Has the ICC been effective in its approach to sexual and gender based crime?

Sex has been weaponized as a tool of war for as long as wars have been waged. Armies have used rape and sexual violence to subjugate and humiliate the populations of their enemies for centuries. This horrendous expression of the depths of human depravity was traditionally considered the inevitable costs of conflict, with the winning army expected to reap the “spoils of war” (Minkova, 2022) which it was generally understood they earned through conquest. While the global community has presumably advanced beyond the idea that rape is an acceptable consequence of conflict, the practice persists to this day in many cases, along with numerous other practices that the majority of the world would purport to condemn. This collective global condemnation of certain human rights abuses, whether in the context of war, or during periods of peace is the basis for International Law. This concept that a global community made up of a collective of disparate and diverse nation states can come together to voice their opinions and reach agreement on standards and rules of conduct is often disparaged as utopian and ineffective. And while these cynical skeptics certainly have many examples of failures to point to in order to advance their narrative that International Law is useless or idealistic, taking the long view of advancements in history, it is hard to argue that there has not been momentous progressive growth. Looking at the full breadth of what makes up International Law today, the traditions of war and oppression are a far cry from the historical expectations of how state actors conduct themselves and depicts a tenuously hopeful picture of incremental, yet sustained progress. But Sexual and Gender-Based Crimes (SGBC) have not advanced on the same trajectory as other crimes. This “silence” (Santos, 2022) surrounding something that is so ubiquitously abhorred is the result of a confluence of factors, but the consequence of this seeming invisibility of an admittedly uncomfortable, complex subject have caused a considerable dearth in accountability for unspeakable crimes. This paper explores the reasons for, and consequences of the international legal community’s failure to adequately address SGBC, as well as the successes of the advocates who have brought the world closer to international awareness and progress on issues surrounding SGBC. Critically, the concept of gender will serve as a theme, pointing to the ways that the notion of a strict gender-binary and traditional views regarding gender roles are at the heart of why we have seen such a lack of advancement in this area. The paper aims to break down where we are today and how further progress can be made to bring international law into the twenty first century.

One might be surprised to learn that SGBC had been so absent from international law discussions until the 1990s. Kelly Askin explains this lack of scholarship thusly, “Women and girls have habitually been sexually violated during wartime, yet even in the twenty-first century, the documents regulating armed conflict either minimally incorporate, inappropriately characterize, or wholly fail to mention these crimes. Until the 1990s, men did the drafting and enforcing of humanitarian law provisions; thus, it was primarily men who neglected to enumerate, condemn, and prosecute these crimes.”  (Grey, 2019) Askin points to the homogenous nature of the international legal community, which at the highest professional levels, until the 90s, consisted almost entirely of men. We will look more closely at the efforts to create a greater gender parity in international legal bodies later, but one might still find it odd that SGBC was so neglected until so recently. Considering the fact that “The Lieber Code, drafted to regulate the Union army during the American Civil War, identified rape as a capital offense,” (Irfan, 2018) as far back as 1863, (Grey, 2019) it is odd that this would somehow not even have come up at such a critical moment just a year later. “…sexual violence is not mentioned in the 1864 Geneva Conventions, which aims to ameliorate the suffering of wounded combatants on the battlefield.” (Grey, 2019) Even several years after that at the 1907 Hague Convention in the few instances rape was mentioned, “…it was implicitly so, categorized as an offense against ‘family honor and rights’ or ‘humiliating or degrading treatment’” (Irfan, 2018) not as a brutal violent crime committed against the victim. Up through the Fourth Geneva Convention and the 1977 Protocols to the Geneva Conventions, “the offense was against male dignity and honour, or national or ethnic honour. In this scenario, women were the object of a shaming attack, the property or objects of others, needing protection perhaps, but not the subjects of rights.” (Irfan, 2018) It is this framing that Irfan depicts, that is the basis of the lack of willingness to engage on the issue of SGBC. The international legal community was blinded by a tacit acceptance of the subordination of women that has persisted. “The patriarchal lens through which war and conflict has originally been framed privileged male interests at the expense of women’s, relegating them to the private or domestic realm and thus not worthy of international attention or international prosecution.” (Dowds, 2019) This is only the first instance that points to the need to leave traditional binary gender roles behind as a relic of an unenlightened past. It is this ingrained conceptualization that will repeatedly emerge as the driving force behind the neglect of and even avarice toward addressing these issues. 

While the end of World War II brought with it unprecedented progress in the form of the ad hoc Tribunals in Nuremberg and Tokyo, the persistent aversion to engage on SGBC within the international legal community was also incredibly apparent. Despite the well-documented and widespread sexual violence perpetrated across all theatres of war, no charges were brought regarding SGBC and these instances of barbarity (sometimes condoned by leadership) were barely mentioned. As an example, “…the comfort women system, which began in 1932 and was expanded significantly in the Second World War, was authorized at the highest levels and minutely regulated…This ‘comfort’/slave system only came to public attention in the nineties, when aging and courageous survivors began to tell their stories, revealing the details and lifelong devastating effects of their enslavement as well as of their exclusion from the halls of justice.” (Irfan, 2018) This may be in part due to what has been referred to as the “Victors Justice” nature of the Tribunals that was alleged by their detractors, as soldiers on both sides of the conflict engaged in sexual violence to some extent. But while it is possible that the Allies may have had some reason to avoid the subject due to their own alleged culpability, it is more likely that the subject never even came up. Considering that it had rarely been broached in past international legal discussions, it would come as no surprise that the officials deliberating over the parameters of the ad hoc Tribunals operated in the same fashion as their predecessors.

It is not until the 1993 International Criminal Tribunal for the Former Yugoslavia (ICTY) and the 1994 International Criminal Tribunal for Rwanda (ICTR) that SGBC are approached. While there were considerable issues concerning the outcome of these cases in regard to SGBC , these Tribunals were at least willing to have the discussion at all. These Tribunals are also considered to be the progenitors of the International Criminal Court and are thus critical in that regard to the continued progress toward an international legal system that addresses these crimes. But each of these Tribunals were noteworthy in their own right as having taken steps to advance the discussion around SGBC. They ICTY provided the precedent for classifying rape as torture, (Diken, 2005) “…and adopted rules of evidence specifically to prevent harassment and discrimination against victims of sexual violence who witnessed at trial.” (D’Aoust, 2017), while the ICTR provided the precedent for rape as a method for committing genocide, “…in the sense that the intent was to destroy a specific ethnic group” (D’Aoust, 2017). Particularly through the Akayesu case by the ICTR, “the first international conviction for genocide, the first judgement to recognize rape and sexual violence as constitutive acts of genocide, and the first to advance a broad definition of rape as a physical invasion of a sexual nature, freeing it from mechanical descriptions and required penetration of the vagina by the penis.” (Irfan, 2018) The final advancement regarding “freeing [rape] from mechanical descriptions” and ridged definitions has crucial connotations and should be used as a template for updating much of the questionable language used in international legal documents. The language used to describe rape before Akayesu creates multiple problems for advancing law around SGBC. First, it meant that rape could only be charged under incredibly specific circumstances as being exclusively in the context of penile insertion into a vagina. Along with being a violent physical experience, rape is a horrible psychological experience, so the specific body parts involved are entirely irrelevant to the trauma that is experienced by the victim. By decoupling the definition of rape from this specific language, rape can be charged under a wider array of circumstances. Secondly, under the previous definition, rape could inherently only be committed against someone with a vagina, essentially stating that an act only constitutes rape if it was committed against a woman.  This is clearly a severely limiting criteria and creates a crime that only some can be the victim of, basically codifying discrimination based on gender. This would seem entirely anathema to the concept of equal treatment. Third, “freeing it from mechanical descriptions” opens the door further to the idea of gender as being understood as a social construct. “…we can learn a lot from using sex as a variable, but only if it is coupled with an understanding of gender as a social process that is more complex than binary and essentialist understandings of sex differences allow’.” (Hodson, 2022) Again, we see an example of how understanding gender as a social construct rather than a strict binary allows for a much more nuanced and comprehensive approach to a variety of subjects.

