May 1, 2022 | Content, Forum, Online Scholarship
Editorial note: This exchange is part of the ILJ Forum series “International Criminal Law and the Criminal Mind”.
International criminal jurisprudence, principally that of the International Criminal Tribunal for the former Yugoslavia (ICTY), notes that “under customary law, ‘purely personal motives’ do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated.”[1] Similarly, at the International Criminal Court (ICC), “the [Rome] Statute does not envisage any requirement of motive or purpose to prove that a policy to commit an attack against the civilian population exists.”[2] Against this background, we ask …
Alette Smeulers is professor at the University of Groningen, the Netherlands and works at the Law Faculty and the University College of Groningen. She studied political science and did her PhD in international criminal law. Her main expertise and research focus is on the psychology of perpetrators of mass atrocities. Her most important publications include an article on how ordinary people transform into perpetrators and a book chapter in which she presented a typology of perpetrators. She can furthermore be considered one of the founders of Supranational Criminology, the criminology which focuses on international crimes. In her research she also looks at concepts of individual criminal responsibility from a criminological perspective. She is a passionate scholar and teacher and has published widely in this field. See here for more about her research. She can be contacted a.l.smeulers@rug.nl.
Dr. Thijs B. Bouwknegt is historian of mass atrocity violence and transitional justice. He is a researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam (part of the Royal Netherlands Academy of Arts and Sciences, KNAW). Bouwknegt also directs the Master’s programme “Holocaust and Genocide Studies” at the University of Amsterdam. He has previously worked as researcher at Amnesty International, the ICTR and the ICC, and as international justice Correspondent for Radio Netherlands Worldwide and Editor of the International Justice Tribune. Since 2003, Bouwknegt has attended and monitored over 150 atrocity crime trials at the ICC, international tribunals (ICTY; ICTR; SCSL; ECCC; STL; KSC) and jurisdictions in Europe and Africa. Bouwknegt is currently finishing his book “Transitional History”, which deals with mass violence and transitional justice in Africa between 1884 and 2022, and is working on a project on atrocity and the illiberal use of transitional justice in settler colonies. He can be contacted at t.bouwknegt@niod.knaw.nl and @thijsbouwknegt.
The mental element required to convict a person of international crimes, under the Rome Statute, varies from knowledge to specific intent.[3] Should these provisions have a more nuanced reference to the mental processes that take place when a person participates in these types of crimes?
A.S. Yes, I think they should. From a purely legal perspective these provisions might make perfect sense. But when we consider the psychology of perpetrators, some of the provisions could indeed be perceived as odd.
Let me explain: for the elements of a crime against humanity to be fulfilled the suspect needs to have the knowledge that his or her conduct is part of a widespread or systematic attack.[4] The point is that social-psychological research has consistently shown that human beings are social beings who look at others to see what appropriate behavior is and then tend to follow suit. In the famous Asch experiment, participants were placed in groups of six and were asked to indicate which line (out of three) was equal in length to another line. Not known to the actual participants, all other people in the group were confederates of the experimenter and had been instructed to deliberately give the wrong answer at times. When being alone almost no one erred; but when confronted with a unanimous wrong answer from all others in the group, many actual participants also gave the wrong answer. This experiment and social-psychological research in general show that people are likely to go along with the group and conform.
Interestingly they do so for different reasons. Some believe that the group must have it right and that hence their own perception is wrong (informational conformity). Others simply do not want to go against the group (normative conformity). The first reason is especially intriguing and seems to be at odds with the knowledge requirement in international criminal law. To put it differently: the normal and ordinary human reaction to knowing that his or her act constitutes part of a widespread attack and thus knowing that many others participate, in itself can make the person believe that it must therefore be the right thing to do. I would say that those perpetrators seem less guilty than the ones who do not know this but still decide to participate. International criminal law as it stands today would, however, conclude the exact opposite.[5]
In my opinion, the law would indeed have much to gain if it takes a better look at the mental processes of the low-ranking perpetrators. Research on perpetrators has shown that many of them (albeit not all of them) are ordinary people acting within extraordinary circumstances. In other words, they commit their crimes in a very specific political, ideological, institutional, and social context. Roxin’s idea of “organisationsherrschaft” gives room to explaining the power of organizational environment which to a large extent can shape the behavior of people working within it. Roxin’s analysis was strongly based on the lessons learned from the Holocaust, but it is confirmed by Milgram’s obedience to authority experiments. Milgram’s findings have often been misinterpreted: he did not show that people blindly obey just any order no matter what it is. What Milgram’s experiments show is that people are inclined to trust a person in a position of authority and conform to his or her request. Human beings are social beings and are heavily influenced by their surroundings, but they are not automatons: they do have a choice, although the choice is often much more confined than we can see from the outside. Roxin’s ideas seem to acknowledge that.
In that sense, it is good that the ICC took up these ideas by using the control theory as a liability theory because there is indeed a certain level of control. However, I have argued that the current requirements of almost absolute control in ICC’s case law are too high because human behavior can rarely be controlled to such a degree.[6] We need to acknowledge that people high up in the chain of command can stir and direct human behavior and thus indirectly incite international crimes. They are the ones who create the atrocity-producing situations which make others commit horrendous crimes, and therefore should be held responsible for that. International criminal law, however, is often too much focused on direct forms of incitement and ordering and — as in the case of the ICC — on absolute control. This narrow focus makes those higher up in the chain of command get off the hook too easily. By putting the focus and blame much more on higher-ranking commanders, international criminal law would become more just and therefore more effective.
T.B. I am not sure. I have come to realize that social scientists, even historians, expect way too much from what courts (international or national) could realistically contribute to empirical, judicially unbiased knowledge and understanding about how the processes and dynamics of mass violence work in the first place, and the role of individual perpetrators in that context. Also, as an observer and professional historian of legal and quasi-legal reckonings with mass violence through courts and truth commissions, I would feel uncomfortable to comment on what courts “should do” or what states ought to consider to include, or change, in the mandates of the institutions they set up. That is not my mandate.
However, when I gauge the modern development of international justice, it is quite clear to me that the orientation of the political, legal, and activist agents who set up the ICC in the 1990s was primarily towards the victims. The ICC was supposed to be forward-looking, not reflective: founders of the ICC were envisaging lofty extra-legal effects such as deterrence and contribution to peace, rather than unraveling root causes and discerning macro-, meso-, and micro motives. More importantly, inspired by positivistic human rights ideologies, the founders desired the ICC to be victim-centred instead of being perpetrator-centred: give the victims a voice, have them participate (distantly, phantom-like, through counsel, though), and compensate their suffering through reparations. Such a desire trumped over the need to hear the suspects. The goal was no longer to fathom the undercurrents of mass violence, nor to get to the bottom of why it happens and why individuals might get caught up, or choose to participate, in it (a false expectation raised in light of Israel’s “didactic” trial of Adolf Eichmann in the 1960s). As a result, at the ICC the trial-encounters with alleged perpetrators — the traditional sole focus of individual criminal proceedings — are shallowed, rendered less important: the goal has become to simply adversarially investigate, prosecute, convict, and sentence them, and have them pay reparations if convicted. Defendants — with exceptions like Bosco Ntaganda — have also become increasingly reluctant to testify or to address the ICC judges. We saw in the case of former Congolese militiaman Germain Katanga that there are risks in doing so. Controversially, after Katanga gave a statement, the judges changed the charges accordingly and convicted him.
