Written Evidence by Dr. Chloë Gilgan, Lecturer in Law, University of Lincoln (XIN0055)

 

 

Short bio

Dr. Chloë M. Gilgan is a lecturer in law at the University of Lincoln Law School. Dr Gilgan’s research and expertise lies in public international law, particularly in the areas of international human rights, international refugee law, international humanitarian law and international criminal law. She has published her research in academic journals and policy forums and has presented her research at over 20 national and international conferences.

Executive Summary

This paper answers one question posed by the Committee: How effective is the FCDO’s current approach to atrocity prevention, and how can it be restructured to maximise the UK’s impact in this area?

How effective is the FCDO’s current approach to atrocity prevention?

  1. The UK is at a unique inflection point in the development of its international policy and its foreign and development policy architecture. The Integrated Review of foreign policy and the merger of FCO and DfID herald a new direction for UK global engagement.[4] The UK could do more on atrocity prevention to demonstrate ‘the value of the United Kingdom in international forums’[5]. This is the moment for the UK to integrate commitments to confront the most egregious human rights violations as called for by the Foreign Affairs Select Committee report on the UK’s Responsibility to Protect and by the think tank Policy Exchange.[6] Lessons learned from the past can mean Britain becomes a leader in building international consensus through good practice and distances itself from a history of colonialism and what is often perceived as covert imperialism through humanitarian intervention. At the same time, Britain has a special responsibility as a Permanent Member of the UN Security Council to maintain international peace and security, so it must be positioned to respond effectively.
  2. The current approach to mass atrocity prevention and response is ad hoc, late and ineffective.[7] The UK must develop and apply a mass atrocity prevention lens rather than let prevention be subsumed within general conflict prevention.[8] Identity-based violence can lead to mass atrocities, but a state does not have to be in conflict for this to happen, which means such cases will miss early detection and response.[9] This was evident in past and even ongoing crises, from Rwanda to Bosnia to Syria and now Xinjiang.[10] This has been argued by civil society, experts and has been on the UK’s agenda but has yet to be fully realised in policy and practice terms.[11]
  3. Applying the lessons learned from the past must be central to the UK’s foreign policy. Once the UK adopts a national strategy of atrocity prevention, the UK must focus on building consensus in order to make it effective and impactful. For the UK to be an ‘active influential voice’[12], it must deepen its leadership on mass atrocity policy and R2P as indicated in the report, Global Britain: The Responsibility to Protect and Humanitarian Intervention.[13]

How can the UK’s approach to mass atrocity prevention be restructured to have a maximum impact?

  1. An important way for the UK’s national strategy of atrocity prevention to have a maximum impact is by building meaningful international consensus leading to multilateral coalitions that can respond to potential and ongoing cases of mass atrocities. Critically, prevention and response are interlinked and should not be thought of as linear processes. How the UK responds to any developing case, or how it has responded to past cases, will influence the impact the UK can have in atrocity prevention for subsequent cases.
  2. Maximum impact in preventing mass atrocities pivots on having built trust and credibility within the international community. The legacy of the Libya intervention illuminated the problem with military interventions, causing deadlock on Syria and a resistance to using R2P in practice.[14] Where UN Security Council Permanent Members have a national interest in a particular case, it is not surprising that they will refuse to limit the use of their veto in spite of egregious human rights abuses. This will not always be a role ascribed to Russia or China as there are potential cases where the US, UK or France might have a special interest in a state and find it difficult to make policies perceived to alienate a relationship with the culprit state. For the UK, this may be demonstrated as ‘UK foreign policy that favours commercial interests over liberal and humanitarian values’ such as in Yemen where the UK continues to sell weapons to Saudi Arabia that are then used against civilians.[15] It is important to acknowledge such conflicts of interest and reflect upon how actions prevent consensus on important international problems. If international trust is strong and the UK has a record of credible responses to cases of mass atrocities, then it will be easier to build bilateral and multilateral coalitions that can pressure the behaviour of states without alienating them diplomatically.