The ICTY and ICTR were pivotal to the establishment of the ICC and to the adoption of the Rome Statute in 1998. “Referring to the ICC’s establishment, former Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), Richard Goldstone, declared that ‘gender crimes are now given the recognition they were denied for so many years … It is my hope that the history of impunity for gender crimes under international criminal law will resolutely be replaced in the future by accountability and deterrence and prevention.” (Altunjan, 2021) While we have certainly seen some significant examples of the ICCs commitment to progress regarding SGBC, Goldstone’s optimism was arguably naïve. Looking back, we continue to see advancements in certain areas, but there remain considerable obstacles and frequent setbacks. Goldstone’s most glaringly inaccurate prediction is his hope for accountability. It would be difficult to determine the extent to which deterrence and prevention have occurred, but with regard to accountability, this is one area where it is clear that the ICC has not proven to be successful. A striking example of the Court’s failure in delivering accountability is exemplified in the Bemba case. Initially, this case looked like it would be a major accomplishment for progressing gender justice at the ICC. But the presumed win was to be short-lived. “In March 2016, the International Criminal Court (ICC) rendered a guilty verdict against Jean-Pierre Bemba, ex-President of the Democratic Republic of Congo, for his involvement in operations in the Central African Republic from 2002 to 2004. He was found guilty in his capacity as military commander of crimes against humanity and war crimes. The decision is the first by the ICC to address sexual violence as a weapon of war and in the context of command responsibility.” (D’Aoust, 2017) The phrase “in the context of command responsibility” will become the crucial issue the year after D’Aoust’s article (cited above), was released. In the article D'Aoust states: “The Court found that the material and mental elements of rape were met; the contextual elements for war crimes and crimes against humanity were met; and the elements for command responsibility were met… The importance of the Bemba case resides in its norm-setting potential: domestic and international courts can draw from it to address gendered violence.” (D’Aoust, 2017) The initial decision rested on the “command responsibility” doctrine which “…allows commanders to be convicted of crimes committed by their subordinates when they fail to take all necessary and reasonable measures to prevent, repress or punish their subordinates’ crimes.” (O’Sullivan, 2022) This doctrine is controversial legally as it can be seen to be in contention with the “culpability principle”. “A key question is whether the doctrine undermines the culpability principle and, if it does, whether that weakening of the principle is justified. The culpability principle is a core principle of many criminal law systems which requires that a person must have the requisite mens rea and actus reus to be convicted of a crime. When command responsibility is classed as a mode of liability, it places a strain on the culpability principle.” (O’Sullivan, 2022) The idea behind the choice to proceed with the command responsibility doctrine makes a lot of sense when understanding the facts of the case, considering that Bemba was not physically present for the crimes that his subordinates committed, but with his status as leader, he would reasonably be considered to be responsible for failing to prevent his subordinates from carrying out the atrocities they committed. But the ICC has multiple considerations to make regarding maintaining the courts legitimacy. ICC judges do not want to be viewed as overly punitive or predisposed to not pass fair judgement on defendants. The ICC has routinely been accused of targeting African leaders to a significantly greater extent than any other region. The accusation is clearly not entirely absurd, considering the numerous examples of African leaders that the Court has prosecuted, contrasted with the considerably fewer examples from anywhere else. For this and other reasons, the Court is vigilant in its desire to remain a neutral arbiter of justice and to avoid the appearance of impropriety or bias. Problematically, since SGBC charges are so abhorrent, applying the command responsibility doctrine to a SGBC case both places the doctrine in conflict with the culpability principle while using it to imply culpability. “While gender justice does not negate the culpability principle, the difficulties of investigating such crimes often require a broad interpretation of the notion of ‘culpable conduct.’ From this perspective, concerns for ‘over-inculpat[ing]’ the defendant should be balanced with the interests of SGBC victims.” (Minkova, 2022) The appellate decision to overturn Bemba’s rape conviction based on command responsibility doctrine was a devastating blow to gender justice advocates and now establishes more precedent for impunity in SGBC cases against leaders. 

But even before it was overturned, D'Aoust’s 2017 article bemoans the fact that, “the case remains a product of problematic international norms based on ‘masculine assumptions that do not take into account global systematic gender inequality’. International law is based on an approach where the norm of the system is male, with special provisions made for women…a good opportunity has been missed by judges in the Bemba decision to elaborate on the phrase ‘sexual violence’ used in the Rome Statute. Sexual violence is intimately linked to gender inequality.” (D’Aoust, 2017) The author goes on to argue that the very definition of rape was once again under scrutiny as being overly “mechanical”. “Bemba brings back the mechanical descriptions that constitute the threshold for rape. The Court states that the material elements of rape (actus reas) require an invasion of the body consisting of penetration of anywhere with a sexual organ, or anal or genital penetration with an object or other body part.” (D’Aoust, 2017) This is arguably a marked improvement over the definition that Akayesu disposed of in order to obtain the rape conviction in that case, but we are again confronted with frustratingly “mechanical” language. By defining rape in such specific language, the Court is again limiting what it has the capacity to prosecute and relegates the traumatic and uniquely psychologically scarring experiences of the victims as secondary to the ridged definition the Court has deemed viable to constitute rape. It would seem dispassionate to the degree it becomes cruel to allow legal scholars to delineate the experiences of traumatized victims. As D’Aoust and others have suggested, the term rape may simply be outdated in its apparent requirement for such specific qualifications. If language like simply, “sexual violence” were used instead – with the standards of accountability for, and consequences of the charge remaining the same – some of these issues could be avoided and more victims would have recourse to bring cases against their perpetrators. These specifics go beyond merely semantic arguments when viewed through the eyes of the victim; the language chosen bears considerable impact on the strength of cases and the ability for victims to seek justice. 

In regard to the command responsibility doctrine, O’Sullivan argues that the conflict with the culpability principle could be somewhat ameliorated by “reclassifying command responsibility as a separate offense [which] would uphold the culpability principle, clarify the doctrine’s foundational elements, and provide it with an adequate scope. It would also satisfy the key rationales advanced to justify weakening the culpability principle and bring the dual role of international criminal courts into greater harmony.” (O’Sullivan, 2022) The change proposed would likely have allowed the Court to remain confident in their initial verdict. While it may seem like simply a procedural change, the legal mechanisms can clearly have critical repercussions for victims, as well as for the Courts track record on achieving accountability. Despite the disappointing nature of the appeal overturning Bembas conviction from a gender justice standpoint, it is important to remember that “…because of its criminal justice function, the ICC must show ‘full respect’ for the rights of the accused. This emphasis on the rights of the accused is essential to the ICC’s fairness and its legitimacy, but it means that the interests of the victims will not always prevail.” (Grey, 2019) This is certainly how the Bemba case ended up, but the ICC endeavored to retain its legitimacy by sacrificing its record on accountability. The Court is only as effective as a legitimate body with a record of fairness, so it must carefully balance its adjudications with an eye toward maintaining the perception of legitimacy. 

The Bemba case was less relevant to the concept of moving beyond the ridged gender binary and traditional gender norms, but by pointing to the struggles the Court has with deciding the appropriate language to use and considering that we have seen language change when deemed necessary, it suggests that such a change is possible. When the ICC Statute was being drafted, feminist advocates for gender justice began to understand that gender issues would be sidelined, these advocates formed the Women’s Caucus for Gender Justice in the International Criminal Court. The Women’s Caucus became one of the primary organizations that successfully fought to get language changed and procedure altered to better suit the standards of gender justice advocates. “The Women’s Caucus successfully recommended an expansion of the list of sexual and gender-based crimes. It also succeeded in detaching sexual crimes from ‘outrages upon personal dignity’, thus abandoning the problematic notion that sexual crimes violate the victim’s ‘honor’.” (Altunjan, 2021) This once again points to the archaic and male-centric perspective from which international law has consistently proven to base its decisions. The idea that sexual crimes are primarily a crime against ‘honor’ completely ignores the experience of the victim and instead emphasizes the “shame” aspect of having a sexual crime committed against them. It plays directly into the ideas around sexual violence that prevent victims from coming forward and promotes the impunity of perpetrators. By suggesting that one’s ‘honor’ is threatened by sexual violence it relegates the victims of sexual violence into essentially being merely an object that can be tarnished. SGBC are violent, physically and psychologically traumatic crimes against a person, and to suggest that ‘honor’ plays any role in the experience of the victim is blatantly implying that to be raped results in a loss of honor. Diken explores the concept of victims of sexual violence becoming what he terms “abject”: “The physical damage caused by rape can be considerable. However, the trauma of rape may, for some, be even worse than bodily harm… The rape victim often perceives herself as an abject, as a ‘dirty’, morally inferior person. The penetration inflicts on her body and her self a mark, a stigma which cannot be effaced. But abjection has a communal aspect as well: the victim is excluded by neighbors and by family members. Hence the rape victim suffers twice: first by being raped and second by being condemned by a patriarchal community.” (Diken, 2005) By suggesting that ‘honor’ is at stake in the case of sexual violence, the Court was writing into law what Diken states as the second suffering of a victim of rape. With this language the Court itself has committed half the crime. To write into the language of a document, the expressed purpose of which is to achieve justice in the most egregious cases, wording that instead places the blame on the victim of a crime would seem anathema to its purpose. It is due to the institutionalized and deep-seated biases inherited by the international legal community that such grievous oversights are allowed to persist. Louise Chappell has referred to these institutionalized, deep-seated inherited biases as “gender legacies” (Grey, 2019). Minkova similarly suggests: “The ‘nestedness’ of new institutions, such as the ICC, into pre-existing practices profoundly impacts the possibilities of delivering gender justice. Largely the creation of Western powerful men, international law has for long silenced women’s voices. This has enabled the incorporation of discriminatory gender norms into the interpretation of seemingly impartial laws, which seek to protect men and women equally, but fail to recognize the peculiar experiences of different groups during conflicts.” (Minkova, 2022) The suggestion of “seemingly impartial laws” hearkens back to the appeal in the Bemba case putting the emphasis on maintaining the perception of legitimacy in contrast to achieving accountability and seeking justice for the victim. While the Courts legitimacy is admittedly tenuous, the argument for being overly invested in legitimacy at the cost of achieving justice for victims may have the reverse effect. This consent could lead to rendering the Court illegitimate by the standards of those who are denied justice in the Courts effort to be perceived as protecting defendants rights. 

