17 Mar Hamster in a Wheel: International Law, Crisis, Exceptionalism, Whataboutery, Speaking Truth to Power, and Sociopathic, Racist Gaslighting
[Ralph Wilde is a member of the Faculty of Law at University College London, University of London.]
Over two decades ago, in 2000, a conference was held in London, entitled ‘international law and the Kosovo crisis’, concerning the NATO bombing of Serbia the year before. At that event, Professor, now Judge, Hilary Charlesworth, characterized international law as a ‘discipline of crisis’ in a presentation subsequently published in the Modern Law Review. Charlesworth said:
International lawyers revel in a good crisis. A crisis provides a focus for the development of the discipline and it also allows international lawyers the sense that their work is of immediate, intense relevance
So it was then, it is now — on steroids. The world faces another situation — the Russian invasion of Ukraine — characterized as a ‘crisis’, and, again, international lawyers have not been backwards in coming forwards with their hot takes, proclamations, and proposals. The mutually-reinforcing contemporary practices of virtue signalling and social media validation have, as with everything else, enabled this activity to be of an intensity and scale unimaginable two decades ago. Back then, Charlesworth offered a characteristically rich and nuanced critique of this crisis approach. She argued that
A concern with crises skews the discipline of international law. Through regarding ‘crises’ as its bread and butter and the engine of progressive development of international law, international law becomes simply a source of justification for the status quo. The framework of crisis condemns international lawyers, as David Kennedy puts it, to ‘a sort of disciplinary hamster wheel’.
One particular concern Hilary Charlesworth raised was the way in which the ‘crisis’ approach distracts attention from addressing structural, everyday matters and ongoing situations. We might also say that it can enable efforts at furthering erroneous distinctions to operate between particular situations and other like situations, both contemporary and previous, so as to enable varying approaches to be adopted as between them, with problematic significance.
The Russian invasion of Ukraine has led to an exceptionally wide-ranging deployment of the mechanisms of international law enforcement, short of (at the time of writing) other states joining Ukraine directly as co-belligerents in its self-defence. The response by international lawyers has been similarly exceptional, notably when it comes to statements of international law bodies being issued on the subject. This common exceptionalism places the invasion of Ukraine in a special category, given treatment that is not and was not given to other like situations.
So, for example, on 3 March 2022 the Executive Council of the International Law Association, an organization not previously known for issuing statements taking positions on particular situations, put out a statement deploring the invasion as a ‘flagrant violation of international law’. This followed an earlier statement on 25 February 2022, the day after the invasion was launched, by the ILA Chair, stating that it was ‘appropriate at this moment to affirm the Association’s commitment to the rules of international law’ and, having reviewed the rules concerning the peaceful settlement of disputes, and the use of force, stating that ‘[the importance of all these principles is especially relevant at this current time’. On what seems to have been 7 March 2022, the Presidium of the Russian Association of International Law (RAIL), which also seems to be the Russian Branch of the ILA, posted a statement offering a defence of Russia’s invasion, pointing out instances of US military actions in the past (e.g. Iraq) and noting the absence of equivalent statements to the one issued by the ILA Chair by ‘authoritative international organizations’ (presumably, professional bodies for international lawyers like the ILA) in relation to these invasions. Here, then, we have ‘whataboutism’ or ‘whataboutery’: seeking to discredit an argument by raising the charge of hypocrisy or double standards against the person raising it.
An earlier statement of 24 February 2022 by the President and the Board of the European Society of International Law addressed this form of whataboutery as it has been manifest by Russia itself, thus:
The arguments presented by the Russian Federation to justify its aggression have no basis whatsoever, whether in fact or in law. They are a cynical and perverse use of international law by a regime that has no shame, governs by fear, and indulges in lies and propaganda.
To contend that other States — especially in the West — have no better record when it comes to respecting international law is a morally corrupt and irrelevant distraction. In any event, it offers no legal justification for the aggression that has been unleashed.