Lessons from Syria

  1. The case of Syria provides a lesson on how the UK’s narrow understanding of its responsibility to protect Syrians from mass atrocities has exacerbated the deadlock on Syria. The case provides a simple but important way of building trust and credibility for an effective mass atrocity policy in concert with the international community. Reflecting and learning these lessons from the past will make responding to cases like Xinjiang, and any others, more effective. The analysis and recommendations in this submission are based on six years of in-depth research and interviews with former and current UK officials, MPs and ministers, civil society and humanitarian organisations involved in preventing and responding to mass atrocities in Syria 2011-2020.
  2. My recent empirical investigation into how R2P is understood within the UK government, resulted in some important findings that leave a legacy of missed opportunities for consensus building in Syria and potentially in subsequent cases including Xinjiang. The Syrian case provides a template of problems for all future cases of mass atrocities. Syria has been a difficult R2P case as there is clear evidence of mass atrocities against the Syrian population and the state is manifestly failing to protect its population, since it perpetrates most of the mass atrocities in the state.[16] The failure of the international community to effectively respond to the human tragedy in Syria partly due to the polarising effects of the Libya intervention in 2011[17], backlash against R2P[18] and competing political interests have helped to draw attention to the debate over UN Security Council members restraining their veto in cases of mass atrocities.  Calls for restraint of the veto derive from the premise that it is Russia and China preventing an effective response to mass atrocities in Syria.[19] Restraining the veto is one approach, but it is not widely embraced by all the permanent members and there are inherent dangers in limiting the veto including ‘great power conflict’[20], and so it is not a viable option.[21] Moreover, there are potential cases where the US, UK or France might have a special interest in a state and find it difficult to make policies perceived to alienate a relationship with the culprit state.
  3. Instead, the UK needs to reflect upon how it has implemented R2P to gain deeper insight into why there has been so much difficulty in reaching consensus on UN resolutions on Syria.[22] Jason Ralph and Jess Gifkins published research on how the political interests of the P3 obstructed consensus on humanitarian aid access in Syria among the permanent members.[23]  Russia and China had a political interest in preventing political transition and regime change which was paired with humanitarian access in the early UN resolutions.  Later resolutions that decoupled aid and politics resulted in consensus.[24]  In this scenario, it was the P3 that had prevented the necessary consensus for humanitarian aid to cross into Syria-a sure way of helping to protect the Syrian population under R2P
  4. One of the problems is that there is a predominant understanding in the UK that the core meaning of R2P is for executing military humanitarian intervention, which limits R2P’s application to cases of consensus like Libya in 2011.[25] The UK only explicitly linked R2P to its calls for military intervention to protect civilians in Syria and not to its humanitarian or other peaceful responses (humanitarian aid and resettlement). Thus, in Syria, the UK modified R2P’s relevance to cases of mass atrocities that have UN Security Council agreement. This was demonstrated by statements that relied on the humanitarian intervention doctrine and dismissed R2P’s relevance in Syria because of the UN Security Council’s non-consensus around the UK’s objectives in Syria.[26] This demonstrates a rhetorical commitment to R2P and a practical one when R2P normatively fits with the UK’s foreign policy objectives, which aligned in Libya due to some multilateral consensus for a military intervention. R2P has been adapted to fit within the context of stronger domestic norms and practices—here the UK’s foreign policy objectives around counter-terrorism, democracy-building for mass atrocity prevention and regime change, political transition and humanitarian assistance for prevention and response to humanitarian suffering. However, R2P with its core objective of helping to protect populations from mass atrocities becomes subordinate to these domestic norms and practices when they prevent other achievable humanitarian goals that may better enjoy international consensus. Humanitarian or peaceful means that help to protect Syrians fleeing mass atrocities, the core remit of R2P, are sacrificed in the short term to the larger political objectives of regime change and political transition, an interpretation of R2P that is feared by less powerful states and makes R2P unpopular with many humanitarian organisations.[27] As Ralph argues, regime change and political transition may be the means for discharging R2P in terms of helping protect populations from mass atrocities in some cases, but when they are the objectives in a manifestly failing state (such as Syria), they are not helping to protect as required by R2P if they are impossible.[28]  (And this is not an option in China). According to Ralph and Gifkins, this is demonstrated in the Syrian case as holding firmly to these political objectives led to paralysis on the UN Security Council and an ineffective response to the problem at issue.  In effect, the actions the UK has taken to help protect the Syrian population, such as diplomacy, humanitarian aid and resettlement, have been undermined by the political objectives and have limited any effective response to Syria due to lack of international consensus, which sows distrust for subsequent cases. [29]
  5. As a result, R2P has little normative impact on the UK’s responses to mass atrocity cases. Six years of research revealed that R2P’s limited influence on UK mass atrocity policy in Syria was intentional, but for different reasons across the government. The UK’s fixed foreign policy objectives that ‘Assad must go’ and political transition must take place in order to end the conflict in Syria either through military intervention outside the UN Security Council (Parliament) or through targeted diplomacy (FCO) was the only perceived solution to Syria by interviewees. Members of Parliament explicitly used R2P as a motivation for increasing the political will for a military intervention in Syria.[30] Interviewees rebranded R2P as a ‘responsibility to protect civilians’ as a way to distance policies from R2P’s controversial military aspect[31] even while relying upon it for such an outcome. FCO officials were resistant to R2P on two different levels.  First, R2P was resisted because of how it is largely understood as a military intervention norm and interviewees preferred diplomacy.[32] Because R2P is understood to require a military intervention as in Libya, officials are careful to avoid using R2P explicitly for fear they would be pressured into supporting such an intervention. Second, the FCO has resisted R2P more generally as the norm is seen as a constraint on foreign policy discretion to decide UK policy on individual cases of mass atrocity.[33] The government departments overseeing the Syrian resettlement programme and the generous financial aid to the region did not explicitly connect their peaceful responses to Syria to R2P. 
  6. The in-depth research demonstrated a genuine commitment to preventing and responding to mass atrocities by UK officials. There is also a strong commitment to the principles underlying R2P. However, the UK envisions implementation of R2P in a narrow way as a fixed response within the hierarchy of stronger domestic norms around intervention, democracy-building and conflict prevention.[34] R2P has limited salience in the UK because while there is some national discourse, state institutions and policies lag behind.[35] Since R2P is the framework for preventing and responding to mass atrocities, the framework must be institutionalised more deeply than through public declarations if the UK is serious about being an ‘active supporter’ of R2P as stated in the UK National Approach to Preventing Mass Atrocities.[36] Atrocity prevention and R2P as the framework for its prevention and response should be its own umbrella policy separate from conflict prevention policy. Thus, when discussing atrocity prevention and response, R2P should be the starting point, a prominent and fully embedded framework from which policy flows – a general statement of support at the end of a policy paper is not enough. The UK policy is missing an opportunity to use this malleable framework for a more effective mass atrocity prevention and response policy.
  7. Equally important, the UK must understand that embracing R2P more fully does not constrain policy choices or imply a commitment to military intervention or any other specific response in every humanitarian case. Part of the UK’s potential for impact in the area of mass atrocity prevention and response is in having a better understanding of what R2P requires, which will help build international trust and consensus. R2P requires states to use appropriate diplomatic, humanitarian and peaceful means for helping to protect Syrians fleeing mass atrocities, but it does not require any specific action. The language of R2P, as endorsed by states, permits a subjective (due to ambiguity) and minimal (helping to protect, not protecting) response to those facing mass atrocities.[37] The UK is implementing R2P in Syria as endorsed in 2005 through its various cross-government responses, including diplomacy at the international level and humanitarian assistance in the region and resettlement from the region. The problem is that the narrow implementation of R2P as regime change and political transition on the discursive record has prevented consensus.[38] This reality and its legacy will decrease the UK’s ability to foster consensus and multilateral coalitions for responding to any subsequent case of mass atrocities including in Xinjiang.