This leads to another way the Women’s Caucus has pushed the Court in a progressive direction, but where further advancement is needed. “…the need for gender-sensitive protective measures for women victims and witnesses and reliable support to minimize the risks and potential retraumatization of testifying.” (Irfan, 2018) Over the course of the Court’s history, and for that matter, all legal history, the questioning of witnesses in court and the general treatment they receive from legal institutions is a very delicate matter. Especially in cases concerning trauma, the systems by which witnesses are handled need to be very carefully mediated. This is delicate not only in regard to protecting the victim from retraumatization, but as far as maintaining the courts legitimacy and maintaining ethical legal standards. The Court must maintain its standards for achieving justice and balancing the rights of the accused with the rights and well-being of the victim. The most common situation where this becomes an issue is during the defense counsel’s questioning of the victim and the choices of defense presented. This has several times become an issue before the ICC. “In Furundzija, the defense questioned the credibility of the raped woman on the ground that she suffered post-traumatic stress disorder (PTSD)” (Irfan, 2018) Fortunately, “…the chamber rejected the defense contention that PTSD renders a victim unreliable.” (Irfan, 2018) But the fact that this was levied as a defense would be laughable were it not so ghoulish. This defense is essentially suggesting that due to the crime being committed, and the victim being traumatized by the crime, the victim is not credible to accuse the defendant of the crime. The preposterously circular victim-blaming logic required to mount such a defense is evidence that procedures around protecting victims from retraumatization are absolutely necessary and there must be experts in trauma and the experiences of victims monitoring these cases in order to prevent such cruel tactics from being attempted. Another example occurred in the Celebici case where, “the defense was inadvertently allowed to circumvent Rule 96 (prohibiting the introduction of prior sexual conduct evidence) in questioning the witness about a prior abortion. The chamber reaffirmed the rule upon a motion to expunge the testimony from the record.” (Irfan, 2018) But despite the expunging of the testimony from the record, the harm to the victim had already been done and cannot be remedied, aside from the harm to the victim’s case in court. Such oversights in the proceedings of a court are certainly possible and could very well have been merely a fluke, but such a dramatic mistake as allowing a rule to be broken and a victim impugned as a result is a serious issue. Obviously, not all mistakes can be prevented, but a mistake such as this must be prepared for and again, speaks to the idea that experts on these issues must be involved at all levels and stages of the process in order to ensure the safety of the vulnerable victims and witnesses. “Perhaps someday the integration of and respect for gender expertise will become routine, dispensing with the need for continued monitoring by feminist attorneys and activists. That day is still far off.” (Irfan, 2018) 

As Irfan states, we are a long way from the Court functioning with gender justice in mind, but some truly progressive steps are being taken on many issues, via many avenues. Returning to the discussion around the concept of establishing gender as a social construction and moving beyond the gender binary and traditional views on gender roles, LGBTQ advocates are making progressive strides hand-in-hand with feminist activists. “Recently, many global institutions have come to acknowledge gender diversity, and specifically gender identity – an individual’s deeply personal experience of gender that may or may not correspond with their sex assigned at birth – as integral to individual dignity and common humanity.” (O’Connor, 2022) This has become an increasingly contentious topic, with religious and conservative activists hell-bent on preventing any advancements on the subject of sexual orientation and gender identity (SOGI). But the movement to obtain internationally recognized rights for the LGBTQ began in earnest in the mid 1990s following the HIV/Aids epidemic which had rocked the whole world, but particularly the LGBTQ community. In the 1994 conference in Cairo and the 1995 World Conference on Women in Beijing, sexual and reproductive health and rights (SRHR) was the agenda being advanced under the moniker of the “Women’s Platform”. This platform aimed to advance rights such as “the importance of the enjoyment by women of the highest standard of physical and mental health throughout their life span,” and “the basic right of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children.” (O’Connor, 2022) It was not until the Beijing conference that intersectionality – the analytical framework developed by Kimberly Crenshaw in 1989 – began to appear between the Women’s Caucus and LGBTQ advocates. The conference in Beijing affirmed “the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.” (O’Connor, 2022) This was one of the first times sexuality was discussed at an international legal conference in a way that accepted the idea of rights for sexuality in any meaningful way. While it does not explicitly broach the subject of sexual orientation, the language leaves the door open for interpretations surrounding SOGI concepts. And that door needs to continue to be widened, if not ripped off its hinges entirely, going forward. “As the SOGI movement’s influence continued to grow, the term ‘sexual rights’ – which had failed to secure recognition at the UN during the Cairo and Beijing conferences – was further legitimized within the human rights community following its 2004 use by the UN Special Rapporteur on the right to health.” (O’Connor, 2022) The LGBTQ community faces incredible opposition across the world from its detractors which are primarily religious and conservative groups. Regularly, these arguments within international bodies invoke coming together of the unusual bedfellows including Islamic nation states that follow Sharia law, with the Holy See. This remarkable partnership between conservative religious nations of all persuasions comes together whenever sexuality or gender norms are questioned in international bodies. It is also this conglomeration around rejection of an expansion of rights that brings together the women’s movement advocates with the LGBTQ movement advocates. The conservative religious conglomerate’s refusal to recognize any advancement on women’s reproductive rights or the overturning of traditional gender roles forces the Women’s Caucus into alliance with the LGBTQ movement whether they liked it or not. This conservative religious rejection of progress in the court creates alliances against this regressive, status quo caucus. The coalition of women and LGBTQ advocates creates a formidable alliance considering the overwhelming numbers that it engenders. The only problem, despite the essentially majority status this creates in terms of global population, is that this coalition historically lacks power, which is partly why the conservative status quo coalition is so aggressive about stamping out any progress on diversifying the halls of power and justice. 

Further advancements of SOGI came with the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. “Adopted by a group of experts in 2006, these principles affirm international human rights standards. The Yogyakarta definitions incorporate both western and indigenous identities, and accurately distinguish between gender and sex. Their legal relevance to the ICC is through Article 21(3) of the Rome Statute, which requires that the application and interpretation of the law be consistent with internationally recognized human rights and without adverse distinction on grounds such as gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” (Leddy, 2022) The Yogyakarta Principles are the most inclusive and intersectional international legal document to date and could stand as the basis for increasing developments going forward. The definitions these principles provide regarding sexual orientation and gender identity serve as a new way to have frank and informed discussion on these topics, instead of the previous international legal standard of either pathologizing or entirely neglecting to truly address these subjects. The Preamble to the Principles defines sexual orientation as, “… each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” They define gender identity as, “… each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.” (Leddy, 2022) While these definitions are clearly a stark departure from the non-definitions or circular definitions presented in the established literature used in international law generally, they present a far more accepting and intersectionally progressive framework on which to advance the international legal system beyond its entrenched conservative, patriarchal roots. And while the international community has often shown itself to be historically slow to accept change on issues that have been deemed taboo by the patriarchial status quo, progress persists. Just as one example, “In 2012, one ICC Trial Chamber found that Article 21(3) prohibited adverse distinction on the basis of sexual orientation, thereby confirming that international human rights law supports sexual orientation and gender identity as protected grounds to be considered when interpreting and applying the Rome Statute and the Elements of Crimes.” (Leddy, 2022) Someone familiar with the definition of gender in the Rome Statute might suggest that the adopted definition would not be open to the concept of gender as a social construct considering its wording: “For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.” (UN, 2001) Upon initially reading this definition as it is constructed, it is difficult to see any wiggle-room that would allow for expansion of discussions on gender as a social construct and certainly the rejection of the gender binary. But notice the phrase “… within the context of society.” Leddy pushes that door wide open with his contention that: “Article 7(3) of the Rome Statute includes the understanding that gender is a social construct… ‘…within the context of society’ demonstrates that gender is a social construct under the Rome Statute – otherwise the phrase would have no meaning.” (Leddy, 2022) The 2014 OTP Policy Paper on Sexual and Gender-Based Crimes supports this contention when it states: “’gender’, in accordance with article 7(3) of the Rome Statute… refers to males and females, within the context of society. This definition acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” And yet further still, the International Committee of the Red Cross (ICRC) “recognizes that ‘gender’ refers to the culturally expected behaviour of people based on roles, attitude and values ascribed to them on the basis of their sex, whereas ‘sex’ refers to biological and physical characteristics.” (Leddy, 2022)

