Diplomacy and International Institutions

  • Grand Strategy
    A New U.S. Grand Strategy: The Case for U.S. Retrenchment Overseas, With Stephen Wertheim
    Podcast
    Stephen Wertheim, a senior fellow in the American Statecraft Program at the Carnegie Endowment for International Peace, sits down with James M. Lindsay to discuss whether and where the United States should be less involved in the world. This episode is the first in a special The President’s Inbox series on U.S. grand strategy.
  • Defense and Security
    Religion and Foreign Policy Webinar: Conflict Resolution in Armenia and Azerbaijan
    Play
    Aslı Aydıntaşbaş, visiting fellow in the Center on the United States and Europe at the Brookings Institution and senior policy fellow at the European Council on Foreign Relations, and Philip Gamaghelyan, assistant professor at the Joan B. Kroc School of Peace Studies at the University of San Diego, discuss the ethnic and territorial conflicts in the region, including conflict resolution strategies, regional security implications, and the role international actors have played. TRANSCRIPT FASKIANOS: Thank you. Welcome to the Council on Foreign Relations Religion and Foreign Policy Webinar Series. I’m Irina Faskianos, vice president for the National Program and Outreach here at CFR. Thank you for joining us.  As a reminder, this webinar is on the record and the audio, video, and transcript will be available on CFR’s website, CFR.org, and on the Apple Podcasts channel, Religion and Foreign Policy. As always, CFR takes no institutional positions on matters of policy.  We’re delighted to have with us Aslı Aydıntaşbaş and Philip Gamaghelyan to discuss the ethnic and territorial conflict in Nagorno-Karabakh. And I will introduce them briefly, their bios, before turning to them.  Ms. Aslı Aydıntaşbaş is a regular contributor to the Washington Post as a global opinions columnist. Her columns have also appeared in the Wall Street Journal, the New York Times, International Herald Tribune, Forbes, Politico, and elsewhere, as well as Foreign Affairs, our own magazine here published by the Council on Foreign Relations. She’s a visiting fellow in the Center on the United States and Europe at the Brookings Institution, and senior policy fellow at the European Council on Foreign Relations.  Philip Gamaghelyan is an assistant professor at the Joan B. Kroc School of Peace Studies at the University of San Diego. A conflict resolution scholar practitioner, he is the cofounder and board member of the Imagine Center for Conflict Transformation. He is also the author of Conflict Resolution Beyond the International Relations Paradigms: Evolving Design as a Transformative Practice in Nagorno-Karabakh, and he’s a managing editor of Caucasus Edition: Journal of Conflict Transformation.  Thanks to both of you for being with us to talk about conflict resolution in Armenia and Azerbaijan. I was hoping that you could give us some background on the conflict, talk about the peace talks which have stalled, and where you see things going from here. So, Aslı, let’s begin with you, and then we’ll turn to Philip.  AYDINTAŞBAŞ: Thank you, Irina. And thank you for organizing this event on a part of the world that is getting very little attention but has been the scene of rather dramatic events back in September when there was an exodus of almost a hundred thousand Armenians from Nagorno-Karabakh, sort of an ethnic enclave, ancestral homeland, contested area between Armenia and Azerbaijan. Before we go into the details of the conflict, and some of the conflict resolution issues that my colleague Philip is really hands-on with, and, you know, has experience with on the ground, I’d like to provide a bit of a brief background on the big picture. Which is a part of the world on the periphery of Russia, almost equidistant to the two major wars that we are experiencing right now—the war in the Middle East and the war in Ukraine.   And of course, this region, South Caucasus, has historically been an arena of great-power competition. But over the past hundred years, it’s been Russia’s backyard. Really, more or less, a stable course with a firm Russian hand over all the Soviet republics. And Armenia and Azerbaijan lived side by side in multiethnic societies for much of the past hundred years, until the ’90s when both countries declaring independence and subsequently entering a war. Territory changing back and forth, Armenia occupying quite a substantial part of Azerbaijan, which—war in 2020, and, again, with the Nagorno-Karabakh incident in September Azerbaijan took back in a military offensive.  But of course, not everything is over. It’s a very volatile part of the world. There is—there is both a Russia problem that comes from Russia’s overreach and Russia’s absence. For too long, Russia had been the provider of security, both in the region but also specifically for Armenia. They’re now otherwise occupied. What you have is a situation in which alliances are shifting and presenting a huge asymmetry between the two countries. Basically, Armenia is trying to wean itself out of Russian influence, trying to approach—come closer to the West. Essentially, almost thirty years too late—steps that other countries have taken, particularly Georgia in the region, have taken twenty years ago. And doing so at a time when the price of trying to come close to the West, as we know in Ukraine, is almost too high.   On the other hand, there is a clear power asymmetry in terms of the military power between these two countries. They have had on again/off again peace talks over—since the 1990s, basically. But intensely over this past year, with no results. There has been an interest in Western—in European countries mediating, EU mediating, the administration mediating between Azerbaijan and Armenia, Russia mediating, and even sort of regional players. But at the end of the day, we’ve had—we have a draft treaty. We have everything that is—that make go into a peace—fundamentally, a sustainable peace between Armenia and Azerbaijan. But it’s not happening. Why is it not happening? Again, the great-power rivalry that is happening everywhere in Russia’s periphery is also happening here.  There’s clearly a situation in which while Armenia wants to get close to the West, Russia does not want to do that. Russians have shown that they are—they have been very interested in regime change in Armenia, and removing the more pro-Western elements that are in government right now, at least the more liberal-leaning elements that are in power right now and replacing that with a puppet regime. Meanwhile, Azerbaijan is doing an interesting balancing act between Turkey and Russia. And has now emerged as a key energy provider for Europe at a time when Europe is trying to reduce its dependency on Russia gas, providing an enormous leverage for Azerbaijan.   And this reversal of alliances is also—domestically there is—in both countries there is a situation that is dramatically different. In Armenia, you have a government that’s been elected in more or less a velvet revolution, street demonstrations. And it’s a democracy. And a democracy that is—where the government faces opposition when it wants to take steps, particularly when it wants to take steps that nationalist Armenians consider too far. Whereas in Azerbaijan, you have more of a firm hand of the Aliyev regime and, I would say, more of an illiberal, if not autocratic, system. But still a domestic constituency that is demanding victory, demanding military victory, and demanding—and has gotten used to great—the military conquest, so to speak.  I think that we have seen Turkey as an interesting element, as an interesting external factor, coming into the scene and saying: You know, we are historically, for the first time in a hundred years, ready to normalize our relations with Armenia, but with the condition that Armenia and Azerbaijan come sign a peace treaty before we do that. Turkish-Armenian border has been sealed, more or less for the past hundred years. I use hundred years as a reference to 1915, the sort of—the date that is considered by many to be the date of Armenian Genocide, the beginning of a period of massive exodus, and killing for Armenians indigenous to the Ottoman Empire. But of course, you know, Turkish government’s desire to normalize relations with Armenia is important.  Except it is predicated on a peace treaty between Armenia and Azerbaijan. Right now where things are, I think I would just sort of give a brief overview on that, and leave the rest of Phil. But there is—the set of negotiations and bilateral talks between the two sides has produced all the conditions for a treaty to be signed. But we have, I think, more eagerness on the part of Armenia and a bit of a foot dragging that is happening on the part of Azerbaijan. Russia is clearly not interested in seeing a peace between the two countries. The West is interested in seeing a peace treaty between the two countries, two allies at this point looking to the West, but not—doesn’t have the bandwidth to get involved and push for it.   And, of course, the situation inside Ukraine, how that war goes and whether or not Russia ends up in a year or two having more of the sort of military upper hand, is enormously important for the knock-on effect it could have in this part of the world. So there is—it is a dramatic time. It could lead to a wonderful peace treaty between these two countries, opening up a historic reconciliation between Armenia and Turkey. Or it could lead to renewed fighting based on various border disputes or issues that are still unresolved. Quite dramatic and also maybe inconvenient in the sense that everyone is distracted. There are already two wars going on, and a U.S. election that is on—that is sapping the energy from many of the stakeholders in the international scene.  FASKIANOS: Thank you very much.  Let’s go to you, Philip, to talk about the conflict resolution piece, and anything else do you want to respond to from the setup that Aslı gave us.  GAMAGHELYAN: Of course. Thank you very much, Aslı, for giving the geopolitical overview of the conflict. And thank you for inviting me to this talk as well.   As a conflict resolution scholar, I’ll give a bit of a different take, a different angle since, we already covered the geopolitical one. And also go back for a minute to the 1990s, which was the time where Armenia and Azerbaijan had their first war, a very destructive war, but in my view also the time when there was perhaps the best chance to settle this conflict. So the war in 1990s this took place immediately after the collapse of the Soviet Union when you had wars also in Chechnya and other parts of—Abkhazia, Georgia—in Georgia, and other parts of the Soviet Union. An empire was collapsing and there was questions of territory and human rights and minority rights and self-determination.   And this war was very violent. Thirty thousand people died in that war, which is—for a small region is a big number. But perhaps more tellingly, the entire Armenian population of Azerbaijan was displaced and the entire Azerbaijani population of Armenia and Nagorno-Karabakh, after Armenia took it over militarily, was displaced. So there was full ethnic cleansing for a million people for a region that has about 10 million at that point. So more than 10 percent of population was displaced. Essentially, anybody of the wrong ethnicity was ethnically cleansed. So it was a very violent war. It was also a very not compromising in terms of seeing each other in very mutually exclusive terms.   And yet, in 1990s, I am still believing there was the highest chance to solve the conflict, not because the leadership of the time was any more constructive—which is, I think, some misconception that we have. They fought this very violent war. But because there was a blueprint upon which the peace could have been established, which is essentially the liberal peace paradigm that we probably know a lot about. At that point, it was—the end of history was pronounced. Communism lost. Liberal democracies won the day. That was the assumption. And the conflict was to be solved—this and all other conflicts—were to be solved through democratization, really, of the region.   So the disagreements about the belonging of Karabakh and so on, all this remained, and why we never had a solution. But again, the blueprint was clear and accepted by everybody. So Armenia, Azerbaijan, Russia, all that neighborhood was democratizing and integrating with European Union at the time. And liberal peace has this very specific set of principles on which conflict was to be resolved. It starts with liberal democratic constitutions. Both Armenia and Azerbaijan accepted them in 1995.   And that includes very extensive provisions of human rights, minority rights. There was also marketization, liberalization of the markets. And the idea there is that then you have economic integration, and through economic integration that markets bring, you will have more interdependency. Another piece is institutionalization of civil society. And as you have strong civil society, then you will have conflicts that—they will be solved through or addressed through democratic means. You can see that in Scotland, in Quebec, right? So you have conflict, ethnic conflict, it doesn’t go to violence.   