How Can the UK Build Trust and Credibility?

  1. The UK should link all its responses, particularly its peaceful responses, to R2P in every mass atrocity case. Doing so requires a minimal policy shift, shows the UK can practice the norm without defaulting to military intervention and regime change (which mollifies less powerful states’ concerns) and helps build further consensus around the norm (which continues to be a rhetorical objective of the UK, particularly at the UN Security Council level).  Operationalising R2P non-coercively may reduce disagreement at the UN Security Council over time as Russia and China may be less likely to veto humanitarian resolutions that connect to R2P if there is practical evidence that R2P does not by default, result in military intervention or regime change.[39] In the UK, officials would be less hesitant to refer to R2P, which would pave the way for the UK to become a leader in implementing the norm and an example of good practice deepening the UK’s moral authority to call out egregious violations of human rights.
  2. The UK needs to ‘implement commitments on atrocity prevention through bilateral and multilateral diplomacy efforts’ which will only be strong and effective if the UK has an equally strong and effective record of responding to cases of mass atrocities.[40] Incorporating the minimal policy shift set out above on the ongoing case of Syria would help begin to mend the broken trust after Libya for finding meaningful consensus on subsequent cases of mass atrocities. The UK cannot confront China (and other states implicated in mass atrocities) alone and therefore must invest in diplomatic relationships. Importantly, the UK must work with partners from all regions especially in the Global South because there is a risk of reinforcing problems around credibility and trust if the UK allows coalition-building to be dominated by powerful Western states.

Recommendations

 

October 2020

9


 

 


[1] Kate Ferguson, ‘What Can the UK do to Help Protect the Uyghurs? Adopt a National Strategy of Atrocity Prevention’, ECR2P blog, 12 August 2020, https://ecr2p.leeds.ac.uk/what-can-the-uk-do-to-help-protect-the-uyghurs-adopt-a-national-strategy-of-atrocity-prevention/ (all internet sources last accessed 23/10/2020).