Having said so — and having observed all trials at the ICC since 2006 — I find that there is another dynamic at play, which might provide an explanation as to why the ICC produces hardly any usable resources on perpetrators’ motives and circumstances. There is a trial record, but it is a problematic historical source. First, the records hardly ever provide any perpetrator testimony. Second, even while international judges are not psychologists and are not professionally trained to deal with those very complex matters, they “could” have chosen a different style in proceedings, a style that is more inquisitorial and more oriented towards “understanding” the accused’s reasons for doing what they did. For example, the International Crimes Chambers at The Hague’s District and Appeals Courts do things very differently, and often engage extensively in “conversations” with accused persons at trial, even if they do not always opt to provide answers. Coming from a civil law tradition, I am always quite surprised by the lack of engagement of individual international judges (or chambers as a whole) with the defendants: they never choose to question, examine, or enter into a dialogue with accused persons, but rather take a distanced approach as “arbiter” over the competing narratives and theories offered by the Prosecution, Victims’ Representatives and the Defense. So, to me, it is not so much the Rome Statute that poses an obstruction or a problem; it is the way in which judges actually operate and position themselves — opting to settle with adversarial custom — towards suspects of mass violence.
To what extent does the disregard of motives in international criminal trials come at the expense of not entirely understanding, in the international legal profession, how the human mind works in connection with the commission of atrocity crimes?
A.S. By not taking the underlying psycho-sociological processes and the mind of the perpetrator into account, international criminal law risks not only putting most of the blame on the wrong people but also failing to identify the true causes and true nature of such crimes. The power of top leaders to create atrocity-producing situations has been underestimated and needs to be better understood and addressed. Whereas there are legal provisions that prevent low-ranking soldiers from relying on the defense of superior orders,[7] the true nature of the pressure that results from explicit and implicit orders is still not completely understood.
Kelman and Hamilton have developed the term “crimes of obedience.” They did not mean to say that each individual is a passive automaton and blindly follows orders. Rather, they were saying that we trust people who have legitimate authority, such as heads of states, government officials, and military leaders. It is a natural human tendency to follow their lead. Low-ranking soldiers have often not only stated that they merely obeyed orders, but I also found in my own research that they thought they were doing the right thing — at least within the duty they perform. Such statement has often been brushed aside as a petty excuse, but I think it is important to look more into who made the soldiers believe that committing horrendous crimes was the right thing and how such person did this. Not making this inquiry works to the advantage of the top leaders who play a crucial role in generating atrocities and helps them escape the blame too easily. More importantly, not sufficiently listening to the foot soldiers prevents us from fully understanding the causes of atrocities. This is a missed opportunity, because merely locking up the perpetrators is not going to make the world a safer place. To make it safer we need to address the underlying causes. In order to do so we need to understand them first.
T.B. I would not say that all international(-ized) criminal trials disregard motive and/or personal circumstances, particularly in some civil law courts with universal jurisdiction, or even at some hybrid tribunals. At the first trial before the Extraordinary Chambers in the Courts of Cambodia, for instance, Kaing Guek Eav (alias “Duch”) – who confessed his crimes – was invited to attend and responded at large to many questions relating to why he did what he had done in the 1970s, and how he reflected on it 40 years later. At the Special Court for Sierra Leone, former President Charles Taylor — in his own defense — was allowed to testify for hundreds of hours.[8] In the Netherlands, I have attended many atrocity crime trials in which the judges inquired in-depth about what motivated the defendants to participate in certain acts. This month (April 2022), for example, the Dutch war crimes chamber spent three days in interrogating and talking with a Dutch-Ethiopian suspect, Eshetu Alemu. The chamber asked how the suspect got caught up in mass murder and torture in the late 1970s, and how he thinks and feels about that now – including towards victims. There are, thus, opportunities to gauge at least post-fact explanations and rationalizations of the historical mind. The ICC is different. In April also started the trial over the alleged atrocities in Sudan’s west-Darfur region. But from the outset, the judges did not even bother to ask the accused, Ali Muhammad Ali Abd-Al-Rahman — who is a Muslim in his 70s and was practicing Ramadan during the trial — whether he was able to concentrate on the proceedings.
Whether one comes out of such judicial experience with useful, let alone truthful, information is another massive question. Calculating potential life consequences (i.e., a long prison sentence), the perpetrator rationalizes the past in a trial setting and comes up with what the late anthropologist Bert Ingelaere called “pragmatic truth” — which oftentimes is not “the” (entire) truth. Could cosmopolitan legal professionals without (social) psychology training really comprehend how “the mind” of divergent actors works in the context of mass violence, which took place in foreign countries? I do not think so. I do not think it is possible for judges to come to a consensus about any generalizable feature of the mentality of atrocity, for three simple reasons. First, a courtroom is something completely different from a professional psychological “laboratory.” Second, international judges deal with too wide a range of different individuals from myriad societies with completely different cultures, practices, and norm-and-value systems. It would be empirically odd to draw generalities from these culturally, socially, and economically incomparable individuals about “the mind”. Third, not a single case of mass violence is similar with one another, even while political scientists want us to see it that way: a Rwandan farmer probably killed for completely different reasons than a Syrian member of the Shabiha. The legal umbrella label of “atrocity crimes” — which includes dozens of violent acts against both humans as well as historic, cultural, or military objects — does little justice in capturing the unique local dynamics and multiple layers of actual mass violence. Apart from those aspects, what can retrospectively and anachronistically asking oftentimes aged defendants about the crimes they committed many years — sometimes decades — ago, really tell us about their actual mental state in the past?
Trying to understand both the “agency” and “structure” of mass violence (in addition to rendering a legal opinion about it and meting out punishment) is thus a complex, perhaps impossible, challenge — that requires deep and long-term engagement, such as in some proceedings at the ICTY and International Criminal Tribunal for Rwanda (ICTR). This challenge is even more prominent at the ICC, which is essentially a broad collection of mini-tribunals dealing with widely diverging “situations” and “perpetrators”. What can a single judge — let’s say an aged white man from a modern western country that has not experienced any war, violence, or repression for nearly a century — really learn and understand about the “criminal atrocity mind,” when they — rather artificially and intermittently — deal with incomparable suspects (a former child soldier, a former President, a former teacher, a former nurse) who have committed incomparable crimes (enlisting child soldiers, smashing a mosque’s door, ordering a massacre, killing drug dealers) in completely different social-historical contexts (Myanmar, Venezuela, Afghanistan, Democratic Republic of the Congo, etc.)?