So this was to be the blueprint of solution in some form, right? You will have a conflict, disagreement, but it will be handled through democratic means. That clearly did not work. But why I believe in 1990s there was the highest chance to solve it. Now, we can ask why it didn’t work, and for many reasons. The ethnonationalism dominated. For example, the human rights, minority rights provisions in both countries were never applied to whoever they saw as the enemy. So Armenia never applied the human rights provisions to Azerbaijanis, never let displaced Azerbaijanis return. Same in Azerbaijan. Marketization happened, but it never led to any economic connectivity. The borders remained closed. Civil societies developed, but they never, again, took on the integration of other side or advocacy for the other side into their agenda. So essentially, the democratization never led to the assumed support for the solution of the conflict.   So that was in 1990s. Since then, the conflict steadily escalated. And in 2016, there was a very major escalation. In 2016—oh, sorry—2020 there was a second Karabakh war. The first one was won by Armenia and this one was won by Azerbaijan, that then was followed by full ethnic cleansing of Armenians from Nagorno-Karabakh. And we have now an interesting situation where the conflict, in a way, has been dealt with very—you know, through military violent means by Azerbaijan’s victory in the second Karabakh war. And yet, we don’t have a solution. So it’s strange situation when there is no real driver of a conflict. In a way, the cause of the conflict, disagreement about Karabakh, is removed. Armenia government, despite some displeasure from the population perhaps, is not claiming it anymore. And yet, we are not seeing any move—any serious move towards the solution.   And question is, why? And in my view, again, we go back to this question of there is no blueprint on which you can have a stable solution. Democratization didn’t work as a conflict resolution mechanism, even when it was happening. And today, it’s not even happening. So Aslı mentioned Armenia itself, as well as Georgia and Moldova and Ukraine, in that neighborhood are democratizing, or trying to stay democratic. But the rest of the neighborhood is not. You have Azerbaijan, Turkey, Russia, Iran, of course—a lot of the neighboring states, big states, are actually becoming more and more autocratic. So this democratic approach to solution is not necessarily workable in the condition where most of the neighborhood is heavily autocratic.   And the democratization comes with a heavy price. While I agree that Armenia is late, in a way, to the game, but it’s not like those whose attempted democratize early didn’t pay a heavy price. So Georgia, who tried to democratize twenty, thirty years before Armenia also paid a heavy price, lost big parts of territory, faces two wars in its own territory. Ukraine, we are seeing what’s happening as a result of trying to democratize. Moldova is potentially under a threat of invasion, has its own conflict. So basically, every country that attempts to democratize and break away from autocratic Russian influence ends up facing, essentially, war or invasion in its territory.   So we have this very volatile situation that Aslı mentioned. Where to go from here? In my view, conflict resolution, as such, that was possible in the 1990s is not possible, again, because we don’t have this consensus—international consensus that everybody will become liberal democracies, and through integration to European Union structures, and in some form replicating post World War II European experience, right? So solving it through democratization and economic integration. That blueprint is not possible, given the heavily autocratization of the majority of the region.   So with that out, so my proposal has been recently to—also to governments—to think in a long term about transformation of the conflict. As I said, even when they were more democratic, they never really applied human rights provisions or anything to the other. It’s a very heavy investment by both governments throughout thirty, forty years into building enemy image and hatred towards the other side. That we need to really divest from it on both sides. And that includes the education system, it includes political speeches that could go full fascist, I would say, essentially, fully excluding the other side and advocating for violence, normalizing violence. So that has to be on unwinded as long term as that was built. Yeah, we need to completely reform the education systems, the political speech, and what else?   So one support to this region will be to invest and encourage them to move away from this kind of rhetoric and narratives in history—history education, and political speeches and media as we move forward, since, again, the drivers of the conflict are not necessarily present. But that’s longer term. In the shorter term, I believe there is an importance to invest in conflict management, not necessarily solution. But minimizing the chance for a new war emerging. If the war until recently was in international recognized territory of Azerbaijan and disputed territory of Nagorno-Karabakh, there is now a chance of it moving into the territory of Armenia. And now we will have the reverse situation but also quite unsolvable if Azerbaijan is to take over part of Armenian territory.   So presumably that is not in the interests of Armenia, for sure, the region in general, I believe, but also the Western partners. Because as Aslı also pointed out, Russia has ruled this region essentially through keeping the conflicts alive and kind of playing the sides against each other. So in that sense, the region itself, of course, can benefit from peace, but also the Western partners should be interested in seeing peaceful region, because that helps them more to democratize and move away or at least diversify its foreign policy, and move away from full control by Putin’s Russia. And this is where we don’t see necessarily enough—perhaps we see enough investment at this point, I will say, from the West. But it’s not consistent.   So there has been heavy investment from the West towards democratization of this region during Clinton and Bush presidencies. You saw a complete pullback of the region during Obama and Trump presidencies, where the region was looked upon through the prism of relations of United States with Russia. And essentially, the region was handed over Russia as its playground to manage. For example, even the negotiations between Armenia and Azerbaijan were always led by the United States, France, and Russia together, other than in the period when Barack Obama comes to power and effectively outsources this fully to Russia, and endorses Russian-led single track process.   So you have suddenly more investment into the region from the Biden administration. But there is this hesitation—and you have Macron, also France is very heavily involved. Very different from the past. But there is always a hesitation what’s going to happen past November, right? So can we count on essentially the United States being present in the region past November? Is it—are you waiting four years from then, and then we are on our own again? Yeah, so this more systematic investment being more part of a longer-term strategy to democratize and integrate with the West is really important. And that’s one area where more consistency could help really divest somewhat from dependence on Russia. So I will stop there and turn to questions. Thank you.  FASKIANOS: Terrific. Thank you both. That was a really great overview and update on where we are. I’m going to go to all of you now for your questions.  (Gives queuing instructions.)  Let me just look at—if we have any raised hands. Not yet. So maybe we could just dig a little bit—oh, we do—we had a question that just went away. Yes. OK, great. Peg Chemberlin.  Q: Hi.  Could you speak a little bit to the role of the faith community over these years? Whether that’s the Orthodox community, the relationship Ukrainian Orthodox and Russian Orthodox? Whether it’s the—some of the more invasive evangelicals? Where are they carrying political agendas? How are they being helpful, and so forth? Thank you.  GAMAGHELYAN: Aslı, I don’t see you coming in, so I’ll start, I guess. So coming off the Soviet era—out of Soviet Union, these have been very secular countries. Some of the countries in the neighborhoods, specifically Ukraine and Georgia, maintained bigger, perhaps, religious community. That has been changing, of course, throughout past thirty years. I mean, in Armenia specifically you see comeback of the Apostolic Church—Armenian Apostolic Church; many new churches building. And the religious community is becoming more active in domestic politics, in domestic civil society, in education matters.   In Azerbaijan, a bit less so. It has been somewhat seen as it’s been—it’s partially encouraged, but in a very government-controlled fashion, while kind of more genuine expansion of religious movements have been seen as a potential political threat and has been suppressed. But you have—I think we don’t see much of an involvement of faith communities in any form, neither from outside nor internally, in the normalization or peace process. There have been maybe one or two meetings between religious leaders, but they have been organized by Moscow actually, about maybe fifteen years ago last time, if I’m not wrong. So it was a more of, like, government organized, symbolic event rather than any kind of genuine reaching out.  And within the country, although most people of Azerbaijan, which is more the religious community I think is dealing with political repression than the conflict. In the Armenian case, currently the institutional church is positioning itself in rather opposition, I would say, to the current government that is working for peace. So interestingly, you see alignment of the church based on what is called preservation of traditional values with more the conservative traditionalist, let’s say, end of the political spectrum, that’s aligning itself with Russia, and also revanchist rhetoric towards potentially regaining control of Karabakh. So you see almost an oppositional movement from the church towards the government. In no case I’ve seen any involvement, again, in the peace process, neither from internally nor by any outside faith groups so far. It would be great to see it. It’s definitely missing angle.  FASKIANOS: Aslı.  AYDINTAŞBAŞ: So I’m an outside observer on this issue, and Phil really knows intimately closer the dynamics when it comes to faith-based organization and their involvement. But one outside observation is the reason for the weakness in ties could be a product of the fact that until very recently Armenia and its politics were strongly under Russian influence. Russians had—you know, Armenia was in CSTO, Russia controlled its borders, and wielded an enormous amount of influence over Armenian politics—handpicking governments, supporting oligarchs, and so on and so forth. Until the velvet revolution, so to speak, or the street revolutions of 2018, when you had a government that understand—that came into power democratically, through street demonstrations, and opened up Armenia’s ties with the West.  So almost too late, because some of the countries like Ukraine and Georgia had gone through this phase earlier. But it is still very important. And civil society is blossoming in Armenia. If you’ve—I was—you know, if you go to Yerevan, it’s really experiencing a sort of very colorful social and civil society scene. But it is new—relatively new. And I’m going to say maybe something slightly provocative here. It is also the case that Armenia’s relationship—Armenia, the country’s relationship with the Armenian diaspora in the West, isn’t exactly a full alignment. Much of the Armenian diaspora in this country, in the United States, is Armenians who have fled Ottoman Empire—descendants of Armenians who have fled Ottoman Empire, and therefore more focused on issues around the genocide, genocide recognition.  And of course, recently they have been involved in Nagorno-Karabakh conflict, but it is not—they’re not exactly the diaspora of Armenia, the country. They are the diaspora of Armenians from all the territories Armenians have historically lived. Very focused on historic reconciliation, historic issues, as opposed to the sort of Armenia—its current needs, and developments, and positioning, and vulnerability, and so on. So I see a huge difference when I look at Armenia—the relationship it has—or doesn’t have, really, with the Armenian diaspora in this country, with the type of relationship we would see between Israeli communities in politics and Israeli American communities, with the American diaspora here. So that difference is also—may also be part of the reason faith-based organizations are not really—have not really focused on what is happening in Armenia.  FASKIANOS: Thank you.  I’m going to go next to Elise Cannon. And if you could identify yourself, that would be great.  Q: Yes. Yes. So this is Reverend Dr. Mae Elise Cannon. So my first name is Mae. I’m the executive director of an organization called Churches for Middle East Peace.   And you spoke to my question a little bit in your last response, but my question is: Can you explain a little bit more about what’s happened specifically in the last year, and the displacement from Nagorno-Karabakh, but the negotiations in light of, I was going to say, the region’s history—which you started to talk about—but specifically, the Armenian perspective that I hear often from diaspora about the displacement being identified as ethnic cleansing or a continuation of the genocide. You know, this idea of connecting what’s happening today to the history of the Armenian people, you know, as an ongoing erasure not only of Armenian culture and identity, but the historical Christian identity of the region and territory.   