental principles of the UK’s constitution – parliamentary sovereignty and parliamentary accountability. What would be the logical consequence of an unlimited power to prorogue? The ability to shut parliament permanently.

The conclusion: this particular prerogative power had limits. The court held that:

‘A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.’

Having come to this conclusion, the court was left to examine what justification had in fact been given, noting that the prime minister’s motives were irrelevant. It noted that no clear reason had been given – the relevant documents were all concerned with preparing for the Queen’s speech.

Noting evidence on normal practice for such preparations, including from a former prime minister, the court found it ‘impossible… to conclude…that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks’.

The court’s decision was neither inevitable nor a radical departure from legal tradition. It represents the gradual evolution of the long-established legal principle that the crown’s powers are set by the law and supervised by the courts.

Courts have traditionally been reticent to rule on prerogative powers which are ‘high politics’ by nature – classic examples include declaring war and negotiating treaties. In recent years, though, the judiciary has shown a growing confidence to grapple with the contours of those prerogative powers that remain. Deference is still shown when looking at how those powers have been used as opposed to the limits of the prerogative in question.

The Supreme Court ruling won’t reassure those who worry about the emergence of an activist court willing to wade (improperly) into the political arena. Nor will it necessarily bring comfort to those anxious about an unwritten constitution in an era where political conventions are fast unravelling.

But divisive court rulings are nothing new, nor are ministerial outbursts about inconvenient judgments. In the current environment, politicians should take particular care not to send mixed messages which undermine the independence of the UK’s judiciary. Public trust in British institutions is dangerously low and the UK can ill-afford further damage to its reputation as a country steeped in democracy and the rule of law.

International law applies to cyber operations – but views differ on exactly how. Does state-sponsored interference in another state's affairs using cyber means – for example,  disinformation campaigns in elections, disabling government websites, or disrupting transport systems – breach international law? If so, on what basis and how are the principles of sovereignty and non-intervention relevant? States are increasingly attributing cyber operations to other states and engaging in the debate on how international law applies, including circumstances that would justify countermeasures.

As states meet to debate these issues at the UN, the panel will explore how international law regulates cyberoperations by states, consider the prospects of progress at the UN, and assess the value of other initiatives.

This event coincides with the launch of a Chatham House research paper which analyses how the principles of sovereignty and intervention apply in the context of cyberoperations, and considers a way forward for agreeing a common understanding of cyber norms.

This event will bring together a broad group of actors, including policymakers, the private sector, legal experts and civil society, and will be followed by a drinks reception.

 

Marysia Zalewski's work has taught us, as a collective of feminist scholars, to be cautious of neat instruction manuals and coherently set out plans of action; of claims to sure knowledge about danger, violence, and its subjects and remedies; of the fanfare of grand arrivals; and of the quieter staking of ground that has been seemingly won. Zalewski has persistently reminded us in different ways that we/she does ‘not even know what gender is or does’. Far from a flippant response to the emptiness of gender mainstreaming policies, this seemingly simple statement instead serves as a glaring post-it note on the margins of our texts about International Relations theory, feminism, sex/gender and violence— both those that we read, as well as those that we write. However, this lesson is often forgotten in our rush to understand and establish gendered harms as valid and important, and to seek their redress. Gleaning insights from Zalewski's work, this article critically considers possible responses to the 2018 Nobel Peace Prize. Its aim is not to delve into a discussion of the politics or effects of the Peace Prize as such, but to instead use the 2018 Peace Prize as a marker—a moment to consider the possibility for critique in relation to sexual violence.

Feminist interventions in international politics are, more often than not, understood (and visible) as interventions in relation to policy documents. These policies—in this case the United Nations Security Council's resolutions on Women, Peace and Security—often feature as the end point of feminist advocacy efforts or as the starting point for feminist analysis and critique. In this article the author responds to the provocations throughout Marysia Zalewski's work to think (and tell) the spaces of international politics differently, in this case by working with the concept of feminist failure as it is produced in feminist policy critique. Inspired by Zalewski's Feminist International Relations: exquisite corpse, the article explores the material and imaginary spaces in which both policies and critique are produced. It picks up and reflects upon a narrative refrain recognizable in feminist critiques on Women, Peace and Security policy—that we must not make war safe for women—as a way to reflect on the inevitability of failure and the ostensible boundaries between theory and practice. The author takes permission from Zalewski's creative interventions and her recognition of the value of the ‘detritus of the everyday’—here a walk from New York's Grand Central Station to the UN Headquarters, musings on the flash of a particular shade of blue, and the contents of a footnoted acknowledgement, begin to trace an international political space that is produced through embodied and quotidian practice.

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.

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.

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.

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).

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.