A.S. Thijs, you questioned whether “an aged white man from a modern western country that has not experienced any war, violence, or repression” can “really learn and understand about the criminal atrocity mind.” That is true, but the judge does not need to fully understand as this might indeed be an impossible task. The point, however, is that it is the job of an ICC judge to decide on the extent of blameworthiness in the context of atrocity crimes. This job can only be done by trying to understand the actual social context and the psychological reality in which the suspects committed their alleged crimes. The judge needs to make an effort and get a good grasp of what has happened and the mental state of the suspect. Otherwise, they should merely judge on the basis of actus reus and not mens rea. In the Ongwen case, for instance, the horrendous past and its devastating effect on Ongwen were in my view not sufficiently considered. How can it be that in the Lubanga case it is acknowledged that the children who were recruited to become child soldiers suffer a long term trauma and that their development was strongly affected,[9] and yet a former child soldier who then stands trial was merely told that there was no duress and that he could and should have escaped?[10] I am not saying it is easy — quite the contrary — but we need to take the social context in which the perpetrators operate and their state of mind into account. If that cannot be done sufficiently then we should maybe reconsider whether to try these cases, because international criminal law can only be effective if it is fair.
T.B. Thank you, dear Alette, for bringing Ongwen into our conversation. I have observed this trial extensively, and have written together with criminologist Barbora Holá on the problems you raise, and I fully agree with you. The judges there heavily leaned towards understanding the victims’ trauma and needs, while they basically disregarded Ongwen’s presence in the courtroom — including his unsworn statement, in which he narrated how he was victimized when he was 9 years old, and how his parents were murdered by his abductors. More fundamentally, the Ongwen trial was marred by contradictions as to who the ICC considers victims or perpetrators. There was no space to explore the grey zones.
If we accept one of the objectives of international criminal justice is deterrence and prevention of atrocity crimes, should personal motives to participate in the commission of these crimes play a more central role in international trials, so we can understand the motives of the crimes we aim to prevent?
T.B. I understand the symbolic tropes of “deterrence” and “prevention” as philosophical or utopian phrases that legitimize the existence of international criminal justice institutions socio-politically. The empirics are against the hypothesis that atrocity crime trials — whether national, hybrid, or international — contribute to immediate or future peace, or processes of reconciliation that may then lead to peace. Nuremberg did not stop nations — including those involved in running the military tribunals — to inflict mass atrocity violence themselves soon thereafter; over 5,000 trials for politicide through a national judicial system (1992-2010) did not deter new wars in Ethiopia; Srebrenica happened two years after the ICTY’s establishment in 1993; the Democratic Republic of the Congo has been in permanent war since 1994, despite ICTR and ICC’s “interventions”. Last but not least, did international justice deter Russia from attacking Ukraine, or did Russia weaponise the language of international law to legitimize its acts? The question at hand thus triggers more questions than there are scholarly answers. Could trying to understand Thomas Lubanga Dyilo’s (a former psychology student himself) motives to use child soldiers as bodyguards, help prevent Ahmad al-Faqi Al Mahdi (a former primary education student) from destroying the door of an ancient mosque with a pickaxe?
Moreover, atrocities are always driven by some political motives. If prevention is a goal, then trying to comprehend the political processes more generally, rather than asking the defendants why in the distant past they did an “alleged” crime — which they often deny — might provide more guidance? In addition, oftentimes we already know that defendants would rationalize and explain what they did by attributing it to particular political or social circumstances, external pressure, or — and it is a reason often forgotten — fear or opportunity. So, we are back to “Arendtism”: human beings are just susceptible to violence-producing situations when circumstances either direct or allow them. If prevention of mass violence is a purpose — even while genocide scholars, particularly historians who study the longue durée of mass violence, agree that mass violence is, sadly but simply, a cyclic continuum in the history of homo sapiens, and thus unpreventable — of individual criminal trials, then — perhaps at maximum — trying to understand an individual’s motive could only assist in preventing that individual from atrocity-crime recidivism.
Not many (would-be) perpetrators fear international justice, for they (ironically including some leaders of large democracies like the United States of America and India) resist to subscribe to it. In plain evidence today are Vladimir Putin, Bashar Assad, and the Tatmadaw. Perhaps what judges could at least apprehend about “the mind” of many perpetrators, is that those people hardly ever see themselves as perpetrators at all — but rather as liberators, peacemakers, or even victims. Yes, they were involved in violence, but they believe it was the right thing to do and thus not criminal. The only time international judges took this self-perception into consideration was in the trial of the Civil Defence Forces’ leadership in Sierra Leone. What is regularly at play, however, is a collision between different world views and appraisals of realities, including mentality, on the ground.
A.S. Thijs, I fully agree with your last statements on Putin and others but I strongly disagree with one of your other points, namely that: “trying to understand an individual’s motive could only assist in preventing that individual from atrocity-crime recidivism”. I totally understand that judges are not psychologists, but they can make more use of the work of social scientists to better understand the social-psychological reality in which perpetrators operate. It would lead to a fairer international criminal justice system and a better understanding of atrocities. In this regard, using typologies of perpetrators as a general and theoretical framework can help. You are right that perpetrators differ: they have different roles, ranks, and motives, and they operate in different political and cultural contexts. However, there are also many similarities even across cultures and time periods. It is important to understand both these differences as well as the similarities and to understand how all these different individual “cogs” (small, bigger, and biggest) play a role in a destructive or genocidal machine. That understanding is important in order to prevent such crimes from happening in the future. It is also important in the prosecution and sentencing of the perpetrators.
Let’s take the example of Ukraine. It matters whether a Russian foot soldier participates in the attack (i) because he genuinely believes that Ukraine is committing a genocide against the Russian people there (which he might believe because he is told so) and that he comes to their rescue; or (ii) because participation will give him the opportunity to outlive his violent urges; or (iii) because he is forced to participate; or (iv) because he is just doing as he is told in order to enhance his chances to build a career in the military. It matters if we look at the aims, functions, and purposes of the international criminal justice system; it also matters because we can then better see how the Russian top leaders managed to create an atrocity-producing situation. It shows how the foot soldier who believes that he needs to come to the rescue of his former fellow countrymen has been affected by the propaganda of the state authorities. Uncovering his motive shows where the main (not sole) guilt lies. We need to understand the dynamics between the perpetrators: understand how someone like Putin, a head of state, affects the beliefs and hence behavior of his foot soldiers. The international criminal justice system can much better fulfill its role and task if it uncovers, blames, and subsequently deters a powerful head of state like Putin than it could ever do by blaming and deterring the foot soldier. The foot soldier is not innocent (unless he is coerced), but he committed his crimes in a context that was created by political top leaders and his close associates, who made him believe that committing horrendous crimes is the right thing to do as an act of self-defense. Uncovering these motives would show much better how dangerous propaganda (and fake news) can be and make us get closer to understanding the actual cause of such crimes. We absolutely need to more efficiently criminalize and prosecute creating such atrocity-producing situations and for that we need to understand motive.