These three definitions, viewed together, serve as a giant leap forward in the international legal community’s conception of gender and sex. When recognized in conjunction, the Rome Statute, the ICRC, and the OTP’s definitions regarding gender and sex, successfully distinguish sex from gender but without separating their relationship to one another. With the Yogyakarta Principles, the international community is beginning to see cracks in the institutionalized, entrenched, conservative and patriarchal status quo that has prevented so much progress from occurring in the past. These advancements allow the Court to begin to “advance the rights of women and girls around the world, noting the importance of synergistic movements to eradicate gender-based discrimination for all human beings, regardless of their gender identity, expression, or sex characteristics.” (O’Connor, 2022) While we remain a ways off from an ICC that aggressively advocates for the rights of all without deference to the gender binary or traditional gender roles, while still acknowledging that they exist and have an impact on people who live under their yoke, there is hope that this could one day be realized. 

Sources

• Altunjan. (2021). The International Criminal Court and Sexual Violence: Between Aspirations and Reality. German Law Journal, 22(5), 878–893. https://doi.org/10.1017/glj.2021.45

•   Antic, & Radacic, I. (2020). The evolving understanding of gender in international law and “gender ideology” pushback 25 years since the Beijing conference on women. Women’s Studies International Forum, 83, 102421–. https://doi.org/10.1016/j.wsif.2020.102421

• Bensouda. (2014). Gender Justice and the ICC: PROGRESS AND REFLECTIONS. International Feminist Journal of Politics, 16(4), 538–542. https://doi.org/10.1080/14616742.2014.952125

• Chappell, Louise. (2016). 'Representing Gender Justice at the International Criminal Court', The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy, Oxford Studies in Gender and International Relations (New York, 2016; online edn, Oxford Academic, 19 Nov. 2015), https://doi-org.ez.lib.jjay.cuny.edu/10.1093/acprof:oso/9780199927890.003.0003, accessed 11 Apr. 2023.

•   Chappell. (2017). The gender injustice cascade: “transformative” reparations for victims of sexual and gender-based crimes in the Lubanga case at the International Criminal Court. The International Journal of Human Rights, 21(9), 1223–1242. https://doi.org/10.1080/13642987.2017.1360006

• CHERTOFF, E. (2017). Prosecuting Gender-Based Persecution: The Islamic State at the ICC. The Yale Law Journal, 126(4), 1050–1117. http://www.jstor.org/stable/44863340

•   D’Aoust. (2017). Sexual and Gender-based Violence in International Criminal Law: A Feminist Assessment of the Bemba Case. International Criminal Law Review, 17(1), 208–221. https://doi.org/10.1163/15718123-01701006

• Diken, & Laustsen, C. B. (2005). Becoming Abject: Rape as a Weapon of War. Body & Society, 11(1), 111–128. https://doi.org/10.1177/1357034X05049853

• Dowds. (2019). Children Born of Sexual and Gender‐Based Violence in Conflict: The International Criminal Court, Ecological Environments and Human Development. Children & Society, 33(3), 226–238. https://doi.org/10.1111/chso.12329

• Grey, R. (2019). Gender-based Crimes. In Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court: Practice, Progress and Potential (Cambridge Studies in International and Comparative Law). Cambridge: Cambridge University Press. doi:10.1017/9781108652346.002

•   Hodson. (2022). Gender and the international judge: Towards a transformative equality approach. Leiden Journal of International Law, 35(4), 913–930. https://doi.org/10.1017/S0922156522000462

•   Irfan. (2018). GENDER: INTEGRATING CRIMES AGAINST WOMEN INTO INTERNATIONAL CRIMINAL LAW. Jurnal Pembaharuan Hukum, 5(1), 104–115. https://doi.org/10.26532/jph.v5i1.2998

• Leddy. (2022). Investigative and charging considerations for international crimes targeting individuals on the basis of sexual orientation and gender identity. Journal of International ICCCriminal Justice, 20(4), 911–942. https://doi.org/10.1093/jicj/mqac039

• Minkova. (2022). (In)Compatible Visions of Justice? Personal Culpability and Gender Justice at the ICC. Politics & Gender, 18(1), 62–94. https://doi.org/10.1017/S1743923X20000215

• OTP, International Criminal Court, Office of the Prosecutor. (2014). Policy Paper on Sexual and Gender-Based Crimes. Reproductive Health Matters, 99-101.

•   O’Connor, Seunik, M., Radi, B., Matthyse, L., Gable, L., Huffstetler, H. E., & Meier, B. M. (2022). Transcending the Gender Binary under International Law: Advancing Health-Related Human Rights for Trans Populations. The Journal of Law, Medicine & Ethics, 50(3), 409–424. https://doi.org/10.1017/jme.2022.84

•   O’Sullivan. (2022). New court, same division: The Bemba case as an illustration of the continued confusion regarding the command responsibility doctrine. Leiden Journal of International Law, 35(3), 661–678. https://doi.org/10.1017/S0922156522000309

• Oosterveld. (2005). The Definition of “Gender” in the Rome Statute of the International Criminal Court: A Step Forward or Back for International Criminal Justice? Harvard Human Rights Journal., 18, 55–84. https://doi.org/info:doi/

•   Santos de Carvalho. (2022). The powers of silence: Making sense of the non-definition of gender in international criminal law. Leiden Journal of International Law, 35(4), 963–985. https://doi.org/10.1017/S0922156522000541

• UN. (2001). The United Nations Rome Statute of the International Criminal Court. International Organizations. [Web Archive] Retrieved from the Library of Congress, https://www.Ioc.gov/item/lcwaN0018822/.

• Vantrees. (2023). Inaccessible justice: The violation of Article 13 of the CRPD and the ICC’s role in filling the accountability gap. International Review of the Red Cross (2005), 105(922), 542–565. https://doi.org/10.1017/S1816383122000728

The Last Gasps of The British Empire

And no, it's not because of Oprah...

The Sun is Setting on the British Empire. They told us it never would, but the centuries of oppression and malfeasance are coming home to roost. To suggest that the fall we are witnessing is a product of their own making is an egregious understatement. Many would agree that Brexit was an historic self-own, but there are reasons beyond the obvious Brexit fiasco that contribute to this precipitous decline we are seeing play out. 

The violence that has erupted in Belfast is being simplified from over-seas as solely a result of Brexit and the trade restrictions set as a result. The increased restrictions on border checks in the Irish Sea in order to maintain a soft border between the North and the Republic of Ireland were a conciliation by the British to the EU in order to avoid the violence experienced during The Troubles. In their perennial arrogance, the British concern revolved around preventing a reignition of Nationalist/Republican anti-British sentiment. In Brexit negotiations, considering the support of the EU fell squarely behind the Republican sentiment, this was quickly discovered to be an issue where the British did not have any firm ground to stand on and thus had no choice but to concede to the conditions that ensured a soft border. Despite all the “hard-Brexit” rhetoric and the fleeting inclusion of the Democratic Unionist Party (DUP) in Teresa May’s Brexit coalition, the posturing by many British politicians that insinuated a strong support for the Loyalist/Unionist cause in Northern Ireland and a position of strength in negotiations with the EU were just that: posturing. The Pro-leave campaign never had a strong negotiating position – or a plan at all, really – that wasn’t based on their blatant fudging of numbers and stoking of xenophobic fervor. Similarly, the “Leavers” only used the DUP to form a coalition based on lies and bigotry (which works perfectly for the DUP,) but the rest of the Pro-Brexit coalition could not have cared less about paying the DUP back for it. Essentially, after more than a century of playing colonialism in their backyard at the brutal cost of their neighbor, the British have dropped their Unionist/Loyalist toys and forgot to clean them up. The DUP is on its own as it continues to naturally lose relevance demographically and now, no longer has its nanny to look after it.