For Russia, or anyone else, to raise the issue of double standards as a justificatory defence of Russia is indeed without merit – two wrongs don’t make a right. Whataboutery in this sense, as a matter of argumentative logic, is a fallacy (being a variant of the tu quoque fallacy).
But it isn’t just Russia raising issues of double standards and the different treatment of seemingly like situations. Nor is it the case that all those others who do this are doing so to justify Russia’s actions. Some are asking ‘what about’, not to justify Russia’s actions, but actually, the reverse – to say, in the context of an assumption that what Russia is doing is wrong, to ask why, when violations of international law of the same or a similar nature happen elsewhere, there is not the same response- a response they would welcome – by those who are now condemning Russia. And when those other violations are by some of the very same states now condemning Russia, the charge of hypocrisy is levelled not to suggest that therefore the condemnation is without merit as a general matter – that what Russia is doing is somehow not illegal — but, rather, to make a particular point about the standpoint of those doing the condemning: that the position presupposes that compliance with international law is only for people they oppose, not also for themselves.
This is a challenge that is being put by the people of Afghanistan, Iraq, Lebanon, Palestine, Syria, Western Sahara and Yemen amongst other places. Such people are asking: why does the international community not seem to care about us, as far as enforcing international law is concerned? Do our lives not matter? Why, when what Russia is doing to Ukraine has been done, or is being done, to us – including, indeed, by Russia itself when it comes to Syria – has the international response been so different? And these differences are sometimes not just ones of degree – that there is relatively less concern. In some cases, the response has been the opposite.
These differences of course map onto divisions of the world along racial lines. The UK and the US commit aggression in Iraq, perpetrated against brown, predominantly Arab people, and there is no accountability in international law other than a very few cases about particular incidents of rights abuses by UK soldiers. Russia commits aggression in Ukraine, with largely white European victims – although it important to acknowledge the black and brown people, many of whom being students and guest workers, who have also been affected (and the contrasting treatment of their claim to refugee status is of course telling) – and the world is witnessing what is arguably the most impressive deployment of the existing international mechanisms of international law accountability that has ever happened. And even, in the proposal to create an aggression tribunal, an effort to fill the obvious gap in the existing mechanisms, specifically to address the situation.
It is striking that the aggression tribunal proposal is being spearheaded by Gordon Brown. This is the man who was effectively the co-leader of the UK at the time of the Iraq aggression. That someone who was himself directly involved in that, can now propose the creation of a tribunal to try the Russian leadership for another act of aggression, symbolizes everything that is morally and ethically problematic about international law and enforcement. A white, Christian, western European leader directly involved in the commission of an act of aggression against the brown, predominantly Muslim, predominantly Arab people of Iraq can feel so confident that he will never face a reckoning, that he can have the chutzpah to propose creating a tribunal to prosecute the commission of this crime when it is perpetrated against predominantly white Europeans. This initiative is, effectively, a sociopathic, racist gaslighting of the people of Iraq. Here we see how effective the ‘crisis’ approach, with its exclusive focus on the particular incident, can be. That distorted view sees only the Gordon Brown of the time of the Ukraine invasion — retired Elder Statesman — and not the Gordon Brown of nineteen years ago — part of the leadership of a state that invaded Iraq.
When I raised this critique at an event on the Ukraine situation at my university, some of my colleagues — white, European — who had been lauding the response to Ukraine in general, and the aggression tribunal proposal in particular, responded defensively. They doubled down, insisting that the exceptional response is somehow compatible with universality, and the equal worth of all human beings regardless of race and geographical location. After previously having espoused the usual pious liberal homilies to the rule of law linked to universal humanity, one respondent to my critique said the quiet thing out loud — of course Europeans would care more about other Europeans (so much for universal humanity…). Another suggested that what has happened can be viewed as a ‘start’ – from which to build up to something universal. Precedents will be set in situations where there is an opening, and this can help build momentum for progressive development. Here we see classic liberal optimism, with its teleological view of history. We also see white Europeans following their usual tradition of centering and prioritizing themselves over the people of the rest of the world, while dissimulating this through the claim that it is not Eurocentric but actually proto-universal — just happening in relation to Europe first.
