Please note: the views expressed within are part of an intellectual exercise and do not necessarily reflect the personal views of the author.

The American role in establishing peace between Egypt and Israel in 1979 was largely one of mediation. President Jimmy Carter persisted in urging the two countries’ leaders toward compromises. Carter was personal and friendly, and he constantly emphasized how close they were to reaching a peace that would change the world forever, and how much of a shame it would be if the talks fell through.

Carter facilitated key compromises between Egyptian president Anwar Sadat and Israeli prime minister Menachem Begin, most notably involving the United States on the issues of Israel’s oil supply and the future of Gaza and the West Bank. Unfortunately, the agreements had a limited effect on the Palestinians, though this was not the priority of any party. The peace treaty has maintained the peace between Egypt and Israel; it has benefitted both countries economically and militarily; and it has strengthened both countries’ relations with the United States.

From the start of his presidency in 1977, Jimmy Carter was determined to make progress on the Arab-Israeli conflict. Carter first attempted, though failed, to reconvene the 1973 Geneva conference.[1] Then in November 1977, Sadat made an unprecedented visit to Jerusalem to address the Knesset and try to advance the Arab-Israeli peace process. At this time, Egypt and Israel had been in a state of war for nearly 30 years, since the establishment of Israel in 1948.

Although Sadat was welcomed in Israel, Begin remained steadfast in his policy.[2] Despite Begin’s resoluteness in Israel, Carter invited him and Sadat to continue peace talks with the support of the United States at Camp David in September 1978. This was a politically risky move for Carter—he was now directly engaging in the Arab-Israeli conflict and he decided to host a summit that could end in utter failure. However, the twelve days at Camp David resulted in two “framework” documents, which served as the basis for the Egypt-Israel peace treaty signed by Sadat, Begin, and Carter, in Washington D.C. on March 26, 1979.

Some argue that by 1977, Egypt and Israel were on their way toward making peace without the help of the United States.[3] Others maintain that peace between Egypt and Israel was only made possible by the participation of the United States.[4] The United States played a crucial role at Camp David and in the negotiations that followed. Both Egypt and Israel wanted American involvement and both sides wanted to win over the United States to their point of view. Importantly, the United States remained largely a neutral mediator. Carter did not put heavy pressure on either side and did not reveal a clear preference on most issues. The United States was, however, able to offer judgements about potential compromises, consider possible trade-offs, and speculate as to how other countries in the region would react to certain deals.[5] Carter needed a foreign policy success and he truly believed that peace between Egypt and Israel was a significant first step towards peace in the Middle East.

At Camp David, Carter played the role of mediator. Sadat and Begin’s differing approaches and understandings of the region’s history clashed. Begin has been characterized as being excessively legalistic and pedantic about the wording of the terms, while Sadat focused on the big picture.[6] Seeing that the talks were going nowhere, and after having to convince Sadat not to leave the summit, Carter realized that he, and the United States, would have to take a more active role in order to make any progress.[7] Instead of merely facilitating the negotiations, the Americans would now lead them. Carter ended the face-to-face talks and sequestered Sadat and Begin. Carter would then present an American draft proposal to each leader, receive their feedback, and revise the proposals until a single text was agreed upon.

Because of the United States’ preeminent military and economic status, its ability to make bilateral commitments to each of the parties gave the United States influence over the negotiations. Carter used the prospect—and the threatened withdrawal of—American friendship and aid as leverage to persuade both sides to offer concessions and remain diplomatically flexible. [8] However, the United States was never in a position to impose terms on either Egypt or Israel.[9]

After nearly two weeks of discussions at Camp David, the three men signed two framework agreements[10] on September 17, 1978, which would form the basis of the 1979 peace treaty. One document called for Israel’s withdrawal from the Sinai Peninsula, which it had captured from Egypt in the 1967 Six-Day War, in exchange for the establishment of full diplomatic relations. Egypt thus became the first Arab state to recognize Israel’s right to exist. The other document, more vaguely worded, called for a “self-governing” Palestinian authority in the West Bank and Gaza and the recognition of “the legitimate rights of the Palestinian people.”[11]

Translating the framework documents into a formal peace treaty proved to be a daunting task. Meetings and correspondences between September and March of the following year were resulting in deadlocks. On account of the stalemate, Carter travelled first to Egypt and then to Israel on March 10, 1979, bearing Sadat’s approval to negotiate on behalf of Egypt. Three days later, all three parties agreed to a treaty text.

The compromises made during these three days between Begin, Carter, and Sadat were critical. The United States guaranteed Israel’s oil supply; the proposed treaty’s references to a “special role” for Egypt in Gaza were omitted; and section VI’s wording was finalized.

Before the Shah fell in February 1979, Israel obtained 60 percent of its oil from Iran. There were oil wells in the area of Sinai that Israel agreed to withdraw from, and at the time, Israel had obtained 1.6 million tons from those wells. Begin wanted a commitment from Sadat that Israel would be able to purchase Egyptian oil, as well as an American guarantee. So, in return for Israel’s “courageous step”[12] in voluntarily giving up control and use of its oil wells, the United States agreed to guarantee Israel a secure oil source for a fifteen-year period.[13]

Throughout the negotiations, Begin emphasized the “mortal danger” Israel would face if the Palestinians were to establish a “second state.”[14] Thus, Begin staunchly objected to any Egyptian presence or liaison officers in Gaza, fearing that Egypt wanted to restore its control there or encourage the establishment of a Palestinian state in that area.[15] On this issue, President Carter took a strong American stand and told Begin, “to me [this] is a very crucial issue and your response has not been adequate.”[16] The Israelis met and “finally agreed [that] if Israelis can move freely in Egypt, then Egyptians can do so in Israel, [the] West Bank, [and] Gaza.”[17]

Begin also objected to Sadat’s proposed change in the wording of section VI, which was meant to effectively pledge Egypt to give this peace treaty precedence over any agreement with Arab states. Begin argued that this clause was the heart of the entire peace agreement and if it was worded or interpreted incorrectly, Egypt would not only be free to join a war against Israel waged by “a Baghdad conference state,”[18] but obliged to. Carter proceeded to discuss the article with Sadat, who “agreed to the text of the letter without mention of Gaza or liaison and to the agreed minutes on Article VI.”[19]

Additionally, it is important to note the U.S. military and economic aid to Egypt and to Israel as part of the agreement. At the time, both countries needed American aid desperately. Cairo now receives $1.3 billion in U.S. military assistance and $250 million in economic assistance annually. Since 1979, Egypt has received $69 billion from the United States and Israel has received $98 billion. The two countries have been the largest recipients of U.S. foreign aid since 1979.[20] Undoubtedly, the prospect of American aid encouraged compromises between Sadat and Begin.[21]

The agreements reached in the peace treaty regarding Palestinians proved ineffective. The treaty text established “full autonomy to the inhabitants” of the West Bank and Gaza. It set forth a timetable for negotiations to elect the new “self-governing authority (administrative council)” and to define its powers and responsibilities. But the talks ultimately fizzled for several reasons.

First, Sadat had volunteered Jordan’s participation in deciding how Palestinian autonomy would look and how the West Bank would be administered.[22] Carter, focused on Egypt, did not question Sadat’s claim that he could involve King Hussein of Jordan. But Jordan could not risk adhering to the terms of the unpopular peace treaty without the support of powerful Arab nations like Iraq, Syria, and Saudi Arabia. So, the Jordanians did not participate. Negotiations around Palestinians also slowed following the peace treaty due to the continued construction and controversy surrounding Israeli settlements,[23] inconclusive subsequent autonomy talks, the emerging cold peace between Egypt and Israel, and changes in foreign policy priorities.[24]

Overall, the peace treaty merely provided lip service to the Palestinian cause. Each party had a different understanding of what the treaty’s appended letter meant for Palestinians, but none of them believed it meant statehood. Sadat undoubtedly put Egypt’s interests first and was criticized for not pushing Israel further for the Palestinian cause. Following the treaty’s ratification, Egypt was suspended from the Arab League and Sadat was assassinated in 1981.

For Carter, Palestine was a secondary concern in these negotiations. The most noticeable time Carter insisted on terms from the United States’ perspective was in regard to Egyptian access to the West Bank and Gaza, which would affect the establishment of the self-governing authority over Palestinians there. Even with Carter’s preference agreed to, the effect on Palestinians proved to be limited and irrelevant.

Begin’s careful wording and refusal to negotiate substantively about Israel’s settlement population show that for him, this peace treaty was not about the Palestinian question. In fact, he was largely able to avoid the question. Sadat’s defenders noted that this is the first time Israel bound itself to any timetable regarding Palestinians, though critics said the timetable was loose and vulnerable to delays and obstructions, which turned out to be the case.

Just before Begin called Carter on March 13 to tell the president that he agreed to Sadat’s final changes, Israeli Minister Haim Landau bitterly exclaimed that he could sum up the agreement in one sentence: “Israel gives, Egypt receives and the Americans pay.” In many ways, this assessment is accurate. Israel withdrew from and returned the Sinai Peninsula to Egypt and the agreement stipulated an end to Israeli military rule over the Israeli-occupied territories.[25] It also prescribed full autonomy for the Palestinian inhabitants of the territories, which was not implemented but which became the basis for the Oslo Accords.[26] Egypt agreed to keep the Sinai Peninsula demilitarized, agreed to free passage of Israeli ships through the Suez Canal, and recognized the Strait of Tiran and the Gulf of Aqaba as international waterways (which it had blockaded in 1967).[27] Most significant though, is the mutual recognition, the end to the state of war, and the normalization of relations between Egypt and Israel. These factors make the agreement a success.

The United States’ motives for brokering the peace treaty remain a bit unclear.[28] There are certainly general positives to be gained from the treaty, but no one single reason has claimed precedence. Carter had a personal, and likely political, mission to improve the state of the Arab-Israeli conflict. Egypt and Israel reaching a peace agreement also ensured the United States’ alliance with two powerful and stable nations in the Middle East. Strengthening the American relationship with Egypt also weakened the Soviet Union.[29] Also, American access to Arabian oil is best protected when the Middle East is without strife and turmoil. Memories of the October 1973 war and the oil price shock of that year were still fresh in American minds. A combination of these factors, along with Carter’s personal ambitions, led the United States to successfully broker the first peace treaty between an Arab nation and Israel.

Works Cited

“Egypt and Israel Treaty of Peace No. 17813.” United Nations Treaty Collection, United Nations, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.

“Geneva Peace Conference (1973).” THE ISRAELI-PALESTINIAN CONFLICT: AN INTERACTIVE DATABASE, ECF, https://ecf.org.il/issues/issue/198.

“Israel and Egypt Framework for Peace No. 17853.” United Nations Treaty Collection, United Nations, https://treaties.un.org/.

“Jimmy Carter Administration: Statement on Implementation of the United States-Israel Oil Agreement.” Jewish Virtual Library, AICE, https://www.jewishvirtuallibrary.org/president-carter-statement-on-implementation-of-the-united-states-israel-oil-agreement-october-1980.

“Making Peace with Egypt, Part 4. Carter Intervenes: The President’s Visit to Egypt and Israel and the Signing of the Peace Treaty.” Israel State Archives, Government of Israel, https://catalog.archives.gov.il/en/chapter/making-peace-egypt-part-4-carter-intervenes-presidents-visit-egypt-israel-signing-peace-treaty/.

“President Carter to Menachem Begin, 1979, President Carter to Menachem Begin.” Archives.gov.il, Government of Israel, https://www.archives.gov.il/archives/Archive/0b071706800171a0/File/0b071706809d47ae/Item/0907170684ce2bea.

“Prime Minister Menachem Begin – Shaderim.” Archives.gov.il: (Continued from File No. 5) Broadcasts and Recording of Telephone Conversations between the Prime Minister and US President Jimmy Carter Regarding Peace Negotiations with Egypt, the Signing of the Peace Treaty and the Autonomy Talks. The File Also Contains Broadcasts about the Reception of Refugees from Vietnam in Israel and Assistance in the Return of Israeli Representatives from Tehran during the Revolution, https://www.archives.gov.il/archives/Archive/0b071706800171a0/File/0b071706809d47ae.

“The Meeting of President Carter and His Delegation with Prime Minister Menachem Begin, President Carter-Prime Minister Begin Meeting 1979.” Archives.gov.il, https://www.archives.gov.il/archives/Archive/0b0717068002f74b/File/0b07170680727ace/Item/0907170684cef1f5.

Aderet, Ofer. “’This American Chutzpah Makes My Blood Boil,’ Menachem Begin Said during Jimmy Carter’s 1979 Visit to Israel for Egypt Peace Talks.” Haaretz.com, Haaretz, 17 Mar. 2013, https://www.haaretz.com/2013-03-17/ty-article/.premium/as-carter-visited-begin-railed-at-u-s-chutzpa/0000017f-e092-df7c-a5ff-e2fa408c0000.

Alter, Jonathan (2020). His Very Best – Jimmy Carter, a Life. Simon & Schuster. ISBN 978-1-5011-2554-6.

Alterman, Eric. “Jimmy Carter Took More Risks for Middle East Peace than Any Other President-by Far.” Newrepublic.com, The New Republic, 21 Feb. 2023, https://newrepublic.com/article/170676/jimmy-carter-camp-david-1978-took-risks-middle-east-peace.

Berenji, Shahin. “Jimmy Carter’s Role in Securing Middle East Peace.” E-International Relations, 28 Apr. 2016, https://www.e-ir.info/2016/04/21/the-camp-david-accords-jimmy-carters-role-in-securing-middle-east-peace/.

“Carter Library, National Security Affairs, Staff Material, Office, Outside the System File, Box 66, Middle East: President Carter’s Trip to Jerusalem and Cairo: 2–4/79. Secret.” Office of the Historian, U.S. Department of State, https://history.state.gov/historicaldocuments/frus1977-80v09Ed2/d202.

Center for Preventive Action. “Israeli-Palestinian Conflict | Global Conflict Tracker.” Council on Foreign Relations, Council on Foreign Relations, 13 Jan. 2023, https://www.cfr.org/global-conflict-tracker/conflict/israeli-palestinian-conflict.

Clarke, Duncan L. “US Security Assistance to Egypt and Israel: Politically Untouchable?” Middle East Journal, vol. 51, no. 2, 1997, pp. 200–14. JSTOR, http://www.jstor.org/stable/4329053.

Cody, Edward. “Egypt Says It Trains Afghan Rebels.” The Washington Post, WP Company, 14 Feb. 1980, https://www.washingtonpost.com/archive/politics/1980/02/14/egypt-says-it-trains-afghan-rebels/a09f455a-fca0-48c0-b7fe-12e8c9bcede6/.

Farrell, William E. “Envoy of Moscow Expelled by Egypt.” The New York Times, The New York Times, 16 Sept. 1981, https://www.nytimes.com/1981/09/16/world/envoy-of-moscow-expelled-by-egypt.html.

Greenspan, Jesse. “How Jimmy Carter Brokered a Hard-Won Peace Deal between Israel and Egypt.” History.com, 21 Oct. 2019, https://www.history.com/news/jimmy-carter-camp-david-accords-egypt-israel.

Hazaimeh, Hani. “When Sadat Went to Israel.” Arabnews.com, Arab News, 16 Apr. 2020, https://www.arabnews.com/node/1659751.

Kaufman, Diane; Kaufman, Scott (2013). Historical dictionary of the Carter era. Lanham: Rowman & Littlefield.

Makovsky, David. “Reviewing Egypt’s Gains from Its Peace Treaty with Israel.” The Washington Institute, 7 Mar. 2011, https://www.washingtoninstitute.org/policy-analysis/reviewing-egypts-gains-its-peace-treaty-israel.

Quandt, William B. “Menachem Begin: A Past Master at Negotiation.” The Brookings Review, vol. 2, no. 2, 1983, pp. 12–15. JSTOR, https://doi.org/10.2307/20079817.

Quandt, William B. Camp David: Peacemaking and Politics. Brookings Institution Press, 2016. JSTOR, http://www.jstor.org/stable/10.7864/j.ctt15hvr5s.

Ross, Dennis. “Did Camp David Doom the Palestinians?” Foreign Policy, 19 Oct. 2018, https://foreignpolicy.com/2018/10/19/did-camp-david-doom-the-palestinians-israel-palestine-yasser-arafat-menachem-begin-jimmy-carter-reagan-bush-clinton-middle-east-peace/.

Seale, Patrick. “The Egypt-Israel Treaty and Its Implications.” The World Today, vol. 35, no. 5, 1979, pp. 189–96. JSTOR, http://www.jstor.org/stable/40395115.

Shipler, David K. “Israeli Completes Pullout, Leaving Sinai to Egypt.” The New York Times, The New York Times, 26 Apr. 1982, https://www.nytimes.com/1982/04/26/world/israeli-completes-pullout-leaving-sinai-to-egypt.html.

Staff, CIE. “Memorandum of Conversation between Us President Jimmy Carter and Israeli Prime Minister Menachem Begin.” Center for Israel Education, Zbigniew Brzezinski Historical Materials Collection. Box 36, Folder: Serial X’s (1/79-2/79). The Jimmy Carter Presidential Library, 3 Sept. 2018, https://israeled.org/memorandum-of-conversation-between-us-president-jimmy-carter-and-israeli-prime-minister-menachem-begin/.

Stein, Kenneth W. Heroic Diplomacy: Sadat, Kissinger, Carter, Begin, and the Quest for Arab–Israeli Peace, 1999

Williams, Audrey. “Camp David, Hal Saunders, and Responsibility in Peacemaking.” Jimmy and Rosalynn Carter School for Peace and Conflict Resolution, George Mason University, https://carterschool.gmu.edu/why-study-here/legacy-leadership/camp-david-hal-saunders-and-responsibility-peacemaking

[1] Kaufman 2013

[2] Begin was unwilling to stop the construction of new settlements or the expansion of existing ones; unwilling to withdraw Israeli settlers from Sinai, or to allow U.N. or Egyptian protection for them if they were to stay; unwilling to acknowledge that U.N. Resolution 242 applied to the West Bank or the Gaza Strip; and unwilling to grant Palestinians a genuine voice in determining their future (Alterman 2023).

[3] Quandt 1983, 3

[4] Berenji 2016, Greenspan 2019

[5] Quandt 1983, 4

[6] Alterman 2023

[7] Berenji 2016

[8] Quandt 1983, 4

[9] Memorandum of Conversation between US President Jimmy Carter and Israeli Prime Minister Menachem Begin (2 March 1979), 2

[10] “A Framework for Peace in the Middle East Agreed at Camp David” and “Framework for the conclusion of a Peace Treaty between Egypt and Israel”

[11] Greenspan 2019

[12] See here: https://www.jewishvirtuallibrary.org/president-carter-statement-on-implementation-of-the-united-states-israel-oil-agreement-october-1980

[13] The guarantee applied if Israel encountered a supply emergency, had to pay excessive prices, or rely on insecure arrangements (See here: https://www.upi.com/Archives/1980/10/17/US-guarantees-oil-for-Israel/6006340603200/)

[14] Jordan being the first, according to Begin. See Carter-Begin meeting transcript, March 11, 1979, here: https://www.archives.gov.il/archives/Archive/0b0717068002f74b/File/0b07170680727ace/Item/0907170684cef1f5

[15] Aderet 2013 and here: https://catalog.archives.gov.il/en/chapter/making-peace-egypt-part-4-carter-intervenes-presidents-visit-egypt-israel-signing-peace-treaty/

[16] Carter argued that the refusal to refer to Gaza in the joint letter undermined the US commitment to ensure that autonomy was implemented. Carter said, “[And] unless there is some assurance that the [Egyptian] negotiating team can have access to the inhabitants of the Gaza Strip and the West Bank, I do not feel that I can carry out my commitment to the American people nor to you nor to the Palestinian Arabs nor to Egypt. It is a crucial issue to us and I think it is something you will have to decide.” (https://catalog.archives.gov.il/en/chapter/making-peace-egypt-part-4-carter-intervenes-presidents-visit-egypt-israel-signing-peace-treaty/)

[17] See here: https://history.state.gov/historicaldocuments/frus1977-80v09Ed2/d202

[18] See Begin-Carter March 11 meeting transcript

[19] See Carter’s March 13 telephone call to Begin: https://www.archives.gov.il/en/archives/Archive/0b071706800171a0/File/0b071706809d47ae/Item/0907170684ce2bea

[20] Clarke 1997

[21] Begin letters asking for American aid, see here: https://www.archives.gov.il/archives/Archive/0b071706800171a0/File/0b071706809d47ae

[22] Prior to Israel’s victory in the Six-Day War, governance of the Palestinian territories was as follows: Egypt had occupied Gaza; Jordan had annexed the West Bank; the Sinai Peninsula was under Egyptian sovereignty; and the Golan Heights was under Syrian sovereignty.

[23] Ross 2018

[24] Stein 1999, 254

[25] Meaning, the lands that were captured and occupied by Israel during the Six-Day War

[26] The 1993 Oslo Accords were based on the Camp David Accords (and thus, the 1979 peace treaty) and therefore merely put forth an interim agreement with first steps meant to be followed by more complete negotiations. Both accords shared similar fates, as Jordan agreed to peace with Israel in 1994, without the Palestinians

[27] See “Israel and Egypt Treaty for Peace”

[28] Quandt 2016, 5

[29] The Soviet Union had sent aid to Egypt during the Yom Kippur War of 1973. But then in 1979, Egypt supported the Mujahadeen in Afghanistan when the USSR invaded and Sadat expelled a Soviet envoy from Egypt two years later (Cody, 1980; Farrell 1981).

“Agus gurab as an uaigh so agus as na huaghannaibh atá inar dtimcheall éireochas saoirse Ghaedheal”; And that from this grave and from the graves which surround us is the eloquence of the freedom of the Gaels.

– Patrick Pearse^[1]

Introductory Note

In a matter of months, Ireland will erupt into the 106th commemoration of a six-day massacre of its people. By all accounts a failure, the world watched the Easter Rising unfold into a mass execution of rebel leaders and the devastation of Dublin, yet the Irish people came out of the revolution emboldened with nationalistic fervor and a penchant for independence. The following paper will explore the case study of the 1916 Easter Rising through the lens of Irish nationalism and with recognition of the ongoing Great War. It will argue that the rebellion transformed existing Anglo-Irish and intra-Irish tensions into a distinct nationalistic spirit that directly accelerated freedom movements both inside and outside the nation and gave rise to the partitioning and current status of Ireland and Northern Ireland. This paper will account for the rise of Irish nationalism with reference to Benedict Anderson’s Imagined Communities. It affords particular engagement to his approach that nationalism ought “to be understood, by aligning it not with self-consciously held political ideologies, but with large cultural systems that preceded it, out of which — as well as against which — it came into being.”^[2] It will further entertain Anderson’s notion of the nation as “an imagined political community” with respect to Irish nation-building both predating and following the Easter Rising.^[3] This will allow greater demonstration of the Rising as a catalyst to existing Irish nationalism through the subsequent War of Independence, partition of Ireland, and symbolic Easter 1949 declaration of official Irish independence. Exploration of the growth of Irish nationalism as an ordering factor of international relations will be conducted with deference to the partition of Ireland as a template for the later Palestinian and Indian partitions and as a reference for future global interventions. The Easter Rising will be additionally argued to have undermined English power and facilitated the collapse of the British hegemony.

A Critique of Methodological Solipsism in Observation of Pre-Easter Rising Intra-Irish and Anglo-Irish Divisions

Tensions in Ireland long predated the Easter Rising, and a recognition of the ethno-cultural and religious divisions is essential to understanding the existence and evolution of Irish nationalism.^[4] To accurately explain the emergence of the stimulated Irish republicanism involved in and following the Easter Rising it is necessary to understand the evolution of pre-existing nationalisms. In a compelling analysis on the historiography of Irish ideology, Northern Irish historian Richard English provides insight to the preeminence of “methodological solipsism” in historical scholarship on the subject.^[5] To concur with this view, the evolution and existence of nationalism may only be understood with regard to the existing intricacies of religious and factional tensions within Ireland: intricacies which, regrettably, can be merely touched upon in this writing. The existence of Protestantism, Catholicism, and Anglicism can be argued to have formulated the cores of competing Irish nationalisms. The later partition of Northern Ireland and the Republic of Ireland allows reflection on the true scale of this separatory sentiment between Anglo-favoring Protestants and traditionally Celtic Catholics.^[6] More so, the later “Troubles” of Northern Ireland would see the Irish Republican Army plague the community with acts of terrorism for years to come and force English intervention.^[7] Thus, prior to the Easter Rising, there arguably existed a plurality of strong nationalistic sentiments, however, these nationalisms lacked substantial progression due to overarching disunity.

In addition to intra-Irish tensions, the Easter Rising and Irish nationalism must be placed in the context of political conflict between Britain and Ireland. The geographical and political intertwinement of the nations has long made up the Anglo-Celtic battleground.^[8] In addition to the aforementioned religious underpinnings, Irish Republicanism grew out of the desire for political freedom and autonomy from the British regime. “The Fenians”—The Irish Republican Brotherhood formed in 1858—represented an apt touchstone of the nature of growing Irish resistance to British ruling at the time: secret.^[9] The Fenians worked as a covert governing order of their desired Irish Republic and provided the framework and leadership for the failed 1916 Easter Rising. The 1905 birth of the political group Sinn Féin (Gaelic for “We Ourselves”) and growth of the Irish Volunteers and Irish Citizen Army would go on to represent more violent revolutionary roots of Irish Republicanism and the nationalist movement; however, prior to the Rising, the movement garnered little public interest. It was not until the execution of revolutionary leadership that extreme Republican nationalism took hold in Ireland on a political and public scale.^[10] It was the increasingly violent, though small in nature, clashes between England and Ireland which prompted the government to pass the 1911 “Home Rule Bill”,named the Government of Ireland Act 1914, which scheduled Irish autonomy under British control.^[11] Reactions in Ireland varied as the Northern Irish Ulster region, predominantly unionist, violently rejected the notion: a sentiment which was met with celebration by Irish republicans.^[12] The outbreak of the First World War soon curbed this bill’s implementation with an immediate 12-month suspension and effectively shattered hopes for a peaceful transition.

The arrival and onset of WWI in 1914 interrupted the heightening Anglo-Irish conflict and diverted English attention from its inner turmoil. Within Ireland, divisions sharpened between the Ulster unionists and within the Irish nationalist parties—a precursor to the post-war partition.^[13] While the war saw a tentative truce in the face of larger scale conflict, it also acted to embolden radical Irish nationalists in their pursuit of political liberty as they began to seek aid from the enemies of Britain and international Irish populations. Damning correspondence from British public servant Sir Roger Casement to Germany lends itself to the strength of the nationalist spirit. “May it be found when German Science begins its great voyage for the freeing of the seas that the Irish Diodon was indeed the wrong fish for the World Shark to swallow.”^[14] Casement would soon be executed for treason to the British state and become widely regarded as a true martyr of the Irish cause. The wit of his analogy in reference to the seas, the known source of British prowess, as a jab against the English regime should not be overlooked. However, while compelling in spirit, Casement and the nationalist cause received little help from Germany. Rather, the cause saw, arguably, its greatest international ally in Irish nationalists of the United States.^[15] Propagandic posters depicted the Fenian brotherhood with clovered American flags and a secret Irish society of Philadelphia, Clan na Gael, went so far as to meet with German diplomats for the negotiation of arms: which were to be lost at sea upon their sending.^[16] Irish allies in the United States provided monetary aid but failed to send additional arms. Regardless, the Irish nationalist cause was quickly moving into the international scene. By Easter 1916, nationalists saw their opportunity for insurrection and in the famed Proclamation of the Republic thanked their “exiled children in America and gallant allies in Europe” for their faithful support.^[17]

British Reaction to the Easter Rising: The True Catalyst to Irish Nationalism

Monday, April 24th to Saturday, April 29th the aforementioned Irish nationalists overtake Dublin, proclaiming an Irish Republic for six days before a rapid and bloody defeat. Planning miscalculations and little public support for the insurrection resulted in its utter failure.^[18] But it was the British reaction and brutal repression of the Rising which mobilized the Irish public and catalyzed Ireland into a state of unity. Following the defeat of the rebellion, British command moved through a series of secret trials to immediately execute.^[19] News of the leaders’ deaths, particularly Connolly, incited public revulsion. The murdered leaders were hailed as martyrs and the Irish cause for independence finally gained national traction. 

To engage with Anderson, Irish nationalism grew “from the large cultural systems that preceded it, out of which — as well as against which — it came into being.”^[20] It was the sheer strength of emotion actualized through the Easter Rising that acted as the catalyst to the nationalist movement. With regard to the Irish cause, the competition between traditional Gaelic culture and forced Anglicism worked to advance the case for Irish republicanism, albeit slowly. Prior to the Easter Rising, revolutionaries had lacked the public support necessary to incite change. However, by the time public approval had finally been garnered following the Rising, it was the subliminal, long-term growth of this animosity which acted as the backbone of the rebellion. While the triumph of nationalistic spirit was saved until the events following the Easter Rising, the centuries long grating of Gaelic and English vernaculars, society, and religions grew the foundation for the nationalist movement. Notably, under the 35 years of Irish Home Rule Party leadership, the “Gaelic speakers decreased by a third of a million.”^[21] Irish nationalists recognized that the already relatively scarce roots of Irish culture would continue to grow scarcer under English policy and the lack of Irish mobilization.

Anderson’s proposal that nationalism ought to be regarded as an “imagined community” can also be understood in a theological context.^[22] The religious symbolism of the Rising allowed for widespread sympathy towards Republican leaders and their martyrdom. Anderson’s notion of the religious community is aptly shown in his depiction of religious thought as a precursor to nationalism which explores “the element of fatality [as] essential.”^[23] The competing nationalisms and factions of Ireland notably share the Christian faith. Though practiced in different manners and under different rules, the Catholic and Protestant faiths share the celebration of Easter and frown upon murderous intent.^[24] Anderson’s perspective provides an explanation for the strength of the emotional response to British cruelty and the martyrdom of the nationalist movement. It was the crucial placement of the Rising on Easter Monday which related the deaths of Republican leadership to that of Christ. Through this symbolism the religious community’s beliefs became connotatively associated with, and integrated into, the nationalist movement. Irish historian Ó hAdhmaill concurs with Anderson’s perception of fatality and notes the aftermath of the Easter Rising as a religious incendiary for the public that set the stage for the following political overtake.^[25] It was this ideological component that created the unity necessary for the coming Irish revolution as the Great War entered its close.

Ireland as an International Template for Partition and Detractor of British Hegemony

The Easter Rising induced a transformation of public opinion toward the Republican cause, inciting almost immediate political action. In the 1918 election, Sinn Féin won majority seats in parliament with strong public backing; and by 1919, the Irish War of Independence had begun. The resolution of the conflict saw the British partitioning of Northern Ireland and Southern Ireland under the Anglo-Irish Treaty of December 1921.^[26] The newly appointed Northern Ireland (notably the Ulster region) would remain a part of the United Kingdom while the now self-governing Irish Free State would be associated only as a dominion of the British Commonwealth.^[27] A continuation and forced resolution to the long standing religious divides between the Protestants and Catholics. The partition brought about Civil War in the Irish Free.^[28]

On the international scale, however, the partition was to be replicated as a template of conflict resolution in the post-WWI era. Markedly, the almost simultaneous partitioning of India and Palestine by Great Britain in 1947. In Dubnov and Robson’s Partitions: A Transnational History of Twentieth-Century Territorial Separatism, it is noted that partition “led not to the stabilization of conflict but to… long-term geopolitical deferral”.^[29] This was reflected in the actual geographical border between Northern Ireland and the Irish Free State not being established until 1925. The destabilization of Ireland was largely ignored after the signing of the 1921 treaty and it became internationally viewed as a British success; however, this is not to diminish the injury to British hegemony that Ireland inflamed by proving English ineptitude within its island territory. In response to this perceived success, Britain moved to follow this model in the proposed partition of Palestine in 1937 and the later “actual” 1947 partition by the United Nations.^[30] The division shared with the Irish, chronological commonalities of ongoing international and intranational conflict. And, like Ireland, Palestine had long been plagued by ethnic and religious demarcations. While there had existed this component, it was the tremendous displacement of the Jewish community following WWII that exacerbated the Arab-Jewish conflict to the point of what the United Nations deemed necessary intervention. The nationalistic revival of the Zionist community had been steadily growing for decades, but it was the Jewish decimation of WWII which seemed to represent the final push.^[31] Examination of Resolution 181 (II) by the United Nations, sees an acknowledgement that the resolution calls for the removal of the British presence “with plans to complete its evacuation of Palestine” from the partitioned states.^[32] This represents the diminishing power of the United Kingdom which echoes that of the Anglo-Irish Treaty of December 1921, where “for the first time in an official UK document, the term ‘Commonwealth’ was used as an alternative to ‘Empire.’”^[33]

The case of the Indian partition furthers reflection on the Irish template. As within Ireland and Palestine, clear religious divisions plagued the nation: Hinduism and Islamism. Returning to Dubnov and Robson’s analysis, the violence of rebellions in partitioned India set an example for future bloodshed.^[34] Currently, both India and its partition, Pakistan, hold nuclear weapons, and the violence of the partition stokes the fear of nuclear retaliation between the two.^[35] This can be related to the post-partition Irish Civil War, the “Troubles” of Northern Ireland, and the terrorism of the IRA and to the ongoing battles between Palestine and Israel. In fact, analysis of the Irish, Palestinian, and Indian conflicts sees ongoing effects on the divided nationalisms of the respective states and can be regarded as influential on their current policies. Reference to the partitions as “tragedies” is an apt representation of the perpetual effects of partition on nationalistic sentiments and state behavior.^[36]

What Constitutes a Revolution?