And my question ultimately is, how legitimate is the fear that the goal of Turkey and Azerbaijan would be, or is, the complete eradication of Armenia and its Christian identity? I mean, that’s something that we hear. And is that legitimate at all? And the argument that’s used is the displacement of the population from Nagorno-Karabakh is evidence of that continued ethnic cleansing, you know, if you will.  FASKIANOS: Who would like to go first? Aslı, I see you are unmuted. And then we’ll go to Philip.  AYDINTAŞBAŞ: Yeah, I mean, I think that—I think that it would be too far to say—certainly would be an exaggeration to say the goal of Turkey and Azerbaijan is the eradication of Armenian identity or the country. I do think that Turkey would prefer normalization with Armenia and opening its border, which then provides a direct access to Azerbaijan, Central Asia, and really opens an incredibly valuable resourceful trade route for Turkey into—all the way into China. It’s called Middle Corridor. And Turkish pundits are almost obsessed with it. It is just that they have developed a very strong strategic relationship with Azerbaijan which wields enormous influence over Turkish public opinion, and they don’t want to normalize relations or open the border until there is a peace deal. This is a reality of Turkish politics, and the sort of relationship Turkey has established over the—solidified with Azerbaijan.   I think that Turkish and Azeri goals are not necessarily overlapping, but they are similar. Azerbaijan is not the—one of the issues is Azerbaijan is not desperate for peace, whereas Armenia is very vulnerable at the moment and is really eager for peace. Turkey would like peace, but isn’t going to push Azerbaijan to jeopardize its relationship with this sort of influential, oil-rich country. So there is a possibility of coming up with a framework whereby you can manage this conflict, as Phil has pointed out, and essentially open transit roads and sort of prevent further fighting and war, and really prevent a type of catastrophe that you have talked about.   I have to say that there is a maximalist narrative that is coming out of Azerbaijan that is worrisome to watchers, people who watch this conflict, including U.S. officials that have invested somewhat in the peace process—on again, off again. There are also all these issues that Phil has talked about in an earlier question—hate speech, maximalism, racism, normalization of violence. And these are deep, deep, deep, deep issues that are not necessarily addressed, but can only be done so within the context of peace treaty or sort of a de-escalation.   So I am not necessarily thinking that Turkey shares the same ideas with Azerbaijan. They would not like to see further fighting. But if Azerbaijan decides to embark on further fighting to claim territory, a part of—that is now part of Armenia, I am not—you know, I don’t think they would publicly oppose that.  FASKIANOS: Phil.  GAMAGHELYAN: Yeah. I don’t think there is any kind of monolithic answer. In general, yes, it’s not like Turkey or Azerbaijan have some specific policy that is continuation from, like, you know, nineteenth century until today. I think things change. I think there are different factions and policies and politics in each community. In 2000s, I would see this proposition as kind of very marginal, yeah, so this kind of logic that there is some kind of continuity of policy and there is an interest of ethnic cleansing. I don’t think that was the case at all. The time there was right. So there were many chances—in the 1990s and 2000s, there were many chances to solve this conflict.   The politics of the day, again, the norms of the day were very different, again, for the region. Turkey was moving towards European Union and was democratizing. So the structures—international structures within which this conflict was being addressed were very different from the ones today. But at the same time, even then you had perhaps somewhat marginal groups of nationalist Turks, nationalist Azerbaijanis, also nationalist Armenians we would like to see complete ethnic cleansing and the eradication of the other side. You always have these voices.   Now, things change. If I think in—if in, again, 1990s, 2000s, seeing this kind of takeover of a country, eradication of population was a non-starter somewhat. Yes, it will not be tolerated. There will be interventions. Things change. What we are seeing today in Gaza, what we are seeing in Ukraine, that suddenly mass violence is becoming normalized. The reaction is, yes, there, but potentially muted. And that potentially does open up a door for, you know, quite fascist type of movements that can talk about solution of a problem through full ethnic cleansing. Suddenly it’s not as unthinkable as it would have been five, ten, fifteen years ago. So again, I think the elements within Turkey, within Azerbaijan who were voicing full eradication of Armenians were there, they were very marginal. Again, I’m not excluding that possibility anymore. I would be five, ten years ago.   And I’m not also ascribing some kind of particular nationalism to Turks and Azerbaijanis only. Armenians, when they had the upper hand, had very extremely nationalist narratives and did not let any Azerbaijani return home, fully excluding any possibility of coexistence or, again, Azerbaijani rights as human rights, or minority rights of Azerbaijan has were displaced from Armenia. So essentially, both sides—both sides, the nationalism is present, sometimes has a strong political voice. At this point, Armenia being far weaker politically and militarily side if there is a conflict, you can potentially expect much more violence than we’ve seen in the past.  FASKIANOS: I’m going to go next to Bob Roberts.  Q: Thank you, Irina. Appreciate it. Three quick questions.  FASKIANOS: Bob, can you identify yourself? I’m sorry.  Q: Yes. Bob Roberts. I’m the president of the Multi-Faith Neighbors Network and Institute for Global Engagement.   Three quick questions, with three quick answers. Number one, sometimes in a conflict there’s a single factor if you can get the ball rolling on that it changes everything. Is there a factor like that in this? And if so, what is it? Would it be an open channel connecting Azerbaijan to its dislocated section on the other side? As I’m sure you’re aware. Number two, what are the first three steps, you would say, if peace is going to happen, here are three things that have to happen, here the first three things I would focus on? Thank you.  AYDINTAŞBAŞ: I guess I’ll go first. There is—Azerbaijan has an exclave—an enclave closer to the Turkish border that it’s disjointed, and wants a land bridge over this territory, which is Armenia. So it’s two Azeri territories, Azerbaijan proper and this other territory, and Armenia in between. They do want to land bridge. And it is presented—the issue is, at this point, will they accept the crossroad, the transit route that Armenia is offering? Or will they not—or will they try to open it and reclaim that territory, and open that territory which is currently Armenia, which is historically Armenia, and sort of try to do it militarily?   I do think, yes, it is coming down to that land bridge, the transit corridor, or whatever we call it—the transit route. Armenia has recently put forth a proposal called Crossroads for Peace, saying—basically saying they’re willing to open this, but it is sovereign Armenian land, would have to be controlled by Armenia. And so much of the sort of recent negotiations has been around this. The problem is, in principle both countries agree that there should be this corridor, this land bridge, this sort of transit route. And that our Azerbaijan should have access to this exclave and that, you know, eventually linking it up with Turkey.   So to me, it seems like sort of really sad that there is an agreement on what needs to happen, but it is—for some reason, the details, where the passport control will be, what truck—how will trucks pass, you know, whose territory it is—we have come all this—you know, this far in negotiations, and with both sides agreeing to the existence of this transit route. So it would be a real shame if they step back and engage in fighting, just sort of thinking of this as an opportunity somehow.  I think Armenia does fear that Azerbaijan will go ahead and open this route militarily. Also, because of the more sort of maximalist language that is coming out of Azerbaijan now. But this is where international community could be helpful, important, and really put its foot down and say: You want a road? We will build it. We will provide the modality. It can be, like, this model that model, and really put the funding for it. We’re talking about a very, very small piece of territory.   But what are the first three steps? Or what is another issue that would make a difference? I think Turkey could make a difference and unlock this conundrum in a way that is more impactful than the sort of Western-led mediation efforts, if Ankara was to lean in a little bit and convince Azerbaijan to go ahead and sign a peace deal with Armenia. This benefits—this whole thing benefits Turkey enormously, strategically, in terms of sort of a really important historic reconciliation, but also trade wise. So if they could lean in and sort of provide the type of guarantees Azeris will have, this can happen.   It’s a question of, you know, convincing Turkey to go ahead and be really—play a more constructive role in this process. Right now, they’re hands-off. They’re not playing a destructive role and their position is—Turkey’s position is: We’ll support whatever Azerbaijan decides. But I think Turkey leaning in a little bit and convincing Azerbaijan could be—could really change the dynamics there. Maybe that would be my—the big sort of single issue I would highlight.  FASKIANOS: Great. Philip, we’ll go to you, and then we’ll take our next question from Margaret Kibben. So, Philip, if you want to add, and then we’ll go—we’ll move to next question.  GAMAGHELYAN: Yeah. I will actually go even further and put Turkey as that single important factor column. I think that Turkey not normalizing, not opening the border with Armenia, actually keeping it fully economically dependent on Russia, is the biggest obstacle to moving forward. Biggest obstacle, but also could have been the biggest step forward towards normalization, at least abiding by the agreements that are already reached. Last summer there was an agreement which—there were negotiators appointed at President Erdogan’s prompting between the two sides. They agreed on some small steps, such as opening the border for—between Armenia and Turkey for third party nationals only—not for Armenians and Turks, but for third parties and for diplomatic passport holders. It was supposed to open until July of 2023. It’s still not open. Turkey essentially just backtracked on that.   So there is a—so why Turkey is so important? Because from Armenian perspective, they are willing to or accepting a lot of the conditions by Turkey and Azerbaijan, but they see even whatever is agreed upon not being actually followed up upon by neither Turkey nor Azerbaijan. And that creates a lot of hesitation of it’s more essentially—any compromise Armenia makes going to be followed by further demand without even what’s agreed upon being fulfilled by the opponent. So from that perspective, Turkey is, again, very important step for Armenia to open up to the world outside Russia. It’s also important to see that what’s at least agreed upon—not more than you agreed, but what you agreed is being fulfilled.   So I put it as first—second, concrete peace agreement that come between Armenia and Azerbaijan. So I’ll put that second, not first. Second, with very concrete agreement of which map should be used for demarcation, delimitation. Azerbaijan is in favor of peace agreement but refusing to agree on anything concrete. And the history of last three years shows that that means Azerbaijan at every place is then going to be pushing further into the Armenian territory. So without a concrete map on which the demarcation can be done, it becomes essentially a paper that gives Azerbaijan and Turkey potentially a carte blanche to encroach into Armenian territory. So concrete peace agreement, with a specific map attached to it.   And then, third, I would agree, also U.S. and overall Western mechanism of guarantee of implementation of these two provisions, right? So if there is an opening, a road given by Armenia to Azerbaijan to pass, if there is a peace agreement, demarcation will be made. There should be a mechanism of arbitration in case you have disagreements that later lead to escalation. Right now there is no mechanism through which any disputes could be solved. So I’d say Turkey abiding by its already-made agreements and promises, peace agreement—concrete peace agreement. And then mechanisms for arbitration, would be three.  FASKIANOS: Thank you.  Let’s go to Margaret Kibben.  Q: Hi. Thank you both very much for this marvelous conversation. My name is Margaret Grun Kibben. I’m the chaplain of the House of Representatives.  And have been very much interested in the conversations that are taking place here in the House. And have really come to an awareness—or, a very moderate awareness of things that are going on in Armenia and Azerbaijan, particularly with Nagorno-Karabakh. But my question is—this is an amazing presentation of the geopolitical situation. You’ve talked a lot about foreign policy. You’ve talked about diplomacy. But we are at religion and foreign policy forum here. And I’ve heard a couple comments about faith-based organizations or religions. I won’t say that they are throwaway comments, but they don’t get a whole lot of depth from you.   