[2] FCO, FCDO, ‘ UK Approach to Preventing Mass Atrocities’, Policy Paper, 16 July 2019, https://www.gov.uk/government/publications/uk-approach-to-preventing-mass-atrocities/uk-approach-to-preventing-mass-atrocities.

[3] House of Commons, Foreign Affairs Committee, ‘Violence in Rakhine State the UK’s Response’, first report of session 2017-19, 6 December 2017, https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/435/435.pdf.

[4] Prime Minister’s Office, ‘PM Outlines New Review to Define Britain’s Place in the World’, press release, 26 February 2020, https://www.gov.uk/government/news/pm-outlines-new-review-to-define-britains-place-in-the-world.

[5] Jess Gifkins, Samuel Jarvis and Jason Ralph, Global Britain in the United Nations, UNA-UK, 2019,  https://www.una.org.uk/sites/default/files/UNA-UK_GlobalBritain_20190207d.pdf.

[6] House of Commons, Foreign Affairs Committee, Global Britain: The Responsibility to Protect and Humanitarian Intervention, 12th report of session 2017-19, HC 1005, 5 September 2018, https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/1005/1005.pdf; Policy Exchange, Making Global Britain Work: 8 Ideas for Revitalising UK Foreign Policy for the Post-Brexit Age, 2019, https://policyexchange.org.uk/wp-content/uploads/2019/07/Britain-in-the-World.pdf.

[7] House of Commons Foreign Affairs Committee, Violence in Rakhine State and the UK’s response.

[8] ‘UNA-UK Welcomes UK’s Guidance Note on Atrocity Prevention’, UNA-UK, 16 July 2019, https://www.una.org.uk/news/una-uk-welcomes-uk%E2%80%99s-guidance-note-atrocity-prevention.

[9] Kate Ferguson, ‘Putting Atrocity Prevention at the Heart of British Foreign Policy’, The Foreign Policy Centre, 8 September 2020, https://fpc.org.uk/putting-atrocity-prevention-at-the-heart-of-british-foreign-policy/.

[10] Kate Ferguson, What Can the UK do to Help Protect the Uyghurs? Adopt a National Strategy of Atrocity Prevention.

[11] FCO, FCDO, ‘ UK Approach to Preventing Mass Atrocities’, Policy Paper, 16 July 2019; UK Atrocity Prevention Working Group, Integrating Atrocity Prevention across UK Policy: The Need for a National Strategy, submission to the Integrated Review of International Policy, August 2020, https://img1.wsimg.com/blobby/go/131c96cc-7e6f-4c06-ae37-6550dbd85dde/downloads/Submission%20to%20Integrated%20Review%20of%20Internation.pdf?ver=1597663424455.

[12] Quoting Sir Simon Fraser, former Permanent Undersecretary at the FCO in Gifkins, Jarvis and Ralph, Global Britain in the United Nations.

[13] Gifkins, Jarvis and Ralph, Global Britain in the United Nations.

[14] Chloë M. Gilgan, ‘Human Rights Localisation in Liberal States: The UK’s Responsibility to Protect as Regime Change and Political Transition in Syria’, International Journal of Human Rights (accepted for publication 2021), DOI: 10.1080/13642987.2020.1845159.

[15] Jess Gifkins, Sam Jarvis, and Jason Ralph, 'Brexit and the UN Security Council: Declining British Influence? ', International Affairs, 95(6), pp. 1349-1368, 1365 (2019); Human Rights Watch, Legal challenge to UK arms sales to Saudi (New York, 5 Nov. 2018), https://www.hrw. org/news/2018/11/05/legal-challenge-uk-arms-sales-saudis; Authors’ interviews; House of Lords Select Committee on International Relations, Yemen: giving peace a chance (London, 2019), https://publications.parliament.uk/pa/ld201719/ldselect/ldintrel/290/29003.htm.

[16] UNGA, Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, A/HRC/S-17/2/Add.1, 23 November 2011, http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/IndependentInternationalCommission.aspx.

[17] Maggie Powers, ‘Responsibility to Protect: Dead, Dying, or Thriving?, International Journal of Human Rights 19/8: 1257-1278 (2015).

[18] Stuart Gottlieb, ‘Syria and the Demise of the Responsibility to Protect’, The National Interest, 5 November 2013, http://nationalinterest.org/commentary/syria-the-demise-the-responsibility-protect-9360.  See, Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’, Melborne Journal of International Law 13/1: 59-93 (2012); see also, E. Tendayi Achiume, ‘Syria, Cost-sharing, and the Responsibility to Protect Refugees’, Minnesota Law Review 100/2: 687–762, 749 (2015).