It cannot be denied that the effects of the Easter Rising continue to dominate global politics. It is, therefore, with mixed emotions that the Irish example is to be regarded in its ordering of the international. Ireland’s intranational climate allowed for the growth of nationalism through cultural distinctions and opposition to English rule, but it was the violence of repression which unified Irish nationalisms into a force for independence that directly caused the partition of Ireland and subsequent wars. Anderson’s thesis and notes on culture are recognized to be thoroughly demonstrated in analysis of this study. This does not suggest agreement with all parts of Anderson’s novel, but rather a nod to his emphasis on religious and cultural movements in creating the “imagined community” of the Irish nation.^[37]

A focus on the direct impact of the expression of Irish nationalism in the Easter Rising saw the involvement of the international community and the ordering of international relations. Sympathy from Germany and the United States saw Irish expatriates gain public traction and the undermining of British rule as members of these nations moved against the empire. The partitioning of Ireland would also form the British template for the partitions of, most notably, Palestine and India. While British intervention was certainly not a novel occurrence, the practice of partition was only popularized following that of Ireland, which was widely viewed as a success. The Irish nationalism of the Easter Rising continues to have a robust impact in both Ireland and the international community; to be remembered as an endeavor which will assuredly perpetuate for years to come.

Bibliography:

Anderson, Benedict. “Imagined Communities: Reflections on the Origin and Spread of Nationalism” Verso. (1983).

Barbora, Sanjay. “Remember Easter of 1916? When the Irish Declared a Republic.” Economic and Political Weekly 51, no. 25 (2016): 25–28. http://www.jstor.org/stable/44003632.

BBC News. “Easter Rising 1916: How an Irish Rebellion Sought International Help,” sec. Northern Ireland. (March 24, 2016): https://www.bbc.com/news/uk-northern-ireland-35809722.

Beiner, Guy. “Between Trauma and Triumphalism: The Easter Rising, the Somme, and the Crux of Deep Memory in Modern Ireland.” Journal of British Studies 46, no. 2 (2007): 366–89. https://doi.org/10.1086/510892.

Berger, Stefan, and Stefan Braun. “International Socialist Responses to the Easter Rising in Ireland in 1916.” Saothar 41 (2016): 125–38. http://www.jstor.org/stable/45283324.

Britain, and Ireland. “The Anglo-Irish Treaty, 1921.” (December 6, 1921): https://www.difp.ie/volume-1/1921/anglo-irish-treaty/214/#section-documentpage.

Britannica, T. Editors of Encyclopedia. “Easter Rising.” Encyclopedia Britannica, (November 30, 2021): https://www.britannica.com/event/Easter-Rising

Britannica, T. Editors of Encyclopedia. “Home Rule.” Encyclopedia Britannica, (September 15, 2010): https://www.britannica.com/event/Home-Rule-Great-Britain-and-Ireland.

Buckley, Maureen. “Irish Easter Rising of 1916.” Social Science 31, no. 1 (1956): 49–55. http://www.jstor.org/stable/41884424.

Casement, Sir Roger. “Ireland, Germany, and Europe.” (1911): https://digital.library.villanova.edu/Item/vudl:67764#?c=&m=&s=&cv=166&xywh=-1844%2C-483%2C8737%2C3895.

Connell, Joseph E.A. “COUNTDOWN TO 2016: THE EXECUTIONS AFTER THE EASTER RISING.” History Ireland 24, no. 3 (2016): 70–70. http://www.jstor.org/stable/43755275.

Connell, Joseph E.A. “Dublin in Rebellion: A Directory, 1913-1923.” Lilliput, (2009): https://librarysearch.library.utoronto.ca/permalink/01UTORONTO_INST/14bjeso/alma991106001735706196.

Cowell-Meyers, K. and Arthur, Paul. “Sinn Féin.” Encyclopedia Britannica, (January 26, 2021): https://www.britannica.com/topic/Sinn-Fein.

Dubnov, Arie M, and Laura Robson. Partitions: A Transnational History of Twentieth-Century Territorial Separatism. Redwood City: Stanford University Press, (2019).

Editors, History com. “Easter Rising.” HISTORY. (January 25, 2019): https://www.history.com/topics/british-history/easter-rising.

English, Richard. “History and Irish Nationalism.” Irish Historical Studies 37, no. 147 (2011): 447–60. http://www.jstor.org/stable/41414839., p 455.

General Assembly, United Nations. “Resolution Adopted on the Report of the AD HOC Committee on the Palestinian Question,” (November 29, 1947): https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/038/88/PDF/NR003888.pdf?OpenElement. 

Ginnell, and Tennant. “Execution of James Connolly.” (May 30, 1916): https://api.parliament.uk/historic-hansard/commons/1916/may/30/execution-of-james-connolly.

History, Ireland. “The Irish Republican Brotherhood,” (8 March 2013): https://www.historyireland.com/the-irish-republican-brotherhood/.

Hogan, J. J. “W. B. Yeats.” Studies: An Irish Quarterly Review 28, no. 109 (1939): 35–48. http://www.jstor.org/stable/30097679.

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“Irish Free State.” In Wikipedia, (March 11, 2022): https://en.wikipedia.org/w/index.php?title=Irish_Free_State&oldid=1076464301.

“Languages and Religions of the U.K. and Ireland.” National Geographic, (2012): https://media.nationalgeographic.org/assets/file/Languages_UK__Ireland.pdf

Leeson, D.M. “Post-War Conflict (Great Britain and Ireland).” In International Encyclopedia of the First World War, (January 27, 2016): https://encyclopedia.1914-1918-online.net/pdf/1914-1918-Online-post-war_conflict_great_britain_and_ireland-2016-01-27.pdf. 

Mac Manus, Seumas. “Sinn Féin.” The North American Review Vol. 185, no. No. 621 (August 16, 1907): 825–36. https://doi.org/https://www.jstor.org/stable/pdf/25105964.pdf.

Mulhall, Ambassador Daniel. “The Anglo-Irish Treaty of December 1921.” Department of Foreign Affairs, (December 6, 2021): https://www.dfa.ie/irish-embassy/usa/about-us/ambassador/ambassadors-blog/the-anglo-irish-treaty-of-december-1921.html.

Ó hAdhmaill, Féilim. “The Easter Rising (1916) in Ireland and Its Historical Context: The Campaign for an Irish Democracy.” ResearchGate. (2019): https://doi.org/10.1007/978-3-319-91206-6_13-1.

Pearse, Patrick. “Graveside Oration at the Funeral of Jeremiah O’Donovan Rossa,” (Aug. 1915): https://www.rte.ie/centuryireland/images/uploads/further-reading/Ed59-GravesideOrationFinal.pdf.

Pearse, Patrick. “Proclamation of the Republic,” (April 24, 1916): http://www.easter1916.net/proclamation.htm.

Reeves, Chris. “‘Let Us Stand by Our Friends’: British Policy Towards Ireland, 1949-59.” Irish Studies in International Affairs 11 (2000): 85–102. http://www.jstor.org/stable/30001914.

Shwadran, Benjamin. “The Emergence of the State of Israel.” The Journal of Educational Sociology 22, no. 3 (1948): 163–70. https://doi.org/10.2307/2263514.

“Ten Commandments.” In A Dictionary of the Bible. , edited by W. R. F. Browning. Oxford Biblical Studies Online, http://www.oxfordbiblicalcstudies.com/article/opr/t94/e1879. 

Toon, Owen B., et al.“Rapidly expanding nuclear arsenals in Pakistan and India portend regional and global catastrophe.” ScienceAdvances. (October 2, 2019): https://www.science.org/doi/10.1126/sciadv.aay5478

“The Anglo-Irish Treaty, 1921,” (December 6, 1921): https://www.difp.ie/volume-1/1921/anglo-irish-treaty/214/#section-documentpage.

UK Parliament. “Government of Ireland Act 1914,” (September 18, 1914): https://www.legislation.gov.uk/ukpga/1914/90/pdfs/ukpga_19140090_en.pdf.

“University of Alberta Dictionary of Cognitive Science: Methodological Solipsism.” http://www.bcp.psych.ualberta.ca/~mike/Pearl_Street/Dictionary/contents/M/methodsolip.html.

Walsh, David. “The Terrible Beauty of Transcendence: A Reflection on Easter 1916.” Studies: An Irish Quarterly Review106, no. 422 (2017): 159–78. https://www.jstor.org/stable/90010170.

Weaver, Stewart. “100 Years on: The Partition of Ireland Explained Why Was Ireland Divided?” (2021): https://www.rochester.edu/newscenter/partition-of-ireland-explained-477342/.

World Bank. “The ‘Troubles’ of Northern Ireland: Understanding Civil War.” (2005): https://www.jstor.org/stable/pdf/resrep02484.10.pdf

References:

^[1] Pearse, Patrick. “Graveside Oration at the Funeral of Jeremiah O’Donovan Rossa” (August 1915).

^[2]Anderson, Benedict. “Imagined Communities: Reflections on the Origin and Spread of Nationalism” Verso (1983), p 12.

^[3] Ibid., p 16.

^[4] English, Richard. “History and Irish Nationalism.” Irish Historical Studies 37, no. 147 (2011): 447–60.

^[5]  Ibid., pp 458-60; “University of Alberta Dictionary of Cognitive Science: Methodological Solipsism.”

^[6] Weaver, Stewart. “100 Years on: The Partition of Ireland Explained Why Was Ireland Divided?” (2021).

^[7] World Bank. “The ‘Troubles’ of Northern Ireland: Understanding Civil War” (2005).

^[8] “Languages and Religions of the U.K. and Ireland.” National Geographic (2012); “Ireland and Britain: 800 Years of Conflict” (30 Jan 2016).

^[9] History Ireland. “The Irish Republican Brotherhood” (March 8, 2013).

^[10] Mac Manus, Seumas. “Sinn Féin.” The North American Review Vol. 185, no. No. 621 (August 16, 1907): 825-36; Cowell-Meyers, K. and Arthur, Paul. “Sinn Féin.” Encyclopedia Britannica (January 26, 2021).

^[11] Britannica, T. Editors of Encyclopedia. “Home Rule.” Encyclopedia Britannica (September 15, 2010); UK Parliament. “Government of Ireland Act 1914” (September 18, 1914).

^[12] Leeson, D.M. “Post-War Conflict (Great Britain and Ireland).” In International Encyclopedia of the First World War (January 27, 2016).

^[13] Ibid.

^[14] Casement, Sir Roger. “Ireland, Germany, and Europe” (1911).

^[15] BBC News. “Easter Rising 1916: How an Irish Rebellion Sought International Help,” sec. Northern Ireland (March 24, 2016).

^[16] Ibid.

^[17] Pearse, Patrick. “Proclamation of the Republic” (April 24, 1916).

^[18] Britannica, T. Editors of Encyclopedia. “Easter Rising.” Encyclopedia Britannica (November 30, 2021).

^[19] Ginnell and Tennant. “Execution of James Connolly” (May 30, 1916).

^[20] Ibid., p 12.

^[21] Mac Manus, Seumas. “Sinn Féin.” The North American Review, Vol. 185, no. No. 621 (August 16, 1907): 825-36.

^[22] Anderson, Benedict. “Imagined Communities,” p 16.

^[23] Ibid., p 44.

^[24] “Ten Commandments.” In A Dictionary of the Bible, edited by W. R. F. Browning, Oxford Biblical Studies Online.

^[25] Ó hAdhmaill, Féilim. “The Easter Rising (1916) in Ireland and Its Historical Context: The Campaign for an Irish Democracy.” ResearchGate (2019).

^[26] Mulhall, Ambassador Daniel. “The Anglo-Irish Treaty of December 1921.” Department of Foreign Affairs (December 6, 2021) ; “Irish Free State.” In Wikipedia, (March 11, 2022). ; Britain, and Ireland. “The Anglo-Irish Treaty, 1921” (December 6, 1921).

^[27] Editors, History com. “Easter Rising.” HISTORY (January 25, 2019).

^[28] Reeves, Chris. “‘Let Us Stand by Our Friends’: British Policy Towards Ireland, 1949-59.” Irish Studies in International Affairs 11 (2000): 85–102.

^[29] Dubnov, Arie M, and Laura Robson. Partitions: A Transnational History of Twentieth-Century Territorial Separatism. Redwood City: Stanford University Press (2019), p 6.

^[30] Ibid., p 7.

^[31] Shwadran, Benjamin. “The Emergence of the State of Israel.” The Journal of Educational Sociology 22, no. 3 (1948).

^[32] General Assembly, United Nations. “Resolution Adopted on the Report of the AD HOC Committee on the Palestinian Question” (November 29, 1947).

^[33] Britain, and Ireland. “The Anglo-Irish Treaty, 1921” (December 6, 1921).

^[34] Dubnov, Arie M, and Laura Robson. “Partitions: A Transnational History,” pp 14-16.

^[35] Toon, Owen B., et al.“Rapidly expanding nuclear arsenals in Pakistan and India portend regional and global catastrophe.” ScienceAdvances (October 2, 2019).

^[36] Dubnov, Arie M, and Laura Robson. “Partitions: A Transnational History,” p 27.

^[37] Anderson, Benedict. “Imagined Communities,” p 13.

Abstract

The International Criminal Court has ordered reparations five total times, with three of those cases taking place in the Democratic Republic of the Congo. Although each defendant committed their crimes during the same conflict and in the same district, the ICC ordered vastly different reparations across the three cases. Drawing from both primary and secondary material, this paper concludes that the dissimilarity between ICC Reparations Orders in the DRC is the result of an interaction between several causal factors, including victim identity, victim participation, the crime(s) committed by the defendant, reparation type legitimacy, the Trust Fund for Victims (TFV) and feasibility, and Court evolution.

Introductory Note

The Rome Statute, which entered into force in 2002, established the International Criminal Court (ICC), along with victims’ right to reparations. Article 75 of the Statute states that “the Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.” Since its inception, the ICC has ordered reparations in five cases—three of which are from the Situation in the Democratic Republic of the Congo (DRC): The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Germain Katanga, and The Prosecutor v. Bosco Ntaganda. Each defendant in these cases perpetrated horrific acts of violence in the Second Congolese War and/or shortly thereafter between 2002 and 2003 in the Ituri district of the Orientale province. Thus, each crime was committed within the same general context and many of their victims overlapped. Despite this, the ICC-mandated reparations were vastly different across the three cases. In one case, for instance, the Court issued collective service-based and symbolic reparations, whereas the other two cases resulted in different mixtures of individual and collective reparations. This presents a dilemma because while the Court requires that “the way reparations are addressed in any case before the Court need to be tailored to the particular circumstance of that case,” each case from the DRC took place within a similar context. 

This research thus seeks to explain the variation between Reparations Orders mandated by the ICC in the Situation in the DRC, specifically in The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Germain Katanga, and The Prosecutor v. Bosco Ntaganda. The answer is a variety of interacting causes, including victim identity, victim participation, the crime(s) committed by the defendant, reparation type legitimacy, the Trust Fund for Victims (TFV) and feasibility, and Court evolution—each of which will be expanded upon later. While there is a notable amount of scholarship on ICC reparations and on each individual case—particularly The Prosecutor v. Thomas Lubanga Dyilo and The Prosecutor v. Germain Katanga—there is little scholarship that frames the DRC as a single case study. This is especially true since the Reparations Order from the most recent case, The Prosecutor v. Bosco Ntaganda, was only released in March of 2021. This paper is thus framed as a single case study of ICC Reparations Orders in the DRC. Each case will be addressed in chronological order to illustrate the specific contexts of the cases and how the Court built precedent over time.

This scholarship is necessary to gain a deeper understanding of how international criminal justice and reparations function across ICC Situations, as well as how the international community can improve transitional justice practices. While international criminal justice is not a novel field of international law, the ICC itself is relatively new, and its reparations regime even newer. It is important to critically reflect upon and evaluate its processes in order to ensure that its procedures and practices are as effective as possible.

Background

The backdrop for our puzzle is the ICC’s significant lack of procedural clarity and problematic inclusion of victims—notable points of criticism for many legal scholars. Critiques of reparations in theory and practice, however, will not be addressed, as this paper is not an evaluation of reparations, nor will critiques of the Office of the Prosecutor’s (OTP) disproportionate focus on Africa be explored. W     hile well founded, they are not relevant to this particular paper. Rather, the purpose of this piece is to evaluate the Court itself and what led it to make certain decisions. A discussion of the Court’s procedural faults establishes proper context for what led the Court to issue different reparations in each case from the DRC. 

Most notably, the ICC has serious inconsistencies between its procedures and overall goals. Balta et al., for example, argue that the Court’s ability to implement reparations is hindered by both “procedural and conceptual challenges”—a sentiment which is similarly reflected by Kotecha. Balta et al. further contend that the incompatibility between the Court’s procedures and goals is derived from three distinct factors: “(1) the narrowly defined charges against the accused which in turn dictate reparations; (2) the low number of beneficiaries, in contrast with the large number of victims; and (3) accountability of the accused.” Ultimately, Balta et al. argue, the Court seeks to implement restorative justice when in reality its procedures are designed to reach verdicts on criminal charges. In other words, criminal justice and victim justice are not synonymous. Demonstrative of this fact is the difficulty the ICC and the Trust Fund for Victims (TFV)—the ICC’s reparations advising and implementing body—have in cooperating with one another, which is due to their vastly different mandates and practices. This hybrid regime, Lambert argues, is ineffective because it prevents the ICC as an institution from realizing a cohesive ideology. Kotecha echoes these concerns, further asserting that the OTP cannot reach the “fairest” decision because it is dually concerned with prosecution and public perception, which can often be in contradiction with one another. The Court believes it must speak for a wide range of groups simultaneously, including a nonspecific and broadly defined “international community,” potential perpetrators, governments, and victims. As a result, it is uncertain of its ultimate goals. This conflict between ICC procedure and goals establishes context for the Court’s reparations decision making process. 

In addition to the dichotomy between its punitive and restorative justice aims, the International Criminal Court also has a history of inconsistent procedures and practices when it comes to victim inclusion—a critical explanatory cause in this research. Victim participation in this paper refers to the extent to which identified victims play an active role in Court proceedings and/or the Trust Fund for Victims’ (TFV) work as individuals, groups, and/or via official legal representation. Victim participation in international criminal law is still an emerging practice—making the Rome Statute revolutionary in this vein, because “for the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.” For example, as noted by Evans, victims were completely excluded from the Nuremberg and Tokyo Trials following World War II. Several decades later, although victims were paid greater attention, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) were still criticized for how little victims were permitted to actively participate in case proceedings. Such criticisms helped catalyze the norm change under the Rome Statute. Now, due to this monumental shift, recognized victims have a significant stake in the ICC. Nevertheless, there continues to be fervent disagreement about whether or not this high level of participation ultimately benefits victims and provides them with adequate justice.

This debate is largely rooted in the fact that the ICC currently has “no formal rules governing” its victim inclusion practices, and instead chooses to take a case-by-case approach. This case-by-case approach can lead to victim inclusion practices that are potentially subjective and inaccurate. In addition to procedural inconsistencies it is extremely difficult to “properly” determine who counts as an eligible victim in the instance of mass atrocities. For instance, Keller specifically points to the possible hundreds of thousands of victims in just the DRC alone, and that identifying each victim, documenting exact harms suffered, and distributing sufficient reparations is a near impossible task. Then, due to the astronomical number of potential victims, the Court becomes extremely backlogged. This backlog is worsened by the ICC’s limited resources and the complexity of the victim participation application. This phenomenon will be discussed extensively throughout this paper because the ways in which victims participated in each case hugely determined the outcome of reparations.Several scholars argue this inability to reconcile punishment and restoration stems from an inherent issue in the way the ICC conceptualizes justice. Mégret believes this to be because the Court is modeled off of state domestic criminal courts, which explicitly prioritize prosecution over restoration. The American University Washington College of Law’s (WCL) War Crimes Research Office echoes this sentiment, stating that “treating ICC victims as closely as possible to “parties civiles” may not, in fact, be the best way to serve restorative justice goals.” Essentially, the ICC approaches the prosecution of mass atrocities and victims of said atrocities in the same manner that a domestic court would approach a criminal suit. Other scholars, such as Dean and Sander, add that because of this prosecutorial focus, victims are not treated as serious stakeholders but simply as moral legitimizers of the tribunal itself, or a justification for the institution’s existence. This conceptual confusion results in “a clear subordination of the interests of victims to the adjudicative needs of the tribunals, whose primary function remained the determination of the culpability of the accused on trial.” In order to atone for this discrepancy, powerful actors imagine victims as a symbol, rather than individuals with legitimacy and agency. Consequently, “the symbolic victim provides a rationale for the usurpation of victims’ voices by lawyers, human rights’ proponents, and politicians, and is thus also an alibi for the empowerment of voices other than those of the victims.” This loss of voice for victims is also a concept that will be explored in depth in this paper, as the ICC did not always listen to victims—especially during reparations proceedings.

Identified Concepts and Causal Factors

The outcome, or phenomenon that this research seeks to explain, is reparation type. As this paper solely addresses International Criminal Court reparations, the definition of reparations used in this research is limited to the definition outlined in the Rome Statute, which states that reparations for victims include “restitution, compensation and rehabilitation.” Reparations are meant to provide victims and the harms they suffered with proper acknowledgement and legitimacy. While reparations cannot always effectively repair damage, they are a critical aspect of the transitional justice process. It is also worth noting that scholars and legal experts have since devised more inclusive definitions that include rights to satisfaction, disclosure of the truth, guarantees of non-repetition, accountability, and peacebuilding.

Reparation type can be divided into three categories (which may be combined in a number of ways): individual, collective, and symbolic. Individual reparations refer to measures taken to assist victims on the individual level, whereas collective reparations seek to provide redress for entire victim groups. Symbolic reparations, on the other hand, are slightly more complicated. Although “by definition, all reparations have an important symbolic role,” explicitly symbolic reparations are usually less material in nature      and seek to provide victims with an intangible degree of satisfaction (harm recognition), as well as a guarantee of non-repetition. Some examples of symbolic reparations include “a statement of apology… creating dignified burial sites, [and] establishing rehabilitation and community centers.” 

In endeavoring to explain how the International Criminal Court ordered a different reparation type in each case, I have identified the following causal factors: victim identity, victim participation, the crime(s) committed by the defendant, reparation type legitimacy, the Trust Fund for Victims (TFV) and feasibility, and Court evolution. Victim participation has already been outlined extensively in the Background, so it will not be discussed too much until the findings section.           

First and foremost, we must address the concept of the “victim.” According to Rule 85 of the ICC’s Rules of Procedure and Evidence: 

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

Essentially, the ICC recognizes any person or entity that has sustained harm from any crime outlawed by the Rome Statute, but this harm must have been done by the defendant in some capacity. The Court does not have the authority to provide reparations to persons who were not victimized by a convicted individual. This is, of course, because the ICC is a judicial body before a restorative or transitional justice organization. As such, the Court has divided victims into two categories for identification: there are “those who happen to be victims of defendants selected for prosecution by the Court, and those who are victims of the same conflict or situation but whose tormentors are not before the Court.” The ICC separates these types of victims into two distinct but overlapping categories: direct and indirect victims. While ICC reparations can only be issued for the victims of convicted defendants and their crimes, the Court has given indirect victims reparations because indirect victims still experience harm that resulted from a defendant’s actions. Unfortunately, however, it is extremely difficult to identify and categorize victims accordingly. The Court has attempted to define direct and indirect victims in each individual case, though it is worth noting that ICC judges are permitted to use their discretion when determining who constitutes a victim in a given case.

Now that we have clarified who exactly the International Criminal Court recognizes as a victim, it is crucial to define victim identity—a key cause in determining the outcome of reparations. Victim identity, for the purposes of this research, will be defined as: personal and social components of an individual victim and/or victim group, including age, gender, familial status, ethnicity, socio-economic status, place of origin and/or of residence, nationality, legal victim status, and perpetrator status. Age, ethnicity, and gender are especially prominent in this research, as these identifications played significant roles in shaping how victims experienced their individual and group traumas. Ethnicity, for instance, was a large consideration in all three cases, but especially those of Lubanga and Ntaganda, as the Court had to consider whether or not reparations for certain groups would escalate ethnic tensions.

Victim identity is further complicated by the phenomenon of perpetrator victims, otherwise known as guilty or “complex victims.” A complex victim is defined as “those who have been victimized but are responsible for victimizing others.” These victims are distinct from “innocent victims”, or “those who are not members of armed groups (i.e., civilians).” Many innocent victims and non-victims alike have understandably serious apprehensions about providing reparations to complex victims, and often find the idea deeply insulting. However, complex victims have been recognized as legitimate victims in several cases. For instance, both Lubanga and Ntaganda were convicted of conscripting and enlisting child soldiers. These child soldiers are considered direct victims of the defendants’ crimes who then went on to commit atrocities themselves. Under the International Criminal Court, these children are considered complex victims worthy of reparations. The victims of these child soldiers and/or the children’s families would then be considered indirect victims of the defendants. Identity is thus an incredibly important causal concept because identity contextualizes victims’ sufferings and helps dictate their immediate and long-term needs. It is also very tied to victim participation, as victims’ identities shape how they interact with the ICC and TFV. In other words, their identity informs their participation.

How well reparations can address victims’ needs is highly dependent on whether or not that form of reparations has legitimacy among victims—otherwise known as reparation type legitimacy. Reparation type legitimacy refers to perceptions or assumptions by victims that the actions of the International Criminal Court are desirable, proper, and/or appropriate within the socially constructed system of norms, values, beliefs, and definitions of the victim group. This definition draws upon and specifies Suchman’s conceptualization of legitimacy in social science. The legitimacy of different forms of reparations influences how effective that type of reparations is at repairing harm. This means that reparation type legitimacy is a more prominent causal factor in the Katanga and Ntaganda cases because they each occurred after Lubanga’s conviction. Thus, after the implementation of Lubanga and Katanga reparations, victims had the opportunity to observe the successes and failures of past reparations programs. 

Evidence shows, as we will explore, that the Court accounted for these failures and responded to shifts in reparation type legitimacy that arose as a result. For instance, although Western scholars and lawyers tend to view symbolic and transformative measures as more effective forms of reparations, “in the Katanga case the victims are more at odds with this approach, with the majority demanding individual compensation and finding collective and transformative measures ineffective as non-victimised members of the community were able to benefit.” In the Lubanga case, the Court ordered collective reparations, which inadvertently benefitted non-victims, which was not an entirely successful approach. Katanga’s victims were dissatisfied with the idea that non-victims, indirect victims, and/or complex victims could possibly benefit from reparations and adamantly advocated for individualized reparations. Thus, it is clear that collective reparations lost their legitimacy among victims. 

The Court’s response to each of the aforementioned causes signals institutional learning. The ICC is still a very novel organization and is continually learning from its successes and failures. In regard to reparations, specifically, the Court has been building upon and expanding its existing infrastructure when necessary as new cases arise. Court evolution is therefore defined as the ways in which the International Criminal Court and its programs expand, shrink, and/or change over time as the Court continues to learn and establish itself. The most prominent example of this evolution is the reparations program for former child soldiers in the Lubanga and Ntaganda cases. There were many overlapping victims across cases and, rather than rebuild new rehabilitation programs for former child soldiers, the Court utilized existing reparations infrastructure to address the needs of Ntaganda’s child soldier victims. This example will be explored in much greater detail in the analysis portion.

The crime(s) committed by the defendants also significantly affects the outcome of Reparations Orders. Thomas Lubanga, Germain Katanga, and Bosco Ntaganda all committed crimes during the Second Congolese War, however, the individual crime(s) they committed largely determined the type of reparations mandated by the ICC in each case. For example, a victim from the ICC’s Situation in the DRC is considered a victim of the Second Congolese War, but is first and foremost a victim of the crime(s) committed directly against them, such as pillaging or conscription and enlistment as a child soldier. In other words, the defendant’s crime(s) shape the specific context of each case, including victims’ unique experiences of harm and their subsequent reparations needs. Therefore, the specific crime(s) committed by defendants before the Court naturally influences the ICC’s reparations decision and implementation plan.

The final explanatory concept is the Trust Fund for Victims and reparations feasibility. The two are not entirely the same but are inherently related. The ICC itself is not actually responsible for implementing reparations and providing post-conflict support—that duty lies with the TFV. When issuing a Reparations Order, the Court must consider the Trust Fund’s capacity to implement reparations effectively—a capacity that is highly limited for a number of reasons, including but not limited to funding, victim identification issues, potential and/or persistent conflict etc. However, the Trust Fund is unique in that it has two separate mandates: the Reparations Mandate and the Assistance Mandate. The Reparations Mandate requires the TFV to implement Court-ordered reparations against a convicted person via “funds from the convicted person and/or [it] uses its voluntary contributions upon the Board of Director’s decision.” The Assistance Mandate refers to the TFV’s work to provide redress for the most vulnerable victims by partnering with non-governmental organizations and other local partners. The barriers to the TFV’s capacity to implement reparations will be explored in more detail in the analysis section. It is important to note that, unless otherwise specified, this paper will be referring to the Trust Fund’s Reparations Mandate because the Reparations Mandate is primarily responsible for carrying out a Court order for reparations.

Originally, Court legitimacy and politicization were identified as potential causal factors. However, they were ruled out because there was not enough evidence to support these theories, nor did they necessarily fit the lens used in this research. Firstly, Court legitimacy was not a significant enough factor because the International Criminal Court already views itself as a legitimate institution and operates as such. While its legitimacy is frequently questioned by outside groups, including victims, the Court itself does not call its own legitimacy into question when issuing decisions. Perceptions of Court legitimacy can influence how well reparations are received, but this would not fall under reparation type legitimacy. Politicization was a factor in leading to the outcome of reparations but can also be categorized under other identified causes. For example, rivalry between political factions in the DRC is key to understanding each crime committed, as each defendant was part of a militia involved in a complex conflict. Political differences are also central to feasibility, as many politically charged tensions, such as land disputes, hindered the TFV’s capacity to implement reparations programs.

Methodology

This case study primarily draws from a constructivist ontology and epistemology. In forming my theory and concepts, I heavily relied upon the idea of “mutual constitution [emphasis added]”—or multicausality—and emphasized the study of “intersubjectivity, context, and power.” In analyzing my data, I also stressed interpretive causality. Mass atrocities, international criminal tribunals, and reparations are extremely complex phenomena that are inextricably linked to a multitude of intersubjective perspectives and discourses, contexts, and power structures. For instance, victim identity and the crimes committed against those victims create victims’ contextual realities and perspectives. The ICC had to then weigh these often competing, intersubjective perspectives when making its decisions. As such, an attempt to explain what led the ICC to order reparations in each case cannot be approached using neo-positivist methods.

Thus, rather than focusing on data collection, I emphasized multicausal data generation and interpretation. In doing so, I almost exclusively analyzed primary source documents, namely Court records and official ICC press releases. In searching for and selecting documents, I began by using the ICC database’s search tool, in which I specifically narrowed down my search to documents related to the reparations/compensation phase of the three cases. After finding my initial set of documents, I largely relied on snowball sampling because the ICC routinely cites itself. Thus, valuable information in one document frequently referenced related valuable information in another document. Information that I generated was categorized using both deductive and inductive coding. I began with a set of predetermined causal concepts that I initially theorized and deductively identified in my data. Nonetheless, after sifting through several sources, I discovered other causes that I had not previously accounted for, such as victim identity—particularly the importance of ethnic identity—and transitioned to using a combined deductive and inductive coding strategy. 

