Thursday, January 2, 2025

How to fight fascism: Maria Ressa under Duterte

In 2016, Rodrigo Duterte was elected as the President of the Philippines. Perhaps foreshadowing the events to follow, the campaign proceeding his election was one of the more brutal and norm-defying election campaigns that a democracy has yet faced. This campaign cycle was so unique due to several factors that all contributed to Duterte’s eventual win, as well as the brutality he promised during the campaign and followed through with when elected. Duterte’s callous, crude, populist, and punitive campaign style drew the attention of the world, as his unabashedly violent and obscene rhetoric was both jarring as well as eerily reminiscent of a global trend towards authoritarian politics across the world. The concurrent rise of social media as a campaign mechanism, disseminator of news, and potential as a manipulator of public opinion played a significant role in the election and subsequent public support for policy decisions made by Duterte’s government. The confluence of these factors created a unique environment for a populist authoritarian leader to wrest the reigns of a fragile democracy away from traditional liberal values towards a regime of terror. It became a regime that would be responsible for the dissolution of the rule of law, the erosion of Human Rights, and state sanctioned/perpetrated violence that might have been thought to be impossible under a democracy in such a short time. 


Before the election in 2016, Rodrigo Duterte was the mayor of Davao City. As mayor, he grew a reputation as being a “strongman” leader with controversial conservative views on strict drug enforcement policy and police use of force after instating martial law on the island of Mindanao where Davao is located. “Although the evidence that Davao is indeed safer is widely questioned, this manipulation of Duterte’s legacy ultimately leant legitimacy to his argument for a national campaign modelled on Davao.” (Raffle, 2021) As the 2016 election cycle began heating up across the Philippines, Duterte suddenly went from relatively unknown mayor with despotic tendencies, to the front-runner in the election for the office of the Presidency, nearly overnight. (Kenny, 2020) Through the campaign, his rallies drew huge crowds of supporters to watch him boorishly rail against ‘elites’ in the Filipino government and society, while promising that he would oversee the extermination of all drug users and dealers in the country within six months of being elected. “…he would kill thousands of criminals, the funeral parlors would be packed and he would dump 100,000 of the slain criminals in Manila Bay where the fish would grow fat. He promised no mercy, saying ‘God will weep if I become President.’” (Kenny, 2020) Earning the nickname ‘The Punisher’ for his punitive, conservative theory of crime prevention, he had no intention of addressing what he believed was an epidemic of drug use with policies that would mitigate suffering or reform criminals, he advocated only for murder. “As ‘The Punisher’, Duterte ‘securitized’ a social problem, focusing on the purportedly widespread illegal drug trade as an existential threat to public safety and national security, and with no view to addressing the socially structured impact and drivers of both drug trade and drug consumption.” (Ramos, 2020) By stoking fears of rampant criminality that could only be addressed through a campaign of ruthlessness, Duterte was dealing in what has been termed “post truth”. (Ghosh. 2022) 


This concept of post truth has been referred to in many ways, but in the context of society in the Philippines of today, this is most strikingly observed by examining social media use and how it can and has been utilized to manipulate an electorate in a campaign and to garner support for controversial policies. “Mass and rapid circulation of ‘news’ in social media make it difficult for an average person to cross-check the validity and authenticity of the news.” (Ghosh, 2022) This is exactly what happened in the Philippines in the lead up to Duterte’s election and through his administration. “More than 67 million of the country’s 104 million population is on Facebook, making the Philippines among the top Facebook-using countries in the world.” (David, 2019) This makes the social media landscape a crucial element of any political strategy in the Philippines as this is the primary means of interacting with citizens. Interestingly though, it does not appear that Duterte’s campaign or administration was especially adept at capitalizing on social media themselves, but rather that, “Much of this was thanks to vocal digital supporters who cheered his mundane [yet, often offensive] statements and rallied to his defense when competing candidates voiced criticism.” (Sinpeng, 2020) This makes the idea of post truth being disseminated through social media even more relevant as it does not even apparently require the progenitor of the post truth to be the one administering it. “Facebook mobilization produced a notably toxic and crude digital fan base that reflected and amplified the insurgent and brutish personality of it’s champion.” (Sinpeng, 2020) Rather, all that is required is enough strong support from a minority to become the megaphone for what, in Duterte’s case, was a campaign of fear and the ‘othering’ of marginalized groups. This is expressed in authoritarian regimes in general through a “Rampant exclusion and inequality [which] sharply reduce people’s trust [in] public institutions, experts, and media… the new leaders become popular by circulating narratives of a conspiracy theory…[by using] hate speech, instigating ethnic, racial, and communal violence and a sharp polarization between ‘we’ and ‘they’.” (Ghosh, 2022) In Duterte’s Philippines in particular, these tactics played out through a campaign of extra-judicial killings, sanctioned and advocated for by the government.