I’m wondering if it’s probably because of what something that one of you said, which was that the diaspora—in other words, the people who are informing our media and informing us—are not in full sync with current Armenian issues, or current immediate Armenians. And so the problems that the diaspora are putting forward might have a more religious flavor to them, or that’s the lens through which they’re watching this series of events here, and the conflict. Things like, are we going to lose our Christian heritage of Armenia? Are they targeting Christians? You know, or is it the fact that they’re just targeting Armenians?  So I guess my question is, if you could in one or two sentences, what is it that the faith-based organizations are not addressing but could be? And where could there be religious dialogue in the diplomatic efforts? Where are there areas where there are clerics within Armenia or even Azerbaijan who might be able to bring something to the table to enable the peace talks, not just for trade, but for peace, and to minimalize the maximalist narrative?  GAMAGHELYAN: Can I start this one? I guess. So, yeah, I fully agree that has been very much underutilized, not really looked upon dimension. That overall the faith in both communities has been growing again. They started thirty years ago, with a relatively small percentage of population actively participating in any religion. But that has been very actively changing. And in that sense, you do—you do have many more—a much bigger part of the population in both countries that are believers and do have—there are religious leaders to whom they could listen to. And that interfaith dialogue has not been—it organically never emerged, so they never reached out to each other, other than by, again, one or two invitations to Moscow, at a very high-level leadership.   But I think that could be something that could be actively promoted by others who do have much longer experience of interfaith dialogue. In the United States, it’s certainly for me a very major—has been very active. You see in the Middle East that has been very active. So it could—but certainly could learn from it, and would be great to see, frankly, an involvement, or a push, or a prompting by those with more experience in interfaith dialogue, who can offer their know-how and their experience.  Aslı?  FASKIANOS: Aslı.  AYDINTAŞBAŞ: Can you hear me? Sorry, can you hear me?   FASKIANOS: Yes. Yes.  AYDINTAŞBAŞ: Yeah, I mean, I do—I do agree with Phil. The interfaith dialogue is missing. Civil society dialogue is missing. I think there are efforts to get it off the ground, like, Phil, your organization. But these two—the two societies have demonized each other very intensely within a very short span of time, historically speaking, from sort of a—from living in diverse, multicultural communities to living in more homogeneous societies, shaped by the sort of hate speech and racism. And that—there is a role for interfaith organizations in reversing that picture. You know, it’s a dialectical relationship between politics and society feeding off each other. And really, there needs to be a stop somewhere. And I think external organizations stepping in and initiating interfaith conversation would be very, very important.   I think the second issue is what I raised before. Armenia, the country and its people, need to be in sync with Armenian diaspora, and vice-versa. Armenian diaspora also need to be more understanding and interested in the sort of immediate concerns of Armenia, the country, and the quest for peace there, which is more or less necessity for survival. So what we’re seeing is Armenian government being extremely flexible in these negotiations, in part because Armenia is extremely vulnerable and cannot afford not to have peace with its very powerful and increasingly militarized neighbor, and Turkey. And with Russia waiting for any moment of weakness to take over the country, that’s just not an option.   I don’t see the diaspora groups here rallying behind this peace agenda. Maybe that they’re focused on Armenian identity, culture, religion, and so on, and really also have focused on Nagorno-Karabakh. But when it comes to political alignment in sort of supporting the government’s proposition that peace is an absolute necessity for Armenia to survive, I don’t see the diaspora really on board. And I think that seems to be an internal Armenian issue, but very, very important.  FASKIANOS: We have one written question from Thomas Walsh, who is president of the Universal Peace Federation: Interested to know if NATO is playing any significant role in, for example, leveraging—you know, leverage with Turkey? Or is NATO’s presence overly provocative to Russia, à la Ukraine?  AYDINTAŞBAŞ: Shall I?  FASKIANOS: Yes, go ahead.  AYDINTAŞBAŞ: I think NATO is—to be perfectly honest, I think NATO’s presence would be very provocative at this point. We should not make promises to Armenia that we cannot keep. And while everyone in Europe and here in the United States is very receptive to the message that’s coming out of Armenia now, we want to get closer to the West, we are interested. I was just watching an interview, incidentally, on Turkish channel TRT World with Armenian foreign minister. For the first time, really, something like this happened—an Armenian foreign minister saying, our societies are—basically, what we said, our societies are interested in—have European aspirations. And that is a big, big statement. It’s just an inconvenient time for that geopolitically in terms of Western countries really fully supporting Armenia and also providing the kind of immunity that might follow, if there’s a reprisal from Russia.  What can be done? What can be done is supporting Armenia in incremental steps, economically, militarily, establishing new relations. Armenia is not where Ukraine is, nor is it where Ukraine was in 2022. It is coming much, much too late into this—into this world, this game, so to speak, in terms of seeking a Western orientation. So it has to be—it has to be a deliberate, incremental, but also a decisive step. I have no doubt in my mind, after having visited Armenia, that there is an enormous determination on the part of society to break out of Russian influence, to establish relations with the West, and so on. It’s very clear on the street. Not just pro-government people, but whoever you talk to.   But we also have to be cognizant of our own limits and shortcomings. There have been U.S.-Armenian joint military exercise, which was very, very small, tiny. More symbolic. And two days afterwards, you know, Azerbaijan started a military offensive into Nagorno-Karabakh, an issue that Armenia and the West—the West has not been able to support Armenia. So that is the reminder of the kind of limits of U.S. power, of NATO power, and also the type of—sort of constraints that are out there. I think supporting Armenia, Armenian resilience, Armenian society, and supporting economically and pro-Western orientation are all very important, and steps that that could take place over the next couple of years. Maybe on to Phil from here.  FASKIANOS: Yes, Philip, you get the last word before we wrap up.  GAMAGHELYAN: In this one I fully agree with Aslı that I think both, yes, of direct NATO involvement, that may a few steps removed and alternate dangerous as we can see in Ukraine. It will not go well for Armenia. And the support is not there. Turkey in that region is not playing fully a game of a NATO member, but it has completely its own relationship with Russia. Which is different from the rest of the NATO, let’s say. So but having said that, again, on the flip side, yeah, more incremental but systematic support for Armenian integration work for the West I think is important. And an Armenian end point that, again, is a policy and is not just propagandistic move on the end of the United States, and France, and so on. I think that’s really important because they are taking a big risk trying to diversify their foreign policy and the economy.  FASKIANOS: We are out of time, but thank you both. This is really a terrific discussion. Very insightful. And we really appreciate your taking the time to be with us, Aslı and Philip. So thank you. And thanks to all the questions. We appreciate it. We hope you will send us any feedback. You can write us at [email protected]. And you can also follow CFR’s Religion and Foreign Policy Program at @CFR_Religion. We will circulate the video and transcript for this call so you can share it with your colleagues. So thank you, again, for being with us. We appreciate it.   AYDINTAŞBAŞ: Thank you. Thank you so much.  FASKIANOS: Thank you.  END
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    Academic Webinar: Complex Humanitarian Emergencies
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    David J. Scheffer, senior fellow at CFR, leads the conversation on complex humanitarian emergencies. CASA: Welcome to today’s session of the Winter/Spring 2024 CFR Academic Webinar Series. I’m Maria Casa, director of the National Program and Outreach department at CFR. Thank you all for joining us. Today’s discussion is on the record and the video and transcript will be available on our website, CFR.org/academic, if you would like to share them with your colleagues or classmates. As always, CFR takes no institutional positions on matters of policy. We are delighted to have David Scheffer with us to discuss complex humanitarian emergencies. David Scheffer is a senior fellow at CFR, where he focuses on international law and international criminal justice. He is professor of practice at Arizona State University, working out of Washington DC, and was previously a professor of law at Northwestern University, where he is director emeritus of the Center for International Human Rights at the Pritzker School of Law. Ambassador Scheffer served in both terms of the Clinton administration. During the second term, he was appointed the first-ever U.S. ambassador-at-large for war crimes issues. And he led the U.S. delegation to the UN talks establishing the International Criminal Court. Of particular interest to this group is his book, All the Missing Souls: A Personal History of the War Crimes Tribunals, published by Princeton University Press in 2013. Welcome, David. Thank you very much for speaking with us today. SCHEFFER: Thank you, Maria. CASA: If you could begin by giving us a little bit of context, defining complex humanitarian emergencies, and maybe giving us a few examples. SCHEFFER: I will certainly do so. And it’s a great pleasure to be with everyone here today. This is a large audience and a very distinguished one, of students, of professors, of deans, and others in this space in our life, which is an interest in humanitarian needs and causes and emergencies around the world. What we’re going to talk about today is complex humanitarian emergencies. And it’s not too complex a definition. By using the word complex, we really mean that these are humanitarian needs—which usually look to issues of food security, to habitat, to safety, and security, and one’s livelihood—that enables one to live and thrive where one permanently lives and thrives. But then we have humanitarian emergencies. And they get complex when people are being displaced from where they normally live and nominally thrive as normal human beings. They get displaced by armed conflict, or by economic disparities, extreme poverty, or by climate change, or by political upheavals and rivalries within their countries, particularly targeting particular ethnic groups. That creates a complex situation because in order to solve it, you have to think not only of the basic necessities of life to solve it, but you have to think about war, how to solve that, or the climate crisis, how to solve that, or extreme poverty, how to solve that. And that makes it an extremely complex problem. What I want to do is speak for about maybe eight, nine minutes or so, and then open this up for a fulsome discussion among our many participants. And that means not necessarily asking me a question, but perhaps delivering a comment of your own—brief, of course, because we have a lot of people on this—so that you can contribute to this and add to the educational value of this for students now, and in the future. I want to point out the very latest list of humanitarian emergencies that have been identified by the International Rescue Committee. And their latest report, I think is—you know, in 2024 is a very, very enlightening one. And I encourage everyone to link on to it at some point after this discussion to look at it. The top ten are as follows: Sudan, the occupied Palestinian territory—which, of course, many countries would regard as the state of Palestine. More than 130 countries recognize that territory as the state of Palestine. But nonetheless, it’s now in the number two position, which is probably obvious to everyone on this webinar, given the news since October 7. South Sudan is number three. Burkina Faso, number four. Myanmar, number five. Mali, number six. Somalia, number seven. Niger, number eight. Ethiopia, number nine. The Democratic Republic of the Congo, number ten. And then, without ranking, but in the eleven through twenty slots are Afghanistan, Central African Republic, Chad, Ecuador—for the first time—Haiti, Lebanon, Nigeria, Syria, Ukraine, and Yemen. So, among those twenty countries, you can see that there’s a tremendous challenge. Now, interestingly, the total number of people who are regarded as being caught up and trapped in humanitarian emergencies actually declined slightly or somewhat, from 2023 to 2024. In 2023, that number was about 363 million people in the world were trapped in humanitarian emergencies. In 2024, it’s estimated to be about 300 million. But