One wonders whether they have run this by Gordon Brown, since if it is a credible explanation of what might follow from the aggression tribunal proposal, he has agreed to be the figurehead for an initiative that might lead eventually to the creation of institutions that could lead to his prosecution for the Iraq aggression. He is, then, a turkey that has voted for Christmas. But an alternative view has to be accounted for, of course. That the responses to Ukraine have only been possible because they are exceptional. That some of the key actors whose support is necessary for them are only giving this support on the basis that it would not set any precedent for other like situations, where they would wish to remain free to take lesser or even opposing positions. Exceptionality and selectivity, then, may be integral. In which case, not only can no assumption be made that this can necessarily be viewed as a ‘first step’ towards genuine universality. Also, it may actually be a demonstration of the impossibility of such a journey within the existing system. It is not so much that the exception proves the rule of the international legal system; the exception is the rule of the international system.
Take the example of the remarkable, possibly unprecedented decision by EU states with respect to refugees from Ukraine. That anyone from Ukraine will be ipso facto — without any individual determination of compliance with the standards that legally oblige non-refoulement — entitled to reside in any EU state for at least 3 years, with an automatic right to work and claim benefits — and regardless of whether those individuals have already been in an initial state of protection (so no Dublin-based mandatory transfers back to initial destinations of refuge). No-one with even a passing knowledge of international refugee law and policy, and an appreciation of how states, including European states, have behaved in relation to refugees from other situations, would regard the idea that this can be somehow seen as the start of a different, more broadly receptive approach within European refugee policy as credible. Relevant to this, of course, is the fact that that right now the approach to Ukrainian refugees is operating in tandem with the alternative, far more restrictive approach that operates for other refugees. Thus an extreme two-tier system of refugee protection prevails, mapping onto a stark divide between white Europeans and non-white non-Europeans. Whatever might happen in the future — and I would be more than happy to be proved wrong about the likelihood that things will change — certainly at the present moment the shift in policy that has been carved out for refugees from Ukraine has not somehow prompted policy-makers to show any interest in re-thinking things more generally.
At that university event, one colleague said, in the context of the aggression proposal, and by extension the exceptional approach generally, to paraphrase – we have to support this, because otherwise we might as well give up. But who is the ‘we’? In the paradigmatic style of the narcissistic White European man, a personal position is pronounced to be that of universal humanity. The same person also said, in response to a student question raising the selectivity question, “we live in a f*cking messy world” – the first time I have ever heard an academic swear at a student in over three decades as a university student and academic (and I hope the last time I ever witness this). A student of mine, from the Global South, contacted me afterwards to say he was shocked to witness this (he has given me permission to mention this, and the description of his identity is his own). A privileged European swearily purporting to enlighten students, some of whom, unlike him, having direct, personal, ongoing and serious disadvantages as a result of the ‘messy world’, about this, in response to a concern that may indeed be rooted in their own appreciation, not ignorance, of it. But Whitey knows better than them, even about their own situation. And will swear at them to drive the point home.
To say that the alternative is to ‘give up’ — reminiscent of the ideas of Nathaniel Berman’s magisterial Harvard Law Review article, ‘But the Alternative is Despair’ — is of course to assume that somehow operating within the limited possibilities of international law is the only option for someone who cares about global issues and wants do something about them. Here is the hamster in David Kennedy’s wheel, solipsistically pronouncing his own life in the wheel to be that which all of us have and can only have. But the hamster would say that, of course. Those of us listening to the hamster must remind ourselves that there are other options than the wheel. The hamster may be trapped, but we do not need to join him.
When I was a member of the ILA Executive Council, the ESIL Board, and the Executive Council of the American Society of International Law, we never adopted any public positions of the kind that have now been adopted in relation to Ukraine, although together with Başak Çalı, Cathryn Costello, and Guy Goodwin-Gill, at the ESIL conference in Oslo I organized an open letter signed by over 900 ESIL members and others concerning the European refugee ‘crisis’ (plus ça change….). in 2016. The ASIL, during the time I was on that Executive Council, debated adopting a statement in relation to the war in Iraq in 2003, deliberations which involved the full membership at its annual meeting in Washington DC that year. The view was taken not to make a statement. (The ASIL President has made a statement about Ukraine.)