“Some democratic qualities like popular sovereignty grind directly against other democratic qualities like institutional integrity…Efforts to make state judicial institutions more efficient and effective… can never fully overcome the inherent fallibility of legal institutions that makes their justice non-arbitrary. Efforts to make policing and judicial institutions less procedurally oriented, by contrast, do violence (often quite literally) to suspects’ democratic rights.” (Smith, 2019) This contradiction is what the Philippines is being forced to confront while grappling with Duterte’s anti-drug crusade. Duterte’s flagrant disregard for the rule of law is blatantly exhibited through his use of State law enforcement to carry out mass-killings in the name of curbing drug use. “The Philippines Mission to the UN has blamed ‘vigilante elements’ for such extrajudicial killings, but it is clear in many cases they are organized by the police.” (Raffle, 2021) But it is more subtly accomplished through the erosion of the rule of law in precise ways. For example, the attempted erosion of search and seizure rights in the People v Sapla case: “it is not hard to imagine the horrid scenarios if the Court were to allow intrusive warrantless searches and seizures on the solitary basis of unverified, anonymous tips.” (Candelaria, 2020) Importantly though, this erosion of the rule of law is rendered irrelevant in relation to reports that “the police planted guns, spent ammunition, and drug packets next to the victims’ bodies” (Burki, 2020) Another example of the erosion of the rule of law in systematic ways is the sub judice rule which relates to the right of freedom of expression: “The inconsistent and erroneous application and interpretation of the sub judice rule in the Philippines has been used to silence dissent against the government – all at the pretext of maintaining judicial stability. The unfortunate consequence of this trend may be the precise opposite: the erosion of the independence of our courts and the integrity of the administration of justice.” (Artiaga, 2021) Again, this undermining of democratic principles and state institutions becomes less alarming when presented with the fact that “state vigilantism” (Raffle, 2021) is overwhelmingly the most acute problem facing Filipino society, as these state-sanctioned, often “execution style” killings, are so prevalent according to several of the sources cited herein. 


It is difficult to imagine what could be cause for greater alarm than the State sanctioned extrajudicial killings, considering the alleged frequency, severity, and widespread nature of this campaign of murder is so brutal and has been allowed to proceed with such apparent impunity. But the erosion of freedoms may prove to be a longer lasting devastation wrought by Duterte’s regime. The targeting of journalist, Maria Ressa, is perhaps the most dramatic and striking example of Duterte’s abuse of the rights of journalists and freedom of expression. While the administration has been threatening the press and media outlets that deviate from the official government position on any issue, Rappler and its founder, Ressa, have been the overwhelming target of Duterte’s ire. Facing nine different criminal cases, Ressa has been the scapegoat for a significant portion of Dutertes anti-freedom of expression initiatives. The allegations against her and her website range from the revocation of the news license “alleging that its foreign ownership places it in violation of the Constitution”, “…tax evasion and failure to file returns”, and “cyber-libel” despite the law only being enacted after the allegedly libelous material was published and has since had its constitutionality questioned by the Philippines Supreme Court. (Dressel, 2019) But while Ressa’s situation has garnered the most international attention, she is far from the only victim of Duterte’s authoritarian suppression tactics. “…the imprisonment on drug charges of a Senator…removal of the Chief Justice of the Supreme Court… from her position. Both [of whom] had sought investigations into the [extrajudicial] killings. These issues raise serious questions about the willingness of authorities in the Philippines to investigate or prosecute alleged crimes occurring during the ‘war on drugs’” (Palmer, 2019) As horrific as the crimes against humanity in the form of extra judicial killings are, the dismantling of human rights, particularly the freedom of expression and free press, have reverberating ramifications for human rights if there are not consequences for Duterte’s brutal form of authoritarianism.