[1] See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgement, ¶ 270 (ICTY July 15, 1999); Prosecutor v. Kvočka, Case No. IT-98-30/1-A, Appeals Judgment, ¶ 463 (ICTY Feb. 28 2005); see also Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeals Judgement, ¶ 49 (ICTY July 5, 2001); Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeals Judgement, ¶ 102 (ICTY Sept. 17, 2003); Prosecutor v. Martić, Case No. IT-95-11-A, Appeals Judgement, ¶ 154 (ICTY Oct. 8, 2008).
[2] Prosecutor v. Ruto, ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ¶ 213 (Jan. 23, 2012).
[3] Rome Statute of the International Criminal Court arts. 6, 25(3), 30, July 1, 2002, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].
[4] Rome Statute art. 7(1).
[5] See id.
[6] See also Prosecutor v. Lubanga, ICC-01/04–01/06, Separate Opninion of Judge Adrian Fulford, ¶ 18 (Mar. 14, 2012); Prosecutor v. Ngudjolo Chui, ICC-01/04–02/12, Concurring Opinion of Judge Christine Van den Wyngaert, ¶ 42 (Dec. 18, 2012).
[7] See, e.g., Rome Statute art. 33.
[8] See also Thijs B. Bouwknegt, Unravelling Atrocity: Between Transitional Justice and History in Rwanda and Sierra Leone, in Genocide: New Perspectives on its Causes, Courses and Consequences 217 (Uğur Ümit Üngör ed., 2016).
[9] Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on Sentence pursuant to Article 76 of the Statute, ¶ 39 (July 10, 2012) (citing testimony of expert witness Ms. Schauer).
[10] Prosecutor v. Ongwen, ICC-02/04-01/15, Trial Judgment, ¶ 2668 (Feb. 4, 2021).
Feb 4, 2021 | Forum, Online Scholarship
Editorial note: This article is part of the ILJ Forum series “International Cooperation and Global Governance in the Era of COVID-19 and Beyond.”
By: Lance Ang
I. Introduction
The term “disruption”, inasmuch as it has become overused today, could not be more apt to describe the inflection point in dispute resolution that marked the year 2020. The COVID-19 pandemic has posed a substantive challenge to contractual doctrine and court procedure, and more broadly, to the rule of law and administration of justice. COVID-19 has presented further potential ramifications in respect of two issues of particular importance in cross-border commercial dispute resolution:[1]
(a) transaction risk—to what extent should contractual default due to COVID-19 be left to be negotiated between the parties themselves?
(b) venue risk—should the jurisdiction agreement be enforced notwithstanding the lack of capacity or difficulties by the court with remote hearings in the chosen venue?
The manner in which these two issues are resolved going forward would determine how the fallout from cross-border contractual defaults may be properly mitigated, and consequently the impact on commercial certainty and the disruption of global supply chains. In this article, I consider the impact that the pandemic has had on commercial dispute resolution, focusing on how courts in Asia, with Singapore and China as case studies, have responded to this changing landscape, and the potential responses to enhance global governance in transnational commercial dispute resolution beyond the pandemic.
II. Contractual Defaults
Back in March 2020, the U.K. Lord Chief Justice warned about “the inevitable backlogs and delays that are building in the system.” The wide use of the common law as the proper law in cross-border transactions is attributed to the commercial certainty stemming from the traditional reluctance to interfere with the parties’ contractual arrangements and discharge a party from contractual performance even when circumstances have changed. In light of COVID-19, however, such an approach has risked a surge in contractual defaults and insolvencies, generating such a backlog of cases as feared and the disruption of supply chains. To mitigate this, the Singapore Parliament introduced a “legal circuit breaker” by legislating a moratorium of contractual claims for a limited category of contracts affected by the pandemic. This temporary relief, however, does not necessarily apply to cross-border agreements and preserves the parties’ rights to continue proceedings after a sunset period.[2] This stands in stark contrast with the Chinese civilian approach. The Supreme People’s Court (“SPC”), the highest court in China, issued a series of “guiding opinions” to mitigate the rise in contractual disputes arising from the pandemic.[3] They provide that Chinese courts may order the “modification” of the contract where continuing performance would cause “manifest unfairness” or for the parties to “share losses.”[4]
III. Digital Courts
Fears of delays in court proceedings were certainly magnified when the onset of the virus led to rapid court closures and the adjournment of hearings arising from the imposition of lockdowns across jurisdictions that affected up to 50% of the global population in early 2020. Yet, such delays were at least partially mitigated when courts and arbitral institutions across a broad swath of jurisdictions promptly instituted new procedures for hearings to be conducted virtually through video conferencing and other forms of remote technology. “Remote courts” were reported to be operational in at least 56 countries by July 2020. Such a development followed the preceding digitization of courts and reinforces the growing move towards “online dispute resolution” to enhance efficiency and facilitate access to justice.[5] When the country went into lockdown, the Singapore Parliament promptly passed legislation in April 2020 to liberalize the use of remote communication for court proceedings where there are sufficient administrative and technical facilities and arrangements in place, and it is “in the interests of justice to do so”. This followed the earlier work of the Singapore judiciary towards the model of an “online court” in a justice system constructed on the principles of “accessibility,” “proportionality,” and “peacebuilding”.
Likewise, for a country whose rule of law otherwise invites broad skepticism, China stands at the forefront in this development and has leapfrogged other jurisdictions in its significant investment in cutting-edge technologies as part of the concept of “smart courts”implemented by the SPC in 2015. This includes the roll-out and development of artificial intelligence (“AI”) tools for adjudication processes and case management, and novel technologies such as blockchain, distributed ledgers, cloud computing, and smart contract solutions in several local and specialized courts. The establishment of “internet courts” in Hangzhou, Beijing, and Guangzhou is emblematic of this fascinating development, in which the entire litigation process for millions of e-commerce disputes may be conducted online, including through the use of a “mobile court” app that can be downloaded on WeChat.