that’s an incredible number. And I think in our recent understanding of humanitarian emergencies, remember that in Gaza two million people live. And they were not really on that list prominently until this year. I want to emphasize that the three major components that we typically see in humanitarian emergencies of this character, the engines of them, are: armed conflict, climate change, and economic shocks. And sometimes there’s a combination of them, where you will see a country and it’ll be identified—for example, Syria, Somalia, and Ethiopia, are described as humanitarian crises or emergencies driven by both conflict and climate change, coming together as sort of a double power punch at the people to forcibly displace them from their homes. I think in the readings—one of the most interesting readings that we offered to you on the list is the one regarding Sudan, which is kind of a sleeper now because it’s overtaken by the situation in Gaza and in Ukraine in the last couple of years. But Sudan is getting worse and worse and worse. And it is now at the top of the list. You’ll recall that in 2003 we were struggling with genocide in Darfur in Sudan. And that has actually resurrected itself in the last year or so in terms of continued genocide in Darfur. But that’s just part of the entire conflict in Sudan, which is an armed conflict. And it is driving tens and tens of millions of Sudanese across the borders into Chad, into South Sudan, forcibly displacing them within Sudan itself. So that is a true emergency. I want to point out a couple of sort of larger cosmic issues for you all to think about. One, you know, since after—well, in the early 2000s there was a tremendous amount of focus—and I was part of this—put on creating this principle called “responsibility to protect” (R2P). And it was memorialized in an outcome summit statement of the UN General Assembly in 2005, you know, in two paragraphs—I think it was paragraphs 136-137. But it was focused on the responsibility to protect populations who are victimized by atrocity crimes. Not by climate change, not by economic shocks, not by armed conflicts, per se. But rather by atrocity crimes—genocide, war crimes, crimes against humanity, and they also listed ethnic cleansing specifically, even though that is part of crimes against humanity. But the point is that the world’s focus was on a duty to prevent—or a responsibility to protect—exposed populations to those crimes, a responsibility both domestically and then, if it’s not done domestically, the international community has to put that focus on it and ultimately work through the Security Council to address the problem. I would suggest that we’ve reached a stage now where, first of all, the responsibility to protect principle has come under great strain, particularly given the fractured character of the Security Council, to the extent that it’s not achieving the promise that it originally held. But we need to start thinking about what I would call a responsibility to survive, R2S. I’m just throwing this out at you. Because the humanitarian emergencies of our time are enormous. And they require very, very rapid action. And they require a focus on the responsibility of governments to address these humanitarian emergencies, both governments that have to address them domestically because they’re happening inside those countries but, of course, also the world community to try to staunch the egregious sort of assault on the humanity of various populations. And I just think we’ve reached that stage now where we have to have a responsibility to survive principle out there that holds governments accountable. And that takes me sort of to the next cosmic point I want to point out, which is I have—because my career has been in international criminal justice for decades now, and I’m always looking at, you know, who’s the next war criminal. And we just got that announcement yesterday out of The Hague with respect to indictments on two Russian military officials with respect to war crimes and crimes against humanity against the Ukrainian people during the winter season in that conflict. So that’s good. That’s good. Accountability for atrocity crimes is definitely part of our system now. It doesn’t work perfectly, obviously, but it’s there. What we are missing is holding accountable what I would call burden shifters. These are leaders who just dump burdens on the rest of us. They’re just dumping. A humanitarian emergency is a burden on the rest of the international community. That’s not a critical step. I mean, I’m just—obviously, we have to react to that and deal with it. But I always marvel at how certain leaders think that they can just act in a manner that shifts an enormous burden for taking care of just the basic necessities of life of tens of millions of people—they can just sort of dump it on to the international community. And so, we don’t have a system politically where we call out the leaders who—they might not be doing anything illegal, per se, but they sure as heck are shifting an enormous burden off of their shelf of responsibility and governance onto the rest of the world. And I think we should more clearly identify those individuals. We should figure out a way to identify burden shifters among leaders, strongmen or otherwise, around the world. And finally, I want to just make a final comment about Gaza, which of course has seized our attention so much particularly since October 7. What I have found disconcerting in analyzing this from an international law perspective is that I found myself in October-early November, rather easily stating principles of law pertaining to the right of self-defense, how one engages on a daily basis in combat in terms of recognizing principles of law that focus on proportionality, distinction, necessity, humanity, in how one wages combat between two combating forces. And to keep the fate of the civilian population, you know, front and center in how you engage on a day-by-day basis in combat. International lawyers, military lawyers, we can all talk about this. And there are lots of principles. It’s sort of a microscopic aspect of international law. We’ve got the Geneva Conventions of 1949. We’ve got the 1977 protocols to them. We have the Rome Statute of the International Criminal Court. We’ve got the statutes of the other tribunals of the last thirty years, all focusing on how, particularly judges, would determine, have war crimes been committed? Has a crime against humanity been committed? Has genocide been committed? That can all be determined on a sort of classic, day-by-day basis. It’s very granular. It can get very, very granular, in the courtroom particularly. But what international does not have—international law has not done yet is what we see in—what we haven’t accomplished a structure for yet is what we see really unfold in Gaza, whereby even if one can justify a daily use of military force, there has to be some structure in international law that defines the totality of what is occurring, and whether that is justifiable under law. Namely, how long does a military assault take place in Gaza, against what collection of targets, with what impact on the civilian population? At what point would international law step in and say: There is a red line here that you cannot cross any further. We don’t have that kind of structure in international law. It’s not there. That has to be a political decision. And you see that being played out now in the news, with the United States becoming more concerned, obviously, about the humanitarian situation there. Sort of coming late to the party. And the rest of the world being somewhat outraged by it. And yet in law, we don’t really have that structure for that totality analysis. And whether or not, when you start a conflict if you want to comply with international law—and, of course, you know, one could argue Hamas has no intention of complying with any law at all, so it’ll just proceed as it sees fit. But if you’re a law-abiding force, then you might sit down and say, well, over the next two to three months if we use military force in the following way in order to defeat Hamas, what does that mean in terms of the totality of the destruction, the totality of deaths, the totality of injuries? And where does it leave the population at the end? Are they in a state of starvation? You know, what do we anticipate? Does law give us any guidance here? And so, I just want to put that position down on the table, that I have found it somewhat frustrating that in analyzing the humanitarian emergency of Gaza, international law helps to some extent it just doesn’t go far enough in giving us guidance beyond that. It really becomes very much a political dynamic, as opposed to a strictly legal one. So let me leave it at that for my little introduction and let’s dive into it. People are free to share a comment or two. I strongly encourage students to participate. This is for you, the students, primarily. And so we want you to participate. Do not be shy. And obviously, we’ve got many other distinguished faculty members, deans, et cetera, on. And I welcome all of you for comment, for questions, but everyone should keep it short so that we can get as many people as possible. So I turn it over to Maria. CASA: Thank you, David. (Gives queuing instructions.) We will start out with a question from Jonathan Cristol, adjunct assistant professor of political science at Yeshiva University. Jonathan. You have the unmute prompt to accept. Oh, we can come back to you later, Jonathan. Let’s go to Stephen Kass, adjunct professor at the Center for Global Affairs at New York University. Q: Thank you, Maria. David, thank you so much for this very modest, self-effacing series of comments, and for all the great work you have done for the world. My question is not about the second subject, Gaza, but about the first. You raised the R2S suggestion. The problems of conflict, and climate change, and economics that are driving the migration and the humanitarian crises you focused on are hard to pin on particular leaders. In fact, it’s the international community that, to a very considerable degree, has flooded the world with arms, and certainly has led to the extraordinary climate impacts that are driving people off their land. I agree that corruption is an issue, but it seems to me hard to pin responsibility for the first two significant causes of these crises on individual leaders, particularly in the developing world. SCHEFFER: Stephen, I accept the premise of your question. I would simply add that really what I’m focusing on are those leaders that self-initiate, in particular, armed conflicts that drive—that are sort of power-seizing conflicts internally that drives so much of this. I mean, I could—you know, the Myanmar military would be, you know, sort of candidate number one. But even on climate change, et cetera, I mean, I would look back at the presidency of Mr. Bolsonaro in Brazil, and ask during—you know, during his term what did he do with respect to climate change challenges in Brazil that either exacerbated the situation there or, you know, diminished them? Not necessarily for purposes of legal culpability, but I think to call them out, to essentially almost shame them under old human rights principles of shaming. That they were part of the problem and not part of the solution. So it’s—I accept exactly what you’re saying. I’m just saying that I still think there should be some focus on the responsibility of leaders to get it as right as possible while they’re in governance, and not to sort of cross what I would call as red lines that clearly exacerbate situations that that can lead to humanitarian emergencies. That’s my basic point. CASA: Thank you. Your comments on burden shifting has interested our audience. We have two written questions that I’ll put together for you. One is from Fodei Batty, professor of political science at Quinnipiac University, who says: Dr. Scheffer points out leaders who dump their problems, burdens, responsibilities on the rest of U.S./international community. But don’t such bad leaders do so because the rest of the international community is complicit in their actions? Every bad leader has a powerful friend somewhere in the international community who offers them some level of protection because of their own national interests. How do you go around the problem? Should great powers be more responsible in who they regard as friends and who others consider bad leaders? And second to that is a written question from Elke Zuern, professor of politics at Sarah Lawrence College, who writes: My class is interested in a bit more detail on your interesting point regarding burden shifters. SCHEFFER: Right. Well, let me—let me answer both of them. I think what you’re identifying is a clearly acknowledged point, which is the double standards involved. And I’m extremely conscious of that. The Global South in particular I think today looks at the actions of the major powers—whether it be China, Russia, the United States, the European Union—and their responsibility for climate change over the decades, and also for economic issues that they perhaps could have had much greater influence in solving rather than exacerbating, whether it be almost, you know, punitive tariff regimes, et cetera, that put a great burden on developing economies. So I get it. I’m not trying to exclude the great powers from burden shifting. And I know it’s probably controversial to sort of place the United States in yet another position of responsibility in the world, but I think we always are recognizing the contribution the United States made, unfortunately, to climate change, and also to economic situations in various parts of the world