This begins to explain the violence sprouting up in Loyalist communities. The final straw for these pro-British Unionists was apparently a much pettier, culture-related incident. The death of Bobby Storey, a former intelligence operative for the Irish Republican Army, is at the heart of what ignited this wanton violence. As Storey is both an infamous bogeyman figure to the Loyalist/Unionist community, and a beloved hero to the Nationalist/Republican community, his death would likely have always been a catalyst for tensions between these communities. But since his death occurred in the Summer of 2020, the focus rests on the attendance of his funeral which occurred during the government-mandated lockdown. Several Sinn Fein Republican politicians broke with lockdown restrictions in order to pay their respects to a man they see as a hero and friend. Those in attendance were initially charged with breaking lockdown restrictions. But the violence erupted after those charges were dropped by the Police Service of Northern Ireland (PSNI). Outraged that there were not repercussions for politicians they don’t like, attending the funeral of a man they revile, Loyalist paramilitaries incited the youth in their communities to act out their fury against the PSNI who had neglected to chastise the mourners.

Astoundingly, but unfortunately not surprisingly, the DUP leadership prefers to focus on their political opponents. The violence in the streets of Belfast and other cities in the North is being openly perpetrated by Loyalist youth spurred on by paramilitaries. Yet Arlene Foster, leader of the DUP and First Minister of the devolved power sharing government in the North, tweeted condemning the violence, while distancing herself from it and claiming that it “…only serve[s] to take the focus off the real law breakers in Sinn Fein.” 

Essentially, the official DUP response to violence they incited is:

‘I don’t know those kids, LOOK OVER THERE!’

Rather than this being a good reason to criticize those who are being targeted by the violence, it would seem that this is another step in the devolution of the Pro-British Unionist/Loyalist cause in the North of Ireland.

But this is not the only reason the sun is setting so dramatically now. There was a time when the British Empire spanned the globe and held sway over governments and populations the world over. Historian John Morris described the British view of its form of what it believed to be a Moral Colonialism thusly:

“…what might not be done if the moral authority of England were distributed across the earth – to tackle the evils of slavery, ignorance and paganism at source, to teach the simpler peoples the benefits of Steam, Free Trade and Revealed Religion, and to establish not a world empire in the bad Napoleonic sense, but a Moral Empire of loftier intent?” {1}

This incredibly charitable self-assessment gave the British a justification to criticize all other colonialism as immoral while congratulating themselves for being the good guys, doing the very same thing.

Today, British influence has diminished and its greatest export, Independence Days, are its most enduring legacy. And there look to be more of these on the horizon. Scottish independence and a referendum on Irish Unity are looking more and more possible as populations there grow increasingly frustrated with the consequences of retreating from the EU. It is becoming harder to justify their chosen title “United Kingdom,” as “Kingdoms” are rather taboo at this point, and the “United” descriptor becomes increasingly factually dubious. Up to this point, the power that Britain maintains has been largely financial. London’s position as a global financial hub, in addition to a very profitable handful of Overseas Territories and Crown Dependencies, the current strength of the British is mostly related to clandestine financing. This is a tenuous and unsavory position to be in.  Especially when you consider that these “secrecy jurisdictions” and tax havens are the primary contributor to the existence of the current form of the Russian government. British journalist Ben Judah writes, 

“[Russians] know that London is a center of Russian corruption, that their loot plunges into Britain’s empire of tax havens – from Gibraltar to Jersey, from the Cayman Islands to the British Virgin Islands – on which the sun never sets.”  {2}

The result of this is illicit, corrupt Russian capital being heavily tied up in British power and stability, the most immediately identifiable consequence of which being that Russian offshore wealth in London drives up real estate prices there, at the expense of Londoners.

The last remnants of an empire are either erupting in sectarian violence or heavily financially leveraged by corrupt and illicit foreign entities. On top of all this, the recent scandals revolving around the antiquated spectacle that is the continued existence of the British Monarchy – which still maintains a weirdly significant position in British government and financial stability – do not help the image of the country around the world. While I will continue to insist that the credit for toppling the British Empire does not lie with Oprah, I admit, she has made a contribution to the effort. 

This is not to suggest that England as a country is over, by any means - it has every ability to revitalize its image. But perhaps the slow dissolution of the monarchy, more calls for financial transparency in Parliament (which had begun to gain traction under David Cameron until the Brexit fiasco started,) and a repudiation of political parties responsible for violence in its backyard, would all be in its best interests. While the remnants of the British Empire remain for now, it might be time to flip on the porch lights, because it looks like the sun is setting.

Endnotes

{1}Hochschild, Adam, “King Leopold’s Ghost” pp 212

{2}Åslund, Anders, “Russia’s Crony Capitalism” pp 161

Russia and Tax Havens

‘Tax havens are the mechanism by which the world’s dirtiest secrets, and most devastating evils are allowed to freely persist, without consequence.’

    When we think of Russian leadership, there is one name that immediately comes to mind: Putin. He has recently tightened his grip over power in Russia by holding a vote (just as dubious in its legitimacy as any other vote Putin has allowed to take place,) making it constitutionally possible for him to remain in power until 2036. But while Putin is the President, the Russian Federation is commonly referred to as an oligarchy. This simply means a government run by few. More specifically, Russia is a plutocratic oligarchy which means those “few” are running the government because of their wealth. I will not be detailing how the most famously communist government in the world, the Soviet Union, became the most extreme example of a crony-capitalist plutocracy; That would be a different topic, and there are many resources to dive into that history. What I want to focus on here is the relationship between the power structure in Russia and the global plight that is tax havens. 

    In order to be a successful oligarch in this sort of plutocracy, you have to acquire and sustain immense amounts of wealth. Beyond the obvious perks of being super-duper rich, the incentive for these oligarchs to amass and maintain such vast troves of wealth, is that their wealth is what gives them power and influence in the Russian government. These few who have the most wealth, these oligarchs, are the only ones in the country with the means to fund government initiatives and projects. But they don’t even necessarily need to be spending anything to maintain that influence. It is simply their exclusive capacity to do so that allows them to hold sway over government policy. Also, being Putin’s buddy definitely doesn’t hurt.

    I know I said I won’t be doing a history of the transition from communism to oligarchy, but just to explain how the oligarchs got all this cheddar in the first place, it starts with Boris Yeltsin selling off the previously communist government-owned state commodities, like oil and other natural resources. But in the decades since then, and especially since Putin came to power in the last decade, the coffers of these oligarchs have grown at a much greater rate than before. At the same time, the wealth gap between the top echelons of Russian society and the poorest in the country has deepened considerably. So, it isn’t as if the growing wealth of the oligarchs is going towards funding government programs to benefit the citizens of Russia. It is simply growing and growing. More curious still, is that the sources of this continued growth in wealth are not easily identified. This brings us to what I am suggesting allows this system to continue as smoothly as it has: tax havens. In order to understand how tax havens are relevant to the maintenance of Russian plutocratic wealth, we need to begin by understanding what they are and what effect their practices have on the world at a more basic level.

    So, what is a tax haven? The Tax Justice Network, who are the vanguard in the fight for international financial transparency, states on their website: “There is no generally agreed definition of what a tax haven is." (Oh. Great…) "The term itself is troublesome, because these places offer facilities that go far beyond tax. Loosely speaking, a tax haven provides facilities that enable people or entities escape (and frequently undermine) the laws, rules and regulations of other jurisdictions elsewhere, using secrecy as a prime tool. Those rules include tax – but also criminal laws, disclosure rules (transparency,) financial regulation, inheritance rules, and more.” Essentially, tax havens can act as ways for Multinational Corporations or MNCs, and the super wealthy to avoid paying taxes and to hide their immense wealth. They are also sometimes referred to as “secrecy jurisdictions”. 

    When MNCs hide their wealth in these tax havens and avoid paying their fair share of taxes, it means the government of the country that they really should be paying taxes to doesn’t get that money. When the government doesn’t get the money that it would be making from the massive amounts of taxes that a giant corporation ought to be paying, that money doesn’t get to go to programs that would help the working class and middle class. This becomes an even bigger problem when we’re talking about MNCs not paying taxes to developing countries. For example, the Zambia Sugar company, a subsidiary of the Associated British Food group, was discovered to be using “aggressive tax avoidance” practices with the help of tax havens to cheat the Zambian government out of unbelievable amounts of money in tax revenue. Sixty percent of Zambian citizens live in poverty and so therefore, the Zambian Government could really use the tax revenue it should be making from Zambia Sugar. But this is just one example of so many. 