[19] Global Centre for the Responsibility to Protect, ‘UN Security Council Code of Conduct,’ http://www.globalr2p.org/our_work/un_security_council_code_of_conduct.

[20] Jason Ralph, Jess Gifkins, and Samuel Jarvis, ‘The United Kingdom’s Special Responsibilities at the United Nations: Diplomatic Practice in Normative Context,’ British Journal of Politics and International Relations, (November 2019), DOI: 10.1177/1369148119887317.

[21] Jason Ralph, Mainstreaming the Responsibility to Protect in UK Strategy, United Nations Association-UK Briefing Report No. 2, April 2014: 26, https://www.una.org.uk/sites/default/files/UNA-UK%20Policy%20briefing%202%20-%20Professor%20Jason%20Ralph%20-%20Mainstreaming%20R2P%20in%20UK%20strategy.pdf.

[22] DFID, Matthew Rycroft CBE, Permanent Secretary, Department for International Development and UK Permanent Representative at the UN 2014-2018, How to Prevent Mass Atrocities, Chatham House, London, 20 February 2018, public transcript available with researcher’s questions asked and answered on record, https://chathamhouse.soutron.net/Portal/Default/en-GB/RecordView/Index/172381.

[23] Jason Ralph and Jess Gifkins, ‘The Purpose of United Nations Security Council Practice: Contesting Competence Claims in the Normative Context Created by the Responsibility to Protect’, European Journal of International Relations 23/3: 630-653 (2017); Jason Ralph, Jack Holland, and Kalina Zhekova, ‘Before the Vote: UK Foreign Policy Discourse on Syria 2011–13’, Review of International Studies 43/5: 875-97 (2017); Jess Gifkins, ‘Beyond the Veto: Roles in UN Security Council Decision-making, Global Governance (accepted).

[24] Ralph and Gifkins,‘The Purpose of United Nations Security Council Practice’.

[25] Ibid; see also, All-Party Parliamentary Group, Friends of Syria, Report by the Secretariat, ‘Syria: Humanitarian Intervention outside the Security Council’, 5 December 2016, http://www.appgfriendsofsyria.org/p/rports.html.

[26] Gilgan, ‘Human Rights Localisation in Liberal States’.

[27] Ibid.

[28] Jason Ralph, ‘What Should Be Done?  Pragmatic Constructivist Ethics and the Responsibility to Protect’, International Organization 72/1: 173-203 (2018).

[29] This does not absolve Russia and China from responsibility as the P2 have also allowed their own political interests to prevent an effective response to the mass atrocities in Syria.

[30] Gilgan, ‘Human Rights Localisation in Liberal States’.

[31] Based on field research.

[32] Gilgan, ‘Human Rights Localisation in Liberal States’.

[33] Ibid.

[34] Ibid.

[35] Andrew P. Cortell and James W. Davis, Jr, ‘Understanding the Domestic Impact of International Norms: A Research Agenda International Studies Review 2/1: 65-87, 70-71 (2000).

[36] FCO, FCDO, ‘ UK Approach to Preventing Mass Atrocities’, Policy Paper, 16 July 2019.

[37] Chloë M. Gilgan, ‘Has the UK Fulfilled its Commitment to the Responsibility to Protect?: What the Norm Requires in Practice versus Aspiration’, Written Evidence (RTP0011), Responsibility to Protect and Humanitarian Intervention Inquiry, Foreign Affairs Select Committee, 3 July 2018, http://www.parliament.uk/business/committees/committees-a-z/commons-select/foreign-affairs-committee/inquiries1/parliament-2017/inquiry8/publications/.

[38] Ralph and Gifkins, ‘The Purpose of United Nations Security Council Practice: Contesting Competence Claims in the Normative Context Created by the Responsibility to Protect’; Ralph, ‘What Should Be Done?  Pragmatic Constructivist Ethics and the Responsibility to Protect’.

[39] Sources explained that the P2 and the BRICS hear ‘intervention’ when R2P is mentioned even in the context of mass atrocity prevention at the UN Security Council. This would also strengthen the claim that it is Russia and China that veto humanitarian resolutions that conflict with their political interests, and not the P3.

[40] Uyghur Human Rights Project, ‘Open Letter of Concern to Governments on Crimes Against Humanity and Genocide Against Uyghurs in China’, 15 September 2020, https://docs.uhrp.org/pdf/UyghurGenocideJointOpenLetter_2020-09-14.pdf.