that we try to solve, but that we also have to recognize sometimes we’re the cause of, at least partially, in the beginning. So yeah, it’s not—I mean, I’m not trying to establish legal accountability. I’m just trying to say that there must be a recognition in governance. What is governance of a society? What does it comprise of? Does it comprise, regardless of double standards or whatever, dumping these problems on other countries? Is that good governance, or is that bad governance? How does one define governance today? It might sound a little simplistic, but I see it every day in the news. And so, I think that gets to the second question that I just want to emphasize. I find that in almost everything that I approach these days with international parties—whether they be in academia, in government, in journalism—that the double standards argument is constantly being made. For example, I have tried for two years just on my narrow beat of the world—international criminal law—to work with others to construct a special tribunal on the crime of aggression against Ukraine. And yet, it has proven so difficult to do that because of the allegation of double standards, particularly by the Global South. That we’re paying attention to what has happened in Ukraine as opposed to paying attention to what has happened elsewhere in the world, even with respect to the crime of aggression. And in particular for the United States, you know, the first utterance is, well, what about the Anglo-American invasion of Iraq in 2003? Please explain. So that comes up again, and again, and again. And it’s a very, very difficult hurdle to jump. CASA: Thank you. We will take the next question from Clemente Abrokwaa, associate teaching professor at the African Studies Program at Pennsylvania State University. Clemente. Q: Thank you so much for your insightful talk. I have two short questions. And the first one is, the numbers that you mentioned, regarding the humanitarian crisis and so on, I could tell that—we could all tell that a greater number of it is from Africa. And I wanted to know why that is so. And second—my second question also is—echoes the first speaker, that mentioned about by the flooding of the—of guns or weapons at the international level that goes into Africa, and elsewhere. I know that Africa is—you know, they don’t really manufacture these guns. They buy them. So how can that be checked? Yeah, so basically those are my two questions. Thanks. SCHEFFER: Well, thank you so much, Clemente. I will do my best to answer these. In terms of their first question, what we have seen in the last year in particular in Africa is the tumult and somewhat the collapse of democratic governance and stability in the Sahel region of Africa, the middle part of Africa. One country after another. And those countries are all popping up on the Humanitarian Emergency Register now. And it is driven by internal power struggles, internal armed conflicts. I don’t think I would—I mean, I could be proven wrong on this—but I don’t think we’re looking in the Sahel necessarily at cross-border armed conflicts. I think almost everything there right now is internal. I could be proven wrong on that. But, of course, you have the outside influence, particularly of the Wagner Group from Russia, and other nonstate actors, are ginning things up in the Sahel. And I think that shows the increased focus on Africa in the humanitarian emergency space. As far as the weapons are concerned, I have found it rather ironic—and sort of understandably ironic, but still ironic—that when it comes to the flow of weapons, on the one hand we have an intense need—at least many of us would argue—for there to be arms manufacturing and arms transfers to Ukraine to defend itself from Russian aggression. That has—you know, in the human rights community we normally and naturally argue for regulation of arms transfers, for limitation of arms transfers. All of this is bad. However, in the last couple of years, I’ve seen a very clear shift in attitudes, whereby, frankly, the task of saving humanity actually requires manufacturing arms and delivering them to countries in need who are acting in self-defense. And we didn’t really—you know, we didn’t have an adequate capacity to do that when the Ukraine war of 2022 broke out. And we’ve been catching up ever since. I mean, the stories out of Europe with trying to regalvanize their arms manufacturing plants, building new ones in order to meet this need—not only for Ukraine, but also in the future for the defense of Europe under NATO—is all an arms manufacturing, arms transfer issue. And of course, here in the United States it’s a huge issue now of gearing up the arms industry and paying them with public funds to actually provide all of these arms. So then you come to Africa. And unfortunately, the spillover is a lack of focus on regulating arms transfers. There’s a treaty out there on arms transfers that is more or less been—you know, has laid fallow now. But it just means the focus has turned away from actually regulating arms transfers to ramping up arms manufacturing, and presumably legitimate transfers. But I think the blowback is, in Africa, you’re going to see a lot of that just gin up more availability of arms for conflicts, particularly non-international armed conflicts, which are not helpful to peace, security, stability, and good governance in Africa. So I’ll leave it there for that answer. CASA: Our next question is a written one. It comes from Zoe Hughes, a graduate student at Stanford University: What value do legal frameworks of war hold in the now, if the global audience cannot confidently assess in the now proportionality and necessity? How do you recommend the global audience factors the laws of war into their response to wars? SCHEFFER: That’s a very, very good question, because it makes even my job very difficult too. In other words, on a day-by-day basis how am I supposed to assess, sitting here in Washington, DC, the extent to which the Israeli Defense Forces have complied with the law of war and international humanitarian law yesterday in the conflict? How do I understand what Hamas has or hasn’t done in that respect? It’s very, very difficult for the public to know what, ultimately in a courtroom, would be the evidence of whether or not a military force has complied with the standard principles—which we do have in customary international law; we have it in rules of engagement, et cetera—of, proportionality, namely you don’t kill more civilians than is absolutely necessary to get at the military advantage of hitting that combat force you’re trying to hit at, and necessity, that the object here is to go after Hamas and no one else. And distinction, between trying to identify between civilians, and, in this case, Hamas. If they’re in a residential building, do you know who’s the civilians and who are the Hamas fighters? How do you calculate that? And if they’re firing back at you out of one window, what’s the story with the window on top? Is that fair game? Who knows? Those are determinations of distinction. And then just basic humanity, which sometimes the military describes as fighting with honor. Namely, yeah, there’s an enemy. There’s combat. But there’s also the honor of doing it in a way that complies with law and, of course, preserves the civilian population to the greatest extent possible. I think my point is, when I say, “the civilian population to the greatest extent possible,” yes, on any given day, with any given strike. But the question is, are you asking the larger—I mean, does one ask the larger question of, at what point is the civilian population, frankly, perhaps of more significance than totally defeating the enemy? Literally, at what point does that red line get crossed? And so that would be my response. CASA: Next question comes from Otávio Cunha, an undergraduate student at Lewis University, who writes: With respect to the humanitarian crisis in Gaza, what role, if any, is the United Nations Security Council playing in addressing the situation and promoting a peaceful resolution to the conflict? SCHEFFER: Well, they have—they have been convening and holding sessions, and resolutions have been introduced calling—particularly those introduced by almost everyone other than the United States—call for a full ceasefire. And I think in the minds of many of those who introduced those resolutions, a permanent ceasefire. Now, the United States, as you probably know from reading the news of the last few weeks, has been shifting its position now to this term “ceasefire.” I think has been somewhat confusing for the general public because I think most of the public sees ceasefire as a permanent thing. Whereas you can have a temporary ceasefire for humanitarian purposes as well, and it’s still a ceasefire, but for a temporary period of time. And that’s really what the United States has been supportive of. And I know that Vice President Kamala Harris recently emphasized in Selma on Sunday that the United States supports a temporary ceasefire of six weeks to get this humanitarian situation under control and to get the hostages returned. Those are the two big, you know, priorities. But it’s that dispute within the Security Council over are you permanently ending the war or are you just temporarily. The United States has not been prepared yet to say under Chapter Seven authority of the UN Charter under the Security Council, Israel must completely, permanently cease all combat actions in Gaza. Why? Because of the threat of Hamas. But that is not how the rest of the Council sees it. And since the United States has a veto, there remains somewhat of a gridlock. But it is possible, ultimately, to work our way out of that gridlock in the Security Council if we sort of do two things, from the United States perspective. One, just to almost ignore what the Russian ambassador is saying. He’s there to score points, as hypocritical as it is. And, you know, he’s just going to say whatever he wants to say. And let’s not get too worked up about it. But I think the other point is that we can actually start to use our leverage within the Security Council I think to get, if I may put it this way, Israel to the right place on all of this. And to make it clear that, you know, we’re not simply going to follow directions from Tel Aviv in terms of how—or, Jerusalem—in terms of how to conduct ourselves in the Security Council, because we need to meet the priorities that are in the best national security interests of the United States. At this time, I would describe them as, obviously, the security of Israel, but also the humanitarian survival in good order of the Palestinian population in Gaza. And the two of them are going to have to come together as twin objectives and to be achieved as twin objectives. It’s not binary. It’s not one or the other. It has to be both. And that’s what the U.S. has to keep pressing for and persuading other Security Council members to buy into to that formula. And, of course, part of that formula, if I may say, is the end game, which is moving towards a negotiated outcome to all of this that resolves, in large part, this situation that is triggering so many humanitarian emergencies. And to solve it, shall we say, quote/unquote, “once and for all.” CASA: Thank you. We have a lot of written questions. We would love to hear your voices. So please, don’t be shy about raising your hand and asking them verbally. In the meantime, we’ll go to Evan Maher, undergraduate student at Buffalo State University, who writes in, asking: We have heard a lot about Palestine and Ukraine in the media lately. Why do you think that these receive so much attention while others, such as the conflict in Sudan, are also popping up? Would you say that it is due to these issues being in nations which the U.S. and the rest of the Western world interact with more? SCHEFFER: Well, I would say that answers—or, the answer you provided more or less explains it. But I would take you back to, you know, there was a time in 2003, when the situation in Darfur was at the top of the list of attention by even the United States government. And that was in Africa. It was in Sudan. It was a genocidal situation in Darfur. So, it’s not as if just because something is in Africa it will not accord attention. I do think that it’s being out-competed by the urgency and, you know, the attention by everyone on what’s going on in Gaza, and before that, in Ukraine. I mean, even the media exposure of what is occurring in both locations—in both regions is swamping us, particularly with Ukraine. And then once journalists could get closer and closer to see what’s going on in Gaza, it just—you know, there’s a shock value to that every single day. And politicians and government officials have to react to that. That’ll be issue number one at the morning meeting, you know. And you just—there’s no way of avoiding it. And that means that it’s going to be prioritized for action. But it also explains why you see someone like Secretary of State Blinken, even though there’s the continuing war in Ukraine, the conflagration in Gaza and Israel, you still see that he has to do his job dealing with other issues in the world, whether it be traveling through Africa, or traveling through South America. He does that, even in the midst of all of this, in order to address those issues. But I have to acknowledge the point of the question, which is right now, the worst humanitarian disaster, emergency in the world is in Sudan. That’s where it’s happening. It’s also in Gaza. It’s also in Ukraine. But just in terms of sheer numbers, it’s in Sudan. And the modest proposal I’ve made, because I work the law beat on these things, is I do not understand why