    What really compounds the problem is that, by design, these aggressive tax avoidance practices, funneled through tax havens, are incredibly difficult to identify. That is why we need to make international financial transparency a priority. There have been steps taken to begin to tackle this global issue, and there are a number of fantastic organizations and groups that address and expose this problem like The Tax Justice Network, The Organization for Economic Cooperation and Development (OECD), and their Base-Erosion and Profit Shifting Action Plan, as well as the International Consortium of Investigative Journalists. The European Union has also taken steps to create a blacklist of countries that it defines as Off-shore Financial Centers. What needs to be done going forward is to continue these efforts by the EU and expand the OECD’s country-by-country reporting to be released publicly and not only to the relevant tax authorities in order to further increase transparency globally. But before you run off to support these efforts, we’ve only touched on part of this.

    So far, I’ve only touched on one portion of what the existence of tax havens allows to persist. I started with this aspect because it is actually the simplest to understand and the easiest to dig up some documentation and evidence of. MNCs and government resource extraction and transportation create at least some paper trail, even if they’re being funneled through shell companies in tax havens. Also, technically none of what I’ve mentioned so far is actually illegal. Where things get really murky and start to be considerably less legal, is another popular function of tax havens: money laundering. 

    The Corporate Finance Institute defines money laundering as “a process that criminals use in an attempt to hide the illegal source of their income. By passing money through complex transfers and transactions, or through a series of businesses, the money is ‘cleaned’ of its illegitimate origin and made to appear as legitimate business profits.” They go on to describe the three steps that make up the process of money laundering which begins to explain what money laundering really is:

1. “Initial entry or placement is the initial movement of an amount of money earned from criminal activity into some legitimate financial network or institution.” (tax havens)

2. “Layering is the continuing transfer of the money through multiple transactions, forms, investments, or enterprises, to make it virtually impossible to trace the money back to its illegal origin.” (multiple shell companies, registered in tax havens, moving the illicit money from one to the next until the origin is obscured)

3. “Final Integration is when the money is freely used legally without the necessity to conceal it any further.” (the money is now “clean” because there’s no way to identify whether or not it was used in illegal activity.)

Money laundering only becomes necessary if the original source of the money is from something scandalous. So, as unsavory as cheating developing governments out of the money in tax revenue they deserve is, it’s actually not illegal to use “aggressive tax avoidance”. What is blatantly illegal is collecting money from human-trafficking, drug-running, arms-dealing, etc. Let’s imagine you’re a criminal. If you were making money this way, you’d need to find a way to be discrete about the fact that this is where the money was coming from, but you’d also want to have the ability to spend that money. Time to find a clever and unscrupulous accountant to set up a few shell companies in tax havens! After the accountant moves the money around a couple of times, all of a sudden, you appear to be a successful real-estate mogul. As far as any tax regulation officials can tell, you have invested in several very expensive apartments in Manhattan, own an extravagant cruise ship docked in a port off the coast of a small island, and the paper trail for your luxurious purchases tracks back to a recently opened business with one employee and a P.O. box in the British Virgin Islands. That’s where the trail ends, and you get to spend your money any way you’d like because, for all intents and purposes, it’s perfectly legitimate.

    Now that I’ve given you some tips on how to be an international criminal, you may be thinking: ‘well thanks, but what does this have to do with the Russian government? Are you suggesting that all the money in the Russian government is from drugs and sex-trafficking?’ Not necessarily, no. Though, I am suggesting that it does raise questions about where your money comes from when you use what are technically legal “aggressive tax avoidance” practices. There is little denying that offshore tax havens are used by Putin’s oligarch buddies. Particularly after the release of the “Panama Papers” in 2016, which exposed political leaders and the extremely wealthy all around the world for having used offshore tax havens to hide their wealth/launder money, we know there are many culpable Russians among the exposed. Even after the Panama Papers revealed so much illicit banking, the Russian exposures have had little to no impact. This is because, even after discovering that they had used such practices, many of the transactions had been obscured even before being taken over by Mossack Fonseca, the unscrupulous accounting firm that failed to prevent the leak. So, even though we learned some specifics in terms of who in particular has been using these financial institutions and practices, we were left with even more questions than answers in terms of what Russian oligarchs do with, or how they acquired their wealth.

    What we do know is that publicly, Putin has made calls for “deoffshoreisation,” asking Russians to remove their money from banks and financial institutions outside of Russia. While this public statement was meant to convey some sort of legitimacy, there is little evidence to suggest anything has changed since Putin coined the ungainly term in his 2011 “State-of-the-Nation” address. These comments suggesting Putin’s intent for businesses to reinvest in the Russian banking system in order to revive the Russian tax base, were also apparently immediately met with literal laughter from the Russian business community assembled at the address. For Putin’s display of anti-corruption sentiment to be taken as a joke is very telling. The Russian financial community obviously knows how the Russian economy functions better than anyone. It is not really surprising that they would see this as a joke because as far as we can tell, Putin has complete control over how the business community operates, so he clearly tells them privately how to handle the Russian economy. Plus, it has been made clear through multiple examples of diligent financial reporting, that Putin himself has all of his billions of dollars of personal wealth tucked away in various offshore institutions hidden by creative accounting. So, shocker: it’s probably best to not take Putin at his word.

    While it may not be much of a surprise to hear that Putin is not necessarily the most trustworthy or honest leader the world has ever seen, it is interesting that he would want to make a public display of being against corruption. For anyone that has paid attention to Putin’s role in the Trump presidency, we know the guy has some serious cajones and revels in being coy about his role in international criminal conspiracy. He has multiple times been credibly accused of murdering, or attempting to murder political opponents through poisoning, and his response usually falls somewhere between Steve Urkel and Shaggy. So, for Putin to want to make even a half-hearted, vaguely sarcastic commitment to corruption-reduction, tells us a little something about how even the strong-man leader of an authoritarian plutocracy wants to give the appearance of financial legitimacy. Kinda’ makes you think that maybe, this might possibly be a sensitive subject, doesn’t it? 

    As I mentioned earlier, there are organizations and international bodies that have made some progress in the fight for international financial transparency and preventing the use of aggressive tax avoidance practices. But to say we are a long way off would be an egregious understatement. As great as it would be to put an end to the network of offshore tax havens, it turns out ‘the calls have been coming from inside the house.’ Probably the biggest threat to international financial transparency is Delaware. Yes, “The First State.” While there are other states, like Nevada, that have very “business-friendly” taxation laws, Delaware sports some of the ‘friendliest’. That’s why there are so many businesses registered there (like, for example, the company Trump’s lawyer used to pay off porn star, Stormy Daniels.) It’s a good place to do business you’d rather have fewer questions asked about. There are also countries, aside from small island nations with no other economy to speak of, that have similarly “business-friendly” tax structures, like the Republic of Ireland. So, even if what we normally think of as tax havens were somehow limited in their ability to operate the way they currently do, I’d bet telling a U.S. state how it should structure taxation would be a much greater hurdle to jump. We also know that Putin and various oligarchs have diverse assets in the U.S. that serve to effectively launder their clandestine finances. One oligarch even owns a large portion of the Brooklyn Nets. 

    Tax havens are the mechanism by which the world’s dirtiest secrets, and most devastating evils are allowed to freely persist, without consequence. Whether in Delaware, or the British Virgin Islands, the greatest wealth the world has ever seen is hidden, with only a handful of individuals knowing how much just their own portion of that vast treasure amounts to. Imagine if that money weren’t just sitting on an island, or tied up in a network of Delawarean shell companies. Imagine the taxes owed to a developing government were actually paid to that government and invested in infrastructure or social services for the most at need. Imagine if criminals had to keep piles of cash under their mattresses instead of being able to wash away their crimes and spend without any fear of consequence. Imagine if Putin was expected to release a document detailing his finances, (like how Joe Biden and *most* other U.S. Presidents do,) and a legitimate tax authority were able to examine them. My guess is that the result of the last one would be the end of the Russian government as it exists today. Do I have concrete evidence to support that? Nope, no one does. That’s the problem. If we were to make more significant steps to achieve a greater degree of financial transparency for the world’s wealthiest, all of this imagining could begin to be realized. While it’s a daunting task, perhaps the recent surge in support for anti-corruption political platforms across the world, spurred on by the 2007 financial collapse, and now further compounded by the global pandemic and subsequent recession, there could be a greater incentive to address this issue. But, I have a feeling Putin wouldn’t really be into that.