There are several limitations to this research, with the most outstanding being that of breadth. The ICC’s court records database contains thousands of documents just for the Situation in the DRC. Many of these documents are incredibly long and complex. Discerning which documents were worth reading was extremely difficult, and I was limited in my capacity to examine all of them. Moreover, full transcripts of victim testimonies have not been translated into English and, as a non-French speaker, I was unable to use them. However, I am confident that I selected my sources well based on snowball sampling, as it quickly became clear which documents the Court frequently cited in its own records—indicating which documents were the most important. I am also confident that my analysis is highly plausible considering my strong interpretation and emphasis on mutual constitution, and I was able to draw connections between causes throughout my data to uncover a multilayered causal story.

Case Analysis

Brief Background

The Second Congolese War, sometimes referred to as the “African World War,” officially lasted from 1998-2003, but severe violence is still ongoing throughout the DRC. Brutal fighting initially broke out when a Rwandan and Ugandan-backed rebel group known as the Rassemblement Congolais Democratique (RCD) tried and failed to oust Congolese President Laurent-Desiré Kabila in 1998. However, he was eventually assassinated in 2001 and replaced by his son, Joseph Kabila. In 1999, the Lusaka Ceasefire Agreement was signed and UN Peacekeepers were deployed, but these efforts failed to end the violence. Many more militias were formed throughout the conflict, with up to fourteen armies fighting simultaneously—making peacebuilding efforts extremely difficult. A series of peace agreements were finally signed in 2002 and 2003 officially ending the war, but violence continued to occur.The war is frequently referred to as an “interethnic conflict,” as many of the rebel groups formed based on shared ethnic identities and prejudices. However, contrary to popular belief, these tensions are not rooted in “traditional” or “ancestral” differences, but rather socio-economic inequities that largely originated during the Belgian colonial rule over Zaire (now the DRC). The colonial regime unequally divided land and other economic resources among ethnic groups, favoring some over others. Tensions between these groups were then exaggerated by foreign influence during the war itself—primarily that of Rwanda and Uganda. Each ICC case explored in this paper is situated within this general context, but more specifically, in the Ituri district, where the fighting was especially gruesome and politically complex. Hence, our dilemma. Although the defendants operated concurrently and under very similar circumstances, the outcome of reparations varied widely. In the following sections I will discuss the defendant’s crimes in the order in which they were handled by the ICC. The Lubanga case will be discussed in the most detail, as it is the oldest Congolese case and, therefore, has much more available information than the other two cases.

The Prosecutor v. Thomas Lubanga Dyilo

Thomas Lubanga is a founding member and former leader of the Union des Patriotes Congolais (UPC) militia group and its military apparatus, the Force patriotique pour la libération du Congo (FPLC), also known as the Patriotic Force for the Liberation of Congo. In 2012, the International Criminal Court, found him “responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities… from early September 2002 to 2 June 2003.” Lubanga’s war crimes conviction was monumental because it was the International Criminal Court’s first verdict. The ICC announced its initial order for reparations in August of 2012 titled the Decision, establishing the principles and procedures to be applied to reparations, but released an amended Reparations Order in 2015. Reparations finally ordered against Lubanga were “collective service-based” reparations—including tangible measures such as “mental & physical health services to address the trauma and bodily harm suffered” and “vocational training to account for the absence of skills learned during development years.” Underneath the umbrella of collective service-based reparations, the Trust Fund for Victims also implemented more symbolic gestures, such as the “construction of symbolic structures” and “a mobile programme to host interactive symbolic activities and to reduce stigma against former child soldiers.” 

A foremost concern in deciding reparations in this case was the potential for conflict escalation due to victims’ ethnic identity, as well as their status as former child soldiers, who are considered complex victims and highly stigmatized. The majority of victims were members of the Hema ethnic group, as Thomas Lubanga primarily conscripted children from his own ethnic community. Many involved parties were thus worried that reparations would be regarded as ethnic favoritism. These groups were also concerned that many Congolese people would be angered by the awarding of reparations to child soldiers, whom they primarily view as perpetrators. Despite it being an internally recognized crime, child recruitment is also not always viewed as inherently wrong in select areas, thus meaning that child soldiers are not necessarily seen as victims to begin with. As such, most victims involved in the proceedings, along with their legal representation, advocated for individualized reparations. However, several of these groups still acknowledged that collective reparations had the potential to de-stigmatize former child soldiers. It is therefore clear that the specific crime committed by the defendant—that of conscripting and enlisting child soldiers—played a significant role in shaping the outcome of reparations. 

In attempting to come to a decision, the Trial Chamber heard advice from several interested parties, including victims. Throughout both the trial and post-trial phases, a total of 146 people were recognized as victims and permitted to participate in the proceedings. Victims were represented by the Legal Representatives of the Victims—a team of external legal counsel who represented two separate groups of victims referred to as V01 and V02, and the Office of Public Counsel for Victims (OPCV)—a team that represented victims “unrepresented” and unidentifiable applicants. Most of the teams consulted argued in favor of individualized reparations largely due to the previously stated concerns. For example:

The legal representatives of the V01 group of victims submit that the majority of the individuals they represent contend that collective reparations are difficult to apply to former child soldiers because they are not a cohesive group, and they are often in conflict with their own communities… it would be illogical to award reparations for the benefit of the Hema community as a whole, and this would be unfair to other communities. However, they support collective reparations as a means of reintegrating former child soldiers.

It is evident here that victims themselves were generally opposed to collectivized reparations because they feared that collective reparations primarily given to Hema children would be viewed as reparations for the Hema community exclusively. Although the ICC can only issue reparations for victims of crimes committed by the defendants, the potential for perceived ethnic favoritism could escalate already highly precarious ethnic relations. Moreover, the V01 team emphasized that child soldiers, despite sharing an ethnic identity, are not a cohesive group and have vastly different needs due to the specific harms suffered as a result of their conscription. As such, in one interview with victims “twelve of the fourteen interviewees consider that individual financial compensation, even though limited, would be useful to them or even necessary.” Many victims felt that individual financial assistance would be more beneficial to them, as it would help avoid further ethnic confrontation and allow them to address their own needs. 

Nonetheless, the V01 team recognized that collective reparations would be beneficial for de-stigmatization. In the same interview, victims confirmed this sentiment:

The majority of former child soldiers in group V01 (9 of 12) thus support the idea of an outreach campaign in the community to combat the unsavoury reputation of former child soldiers (bad, violent or delinquent boys, “sullied” girls) and to encourage respect for and solidarity with these victims. This view is shared by the two parents who were consulted. The creation of a memorial to the children who died in combat and to denounce the horror of recruitment of children was also well received by the victims (10 of 14). 

Child soldiers are evidently complex victims. Male child soldiers in particular often maintain, at least in part, their perpetrator status. Female child soldiers, on the other hand, are frequently viewed as tainted because many of them faced sexual violence throughout their service in the UPC/FPLC. Thus, the Court looked favorably upon efforts to reintegrate former child soldiers back into their communities, as well as call attention to victim suffering. The de-stigmatization effort would preferably be two pronged: one part would attempt to demonstrate to the general Congolese population why conscripting child soldiers is harmful and worthy of criminalization, while the other aspect would seek to facilitate reconciliation between child soldiers and their communities. Victims also advocated for commemoration or memorialization measures—forms of symbolic reparations—that would acknowledge and legitimize the suffering of former child soldiers.

Such attitudes were similarly reflected by the V02 team, who also argued in favor of individual reparations but recognized the importance of collectivized aspects:

Although the legal representatives of the V02 group of victims argue in favour of individual reparations, they submit that collective reparations could serve to avoid a negative perception of child soldiers on the part of other members of their communities; they would be open to child soldiers who did not participate in the proceedings; and they may deter child recruitment.

Like the V01 team, the V02 group confirmed that victims desired individual reparations because individual reparations were seen as the best way of addressing individual harms suffered. Furthermore, both groups posited that collective reparations could play a role in helping to de-stigmatize former child soldiers. However, the V02 group made an additional contribution to the conversation, stating that collective reparations would benefit victims who did not have the unique opportunity of participating in Court proceedings or had been yet to be identified. This is noteworthy because the majority of victims were unable to participate in the proceedings, and it would be woefully unfair if only participating victims were granted reparations. 

Although many victims and their legal representation stated that collective and/or symbolic reparations may be beneficial for them, individual reparations carried much more legitimacy among victims. Despite this, the Trust Fund for Victims argued for an almost entirely collective approach, contending that:

The source of funding may affect whether there should be an individual or collective award… Additionally, the TFV submits that individual awards which are dependent on successful applications to participate may not be the most appropriate approach in the present case, given only a small number of victims are currently participating and they are not necessarily representative of the wider group of victims. It is estimated that thousands of individuals are believed to have been victims in the district of Ituri and it would be a resource intensive and time-consuming undertaking for the Court to attempt to assess the position of each of them.

The TFV’s primary concern was how to realistically address victim needs, and thus      considered practical limitations. Funding for reparations in the Lubanga case was extremely limited because “the convicted person has been declared indigent and no assets or property have been identified that can be used for the purposes of reparations.” The Court would preferably draw from the perpetrators’ personal assets to fund reparations, but Lubanga’s fiscal situation prevented him from being financially liable. Thus, the TFV had to rely on external financing to implement reparations, which impaired its ability to implement individualized reparations. Moreover, the ICC would likely be unsuccessful if it tried to identify every single victim. Thus, keeping in mind the Court’s final decision, it seems that feasibility significantly overruled what victims advocated for.

After hearing each of these arguments presented before it, the Trial Chamber issued its Decision establishing the principles and procedures to be applied to reparations in 2012, in which the ICC issued collective reparations for identified direct and indirect victims. Reparations consisted of various efforts to promote restitution through education, job renewal, and housing projects; compensation through economic assistance programs; and rehabilitation through “the provision of medical services and healthcare… and any relevant legal and social services.” The distribution and implementation of these reparations were to be gender-inclusive and given first to the most vulnerable victims. Unfortunately, due to the defendant’s financial situation, the Chamber stated that Lubanga did not bear personal liability and would “only [be] able to contribute to non-monetary reparations. Any participation on his part in symbolic reparations, such as a public or private apology to the victims, is only appropriate with his agreement. Accordingly, these measures will not form part of any Court order.”

Shortly after the Trial Chamber released this decision, the Defense, followed by the Legal Representatives of the Victims and the OPCV, submitted appeals. The Defense posited that naming certain groups as beneficiaries—including victims who did not participate in the trial and victims of sexual violence—violated the rights of the accused. Firstly, the Rome Statute states that only recognized victims can be beneficiaries of reparations, and the Defense claimed that non-participating victims should not be considered recognized victims. Secondly, the Statute stipulates that reparations can only be ordered against the specific crime(s) of the defendant, and Lubanga was not convicted of sexual or gender-based crimes. The Defense therefore argued that reparations for victims of sexual violence violated the Statute.

The V01 team both countered the Defense’s claims and challenged the Chamber’s decision, contending that “the Trial Chamber erred in law by dismissing the individual applications for reparation without entertaining them,” and “erred in law by absolving the convicted person from any obligation as regards reparations.” In accordance with its recommendation to the ICC on behalf of victims, the Legal Representatives of Victims continued to advocate for individualized reparations. A collective approach and deferral of reparations to the TFV entirely, they argued, violated individual victims’ right to reparations outlined in the Rome Statute. The Legal Representatives further contended that the Chamber violated the Statute by relieving Lubanga from any responsibility for reparations. Despite funding issues, the V01 team argued, if reparations were to be made against a defendant, then the defendant should be liable no matter their financial situation. 

The Appeals Chamber ultimately released its decision on the submitted appeals in 2015, along with an amended Reparations Order. In its decision, the Court ruled against the Defense’s claim about victims of sexual violence, stating that “the Fund may consider providing support to victims of sexual violence in Ituri, although Mr Lubanga has not been accused or convicted of crimes of sexual violence.” The TFV’s dual mandate “of general assistance to victims in situations where the ICC is active, and the mandate to contribute to the implementation of orders for reparations to victims in particular cases before the Court” allows the ICC to simultaneously provide victims of sexual violence with redress without violating the Rome Statute or the defendant’s rights. Evidently, the Trust Fund played a significant role in determining the outcome of reparations. Its external sources of funding and dual mandate allow it to deliver reparations for a more general population of victims without making the defendant liable. 

However, the decision to entirely absolve Lubanga from responsibility for reparations was overturned, despite his limited finances. The Appeals Chamber ruled that:

The Trial Chamber erred in not making Mr Lubanga personally liable for the collective reparations due to his current state of indigence. The Appeals Chamber held that reparations orders must establish and inform the convicted person of his personal liability with respect to the reparations awarded, and that if the Trust Fund for Victims advances its resources in order to enable the implementation of the order, it will be able to claim the advanced resources from Mr Lubanga at a later date.

As reparations are supposed to be made against a specific defendant for their crimes, absolving Lubanga from responsibility wholly due to his poor financial situation would be harmful. It would demonstrate to victims that the perpetrator of the crimes committed against them is not responsible for their harm and subsequent redress. This decision is also of note because it establishes a precedent for future Reparations Orders and perpetrator liability, which will be significant in both the Katanga and Ntaganda cases. Finally, the Appeals Chamber ruled against the V01 legal team and confirmed the Trial Chamber’s decision to rely almost solely on collectivized reparations—effectively denying      participating victims and their legal representation of their requests. In defense of its choice, the Appeals Chamber “highlighted that the number of victims is an important factor in determining that reparations on a collective basis are more appropriate.” The TFV, while able to use external funding from donating States and organizations, ultimately did not have the ability to provide individual reparations, nor did any of the Court’s apparatuses have the capacity to identify each victim. This decision is reflective of the argument made by the TFV in the initial Decision establishing the principles and practices to be applied to reparations, which emphasized the thousands of potential victims that the Court would not be able to reach if it took an individual approach. Therefore, it is clear that in this case, the capacities of the Trust Fund for Victims were given priority over the identity and participation of victims, the crime(s) committed, and reparation type legitimacy—though they were all still contributing factors.

The Prosecutor v. Germain Katanga

Germain Katanga was “found guilty, as an accessory, of one count of crimes against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003 during the attack on the village of Bogoro” in 2014. At the time, Bogoro—a village located in the Ituri district—was under the control of the Ugandan-backed UPC militia, composed primarily of Hema combatants. The attack was perpetrated by a rival Ngiti militia known as Patriotic Force of Resistance in Ituri (FPRI), of which Katanga was the “de jure supreme commander,” with “de facto ultimate control over FRPI commanders.” Katanga himself is Ngiti—an ethnic subgroup of the Lendu that predominantly resides south of Bunia, the capital of Ituri. Originally, the Court jointly tried both Germain Katanga and an accused co-perpetrator, Mathieu Ngudjolo Chui, in 2008 after apprehension. However, the cases were severed in 2012, and Katanga’s case proceeded with the singular defendant case. The Court issued an official Reparations Order in 2017, including “a symbolic compensation of USD 250 per victim [for 297 victims] as well as collective reparations in the form of support for housing, support for income‑generating activities, education aid and psychological support.”

Germain Katanga’s case is uniquely interesting, as it shares fewer commonalities with the other two cases. For instance, the type of crimes committed by Germain Katanga were significantly different from those committed by Lubanga and Ntaganda, who were both convicted of conscripting and enlisting child soldiers. Lubanga and Ntaganda also share a common ethnicity and were former members of the same militia. Thus, Katanga’s case is the best example of why the crime(s) committed by the defendant is a significant causal factor in determining ICC reparations in the DRC. The harm that victims of the Bogoro attack suffered was, in many ways, very different from the harm suffered by former child soldiers. While all were equally horrific, they were different in nature. Victims of the attack suffered major economic losses, especially land, property, and housing destruction. Consequently, what victims advocated for was largely determined by the ways in which their identity intersected with the harm they experienced. For instance, ranching and the raising of livestock was an extremely popular occupation that significantly shaped Bogoro’s local economy and customs—particularly among the sizable Hema population living there. Much of the ranching land, equipment, and livestock was destroyed when the FPRI attacked. Many victims also lost their homes and/or a family member. In many cases, this caused mass displacement and made it more difficult for families to get by. No longer able to finance their childrens’ school tuition, children stopped attending school. As such, the majority of victims wanted economic compensation because they believed that it would best repair the harm they suffered.

The ICC Registry confirmed this notion in its consultation with victims. In this case, victims were once again represented by the Legal Representatives of Victims, but they were not divided into subcategories nicknamed V01 and V02, as was done in the Lubanga case. In a survey of 305 identified victims, “over 98% of the victims reported having suffered from each of the crimes characterised as ‘Attack on a Civilian Population’; ‘Pillage’; and ‘Destruction of Property’” and “over 99% of the victims consider that economic development and financial measures would be the most appropriate form of reparations.” These high percentages indicate that the nature of Katanga’s crimes, which differed significantly from the other two defendants, shaped victims’ needs. Victims felt that their specific needs would only be addressed through economic or monetary reparations because the harm they experienced at the hands of the convicted person was largely economic. This need for economic assistance was further amplified by victims’ identities. For instance, women typically bore a significant burden after the attack, during which many of them lost their homes and, subsequently, their domestic domain. In its interviews, “the Registry notes that the impact of the crimes on the family appears to have particularly affected women, 96% of whom reported some form of continual harm.” Women disproportionately advocated for reparations in the form of housing support because it would best suit their socio-economic and cultural situation—which was dually shaped by their identity as women, mothers, domestic workers, and the harms that they suffered. Consequently, the majority of victims consulted almost unanimously wanted individualized reparations.

The potential barriers to implementation that the Court had to consider for both individual and/or collective reparations included ethnic tension escalation and funding. Bogoro is a predominantly Hema village and, due to the colonial organization of land and other economic resources, those who possess land and capital were mostly Hema. This was a serious dilemma because it could mean that the Court was once again seeming to favor the Hema in its reparations programs, when all Congolese people suffered from horrific acts of violence and loss throughout the war. The Legal Representatives of Victims noted that:

Since in that case the charges were limited to enlisting and conscripting children under the age of 15 into armed forces and using them to participate actively in hostilities, the victims in both cases are primarily from the Hema community. The result is that reparations awarded by the Court in both cases are likely to benefit victims from one side of an ethnic conflict in which both sides perceive that they suffered harm.

Already, the Court had taken a risk by delivering collective reparations to former child soldiers in the Lubanga case because of the potential perception of ethnic favoritism. The ICC and victims’ legal representatives were once again worried that collective reparations could exacerbate ethnic tensions, especially if the Court’s second round of reparations in the Congo were given to the same ethnic group as before. Even individualized reparations in this case could be construed as ethnic favoritism because the landowning and ranching class were largely Hema. Therefore, if economic reparations were given out to victims with the purpose of restoring what they lost, then the restoration efforts would be imbalanced since those who occupied a lower socio-economic station prior to the attack would not experience as much material benefit from the reparations program. The ICC was similarly concerned that giving reparations to victims in Bogoro would perpetuate division and conflict between neighboring ethnic and geographic communities—as many other villages were also brutalized throughout the war. Perpetrators of other violent attacks were just not before the Court at the time. The Court must ultimately follow the provisions of the Rome Statute when coming to a decision on reparations, but it must first acknowledge that the perception of favoritism could actually hinder a reconciliatory process, injure victims further, and damage the ICC’s legitimacy.  The ICC reparations decision was also affected by funding availability. In a rigorous evaluation process, the ICC Registry estimated the total value of harm done to all victims using factors such as the value of housing, personal effects, businesses, harvests, livestock, physical harm, and psychological harm. The final estimate equated to $3,752,620. However, as the Court found Germain Katanga to be indigent, there was significant debate over how much he could be considered liable for. Remember, the Court had already established the precedent in the Lubanga case that an indigent defendant is still liable, at least partially, for reparations—even if only symbolically. For instance, “the scope of the convicted person’s liability, it is recalled, must be proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes of which he or she was found guilty.” The ICC Rules of Procedure and Evidence outline that a defendant’s financial liability for reparations must be determined based on a consideration of the harm inflicted and the extent to which the defendant inflicted said harm.  The Defense argued that Katanga should not be held accountable for the entirety of the harm inflicted, because he was convicted as a co-perpetrator. However, the Chamber ultimately held that neither Katanga’s indigence or co-perpetrator status should impede his liability for reparations, and mandated that Germain Katanga be liable for $1,000,000. Unfortunately, this $1,000,000 was still not enough to justify an entirely individualized approach to reparations. The difficulty of identifying and screening eligible victims, as well as locating displaced victims, was too great. The Court, however, knew that a solely collective approach would not be seen as legitimate in the eyes of victims, and hence ordered the creation of collectivized economic programs, alongside a symbolic individual payout of $250 to 297 identified victims.

The Prosecutor v. Bosco Ntaganda

Bosco Ntaganda is the former Deputy Chief of Staff and commander of operations of the FPLC—the UPC’s military branch. In 2019, the Trial Chamber convicted him of 13 counts of war crimes and 5 counts of crimes against humanity—a verdict which was confirmed by the Appeals Chamber in March of 2021. At the time the ICC also “awarded collective reparations with individualised components. The modalities of reparations may include measures of restitution, compensation, rehabilitation, and satisfaction, which may incorporate, when appropriate, a symbolic, preventative, or transformative value.”

One of the biggest puzzles of this research concerns overlapping victims, and why the Court issued vastly different types of reparations when many of the victims overlapped across cases. The answer can be found in the Ntaganda case. Ntaganda was a colleague of Lubanga and both were convicted of conscripting and enlisting child soldiers and using them for armed hostilities for the UPC/FPLC—meaning that many of these children overlapped. The collective service-based reparations awarded to former child soldiers in the Lubanga case is viewed by the Court as a comprehensive approach that benefits all necessary direct and indirect victims. Thus, the ICC felt that these existing programs could be utilized to also serve former child soldiers affected by Ntaganda’s crimes:

It will thus adopt, for the purposes of reparations in this case, the reparation programmes ordered by Trial Chamber II in the Lubanga case, in relation to the overlapping victims and harms of both cases. Accordingly, the reparation programmes implemented in the Lubanga case, which comprehensively repair the harm caused to the overlapping direct and indirect victims of both cases, should be understood to repair the victims’ harm on behalf of both, Mr Lubanga and Mr Ntaganda.

It would be illogical for the Court to utilize its incredibly limited resources to rebuild identical programs from the ground up to benefit the same type of victim in the same geographical area. The Trial Chamber instead recognized that in order to best suit victims, it should maintain existing, successful programs established during the Lubanga case to serve newly identified victims. This instance is the most prominent example of Court evolution and expansion, as it demonstrates the ICC’s changing approach to reparations as it continues to prosecute and convict defendants from the same Situation.

With regard to this decision, some parties had concerns about whether or not Ntaganda would no longer be considered the liable party for reparations if a different defendant’s reparations were used. In response, the Chamber clarifies that this new approach to overlapping victims would:

Under no circumstances, diminishes Mr Ntaganda’s liability to repair in full the harm caused to all victims of the crimes for which he was convicted. To the contrary, Mr Lubanga and Mr Ntaganda are jointly and severally liable to repair in full the harm suffered by the overlapping victims and both remain liable to reimburse the funds that the TFV may eventually use to complement the reparation awards for their shared victims.

In trying to come to a decision on this issue, the Court and several interested parties were concerned that using the reparations infrastructure established in the Lubanga case to address overlapping victims would demonstrate to the public that Ntaganda is not responsible for the harm done to his victims. To address this concern, the Court emphasized that the decision was a strategic maximization of limited resources designed to help as many affected direct and indirect victims as possible. The release of Ntaganda from direct financial liability and the utilization of existing reparations infrastructure in no way diminished his responsibility as a perpetrator. The Court must also engage in equitable practices when delivering reparations to victims, and one such equitable practice principle is known as “no over-compensation.” By continuing to use existing programs for Ntaganda’s child soldier victims, the Court was adhering to the no overcompensation principle for former child soldiers in the DRC, who are seen as a larger collective of victims.

It is clear that the crime of conscripting and enlisting child soldiers played a large role in determining the outcome of reparations in the Ntaganda case. The same was true for the other crimes he committed, as well as the identity of those specific victims. For instance, Ntaganda was the first defendant from the Situation in the DRC to be convicted of crimes related to sexual violence, including rape and sexual slavery. The nature of these crimes necessitated a different approach to reparations. For instance, due to the high pervasiveness of rape and sexual slavery among the UPC, many women and girls (including those under the age of 15) were impregnated against their will. While these women and girls were rightfully identified as direct victims, their children were not originally going to be considered victims. The OPCV, in particular, became a strong voice advocating that the label of indirect victim should be extended to children born out of rape and sexual slavery. The Chamber, rather than qualifying children born from rape and sexual slavery as indirect victims, “concluded that, in light of the circumstances of the case, children born out of rape and sexual slavery may qualify as direct victims, as the harm they suffered is a direct result of the commission of the crimes of rape and sexual slavery.” This shift is notable because it exemplifies that the crimes committed by the defendant and their intersection with victims’ identities do, in fact, have a significant impact on the outcome of reparations in ICC cases.

Reparation type legitimacy also had a large role in this case. By the time the ICC released its Reparations Order in 2021, almost twenty years had passed since Ntaganda’s crimes. Consequently, victims were not amiable to non-material or symbolic forms of reparations. The Chamber notes that:

In reaching this decision it particularly took into account the victims’ wish not to be granted any form of memorialisation or other forms of symbolic reparations unless they serve practical purposes, and their wish to receive awards aiming at supporting sustainable and long-term livelihood and well-being, rather than simply addressing their needs on a short-term basis.

Reparations are meant to legitimize victim suffering and repair harm. The proximity that a victim shares with their injury influences the type of reparations they find to be the most effective. Twenty years after the injury, the majority of victims felt that material reparations were the only legitimate form of reparations, as symbolic reparations could not do anything to better the material conditions of their lives. The Court took this feedback into consideration, and determined that a collective approach with individualized components would best fit victims after such a long period of time had passed. 

Victim ethnicity and funding were surprisingly not as prominent in this specific case. Victim ethnicity, for instance, was not as much of a challenge for the Court because:

The Legal Representative expects more former child soldiers to be willing to participate in the reparations proceedings in the present case because Mr Ntaganda is not of Hema ethnicity. Accordingly Hema victims will be more inclined to come forwards which might not have been the case in the Lubanga reparations proceedings.

One of the main causes for ethnic tension in the previous cases had to do with the perpetrator’s ethnicity. Bosco Ntaganda is neither Hema nor Lendu/Ngiti. In the Lubanga case, Hema children who were former soldiers were shunned by their communities and, as a result, often felt disempowered to identify themselves and claim reparations. In the Ntaganda case, however, the Legal Representatives estimated that because there would be a lesser potential for intercommunal repercussions, more former child soldiers would come forward to claim reparations. Funding was likewise not as much of a constraint on reparations. Yes, funding is always a constraint for the TFV—especially for a defendant convicted of 18 total crimes against peace—but victims in this case were not as adamant about receiving individual reparations, and collective reparations are more cost effective. Lastly, Ntaganda, while found indigent, was made liable for $30,000,000—which is significantly more than in previous cases. Hence, the Court was able to fund a wider variety of projects.

Conclusion

The Second Congolese War was an incredibly brutal and bloody conflict. The International Criminal Court has done what it can to bring the leading perpetrators of mass crimes to justice and, subsequently, provide victims with reparations. The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Germain Katanga, and The Prosecutor v. Bosco Ntaganda—the Congolese cases in which the ICC has ordered reparations—present us with a puzzle. Each offense took place during the war, specifically between 2002-2003, and in the same district. In two cases, the defendants were members of the same militia and committed some of the same crimes. Nevertheless, the ICC ordered vastly different forms of reparations across these cases. This outcome came about as a result of the interaction between several causal factors: victim identity, victim participation, the crime(s) committed by the defendant, reparation type legitimacy, the Trust Fund for Victims (TFV) and feasibility, and Court evolution. Each of these causes not only contribute to the outcome of reparations, but also reveal the limitations of the ICC’s reparations regime—particularly its inability to fully satisfy victims. 

The revelations of this research are extremely important because they provide insight into the ways in which international criminal justice practices can be improved. The ICC is still new and extremely different from many of its institutional predecessors, specifically in regard to victim participation and reparations. It is vital that we critically examine how the Court makes its decisions in order to best approach reparations for victims of mass atrocities. Understanding why and how the Court issued different reparations across similar cases in the same Situation can help us to better visualize future ICC decisions. So far, the Court has ordered reparations in two other cases, one in Mali and one in Northern Uganda. Should the Court convict more criminals from these Situations and choose to order reparations, we now have a better insight into that decision making process.  There is still a significant amount of research that can be done on this topic. As a researcher, I was limited in my capacity to examine all relevant Court documents considering their number and length. I also omitted a notable amount of information for the purposes of this specific paper—including but not limited to information regarding women, girls, and sexual crimes. There is so much more regarding these issues that deserve further investigation. Moreover, this research and its implicit findings about the limitations of the ICC prompt us to question whether or not an institution designed for prosecution is the best vehicle to be delivering reparations in the first place. The purpose of reparations is to serve victims and to meet their needs, but it is clear that victims are not getting what they want from the Court. While it is noble for the ICC to try to provide restorative justice to the victims of people it convicts, it might not be the right institution to do so. On the other hand, it may be that the Court is well situated to provide victims with reparations, it just has yet to fully figure it out, for its reparations regime turned ten only this year. These questions warrant greater consideration.

Bibliography:

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The Prosecutor v. Bosco Ntaganda. Judgment with public Annexes A, B, and C. ICC-01/04-02/06-2359. 8 July 2019: 1-539. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2019_03568.PDF. 

———. Office of Public Counsel for Victims (CLR2) Public Redacted Version of the “Final Observations on Reparations of the Common Legal Representative of the Victims of the Attacks” (ICC-01/04-02/062633-Conf). ICC-01/04-02/06-2633-Red. 21 December 2020: 1-52. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_07644.PDF. 

———. Office of Public Counsel for Victims (CLR1) Submissions on Reparations on behalf of the Former Child Soldiers. ICC-01/04-02/06-2474. 28 February 2020: 1-44. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_00702.PDF. 

———. Reparations Order. ICC-01/04-02/06-2659. 8 March 2021: 1-97. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_01889.PDF. 

The Prosecutor v. Germain Katanga. Decision on the confirmation of charges. ICC-01/04-01/07-717. 30 September 2008: 1-226. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2008_05172.PDF. 

———. Judgment pursuant to Article 74 of the Statute. ICC-01/04-01/07-3436-tENG. 7 March 2014: 1-36. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2017_04296.PDF. 

———. Observations of the victims on the principles and procedures to be applied to reparations. ICC-01/04-01/07-3555-tENG: 22-24. 15 May 2015: 1-44. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2015_21206.PDF. 

———. Order for Reparations pursuant to Article 75 of the Statute With one public annex (Annex I) and one confidential annex ex parte, Common Legal Representative of the Victims, Office of Public Counsel for Victims and Defence team for Germain Katanga (Annex II). ICC-01/04-01/07-3728-tENG. 24 March 2017: 1-120. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2017_05121.PDF. 

———. Public Redacted Version of Registry’s Report on Applications for Reparations in Accordance with Trial Chamber II’s Order of 27 August Annex I. ICC-01/04-01/07-3512-Conf-Exp-Anx1. 15 December 2014: 1-50. Available at https://www.icc-cpi.int/sites/default/files/RelatedRecords/CR2015_00426.PDF.

———. Trust Fund for Victims Observations on Reparations Procedure. ICC-01/04-01/07-3548. 13 May 2015: 1-44. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2015_05781.PDF. 

———. Questions and Answers on Reparations in the Katanga Case. ICC-PIDS-Q&A-DRC-01/04-01/07_FR. 24 March 2017: 1-2. Available at: https://www.icc-cpi.int/sites/default/files/iccdocs/PIDS/publications/Katanga_Reparations_QA_ENG.pdf. 

The Prosecutor v. Thomas Lubanga Dyilo. Decision establishing the principles and procedures to be applied to reparations. ICC-01/04-01/06-2904. 7 August 2012: 1-94. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_07872.PDF. 

———. Decision on the defence request for leave to appeal the Decision establishing the principles and procedures to be applied to reparations. ICC-01/04-01/06-2911. 29 August 2012: 1-22. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_08176.PDF. 

———. Judgment pursuant to Article 74 of the Statute. ICC-01/04-01/06-2842. 14 March 2012: 1-593. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_03942.PDF. 

———. Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2. ICC-01/04-01/06 A A 2 A 3. 15 March 2015: 1-97. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2015_02631.PDF. 

———. Observations on the sentence and reparations by Victims a/0001/06, a/0003/06, a/0007/06, a/00049/06, a/0149/07, a/0155/07, a/0156/07, a/0162/07, a/0149/08, a/0404/08, a/0405/08, a/0406/08, a/0407/08, a/0409/08 , a/0523/08, a/0610/08, a/0611/08, a/0053/09, a/0249/09, a/0292/09, a/0398/09 and a/1622/10. ICC-01/04-01/06-2864-tENG. 18 April 2012: 1-11. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_08828.PDF. 