Importantly, notwithstanding the rapid paradigm shift toward remote hearings during COVID-19, 71.5% of lawyers surveyed by the Civil Justice Council in England and Wales were positive about their experiences for civil hearings that were mostly conducted in May 2020, even though 63.9% felt that video hearings were slightly worse or worse than physical hearings due to technical difficulties and communication problems.
IV. Responses
With respect to transaction risk, the case may be made that it would be best to leave the matter of contractual defaults to be resolved by the market. On this view, the parties should bear the risks and losses as allocated between themselves of their choice of proper law in the contractual bargain, not least in view of the importance of maintaining commercial certainty and the sanctity of contract beyond the pandemic. If the contrasting common and civil law approaches towards attributing losses discussed above are any indication, this calls for commercial certainty that the validity and effect of the choice of law agreement will be duly upheld in the event of a dispute. This would allow parties to mitigate their transaction risk and litigation costs by, for example, determining for themselves the extent to which force majeure, material adverse change and other doctrines for the discharge of contractual performance may be invoked under the proper law. Yet, arguably this approach only holds true where any failure of contractual performance is the result of events within the control of the contracting parties and which could have been reasonably foreseen. In exceptional situations such as an uncontrolled pandemic, a measured form of state intervention may be called for in respect of transactions entered into prior to and materially affected by such situations. For such contracts, short of a wholesale revision of contractual doctrine and reallocating the parties’ losses without due regard to the parties’ intentions, the courts should aim in the first instance to facilitate the continuation or re-negotiation of a viable contract rather than bringing it to an end. Where the parties’ intentions with respect to such situations have not been adequately addressed in the agreement, the courts (or the legislature, as may be preferable) should strive to allow for just and equitable solutions to enforce the parties’ legitimate expectations as to how their losses should be allocated in light of current circumstances. This may provide the basis for business confidence to facilitate an eventual economic recovery without undermining commercial certainty by rewriting the parties’ bargain on which business confidence relies. It must be emphasized, however, that such state intervention may be a necessary but blunt instrument that is unlikely to address the specific circumstances of each case, nor should such interventions (if enacted at all) be expected to last beyond than the immediate term. It ultimately falls on the parties which are best positioned to mitigate the impact of similar crises through appropriate contractual risk management.
Where venue risk is concerned, the imposition, lifting, and possible re-imposition of lockdowns across jurisdictions at different times in different phases and the uneven technological capacities and safeguards in domestic courts (with some evidently more advanced than others) pose the question as to whether the default position of giving effect to the parties’ autonomy pursuant to the jurisdiction agreement should hold. Under Article 6(d) of the Hague Convention on Choice of Court Agreements, the non-chosen court has very limited discretion to accept jurisdiction where the parties have agreed for proceedings to take place in another court exclusively. As an exception, the non-chosen court may do so if “for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed.” This exception is intended to set a very high threshold equivalent to the frustration of the agreement and only applies where it would be near to impossible to bring proceedings before the chosen court, such as in the case of war or “where the chosen court no longer exists.” A similarly high threshold exists in the common law requirement of “strong cause” under which factors of procedural inconvenience are disregarded. Arguably, as with transaction risk discussed above, the current circumstances should privilege the objective of ensuring that proceedings occur in the optimal forum to ensure the effective resolution of disputes in accordance with the legitimate expectations of the parties, particularly where the procedural disadvantages arising from COVID-19 in the chosen venue were reasonably unforeseeable by the parties at the time of contracting. A less pedantic approach in the current circumstances would serve to mitigate procedural delays, litigation costs, and uncertainty of parties in pursuing or defending a claim.
If anything, COVID-19 is likely to catalyze further investment in online dispute resolution and AI, for better or worse, to enhance procedural efficiency and possibly level the playing field. It is likely to accelerate the competition between courts and alternative dispute resolution tribunals as service providers, and presages the move toward Frank Sander’s concept of a “multi-door courthouse”[6] in terms of providing an array of procedural options which meet the needs of disputants as consumers depending on the requirements of their dispute at hand. One should also not discount the possibility of adjudicators with autonomous cognitive abilities (i.e. “robot judges”), as Richard Susskind suggests. The digitization of dispute resolution is certainly not unprecedented and is a long time coming. AI is already embedded in legal practice and dispute resolution processes in the form of tools to analyze voluminous amounts of data and documentation and perform routine tasks. Data analytics and algorithms are already employed in the United States to predict litigation outcomes. Looking ahead, AI-driven data analysis—including machine learning, predictive coding and blockchain—have the potential to enable parties to anticipate, identify and predict outcomes and automate processes during different stages of a dispute, and contribute to early settlement while saving time and costs.
Such novel technologies are, of course, not without risks, and should be the subject of further detailed discussion. Such risks include the lack of transparency, ethical concerns, algorithmic bias, machine error with respect to such processes, and, most importantly, the potential impingement on procedural fairness and due process depending on the manner in which online dispute resolution is conducted and whether each party is able to present or defend its case effectively or secures undue procedural advantages over the other. Broader concerns include regulatory safeguards for confidentiality, data protection and cybersecurity, along with restructuring of the legal profession. A solution may be to permit the use of such technologies for routine lower-value non-complex claims, such as debt recovery. For more complex higher-value claims, the parties may be allowed to opt-in to such mechanisms by default subject to judicial supervision. It also calls for better understanding of the limitations of AI and the extent to which certain processes may be fully digitizable depending on how fit for purpose the technology is, particularly with respect to matters which call for value judgment, for example. To encourage innovation in experimental technologies and identify the regulatory safeguards required, selected courts may be allocated as sandboxes to test such technologies for wider adoption, similar to what the Dubai International Financial Centre courts introduced recently.
V. Concluding Thoughts
As noted by the World Bank, judicial efficiency and quality, and access to courts affect firms’ productivity, minimize transaction costs and improve economic development. COVID-19 has shown that the potential of disruptive technologies is not the enemy but the handmaiden of the rule of law, provided that the risks of such technologies are identified and managed accordingly. At a basic level, it is necessary to identify what the underlying requirements of the rule of law and administration of justice are in light of changing circumstances, the extent to which such technologies may serve as an enabler to meet such requirements, and the regulatory oversight required to manage the concomitant risks and costs. After all, justice should not only be done, but should manifestly and undoubtedly be seen to be done. To support cross-border commercial dispute resolution in the new normal as we emerge from the pandemic, one may hope for the prospect of further investment towards new interoperability technologies to facilitate digital connectivity between courts across borders, which may form the basis of a future global platform for the online resolution of disputes.
[1] Richard Fentiman, International Commercial Litigation 14 (2d ed. 2015).
[2] Author’s note: As of the time of writing, the sunset period ends in October 2020 but may be further extended.
Editor’s note: The Ministry of Law of Singapore has extended the relief period. See here for a summary of the relief periods for various kinds of contracts.