Myanmar Explained

    Aung San Suu Kyi, the Rohingya, and a coup

    About a month ago I finished reading “The Hidden History of Burma: Race, Capitalism, and the Crisis of Democracy in the 21st Century” by Thant Myint-U. I had felt I needed to know more about the region and what was going on. 

Then there was a coup.

 I felt like I had just been preparing myself to understand what was happening. Much of what follows is based on my reading of Thant Myint-U’s telling of the history of Myanmar/Burma and the quotes are exclusively taken from this fascinating book. So, I’m not an area expert, or at all qualified to express any views on what should be done, or how this should be handled. But I did read a book, and you didn’t. Here are my thoughts on the matter:

    If you live in the global “West” and you don’t understand what’s going on in Myanmar, you are forgiven. Firstly because, as a “Westerner,” there’s very little reason to feel the need to understand what’s going on pretty much anywhere in the world. But particularly in this case, because western media does a dismal job of giving context to this area without viewing it through global finance eyes. Therefore, all the coverage you get on western media discusses this issue in regard to how it affects China. Considering what’s actually happening there, it’s a pretty icky lens through which to view this. If you’re interested, I’m gunna’ try to break this down as best I can, as simply as I can.

    First off, Myanmar was officially known as Burma until 1989. (We’ll come back to that, because the name itself is actually relevant to what’s happening.) It shares a border with India, China, Laos, Thailand, Bangladesh, as well as sporting a long coastline on the Indian Ocean. The north is a heavily mountainous region which has been a headache for China’s perennial attempts to establish a trade route to the South Pacific for centuries. Chinese dynasty after Chinese dynasty has tried and failed to achieve this goal. This obviously has been a source of frustration for China. But while pissing off China rarely goes well for anyone, to explain just how destabilized this region has been, Chinese aggression and manipulation has always been pretty far down on any list of Myanmar’s problems. 

    Over the last several years, the words you have probably heard most often associated with this region are “Rohingya” and “Aung San Suu Kyi”. “Rohinga” is a designation used to refer to a Muslim ethnic minority, predominantly located in a western province of Myanmar on the border with Bangladesh.  Aung San Suu Kyi (Ong saan sue chee) is the daughter of the former military leader of Burma and was awarded the Nobel Peace Prize in 1991 for her efforts to peacefully establish a democracy in the newly named Myanmar. She is a complex character who it is not simple to categorize as either good or bad. Discussing her requires nuance and an understanding of the political climate in Myanmar. 

    Recently, the news coming from Myanmar is that there has been a military coup and the leader, Aung San Suu Kyi, has been detained by the military. While this coup is not directly related to the Rohingya, in that there are many more factors that you could have examined that would have led you to predict that this coup would happen, the Rohingya issue gets to the heart of the troubles the country has been facing that led to this moment.

    At the risk of overly simplifying this, the core problem haunting Myanmar is ethno-nationalism and the consequences of colonialism. The British occupation of India and large sections of this region to the east are somewhere intwined in the roots of the conflicts that exist today. The British colonists set into place a racial hierarchy during their rule, and its insidious legacy permeates the politics of this country to this day. To explain how the British felt about the people who populated this region during their colonial rule, one British author at the time (N.C. MacNamara) described them as “the Irish of the East.”(p21) For anyone who does not know THAT history, coming from a British person, that is a massive insult. As was so commonly practiced when one showed up to colonize an area, the racial hierarchy was established to create conflict between those who cohabitated prior to white arrival. This way, certain groups would be held above other groups to establish a ruling racial class that would be loyal to the colonizer while subjugating the rest, all to the benefit of the colonizer. With a racial hierarchy set into place that dictated your place in society, this way of looking at the world and your neighbors becomes ingrained. The idea that there are distinctions based on visual criteria and that these differences carry important weight that indicates who you are and how you should be treated is not easily wiped away. The British, who were not alone in this sort of racial thinking at the time, were obsessed with categorizing people by race. This was apparently a very important thing to know. Without any introspection regarding the fact that these racial distinctions were largely their own creation, during the 1911 colonial census, the British began to worry that there was “racial instability” in the region. They were having trouble labeling people because the differences between these designated races were “neither definite, nor logical, nor permanent, nor easy to detect… they are unstable from generation to generation, the racial designation of a community sometimes changes so rapidly that its elders consider themselves as belonging to one race whilst their descendants claim to belong to another.”(p23) This passage is a great example of what is wrong with race as a concept to begin with, and if such importance is placed on the distinctions between races, you’ve dug your own confusing, racist grave. Unfortunately, it was not the grave of the British that was being dug, but rather the grave of those upon whom the British imposed this way of thinking.

    The colonial imposition of a racial hierarchy has infected the politics of Myanmar. Remember how I mentioned the name itself is relevant? Well, “Myanma” in the Burmese language, is an adjective that essentially means “Master race”. It does not hold the sort of connotations that this phrase elicits in those of us in the west but is rather meant to instill feelings of national pride and patriotism. Regardless of its intended purpose, the name chosen points to the underpinnings of the democracy established by Aung San Suu Kyi as being rooted in nativism and ethno-nationalism. This is where Aung San Suu Kyi as a player in this story becomes complex. 

    Considering the colonial history, there is good reason why having pride in the fact that there is a government run by people who have ancestral roots in the region as opposed to a foreign power imposing their will and reaping all the benefits, is warranted and even admirable. After growing up under imperial rule, one would rightfully be proud when your country is then freed from this rule and has the ability to govern and profit from its resources without outside forces intervening. While we see this sort of ethno-nationalism as abhorrent and anathema to a democracy, after experiencing a brutal history of foreign oppression, it is understandable why creating a government based in national pride and ethnic heritage would be a way to galvanize the citizens to rally behind their new government. Considering this, it is hard to criticize Aung San Suu Kyi’s original goal that won her the Nobel Peace Prize. Her father, Aung San, was the leader of the military government for a time as the British were losing interest in their racially complex colony. His goal, which she adopted as her own, was to establish a government in Burma that was not controlled by a military dictatorship or foreign power. An independent Burma. While her father was not successful in bringing about a new era before he was killed by a rival, just as he was supposed to usher in non-militarized home rule post-colonialism. The people of Burma saw him as a hero and a martyr for the cause of an independent Burma. Years later, Aung San Suu Kyi would pick up the mantle and similarly be seen as the great hope for a democracy ruled by the people. It is an admirable goal and is why she earned the Peace Prize after installing what looked at the time to be the most stable, free-market democracy in the region. But with the legacy of racial distinctions and a powerful military in control of most aspects of life, the democracy Aung San Suu Kyi was bringing to the newly named Myanmar in the early 90s was concerning. Concerning in that it was both, not necessarily intended to be what most westerners believed a democracy looked like, while also being doomed to crumble under the weight of a military that was more comfortable being in complete control. The government that was negotiated by Aung San Suu Kyi afforded the military much greater powers than what we would recognize as a democratic level of military control over government. This is not a criticism of Aung San Suu Kyi, but rather speaks to the obstacles she was expected to overcome and what sort of concessions she had to acquiesce to in her attempt to reach a result that was as close as she could come to what she and her father had always hoped for. 

    Since the 90s, Aung San Suu Kyi and her party, the “National League for Democracy” (NLD) were slowly yet persistently attempting to wrest more power from the military through democratic means. This process was going well, and progress had definitely been made. The greatest achievement coming this past year when the NLD won decisively in landslide victories across the country. Obviously, this seems to have been the breaking point for the military leaders and what has clearly precipitated these most recent developments. 

    So, we could just stop here and accept that a tenuous attempt at establishing a democracy failed, and resign it to the heap of democratic failures around the world where a military coup ended an unstable democracy. But that misses what is at the core of the problem. Just as the name “Myanmar” is fraught with controversy, the “National League for Democracy” is similarly not quite what it sounds like to us: “In Burmese, the word for “National” in the name of the ‘National League for Democracy’ is amyo-tha. It’s the same word for ‘race.’ ‘Race’ and ‘nation’ are synonymous, and for some ‘democracy’ should mean nothing more or less than the supremacy of the race-based nation.”(p209) This brings us to why the world has been losing faith in Aung San Suu Kyi’s vision for a democratic Myanmar.