———. Office of Public Counsel for Victims and V02 team of legal representatives Appeal against Trial Chamber I’s Decision establishing the principles and procedures to be applied to reparations of 7 August 2012. ICC-01/04-01/06-2909-tENG. 24 August 2012: 1-11. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_08183.PDF.

———. Questions and Answers: Appeals judgment on reparations in the Lubanga case. ICC-PIDS-Q&A-DRC-01-01/15_Eng. Updated 3 March 2015: 1-2. Available at https://www.icc-cpi.int/sites/default/files/iccdocs/PIDS/publications/Lubanga_QA_03-15_Eng.pdf. 

———. V01 team of legal representatives Appeal against Trial Chamber I’s Decision establishing the principles and procedures to be applied to reparation of 7 August 2012. ICC-01/04-01/06-2914-tENG. 3 September 2012: 1-10. Available at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2012_08452.PDF. 

Keller, Linda M. “Seeking Justice at the International Criminal Court: Victims’ Reparations.” Thomas Jefferson Law Review 29, no. 2. (Updated February 2009): 189-218.

Klotz, Audie and Cecelia M. Lynch. “Chapter One: Constructivism.” Strategies for Research in Constructivist International Relations (New York: Routledge, 2007): 3-23.

Kotecha, Birju. “The International Criminal Court’s Selectivity and Procedural Justice.” Journal of International Criminal Justice 18, no. 1. (March 2020): 107-139. Doi: 10.1093/jicj/mqaa020.

Lambert, Elisabeth. “The ICC Regime of Victims’ Reparations: More Uncertainties and Inconsistencies Brought to Light by Recent Cases.” Australian International Law Journal 23, no. 1 (2017): 1-20.

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Moffett, Luke. Justice for Victims before the International Criminal Court. (New York: Routledge, 2014): 1-332.

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———. “Reparations for victims at the International Criminal Court: a new way forward?” International Journal of Human Rights 21, no. 9 (2017): 1204-1218. Doi: 10.1080/13642987.2017.1360005.

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———. “The Lubanga Case.” What We Do. Available at https://www.trustfundforvictims.org/en/what-we-do/reparation-orders/lubanga. 

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References:

^[1] Pearse, Patrick. “Graveside Oration at the Funeral of Jeremiah O’Donovan Rossa” (August 1915).

^[2]Anderson, Benedict. “Imagined Communities: Reflections on the Origin and Spread of Nationalism” Verso (1983), p 12.

^[3] Ibid., p 16.

^[4] English, Richard. “History and Irish Nationalism.” Irish Historical Studies 37, no. 147 (2011): 447–60.

^[5]  Ibid., pp 458-60; “University of Alberta Dictionary of Cognitive Science: Methodological Solipsism.”

^[6] Weaver, Stewart. “100 Years on: The Partition of Ireland Explained Why Was Ireland Divided?” (2021).

^[7] World Bank. “The ‘Troubles’ of Northern Ireland: Understanding Civil War” (2005).

^[8] “Languages and Religions of the U.K. and Ireland.” National Geographic (2012); “Ireland and Britain: 800 Years of Conflict” (30 Jan 2016).

^[9] History Ireland. “The Irish Republican Brotherhood” (March 8, 2013).

^[10] Mac Manus, Seumas. “Sinn Féin.” The North American Review Vol. 185, no. No. 621 (August 16, 1907): 825-36; Cowell-Meyers, K. and Arthur, Paul. “Sinn Féin.” Encyclopedia Britannica (January 26, 2021).

^[11] Britannica, T. Editors of Encyclopedia. “Home Rule.” Encyclopedia Britannica (September 15, 2010); UK Parliament. “Government of Ireland Act 1914” (September 18, 1914).

^[12] Leeson, D.M. “Post-War Conflict (Great Britain and Ireland).” In International Encyclopedia of the First World War (January 27, 2016).

^[13] Ibid.

^[14] Casement, Sir Roger. “Ireland, Germany, and Europe” (1911).

^[15] BBC News. “Easter Rising 1916: How an Irish Rebellion Sought International Help,” sec. Northern Ireland (March 24, 2016).

^[16] Ibid.

^[17] Pearse, Patrick. “Proclamation of the Republic” (April 24, 1916).

^[18] Britannica, T. Editors of Encyclopedia. “Easter Rising.” Encyclopedia Britannica (November 30, 2021).

^[19] Ginnell and Tennant. “Execution of James Connolly” (May 30, 1916).

^[20] Ibid., p 12.

^[21] Mac Manus, Seumas. “Sinn Féin.” The North American Review, Vol. 185, no. No. 621 (August 16, 1907): 825-36.

^[22] Anderson, Benedict. “Imagined Communities,” p 16.

^[23] Ibid., p 44.

^[24] “Ten Commandments.” In A Dictionary of the Bible, edited by W. R. F. Browning, Oxford Biblical Studies Online.

^[25] Ó hAdhmaill, Féilim. “The Easter Rising (1916) in Ireland and Its Historical Context: The Campaign for an Irish Democracy.” ResearchGate (2019).

^[26] Mulhall, Ambassador Daniel. “The Anglo-Irish Treaty of December 1921.” Department of Foreign Affairs (December 6, 2021) ; “Irish Free State.” In Wikipedia, (March 11, 2022). ; Britain, and Ireland. “The Anglo-Irish Treaty, 1921” (December 6, 1921).

^[27] Editors, History com. “Easter Rising.” HISTORY (January 25, 2019).

^[28] Reeves, Chris. “‘Let Us Stand by Our Friends’: British Policy Towards Ireland, 1949-59.” Irish Studies in International Affairs 11 (2000): 85–102.

^[29] Dubnov, Arie M, and Laura Robson. Partitions: A Transnational History of Twentieth-Century Territorial Separatism. Redwood City: Stanford University Press (2019), p 6.

^[30] Ibid., p 7.

^[31] Shwadran, Benjamin. “The Emergence of the State of Israel.” The Journal of Educational Sociology 22, no. 3 (1948).

^[32] General Assembly, United Nations. “Resolution Adopted on the Report of the AD HOC Committee on the Palestinian Question” (November 29, 1947).

^[33] Britain, and Ireland. “The Anglo-Irish Treaty, 1921” (December 6, 1921).

^[34] Dubnov, Arie M, and Laura Robson. “Partitions: A Transnational History,” pp 14-16.

^[35] Toon, Owen B., et al.“Rapidly expanding nuclear arsenals in Pakistan and India portend regional and global catastrophe.” ScienceAdvances (October 2, 2019).

^[36] Dubnov, Arie M, and Laura Robson. “Partitions: A Transnational History,” p 27.

^[37] Anderson, Benedict. “Imagined Communities,” p 13.

Please note: the views expressed within are part of an intellectual exercise and do not necessarily reflect the personal views of the author.

It is unlikely that the Abraham Accords can help solve the Israeli/Palestinian conflict due to the nature of the agreements, the events that have taken place following their adoption, and the current state of the Middle East region. Any help the Abraham Accords could provide to the Israeli/Palestinian conflict would be due to distant ripple effects of the potential changing attitude in the region that the agreements could cause, but this is merely ideological and also appears unlikely. The Abraham Accords are business agreements. They have certainly benefited both Israel and the signatory nations economically, but have actually further removed the Palestinian cause from Arab nations’ agendas.

The Abraham Accords came about because of a disconnect regarding annexation in President Trump’s Israeli-Palestinian peace proposal. Netanyahu used Trump’s plan as cover for his plan to annex parts of the Israeli-occupied West Bank ahead of Israeli elections. In response, Emirati ambassador to the US Yousef Al-Otaiba wrote an op-ed to halt Israel’s planned annexation, which was addressed to the Israeli public and published on the front page of Israel’s largest newspaper. With the White House also uncertain about annexation, Avi Berkowitz—an advisor to Jared Kushner—met with Netanyahu is Israel in late June 2020, where he proposed normalization with the United Arab Emirates as an alternative to annexation. And so, the Abraham Accords are a series of normalization agreements between Israel, the UAE, and Bahrain, later joined by Sudan and Morocco. On their face, the agreements have nothing to do with the Israeli/Palestinian conflict. The same holds true beyond their face.

The agreements formalized relationships already in place. Israel and the UAE had business recognition in the diamond trade, AI, and defense sectors. Morocco has had informal ties with Israel since the 1960s through their intelligence services, and Bahrain also had secret ties with Israel. To be sure, this formalization has been a boon to both Israel and the normalizing nations, some of whom have attained significant US recognition.[1] There have been trade deals, embassies established, direct flights, and collaboration in sectors such as tourism, healthcare, security, and research and development.[2] No part of these successes has to do with the Israeli/Palestinian conflict.

Palestinians view the agreements as a betrayal.[3] Netanyahu praised the accords as a breakthrough because they separated normalization with Arab states from any Israeli peace with the Palestinians. This fact is in direct opposition to the 2002 Arab Peace Initiative, which conditioned normalization on Israeli withdrawal from the occupied territories and the establishment of a Palestinian state.[4] Instead, the accords are a concession for which Israel gave nothing in return.[5] Normalization used to be a bargaining chip in the effort to resolve the Palestinian conflict, especially since Israel has little appetite to change the status quo.[6]

Israeli settlement activity and fighting continues.[7] In May 2021, Palestinians protested over Israeli evictions, Israel stormed the Al-Aqsa Mosque compound, and Hamas fired hundreds rockets into Israeli territory. In August of this year, three days of violence in the Gaza Strip ended with a ceasefire and 44 dead.[8] The Palestinian death toll in the West Bank for 2022 has already reached its highest total in seven years and Palestinian attacks have also risen sharply.[9] The accords have made no progress on the ground in the West Bank, though they were not intended to.

The Israeli/Palestinian conflict is not the priority it once was for Arab governments.[10] Normalizing with Israel is now more beneficial for some Arab nations than withholding in the name of the Palestinian cause.[11] Iran is a common enemy that threatens the stability of the entire region.[12] Political and security cooperation could lead to a coalition that can deter Iran.[13] The same goes for Turkey and the Muslim Brotherhood, whom the UAE, Bahrain, and Saudi Arabia has designated as a terrorist organization (and of whom Hamas, the de facto rulers of Gaza, is an affiliate).[14] Arab leaders are frustrated with Palestinian leadership.[15] All of these things are further evidenced by the normalizing countries’ actions. Normalization with the UAE was conditioned on Israel halting its current annexation plans, but that was temporary. None of the other signatories held out for concessions regarding Palestine, large or small. After the 2021 violence in Gaza, normalizing countries voiced minimal criticism of Israel and took no action against it.[16] Their newly-established ties were kept unchanged.

In the face of all of this, the accords’ supporters primarily argue that the ideological impact of the agreements could help resolve the Israeli/Palestinian conflict, if only the Palestinians were willing to listen and appreciate the plan. Another argument is that the normalizations give the Arab signatories leverage over Israel with regard to the conflict. And lastly, that the more Israel is connected with its Arab neighbors, the more open it will be to making compromises.

None of these arguments are convincing. Pro-Israeli journals use patronizing language scorning the Palestinians for failing to see the opportunity in the new developments: annexations were thwarted, the two-state solution was kept alive, the Arab states now have positive leverage over Israel. Annexations were temporarily thwarted, and then resumed. Though not a rosy vision, the prime minister of Israel supports a two-state solution![17] Many believed and still believe the accords give Arab states leverage over Israel, but absolutely nothing has shown this. The signatories’ responses to the fighting in 2021 is illustrative of either their lack of leverage over Israel or their lack of interest in Palestine. If the Arab nations would not attempt to use their supposed leverage during direct military conflict and rocket fire, what chance is there that they will suddenly do so at any other time? Whether due to a lack of leverage or of interest, both further emphasize how the Abraham Accords have not, do not, and likely will not help the Israeli/Palestinian conflict. The Israel Policy Forum argues that the normalizing nations’ response—or lack thereof—should not be surprising because, “after all, normalization explicitly severed the chain linking Arab bilateral relationships with Israel to its actions in the Palestinian sphere.” The argument that Israel will now feel more connected and apparently empathetic to Arabs and Palestinians is weak, baseless, and not realistic. Yes, Israel would prefer not to have a constant problem with Palestine. But as Nathan Thrall powerfully argues, Israel “has consistently opted for stalemate… [because a] deal’s cost is much higher than the cost of making no deal.” Israel receives the most US military aid per year of all the world’s nations, its economy is growing, and its population reports one of the world’s highest levels of subjective wellbeing.[18] There is no reason for Israel to suddenly show empathy, especially given that their new Arab allies do not demand so.

The primary way I see for normalization agreements to possibly cause meaningful change in the Israeli/Palestinian conflict is through Saudi Arabia. Saudi Arabia would be Israel’s largest success were it to normalize relations and is historically the most sensitive to the need for progress on Israeli-Palestinian issues as a prerequisite for advancing its relations with Israel. In July, President Biden met with Crown Prince MBS, who made it clear that “there would be no normalization with Israel prior to its reaching an agreement with the Palestinians along the lines of the Saudi-inspired 2002 Arab Peace Initiative.”[19] Many were surprised by MBS’s hardline stance given the two countries’ unacknowledged longstanding security cooperation, Saudi’s new open-skies policy, and MBS’s lack of action in response to Bahrain’s normalization with Israel. Some say MBS was taking an obstructionist stance for optics. But Saudi Arabia appears resolute in its stance. And it is a stance Israel will not accede to, as it has not for the past 19 years. Even if Saudi Arabia and Israel normalize relations and it has a meaningful effect on the Israeli/Palestinian conflict, this would not be due to the Abraham Accords. It seems clear that the decisions of Saudi’s Arab neighbors are not affecting the country’s stance.[20]

It is highly unlikely that the Abraham Accords can help the Israeli/Palestinian conflict. The accords are not concerned with the conflict, and neither are the countries signing on. The accords benefit the signatories economically and perhaps connect Arab and Israeli cultures slightly, but the Arab-Israeli conflict is not the same as the Israeli-Palestinian conflict. Arab states have shifted their focuses to other issues. Violence against Palestinians has remained high and is increasing without any significant response from normalizing nations, who either lack the leverage or the interest to take a stand. Both possibilities glower in the faces of the accords’ hopefuls. And the idea of Israel’s new willingness to cooperate with Arab nations that will magically transfer to the Palestinians is a farce. As mentioned, the relationships were already established in secret. And the agreements are about money. Israel has continued to occupy and shows no desire to stop. State Department spokesperson Ned Price said normalization is “not a substitute for Israeli-Palestinian peace.” That is certainly true. Nor is it a real start. It is barely a stepping-stone.

Works Cited

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Chulov, Martin. “Arab States Split for First Time on Refusal to Condemn Israel over Gaza.” Theguardian.com, The Guardian, 17 May 2021, https://www.theguardian.com/world/2021/may/17/arab-states-split-for-first-time-on-refusal-to-condemn-israel-over-gaza.

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Daraghmeh, Mohammed, and Fares Akram. “Palestinians Angrily Reject Trump Mideast Peace Plan.” AP NEWS, Associated Press, 28 Jan. 2020, https://apnews.com/article/israel-united-nations-donald-trump-ap-top-news-ramallah-0dcb0179faf41e1870f35838058f4d18.

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Fiore, Massimiliano. “The Abraham Accords and the Palestinian Issue.” E-International Relations, 1 Nov. 2020, https://www.e-ir.info/2020/11/01/the-abraham-accords-and-the-palestinian-issue/.

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Holland, Steve, et al. “Trump Leaps into Middle East Fray with Peace Plan That Palestinians Denounce.” Reuters, Thomson Reuters, 28 Jan. 2020, https://www.reuters.com/article/us-israel-palestinians-plan/trump-leaps-into-middle-east-fray-with-peace-plan-that-palestinians-denounce-idUSKBN1ZR1SR.

Holland, Steve. “Israel, Sudan Agree to Normalize Ties with U.S. Help: Joint Statement.” Reuters, Thomson Reuters, 23 Oct. 2020, https://www.reuters.com/article/us-usa-sudan-israel-announcement-idUSKBN27827T.

Israel-Gaza Violence: The Conflict Explained. BBC News, BBC, 8 Aug. 2022, https://www.bbc.com/news/newsbeat-44124396.

Israeli Prime Minister Lapid Backs Two-State Solution | | 1UN News. United Nations, United Nations, 22 Sept. 2022, https://news.un.org/en/story/2022/09/1127551.

Israel-Palestine Conflict. Today’s Latest from Al Jazeera, https://www.aljazeera.com/tag/israel-palestine-conflict/.

Kaye, Dalia Dassa. “Why the Abraham Accords Won’t Bring Israeli-Palestinian Peace.” Foreign Policy, 29 Oct. 2021, https://foreignpolicy.com/2021/10/29/why-the-abraham-accords-wont-bring-israeli-palestinian-peace/.

Koplow, Michael, et al. Israel Policy Forum, 2021, The New Normal: Arab-Israeli Normalization and the Israeli-Palestinian Conflict, https://israelpolicyforum.org/wp-content/uploads/2021/10/The-New-Normal-Arab-Normalization-and-The-Israeli-Palestinian-Conflict-Full-Study.pdf.

Lawler, Dave, and Barak Ravid. “Trump Announces Normalization of Ties between Israel and UAE.” Axios, 13 Aug. 2020, https://www.axios.com/2020/08/13/trump-uae-israel-normalization-of-relations.

Lazaroff, Tovah. “Behind Scenes of Abraham Accords: Israeli Annexation Halted Day Before.” JPost.com, The Jerusalem Post, 13 Dec. 2021, https://www.jpost.com/israel-news/israeli-west-bank-annexation-was-halted-in-2020-with-a-24-hour-deadline-688648.

Lee, Matthew. “Israel, Morocco to Normalize Ties; US Shifts W Sahara Policy.” AP NEWS, Associated Press, 10 Dec. 2020, https://apnews.com/article/donald-trump-africa-israel-north-africa-morocco-4279242f6f688d242bad5c7a64e29caf.

Lynfield, Ben. “Israel’s Rewarding Road to Normalization.” Foreign Policy, 31 Jan. 2022, https://foreignpolicy.com/2022/01/31/israel-abraham-accords-normalization-middle-east/.

Lynfield, Ben. “Two Years Later, the Abraham Accords Are Losing Their Luster.” Foreign Policy, 23 Sept. 2022, https://foreignpolicy.com/2022/09/23/abraham-accords-israel-palestine-two-years/.

Magid, Jacob. “Settler Leaders Call on PM to Oppose Trump Plan, Even at the Cost of Annexation.” The Times of Israel, 28 Jan. 2020, https://www.timesofisrael.com/settler-leaders-call-on-pm-to-oppose-trump-plan-even-at-the-cost-of-annexation/.

Mandel, Eric R. “Is the Biden Administration about to Put the Abraham Accords at Risk?” Thehill.com, The Hill, 16 Oct. 2022, https://thehill.com/opinion/international/3687458-is-the-biden-administration-about-to-put-the-abraham-accords-at-risk/.

MEE and Agencies. “Israel Approves New West Bank Settler Homes, Weeks after ‘Peace’ Deals with UAE, Bahrain.” Middle East Eye, 14 Oct. 2020, https://www.middleeasteye.net/news/israel-palestine-west-bank-settlements-uae-bahrain-deal.

Mohnblatt, Debbie. “Greater Iranian Threat Brings Abraham Accords Countries Closer, Experts Say.” The Media Line, 29 Mar. 2022, https://themedialine.org/by-region/greater-iranian-threat-brings-abraham-accords-countries-closer-experts-say/.

Pressman, Jeremy. “The False Promise of the Abraham Accords.” Foreign Affairs, 14 Sept. 2022, https://www.foreignaffairs.com/articles/israel/2021-09-15/false-promise-abraham-accords.

PTI. “Israel, UAE and Bahrain Sign Abraham Accord; Trump Says ‘Dawn of New Middle East.’” The Hindu, 28 Nov. 2021, https://www.thehindu.com/news/international/israel-uae-and-bahrain-sign-abraham-accord-trump-says-dawn-of-new-middle-east/article61706167.ece.

Ravid, Barak, and Alayna Treene. “Biden Plans to Keep Pushing Normalization Efforts Trump Began in the Middle East.” Axios, 6 Dec. 2020, https://www.axios.com/2020/12/06/biden-trump-abraham-accords-israel-bahrain-uae.

Ravid, Barak. “Behind the Scenes of the U.s.-Brokered Israel-Bahrain Agreement.” Axios, 11 Sept. 2020, https://www.axios.com/2020/09/11/behind-scenes-us-brokered-bahrain-israel-deal.

Ravid, Barak. “Behind the Scenes: How the Israel-UAE Deal Came Together.” Axios, 13 Aug. 2020, https://www.axios.com/2020/08/13/how-the-israel-uae-recognition-deal-came-together.

Ravid, Barak. “Behind the Scenes: How the Israel-UAE Deal Came Together.” Axios, 13 Aug. 2020, https://www.axios.com/2020/08/13/how-the-israel-uae-recognition-deal-came-together.

Ravid, Barak. “Fallout between Trump and Top GOP Senator Made Morocco-Israel Deal Possible.” Axios, 11 Dec. 2020, https://www.axios.com/2020/12/11/trump-morocco-israel-inhofe.

Ravid, Barak. “Morocco to Normalize Ties with Israel in Deal with Trump over Western Sahara.” Axios, 10 Dec. 2020, https://axios.com/2020/12/10/morocco-israel-deal-trump-recognize-western-sahara.

Ravid, Barak. “Netanyahu Says He’s ‘Still Committed’ to Annexations despite UAE Deal.” Axios, 13 Aug. 2020, https://www.axios.com/2020/08/13/netanyahu-uae-deal-annexation-plans-suspension.

Reuters Staff. “Oman Content with Current Israel Relationship, Foreign Minister Says.” Reuters, Thomson Reuters, 11 Feb. 2021, https://www.reuters.com/article/us-oman-politics/oman-content-with-current-israel-relationship-foreign-minister-says-idUSKBN2AB1XB.

Reuters Staff. “Sudan Quietly Signs Abraham Accords Weeks after Israel Deal.” Reuters, Thomson Reuters, 7 Jan. 2021, https://www.reuters.com/article/sudan-usa-israel-int-idUSKBN29B2MS.

Reuters Staff. “Sudan Rejects Linking Removal from U.S. Terrorism List with Israel Ties.” Reuters, Thomson Reuters, 26 Sept. 2020, https://www.reuters.com/article/us-sudan-usa-israel/sudan-rejects-linking-removal-from-us-terrorism-list-with-israel-ties-idUSKBN26H0J2.

Reuters Staff. “U.S. Treasury Signs Loan Deal to Clear Sudan’s $1.2 Billion World Bank Arrears.” Reuters, Thomson Reuters, 6 Jan. 2021, https://www.reuters.com/article/us-sudan-usa-mnuchin/u-s-treasury-signs-loan-deal-to-clear-sudans-1-2-billion-world-bank-arrears-idUSKBN29B2J3.

Samuels, Ben. “Biden to Restore Palestinian Aid, Reopen Diplomatic Missions Shut by Trump, UN Envoy Says.” Haaretz, 26 Jan. 2021, https://www.haaretz.com/us-news/2021-01-26/ty-article/biden-admin-to-restore-palestinian-aid-work-for-two-state-solution-un-envoy-says/0000017f-e100-d38f-a57f-e75204df0000.

Samuels, Ben. “Israel’s Normalization Pacts Not a Substitute for Peace with Palestinians, State Dept. Says.” Haaretz, 2 Feb. 2021, https://www.haaretz.com/us-news/2021-02-02/ty-article/.premium/state-dept-israel-normalization-pacts-not-a-substitute-for-peace-with-palestinians/0000017f-e0ad-d38f-a57f-e6ff044e0000.

Samuels, Ben. “No Normalization with Israel until Two-State Solution Reached, Saudi FM Says.” Haaretz.com, 16 July 2022, https://www.haaretz.com/middle-east-news/2022-07-16/ty-article/.premium/no-normalization-with-israel-until-two-state-solution-reached-saudi-fm-says/00000182-0614-d213-adda-17bd7b2d0000.

Singh, Michael. “Axis of Abraham.” Foreign Affairs, Mar. 2022, https://www.foreignaffairs.com/articles/middle-east/2022-02-22/axis-abraham.

Stab in the Back: Palestinians Condemn Israel-Bahrain Deal. Aljazeera.com, Al Jazeera, 11 Sept. 2020, https://www.aljazeera.com/news/2020/9/11/stab-in-the-back-palestinians-condemn-israel-bahrain-deal.

Staff. “Sudan’s Cabinet Votes to Repeal Israel Boycott Law.” Aljazeera.com, Al Jazeera, 6 Apr. 2021, https://www.aljazeera.com/news/2021/4/6/sudanese-cabinet-votes-to-repeal-israel-boycott-law.

Thrall, Nathan. “Israel-Palestine: The Real Reason There’s Still No Peace.” The Guardian, Guardian News and Media, 16 May 2017, https://www.theguardian.com/world/2017/may/16/the-real-reason-the-israel-palestine-peace-process-always-fails.

Tibon, Amir. “U.S. Announces Closure of Palestinian Diplomatic Mission over ‘Refusal to Engage with Peace Efforts’.” Haaretz, 10 Sept. 2018, https://www.haaretz.com/us-news/2018-09-10/ty-article/.premium/u-s-announces-closure-of-palestinian-diplomatic-mission/0000017f-e3c3-d75c-a7ff-ffcff3770000.

Trump Reveals Israeli-Palestinian Peace Plan. Dw.com, Deutsche Welle, 28 Jan. 2020, https://www.dw.com/en/trump-reveals-israeli-palestinian-peace-plan/a-52179629.

Winer, Stuart. “Kushner Slams Palestinian Leadership, Urges Giving up ‘Fairy Tales’ for Peace.” The Times of Israel, 29 Jan. 2020, https://www.timesofisrael.com/kushner-slams-palestinian-leadership-urges-giving-up-fairytales-for-peace/.

Zakheim, Dov S. “Why the Saudis Took No Steps toward Normalizing Relations with Israel.” Thehill.com, The Hill, 22 July 2022, https://thehill.com/opinion/national-security/3568362-why-the-saudis-took-no-steps-toward-normalizing-relations-with-israel/.

Zieve-Cohen, Sam. “UAE’s Al Otaiba Goes behind the Scenes of the Abraham Accords.” Jewish Insider, 30 Sept. 2020, https://jewishinsider.com/2020/09/uae-ambassador-al-otaiba-details-the-behind-the-scenes-on-the-uae-deal/.

[1] For example, the US recognized Morocco’s sovereignty over Western Sahara and the US signed a bridge loan deal for Sudan. See Lee, Matthew. “Israel, Morocco to Normalize Ties; US Shifts W Sahara Policy.” AP NEWS, Associated Press, 10 Dec. 2020, https://apnews.com/article/donald-trump-africa-israel-north-africa-morocco-4279242f6f688d242bad5c7a64e29caf and Reuters Staff. “U.S. Treasury Signs Loan Deal to Clear Sudan’s $1.2 Billion World Bank Arrears.” Reuters, Thomson Reuters, 6 Jan. 2021, https://www.reuters.com/article/us-sudan-usa-mnuchin/u-s-treasury-signs-loan-deal-to-clear-sudans-1-2-billion-world-bank-arrears-idUSKBN29B2J3.

[2] Israel and Morocco signed a defense MOU; Bahrain sent an ambassador to Israel; Sudan repealed an Israel boycott law; and Israel, Jordan and the UAE signed their “Electricity for Water” deal. Law firms are collaborating and new investments are being made between the nations. According to Israel’s Ministry of Defense, the value of Israeli defense exports to countries with which it normalized relations in 2020 reached $791 million.

PTI. “Israel, UAE and Bahrain Sign Abraham Accord; Trump Says ‘Dawn of New Middle East.’” The Hindu, 28 Nov. 2021, https://www.thehindu.com/news/international/israel-uae-and-bahrain-sign-abraham-accord-trump-says-dawn-of-new-middle-east/article61706167.ece.

[3] “These peace agreements come at the same time that Israel is continuing with occupation and killing Palestinians and demolishing their homes,” said Sami Hureini, a youth leader from the West Bank village of at-Tuwani. “Things are just getting worse. This is why we reject all normalization. It’s a betrayal by these Arab countries.”

Lynfield, Ben. “Israel’s Rewarding Road to Normalization.” Foreign Policy, 31 Jan. 2022, https://foreignpolicy.com/2022/01/31/israel-abraham-accords-normalization-middle-east/.

[4] “’Stab in the Back’: Palestinians Condemn Israel-Bahrain Deal.” Aljazeera.com, Al Jazeera, 11 Sept. 2020, https://www.aljazeera.com/news/2020/9/11/stab-in-the-back-palestinians-condemn-israel-bahrain-deal. AFP and TOI Staff. “Palestinians Say Sudan-Israel Normalization Meeting Is a ‘Stab in the Back.’” The Times of Israel, 4 Feb. 2020, https://www.timesofisrael.com/palestinians-say-sudan-israel-normalization-meeting-a-stab-in-the-back/.

[5] Kaye, Dalia Dassa. “Why the Abraham Accords Won’t Bring Israeli-Palestinian Peace.” Foreign Policy, 29 Oct. 2021, https://foreignpolicy.com/2021/10/29/why-the-abraham-accords-wont-bring-israeli-palestinian-peace/.

[6] Thrall, Nathan. “Israel-Palestine: The Real Reason There’s Still No Peace.” The Guardian, Guardian News and Media, 16 May 2017, https://www.theguardian.com/world/2017/may/16/the-real-reason-the-israel-palestine-peace-process-always-fails.

[7] Lynfield, Ben. “Two Years Later, the Abraham Accords Are Losing Their Luster.” Foreign Policy, 23 Sept. 2022, https://foreignpolicy.com/2022/09/23/abraham-accords-israel-palestine-two-years/. “Israel-Palestine Conflict.” Today’s Latest from Al Jazeera, https://www.aljazeera.com/tag/israel-palestine-conflict/.

[8] “Israel-Gaza Violence: The Conflict Explained.” BBC News, BBC, 8 Aug. 2022, https://www.bbc.com/news/newsbeat-44124396.

[9] Shezaf, Hagar. “2022 Already the Deadliest Year for West Bank Palestinians in 7 Years.” Haaretz, 14 Sept. 2022, https://www.haaretz.com/middle-east-news/palestinians/2022-09-14/ty-article/.highlight/2022-already-the-deadliest-year-for-west-bank-palestinians-in-7-years/00000183-3177-d6c9-a197-797f257d0000.

[10] Pressman, Jeremy. “The False Promise of the Abraham Accords.” Foreign Affairs, 14 Sept. 2022, https://www.foreignaffairs.com/articles/israel/2021-09-15/false-promise-abraham-accords.

Paraphrasing: Trump peace plan didn’t make waves. Neither did the relocation of the American embassy or recognition of Jerusalem as Israel’s capital.

[11] Koplow, Michael, et al. Israel Policy Forum, 2021, The New Normal: Arab-Israeli Normalization and the Israeli-Palestinian Conflict, https://israelpolicyforum.org/wp-content/uploads/2021/10/The-New-Normal-Arab-Normalization-and-The-Israeli-Palestinian-Conflict-Full-Study.pdf.

[12] Mohnblatt, Debbie. “Greater Iranian Threat Brings Abraham Accords Countries Closer, Experts Say.” The Media Line, 29 Mar. 2022, https://themedialine.org/by-region/greater-iranian-threat-brings-abraham-accords-countries-closer-experts-say/.

Zieve-Cohen, Sam. “UAE’s Al Otaiba Goes behind the Scenes of the Abraham Accords.” Jewish Insider, 30 Sept. 2020, https://jewishinsider.com/2020/09/uae-ambassador-al-otaiba-details-the-behind-the-scenes-on-the-uae-deal/.

[13] Singh, Michael. “Axis of Abraham.” Foreign Affairs, Mar. 2022, https://www.foreignaffairs.com/articles/middle-east/2022-02-22/axis-abraham.

[14] Fiore, Massimiliano. “The Abraham Accords and the Palestinian Issue.” E-International Relations, 1 Nov. 2020, https://www.e-ir.info/2020/11/01/the-abraham-accords-and-the-palestinian-issue

[15] Koplow

[16] Erlanger, Steven. “Arab World Condemns Israeli Violence but Takes Little Action.” Nytimes.com, The New York Times, 14 May 2021, https://www.nytimes.com/2021/05/14/world/middleeast/israel-arab.html.