“Although violence in the context of the war on drugs cannot be considered to be genocide, as the intent is not to destroy a ‘national, ethnic, racial or religious group’, it has been claimed… that it may constitute a crime against humanity.” (Raffle, 2021) Duterte seems to be an adherent to older, more conservative theoretical perceptions of criminology. He apparently sees crime as involving individual factors rather than societal or institutionally based motivations, blaming those who many would argue are in fact the victims of society and addiction. While “The term ‘extra-judicial killings’ does not appear in the Rome Statute or in the Philippines IHL Act” (Palmer, 2019) and considering the Philippines did in fact withdraw from the Rome Statute in 2019, there are still possible avenues by which Duterte and his administration could face repercussions for their crimes against humanity. Whether domestically, through possible interpretations of the International Criminal Court’s principle of “complementarity” which aims to encourage international law prosecution through domestic courts, on “war crimes” charges which would allege that the ‘war on drugs’ could warrant the application of International Human Rights Law through the law of armed conflict, or otherwise, the Duterte regime must face consequences. 


Now, in 2025, Duterte is no longer in power in the Philippines, having been succeeded by Bongbong Marcos, the son of the former dictator of the Philippines, Ferdinand Marcos. So, clearly, the Philippines electorate has similarly short-memories or fascist leanings as does the US electorate. But now that we in the US are facing our second lap around the right-wing fascist government track, the degradation of civil rights that Filipinos experienced under Duterte are a crucial lodestar to keep track of. Maria Ressa, CEO of Rappler media, won the Nobel Peace Prize in 2021 for her work to combat Duterte’s corruption, and should be our guidepost for how journalism should act under a fascist government. We as the US electorate and consumers of journalism must be prepared to hold journalists and journalistic outlets and platforms to account under the coming Trump regime. We can do so by using the example of the Philippines and Maria Ressa’s work to expose the government’s corruption as a standard to which we can hold US journalists’ feet to the fire. If we witness the media falling into line behind a Trump Administration talking-point, or framing a story in such a way that obscures or launders the critical point of a story, it is our job as consumers of media, to call it out. We have to stay vigilant about what we expect from our media institutions and those who work within it. Maria Ressa’s refusal to comply with or be intimidated by Duterte’s fascism should bring us hope that such journalism is possible even in the US under Trump’s inevitable curtailing of civil rights and targeting of critical media. We just need to keep track of who is consistently fighting against fascism, exposing the corruption, and not bending the knee in the name of access or remaining in the regime’s good graces.

UPDATE: Rodrigo Duterte was arrested by the International Criminal Court and flown to the Hague on March 11th, 2025.

Sources


Artiaga, J. P. M. (2021). The Sub Judice Rule in the Philippines as an Interference in the Right to the Freedom of Expression: Determining Tensions and Defining Legal Standards to Address Conflicting Interests. Asian-Pacific Law & Policy Journal, 22(2), 237–309.


Burki, T. (2021). What next for the Philippines’ war on drugs? Lancet (London, England), 398(10317), 2139–2140. https://doi-org.ez.lib.jjay.cuny.edu/10.1016/S0140-6736(21)02783-5


Candelaria, S. M., & Leshen, B. E. A. (2020). Tipping the Scales in Favor of the Accused: the Implications of People v. Sapla on the Philippines’ War Against Drugs. Ateneo Law Journal, 65(2), 831–892.


David, Tandoc, E. C., & Katigbak, E. (2019). Organizational adaptations to social media: How social media news workers in the Philippines are embedded in newsrooms and influences on editorial practices. Newspaper Research Journal, 40(3), 329–345. https://doi.org/10.1177/0739532919835611


Ghosh. (2022). Politics of Manufacturing Consent in a Post-Truth Society. Journal of Developing Societies, 38(1), 7–26. https://doi.org/10.1177/0169796X211068451


Kenny, & Holmes, R. (2020). A NEW PENAL POPULISM? RODRIGO DUTERTE, PUBLIC OPINION, AND THE WAR ON DRUGS IN THE PHILIPPINES. Journal of East Asian Studies, 20(2), 187–205. https://doi.org/10.1017/jea.2020.8

Dressel, & Bonoan, C. R. (2019). Southeast Asia’s Troubling Elections: Duterte Versus the Rule of Law. Journal of Democracy, 30(4), 134–148. https://doi.org/10.1353/jod.2019.0057

Palmer, E. (2019). Complementarity and the implementation of international criminal law in the philippines. New Zealand Journal of Public and International Law, 17(1), 67-92. 