Perhaps the climate has changed within these associations and the constituencies they serve, not least in the light of the aforementioned accelerated social-media-driven trend for everyone to have an opinion, and express that opinion, on every subject. Perhaps had I been on these bodies now, I would have supported the issuing of these statements. The urge to take a stand in the face of global horror is strong. And those of us in the hamster wheel can easily convince ourselves that the tools of our own discipline might provide some way of making a difference — and get the adrenalin thrill derived from accelerating the wheel through some joint action. Back in 2003, a group of UK-based international lawyers signed an open letter to then Prime Minster Tony Blair, explaining why the Iraq war would be illegal. Matthew Craven, Susan Marks, Gerry Simpson and myself, four of the signatories, wrote about some of the anxieties about being involved in such an initiative. But we were still happy to sign the letter (and in my case, as mentioned, then organize the 2016 ESIL letter about the European refugee ‘crisis’ at that time).
When the ASIL membership debated issuing a statement on Iraq, one of the arguments made was that this was a slippery slope — take a stand on one issue, and people will expect you to do it on others. To mix the metaphor, the Rubicon has now been well and truly crossed. One waits to see, then, whether this will be the start of a process that will lead to other situations being given the same attention. The exceptional response by states may not be the start of something that leads to more consistent behaviour in the future. One waits to see whether the professional institutions of international law follow, or depart, from this.
One potentially mediating factor here might be the challenge of issuing statements when matters of illegality are more politically sensitive for those making the statement. In their statement the ESIL President and Board say:
We also call on our Russian colleagues to speak truth to power, and to speak out against the manifest breach of international law that is taking place. We do so with the full understanding of the difficulties they face in opposing a government that relies on intimidation and suppresses dissent.
Here are Europeans adopting the familiar tone of lecturing others elsewhere on how to behave — as if somehow people in Russia need telling this (echoes of the sweary comment to students), and that, indeed, those in Russia resisting their government are actually going to be helped when what they are doing is now cast as a response to a hectoring statement from Russia’s opponents outside the country. It is of course easy to lecture others to speak truth to power when you are yourself in a relatively comfortable and secure position when it comes to the ability to speak out against your own government. But do those in that position actually exercise this ability? One might well ask the ESIL President and Board: when have you ever spoken truth to power? Not, as in here, where what you are saying is entirely supportive of the policies of those states within which most of you are based. But in other situations, when your statements are more personally difficult. Surely in your relatively fortunate position — something you have, in character with Edward Said’s orientalism, implicitly referenced in the way you describe the difficulties faced by your Russian colleagues — you are able to do this?
Here the Israeli military occupation of the West Bank of Palestine, in operation since 1967, is illustrative. There is a degree of consensus between many Western states that although the Palestinian people are entitled to self-determination, this should only be realized if and when there is a peace agreement with Israel. The issue of whether or not the occupation violates international law is commonly addressed exclusively in terms of violations of the jus in bello – IHL generally and occupation law in particular (e.g. the illegality of settlements). As I argue in a new article in the Palestine Yearbook of International Law, what this ignores is that the occupation is in and of itself illegal in jus ad bellum terms, as an unlawful use of force, and, relatedly, is a violation of the right of self-determination of the Palestinian people. In consequence, the Palestinian people have a right to be free from the occupation now. Not if and when a peace agreement is reached. In consequence, every day that the occupation continues constitutes a violation of these fundamental norms — the very same norms that Russia is violating now, in the same way, in Ukraine. As explained in the article, it is striking how this feature of the occupation is not commonly even acknowledged by international law experts, let alone addressed in their scholarship. The exclusive focus tends to be on in bello violations. Given this, it is hardly surprising that we don’t see equivalent statements by international law bodies condemning what has been a more than half-century violation of the jus ad bellum and associated violation of self-determination, and an associated call for the occupation to end immediately. Here is an illustration of Hilary Charlesworth’s critique of the professional fetish for a focus on ‘crisis’ over the ‘quotidian’. The prioritizing of dramatic incidents over long-standing violations of the very same areas of international law.