[17] “Israeli Prime Minister Lapid Backs Two-State Solution | | 1UN News.” United Nations, United Nations, 22 Sept. 2022, https://news.un.org/en/story/2022/09/1127551.

[18] Thrall, Nathan. “Israel-Palestine: The Real Reason There’s Still No Peace.” The Guardian, Guardian News and Media, 16 May 2017, https://www.theguardian.com/world/2017/may/16/the-real-reason-the-israel-palestine-peace-process-always-fails. Page 5.

[19] Zakheim, Dov S. “Why the Saudis Took No Steps toward Normalizing Relations with Israel.” Thehill.com, The Hill, 22 July 2022, https://thehill.com/opinion/national-security/3568362-why-the-saudis-took-no-steps-toward-normalizing-relations-with-israel/.

[20] Samuels, Ben. “No Normalization with Israel until Two-State Solution Reached, Saudi FM Says.” Haaretz.com, 16 July 2022, https://www.haaretz.com/middle-east-news/2022-07-16/ty-article/.premium/no-normalization-with-israel-until-two-state-solution-reached-saudi-fm-says/00000182-0614-d213-adda-17bd7b2d0000.

Abstract

This paper examines the future of the “One Country Two Systems”’ principle amid China’s recent encroachments on Hong Kong’s democratic autonomy and ideological independence through the implementation of the National Security Law. This paper argues that the law was introduced by China as a response to the perception of threat to “One Country, Two Systems” in Hong Kong, creating an irreversible shift from “One Country, Two Systems” toward “One Country, One System.” 

Introduction

Since Hong Kong’s handover from Great Britain to China in 1997, the former colony’s Basic Law served as the law of the land and constitutional framework for the “One Country, Two Systems” principle. The promulgation of the 1984 Sino-British Joint Declaration stipulated “One Country, Two Systems” would remain for 50 years, expiring in 2047.^[1] Under the system, the People’s Republic of China resumed the exercise of sovereignty over Hong Kong after one and a half centuries of colonial rule by the British Empire. Hong Kong would retain its “capitalist system and lifestyle” separate from mainland China’s communist system and enjoy “a high degree of autonomy.”^[2] In the eyes of China’s central government, “One Country, Two Systems” served as a viable solution to the problem of Chinese reunification. 

Nevertheless, key post-handover events, such as the 2014 Umbrella Revolution and the 2019 Anti-Extradition Law movement, brought about increased political resistance against the authorities in Hong Kong, known officially as the Government of the Hong Kong Special Administrative Region. Both the Hong Kong and Chinese government’s responses to the broader pro-democracy movement in Hong Kong reveal cracks in “One Country, Two Systems,” calling into question whether Hong Kong’s increasingly pro-democratic socio-political landscape can amicably coexist with the Chinese Communist Party’s authoritarian rule.^[3]

But the implementation of the National Security Law was what brought the “One Country Two Systems” policy to an irreversible crossroads. The textual content of the security law was only disclosed to the Hong Kong people at the time of its promulgation—June 30, 2020— hours before the 23rd anniversary of Hong Kong’s handover.^[4] The law identifies four new categories of criminal behavior: secession, subversion, terrorism, and collusion with foreign forces. Each provision covers individuals who incite or abet the above offenses, with a maximum sentence of life imprisonment with the possibility of extradition to mainland China to face trial in mainland courts.^[5] Further, the security law contains extraterritorial capabilities: violations can be applied to individuals outside Hong Kong.^[6]

Beyond this, the law sparked broader institutional changes to the way of life in Hong Kong, including a sharpened divide between pro-Beijing and pro-democracy forces (Hong Kong’s two primary ideologies) and the Chinese Communist Party’s direct meddling in Hong Kong’s legislative and political affairs.^[7] Merging Hong Kong’s national security apparatus with that of mainland China through the formation of a covert police-legal deep state signals a tectonic shift in “One Country, Two Systems.” When viewed in the context of the CCP’s continued and assertive affronts to Hong Kong’s post-handover autonomy, it comes as no surprise that Hong Kong is now under the direct rule of China’s central government, culminating in the substance of “One Country, Two Systems” tilting towards “One Country, One System.”

Consequently, Hong Kong’s unique characteristics that make it a key international financial center and a gateway from Asia to the West continue to deteriorate rapidly, concurrent with the decline of freedom of speech and press.^[8]Since the law went into effect over 13 months ago, it is increasingly apparent that the law is aimed as much at activists, protesters, political candidates, and journalists in their exercise of rights, as it is at terror and guerrilla activities endangering national security.^[9]

The fate of “One Country, Two Systems” cannot be assessed appropriately without a robust and holistic overview of the historical context leading up to the CCP’s implementation of the security law. Irrespective of what, if any, of Hong Kong’s autonomy remains post-National Security Law, Hong Kong has experienced numerous challenges to “two systems” worth explaining. Thus, this paper proceeds in two parts. Part One examines the framework, development, and evolution of “One Country, Two Systems” by analyzing key events in post-handover Hong Kong. The focus of Part One is on four events research indicates were instrumental in establishing a “One Country, Two Systems”  that emphasizes the “One Country” aspect: 1) the 2003 attempt to pass a National Security Bill under Article 23 of the Basic Law; 2) the 2012 Education Bureau’s proposed Moral and National Education Curriculum laden with pro-communist and pro-China material; 3) the 2014 Umbrella Movement and the rise of key pro-democracy voices, such as those of Joshua Wong, Nathan Law, and Lester Shum; and, finally, 4) the 2019 Anti-Extradition Law Amendment Bill Movement. Emphasis is on the Chinese response, tracing the threats to Hong Kong’s autonomy and legal protections with each event. This paper argues Beijing introduced the National Security Law as a response to its perception of a crumbling “One Country, Two Systems” framework incompatible with Chinese reunification.

Part Two analyzes the future of “One Country, Two Systems” and Hong Kong’s national security apparatus in the context of the National Security Law. This research conducted interviews with crucial Hong Kong figures such as scholars, politicians, journalists, and activists to provide a comprehensive account of the law’s ramifications. All interviewees were given the option to speak anonymously in order to speak freely, with some giving permission to use their names. The goal of this paper is to articulate the seriousness of Beijing’s encroachments on Hong Kong’s democratic autonomy and ideological independence: how “One Country Two Systems” inches closer and closer to “One Country, One System.” 

Part 1: Post-Handover Hong Kong & “One Country, Two Systems”

In 1984, Communist China and Britain agreed to return Hong Kong to Chinese sovereignty after one and a half centuries of colonial rule. The agreement, the Sino-British Joint Declaration, was signed by then-Premier Zhao Ziyang of the People’s Republic of China and Prime Minister Margaret Thatcher of the United Kingdom. The agreement stipulated Hong Kong would become a “Special Administrative Region of China under a policy commonly known as ‘One Country Two Systems.’”^[10] The principle is broken down into five elements:

• Hong Kong retains its “capitalist system and lifestyle” separated from the mainland’s communist system, hence the term “One Country, Two Systems.”^[11]
• Hong Kong enjoys “a high degree of autonomy” from mainland China. Responsibilities associated with all aspects of Hong Kong’s rule, except for foreign and defense affairs, are vested within the government of Hong Kong.^[12]
• Hong Kong will establish the “Basic Law,” the de facto constitution of the Hong Kong Special Administrative Region, outlining the systems of governance and the rights and liberties of Hong Kong citizens.^[13]
• Hong Kong establishes its own “executive, legislative, and independent judicial power.”^[14]
• “One Country, Two Systems” will “remain unchanged for 50 years,” beginning on July 1, 1997, and lasting until 2047.^[15]

It is important to point out “One Country, Two Systems” was initially intended for Taiwan as a solution to the Chinese policy of reunification.^[16] Three main stages shaped the framework and development of the system. First, there was the Third Plenary Session of the 11th CCP Central Committee in December 1978, when Beijing advocated for “the prospect of the return of our sacred territory Taiwan to the embrace of our motherland.”^[17] Here, we see for the first time the central government’s stance on relations with Taiwan. Next, a statement by Ye Jianying, a leader of China’s communist revolution who was then-chairman of the Standing Committee of the National People’s Congress, expanded in depth on the proposed reunification, including the prospect of Taiwan’s status as a special administrative zone enjoying “a high degree of autonomy.”^[18] Key points presented in Ye’s statement bore similarities to Hong Kong’s current “One Country, Two Systems” policy, such as the promise that “Taiwan’s current socio-economic system will remain unchanged, so will its way of life.”^[19] At this time, the phrase “One Country, Two Systems” began circulation in mainland China. The third and final prong was the publication of senior leader Deng Xiaoping’s response to both international and Taiwanese concerns over China’s cross-strait territorial ambitions. In the pro-Beijing Wen Wei Po newspaper, Deng’s response provided the “theoretical framework” of “One Country, Two Systems.”^[20] Taiwan rejected, and continues to reject, Communist China’s proposed framework offer. Thus, the system was applied to Hong Kong only by coincidence, emerging as a viable solution to the looming fate of Hong Kong’s sovereignty during talks between Great Britain and China prior to the Sino-British Joint Declaration. 

Hong Kong’s handover to China was unique; its sovereignty was bestowed not to itself but instead to another country. Further, neither internal pressure nor international outcry brought about the end of Britain’s colonial rule, but rather, China deciding the fate of Hong Kong was an internal matter.^[21] Indeed, Communist China stated Beijing considered Hong Kong part of China long before the handover. But without the prevalence of Marxism, socialism, Maoism, and Deng Xiaoping Thought in Hong Kong, the central government understood the need for a pragmatic approach to relations with Hong Kong. Thus, as early as the 1950s, Zhou Enlai, China’s first premier, made it abundantly clear Communists should “protect the present Hong Kong situation and status, including its English colonial economy and capitalist system.”^[22]

By the time of the handover, National Taiwan University political scientist James Hsiung feared the future of post-handover Hong Kong was “dismal and downright pessimistic. The worst scenario saw Beijing meddling in Hong Kong’s politics and economic life, and trampling upon its freedoms, including freedom of the press, judicial freedom, academic freedom, and free elections. There would be corruption, nepotism, cronyism, and related plagues, brought in by the Mainland Chinese.”^[23] Fast forward to present-day Hong Kong, and observers consider many of Hsiung’s admittedly pessimistic concerns a harsh, inescapable reality. Such concerns, materialized in the implementation of the security law, will be discussed later against the backdrop of the volatility of “One Country, Two Systems.” Although the Basic Law outlined that Hong Kong’s legislative authority is independently derived from the Special Administrative Region, the CCP continues to inject itself into Hong Kong’s affairs. What once was a clear distinction between Beijing and Hong Kong’s roles in SAR governance is now a grey area. As seen in this paper’s analysis, several major events driven by both pro-China and pro-democracy forces are responsible for diametrically shifting the two systems model and jeopardizing Hong Kong’s autonomy, compelling China to counter this by implementing the security law. Key post-handover events up to the law’s implementation include: 

• February 2003: the Hong Kong Government attempts to implement the National Security Law pursuant to Article 23 of the Basic Law. 
• 2012: Hong Kong’s Education Bureau proposes the Moral and National Education Curriculum, with a significant pro-China perspective. 
• 2014: The Umbrella Movement in response to the National People’s Congress proposed electoral reforms. 
• 2019: The 2019 Hong Kong protests in response to the Fugitive Offenders Amendment Bill that would allow extradition to Mainland China. 

These events illustrate the central government’s growing frustration with the Hong Kong people’s resistance to the Hong Kong government. At the same time, the aftermath of each event, discussed in detail below, reveals Beijing’s growing distrust of the Hong Kong government’s ability to manage political resistance. 

February 2003: The Basic Law and Article 23

The first test of the vulnerability of “One Country, Two Systems” came in 2003 when Beijing made clear that establishing a national security law would be a top priority of the government of Hong Kong. Under Article 23 of the Basic Law, Hong Kong is duty-bound to establish its own national security law prohibiting acts of secession, sedition, subversion, and treason against the Chinese government.^[24] Thus, shortly after Tung Chee-Hwa’s appointment to a second term as chief executive, he announced Hong Kong would take up the issue of Article 23.^[25] Lawmakers first submitted draft legislation to the legislature in February 2003, with the government claiming the majority of the public supported the proposal. Research, however, suggests the contrary; independent scholars and data from the Hong Kong University’s Public Opinion Programme maintain most were against the proposed national security legislation.^[26]

Certain provisions of the proposed law, including the “police power to enter private premises to search without a court warrant” and “providing no public interest defense to protect press freedom in cases related to state secrets” gave impetus to sizable public opposition against the bill.^[27] Pro-democracy activists staged an unprecedented protest with an estimated turnout of 500,000 people.^[28] The Chinese government viewed the 2003 protest as a sign of betrayal and “that Hong Kong people’s hearts haven’t returned to the motherland.”^[29] Further, the protests severely diminished Tung’s authority, leaving him with no choice but to withdraw the legislation. The protests triggered for the first time the active involvement of pro-democracy forces in the elections for chief executive and the Legislative Council, as evidenced by the creation of the Civic Party and the stunning defeat of the pro-Beijing Democratic Alliance for the Betterment of Hong Kong party in the LegCo elections.^[30] Yeung Yiu-Chung, Lau Kong-wah, and Ip Kwok-him, key members of the Alliance, all lost their elections, and the party as a whole lost 144 out of 206 city-wide elections.^[31] The 2003 protest, combined with the emergence of pro-democracy political parties and candidates, altered for the first time Hong Kong’s political landscape and stirred fear within the Chinese government of the Hong Kong people’s capabilities. In response to these events, Beijing reacted with three key actions: 

• An increase in the presence in Hong Kong and capacity of the People’s Liberation Army and the Liaison Office.^[32]
• The abandonment of Beijing’s “non-interventionist” approach to Hong Kong’s political and legislative affairs.^[33]
• The establishment of the Hong Kong and Macao Affairs Work Coordination group.^[34]

All three actions paved the way for Beijing’s interference in Hong Kong’s political development. For example, China began to provide or withhold support for chief executive candidates publicly. In December 2004, Chinese President Hu Jintao criticized Tung in a meeting in Macau. When comparing Macao’s return to China with that of Hong Kong, Hu noted, “the officials must turn back and look over the past seven years and find out what has gone wrong.”^[35] Hu’s speech reflected Beijing’s view of Tung as a political liability stemming from the 2003 protest. In March 2005, Tung resigned on the grounds of ill health.^[36]

Furthermore, this marks for the first time the central government’s newfound ability to influence political parties. Through the Liaison Office, the central government can render support to pro-Beijing parties and candidates ahead of elections through trade unions and community organizations such as the Kowloon Federation of Associations and the New Territories Association of Societies. They can also campaign for the Democratic Alliance for the Betterment of Hong Kong party members. The events of 2003 and the subsequent reaction by the central government were early instances of Beijing exerting pressure on Hong Kong, calling into question the future of “One Country, Two Systems.” As Johannes Chan, former dean of the Hong Kong University’s Law School, notes, “The central government is not content with just having a veto power to disallow any political change, but wants full control to decide whether any change is proposed in the first place.”^[37]

April 2012: HKSARG Introduces the Moral and National Education Bill

Since the handover, the Hong Kong government fails to foster a Chinese national identity, spread Chinese values, and foster Chinese patriotism in the Hong Kong population. The latest available data from the Hong Kong University’s Public Opinion Programme reveals 27% of Hong Kongers identify as proud of becoming a national citizen of China, and just 11% identify as Chinese instead of Hong Kongese.^[38] The Chinese Communist Party believes the lack of Chinese patriotism can be traced to a lack of national pride in Hong Kong’s youth and thus called for reforms to Hong Kong’s education system. In the eyes of the central government, promoting a pro-China national education for Hong Kong’s youth is critical to diluting a Hong Kong identity devoid of “love for the motherland” and that emphasizes the “One Country” interpretation.^[39] As early as 2004, the Hong Kong government worked to incorporate a pro-China curriculum into local Hong Kong schools by establishing the National Education Center, which supports exchange programs to mainland China.^[40]

A pro-China educational curriculum garnered support from the upper echelons of the central government in 2006, earning endorsements from President Xi Jinping. On the handover’s 20th anniversary in 2017, Xi said of Hong Kong’s education: “Stepping up patriotic education of the young people” as well as “enhancing education and raising public awareness of the history and culture of the Chinese nation” are crucial to forging the next generation of pro-China Hong Kongers that embrace the Chinese motherland.^[41]

But it wasn’t until May 2011 that significant changes were proposed to Hong Kong’s educational curriculum. The Education Bureau proposed the Moral and National Education Curriculum, a reformed curriculum aimed at implementing a national education with Chinese characteristics. Key goals of the Moral and National Education Curriculum included developing a national identity and a commitment to the ideals of China. The bureau claims the education curriculum is “an essential element of whole-person education aimed  at fostering students’ positive values and attitudes through the school curriculum and the provision of diversified learning experiences.”^[42] However, the curriculum was widely criticized for its “brainwashing contents,” as evidenced by the deliberate omission of the 1989 Tiananmen protests and the CCP’s crackdown on political dissidents.^[43]

Further, the curriculum describes the party as “progressive, selfless, and united,” criticizes multiparty political systems, such as those of the U.S and the U.K., and is generally biased toward the “China Model.”^[44] In addition to national education, the Education Bureau dramatically increased funding to the mainland exchange program. The bureau spent HK $312 million (approximately USD 40 million) between 2012-2017 to send more than 30,000 students on exchange trips to mainland China.^[45] Such trips were part of a larger attempt to establish relations between students in Hong Kong and China and promote pro-China learnings. 

However, protests initiated by a group known as the Civil Alliance Against National Education supported by students, parents, and teacher unions erupted in the streets in July 2012. At one point, several individuals took part in a 10-day hunger strike.^[46] The Hong Kong government was left with no choice but to withdraw the bill, doing so officially on September 8, 2012. 

The central government felt, and continues to feel, a sense of urgency to cultivate a Chinese identity within the Hong Kong population with the looming expiration of “One Country, Two Systems” in 2047. The reintegration of Hong Kong into China will be subject to resistance if Hong Kongers continue to feel their identity is distinct from their mainland counterparts. However, if the CCP can transform Hong Kong’s youth to support the motherland successfully, China’s continued meddling in Hong Kong’s affairs will likely be less opposed. Thus, the central government feels it is crucial to inspire a nationalistic, pro-China ideology within Hong Kong’s youth. 

July 2014: Occupy Central with Love and Peace

In 2014, the Chinese government’s Information Office released “The Practice of the ‘One Country, Two Systems’ Policy in the Hong Kong Special Administrative Region,” a white paper alleging the central government maintains “comprehensive jurisdiction” and has the “plenary power to govern Hong Kong.”^[47] According to the paper, “the high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power,” but rather  “the power to run local affairs as authorized by the central leadership.”^[48]

Some criticized the white paper as proof of Beijing reneging on her promises to abide by the “One Country, Two Systems” principle, as well as the broader violation of the Sino-Joint British Declaration. According to Alan Leong Kah-kit, chairman of the pro-democracy Civic Party, China’s white paper “is rewriting ‘One Country, Two Systems’ for us” and “redefines what a high degree of autonomy is, and even goes so far as to suggest that our court should be manned by judges who have this political perspective to maintain the prosperity of not only Hong Kong but the country.”^[49]Michael DeGolyer, political economist and fellow at Hong Kong’s Civic Exchange think tank, echoed Leong’s concerns. DeGloyer contends since “the report was released in seven different languages at the same time … this is clearly a document meant to make a case internationally to lay out a legal basis for action by the central government.”^[50] From Beijing’s perspective, the white paper gives China a legal mandate to deploy the People’s Liberation Army in Hong Kong in the event pro-democracy protests and riots spin out of control. However, such action, which as of this writing has not materialized, would be both unprecedented and extremely consequential. Shortly after the white paper’s release, a survey by the Hong Kong University’s Public Opinion Programme revealed that for the first time since the handover, more than half of Hong Kongers lacked confidence in “One Country, Two Systems.”^[51]

After the central government published the white paper on the issue of the system in Hong Kong, the National People’s Congress issued the “31 August Decision,” viewed by observers as another example of Beijing’s staunch stance against pro-democracy forces. The Basic Law stipulates the chief executive and Legislative Council members are elected by universal suffrage as the “ultimate aim.”^[52] Additionally, the Basic Law stipulates the chief executive’s selection method shall be based “in light of the actual situation.”^[53]  However, the 31 August Decision unveiled a number of measures reforming the chief executive and Legislative Council elective process, known as LegCo. Notably, candidates for the chief executive position would now need approval from the Election Committee, Hong Kong’s de-facto electoral college composed primarily of pro-Beijing loyalists appointed by the central government. Further, chief executive candidates would now be required to “love the country (China) and love Hong Kong.”^[54] Critics, such as the Democratic Party and Occupy Central with Love and Peace movement, saw the 31 August Decision as a way for the central government and the Hong Kong authorities to stamp out opposition candidates from running for office. 

The 31 August Decision, coupled with the white paper, set in motion a series of protests and pro-democracy activism collectively known as Occupy Central. This movement, led by legal scholar Benny Tai, was guided by three principles: “that the electoral system of Hong Kong must satisfy international standards in relation to universal suffrage; that the electoral reform proposal should be decided by means of a democratic process; and that any act of civil disobedience, though illegal, must be ‘absolutely non-violent.’”^[55] Occupy Central changed the course of “One Country, Two Systems” and the relationship between Beijing and the Hong Kong government in two key ways. First, Occupy Central saw the formation of radicalized activism in the form of violence for the first time. This was in sharp contrast to most previous post-handover protests that were peaceful, including university students boycotting classes and organized sit-ins at major metropolitan venues. It is worth noting here that organizers of Occupy Central emphasized an “absolute non-violence” approach to the series of protests and sit-ins.^[56] Participants had to swear allegiance to an oath promising not to resort to violence or resist law enforcement operations. Despite this, small factions of protestors clashed with police forces, resulting in the use of pepper spray, tear gas, and rubber bullets. Second, the collectivized manpower of protestors and activists that kept the Hong Kong government and Hong Kong Police Force at bay for over two months revealed to Beijing that perhaps the Hong Kong government was incapable of handling the pro-democracy movement. 

Feeling pressure from Beijing, who demonstrated its willingness to intervene in any threats to sovereignty, the Hong Kong government began cracking down on pro-democracy activism by disqualifying numerous LegCo candidates as well as outlawing pro-democracy and pro-independence political parties.^[57] Altogether, the government responses to Occupy Central movement “bears some similarity to the widespread use of legalism in many authoritarian regimes where governments have sought to use the law to ‘suppress dissent in almost all forms while maintaining legal and political credibility.’”^[58] “One Country, Two Systems” intended for Hong Kong and mainland China to coexist despite their differences. Yet, the Hong Kong government exploiting its constitutional powers to suppress and intimidate political dissidents reflects the inevitable intertwinement of Hong Kong and China’s rule of law issue.

March 2019 — November 2020: Anti-Extradition Law Protests

On February 12, 2019, the government of Hong Kong announced its intentions to amend what is known as the Fugitive Offenders Ordinance, marking the final straw in Beijing’s tolerance of Hong Kong’s resistance to Chinese sovereignty. The proposed amendments to the ordinance would establish bilateral extradition agreements between mainland China, Macau, Taiwan, and Hong Kong.^[59] Although a 2018 murder case in Taiwan sparked the proposed amendments, many observers were quick to express deep concerns over the Hong Kong government’s newfound potential to extradite individuals to Mainland China. In response, the Civil Human Rights Front organized a series of “anti-extradition” protests, known as the Anti-Extradition Law Amendment Bill protests. On June 9, an overwhelming one million Hong Kongers took part in the anti-extradition bill protest.^[60] Despite Chief Executive Carrie Lam suspending the proposed amendments to the Fugitive Offenders Ordinance, democracy activists were still not satisfied. Over the next several months, what began as a series of protests motivated by policy change grew into city-wide uprisings. The CCP and Xi were quick to denounce the city-wide demonstrations and riots, with Xi stating that “stopping violence and controlling chaos while restoring order is currently Hong Kong’s most urgent task” during the 2019 Brazil, Russia, India, China, and South Africa Conference.^[61]  

It is important to note numerous acts the security law would eventually criminalize originated during the anti-extradition protests. For example, authorities deem political mantras protestors chant, such as “Liberate Hong Kong! Revolution of our time,” a threat to Hong Kong’s national security. In the first trial verdict handed down under the law, Tong Ying-kit, a 24-year-old protestor, was found guilty during a juryless trial for inciting secession and committing terrorism for riding a motorcycle into a group of police officers. Tong carried a flag on his motorcycle with the “Liberate Hong Kong” slogan. According to Esther Toh, one of the three judges appointed by Chief Executive Carrie Lam to preside over the trial, the phrase was “capable of inciting others to commit secession.”^[62]

However, Hong Kong Law Fellow Eric Lai of the Georgetown Center for Asian Law suggests such interpretation creates a chilling precedent for other national security cases. “Prosecutors and judges can now take advantage of this verdict to justify charges of promoting seditious speech against citizens and activists who merely chanted or held flags bearing the same slogan,” he says.^[63] As of this writing, Tong is the only person convicted of a crime under the National Security Law. Separately, however, police arrested hundreds of other activists, protestors, and politicians. Some have been denied bail, and others have fled into exile in other countries. 

The anti-extradition protests marked a critical juncture in Beijing’s no-nonsense approach to the issue of Hong Kong. The violence and unrest that took place over several months were unlike anything post-handover Hong Kong had experienced. At one point, a protest saw over two million Hong Kongers (out of 7.5 million) participating.^[64] In the subsequent weeks, multiple protestors were shot with live ammunition, and a pro-Beijing lawmaker was stabbed on a street. On July 1, 2020, protestors stormed the LegCo Complex and issued a manifesto listing five demands from the government, including the withdrawal of the Fugitive Offenders Ordinance, an investigation into police misconduct, and universal suffrage.^[65] Ensuing protests, such as the July 6 and 7 protests in the Tuen Mun and Kowloon districts, saw the continued escalation of police violence. Many protestors “had a youthful profile” and thus, multiple universities were transformed into de-facto bases for protestors, who manufactured and stored gasoline bombs, bows and arrows, and other weapons there.^[66] By September 2020, public trust in the government of Hong Kong plummeted from 4.16 to 2.87 on a 0-to-10 scale, according to a survey by the Centre for Communication and Public Opinion. Furthermore, only 41.3% of Hong Kongers were confident in ‘One Country, Two Systems,” an all-time low, the semiannual Hong Kong University’s Public Opinion Programme revealed.^[67] From Beijing’s point of view, the government of Hong Kong was incapable of handling protests, riots, and civil unrest internally. The response? A national security law enabling Beijing to directly manage Hong Kong’s national security apparatus and oppose threats to the reintegration of Hong Kong and China. 

Part Two: The National Security Law and “One Country, Two Systems”

After implementing the National Security Law, Hong Kong’s national security framework has two distinguishing features worthy of analysis. First, Hong Kong’s national security places virtually every aspect of political, economic, and socio-cultural way of life under the eyes of Beijing. The ambiguous and wide-ranging language of the law provides Hong Kong authorities with broad authority to arrest individuals exercising rights of expression and assembly under the guise of a legitimate threat to national security.^[68] Secondly, the source of authority directing and enforcing Hong Kong’s national security apparatus comes from the CCP. To China’s totalitarian and communist rule that has repeatedly demonstrated an unwillingness to entertain challenges to its authority, even the slightest sliver of resistance can be portrayed as subversion, separatism, or even terrorism. Consequently, many individuals arrested under the law have been targeted for non-violent acts of political expression.^[69] Together, Beijing and the Hong Kong government’s use of the law symbolizes the final nail in the coffin of Hong Kong’s autonomy. 

No longer does Beijing’s meddling need to occur behind the scenes. With the security law, Beijing has the legal mandate to preserve and defend its interpretation of “One Country, Two Systems” through methods previously considered illegal and a gross violation of the Sino-British Joint Declaration. This section takes a closer look at the implementation of the law and the types of crime the Committee for Safeguarding National Security and the Office for Safeguarding National Security target. Additionally, this paper analyzes whether the individuals arrested under the law’s four provisions — secession, subversion, terrorism, and collusion with foreign forces — pose a threat to Hong Kong’s national security. 

Putting aside the security law’s promulgation method, the contents of the law pose a constitutional conundrum on the source of Hong Kong’s legislative authority. The Basic Law’s Article 17 stipulates the source of legislative power in Hong Kong is derived from the Hong Kong government, not Beijing.^[70] Further, Article 66 clarifies Hong Kong’s legislature is the Legislative Council, not Beijing’s Standing Committee of the Communist Party or the National People’s Political Consultative Conference.^[71] And yet, it was the Standing Committee—China’s highest ruling body—that directly implemented the security law, bypassing Hong Kong’s Legislative Council. That said, the Basic Law allows the application of specific Mainland Chinese laws if they are listed in Annex III of the Basic Law and “confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy of the Region.”^[72] Plus, Article 159 contains a series of conditions to amend the Basic Law. But a closer examination of the vast majority of individuals targeted or arrested under the law reveals they do not pose a risk to national security when assessed through the lenses of other legal jurisdictions that value democratic ideals and thus do not jeopardize Hong Kong’s ideological independence and democratic autonomy.^[73] In fact, Annex III only covers laws about ceremonial matters such as flag displaying or matters concerning defense from foreign adversaries.^[74] Thus, observers like Michael Davis, author of Making Hong Kong China, argue “the national security law cannot override the Basic Law, as the Basic Law is the stipulated requirement of an international treaty, the Sino-British Joint Declaration.”^[75] The Hong Kong and Beijing governments asserted the security law would be applied only to severe cases, but that has not been the case. Davis describes the law as “a textbook authoritarian crackdown of the type Asian people too often have seen in other parts of the region.”^[76]

Key provisions of the National Security Law include:^[77]

• New criminal provisions targeting the crimes of secession, subversion, terrorism, and collusion with foreign forces. 
• The establishment of Hong Kong’s own National Security Committee supervised by the central government. 
• The creation of Beijing’s own national security office in Hong Kong. As of this writing, two hotels have been converted into such offices. 
• The provision that Hong Kong’s chief executive nominates judges to serve on national security cases.
• The provision that national security trials be held in secret without juries.

 The fluid definition of national security in the context of Hong Kong’s status as a city-state has proven to be a point of tension between Hong Kong and Beijing. Counterterrorism and the preservation of national security are operational priorities for the Hong Kong government and the Hong Kong Police Force. In 2018, the force established the Inter-Departmental Counter Terrorism Unit, a joint task force comprised of members from the Immigration Department, Customs and Excise Department, Correctional Services Department, Fire Services Department, and Government Flying Service.^[78] The unit monitors global terrorism and counterterrorism trends to enhance Hong Kong’s counterterrorism strategy and deployment methods. The unit also supports the Police Counterterrorism Response Unit, assisting Hong Kong’s 18 districts with the execution of counterterrorism strategy. After the implementation of the security law, authorities established two new departments: the aforementioned Office for Safeguarding National Security and the Committee for Safeguarding National Security.^[79] It would be one thing if the committees focused on genuine national security threats, such as foreign intelligence operations or radical guerilla movements. However, in the thirteen months since the security law went into effect, the vast majority of individuals have been arrested for “peaceful acts of expression, association, and assembly.”^[80]

As of this writing, the police force’s National Security Department arrested 145 individuals. Of the 145 arrests, only four cases would “adhere to internationally-accepted standards for national security prosecutions.”^[81] In the four cases, the individuals belonging to the pro-independence group “Returning Valiant” were alleged to have collaborated in a city-wide bomb plot. The individuals were found to have built makeshift laboratories containing triacetone triperoxide — a key ingredient in explosives.^[82] However, many of the remaining cases are acts of peaceful expression and assembly, signifying what could be the downfall of opposition or pro-democracy movements. One activist said that after the security law’s implementation, the crackdown on protestors and frontline journalists increased, causing a sharp decline in public protests against the Hong Kong government and Beijing. “I didn’t want to risk anything …It [the security law] made me feel really numb,” said the activist.^[83]

Despite this, proponents of the security law maintain the law only targets threats to national security and Hong Kong’s sovereignty. Bernie Chan, a former Hong Kong deputy to the National People’s Congress and Non-official Convener of Hong Kong’s Executive Council, says the “red lines are clear” and there should be no question “you cannot break the law of the constitution of both Hong Kong and China.”^[84] When asked about the 53 individuals arrested in January 2021 for participating in and organizing pro-democracy primaries, Chan noted, “it’s only illegal when you actually organize activities … You actually follow through with actions and then you are deemed to be illegal.”^[85]

 And though this may be the case, the event the 53 individuals participated in was a pro-democracy primary aimed at increasing the chance of pro-democracy parties holding the majority of seats in the Legislative Council. Chief Executive Carrie Lam said of the voting: “If this so-called primary election’s purpose is to achieve the ultimate goal of delivering what they called ‘35+’ (lawmakers), with the objective of objecting or resisting every policy initiative of the HKSAR government, it may fall into the category of subverting the state power – one of the four types of offences under the national security law.”^[86] The primary received more than 600,000 votes, the largest primary turnout since the handover.^[87] The ballot’s organizer, Benny Tai, dismissed the Hong Kong government’s threats, making the case that collaborative actions by pro-democracy candidates in the Legislative Council were squarely within the powers listed in the Basic Law. “How can a power that is recognized by the Basic Law be breaching the national security law?” Tai said after the July 2020 vote.^[88]

The security law’s effect on “One Country, Two Systems” is increasingly apparent over the past 13 months. Sonny Lo, political scientist and Co-Director of the Education University of Hong Kong’s Centre for Governance and Citizenship, admits the system is now “tilted towards (a) one country emphasis.”^[89] At the core of this argument is the fact that several facets of the security law appear to violate the Sino-British Joint Declaration, namely Article 22 in the Basic Law and the erosion of an independent judicial branch. Article 22 reads, “no department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own.”^[90] If the Chinese government needs to set up their own offices in Hong Kong, “they must obtain the consent of the government of the Region and the approval of the Central People’s Government.” Such consent, it appears, was never obtained. Both the Legislative Council and Carrie Lam had no say over the decisions made by the National People’s Congress. 