Raffle. (2021). The war on drugs in Southeast Asia as “state vigilantism.” The International Journal of Drug Policy, 92, 103114–103114. https://doi.org/10.1016/j.drugpo.2021.103114


Ramos. (2020). Change without Transformation: Social Policy Reforms in the Philippines under Duterte. Development and Change, 51(2), 485–505. https://doi.org/10.1111/dech.12564


Sinpeng, Gueorguiev, D., & Arugay, A. A. (2020). STRONG FANS, WEAK CAMPAIGNS: SOCIAL MEDIA AND DUTERTE IN THE 2016 PHILIPPINE ELECTION. Journal of East Asian Studies, 20(3), 353–374. https://doi.org/10.1017/jea.2020.11


Smith, N.R. (2019) Contradictions of Democracy: Vigilantism and Rights in Post-Apartheid South Africa, Oxford University Press, New York



Tuesday, December 3, 2024

The Repercussions of Hegseth’s Nomination


    Progress has been made regarding Sexual and Gender Based Crimes (SGBC) in the realm of International Law. This progress has been hard-won and has only succeeded in moving the needle on this issue to a tiny extent. But Trump’s administration is unsurprisingly, shaping up to destroy any small advancements that have previously been achieved. Many of Trump’s picks could have devastating repercussions for any number of international and domestic standards and norms. This is not even debatable; it is the Trump administration’s express goal. And while it is entirely likely that other appointments will have even greater impact on the world in the long term, simply the nomination of credibly accused sexual assault perpetrator Pete Hegseth to become Secretary of Defense, leading the Department of Defense (DOD) has immediately devastating results. 


    To cover the basics of the allegations against Hegseth: he has been credibly accused of sexual assault (rape – but we’ll get into the distressing and convoluted definitional gymnastics surrounding this word, later,) by more than one woman, numerous reports by currently anonymous former co-workers that witnessed Hegseth’s drunken lasciviousness, his public history of disparaging and diminutive comments about women, and a devastating email written by Hegseth’s mother to her son, clearly addressing his abusive relationship toward women that she has witnessed. Any one of these facts about a person nominated to lead the largest department in the federal government would normally be immediately disqualifying. But it seems clear that none of the standards we thought we had established regarding the morality of people in power exist any longer. From here on out, the United States no longer has any standards for what socially acceptable behavior is, at least regarding sexual abuse. This is an unavoidable conclusion, without even pointing out that the future President himself has been found liable for sexual assault (which, as the judge in the case, Lewis Kaplan, pointed out, would be called ‘rape’ in most other US jurisdictions, but due to the wording of laws in New York where the case was held, could only be referred to as ‘sexual assault’ under the jurisdiction’s applicable legal definitions.) If it was not clear after the appointment of credibly-accused sexual assault perpetrator, Brett Kavanaugh to the Supreme Court in Trump’s first term, it is abundantly clear now that being a rapist, sexual abuser, sexual deviant, and/or blatant misogynist is not a negative quality for appointment in a Trump administration, it is in fact, what they appear to be looking for as a qualification.

    The idea that sexual abuse is something to be even remotely frowned on, in any context, is clearly no longer a value that the American voting public holds. You may not count yourself among those voters, but if even a third of Americans could put aside the litany of sexual violence allegations against members of the incoming administration to vote for Trump, (and we know it’s considerably more than a third,) that speaks volumes about the kind of society America has become. Going forward, we must be cognizant of the standards our society adheres to and abides. Therefore, we must start from this understanding of our society: Appeals to moral standards regarding misogyny and sexual abuse do not hold water. Period. And through merely the nomination of Hegseth, regardless of whether he is confirmed by the Senate, or via recess appointment, or not at all, considerable damage has been done.

    While the US is not a party to the Rome Statute, which is the basis for International Law, the global hegemonic status that the US has wielded over the last several decades has nonetheless had profound impact on International legal standards around the world. The primary reason the US has neglected to even acknowledge the legitimacy of International Law is to avoid accountability for its own actions. This is not a secret or a revelation, it has been a blatant excuse for refusing to contribute to the legitimacy that the US’s adherence to the Rome Statute would provide. But even while eschewing the responsibility to contribute to global norms through bolstering International Law in substantive and concrete ways, the US has continued to play a significant role in the moral and ethical standards that stand as a basis for what the world can agree to abide by. While one can rightfully excoriate numerous actions taken by successive US administrations, on a variety of issues, there has been some expectation that any previous US administration would at least frown upon, if not be appalled by the use of sexual violence as a method of warfare or domestic legal punishment. With the nomination of an alleged sexual abuser, by a convicted sexual abuser, to lead the largest military in the world, there can be no expectation of this base standard by a US government ever again. Sexual violence and discrimination by gender are now what the US stands for. Such a stain cannot be washed away or ignored.