[3] SPC, “Guiding Opinion I on Lawfully and Properly Adjudicating Certain Issues Regarding Civil Cases Involving the COVID-19 Pandemic” [2020] No. 12, issued and effective as of Apr. 16, 2020; SPC, “Guiding Opinion II on Lawfully and Properly Adjudicating Certain Issues Regarding Civil Cases Involving the COVID-19 Pandemic” [2020] No. 17, issued and effective as of May 15, 2020.
[4] Id. See Qiao Liu, COVID-19 in Civil or Commercial Disputes: First Responses from Chinese Courts, 8(2) Chinese J. Comp. L. 485, 488–93 (2020).
[5] See generally Richard Susskind, Online Courts and the Future of Justice (2019).
[6] See generally Frank E.A. Sander, Varieties of Dispute Processing: Address Before the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 111 (1976).
Executive Editor: Yixian Sun
Jan 9, 2021 | Forum, Online Scholarship
Editorial note: This exchange is part of the ILJ Forum series “International Cooperation and Global Governance in the Era of COVID-19 and Beyond.”
Ms. Kate Gilmore is a Fellow with Harvard Kennedy School Carr Center for Human Rights Policy. Her leadership and advocacy for the advance and application of human rights standards and norms extends over more than three decades. Ms. Gilmore has served the United Nations at a senior level, first as Deputy Executive Director for Programmes with the United Nations Population Fund (UNFPA) and, from 2015 to 2019, as the UN Deputy High Commissioner for Human Rights. Previously she was National Director of Amnesty International Australia and then Executive Deputy Secretary General of Amnesty International.
Professor Kathryn Sikkink is the Ryan Family Professor of Human Rights Policy at the Harvard Kennedy School. Professor Sikkink works on international norms and institutions, transnational advocacy networks, the impact of human rights law and policies, and transitional justice. Her most recent publications include The Hidden Face of Rights: Toward a Politics of Responsibilities; Evidence for Hope: Making Human Rights Work in the 21st Century; and The Justice Cascade: How Human Rights Prosecutions are Changing World Politics.
In your eyes, are there any important human rights mandates or projects that have been ignored or lost priority due to the COVID-19 pandemic? If so, can you provide one example and share your concerns? In your view, what are the necessary steps to put these projects back on the agenda?
Kate Gilmore:
The COVID-19 pandemic infects a world already afflicted by many contagions. Historic levels of failed progression and intentional regression plague the application of global norms and standards in general, and of human rights norms and standards specifically.
The COVID-19 pandemic also comes in the midst of rising catastrophes. Environmentally? We are in an ever-deepening and yet largely unchecked climate crisis. Economically? In the aftermath of this century’s first financial crisis, inequality has been allowed to broaden and deepen to critical levels for millions. Demographically? Wealthier populations are aging at unprecedented levels, bringing with them not the wisdom of experience it seems, but even louder expressions of fear, anxiety, and, from many, of old-fashioned bigotry. The world’s poorest, meanwhile, have never been younger: it is the largest generation of young adults in human history that today populates global poverty.
Technologically? Breathtaking, accelerated meta-change is driven by micro algorithmic innovations whose bytes and pixels call into question even the very idea of the “human.” Socially? The echoes heard around the world of the Black Lives Matter and #metoo movements; the outpouring of public protest against government treachery from Belarus to Iraq to Chile to Hong Kong. It is the brave human rights activists who, often at risk to their own safety, beg us to recognize that for millions, their lives have reached critical levels of discontentment.
So, whatever neglect, lost priority or under-performance may be said to characterize important UN human rights mandates or projects over the course of 2020, that was well in the making long before the pandemic took hold. Don’t give the coronavirus all the credit.
The Venn diagram of rejectionism of a science-based, public health policy response to the pandemic and rejectionism of human rights-based responses to global crises makes for an almost perfect overlay. President Trump walked the United States away from the World Health Organization (“WHO”) in the midst of a pandemic; but he earlier abandoned the Paris Climate Agreement in the midst of climate crisis and deliberately imperiled sexual and reproductive health and rights globally, just as the world’s largest generation ever of adolescents most needed that. And, of course, he ended U.S. membership of the UN Human Rights Council in the midst a rising nativist populism that is driving the toughest contest over global values that our generation has seen.
From a northern lookout at least, Trump often appears as the highest profiled, but the current U.S. President is far from alone among world “leaders.” He has no monopoly on efforts to trump scholarship, evidence, human rights norms, and international law the better to accrue unaccountable political power. Just take a look at Xi Jinping’s policies on Hong Kong; his cruelty to his country’s Uyghur and Tibetan communities. Consider Putin’s intervention in Ukraine; his enabling of the Syria conflict and his cruel targeting of political opposition figures. See how the faltering wheels of Johnson’s Brexit have been so casually oiled by cruel slicks of xenophobia and nativism. And France? Not much comfort from the government of Macron for the “gilets jaunes.”
Should we move our gaze then, beyond the quality of the human rights “leadership” of the Permanent Five (“P5”) members of the UN Security Council to look elsewhere instead? Perhaps to Bolsonaro’s Brazil? Orbán’s Hungary? Buhari’s Nigeria? Modi’s India? Yes, for sure, Ardern’s New Zealand is truly inspiring, but, come on now, it is no counterbalance.
My point is that there is nothing in the mandate, form, function, or membership of the international human rights mechanisms that is designed to shield them from the contagions of today’s global eco-system. To the contrary, one can argue that what is today most desired of the UN human rights system by a majority of powerful UN member states and many with the UN itself, amounts to poor and inconsequential human rights performance.
After all, it truly is a system run on the cheap. Provided the smallest proportion of the UN’s paltry income, the UN human rights system is absolutely dependent on expert volunteers and overly dependent on the generosity of a shrinking number of largely Northern states. Its influence and courage are impeded internally by senior UN people who should know better, and its external voice is stifled.
Perhaps we should be amazed that any authoritative human rights contribution at all emerges from the UN human rights bodies and mandates, given this milieu. But thankfully, the international human rights system, more often, outright fails to fail outright. And in pandemic times, despite lock downs, it has continued to turn up for human rights defence.
That said, what the 2020 pandemic has revealed, in a harsh light, is just how unwilling and ill-equipped the world’s systems of power, including those housed and hosted by the UN, are to confront and address the ongoing injuries of historical inequalities. COVID-19 poses again interrogations long awaiting conclusive answer. What will we do about the palpably unsustainable environmental and social costs of our greed and selfishness? When will we comprehensively end our tolerance of intimate and public hatefulness and violence? When will we definitively say enough already with the imposts of prejudice and bigotry? How can we end the power-hunger games of leaders willfully playing politics with global norms, universal values, and incontrovertible evidence?