Beyond a slant towards the “One Country” aspect, the law “totally restructured the nature of two systems,” David Zweig, Professor and Director of the Center on China’s Transnational Relations at the Hong Kong University of Science and Technology, said in an interview.^[91] While certain aspects of the “Two Systems” remain, including a portion of Legislative Council seats voted directly by the Hong Kong people, the law as whole permits the movement towards “One Country.”^[92] The security law also poses a threat to Hong Kong’s independent judiciary. Thomas Kellogg of the Center for Asian Law at Georgetown University identifies three ways the law chips away at judicial independence in Hong Kong. First, the law establishes certain cases can be extradited to mainland China. Articles 55 and 56 of the National Security Law state national security cases deemed “complex” and/or “serious” are grounds for relocation from Hong Kong to China.^[93] Kellogg notes, “Article 55 carries with it an implicit threat: deliver verdicts that are satisfactory to Beijing, or the Communist Party will simply use Article 55 to take matters into its own hands.”^[94] Second, the practice of judicial review—which has been openly practiced in post-handover Hong Kong—is at risk. Article 14 makes clear that “(d)ecisions made by the Committee [for Safeguarding National Security] shall not be amenable to judicial review.”^[95]Critics of the law raise concerns that Hong Kong’s legal system cannot truly be a common law system without judicial review. Last, the Hong Kong government took advantage of the security law’s loose definition of what constitutes a crime to target speech-based actions. Kellogg notes Hong Kong’s judiciary is charged with either abandoning “the judiciary’s role as the key enforcer of the basic rights provisions in Hong Kong’s Basic Law, or face a possible high-profile clash with Beijing, one that could carry significant negative consequences for the rule of law in Hong Kong.”^[96] Despite Beijing showcasing the security law as targeting a small faction of violent extremists, it’s worth noting most of Hong Kong’s population supports the pro-democracy movement.^[97] In addition, 60% of Hong Kongers are opposed to the security law, and 63% of Hong Kongers support universal suffrage independent from Beijing.^[98] With the rule of law and the freedoms of expression and assembly eroding with the security law’s implementation,  “One Country, Two Systems” shifted to emphasizing the “One Country” aspect. “[A] shift back to two systems will likely happen when Xi Jinping steps down and paves the way for a successor,” says Lo.^[99]

Conclusion

 The unique and complex framework that comes with “One Country, Two Systems” makes it challenging to assess the policy’s fate once it expires in 2047. No other system of governance—in the past or at present—provides appropriate comparison or precedence. That said, the events that have unfolded since the handover, particularly the anti-extradition protests, reveal the fragility of a system where the Hong Kong government ultimately concedes to Beijing’s authority. Observers frequently describe “One Country, Two Systems” on a continuum with one end of the spectrum reflecting a fully autonomous Hong Kong society as defined in the Basic Law and the other end being Beijing introducing mainland politics into Hong Kong. As has been articulated in this paper, key events since the handover diametrically shifted the “One Country, Two Systems” framework, peaking with the implementation of the National Security Law. 

The security law’s broad language targets acts of secession, subversion, terrorism, and collusion with foreign forces, but the makeup of the arrestees reveals the law instead primarily targets acts of political expression and assembly. As a result, the governments of Hong Kong and China face significantly fewer challenges in the form of protests and riots, with many activists turning to self-censorship out of fear of arrest. Certainly, some of the individuals arrested under the law pose a threat to national security, but the vast majority do not. As a result, it is difficult to make the case that chanting pro-independence slogans, organizing or participating in democratic primary elections, and providing support to advocacy groups abroad pose a challenge to Hong Kong’s sovereignty.            If Beijing maintains the belief that the future of Hong Kong requires mainland characteristics, it is not unreasonable to question the cost. Multiple foreign governments, including the United States, Canada, Great Britain, and Australia, condemned both the Hong Kong government and the CCP for implementing the security law and subduing political opponents. Additionally, many Hong Kongers resorted to relocating abroad, taking advantage of policies offered by foreign governments paving paths toward citizenship. One example is over 30,000 Hong Kong residents signing up for Great Britain’s British National Overseas Visa scheme.^[100] According to the Census and Statistics Department, between June 2020 and June 2021, 89,200 residents left Hong Kong, marking the biggest decrease in Hong Kong’s population in over sixty years.^[101] Although the COVID-19 pandemic resulted in a decline in the number of foreign domestic workers, it is no coincidence the population decline coincides with the security law and opportunities for Hong Kongers to pursue a life abroad.^[102] The future of Hong Kong and “One Country, Two Systems” may be tenuous, but one thing is for sure: Beijing has demonstrated a willingness to use its powers to quash threats to its sovereignty.

^[1] “Official Publication: Sino-British Joint Declaration on the Question of Hong Kong,” Loyola of Los Angeles International and Comparative Law Review 7 (January 1, 1984): 139–64. 

^[2] Ibid.

^[3] Han Zhu, “Beijing’s ‘Rule of Law’ Strategy for Governing Hong Kong: Legalisation without Democratisation,” China Perspectives 116, no. 1 (2019): 23-34.

^[4] Antony Dapiran,  Jane Golley, Linda Jaivin, and Sharon Strange, Hong Kong’s National Security Law (Canberra, AU: ANU Press, 2021), 59–66.

^[5] Ibid.

^[6] Ibid.

^[7] Sonny Shiu-Hing Lo, “The Consequences of China’s ‘Comprehensive Jurisdiction’ over Hong Kong,” Asialink, July 8, 2021.

^[8] Susan V. Lawrence and Michael F Martin, “China’s National Security Law for Hong Kong: Issues for Congress,” Congressional Research Service, August 3, 2020. 

^[9] Ibid.

^[10] Ibid. 

^[11] Ibid.

^[12] Ibid.

^[13] Ibid.

^[14] Ibid.

^[15] Ibid.

^[16] Chien-Min Chao,  “’One Country, Two Systems’: A Theoretical Analysis,” Asian Affairs 14, no. 2 (1987): 107–24. 

^[17] “Communique of the Third Plenary Session of the 11th Central Committee of the Communist Party of China,” Peking Review 52 (December 29, 1978). 

^[18] People’s Daily, September 30, 1981. 

^[19] China Internet Information Center, “Ye Jianying on Taiwan’s Return to Motherland and Peaceful Reunification,” last modified September 30, 1981.

^[20] Da-yeh Wei,  “The Formation and Development of ‘One Country Two Systems’,” Wen Wei Po, December 20, 1984.

^[21] John M Carroll,  A Concise History of Hong Kong (Lanham: Rowman & Littlefield, 2007). 

^[22] Cindy Chu Yik-yi,  “Overt and Covert Functions of the Hong Kong Branch of the Xinhua News Agency,” in Chinese Communists and Hong Kong Capitalists (London: Palgrave Macmillan, 2010), 41-57.

^[23] Ibid. 

^[24] Benjamin Lotz, “Article 23 of the Hong Kong Basic Law: Whiter Media Freedom?,” Verfassung in Recht und Übersee 45, no. 1 (2012): 56–71.

^[25] Christine Loh, “Hong Kong’s Relations with China: The Future of ‘One Country, Two Systems’,” Social Research 73, no. 1 (2006). 

^[26] “Summary of Findings,” – 港大民研 HKUPOP, June 2003. 

^[27] Ibid. 

^[28] Ibid.

^[29] Vivienne Chow, “China and Hong Kong: ‘One Country above All’,” The Interpreter, July 5, 2017. 

^[30] Ibid.

^[31] Bruce Kam-kwan Kwong, Patron-Client Politics and Elections in Hong Kong (Abingdon, UK: Routledge, 2010). 

^[32] Ibid.

^[33] Ibid.

^[34] Ibid.

^[35] Alexandra Harney and Justine Lau, “Hu Publicly Criticises HK’s Leadership,” Financial Times, December 20, 

2004.

^[36] “Tung Chee-Hwa Resigns as HK Chief Executive,” China Daily, updated March 11, 2005. 

^[37] Hongyi Chen and Johannes Chan, Constitutionalism in Asia in the Early Twenty-First Century (Cambridge, UK: Cambridge University Press, 2015).

^[38] “Identity Indices of Hong Kong People,” Public Opinion Programme, University of Hong Kong, last modified June 27, 2019. 

^[39] Tracy Lau,  “State Formation and Education in Hong Kong,” Asian Survey 53, no. 4 (2013): 728–53. 

^[40] Ibid.

^[41] “Full Text: Xi’s Speech at meeting marking HK’s 20th return anniversary, Inaugural Ceremony Of 5th-term HKSAR GOV’T,” Xinhua, November 4, 2017.

^[42] “Values Education (MORAL, Civic and National Education),” Edb.gov.hk, last modified February 25, 2021.

^[43] Te-Ping Chen, “Protest over ‘Brainwashing’ Schools,” The Wall Street Journal, September 2, 2012. 

^[44]Fen Lin and Sixian Lin, “Why Framing National Identity Fails: A Case Study of the Anti-Moral and National 

Education Movement in Hong Kong,” SSRN Electronic Journal (2017). 

^[45]Ellie Ng, “HK$310m Spent over Past 5 Years on Exchange Tours to Mainland China for Hong Kong Students,” 

Hong Kong Free Press HKFP, March 31, 2020. 

^[46]Stuart Lau, Amy Nip, and Adrian Wan, “Protest against National Education to End after Government 

Climbdown,” South China Morning Post, September 9, 2012. 

^[47]“The Practice of the ‘One Country Two Systems’ Policy in the Hong Kong Special Administrative Region,” Information Office of the State Council of the People’s Republic of China, China Internet Information Center, last modified July 10, 2014. 

^[48] Ibid. 

^[49] Alan Wong,  “Beijing’s ‘White Paper’ Sets Off a Firestorm in Hong Kong,” The New York Times, June 11, 2014. 

^[50] Ibid.

^[51] “People’s Confidence in “One Country, Two Systems’,” Public Opinion Programme, Hong Kong University, accessed August 5, 2021.

^[52] Basic Law, art. 45 and Annex I.

^[53] Ibid. 

^[54] Greg Torode and Marius Zaharia, “What Is Love? Beijing Desires Unconditional Loyalty from Hong Kong,” Thomson Reuters, February 27, 2021. 

^[55] “Manifesto,” Occupy Central with Love and Peace, accessed August 29, 2021.

^[56] Karita Kan, “Occupy Central and Constitutional Reform in Hong Kong,” China Perspectives, no. 3 (2013): 

73–78.

^[57] Emily Tsang and Elizabeth Cheung, “Hong Kong National Party Convenor Disqualified from Running in Legislative Council Polls,” South China Morning Post, October 3, 2018. 

^[58] Ibid.

^[59] “Legal Service Division Report on Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019,”Legislative Council, April 12, 2019.

^[60] “Hong Kong Protest: ‘Nearly Two Million Join Demonstration,” BBC News, June 17, 2019. 

^[61] “China’s Xi: HK Violence Threatens ‘One Country, Two Systems’,” Al Jazeera, November 14, 2019. 

^[62] Kelly Ho, “Activist Tong Ying-Kit Found Guilty in Hong Kong’s First National Security Trial,” Hong Kong Free 

Press HKFP, July 27, 2021. 

^[63] Theodora Yu,  “Liberate Hong Kong? Time’s up for That Slogan, Court Rules in First Security Law 

Trial,” The Washington Post, July 27, 2021. 

^[64] Ibid.

^[65] Vivian Kam, “Hong Kong Unrest Hits 6-Month Milestone, Protesters’ Demands See Little Response from Government,” CNBC, December 9, 2019. 

^[66] Francis L.F Lee, Samson Yuen, Gary Tang, and Edmund Cheng, “Hong Kong’s Summer of Uprising: From Anti-Extradition to Anti-Authoritarian Protests,” The China Review 19, no. 4 (November 2019). 

^[67] Ibid.

^[68] Lydia Wong and Thomas E Kellogg, Hong Kong’s National Security Law: A Human Rights and Rule of Law Analysis (Washington, D.C.: Georgetown Law School Center for Asian Law, 2021). 

^[69] Ibid.

^[70] Ibid.

^[71] Ibid.

^[72] Shangkun Yang, “The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of 

China,” April 4, 1990. 

^[73] Ibid.

^[74] Ibid.

^[75] Michael Davis, “6,” in Making Hong Kong China: The Rollback of Human Rights and the Rule of Law (Ann Arbor: Association for Asian Studies, 2020).

^[76] Ibid. 

^[77] “Hong Kong National Security Law: Read the Full Text,” South China Morning Post, July 24, 2020.

^[78] “Inter-Departmental Counter-Terrorism Unit,” Inter-departmental Counter-terrorism Unit, Hong Kong Police Force, accessed August 24, 2021. 

^[79] “Hong Kong National Security Law Promulgated, Came into Effect June 30, 2020,” Morrison & Foerster, last updated July 1, 2020.

^[80] Ibid. 

^[81] Lydia Wong and Thomas Kellogg, “New Data Show Hong Kong’s National Security Arrests Follow a Pattern,” 

China File, August 23, 2021. 

^[82] Clifford Lo and Victor Ting, “Hong Kong National Security Law: 3 Teenagers among 5 Arrested on 

Suspicion of Terrorism Offences,” South China Morning Post, n.d. 

^[83] Author interview.

^[84] Author interview.

^[85] Author interview.

^[86] Helen Davidson, “Hong Kong Primaries: China Declares pro-Democracy Polls ‘Illegal’,” The Guardian, July 14, 2020. 

^[87] Natalie Lung, “600,000 Hongkongers Voted in Unofficial Primary Election,” Time, July 13, 2020.

^[88] Ibid.

^[89]Author interview.

^[90] China: The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong: Joint Publishing, 1991).

^[91] Author interview.

^[92] Ibid. 

^[93] Ibid.

^[94] Ibid. 

^[95] Ibid.

^[96] Ibid.

^[97] “Exclusive: HK Survey Shows Increasing Majority Back Pro-Democracy Goals, Smaller Support for 

Protest Movement,” Thomson Reuters, August 30, 2020. 

^[98] Ibid.

^[99] Author interview.

^[100] Phila Siu and Laura Westbrook, “More than 34,000 Hong Kongers Apply for BN(O) Visa Scheme in Its First 2 Months,” South China Morning Post, May 28, 2021. 

^[101] Vanessa Gu, “Almost 90,000 People Left Hong Kong in the Past Year. It Marks the City’s Biggest 

Population Decrease in 60 Years,” Insider, August 13, 2021. 

^[102] Ibid. 

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Abstract

It is often believed that Iran’s Islamic Republic and the State of Israel became estranged after Ayatollah Khomeini arose to power during the Islamic Revolution in 1979, but records show key figures in each government felt maintaining a secret relationship would be in the interest of both parties. As a result, millions of dollars’ worth of trade between Iran and Israel continued after the fall of the Shah and during Khomeini’s regime–– even though  Iran publicly denied Israel’s very existence. I argue the Islamic Republic’s decision to preserve secret ties with Israel after the revolution was a move to bolster regime security and counter international security threats coming from Iraq in the lead up to, and during, the Iran-Iraq war.

 I. Introduction

Why did the Islamic Republic continue clandestine cooperation with Israel? The question is puzzling because the revolution that put the Islamic Republic in power diametrically opposed all the Shah’s policies–including the monarchy’s covert relationship with Israel. The animosity between the two countries following the revolution in 1979 has been both fervent and public, with hostilities enduring to this day. The most prominent face of the Revolution, Ayatollah Ruhollah Khomeini, stated in an interview at the beginning of his tenure that his Islamic Republic would “break off relations with Israel because [it did not] believe there is any legal justification for its existence. Palestine belongs to the Islamic space and must be returned to the Muslims.”^[1] Furthermore, the Ayatollah’s condemnation of Israel as the “Little Satan” (only second to the United States which was dubbed the “Great Satan”) followed a larger narrative which Khomeini capitalized upon during the Iran-Iraq War after assuming power. 

In early 1980, Saddam Hussein and his army invaded Iran and a bloody eight-year war ensued. The devastating war ended in a stalemate and an estimated one to two million casualties. It is important to understand that in the 1970s, prior to the Revolution, Iran had a remarkably strong military backed by the West and funded by oil wealth. Simultaneously, Iraq in the hands of Saddam Hussein’s Ba’ath party was also rising in the ranks. This balance of power shifted once the Ayatollah came to power in 1979 and Khomeinists purged the Shah’s army out of fear and distrust. Iraq recognized this and decided to attack its historical foe less than a year after the revolution took place. In an attempt to galvanize troops, Iranian leadership during the war period promised soldiers and soon-to-be martyrs the next stop after “conquering Baghdad” would be the “liberation of Jerusalem.”^[2] Ironically, however, the peak of clandestine Iran-Israel relations was during this time period. 

Taking a closer look at the events of this period, though, it’s not as hard to believe why Khomeini decided to maintain covert ties with Israel. As Sohrab Sobhani puts it, the Shah’s departure left Khomeini to inherit the world’s sixth largest army, $26 billion in foreign reserves, an oil industry producing $105 million a day, and the Shah’s legacy of close relations with Israel.^[3]  All were gladly accepted by the new regime except for friendly relations with Israel—at least publicly. As far as the world was aware, the new Islamic Republic’s feelings about Israel were evident in its decision to redirect the Shah’s Israeli mission to the Palestinian Liberation Organization (PLO), which was actively fighting the existence of Israel. 

II. Roadmap

I begin by providing a capsulized background of Iran-Israel relations since 1948. After laying down this historical foundation, I briefly compare Iran’s foreign policy pre-revolution (1948-1978) and post-revolution (1979-present). 

Once I outline the history, I move on to reviewing the literature surrounding Iran-Israel clandestine cooperation since 1948, with a particular focus on why it continued into the years 1979-1989. I divide the literature into three separate groups: 1. International Security, 2. Domestic Pressure, and 3. Individual and Ideological Aspirations. After providing an overview of the literature at hand, I ultimately argue international security threats were the main motivator for the Islamic Republic’s policy towards Israel. The second group of literature emphasizes the importance of Iranian domestic politics and its influence on foreign ties but falls short due to its underestimation of Khomeini’s desire to uphold the Islamic regime at all costs. The final group looks at the Shah and Khomeini as individuals, assessing their leadership and analyzing their personal vision for Iran. Looking at the puzzle through an individual lens helps gain insight into how these two leaders differed from one another, but ultimately, the logic of this argument fails to explain why exactly Khomeini would sustain the policies of a man he so detested.

After reviewing the literature, I present my argument, which states the decision to continue clandestine cooperation with Israel after the revolution was a choice of pragmatism over revolutionary ideology and was induced by the Iran-Iraq War. To expand on my argument, I split up this section into two subsections. The first, “Collaborating with the ‘Little Satan’,” examines Khomeini’s tacit continuation of the Shah’s pragmatic foreign policy. The second subsection, “The Lesser of Three Evils,” focuses on how the Iran-Iraq War proliferated Iran-Israel clandestine cooperation, and why the relationship dwindled almost immediately afterward. This section also illustrates how Cold War politics played into Tehran’s decision to continue cooperation with Israel.

I then use two separate case studies of international clandestine cooperation: Israel-Saudi Arabia and Israel-Azerbaijan to help contextualize and explain why enemies collaborate in international relations. Next, I compare the two cases and illustrate their relation to Iran-Israel relations from 1948-1989. I finish this section by presenting and critiquing common arguments that muddle the puzzle at hand. The first is that the Islamic Republic’s foreign policy is guided primarily by ideology, and the second is the idea that Khomeini was merely a hypocrite. Both arguments are unsatisfying, and my goal is to unveil the complexity of the matter instead of generalizing a country’s policy based on its outward demeanor.   

I conclude the paper with a summary of key points discussed in each section and additional takeaways. I address counter-arguments, including the minimal focus placed here on the influence of the United States, the Soviet Union, and other external powers. Finally, I suggest potential areas for future research to hopefully connect the lessons learned during the initial years of the Islamic Republic and Israel’s relationship to the current one—providing a new perspective to what seems like a doomed relationship. Can Iran and Israel return to a pragmatic alliance in the future? What needs to happen for this to occur? 

II. Literature Review

Iran—up until the Islamic revolution in 1979—was a major rising power in the region. With this growth came an amassing influence that the Shah and other prominent figures in Iran had to manage effectively to avoid collapse. Interestingly, even with the Shah’s outward affinity for Western powers like the United States, the country favored secrecy when it came to Israel. Ayatollah Khomeini, the Shah’s arch nemesis, continued the late monarch’s covert cooperation with Israel even when all other policies were shunned—but why?

Intelligence expert Len Scott describes the advantage of secret alliances as the increased deniability of clandestine diplomacy, which adds to its value as a tool used by adversaries that would face criticism for engaging in a traditional alliance.^[4] Moreover, clandestine diplomacy assumes a willingness to talk with an adversary, even if these talks never amount to formal negotiations.^[5] With virtually the entire Arab world opposed to Israel’s existence, Iran seemed like one of the only plausible options Israel had for a regional companion. Iran, on the other hand, knew an overt alliance with a country they denied the existence of would tarnish its reputation among its Arab neighbors and compromise regime security. 

The existing literature can be categorized into roughly three groups of explanations for the secret relationship that emerged out of this situation. The first group focuses on the international implications of the Islamic regime publicizing their cooperation with Israel. Within this group, some view Khomeini’s vocal championing of Palestinian self-determination as a natural hindrance to any public cooperation with Israel, while others claim that the backdrop of Cold War politics was more significant. A major drawback of this group’s argument is it does not take into account the considerable differences amongst the many faces of leadership in Iran.

The second group consists of those that consider Iran’s domestic politics as the motive behind its vacillation towards Israel. This group cites prioritization of regime security as the main push factor towards covert cooperation with Israel. Domestic opposition to an exposed relationship would have been worse after 1979 than it would during the Shah’s reign since the legitimacy of the Islamic Regime rested on severing all previous ties with the West. The grounds for this argument are compelling, though its main pitfall is its lack of attention towards Khomeini’s campaign to export the Islamic revolution. 

The last group is unique in that emphasis is largely placed on individual leaders and their aspirations. In essence, this group places the Shah’s and Khomeini’s shared hegemonic ambitions at the core of Iran’s foreign policy during both of their tenures. This argument, however, fails to consider that both regimes maintained diverse leadership, making it hard to explain two phenomena with this lone wolf theory: (a) the substantial wavering of foreign policy throughout each leader’s reign and (b) the lack of amicable relations between Iran and Israel after the death of Khomeini. In post-revolutionary Iran, much of the literature emphasizes Khomeini’s ideological zeal as the main driver of his foreign policy. The logic of this assertion assumes clandestine cooperation between Iran and Israel would cease to exist without the Shah calling the shots, but this has not been the case. The reality is that Khomeini, who actively worked to reverse all that the Shah stood for, continued these covert negotiations decades after the fall of the Shah.

Group I: International Security

Scholars that emphasize the international dimension of an overt relationship between Iran and Israel make up this first group. Developments in the Middle East and broader international sphere during this time, such as the Arab-Israeli conflict and Cold War, inevitably played a role in Iranian foreign policy—but to what extent did these events affect Iran’s relations with Israel? Likewise, did these international events have any effect on the Islamic Republic’s decision to continue clandestine relations with Israel?

Iran’s Arab neighbors, especially the Gulf monarchies, were not pleased with the idea of a Shi’a-led movement preaching the trading of monarchies for Islamist governments near their borders. The influence of Khomeini’s fierce propaganda and revolutionary success was heard by Shi’a minority groups across the Middle East, which many Gulf monarchies in particular considered a looming threat to their power. Ultimately, Khomeini’s expectation that his Muslim neighbors would support him against Iraq failed to become a reality. Instead, a multilateral effort to help Saddam defeat Iran was formed; mostly because many regional powers feared the spread of an Islamic revolution in their own borders if Iran were to win the war. In fact, John Calabrese argues Khomeini’s effort to discourage collaboration with Saddam’s regime through anti-Zionist rhetoric and appeals to the Palestinian cause ended up reinforcing the Gulf states’ tilt towards Iraq.^[6] 

For the Shah, playing both sides in the Arab-Israeli conflict worked in his favor, so there was no need to publicly declare his commitment to one side over the other as long as the regional status quo remained intact. This wavering public attitude abruptly shifted under Khomeini. Instead of maintaining the Shah’s ambiguous attitude towards the Arab-Israeli conflict, the Islamic Republic firmly stood behind the Palestinians, deeming those that did not as traitors to Islam. Shahram Chubin explains this position by arguing the clergy’s pro-Palestinian posture became a source of legitimacy for the regime, as well as an area where it could stand out from its Arab counterparts.^[7] R.K. Ramazani puts forth that Khomeini’s insistence on exporting the Islamic Revolution and creating an Islamic international order led to his foreign policy doctrine of “Neither East, nor West, but the Islamic Republic.”^[8] Although through different means, the new regime shared with the monarchy before it a desire for Iran to transcend the quandaries of its neighbors and come out on top as a new model for regional hegemony. 

In his piece “Iran and the Arab-Israeli Conflict,” Ramazani argues Cold War politics are essential in understanding Iran’s secretive approach to Israel. He describes Iran’s policy under the Shah as ‘calculative ambivalence,’^[9] with most of Tehran’s behavior driven by the regime’s fundamental goal of hindering Soviet influence in the region.^[10] In his eyes, the Shah’s regime did not merely view ties with Israel as a ‘discreet entente’ against Arab hostility, but primarily as a deterrent against increasing Soviet expansion into the Middle East.^[11] In contrast, under the Islamist Regime, Israel’s ties to the United States and Western world became its main pitfall. Tehran after the Revolution had now positioned itself as both an enemy of the West and Soviet Union. Nonalignment, however, became nearly impossible for the regime to sustain after the outset of the Iran-Iraq War. John Bulloch and Harvey Morris explain that up until the revolution, America armed Iran, meaning the new regime had to find American spares for its guns, planes, armored vehicles and tanks.^[12] Bulloch and Morris point out that Israel was both the nearest supplier and the most willing.^[13] Behrouz Souresrafil expands on this by highlighting the arms embargo placed on Iran by the U.S. during the war, ultimately forcing it to choose between buying needed arms on the black market for high prices or accepting Israel’s offer at a much lower price.^[14] In the end, Iran took up Israel’s offer despite its public opposition to the state’s existence.

A considerable drawback of this group of literature is its belief that Iran’s policy towards Israel depended on Khomeini as a sole actor. Although Khomeini played a major role in crafting Iranian foreign policy during his time in charge, the lack of a functioning foreign ministry in conjunction with the loud voices of the regime’s domestic opponents were just as important when it came to ties with Israel. Additionally, this argument assumes  the regime was more outwardly than inwardly focused when it came to politics. Again,  this could have just been Khomeini’s approach at the time, and not representative of the multifaceted Iranian regime as a whole.

Group II: Domestic Pressure

The second group of literature indicates the revolutionary government decided to continue covert cooperation with Israel was because the regime needed to do so to survive. Such two-timing is consistent with revolutionary movements throughout history, and thus, the regime’s decision to maintain ties with a state that can help keep it alive is not the historical exception it is often considered to be.

Souresrafil explains the Khomeini regime faced massive problems in running the country from the start and  turned to Israel in a bid to survive.^[15] These problems only got worse after a decrease in oil prices plunged the economy into a crisis and the costs of war began suffocating the regime.^[16] By and large, Souresrafil considers Khomeini’s foreign policy to be pragmatic and, at times, opportunistic.^[17] 

After eight brutal years and millions of dollars’ worth of Israeli weapons used by the Iranian regime against Iraq, the Iran-Iraq War came to an end and Khomeini’s newfound grip on power became the regime’s largest success. Trita Parsi explains the Iran-Israel relationship has always been based on common vulnerabilities during both the time of the Shah and Khomeini. Such a relationship, however, meant if one state gained enough power to deal with threats on its own, the need for the other would cease to exist.^[18] This is precisely what happened after the new revolutionary regime emerged from the Iran-Iraq War alive.       

With most of the mayhem now behind it, the new Iranian regime could now reinforce its position as a staunchly pro-Islamic and anti-Western entity. In addition, Israel and many Iranian Jews living in the country felt the relatively fair treatment Iranian Jews experienced under the Shah was now threatened by the Islamic Republic. This drove hundreds of thousands of Iranian-Jews out of Iran after 1979 and strengthened the pro-Khomeini domestic population. Sobhani argues the new Iranian regime realized this and began using it to their advantage once Iraq invaded Iran. In support of his argument, Sobhani describes a “arms-for-Iranian Jews” agreement, which was a tacit settlement between Israel and the Islamic Republic that essentially granted Iranian Jews freedom to leave Iran in exchange for much-needed arms. During these years of Iran-Israel clandestine cooperation, it is estimated that 55,000 Iranian Jews were permitted to leave Iran.

The main weakness of this group’s argument is its lack of consideration for Khomeini’s ambitious vision to export the revolution and become the ‘voice of the oppressed’. Domestic pressure — although an essential part of the puzzle — should be considered alongside the international security concerns of the state at the time.

Group III: Individual and Ideological Aspirations

The third group places the Shah and Khomeini’s individual aspirations at the forefront of Iran’s clandestine cooperation with Israel. This is a common direction that many scholars who study Iranian foreign policy take due to the Shah’s potent nostalgia for Iran’s glorious years as a powerful empire and Khomeini’s fierce Islamist ideology. Parsi explains how the Shah’s belief in Iran’s historical predisposition to regional prominence led him to adopt a relentless approach to Iranian regional primacy, certain that Iran was the only nation capable of maintaining peace in the Middle East.^[19] This group of literature asserts it was the Shah’s quixotic desire for Iranian primacy that drove his strategic relations with Arab and Israeli neighbors. Thus, Iran’s ultimate decision to ‘play both sides’ in the Arab-Israeli conflicts by cultivating relations with both Israel and Arab neighbors was an attempt to please as many parties as possible and build legitimacy for a Shah who sought to fill what he considered a power vacuum in the region. 

Helmut Richards describes the political scene in Iran preceding and following the U.S. and British-led coup on Mohammad Mosaddeq by illustrating how the Shah altered his image after returning from exile in 1953. One of the first things the Shah said after returning to Iran was that he had “known since early childhood…that it was [his] destiny to become King.”^[20] Following this notorious claim, he reinforced this conviction by “insisting that he [had] seen Ali, Saint Abbas, and the last Imam” during his time away from his country.^[21] When analyzing Iran’s decision to pursue clandestine relations with Israel before the Islamic Revolution despite domestic and international opposition, it is helpful to view  the decision through an individual lens. In this case, through the Shah’s eyes. 