Speaking out about the illegality of Israeli occupation in and of itself, and calling for it to be immediately terminated, in these fundamental terms, rather than only raising concerns about particular violations of IHL, as sometimes happens, would go against the grain of Western policy on the subject. But of course the very concept of speaking truth to power – as illustrated in how the ESIL President and Board invoke it to their Russian colleagues – it is that it is concerned with taking a stand that is difficult, not easy. Are the ESIL President and Board and colleagues in other associations willing to take this challenging step, that might put them at odds with their own governments, with potentially detrimental professional consequences (cf. how many senior appointments to international bodies, including courts and tribunals, are determined through state-of-nationality/base nomination and lobbying)? Or will it only be the easy cases which will be cost-free on a personal level – indeed, may even be looked upon favourably by the government of one’s own state? Here, then, is another dynamic that has to be accounted for where selectivity is concerned.
The ESIL President and Board proclaim:
We stand in solidarity with our Ukrainian colleagues, and the people of Ukraine, against the violence they face.
But an earlier Board with some overlapping composition to the current one (including the current President), took a very different position when it came to solidarity with the Palestinian people. Not only has there been no equivalent statement condemning the half-century-plus existence of the Israeli occupation as a violation of the use of force and right of self-determination (let alone lecturing Israelis to ‘speak truth to power’ about this). Also, the ESIL leadership decided to organize not one, but two ESIL-sponsored events at Hebrew University, which has a campus partly located on unlawfully-purportedly-annexed, unlawfully occupied land in East Jerusalem (i.e. beyond the Mount Scopus Israeli enclave in East Jerusalem where most of the campus is located). And no events in Palestine. In response to my request made at the ESIL General Assembly at Napoli, and again at the following meeting in Manchester where I proposed a motion (which did not pass) critical of these arrangements, Board members pledged to organize an event in Palestine. No such event has happened. The Board also denied there was any problem, from the perspective of organizing an event with that particular university, with the location of part of the Hebrew University campus (indeed initially the Board misleadingly stated that the campus was not on occupied land — partly true, partly false). It was suggested that it was important to engage with the Israeli academics at that university, who were described as critical of the occupation. But this criticism, such as it has been, has not, to my knowledge — and I am happy to be corrected — extended to the fundamental matter of the occupation being in and of itself illegal in use of force and self-determination terms, requiring an immediate, not wait-for-a-peace-deal, termination on this particular basis. Such an approach would, of course, presuppose that Hebrew University, which describes itself as an Israeli university — i.e. a university in Israel — by extending its campus outside the lawful boundaries of the state, is itself directly implicated in a claim to sovereignty/annexation (over East Jerusalem generally), if that is what it is, and the use of force that enables it, which are illegal as a matter of the jus ad bellum (and relatedly invalid as a matter of the law of title to territory). This episode suggests that for the ESIL President and those Board members who were in post at the time, ‘speaking truth to power’ is for others, not themselves.
Finally, it is important to appreciate the limited nature of the non-self-justifying version of the ‘what about’/selectivity critique. Erasing the double standards, bringing about universal compliance with international law — and, for the profession, issuing statements not only on easy situations, affecting White Europeans, but across the board — necessarily presupposes that international law is an appropriate and legitimate framework within which to address these situations. But as I explore in the context of the liberation of the Palestinian people in the aforementioned article, international law even fully implemented still operates according to a set of assumptions that drastically diminish the options when compared to that which oppressed people often demand. The hamster wheel is usually located within the hamster cage. A life outside the wheel, then, can still be the life of the cage. To shift the metaphor, as African-American lesbian feminist activist Audre Lorde observed, “the master’s tools will never dismantle the master’s house…they may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.”