To help us rise to those challenges, human rights will never be enough. Yet, as law, norms, standards, and guiderails to underpin factual, fair, just, and humane public policy and response to any number of contagions, human rights are simply essential. And as universal values for our common humanity? Exactly, what would be the acceptable alternative to the core proposition of the Universal Declaration of Human Rights (“UDHR”), on which the UN Charter also stands, that bears we all are free and equal in dignity and rights?
Kathryn Sikkink:
First let me agree with Kate on the magnitude of the multiple crises facing us, and the observation that many of these were underway well before the pandemic began. I also agree that human rights will not be enough, not in the Sam Moyn way as if human rights were somehow part of the problem, but rather to suggest that this crisis requires activation of a broad range of global governance and foreign policy actions beyond human rights. But our expertise is on rights, so I want to focus on the contours of a human rights and responsibilities approach to the pandemic.
In my recent book published before the pandemic: The Hidden Face of Rights: Toward a Politics of Responsibility, I argued that to more fully implement human rights, we need to place more emphasis on the responsibility of all actors, and not just states, to take action together to make sure rights are enjoyed. This argument has turned out to be particularly relevant to the COVID-19 pandemic. Even if all governments were taking efficient action, but many other actors, including corporations, international organizations, and individuals did not also do their share, the crisis could not be addressed. Pharmaceutical corporations, for example, have responsibilities to make sure the vaccine is produced, priced, and distributed in such a way that it can reach the greatest number of people. But, as we are seeing in the United States, unless individual people believe that they have a responsibility to protect their own health and the health of others by actually agreeing to be vaccinated, the pandemic will continue. And not only that, but the science deniers are using arguments about rights to justify their decisions not to wear masks, not to social distance, and not to vaccinate. In other words, today the language of rights has become so powerful that it is being used to deny any responsibility to protect the rights of others.
Building on the work of Iris Marion Young, in The Hidden Face of Rights, I argue that all actors socially connected to structural injustice and able to act, need to take action to address the injustice. One problem with the word responsibility is that people often use it in the common legal meaning focused on who is to blame or liable. This is what Iris Young has called backward-looking responsibility or the liability model. But instead of talking about legal responsibility, I am focusing instead on ethical and political responsibility that is forward-looking. This kind of responsibility asks not “who is to blame,” but “what should we do?” Forward-looking responsibility is necessary to address the COVID-19 pandemic and to think about what we should do in the world after the pandemic.
This framework is useful in the context of the COVID-19 crisis because it involves both a range of rights and responsibilities of many actors. Our right to health, but also rights to liberty, freedom of movement, to education, to information, to food and shelter are all at stake. States have found themselves trying to exercise their responsibilities to protect the right to health at the same time as they balance it against these other human rights. This balancing of rights is foreseen in the UDHR, which speaks of limiting rights to “respect the rights and freedoms of others.” The UDHR goes further, however, and recognizes that each of us has “duties to the community,” and its preamble calls on all of us to promote rights. The drafters were keen to highlight that realizing the full potential of the UDHR was a collective effort. To protect our collective right to health, we may need to recognize that we have a right to freedom of movement, but also a responsibility not to travel in certain circumstances; a right to education, but a responsibility to accept that it may be suspended temporarily or delivered online.
Some states are doing a far better job at exercising responsibility than others. The U.S. case is especially worrisome, where the national and global dangers of a narcissistic nationalist leader hostile to science and facts could not be more apparent. I was fortunate to spend the first half of this year in Uruguay, where I was able to live under a very different set of policies, where state policy was led with science and built upon decades of efforts to provide health care and education to all. Uruguayans voluntarily complied with government policy and cases and deaths stayed at a low point for the region, compared to very high levels in Uruguay’s close neighbors, Brazil and Argentina.
A forward-looking rights and responsibilities approach suggests we need more well-coordinated national and international responses. More and better global governance is necessary for solving the COVID-19 crisis and the economic recession that has grown out of it. The election of the Biden/Harris administration promises a more responsible and cosmopolitan approach from the United States. The fact that Moderna, the company that has currently developed one of the two most advanced COVID-19 vaccines, has said that it won’t enforce the vaccine patents during the pandemic is another promising sign, as are the WHO COVID-19 technology access pool, and some of the multi-stakeholder initiatives around vaccines, such as Gavi, the Vaccine Alliance. Some diverse actors are stepping forward to take responsibility to implement the right to health.
Kate Gilmore:
The COVID-19 pandemic, being both universal and exceptional in the pace of its impact, is a truly global crisis. But one wonders how might its gravity and urgency have been assessed—were it “merely” rampaging through the Global South and not also through the Global North? Were it not also reaching (albeit with less grave implications) the wealthy and the powerful, but instead only those who, having the fewest resources, can least well withstand its burdens? Those who are without the health insurance to manage the catastrophic costs of sudden illness? Those without the personal financial reserves to manage the catastrophic loss of income? Those without a home to retreat to during lockdown, or whose housing makes the idea of social distancing laughable, or for whom, because of intimate violence, the home is no haven?
It is bad. It is a life-threatening pandemic. Yet the COVID-19 pandemic brings many more into touch, albeit all so lightly, with that which for years, in far, far graver forms, has been the daily experience of the peoples of conflict-ridden Yemen and Syria, of Iraq and Afghanistan: daily fear for the wellbeing of loved ones; daily impediments to freedom of movement; daily deprivations of free exercise of the rights to work, to income, to education, to health. Such is the daily plight too of the Dalit, the Uyghur, and the Rohingya. And, of multiple indigenous peoples, the world over. A gravity too for those adolescent girls who, being pregnant after sexual assault, are not merely abandoned but actively punished by the state—deprived of their right to education, to information, and to choice.
My point is that not only has COVID-19 flourished amidst known (i.e. entirely foreseeable) inequalities and long-unsolved crises, but the massive public push for a vaccine-based “solution” to it, as life-saving as we hope that will prove to be, shows also how narrow the narrative is about the “answer” and why we might be wise to be skeptical of claims that a COVID-19 recovery will see a world “built back better.”
It also reveals nonetheless that extraordinary public-private cooperation can be commandeered, when the powerful wish it to be and invest so that it can be. This also begs the question: why are some problems of global scale and deep human injury deemed worthy of intensive even global cooperation—all-hands-on-deck—solutions while others are not?
In other words, as Kathryn so rightly underscores, the shaping of the world’s COVID-19 response and recovery efforts is a time to be expansive in our human rights expectations, such that both private and public actors are challenged to meet human rights demands more holistically and, as she has argued, such that the many other dimension of human rights claims are engaged for the sake of our future, rather than rely solely on (retrospective) legal accountability as the only or primary way in which human rights are relevant.