The desire for regional hegemony was another characteristic inherited by Khomeini. Though seemingly different, Khomeini’s longing to export the Revolution beyond Iran’s borders resembles the Shah’s prominent belief that Iran’s destiny was to be a regional leader. Sobhani places great emphasis on Khomeini being the main obstacle blocking the path towards an Iran-Israel alliance, arguing Iran and Israel are “natural allies” and that the removal of Khomeini would cause the two powers to revert back to a strategic anti-Arab alliance.^[22] Whether Sobhani’s assumption held up after Khomeini’s death is debatable, but what is clear is that relations between Tehran and Tel Aviv are far from as strong as they were during the Shah’s reign. Taking an individual approach can be useful in gaining a better understanding of the Shah and Khomeini’s personal perspectives on the matter, as well as understanding why they took the steps they did towards Israel during their reigns. Many consider the Shah a pragmatic and cunning political figure but view Khomeini as a zealot unable to approach politics rationally, yet Khomeini continued the Shah’s pragmatic relationship with Israel. A major drawback of this group is its reliance on the assumption that the Shah acted as a lone wolf when approaching relations with Israel. If this was the case, then one would have expected covert ties to sever with the fall of the Shah in 1979, but in fact, clandestine cooperation between Iran and Israel continued under the Shah’s archenemy: Ayatollah Khomeini. Moreover, the world’s expectation that Iran and Israel would resume good relations after the death of Khomeini in 1989 did not manifest either. The reality is that Iranian society is highly complex and will always be home to regime hardliners as well as progressive reformists, irrespective of any individual leader.

Conclusion

Scholars who prioritize the international political climate as the main driver of Tehran’s policy during this time provide an argument maintaining a great deal of merit, yet their lack of regard towards Iran’s domestic population inevitably weakens their position. The same goes for the scholars that solely focus on the Shah’s ‘megalomania’ and Khomeini’s religious zeal. In order to fill these gaps, more research needs to be done on why exactly Khomeini’s regime continued clandestine cooperation with Israel despite notorious public condemnation; as well as why cooperation dwindled after the Iran-Iraq War.

The Road Ahead

I. Argument

In this section, I argue the Islamic Republic’s strategic preservation of ties with Israel symbolizes the subduing of ideology in favor of a pragmatic foreign policy prompted by international security threats. The first part looks at the preservation of ties as a means of regime survival during an era of regional instability. A newly-formed revolutionary government that is immediately sprung into a war will naturally need to compromise to survive — even one that prides itself on non-alignment. The second part proposes that, in comparison to the U.S. and the Soviet Union, covert cooperation with Israel was a more attractive alternative for the Iranian regime.

A. Collaborating with the ‘Little Satan’

Khomeini is not a man of religion. Whoever describes him as such is fanatical, stupid and understands nothing of politics. Khomeini is a politician. When he realizes he is losing more than he is gaining, he will establish peace.

– Saddam Hussein, Baghdad, 10 November 1982

In an anarchic international system riddled with uncertainty, states inevitably must compromise to stay afloat. The Islamic Republic was not immune to this reality. What became evident soon after Iraq invaded Iran was that Khomeini’s zealous rhetoric would have to be mutually exclusive from foreign policy for the regime to survive. Stephen Walt explains that ideological differences become less of an impediment to alliance formation when more immediate issues of security arise.^[23] When the Shah was in power, common security threats from Nasser’s Egypt and the Soviet Union brought Iran and Israel closer. Under Khomeini, Iraq’s aggression combined with Iran’s isolation from the international community made room for a renewal of such cooperation largely because Iran needed weapons. Indeed, Iran’s military at the outset of the war was in a dire state and Israel was one of the few options they had for assistance. At the start of the war, it was reported there were only twenty-eight tanks in the entirety of the Khuzestan province (the closest Iranian province to Iraq). The Iranian air-force— which had been one of the strongest in the region under the Shah— was in even worse shape; with only 40 percent of the entire fleet being salvageable (60 percent of F-5s, 40 percent of F-4’s, and 10 percent of F-14’s were functionable at the time).^[24] It is also estimated that in 1979-1980, 60 percent of Iranian military personnel had quit, in addition to the thousands arrested or killed by the new regime. Israel sold more than $100 million dollars’ worth of arms to Tehran in 1983,^[25] and by 1985, Danish cargo ships chartered by the Israeli government and private arms dealers made over 600 trips carrying American-made arms through the Persian Gulf to the Iranian port of Bandar Abbas.^[26]  As the war drew on, Israel made sure to keep Iranian planes flying, and Israeli instructors trained Iranian commanders on how to handle their troops.^[27]

Although the Shah was better at keeping a diplomatic front when it came to publicly discussing ties with Israel, neither him nor Khomeini could realistically cite ‘ideological alignment’ with Israel as being a factor in their cooperation. Additionally, the usefulness of Ben Gurion’s periphery doctrine —a key geostrategic doctrine involving Iran, Turkey, and Ethiopia— was also dwindling in importance during the 1980s. What remained though, was Iran’s commitment to its position as a major regional power. 

The reality is that Khomeini’s harsh rhetoric towards Israel was more of an impassioned charade than it was a foreign policy doctrine during the 1980s. In these years, Iran’s strategic and rhetorical objectives contradicted each other  and revolutionary ideology was often set aside in light of realist considerations.^[28] Essentially, while Iran publicly condemned Israel and all it stood for, it continued covert cooperation and took very little tangible action against the Jewish state. The Israelis seemed to recognize this discrepancy between rhetoric and policy early on and continued to treat Iran as a potential regional ally regardless of the regime and its classification of Israel as a “cancerous tumor.”^[29] This was largely because Shimon Peres — Israel’s prime minister and foreign minister at the time — believed that Khomeini was just a temporary ailment to Iran-Israel relations, and that the United States should actively strive to bring Iran back into the Western-camp. Surprisingly, in 1982, Israeli defense minister Ariel Sharon publicly announced on television that Israel would continue selling weapons to Iran despite American opposition. Iran denied, ridiculed, and responded to this claim by introducing resolutions to expel Israel from the United Nations.^[30] Yitzhak Rabin perpetuated this outlook, stating in 1987 that “Iran is Israel’s best friend and we do not intend to change our position in relation to Tehran, because Khomeini’s regime will not last forever.”^[31] Strangely enough, this paradox of rhetoric and policy lasted for eight years, waning with the end of the Iran-Iraq War and concurrent Cold War.

A key takeaway from Iran’s pragmatic policy was that security was ultimately more important to the regime than its hatred for the West. Throughout their respective reigns, both Saddam Hussein and Khomeini demonstrated their ability to compromise to ensure their political survival. Although not an automatic response, it was always known that both were willing to tone down their ideology if it meant they could maintain their power.^[32] This, however, changed with the end of the war in 1988. After emerging from an eight-year war alive, Iran began to back its anti-Western rhetoric with action. 

Compromise was less important to the regime after the war. Thus, even the tiny remnants of the Shah’s pragmatic relationship with Israel became severed. These years also saw a return to Khomeini’s desire to export the Revolution. This time, however, the regime’s approach was less focused on getting Arab countries on board, and more focused on targeting regional Shi’a minority populations. Lebanon and Syria became major points of interest for Iran because they were home to a large minority of Shiites, but Iran’s wandering eye was soon perceived as a direct threat to Israel’s security. The end of the Iran-Iraq War led the regime to realize it could protect itself even with all odds against it, and so compromising their ideology was no longer necessary for survival.

B. The Lesser of Three Evils

Neither east nor west, sometimes Israel, when it serves our interest best.

Sohrab Sobhani, “The Pragmatic Entente” (1989)

Khomeini’s rise to power brought with it a new populist dimension to Iranian foreign policy. This included a vehement hostility towards the United States and the Soviet Union, which the Ayatollah considered imperialists and enemies to Islam. To say the regime’s resentment was solely towards the West in the 1980s would be inaccurate, as Khomeini was insistent in his doctrine of “neither East nor West, only the Islamic Republic”. 

What is especially interesting about this period in history is that Khomeini’s regime accepted military supplies from Israel but rejected a similar proposal from the Soviet Union. Israel’s non-superpower status gave it an edge over cooperation with the United States or the Soviet Union, even if such cooperation was undisclosed to the public. In a way, it seems Khomeini ranked the United States and the Soviet Union higher than Israel in his proverbial ‘abomination’ scale. In this view, cooperation with ‘the Great Satan’ or the imperialist Soviets was a disgrace, so cooperation with ‘the Lesser Satan’ was less of a disgrace — especially in the midst of the Cold War when the Islamic regime prided itself on non-alignment. At the end of the Iran-Iraq War Khomeini gave a speech stating:

We did not collude even for a moment with America, the Soviet Union, and other global powers, and we consider collusion with superpowers and other powers as turning our back on Islamic principles.

The shift in post-revolutionary and post-war Iranian foreign policy occurred through a revived emphasis on its role as the defender of Islam, which was used to antagonize both superpowers more so than Israel. ^[34] Furthermore, Iran’s shaky history surrounding the Shah and U.S. – Russian intervention throughout the 20th century makes Israel a less threatening foe vis-à-vis the Iranian people. 

Ultimately, the Islamic Republic preserved the Shah’s clandestine policy towards Israel due to international security threats and a reluctance towards superpowers.

II. Evidence

A. Case Study #1: Israel and Saudi Arabia

The relationship between Israel and the Kingdom of Saudi Arabia varies greatly in its public image versus its private utility. The two states— historically hostile to one another— possess no official diplomatic relationship yet cooperate frequently on a covert level. Saudi Arabia is not a signatory to the commemorated Abraham Accords, even though the UAE and other Gulf neighbors are. Throughout history, what bonded this unexpected pair has been common security threats arising from regional neighbors. In the 1960s, this was the threat coming from Nasser’s Egypt. Since 1979, the two have shared an interest in curtailing Iranian expansion — specifically Tehran’s nuclear endeavors and Shi’a proxies. 

After the Islamic Revolution in 1979, Khomeini and his regime began a propaganda campaign aimed at panning Saudi Arabia and other Arab countries as “un-Islamic” for evading their ‘Islamic duty’ to protect the Palestinians. What made this campaign threatening was the fact these statements were accompanied by Iranian-inspired Shi’a uprisings in Kuwait, Bahrain, and Saudi Arabia.^[35] The latter, being an absolute monarchy with a significant Shi’a minority population in its northern region, has always been concerned about Iranian influence on its soil. Conflicts involving Iranian proxies around Israel and the Kingdom’s borders exacerbated these concerns in the past twenty-years. The steady rise of Hezbollah in Lebanon and the Houthis in Yemen have been a nuisance to Israel and Saudi Arabia’s security and have thus steered the two states towards intelligence sharing and clandestine diplomacy.   In an era where America’s regional influence is dwindling, and rapprochement between the West and Iran is underway, Saudi Arabia and Israel find themselves needing to adjust to the ever-shifting times. This shift caused Saudi Arabia and the Gulf states to recognize Israel’s military capability and close relationship with the United States as a valuable connection that could help preserve a partnership with Washington.^[36] Most recently, evidence of cooperation between the two began to surface because of the Kingdom’s use of Israeli-made cyberweapons such as Pegasus, a spyware the monarchy uses to monitor dissidents abroad.^[37] For the most part, however, this cooperation has remained unofficial and out of the public eye. Some consider this to be because open relations with Israel historically carried higher costs than benefits for the Kingdom given domestic opposition and the position of other Arab countries towards the Palestinian issue.^[38] Thus, conducting clandestine diplomacy with the Jewish state is considered a win-win situation for the Saudi monarchy and its legitimacy as a conservative Islamist power. 

B. Case Study #2: Israel and Azerbaijan

The relationship between Israel and the former Soviet-state of Azerbaijan differs in some ways to the alliances mentioned above. First off, although Azerbaijan has yet to have an official embassy in Israel, cooperation between the two states is much more publicized. The capital city, Baku, is has a significant Jewish population, and the country recognized Israel’s statehood relatively early on (in comparison to Arab neighbors). These factors generated a more productive relationship, regardless of Azerbaijan’s majority-Muslim population and conflicting regional allies. 

Azerbaijan and Israel cooperate on three main fronts: interstate security concerning Armenia and the Nagorno-Karabakh conflict, strong trade relations, and countering Iranian influence. Like many other states that choose to maintain civil relations with Israel, Azerbaijan sees Israel’s influence in Washington as a major benefit to getting the Azeri voice heard on issues pertaining to Armenia and the ongoing conflict. The two states also face what they deem a constant existential threat, bringing them together in a coalition based on protecting their sovereignty and right to exist. From the outset of the Nagorno-Karabakh conflict, Israel has supported the Azeri position while states like Iran and Russia supported the opposing side. Turkey, another major ally of Azerbaijan, plays an increasingly important role in Israeli-Azeri relations as the deteriorating relationship between Jerusalem and Ankara in recent years has increasingly pressured Azerbaijan to reevaluate its already-brittle ties with Israel. Such pressure provides insight on why relations between the two have not been publicized, and helps explain why Azerbaijan frequently votes against Israeli proposals in international forums.

In the economic realm, both countries have long enjoyed prosperous energy and arms trade, with the latter being the most controversial aspect of their relationship. Therefore, instances where the Nagorno-Karabakh conflict resurfaces are often when Azeri-Israeli relations are highlighted and most contentious. Regardless, Baku is also one of Israel’s most reliable oil suppliers following the fallout with Egypt after the Arab Spring.^[39] Still, the Israel-Azerbaijan relationship is most effective in curtailing the shared Iranian threat.

Azerbaijan, being previously part of the Persian Empire and then briefly a Soviet entity, has had a long battle with independence. Today, the small state borders Iran to the South and Russia to the North, making its geopolitical posture highly valuable to the West and its allies. Israel, realizing this, took advantage of Baku’s strategic position vis-à-vis Iran, especially as Iranian proxies began springing up around Israel’s borders. The past ten years, for instance, have witnessed an increase in cooperation between the two states regarding intelligence gathering on the Iranian border. Furthermore, Azerbaijan is a major target for Israeli defense industry exports.^[40] Over the years, Israeli defense companies have been involved in training Azeri special forces, constructing security systems for the country’s airports, and upgrading Soviet-era military equipment.^[41] In 2011, Israel began supplying the Azeri military with unmanned aerial vehicles (UAVs) and satellite systems to monitor the border. In 2012, $1.6 billion worth of weapons had been sold to Azerbaijan by Israel Aerospace Industries.^[42] Such actions against Iran worry the regime not only because of a heightened Israeli presence on their borders, but also because Azeris make up the largest minority group inside Iran. These developments could exacerbate longstanding tensions the regime suppressed for decades. The two states are playing a remarkably risky game, but it is through these common objectives that their relationship remains sturdy in the face of regional disapproval.

C. Comparing the Two

Having examined two separate case studies illustrating unconventional covert alliances, I now compare them in relation to Iran-Israel relations from 1948-1989. 

First, I focus on the secret aspect of these relationships. The logic behind the covert nature of the Israeli-Saudi and Israel-Iran relationships both stem from the outward hostility these countries possess with one another on the world stage. Some claim this enmity is primarily due to conflicting ideologies, but I find this argument weak. It is true Israel, being a Jewish state, differs from the Islamic Republic and Saudi Arabia’s Islamic anatomy, but this is not the primary driver or repellent of relations between the states. If this were the case, then Israel’s relationship with Azerbaijan, also a Muslim state, would be just as unlikely. What is in fact similar between these cases is that they all prefer cooperation to stay out of the public eye. This might seem odd when weighing the costs and benefits of having a strong public alliance, versus a fragile secretive relationship, but in the greater context of the Middle East and its ever-shifting loyalties, a hesitancy towards commitment is less surprising. 

The modern Israel-Azerbaijan relationship is also reminiscent of the Iran-Israel relationship from 1948-1978. Both depended on containing the threat of an aggressive neighbor and both were kept secret due to domestic and international backlash. What makes the Israeli-Saudi case different is that the Kingdom largely shares with Iran a similar outward vilification of the Jewish State unlike Azerbaijan, who maintains a relatively civil exterior. As a bonus, Saudi Arabia and Azerbaijan both view Israel as being highly influential in Washington. In their eyes, a good relationship with Israel means more clout with the Americans— another conception shared by the late Shah.  

In the 1990s, the idea was that an Israel – Turkey – Georgia – Azerbaijan axis could constrain a developing Syria – Iran – Armenia – Russia axis.^[43] If you compare this to Ben-Gurion’s periphery doctrine in the 1950s, which envisioned an Israel – Iran – Ethiopia alliance as a counterweight to the Arab threat, a similar geopolitical strategy remains. The difference now is that the regional balance of power has shifted, and the Iranian regime is no longer threatened by its Arab neighbors in the same way it was in the latter half of the twentieth century, meaning Israel has become less useful to its interests. Using this logic, one surmises a world with a recovered and strengthened Iraq and Afghanistan would push Iran closer to Israel once again, but this is mere speculation. 

The rhetoric utilized by Khomeini and similar zealous figures in Saudi Arabia against Israel seems to have little to no effect on their actual foreign policy. Instead, radical figures utilize these tactics in an attempt to mask cooperation they themselves preach as taboo to their domestic populations. Such a strategy has less to do with ideology, and more to do with realism and regime security.

Another question one might ask: what needs to happen for a secret relationship to evolve into an open relationship? Truthfully, the answer to this question depends on several factors: individual leadership, regional security, great power competition. However, publicizing a formerly secret relationship would require, above all, the states involved to solidify their priorities. If a state with a thriving economy and strong military were to publicize a previously covert alliance with a weaker, ideologically-opposed state, there would need to be a practical reason to do so. For example, Iran-Israel cooperation up until the end of the Shah’s reign illustrated a scenario where one party wanted to publicize relations (Israel) and another felt it was unnecessary (Iran). The reason cooperation continued even after Israel’s wishes to publicize the relationship were turned down by the Shah was because Israel needed Iran more than Iran needed Israel at the time. Today, we can see a similar pattern emerging between Israel and several Arab states, making an agreement like the Abraham Accords more attractive to old enemies.  

III. Conclusion

In this paper, I attempted to answer the question of why the Islamic Republic continued clandestine cooperation with Israel. My argument attributes the prolonging of cooperation to the Islamic Republic’s implementation of realist policy to address security threats arising from Saddam Hussein’s invasion of Iran.

This conclusion came after exploring several competing explanations in existing literature for this covert relationship, largely split into theories around (1) international security, (2) domestic pressure, and (3) individual or ideological aspirations. Ultimately, the international security argument is the most convincing, but the literature does not consider the discrepancies in Khomeini’s rhetoric versus his ultimate policy. The second group does a good job at explaining the complex internal makeup of Iran and how such complexity can affect foreign policy decisions, but this group falls short due to an underestimation of Khomeini’s determination to uphold the regime at all costs. The final group emphasizes the role of the individual in a state’s foreign policy and compares the leadership styles of the Shah and Khomeini but fails to explain precisely why Khomeini would preserve the policies of the Shah, a figure who the Ayatollah vowed to be the foil of, as well as why an Iran-Israel entente did not resume after the death of Ayatollah Khomeini in 1989. The puzzle can best be understood through an amalgamation of certain aspects drawn from the current literature and new evidence I present further along in the paper. 

After reviewing the literature, I argue the decision to continue clandestine cooperation with Israel after the Islamic Revolution was a choice of pragmatism over revolutionary ideology induced by security threats stemming from the ongoing Iran-Iraq War. In the end, regime security was more important than Tehran’s hatred for the West. I also explored the security threat triggered by the Iran-Iraq War and explained the role Cold War politics played in the regime’s ultimate decision to extend covert collaboration. Since the Islamic Republic adhered to a “neither East nor West” doctrine during the Cold War, Israel’s non-superpower status made it a more attractive option for a state who desperately needed a security partner at a time of war.

In the following section, I compared two separate case studies of states with unorthodox secret alliances: Israel and Saudi Arabia, as well as Israel and Azerbaijan. I chose these two specific cases because certain aspects of their relationships resembled those of Iran and Israel from 1948-1989. By drawing parallels between these states and their covert cooperation with Israel, one can see how common security objectives between states often subdue ideological differences, a logic that could be easily applied to the Islamic Republic during the Khomeini years. 

While I find this theory helpful in answering the puzzle at hand, there are several shortcomings that arise from it. One limitation is a lack of attention towards the influence of the United States and Soviet Union on Iran’s decision to continue, and later eliminate, ties with Israel during these years. Furthermore, this article focused on the Iran-Israel relationship from 1948-1989 because covert data from more recent years has not yet been made publicly accessible. Once new information becomes available, there will be more room to assess the relationship in light of Iran’s recent history and the leadership of Ayatollah Khamenei. Additionally, it would be interesting to analyze the Iran-Israel relationship during Iran’s ‘reformist era’ under Rafsanjani and Khatami and compare it to the Khomeini years. 

Moving forward, I envision several different takeaways that could emerge from an understanding of this unique relationship. For one, we should learn to prioritize a state’s actions over divisive rhetoric offered at face value. This will reveal a new world of possibilities when it comes to dealing with seemingly diplomatically unreachable states. A modern-day example would be U.S.-Iran cooperation in Iraq and Afghanistan, and counterinsurgency coordination against the threat of ISIS. Low-level security cooperation between Iran and other states threatened by ISIS bolstered an interim coalition driven by common security objectives, showcasing such cooperation is achievable, even in the most unsuspecting of times.             

Some important questions that remain are: will Iran and Israel return to a pragmatic alliance in the future? And what needs to happen for this to occur? In light of this analysis, it seems possible that an Iran-Israel entente will surface once again, especially if the United States continues its withdrawal from the region. An absence of the United States from the Middle East will surely be a shock to the system, but major regional powers such as Israel, Saudi Arabia, and Iran have already begun taking steps towards rapprochement. The Abraham Accords and recent diplomatic engagements between the Islamic Republic and Saudi Arabia signal a new tide in Middle Eastern politics, and this newfound momentum holds the potential to bridge several deep regional chasms. Furthermore, I do not think a new Iranian regime is necessary for diplomatic progress to take place between Iran and Israel. The two states maintained a relationship for ten years under the leadership of Iran’s most radical leader to date — Ayatollah Khomeini — so arguments stating diplomatic advancement between the two countries is impossible under Iran’s current leadership seem overly simplistic. It is true both states are in different positions today than they were forty years ago, but the primary objectives of states in an anarchic world remain the same. To a large extent, I am optimistic about Israel and Iran’s potential to overcome the obstacles they face today — the uncertainty that taints the international system also assures its progression.

^[1] George E. Gruen, “The United States, Israel, and the Middle East,” The American Jewish Yearbook, no. 81 (1981): 143.

^[2] Sohrab Sobhani, The Pragmatic Entente: Israeli-Iranian Relations, 1948-1988 (New York: Praeger, 1989), 231.

^[3] Ibid, 231.

^[4] Len Scott, “Secret Intelligence, Covert Action and Clandestine Diplomacy, Intelligence and National Security,” Intelligence & National Security19, no. 2 (2004): 331.

^[5] Ibid, 337.

^[6] John Calabrese, Revolutionary Horizons: Regional Foreign Policy in Post-Khomeini Iran (New York: St. Martin’s Press, 1994), 51.

^[7] Shahram Chubin, Iran’s National Security Policy: Intentions, Capabilities, and Impact (Washington, D.C: Carnegie Endowment for International Peace), 60.

^[8] R. K. Ramazani,  “Ideology and Pragmatism in Iran’s Foreign Policy,” Middle East Journal 58, no. 4 (2004): 555.

^[9] R. K. Ramazani, “Iran and the Arab-Israeli Conflict,” Middle East Journal 32, no. 4 (1978): 414-415. 

^[10] Ibid, 419.

^[11] Ibid, 416.

^[12] John Bulloch and Harvey Morris, The Gulf War: Its Origins, History, and Consequences (London: Methuen, 1989), 183.

^[13] Ibid, 183.

^[14] Behrouz Souresrafil, Khomeini and Israel, 2nd ed. (England: I Researchers Inc., 1989), 72.

^[15] Ibid, 2.

^[16] Ibid, 91.

^[17] Ibid, 113.

^[18] Trita Parsi,  Treacherous Alliance: The Secret Dealings of Israel, Iran, and the United States (New Haven: Yale University Press, 2007), 29.

^[19] Parsi, Treacherous Alliance, 39.

^[20] Helmut Richards,  “America’s Shah Shahanshah’s Iran,” MERIP Reports, no. 40 (1975): 7.

^[21] Ibid, 7.

^[22] Sobhani, The Pragmatic Entente, 171.

^[23] Stephen M. Walt,  The Origins of Alliances (Ithaca, NY: Cornell University Press, 2013), 183.

^[24] Souresrafil, Khomeini and Israel, 57.

^[25] Jonathan Marshall, Peter Dale Scott, and Jane Haapiseva-Hunter, The Iran-Contra Connection: Secret Teams and Covert Operations in the Reagan Era (Boston, MA: South End Press, 1987).

^[26] Seymour M. Hersch, “The Iran Pipeline: A Hidden Chapter/A Special Report.; U.S. Said to Have Allowed Israel to Sell Arms to Iran,” The New York Times, December 8, 1991.

^[27] Bulloch and Morris, The Gulf War.

^[28] Parsi, “The Iran-Israel Cold War.”

^[29] Ibid.

^[30] Ibid.

^[31] Parsi, Treacherous Alliance, 127.

^[32] Mansour Farhang, “The Iran-Iraq War: The Feud, the Tragedy, the Spoils,” World Policy Journal 2, no. 4 (1985): 672.

^[34] Mohammed E. Ahrari,  “Iran and the Superpowers in the Gulf,” SAIS Review 7, no. 1 (1987): 161.

^[35] Uzi Rabi and Chelsi Mueller, “The Gulf Arab States and Israel Since 1967: from ‘No Negotiation’ to Tacit Cooperation,” British Journal of Middle Eastern Studies 44, no. 4 (2017): 581.

^[36] Omar Rahman, “The Emergence of GCC-Israel Relations in a Changing Middle East,” Brookings, July 28, 2021. 

^[37] Eli Lake, “The Dark Side of Israel’s Cold Peace with Saudi Arabia,” Bloomberg, https://www.bloomberg.com/opinion/articles/2019-06-03/israel-s-cold-peace-with-saudi- arabia-has-a-dark-side.

^[38] Udi Dekel and Yoel Guzansky, “Israel and Saudi Arabia: Is the Enemy of My Enemy My Friend?,” The Institute for National Security Studies, 2013.

^[39] Ismayilov Elnur,  “Israel and Azerbaijan: The Evolution of a Strategic Partnership,” Israel Journal of Foreign Affairs 7, no. 1 (2013): 71.

^[40] Gallia Lindenstrauss, “Israel-Azerbaijan: Despite the Constraints, a Special Relationship,” The Institute for National Security Studies, January 2015.

^[41] Ibid, 70.

^[42] Ibid, 70.

^[43] Lindenstrauss, “Israel-Azerbaijan,” 76.

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Introduction

In 2015, the European Union (EU) registered the arrival of more than one million migrants, thrusting the European “migration crisis” to the forefront of global discussions.^[1] These arrivals stressed the EU’s systems, spurring new measures and agreements to control migration. In addition to strengthening its own controls, the EU “externalized” (or expanded) its border to geographic spaces outside of the EU itself, arranging refugee resettlement, law enforcement, and border securitization pacts with non-EU parties like Niger, Turkey, and Serbia. What has emerged is a complex enforcement regime extending beyond the physical borders of the EU—tasked to act as a barrier, a regional unifier, and a network that manages asylum requests and protects human rights. 

Within this context, European governments pivoted towards the migration management philosophy of “deterrence,” believing that migrants could be discouraged from migrating if states increased risk, removed safety nets, and built barriers, echoing the “prevention through deterrence” programs that have been formal policy at the U.S.-Mexico border since 1994.^[2] In 2014, Italy halted rescue operations in the Mediterranean Sea, claiming that such missions were a pull factor.^[3] The next year, states in Southeastern Europe reinforced borders, tear gassed migrants, and engaged in push backs, hoping to discourage passage through their territory. Even Germany, arguably Europe’s most welcoming state, used social media and messaging through embassies to dissuade migrants from coming.^[4] Meanwhile, the European Commission sought to deter migrant smugglers by heightening border enforcement and promoting “an effective return policy [as] a strong deterrent,” arguing that “migrants are less likely to pay a high price to smugglers … if they know that they will be returned home quickly.”^[5] Still, migrant smuggling to the EU raked in between $3 billion and $6 billion in 2015 alone—a new record.^[6]

Deterrence policies like these frame migrations through a national security lens, and therefore produce solutions oriented around national security,  almost always with the primary focus of “securing” or hardening borders. This paper questions the deterrence paradigm’s embedded assumption that augmented border controls constitute the most sensible, effective responses to increased migration at Europe’s borders. To do this, I examine how the heightening of border controls at the Serbian-Hungarian border in 2015 affected the decision-making of illegalized migrants and migrant smugglers moving through the Balkan route that year. How did the threat or the implementation of heightened border controls (e.g., border barriers, deportations, repatriations, and low-yield asylum policies) influence the trajectories of migrants and their willingness to use riskier methods (e.g., smuggling networks)?^[7]

I argue that heightened controls at the Serbian-Hungarian border in 2015 may have redirected arriving migrants but did not deter them. In reaching this thesis, I conducted a discourse analysis of quotes from migrants and migrant smugglers passing through the Balkans in 2015, pulling quotes given to news organizations and coding them for indicators of how these groups interpreted these controls and adjusted accordingly. Most migrants continued towards the EU, citing physical security, family safety, and monetary concerns as greater priorities than avoiding confrontations with state actors. At the same time, this migrant discourse analysis shows how state violence at the Serbian-Hungarian border catalyzed the formation of a common migrant identity around an intense, shared subjection to necropolitics — a term coined by theorist Achille Mbembe to describe the use of social and political power to dictate individuals’ deaths.^[8] My smuggler discourse analysis is not conclusive given the limited number of quotes available to analyze, as few smugglers were willing to have journalists quote them. Some strands, however, suggest that border militarization consolidated the supply of smugglers while expanding migrants’ demand, ultimately benefiting the operations of some smugglers.

Lastly, I found migrants articulated hypocrisies they observed between Europe’s response and its espoused values. I elaborate on this point in my conclusion to illustrate the tensions between the EU’s self-projection as a supranational project and the hyper-nationalist currents which operate and reinforce themselves through the EU’s infrastructure and borders. The union’s claims to a bounded territory and representational government compel it to reason and act like a nation-state, creating a disconnect between projection and reality that propelled a crisis of legitimacy for the EU in 2015. Ultimately, I show how securitized borders are incompatible with the human rights goals espoused by the EU, for the continuation of border deterrence can only create and perform further discrimination, displacement, and mass death.

Research Methodology

For my analysis of migrant discourses, I identified five publications based on the depth, specificity, and local focus of their coverage: The New York Times, The Guardian, Reuters, The New Humanitarian, and Balkan Insight. Using the advanced Google search feature, I searched within each publication for every article tagged with the main keyword “migrant” and at least one of a secondary set of keywords—Serbia, Hungary, or Croatia—between March 1, 2015, and March 1, 2016. I built this timeline around the closing of the Serbian-Hungarian border, beginning three months before Hungary announced its intent to build a barrier, and concluding three months after the closure of the Balkan route in late 2015.

I ultimately pulled 252 quotes from 135 distinct speakers as represented in seventy-seven articles, though I am hesitant to say exactly how many Balkan route migration stories these organizations published during my time frame, or to say exactly how many stories did or did not quote migrants. Computer history, cache, location, and other factors can modulate the exact results returned by the advanced Google search tool even if the search parameters are identical, and publications also have their own in-house conventions which may confuse search filters. As a result, I likely missed some relevant articles. However, I feel confident that my data set is a representative sample of migrant quotes and contemporary news coverage.

Finding smuggler quotes proved more difficult than finding migrant quotes. I attempted to remedy this problem in three ways. First, I expanded my search to include The Wall Street Journal, Al Jazeera, and Radio Free Europe/Radio Liberty (RFERL). Second, I included quotes from smugglers who indicated participation within a transnational network that worked at the Serbian-Hungarian border. Lastly, I searched for references outside of my time frame to smugglers whose arrests made the news within my time frame—this method yielded some quotes from Lahoo Samsooryamal, a smuggler who provided comments during his trial in 2018 for the deaths of seventy-one migrants in August 2015. All told, these expanded parameters still yielded just twenty-seven quotes. I therefore complemented these quotes with a more in-depth analysis of twenty migrant quotes which referenced smuggling in some capacity, as well as by analyzing thirteen Serbian court prosecutions of migrant smugglers as documented by the United Nations Office on Drugs and Crime (UNODC).

I analyzed quotes in all data sets through a set of coding parameters which allowed me to classify, group, and quantify quotes. First, I checked each quote against an umbrella question. If a quote fulfilled this question’s criteria, I then checked it against a more detailed classification question and a set of keywords. For example, an umbrella question might allow me to determine whether a quote references border controls, while the secondary classification questions and keywords would then allow me to determine whether that quote communicated an undeterred, deterred, ambivalent, or indeterminate position in relation to those controls. I have included the umbrella questions here as a reference point.

Umbrella questions for migrant quotes:

Border controls: Does this statement directly reference a state migration control? (Including, but not limited to, walls, fences, barriers, police brutality, pushbacks, denied asylum claims, deportations and/or fingerprinting?)