    This is why I suggest that even the nomination of Hegseth, regardless of whether he ends up as Secretary of Defense, has forever tarnished the credibility of the US as holding even the flimsiest standards of morality. Any advancements in gender equity that have been achieved have now been severely undermined by Trump and his nomination of Hegseth to the DoD. Hegseth has openly stated that he believes women should not be in the military, which is obviously a tremendous step backward for military readiness and gender equity. His views on women in general show his complete detachment from standards many of us believed we had reached in a society where women are no longer subservient and diminutive to men. So, putting Hegseth in charge of even the least consequential agency or department would be a catastrophic blow to gender equity of any kind. But to nominate such a man to the largest department in the entire US federal government, overseeing the largest and most effective military in the world, instantaneously puts every woman, and every gender non-conforming person around the world in imminent danger. 

    As I mentioned earlier, the word ‘rape’ is problematic for multiple reasons. The case of Donald Trump’s conviction of ‘sexual assault’ in a New York court is a good example of a much larger, more global problem with the word rape. In New York, the standard for ‘rape’ is grotesquely held to the explicit standard of ‘penile insertion’. This then obviously excludes digital (finger) insertion, which is what Trump was found liable for. This nauseating specificity came up in international law most explicitly in the cases of Akayesu and Bemba, both of which established precedent around the ‘mechanical’ definitions of rape. Akayesu succeeded in doing away with the incredibly specific definition which defined rape as solely the penile insertion into a vagina. This clearly creates the standard that only someone with a vagina can be raped and it can only be legally adjudicated as rape if a penis is used. The conclusion of the Akayesu case did away with such specific ‘mechanical’ language, which was a positive step for international law. But the Bemba case brought the definitional language backwards somewhat by returning to overly specific mechanics of what constitutes rape. It once again, establishes specific body parts that must be involved for the law to recognize an abuse as legally defined rape. But even under post-Bemba standards of international law, what Donald Trump did to E. Jean-Carrol is legally defined as rape. Therefore, under international law, the next President of the United States is a convicted rapist. Victims of SGBC worldwide would benefit immensely from returning to pre-Bemba standards for rape, or better yet, punishing all cases of sexual assault equally regardless of the gender involved or the specific body parts used to commit such abhorrent acts. But even under the current, diminished standard for accountability, Donald Trump is a violent sexual criminal by international standards.

    Clearly, International Law has left much to be desired as far as prosecuting SGBC or addressing gender in a comprehensive way for the extent of its existence as a body of law. But even the small progress that had been accomplished rested on the continued adherence and recognition of any such standards by a majority of nations. This is referred to as Common Law, meaning it exists because it is something commonly acknowledged, abided by, and adhered to. With the US having now declared itself a country where committing sexual violence does not deserve shame or even the most minor repercussions for individuals in control of the law and government, every nation in the world has been given carte blanche to re-examine any standards they see fit regarding sexual abuse and the rights of victims of SGBC. Within just the last few years, we have seen that international law has not had the capacity to adjudicate the cases of war crimes and other basic tenets of what were purported to be core international crimes, (ie. Russian war crimes in Ukraine, Israeli war crimes in Gaza, to name only those high-profile examples perpetrated by State actors). And while many have a dismissive view of international law generally, the actions that the International Criminal Court has taken to attempt accountability for those State-sanctioned war crimes was a good sign that the court intended to hold war criminals to account. Now, there will likely never be accountability for these, or any such crimes in the foreseeable future. The US under Donald Trump, and particularly a US DoD under Pete Hegseth will ensure that sexual and gender-based violence are not only unprosecutable but are apparently an attribute to be applauded and rewarded with great power. US voters chose this. They have no excuse to suggest they didn’t know what they voted for. The US chose to be a country that admires perpetrators of sexual violence. This is the legacy the US electorate has decided the world will be subjected to for generations to come.  

Thursday, August 8, 2024

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. 
















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Friday, April 9, 2021

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

Wednesday, February 10, 2021

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.