With regards to corporate actors, to some extent, the UN human rights system has paved the way already. The UN Working Group on Business and Human Rights, a special procedures mandate, has helped foster the annual UN Forum on Business and Human Rights into the world’s largest gathering on business and human rights, bringing hundreds of companies into oft-times robust conversations with hundreds of human rights experts each year.
Open-ended working groups reporting to the UN Human Rights Council on such as an international regulatory framework for private military and security companies and on transnational corporations and other business enterprises with respect to human rights show there is some appetite among member states for strengthening the application of normative frameworks to business. The UN Global Compact, enjoying its 20th anniversary, calls on businesses to voluntarily align their strategies and operations with human rights. Today it has sign-up from nearly 12,000 companies the world over. The UN Guiding Principles on Business and Human Rights further elaborate the measures that business enterprises, as specialized organs of society, should take and these have been detailed specifically for companies’ commitment to LGBTI equality .
The UN Treaty Bodies, Special Rapporteurs and independent experts on human rights—through their various thematic and country mandates—have also identified a range of ways, topics and settings in which corporate actors have—and should be judged as having—human rights responsibilities. Their recommendations are forward-looking and future-oriented.
From the evolving duties of digital giants (i.e., Committee on the Rights of the Child; Special Rapporteur on Freedom of Expression) to companies’ responsibilities in respect of toxic waste; from the condemnation of commercial actors wrongly rendering housing merely a financial commodity to the call for strong regulation of military arsenal production given leap frog advances in armed drones; from questions of trade and investment to the general comment by the UN Committee on Economic, Social and Cultural Rights on the role of the state parties in regulating business, the UN human rights system has been working to break ground on the roles and responsibilities of business. Even the big pharma has been addressed. As early as 2008, the Special Rapporteur on the Right to Health set out Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines. And, this year alone at the time of writing (November 2020), those many mandates have issued 117 press releases, 13 tools, and 18 reports on COVID-19 alone.
However, for all that effort, attention, and activity, for all that socializing of human rights among the corporate actors as values, principles, and good practices, still we have not been led far enough, quickly enough. As the CEO and Executive Director of the Global Compact, Sanda Ojiambo, explained to the 9th Annual UN Forum on Business and Human Rights, held just this month— November 2020—“relying solely on voluntary measures simply will not get us where we need to be.”
We need urgently more effective legislation, more relevant jurisprudence, and more authoritative efforts by legal experts if we are to bring human rights into fuller application to corporate actors, including to those involved in the production, testing, and dissemination of vaccines.
Kathryn Sikkink:
If we really were having a chat in person, Kate, I would have so many questions for you about your experience at the Office of the High Commissioner in these momentous times. I read your first intervention as a survey of the human rights problems that have been brought urgently to your attention, that predate the pandemic, but are nevertheless exacerbated by it. The editors asked us to provide one example in particular of human rights mandates or projects that have lost priority, but it seems as if it is almost impossible to choose one among so many issues.
Your second intervention begins to take on another question: do we think that the Covid-19 situation could also be an opportunity to push forward reforms or projects that are critical but did not attract enough attention before? You suggest that the pandemic could bring many more people in the Global North in touch with the daily experiences of people in conflict ridden and repressive societies around the world, which in turn could contribute to positive change. This suggestion is supported by a literature on ideas and norms in world politics that argues that change is often more likely in the wake of crisis and failure. The UN itself and its human rights system were born out of the tragedy of WWII and the Holocaust. But crisis alone is not sufficient of course, and we also need leadership and new ideas, qualities currently in short supply from most states.
You also argue that the pandemic reveals that “extraordinary public-private cooperation can be commandeered, when the powerful wish it to be and invest so that it can be.” But you suggest that only issues of concern to the Global North are deemed worthy of intensive global cooperation. The rapid development of vaccines gives this impression at the moment, but I do not think the history of the pandemic to date reveals that powerful actors cooperate only when their interests are at stake. In my Global Governance course this semester, in fact, we used the COVID-19 as an example of failures in governance. In an early class, we asked why global cooperation and governance had been so much more effective in the case of malaria, a leading killer in low income countries, than it had to that point for COVID-19. Approximately 400,000 people in the world die annually from malaria, compared to the 1.7 million who have now died from COVID-19. A very concerted global campaign against malaria involving extraordinary public-private cooperation helped avert 7.6 million malaria related deaths since 2000. Indeed, some of the rapid vaccine development for COVID-19 builds on earlier ongoing vaccine research for other diseases, including SARS and MERS. The Oxford team that has developed one of the key COVID-19 vaccines was in a position to move ahead quickly because they geared up after the Ebola crisis “to tackle the next big one.”
The final paragraphs of your second intervention list a whole series of recent initiatives that are a testament, in fact, to the ongoing dynamism and resilience of human rights movements and human rights institutions, despite all the problems you so correctly identify in your first intervention—lack of adequate funding, lack of leadership and political will from most states, and direct attacks from other states.
In my 2017 book, Evidence for Hope: Making Human Rights Work in the 21st Century, I argued that there was an “epidemic” of pessimism about human rights. This was written well before the COVID-19 pandemic. But I refer to this book to remind us that human rights work, since its inception, has always been about struggle. There is no golden age in the past where human rights work was easy and well accepted. The period between the end of the Cold War and the start of the so-called war on terror has been identified as a high point for consensus on human rights norms, and yet during this period mass atrocities were perpetrated in the Balkans and in Rwanda. But even that momentary period of consensus was the exception, not the rule. Yet, over the longer term, these often weak, underfunded and sometimes vilified human rights movements and institutions have contributed to human rights progress, including a decline in genocide, a shrinking number of people killed in war, decreasing use of the death penalty, and improvements in poverty, infant mortality, and life expectancy, as well as advances in gender equality, the rights of sexual minorities, and the rights of people with disabilities. Even as I write this, I know that many readers will not believe it. I encourage you to read the data and analysis I provide in Evidence for Hope.
I do not argue that people should have hope right now in this moment of the pandemic. COVID-19 has been the deadliest infectious disease since the Spanish Flu pandemic of 1918. It is killing people all over the world, with increasingly severe impact on vulnerable people and people in the developing world, especially in Latin America. But why is it that well before the pandemic so many people believed that human rights violations in the world were getting worse rather than better? The short answer is that we think the world is worse off because we care more and know more about human rights than ever before. The media and human rights organizations have drawn our attention to an increasingly wide range of rights violations around the world. Their success in doing so sometimes inadvertently causes people to think that no human rights progress is occurring.
In Evidence for Hope, I use this history and data to tell not a triumphalist history, but what Albert Hirschman would call a “possibilist” one, focusing not on what was probable, but on what, with commitment and struggle, was eventually possible. It is exactly because of the work of people like you, Kate, and the many many other human rights advocates around the world that such change has been possible, and could continue to be possible in a post-pandemic future. Thank you.