the United States is not taking a clear initiative in the Security Council to address charges of genocide in Darfur under the authority of the original referral by the Security Council of Darfur in 2005, I think, to address the issue of accountability for that crime. Well, that’s still on the books. It’s still alive and active. It can be reenergized, reactivated for the current situation that is hitting Darfur. And so that’s a way for the United States to say, yeah, we recognize everything else going on, but we need to get back to a problem that has reignited. And that is genocide in Darfur. And it needs to be dealt with by this Security Council, in part to support the work of the International Criminal Court, which has been investigating the 2003 genocide and issued indictments with respect to it. But the United States can bring that to the forefront again and seek action in the Security Council. CASA: We will now take a question from JY Zhou, who is executive director of the Center for Global Engagement at James Madison University. JY. Q: Hi, can you hear me? CASA: Yes. Q: Hi. My name is Chris Nelms. I’m a student here at James Madison University. And my question is, you mentioned the list of the twenty countries that are facing the humanitarian crisis. I wanted you to know if there were nations on that list—or that are there were countries that have left that list, and how they succeeded in getting off that list, and how other countries can learn from that. Thank you. SCHEFFER: Yeah. Well, one of them, although it’s in the second ranking now, is Yemen. Three or four years ago, we put Yemen at the very top of the humanitarian emergency list. But there has been a truce in the armed conflict in Yemen. And, of course, this is where, as you know, the Houthis are operating in order to cripple the commercial shipping through the Red Sea in protest of what’s going on in Gaza. But nonetheless, despite the Houthi, frankly, attention to those kinds of issues, the humanitarian emergency in Yemen, while it’s still there, has greatly receded, and is not even in the top ten anymore. It’s in the top twenty. So, I think I’ll leave it at that example. I don’t think, for example—well, I was going to say one that I see is now there. I think the interesting thing is what has newly arrived on the list in the top twenty, and that’s Ecuador. Who would have thought, you know? But the situation there is quite dire now, politically, and also with armed gangs and stuff. So that’s a very difficult one. And, by the way, I would also just make an editorial comment about Haiti, which is in the top twenty. Not the top ten, but the top twenty of the IRC list. It is—it’s not as if millions or thousands of people are being displaced in Haiti. They honestly don’t have very much territory to go to, even if they were. But rather, it’s the state of life in Haiti as controlled by the gangs as opposed to a government in Haiti. And there’s—just to go back to the last question on the Security Council—the Security Council has been laboring for a long time now, to try to get some kind of law enforcement capacity into Haiti. Kenya offered peacekeepers for that purpose. And then there’s been some backtracking. Everything is now under discussion again. But I have always thought, you know, because I dealt with Haiti during the Clinton administration and saw it upfront. I’ve always thought Haiti really is a special responsibility of the United States. It’s in our neighborhood. It was the first real surge of democracy in the western hemisphere. And we have a lot of immigrants from Haiti. And I just think if this country were to have some special responsibility for any particular nation in the world—in other words, responsibility to respond, to deal with the problems, to address the problems of Haiti, it’s the United States. And I’ve always been a little distressed that we don’t have a greater push domestically to address this terrible emergency that’s taking place quite close to our shores. CASA: Ambassador Susan Page’s class at the University of Michigan is joining us, and they’ve written in: What do you think a new international law defining totality would look like? More specifically, would it be another atrocity crime or under a different designation? SCHEFFER: Right. I don’t know if I would list it as an atrocity crime, per se. I think you might be able to get there eventually. But I would like to see something a little more towards the state responsibility construct to begin with, as opposed to just trying to pinpoint this on individual criminal responsibility. I would like to see more of a state responsibility treaty of some sort, whereby nations agree—it’s sort of like an extension of the Geneva Conventions of 1949, but primarily on a state responsibility platform. So that governments are on notice that once they go down this path of armed conflict, there needs to be a greater sense of the totality of the conflict and what their responsibilities are to acknowledge the realities of that totality, and not try—to put it quite bluntly, you don’t want to slaughter humanity in order to save humanity. There’s got to be a better balance. And I think it’s an excellent question. And don’t assume I’ve thought this all through. (Laughs.) This has really occurred to me, frankly, from the Gaza experience of the last several months, that we have this great gap in international law. And I do think it could be filled with a better attention to what do we need more than just the Geneva Conventions in terms of a focus on the entirety of the conflict? CASA: We have a raised hand now from Charlotte Langeveld, college lecturer at Ocean County College. Charlotte. Q: Yes. Hi. Thank you for taking my question. And thank you for hosting this session. It’s very informative and important. I worked as a humanitarian aid worker in the Sudan from about 1998 to 2001, and I saw the brewings of the genocide. And, you know, I didn’t see it happen. And I left and I saw it happen. And I’m like, oh, makes sense because, of course, there’s a lack of resources that people begin to fight over. In this case, I believe it’s water. And then—it was water, and then you had, you know, different ethnic groups from the north, and the animist Africans’ land being trashed, villages, et cetera. I just wonder, do we need to look at the political economy, the global political economy, and figure out how to stop gold as being the interest, then conflict minerals in the Congo? And, I don’t know, because as long as governments and corporations are connected, how is the United Nations going to make a difference in trying to address these things? I’m sorry, I’m a little passionate, but there you go. SCHEFFER: Thanks, Charlotte. Very, very, very good question. And, you know, one of the readings that we assigned is by my friend John Prendergast, “Dirty Money is Destroying Sudan,” from February 27, only a few days ago in Foreign Affairs. And that article points to the very point that you’re making, which is that the source of a lot of the trouble in Sudan is, frankly, a race for gold. And those who are trying to influence that, and money laundering, and, you know, countries like the United Arab Emirates that are just knee-deep in—obsessed with the gold of Sudan. So that’s all very, very important. But it actually gives me an opportunity to make a larger point, which is I’ve spent, oh, gosh, thirty years on not only accountability for atrocity crimes, but also the huge challenge of prevention of atrocities. And so there’s a lot of focus on that. You know, how do you prevent atrocities from occurring? Is it an armed conflict, where you can prevent war crimes from, you know, being the sine qua non of every day of fighting, et cetera? So that’s—we’ve got a lot of history with prevention of atrocities. But we don’t have that same kind of sharp focus on atrocity—on prevention of a humanitarian emergencies. We respond to humanitarian emergencies. And there’s a huge school of thought and practice on how do you most effectively respond to humanitarian emergencies, whether it be the provision of food, dealing with refugees, employment issues, you know, political settlements that return refugees to their homes and their countries, et cetera. All of that is part of dealing with humanitarian emergencies. But I’m not aware of a kind of a school of thought out there where we place a lot of focus on, well, wait a minute, how can we prevent this humanitarian emergency from occurring? We see it coming. And, yes, there will—there are—even the IRC report, if you were to look at it, will say, yes, we need to have, you know, better educational issues dealt with, we need to have better economic relations established, you know, better farming techniques—I mean, all sorts of things to address what could be a humanitarian emergency. And, of course, we need to deal with climate change. But I don’t see it as a coherent sort of school of thought, or there’s no academy of prevention of humanitarian emergencies that I’m aware of. I could be proven wrong. It certainly has not come to my attention. Because I’ve been so immersed with prevention of atrocities that it occurs to me that one could also address prevention of humanitarian emergencies. CASA: Thank you. I think we can squeeze in one more question. Sebastian Kandakudy is an undergraduate student at Lewis University. Sebastian. Q: Hi. My question is, how should global actors navigate a delicate balance between the living essentials, humanitarian aid to vulnerable populations, and avoiding unintentional bolstering of oppressive regimes or prolonging conflicts in negotiations over aid access? SCHEFFER: Yeah. Let me take one prong of your question, if I might. Which is, unfortunately, the reality of responding to humanitarian emergencies so often rests upon, you know, negotiating and getting relief to the oppressed, to the population that is in dire need of it. But in doing so, one can be bolstering the very regime that is causing the problem, because—that’s part of my burden shifting argument. That, yeah, I know, we got to—we got to accept the burden now, and deal with this, and basically save your people because it’s our responsibility as decent international actors to do so and through our allegiance to, you know, the United Nations principles, our participation in the UN High Commissioner for Refugees, et cetera. But at the end of the day, it can actually be a facilitator for the survival of the very regime that’s causing the problem, because it doesn’t have to deal with the problem anymore. So I think I probably should leave it at that, Maria. A very rich subject to talk about. CASA: Thank you. I’m sorry we can’t go to the rest of the questions. But, David, thank you so much for speaking with us today, and to all of you for your questions and comments. The next Academic Webinar will take place on Wednesday, March 27, at 1:00 p.m. Eastern Time. Moisés Naím, distinguished fellow at Carnegie Endowment for International Peace will lead a conversation on authoritarianism. In the meantime, I encourage you to learn about CFR paid internships for students and fellowships for professors at CFR.org/careers; follow @CFR_Academic on X; and visit CFR.org, ForeignAffairs.com, and ThinkGlobalHealth.org for research and analysis on global issues. Thank you again for joining us today. We look forward to tuning in for our next webinar on March 27. (END)
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    Three Challenging Policy Issues for the Prosecutor in the Israel-Hamas Situation
    The chief prosecutor of the International Criminal Court (ICC),[1] Karim A. A. Khan,[2] faces several challenging policy issues in the months ahead regarding the Israel-Hamas situation.[3] In this comment I examine three of those issues. I. Role of the Prosecutor Prosecutor Khan made two particularly important public statements about the Israel-Hamas situation following October 7, 2023. The first was an address he delivered in Cairo on October 29, 2023, the text of which was published in The Guardian on November 10, 2023.[4] Khan’s address in Cairo immediately followed his visit to the Rafah crossing at the border between Gaza and Egypt. Khan was quite expansive in Cairo about the obligations of the contentious parties and how they can be held responsible under the Rome Statute. His remarks were aimed at both Israel and the State of Palestine (Palestine), including Hamas. Khan’s second statement occurred on November 17, 2023, in The Hague when he announced the referral by five ICC States Parties of the Israel-Hamas situation to the ICC.