    Over the past several years, reports were coming out of Myanmar that suggested that atrocities and gross human rights violations were growing so rampant as to amount to what many have referred to as genocide against the Muslim minority Rohingya population. More and more accounts of violence perpetrated by the more prominent (and socially favored) Buddhist population were trickling out of the country to the horror of the global community. The world expected their great hope for democracy in the region, Aung San Suu Kyi, would once again show herself as a champion of human rights. This was not to be. The Rohingya were continuing to be oppressed and sometimes slaughtered, and she had come out in defense of the military. Many would wonder if she was being silenced or coerced. But understanding how important ethno-nationalism is to the people of Myanmar, it begins to look like perhaps she truly did not believe this was a violation of human rights. Her vision of bringing democracy to Myanmar, was a democracy based on racial divisions and attitudes that had been in place there since well before even her father was born. To Aung San Suu Kyi, her goal was to protect the people she saw as her countrymen against a culture that she did not see as being her own. To her, the military leadership, and a majority of the citizens she was accountable to, alienating what they saw as an alien race in order to protect and defend HER people was an admiral goal. For many in Myanmar, the Rohingya Muslims were the ones at fault for having immigrated from a different place than them generations ago, and daring to maintain their own culture. Today in Myanmar, it is likely that many who you would come across, see the Rohingya as a dangerous threat to them and their way of life, not an oppressed minority being subjected to a genocide at the hands of their government. They believe they are protecting their culture which is based on the notion of a racial nationalism.

    This is not an effort to make you empathize with people who are accused of committing genocide. Nor am I at all denying that it is one. In fact, it is so decidedly a genocide that even the Turkish President Recep Tayyip Erdogan, famous for denying genocide, has referred to it as such. But to understand the contextual/historical reasons why a culture looks at things in a certain way, is to make progress in understanding the underlying issues that contribute to such atrocities and how to address them in a constructive way. 

    The hope that a democratic Myanmar sparked across the world turns out to have been short-lived, but it is important to do a holistic and nuanced post-mortem before we return to our old habits of sanctioning this poor country to high heaven. We’ve tried this tactic and the result is that the poorest in the country suffer the greatest consequences brought about by the sanctions. Perhaps more targeted sanctions could be considered, but unless they are carefully specified and the result of an understanding of the situational factors in the country, they will likely have a deleterious outcome for the most vulnerable citizens. Considering that the military coup has apparently detained Aung San Suu Kyi and her allies, it is as of yet unclear what her role in all this has been, and what it will be in the future. She has garnered herself numerous prominent allies and friends, in leaders across the world. From Mitch McConnell and Laura Bush, to the Clintons and Cate Blanchette, counted amongst those who have spoken highly of her, she has proven herself to be a charismatic, intelligent and complex figure. But as of now, she does not seem to be the champion of human rights she was promised to be. 

    The leaders of the military coup have announced that they believe the NLD’s wins were fraudulent and claim this to be the reason they enacted a coup. (Remind you of anyone? Lucky for us, the American coup was led by an incompetent buffoon.) They have claimed that they will hold control of the government for one year, at which time there will be elections held again. Obviously, it will be necessary to scrutinize the voting process, if one ever actually happens, to verify its legitimacy as it is hard to take seriously those who claim fraud occurred in what has been widely accepted to have been a well-executed election. It is likely that over the course of the next year the military leadership and China will begin some sort of interaction, whether friendly or contentious, and this will likely have the most impact on what direction Myanmar takes going forward. 

    Whatever happens, we have seen an attempt at democracy rise and fall in a region that has few successes on that front. This moment serves as a critically important insight into the difficult process of establishing and maintaining a democracy. Many factors play into what allows a democracy to be successful and while patriotism and nationalism are often seen as what shows the strength of a democracy, pride in one’s nation can mean very different things to different people. It might be best to ask what someone means by “national pride” before commending them for their patriotism.

How will U.S. Media reckon with what's going on across the pond?

Quick to cite U.K. Labor Party loss as precedent for why left-wing parties can’t win, what will U.S. media do with the massive wins for left-wing party Sinn Fein in Irish elections?

Moderates in the U.S. were very excited to use the Jeremy Corbyn loss as a reason why left-wing parties/candidates can’t win and should be taken as a warning to the left in the U.S. ...but what do they do with the new example of Sinn Fein’s enormously consequential victory in the Irish General Elections?

            The past few years have been a harsh reality check for many on the political left across the world. The surge of support for far right-wing candidates, political parties, and referenda results globally has sent a chill through the hearts of progressive, liberal, and generally left-of-center voters across the world. In the early 2000s, after many years of consistent movement towards progressive thinking and liberal economic positions, in the western world, a confident repose had set in. Financial markets were steady as globalism saw huge successes as the world grew smaller thanks to the growing ubiquity of the internet, and social-progress was seeing a steady growth in acceptance on issues that had not too long before been absolute taboos. This persistent movement in one direction came to a screeching halt, most dramatically in 2016 with the results of the Brexit referendum and the election of Donald Trump. Those who had grown comfortable as the standard bearers of Liberal politics through the 1990s were suddenly shaking in their boots as right-wing extremism began to present itself as a consequential backlash to the slow progressivism of the 90s. The response to this from the established liberal left was to immediately close ranks and maintain a posture that their moderate position would be the only way to gently confront such a surge of right-wing resentment.

So, when the stridently left leader of the British Labour Party, Jeremy Corbyn, was summarily and decisively vanquished by the newly anointed Conservative Party leader, Boris Johnson, in late 2019, centrist and moderate liberal pundits in the U.S. were quick to point to this as reason for business as usual in the U.S. Democratic Party. The U.S. media began running headlines and holding panel discussions drawing comparisons between Jeremy Corbyn and those on the further-left of U.S. politics. And this was not without some merit. While the British Labour party is considerably to the left of any politician in the U.S., the similarities between the U.S. right-wing movement and leader, and the U.K. right-wing movement and leader are striking. So, the media can be forgiven for drawing such a comparison and using it to support the belief that the moderate ‘pragmatic’, ‘incremental’ liberalism of the 90’s is the optimal path forward for the Democratic Party. But there is a new example to draw sweeping, broad-brush conclusions from coming across the pond.

The recent elections in the Republic of Ireland present an entirely different message. For decades, Irish politics has been dominated by two parties: Fine Gael (the party of the current Taoiseach or Prime Minister, Leo Varadkar), and Fianna Fail. I will not begin to expound on the differences between these two parties as that begins a very long historical discussion about the Irish civil war in 1921 and overall will not hold any relevance to the discussion about the results of the recent elections. The primary reason that discussion doesn’t matter here is that a third party, Sinn Fein, was the overwhelming victor in 2020. Sinn Fein, while much derided by the British government and the conservative factions in Ireland, swept the country with a resounding victory, garnering a decisive lead in vote share and seats in the Dail (or Parliament). What this will mean for discussions about the fallout of Brexit, the growing likelihood of a united island of Ireland, and the future of U.S.-Irish relations will undoubtedly prove to be enormously consequential. But what does it mean as a proxy example for divisions within the Democratic Party in the U.S.?

If Jeremy Corbyn’s defeat was worth holding up as a precedent for U.S. elections going forward, Sinn Fein’s victory presents the opposite precedent. Sinn Fein is far to the left of any party in the U.S., and well known as being to the left of both traditional parties in Ireland. Sinn Fein’s current President and standard-bearer, Mary Lou McDonald, is a forthright, charismatic, and inspiring force to be reckoned with in Irish politics, leading a coalition of strident fresh-faces bursting into elected positions. Sinn Fein is expected to be a considerable transition from politics as usual in Ireland, with bold, socially liberal and economically left-wing policies that have clearly inspired Irish voters to uproot the entrenched political terrain in Irish government. It is a striking victory for left-wing politics, unlike what we have seen around the world in recent years. If nothing else, this election in Ireland should serve as aspirational and reassuring for progressive/liberal/left-wing voters and politicians around the world who have been wracked with fear over a continuous surge in support for far right-wing parties globally.

Many will be eager to dismiss any comparisons between the Irish and U.S. elections of 2020, rightly pointing to the dramatic differences in the political landscape of the two countries. Many were similarly eager to dismiss the correlation between the Labour defeat and left-wing politics in the U.S. on the same grounds. But considering that the overwhelming rejection of Jeremy Corbyn’s Labour Party garnered enough interest to hold it up as a kaleidoscope through which to view the upcoming U.S. election in the media, so too should the overwhelming support for Mary Lou McDonald’s Sinn Fein. While neither ultimately reflects what may or may not happen in the U.S., if one deserves a news-cycle’s worth of punditry, so too does the other. And Sinn Fein’s victory in the Irish elections is at least a paradigmatic shift in the surge of right-wing extremism we have been seeing in so many countries around the world over the last few years. But, unfortunately, this election in Ireland will more than likely be entirely ignored by U.S. media for reasons that will not be speculated on here.