[5] These are the same countries (South Africa, Bangladesh, Bolivia, Comoros and Djibouti) that filed a case[6] under the Genocide Convention[7] before the International Court of Justice on December 29, 2023, seeking to hold Israel accountable under that Convention and requesting provisional measures against Israel. In his statement, Khan confirmed that he was extending his investigation (initially commenced on March 3, 2021 concerning “acts committed since June 13, 2014 in Gaza and the West Bank, including East Jerusalem, which would constitute crimes under the Rome Statute.”) “to the escalation of hostilities and violence since the attacks of October 7, 2023. In accordance with the Rome Statute, my Office has jurisdiction over crimes committed on the territory of a State Party and by nationals of such a State.” He called “on all States Parties to the Rome Statute to provide us with the resources we need to enable us to effectively fulfill our mandate for all situations we examine.” In my view, Khan need not and should not say more publicly other than cryptic confirmations that his investigations continue. He needs to build trust among a wide range of governments, many of which are non-party States of the Rome Statute, such as Israel, the United States, Turkey, most Arab countries, and influential nations like China, Russia, India, Pakistan, Iran, Iraq, and Indonesia. These countries need to understand that his office is investigating objectively, with no political agenda, and that those investigations will proceed under the auspices of a Court that they have not joined. That trust will be attained with communications in private and diplomatic channels. There will be more than enough to say publicly in the event the ICC issues arrest warrants in this situation. Further, Khan likely is reaching out to several non-party States, particularly the United States and Israel, for cooperation in the collection of evidence, including from intelligence sources. In his statement of November 17, 2023, he missed the opportunity to highlight the importance of cooperation from non-party States, particularly those with unique capabilities. He nonetheless should explore those opportunities quietly and diplomatically with such countries. Since the United States is cooperating with Khan on the provision of intelligence relating to the Russia-Ukraine war (fought between two non-party States of the Rome Statute), there will be protests of double standards unless Washington acts in a similar fashion regarding the Israel-Hamas war (fought between Hamas, part of one State Party, the State of Palestine, and one non-party State, Israel).[8] The best way for Khan to address that politically sensitive issue with the United States will be to do so discreetly and tactfully in the months ahead. II. Article 18 Notification Khan may have acted already in this respect, but just to check the box: Pursuant to Article 18 of the Rome Statute, the Prosecutor presumably has notified Israel, in particular, of the investigation now underway regarding the Israel-Hamas situation.[9] That is an important notification as it should incentivize Israel to demonstrate that it is investigating, for example, claims of war crimes allegedly committed by the Israel Defense Forces (IDF) and the Israeli political leadership as well as public statements by government and military officials allegedly inciting genocide. Khan should privately encourage Israeli officials to undertake a comprehensive domestic investigation of Israeli actions. Granted, this will be a difficult step for Israel whose population is traumatized by the October 7 intervention and atrocities by Hamas militants.[10] Most Israelis at this point will have little tolerance for self-reflection about the conduct of the IDF.[11] But everyone will need to recognize the important role for the rule of law being followed by all actors. While under Article 18(3) of the Rome Statute the Israeli investigation would be “open to review by the Prosecutor six months after the date of deferral,” if the Israeli investigation is being undertaken in good faith and diligently, then Khan should use his discretion under his own “review” to extend the period of time that Israel would continue to conduct its domestic investigation prior to continuing his own full-scale investigation. This would conform with principles of complementarity under the Rome Statute. Khan also presumably has delivered an Article 18 notification to the State of Palestine, whether that means to officials of the Palestinian Authority or the Palestine Liberation Organization. Such notification might prove pro forma as the judicial system in Palestine likely would struggle with any widescale investigation.[12] However implausible the procedure, nothing prevents officials of Palestine seeking foreign assistance, including even from Israel, to investigate the actions by Hamas on Israeli territory on October 7 and in the use of human shields during the combat in Gaza, the taking and holding of hostages in Gaza following the October 7 assault, and the commission of any other war crimes under the Rome Statute. All of these acts presumably will be under investigation by Khan, so Palestine has the choice whether or not to weigh in with its own investigations of Hamas’s conduct. Palestine should be as mindful of complementarity, and the risks of ignoring it, as any other State Party of the Rome Statute. III. Negotiated Settlement Khan and his staff should be strategizing how he will navigate any evolving diplomacy for a negotiated settlement among Israel and Palestinian representatives (however composed among the Palestinian Authority, Palestine Liberation Organization, and/or Hamas) and major foreign players such as the United States, key Arab states, the European Union, and the United Nations. Every party to those talks, other than probably Israel as long as Israeli Prime Minister Benjamin Netanyahu remains in power,[13] will insist on the two-state solution[14] as a major objective. What will be the fate of international criminal justice in such talks? There might be strong pressures to keep justice issues completely separate from the diplomatic talks. Given the allegations and disinformation swirling around October 7 and the aftermath, it might prove very problematic how justice would even be discussed among the negotiators.[15] Isolating accountability for atrocity crimes from peace objectives would leave Khan free to pursue his investigation and uphold the prospect of ICC arrest warrants. Such segregation of justice from peace, however, may prove implausible, as the two goals of peace and justice seem destined to become intertwined given the way atrocity crimes presently dominate the situation both on the ground and in international courts, namely the ICC and the ICJ. But if the segregation of peace from justice is the chosen path, then Khan simply could plod his way through investigations and ultimately persuade the Pre-Trial Chamber of the ICC to approve arrest warrants, and then let the chips fall where they may. The more likely prospect is that justice will be factored into negotiations that center on permanently ending hostilities and forging a two-state solution. The victim populations of atrocity crimes will expect justice to be addressed in the talks and doubtless will protest strongly the absence of accountability in the settlement. But the negotiations will compel tough decisions on modifying perfect justice with imperfect justice (or none at all) in order to reach the two-state solution. Khan may choose to engage with the negotiators in order to preserve the ICC’s equities. It would not be surprising if one or more of the following options arise during the talks: First, Israel and Palestine could agree, upon normalization of relations, to enter into a non-surrender agreement described by Article 98(2) of the Rome Statute whereby neither country would surrender an individual under an ICC arrest warrant to the ICC without gaining the consent of the “sending State” of that individual.[16] Such an agreement would not be so different from probable realities. As a non-party State, Israel would not want to surrender anyone, and particularly not an Israeli citizen, to the ICC. Palestine would want to avoid the surrender of any individual (most likely from Hamas) within Palestine to the control of the ICC. While such an agreement would impair the ICC’s power to prosecute alleged perpetrators of atrocity crimes in the Israel-Hamas situation, the Article 98(2) non-surrender agreement could become a compelling means in the negotiations to essentially take the ICC off the table and focus on the two-state solution. Nothing would prevent ultimately bringing Hamas leaders to justice in Israel if captured and brought to Israel to stand trial in Israeli courts. Israel, almost certainly, would never immunize them from possible prosecution, particularly for the atrocity crimes perpetrated by Hamas on October 7. In a conditional reciprocal fashion, future Palestinian courts might try to prosecute Israeli citizens for actions taken prior to the peace agreement unless explicitly deprived of that power in the peace agreement as a pre-condition to Israeli recognition of the State of Palestine. These would be difficult trade-offs to negotiate, but they need not necessarily implicate Khan and the ICC as these issues focus on justice rendered by national courts (Israel or Palestine) and not the ICC. But Khan should factor in any such developments in his review of complementarity efforts, if any, by prosecutors and courts in Israel and Palestine. Finally, the negotiations for the end of hostilities and implementation of the two-state solution could raise the prospect of the UN Security Council acting in a manner consistent with the objective set forth in Article 16 of the Statute, namely that: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of twelve months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.[17] Israel and Palestine may find this option attractive during the negotiations so as to shelve the ICC for at least one year, perhaps more, if that would mean achieving a permanent end to hostilities and the co-existence of two nations—Israel and Palestine—engaged in normalized diplomatic relations. The prospect of constructive negotiations leading to promises of international financing to rebuild Gaza and to strengthen the economy of Palestine could be a tempting objective that negotiators would be willing to prioritize over speedily achieving criminal justice of leading individual perpetrators of atrocity crimes. In order to reach a final peace settlement enshrining the two-state solution, the five permanent members of the Security Council might find common cause in adopting a Chapter VII resolution (with sufficient non-permanent member votes) that prevents the ICC from continuing its investigation or prosecution of atrocity crimes in the Israel-Hamas situation under the terms of Article 16 of the Rome Statute. Russia and China might see political value in shielding Hamas officials from ICC scrutiny, and the United States, United Kingdom, and France might see equal political value in shielding Israeli officials from ICC investigation. Khan will need to keep a very keen eye on negotiations that may unfold in the coming months and weigh to what extent he should personally intervene at any point during those negotiations to respond to proposals pertaining to Article 16 or Article 98(2) or other provisions of the Rome Statute. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy. Endnotes ^ “International Criminal Court,” International Criminal Court, accessed February 7, 2024, https://www.icc-cpi.int/.  ^ “Karim A. A. Khan KC,” International Criminal Court, accessed February 7, 2024, https://www.icc-cpi.int/about/otp/who-s-who/karim-khan.  ^ Vusi Madonsela, letter to International Criminal Court Prosecutor Karim A. A. Khan KC, November 17, 2023, https://www.icc-cpi.int/sites/default/files/2023-11/ICC-Referral-Palestine-Final-17-November-2023.pdf.  ^ Karim A. A. Khan, “We Are Witnessing a Pandemic of Inhumanity: To Halt the Spread, We Must Cling To the Law,” The Guardian, November 10, 2023, https://www.theguardian.com/commentisfree/2023/nov/10/law-israel-hamas-international-criminal-court-icc.  ^ “Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan KC, on the Situation in the State of Palestine: Receipt of a Referral From Five States Parties,” International Criminal Court, November 17, 2023, https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine.  ^ “The Republic of South Africa Institutes Proceedings Against the State of Israel and Requests the Court to Indicate Provisional Measures,” International Court of Justice, December 29, 2023, https://www.icj-cij.org/sites/default/files/case-related/192/192-20231229-pre-01-00-en.pdf. ^ “Convention on the Prevention and Punishment of the Crime of Genocide,” conclusion date: December 9, 1948, United Nations Treaty Series, registration no. I-1021, https://iccforum.com/genocide-convention.  ^ “The Republic of South Africa Institutes Proceedings,” International Court of Justice. ^ “Rome Statute of the International Criminal Court,” opened for signature July 17, 1998, UN Doc. A/CONF.183/9, Art. 18, https://iccforum.com/rome-statute. ^ Noa Limone, “‘A Multilayered Trauma Is Affecting Israelis in the Wake of October 7,’” Haaretz, December 2, 2023, https://www.haaretz.com/israel-news/2023-12-02/ty-article-magazine/.highlight/there-is-a-multilayered-trauma-taking-place-in-the-wake-of-october-7-its-infectious/0000018c-2774-d04a-af9f-f7f6ddf30000.  ^ “Widening Mideast Crisis: Blast That Killed About Twenty Soldiers Linked to Israeli Effort to Create Gaza Buffer Zone,” The New York Times, last updated January 24, 2024, https://www.nytimes.com/live/2024/01/23/world/israel-hamas-gaza-news.  ^ “Judicial Systems in Member States - Palestine,” Euro-Arab Judicial Training Network, accessed February 7, 2024, https://www.eajtn.com/judicial-systems/palestine/. ^ “Widening Mideast Crisis: U.S. Official Heads to Middle East for Talks on Hostages,” The New York Times, last updated February 6, 2024, https://www.nytimes.com/live/2024/01/21/world/israel-hamas-gaza-news-iraq#netanyahu-rebuffs-biden-again-on-the-idea-of-creating-a-palestinian-state. ^ “Israel-Palestinian Conflict: What Is the Two-State Solution and What Are the Obstacles?” Reuters, January 26, 2024, https://www.reuters.com/world/middle-east/what-is-two-state-solution-israel-palestinian-conflict-2024-01-25/.  ^ Elizabeth Dwoskin, “Growing Oct. 7 ‘Truther’ Groups Say Hamas Massacre Was a False Flag,” The Washington Post, January 21, 2024, https://www.washingtonpost.com/technology/2024/01/21/hamas-attack-october-7-conspiracy-israel/.  ^ “Rome Statute,” Art. 98. ^ “Rome Statute,” Art. 16.
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