Motivation (push factor): Does this statement give a reason why the speaker left their country of origin and/or why they migrated? 

Motivation (pull factor): Does this statement show what the speaker is looking for in a destination country and/or why they have chosen their specific destination?

Methods: Does this statement discuss the resources, information networks, or methods a migrant has used to progress to a specific point in their migratory journey? 

Interactions: Does this statement reflect an interaction with a non-migrant actor on the migrant trail?

Narratives of Movement: Does this statement reveal why the speaker believes their continued migratory journey is necessary and achievable, even in the face of border violence? 

Narratives of Europe: Does the speaker identify characteristics they believe to be inherent to Europe and/or discuss how Europe has treated them, met their expectations, or underperformed to their expectations? 

Narratives of Awareness: Does the speaker make a statement addressing communal, political, or geopolitical situations transcending their own immediate circumstances?

For smuggler quotes:

Border controls: Does this statement directly reference a state migration control? (Including, but not limited to, walls, fences, barriers, police brutality, pushbacks, denied asylum claims, deportations and/or fingerprinting?)

Motivation: Does this statement reveal why the speaker works as a smuggler? 

Responsibility: Does this statement reveal who the speaker believes to be the responsible party when death, injury, or other unintended consequences occur during a smuggling operation?

Recruitment: Does this statement reveal how the speaker finds clients?

Network: Does this statement reveal how and with whom the speaker works? 

Narratives: Does this statement reveal a certain narrative or justification that the speaker tells about themselves and their work?

For migrant quotes about smugglers:

Price: Does the speaker mention a price paid to smugglers or spent on the journey?

Relationship: Does the statement reveal how the speaker knows or came to hire a smuggler?

Knowledge: Does the statement indicate that the speaker is aware of the possibility of death on the smuggling route, or does it reference incidences of migrant deaths?  

State Programs: Does the statement make a reference to state programs or transfers?

Interactions: Does the statement reference how a smuggler, or smugglers, have treated the speaker?

Narratives: Does this statement reveal a certain narrative that the speaker uses to justify their decision to use or not use a smuggler?

In considering both illegalized migrants and human smugglers, I do not mean to equate the two—a conflation which has become all too common in the popular imagination and media—and propagate an inaccurate and stereotypical association between migrants and immorality. However, I consider quotes from both groups because considering their discourses in tandem provides a more complete picture of how border controls impact migrants’ trajectories, which are determined concurrently by the information networks, lived experiences, and decisions of migrants and smugglers alike.

Literature Review: The Creation and Subversion of Borders

Before I turn to the results of my discourse analysis, I will consider how the scholarly literature has conceptualized borders, migration, and migrants’ decision-making. Borders are popularly thought of as physical entities dividing sovereign nation-states. However, it is important here to engage with literature theorizing borders as existing beyond their geographic demarcations, since this paper explores how actors engage with the threat and the discourse of border securitization. This school of literature identifies various processes of border construction and enforcement. David Newman and Anssi Paasi note that “state boundaries are equally social, political and discursive constructs, not just static naturalized categories located between states.”^[9] In this sense, borders are reproduced through education, media, memorials, and religion.^[10] Etienne Balibar recognizes borders as “polysemic,” showing how borders are perceived by and affect people differently based on their positionalities.^[11] Similarly, Harald Bauder employs the idea of “aspect-seeing,” asserting that different meanings of the border arise from “both experience and anticipation.”^[12] In this sense, a border’s physical line across geographic space represents only one border aspect,^[13] as border control has been exported to spaces (airports, workplaces, consumer arenas) within the interior.^[14]

Recent contributions have emphasized the expansion of border infrastructure accompanying this dispersion. Todd Miller’s Border Patrol Nation traces the evolution of the US Border Patrol from a small 8,500-person agency in 2001 to a mushrooming agency nearly three times that size.^[15] Meanwhile, A. Naomi Paik’s Bans, Walls, Raids, Sanctuarytheorizes deportation as an extension of the border, an internalized “second line of defense.”^[16] Harsha Walia, in her book Border and Rule, notes how EU leaders have exported border policing to places like Morocco, Libya, Niger, Sudan, and Turkey, piloting “transit processing centers,” training militias and border guards, and generally trying to halt migrants before they reach Europe’s official borders.^[17] Also important in this discussion is the way authoritarians, such as Libya’s former leader Muammar al-Qaddafi and Turkey’s Recep Tayyip Erdoğan, have leveraged Europe’s fear of migrants to bargain for monetary and geopolitical concessions.^[18] In this way, the vast growth of the militarized and high-tech border has accompanied the dispersion of the border into social life, providing a number of opportunities for exploitation of the border in both international and domestic political contexts.

Building upon this understanding of borders as layered, externalized and internalized “boundary sets,” I turn to a related discussion on the purpose and consequences of borders in contemporary geopolitics.^[19]  A current debate contends with the relevance of borders in a world vastly transformed by globalization. Some scholars, such as Kenichi Ohmae, argue that borders are decreasing in relevance as regional integration schemes, international organizations, and transnational crises proliferate in an increasingly interconnected and interdependent world.^[20] Others, such as Saskia Sassen and Peter Andreas, assert that borders have not become irrelevant but that globalization has led governments to make them selectively permeable.^[21] This permeability is sometimes portrayed as the byproduct, if not the goal, of a capitalist system that globalizes capital for profit yet restricts labor for exploitation.^[22] Paik casts the border as a buffer zone protecting wealthy countries from the consequences of colonialism and neoliberalism.^[23] This is also the thesis of Walia’s Border and Rule, in which she argues that the border is best understood “as a key method of imperial state formation, hierarchical social ordering, labor control, and xenophobic nationalism.”^[24] Other scholars expand on the societal ordering aspect of this definition, understanding borders as tools for creating shared identities, homogenizing society, and maintaining the “otherness” of those outside.^[25] With all of these purposes in mind, we can return to Bauder’s concept of aspect-seeing, which allows us to see the border as a multi-faceted “boundary set” that regulates capital, labor, culture, identity, and movement all at once with different levels of efficiency and intentionality. 

Yet the question remains: How effective are borders in practice at regulating these boundaries? Some scholars maintain that forms of transnational organized crime (TOC) and irregular migration are at least partially deterred by stricter border controls,^[26] though I did not come across any literature which established border deterrence as the sole or even primary determinant of migration patterns. More commonly, scholars have argued that stricter border controls are largely ineffective. Variations on the argument include that stricter border controls are largely performative,^[27] only bolster potential profits for smugglers and TOC,^[28] and/or do nothing to address the push and pull factors that motivate illegalized migration and labor exploitation.^[29] Reports from law enforcement agencies themselves, such as the US Department of Homeland Security (DHS), have even found links between increased enforcement and increased profits for illicit border actors.^[30]

These discussions could be properly understood as “macro” explanations of migration— the state policies or global economic changes that affect broad migration patterns. Yet, how do individuals consider these structures, patterns, and risks when deciding whether and how to migrate? In cases of “forced” or “involuntary” migration, scholars often emphasize physical endangerment, including conflict, persecution, and generalized violence, which expels individuals from origin countries.^[31] Individuals who migrate due to these causes are often semantically and legally classified as refugees, or internally displaced persons if they do not cross a national border.^[32] Other bodies of literature emphasize economic deprivation at the community or family unit level and economic inequality between countries. Authors like Paik, Walia, and Sassen point here to transnational capitalism, which drives resource extraction and poverty in origin countries. Simultaneously, wage inequities between destination and origin countries create both a demand and a pull for immigrant labor, while punitive immigration laws serve to discipline and intimidate that labor.^[33] Meanwhile, other authors focus on family reunification, diasporic identities, and communication networks.^[34]

Attempts to classify migration causes merit several caveats. First, migrants are often motivated by overlapping and not easily definable reasons. Antje Missbach, investigating the relationship between Australian deterrence policies and the actions of migrants en route to Australia via Indonesia, shows how migrants oscillate between referencing family reunification, economic security, and other motivations as reasons for their migrations.^[35] Relatedly, a growing field of literature problematizes distinguishing voluntary from involuntary migration. Ottonelli and Torresi note that attempts to formalize this dichotomy often function to separate worthy from unworthy migrants.^[36] Another problematic distinction is between illegal and legal migrants; most migrants, at some point in their journey, could be defined as both.^[37]Migrants seeking asylum (legal), for example, might still utilize smugglers (illegal). Martin van der Velde and Ton van Naerssen establish such a framework for migratory decision-making, emphasizing the flexibility of migratory trajectories, the blurring of lines between origin, transit, and destination countries, and the effects of mental, communal, and economic dynamics on migrants’ various serial decisions while migrating.^[38]

The questions of how and why migrants use smugglers, as well as how and why migrant smugglers operate and see themselves, are more underdeveloped in the literature. Paolo Campana and Lorraine Gelsthorpe provide some insight into the former question, finding that migrants decide upon a smuggler by cross-referencing information gathered through social media and community networks.^[39] Sue Hoffman finds a similar cost-benefit framework and cooperative nature present in smuggler-migrant relationships.^[40] Meanwhile, Abdullah Mohammadi, Ruta Nimkar, and Emily Savage find that some Afghan smugglers conceive of themselves as Samaritan actors, believing their work to be in service to their community.^[41] Relationships between migrants and smugglers often originate in shared lived experiences, either because smugglers were once migrants or because migrants have preexisting relationships with their future smuggler in origin  communities.^[42] While more research is needed to understand the smuggler-migrant relationship, the literature suggests that smuggling services fit into the rational, serial, and changeable model of migratory journeys I constructed earlier. 

In conclusion, borders act as delineators of difference in both physical and social senses, disproportionately restricting mobility for those predisposed to migration due to violence, family hardships, economic deprivation, and other factors. Migrants process these hardships and border realities in logical, serial, and ever-changing ways, using community resources (including smuggling networks) to advance their cause. My discourse analysis contends directly with several of the most pressing arguments within this literature, such as the impact of borders, the motivations of migrants, and the discourses propagated by both migrants and migrant smugglers. 

Zooming In: The Serbian-Hungarian Border in 2015

To contextualize my discourse analysis, I will quickly outline how the EU “migration crisis” manifested in the Balkan region, especially at the Serbian-Hungarian border. Prior to 2015, the Balkans were not a prominent route for Asian and African migrants. Migrants to Europe in 2014, who numbered fewer than half of those who traveled in 2015, primarily moved through Egypt and Libya before crossing the central Mediterranean.^[43] Growing instability in Libya caused Syrians to pivot towards crossing into Greece from Turkey in 2015, a change which altered regional migration dynamics holistically.^[44] At the start of 2015, transit from Greece through Macedonia and Serbia into Hungary was partially aided by state actors. Macedonia and Serbia issued migrants seventy-two-hour transit visas, while state and NGO actors chartered transport vehicles to move migrants directly between border crossings and asylum registration points. For a time, this “formalized corridor” facilitated the movement of migrants from Greece to Hungary in under a week.^[45]However, on June 17, 2015, Prime Minister Viktor Orbán of Hungary announced his country’s intention to erect a physical wall on its border with Serbia,^[46] an announcement which triggered border controls in preceding Balkan states as the fear of getting “stuck” with large groups of migrants began to permeate state leaderships.^[47] Nonetheless, migrants continued moving north as construction began, setting new records for daily arrivals into Hungary in August and September as they tried to outpace the closure.^[48]

As these numbers rose, Hungary began in August 2015 to deny and repatriate all asylum-seekers back across its borders, declaring Serbia, Macedonia, and Greece to be “safe countries of transit.”^[49] Migrants already in Hungary camped at Budapest’s Keleti station, hoping to board trains to Austria. Meanwhile, rights groups reported increasing police brutality and forced fingerprinting of migrants to register them within the EU’s Dublin III Regulation system, which facilitated the return of migrants to the first EU country to which they arrived (usually Greece).^[50] On August 27, authorities discovered seventy-one dead migrants in a smuggler’s abandoned truck near the Austrian-Hungarian border, highlighting the increasingly dangerous methods migrants used due to Hungary’s policies. Nonetheless, Orbán finished his fence on September 15, 2015, and announced he would extend it along Hungary’s Romanian and Croatian borders.^[51] The closure caused a last-second rush with groups and even some families separated as some but not others managed to cross in the last minutes of the border being open.^[52] The unsuccessful were left stranded in Serbian border towns before some forged a route west to Croatia. A similar process ensued as Croatia and Slovenia announced themselves overwhelmed, leading them to institute controls and push backs of their own.^[53]

Though EU officials denounced Orbán’s policies over the course of summer and autumn 2015, Orbán integrated elements of existing EU enforcement frameworks into his own policies, including the Dublin III Regulation and EU safe third-country concepts. Additionally, Frontex, the EU’s member state-sourced Border and Coast Guard Agency, conducted around fifteen Joint Operations (JOs) or Joint Return Operations (JROs) in cooperation with Hungarian border enforcement in 2015.^[54] Frontex conducted five JOs with Serbia and a total of forty-three JOs with twelve non-EU states in 2015—a testament to EU border externalization.^[55]

Hungary’s regime seemed an outlier in mid-2015, but states moved towards similar models as the year progressed. In November 2015, Macedonia, Serbia, Croatia, and Slovenia introduced laws which allowed passage only to Syrian, Iraqi, and Afghan migrants.^[56] The policy led to violent pushbacks at the Greek-Macedonian border, where some migrants protested by sewing their lips shut.^[57] Meanwhile, Slovenia and Austria constructed barriers of their own, the latter a notable reintroduction of intra-Schengen border policing, while countries like Slovakia and Poland sued their way out of previous resettlement agreements.^[58] The year’s events culminated in negotiations between the EU and Turkey, resulting in a March 2016 agreement where the EU agreed to resettle one Syrian refugee from Turkey for every Syrian refugee the EU repatriated to Turkey.^[59] The agreement, which also provided Turkey with several million in EU aid, reoriented the focal point of EU border enforcement from the Balkans to the Aegean Sea.

For the purposes of this paper, 2015 presents a rich case study. Locating migration on the Balkan route within this era of tightening  and interlocking border regimes allows us to parse how migrants interpreted state measures and adjusted accordingly. Although my project focuses on the Serbian-Hungarian border, the closure of other borders during this time period, such as the Greek-Macedonian border, would provide an equally insightful look into interpretations of border controls.

Analysis: Representations of Balkan Route Migrants in the Mainstream Press

The scale of the migrations and brutality of the border closures in the 2015 Balkans enticed many journalists to visit. As I scanned over two hundred articles for migrants quoted at or near the Serbian-Hungarian border, a few recurrent patterns in this coverage emerged. First, in the articles I scanned, migrants were more commonly talked about than quoted directly. The proportion varied by publication but was particularly skewed at Reuters (eight of thirty-two scanned articles quoted migrants) and Balkan Insight (eight of forty-one scanned articles quoted migrants). Instead, journalists often interviewed politicians, humanitarian agency representatives, aid volunteers, truck drivers, construction workers, border guards, and local residents on their plans for or opinions about migrants. Short pieces summarizing the many migration conferences convened by European leaders at the time were also very common. The result was the dominance of state voices over migrant voices in media discourses about migrants.

Next, media rhetoric to describe migrants was often dehumanizing. Across publications, migrants were variably referred to as a “flood,”^[60] a “backlog,”^[61] a “logjam,”^[62] an “influx,”^[63] and/or a “surge”^[64] which threatened to “overwhelm,”^[65] “break through,”^[66] or “clog”^[67] national borders—lest those borders be “seal[ed]”^[68] and the migrants “diverted”^[69] and “manage[d],”^[70] denied access to any “back door to Europe.”^[71] This vernacular recalls the imagery of water, positioning migrants as an indivisible and impersonal force of nature. Migrants become a conglomerate moving without consciousness or control, threatening—if not destined—to displace and drown local populations. In tandem, Europe is imagined as a building, complete with doors and tangible entry points, whose physical integrity is threatened by the uncontrollable elements (migrants). This imagery infers the presence of a population insidethe building (native-born Europeans) whose existence is in peril. If the “back door”—that is, the border—doesn’t hold, they risk drowning. This imagery reinforces the nation-state’s narrative that strong borders are imperative to the security of the nation, even though arriving migrants in 2015 represented 0.29% of the EU’s population.^[72]

This imagery also appears in descriptions of migrant groups which render them observable, distant subjects. The following example from The New York Times is illustrative but not unique; the article as a whole speaks of an expectant “tension” and a “growing stream” of people at the border, again recalling water’s displacive tendencies, before delivering the following description of Hungarian police firing tear gas at migrants:

All of a sudden, an invisible, noxious gas began to pour into the crowd from the Hungarian side. In a panic, the people nearest the gate began to scramble backward, pushing people aside as they flailed, tears streaming from their eyes. Children grabbed for their parents. Some tossed oranges and apples they had been carrying back at the riot police, ineffectually. People ran into one another, tripped, fell. 

People grabbed for bottles of water offered by volunteers along the roadside, slapping it onto their faces and trying to wash the gas out of their eyes and hair.

The crowd collapsed into chaos and ran back into Serbia. Then, the crowd re-formed and slowly moved forward again. And again, there was a gas attack.^[73]

The portrayal lends an animalistic quality to the crowd, as if they were a herd of zoo animals momentarily dispersed, resorting in their individual forms to panic, retaliation, and chaos before reforming as a collective mass. The article does later quote migrants, but at this moment they are sketched from a distance. This point carries salience when contrasted, as I will do shortly, with one of the most common sentiments communicated in migrant quotes—the repeated, direct expression by migrants that they are “humans” and not “animals.” 

Analysis: Migrants’ Life or Death Decisions at the Border

Through scanning more than two hundred articles in The New York Times, The Guardian, The New Humanitarian, Reuters, and Balkan Insight, I identified seventy-seven articles which quoted migrants, from which I pulled 252 quotes from 135 distinct speakers—the data set for my discourse analysis. Based on this set’s mode age, gender, nationality, date, and location, the “average” migrant for this analysis becomes a twenty-three-year-old Syrian male attempting to cross the Serbian-Hungarian border on September 18, 2015, three days after Hungary closed its border with Serbia. Using the coding indicators outlined in my methodology, I then analyzed these quotes for how migrants communicated their motivations, justifications, experiences, and interpretations of border controls.

Put simply, my discourse analysis suggests that most migrants were not deterred by heightened border controls or the threat of heightened border controls at the Serbian-Hungarian border between March 1, 2015, and March 1, 2016. I coded eighty-eight statements as discussing border controls in some capacity, based on whether he quote explicitly referenced a border control—including but not limited to walls, fences, barriers, police brutality, pushbacks, denied asylum claims, deportations, detention and/or fingerprinting—or verbs of movement—including go, go through, continue, return, go back, stay, or stuck. Forty-one of these statements were “indeterminate” in that they constituted static references to border controls, conveying solely occurrences without hinting at a migrant’s plan of action. However, of the remaining forty-seven statements, I coded thirty-four as undeterred, five as deterred, and eight as ambivalent. 

I coded statements as undeterred when speakers expressed an intention to circumvent, avoid, or otherwise bypass mentioned migration controls. Keywords included forward motion verbs (go, go through, go past, continue, etc.), positive conjugations of modal verbs (I will, I must, I shall, etc.), or negative conjugations of modal verbs combined with reverse motion verbs (I cannot go back, I will not return, etc.). The following are examples of undeterred statements: 

“This wall, we will not accept it,” Mohamed Hussein, M, Syrian, age not provided. Serbia-Hungary. 06/22/2015.^[74]

“In Afghanistan, life is not safe, and every human who wants a safe life will make a hole in that wall, or find another way,” Yama Nayab, M, Afghan, age not provided. Serbia-Hungary. 06/22/2015.^[75]

“I just want peace. And I’ll keep going even if I have to cross another sea to find it.” Amjad el-Omairi, M, Iraqi, 40. Serbia-Croatia. 09/17/2015.^[76]

“This is an important border crossing for Serbia and Hungary. They won’t leave it closed for long. I’m ready to camp here for a month.” Issa Issa, M, Syrian, age not provided. Serbia-Hungary. 09/17/2015.^[77]

Conversely, deterred statements featured a speaker who indicated a desire to be returned to their country of origin, expressed the wish they had not migrated, or—in one case—expressed a desire to die. I tried here to determine if controls eroded the fortitude of migrants or led them to assess the risk of continuing as higher than the risk of reversing, the latter being the goal of deterrence policies. I coded just five deterred statements, three of which occurred at Keleti train station in Budapest after days of police brutality, forced fingerprinting, and resource deprivation against migrants camped there in early September 2015. 

“In Europe, they’re treating us like ISIS did, beating us up. Either take me to Germany or just send me back. I don’t care anymore.” Ahmad Saadoun, M, Iraqi, 27. Hungary. 09/02/2015.^[78]

“There’s no way we can go anywhere. Even by smuggling. Apparently they have strengthened security on the border. Half of us here have [train] tickets, and we can’t go anywhere.” Kanwar Dali, M, Syrian, 26. Hungary. 09/02/2015.^[79]

“Kill me, kill me now.” Anonymous, M, Syrian, age not provided. Hungary. 09/03/2015.^[80]

“I don’t want to stay. Let me off. I want to go back to Syria.” Anonymous, F, Syrian, age not provided. Hungary. 09/04/2015.^[81]

“I wanted to go to Sweden to continue my studies of banking and finances. But now I would rather go home than stay in such horrific conditions.” Mohammad Laban, M, Palestinian, 22. Croatia-Slovenia. 10/21/2015.^[82]

I coded eight statements as ambivalent. Statements here were from migrants who expressed they had not decided on their next move, that they were waiting to see how border controls affected others before continuing, or that they had resigned themselves to any outcome.  

“If we’re caught, we’re caught.” Ahmad Majid, M, Syrian, 30. Serbia-Hungary. 08/31/2015.^[83]

“We will stay here until we hear that Croatia is a safe route.” Kawa Uso, M, Kurd, age not provided. Serbia-Hungary. 09/19/2015.^[84]

“I have been here for two days, but I think I will spend a couple of months here and then return to Nigeria. I really don’t know what will happen with me.” M’Pak, M, Nigerian, 25. Serbia. 11/04/2015.^[85]

While my analysis found that the majority of migrants were not deterred by Hungary’s border controls, relying on quotes given to news outlets prevents several potential biases. First, journalists often talked with migrants at or in near proximity to physical border crossings — migrants congregated at these locations have likely already decided to cross, meaning they will likely express undeterred sentiments. In addition, undeterred migrants, with higher levels of morale, are perhaps more likely to speak with journalists than deterred, discouraged migrants. At the same time, the physical border is the site of greatest state violence, and my data set also includes quotes from a wide range of locations, including camps, transit stops, and urban centers well within the Serbian, Hungarian, and Croatian interiors. The size, geographic diversity, and temporal diversity of my data set—wide enough to capture, for example, periods of both open crossing and extreme repression at the same border crossing—cover a wide enough range of migrant experiences to mitigate potential biases.

Similarly, given that a quote represents a static utterance at a singular point in time, it is impossible to know whether or not “deterred” migrants actually reversed their trajectories, or whether “undeterred” migrants were, at some later point, deterred. However, my thesis correlates with border crossing statistics, as crossings into Hungary, in fact, increased between June 2015 and September 2015 even as the construction of Hungary’s wall was underway.^[86] This is not to say that border controls, once implemented, have no effect on preventing the entry of physical bodies into a territory. By late 2015, Hungary’s wall had reduced crossings from the thousands to just a few dozen per day.^[87]However, migrants continued moving north; the final destination was the EU, not Hungary, and so the route pivoted to Croatia. If Hungary were the specific destination, it stands to reason migrants would continue to pursue alternative routes of entry into Hungary instead. As a case in point, by October 2015, several hundred migrants had redirected to Russia and biked through the Arctic Circle into Norway.^[88]

To get to and around Balkan borders, migrants used a variety of methods. Mostly, migrants relied on information from other migrants. A formalized information network, passed along via word of mouth, social media, and instant messaging, accompanied the formalization of the Balkan route, allowing migrants to adapt based on the experiences of preceding migrants. In The New Odyssey, Patrick Kingsley details how these networks became so specific as to recommend exact hotels, roads, dirt paths, and fence gaps.^[89] In total, I coded twenty-eight statements referencing the use of word-of-mouth information in deciding trajectories. This became especially evident when the route shifted from Hungary to Croatia in mid-September 2015. 

“Our friends told us not to go to Hungary, because they would put you in prison for three years if you tried to cross the border.” Daban Sabir, M, Iraqi, 25. Serbia-Croatia. 09/16/2015.^[90]

“We just heard about this [Croatian] route. We thought we should check it out immediately, see if it is a route or not.” Ali Ahmed, M, Syrian, age not provided. Serbia-Croatia. 09/19/2015.^[91]

“Are you sure? This is the route they told me to come.” Alaa Eddine, M, Syrian, age not provided. Serbia-Croatia. 09/19/2015.^[92]

Migrants also relied on family connections and, occasionally, state transfers, such as when Hungary chartered transport for migrants to its border with Austria. Seventeen quotes referenced using or considering smugglers, though Europol estimated in 2016 that nearly 90% of migrants en route to the EU used smugglers at some point.^[93] The next section of my paper dives deeper into smuggling dynamics, so I will not elaborate here beyond saying that migrant quotes show that relationships with smugglers were both cooperative and abusive, with news of smuggling tragedies quickly making their way through migrant networks.

During their travels through the Balkans, migrants interacted with a variety of state, criminal, and civilian actors. Experiences of state violence were very common. Sixty-six quotes communicated such an experience, far eclipsing experiences of state assistance (fifteen) or violence at the hands of smugglers (eight). State violence included physical, psychological, or material harm at the hands of state actors, including beatings, tear gassing, detentions, family separations, and the weaponization of time and resources (withholding food, indefinite application wait times, etc.). Hungarian police at the Serbian border or Keleti train station were the most common culprit. I also coded thirteen statements as communicating an experience with generalized violence, wherein speakers decried poor treatment without implicating a specific actor. Meanwhile, interactions with NGOs were rare. One speaker referenced the Red Cross and one speaker referenced an unnamed group which handed out supplies at Budapest’s Nyugati station. Some migrants interacted with private citizens, who on seven occasions assisted—with food, a charger, and, in one instance, a trip from Hungary to Austria—and on three occasions took advantage of migrants through robbery or scamming.

These categories provide insight into the how, but to understand why migrants might choose to continue their journeys even in the face of border controls, I also coded for motivation—both push factors, or reasons why migrants left their origin countries, and pull factors, or reasons why migrants were attracted to the destination countries they aimed to reach. Of the forty-nine statements which I coded as expressing a “push factor” motivation, fear for physical safety was the most common (thirty-one). Many migrants left their country because they feared for their lives amid conflicts or at the hands of governments and militant groups, including ISIS/Daesh (nine references), the Taliban (two), Boko Haram (one), and al-Shabaab (one). Family safety, persecution, and poverty were present but lesser concerns. Many of these factors, however, coalesced into a generalized feeling of hopelessness. I identified statements for this tricky but telling category by searching for quotes which positioned staying in one’s country as equivalent to dying. Of the eleven statements which I placed in this category, many communicated that “lives” and “futures” were not only untenable but nonexistent in origin countries:

“We didn’t have a lot of options [about leaving]. For us it was really a case of the famous Shakespearian phrase, ‘To be or not be’. We didn’t come here because we were choosy.” Korh, M, Syrian, 22. Serbia. 08/19/2015.^[94]

“There is no life in Aleppo.” Mahmoud Otri, M, Syrian, 23. Hungary-Austria. 08/30/2015.^[95]

“Syrians think they are dying in Syria. So whether they die there or on the way to Europe, it’s the same thing.”Mohamed el-Haiba, M, Syrian, 23. Croatia-Hungary. 09/18/2015.^[96]

“Better to die quickly, than slowly in Iraq.” Muhammad Basher, M, Iraqi, age not provided. Serbia-Croatia. 10/31/2015.^[97]

“There is no future in Afghanistan.” Sayid Karim Hashimi, M, Afghan, 23. Serbia-Croatia. 10/31/2015.^[98]

Mirroring these expressions, the most common pull factor I coded was a category I called “dignity”—the opportunity to reclaim this humanity in a new country, to separate life from dying through self-actualization. Keywords for this classification included: decent life, new life, regular life, chance, opportunity, hope, dignity, like humans. Of the twenty-nine statements I coded as communicating a pull factor, I marked twelve with this category. Examples include: 

“Wherever I find a safe place, a country that accepts me and gives me a chance, I will start my life there.” Yama Nayab, M, Afghan, age not provided. Serbia-Hungary. 06/22/2015.^[99]

“I want to live a regular life. No more torture and no more police with electric batons and water cannons.”Mohammed, M, Iraqi, age not provided. Serbia. 08/19/2015.^[100]

“See what we did? We threw away all of our clothes and property in Syria to get a better life for our kids, to teach them how to live — not how to beg.” Abu al-Majd, M, Syrian, age not provided. Hungary. 09/06/2015.^[101]

Other common pull factors included economic opportunity (eight), safety (seven), education (seven), and family reunification (five). 

Beyond these material objectives, I also coded for what I call “narratives of movement”—statements which reveal why a speaker believed their migratory journey both necessary and just, even in the face of border violence. Within this category, I coded overlapping narratives which interacted to convince migrants they must continue migrating. Of the thirty-one statements I coded as relevant to this category, thirteen communicated a “no other choice” narrative. This classification was coded if a migrant expressed through explicit terms (no choice, no option) or verbs of compulsion (have to, must) that migrating was the only option available. 

“What else can we do?” Reen, F, Syrian, age not provided. Hungary-Austria. 09/04/2015.^[102]

“I don’t believe they would do such a thing. I will continue on the same route. My wife and children are already in Germany. What else can I do?” Bashar Makansi, M, Syrian, 47. Serbia. 09/15/2015.^[103]

“There is a war back home, what choice do we have? I did want to live in Syria.” Wajd Abu Sayed, M, Syrian, age not provided. Croatia-Slovenia. 10/31/2015.^[104]

Four speakers expressed that news of potential border closures convinced them that they risked squandering their “last chance” to reach Europe if they stayed in their home countries.

“From all we heard on the news, this was our last chance to reach Europe, so we left in a hurry.” Latifa Shaab, F, Syrian, 21. Croatia-Slovenia. 10/17/2015.^[105]

“It was now or never. So I decided to go before the window of opportunity closes.” Hani al-Karaa, M, Syrian, 24. Croatia-Slovenia. 10/17/2015.^[106]

Additionally, four speakers cited “sunk costs,” conveying that their monetary and temporal investments in their migration to date made the cost of abandoning their journey too high and that they had “nothing left to lose.”

“Now we are here, we have taken the plunge, we have to go on.” Emmanuel Bitjoka Njom, M, Cameroonian, 41. Serbia. 08/29/2015.^[107]

“I don’t have anything to lose, so I fear nothing. I’ve been thinking about leaving for two years. But for a long time I thought: there is still hope [of peace], I will wait.” Zahraa Daoud, F, Syrian, 23. Serbia-Croatia. 09/18/2015.^[108]

“We are afraid that they will close the border now. But we don’t fear terror much anymore. Every village in Syria is worse than Paris… we don’t have much to lose.” Mossa, M, Syrian, 17. Serbia. 11/17/2015.^[109]

In explaining their perseverance on the migrant trail, some migrants referenced their national character or their faith. With the former, five migrants expressed that experiences or character traits they believed inherent to their national communities—e.g., the ingenuity of Syrians or the violent realities of Palestinian life—compelled them forward. With the latter, four migrants placed their journeys in the hands of cosmic forces—God, hope, fate, or destiny. 

These narratives show that, for some, securitized borders incentivize migration. Conditions in origin countries combined with the psychological, monetary, and temporal costs imposed by hard borders amplify compulsion and perceived lack of choice, prolonging migrants’ journeys and heightening the consequences of ceasing one’s migration. Abstractions of national community or faith can be seen as responses to these realities of violence and deprivation. These expressions, though certainly genuine in many cases, are also a defense mechanism. The migrant’s dissociation from responsibility for their perilous status positions hardship as a reason to continue migrating, seeing as options are limited and perseverance is predetermined. 

This dissociation, however, does not mean migrants are ignorant of their situations. I also coded for awareness, defined as when a speaker made a statement addressing communal, political, or geopolitical situations transcending their own immediate circumstances. Fifty-one statements made political references, implicating specific state and non-state actors, alluding to world events or migration policies, and/or proposing political solutions. 

“[The Hungarians are] not going to solve migration like this. They need to solve the real problem and get rid of Bashar al-Assad and Isis.” Mohamed Hussein, M, Syrian, age not provided. Serbia-Hungary. 06/22/2015.^[110]

“Nyírbátor is Hungary’s Guantánamo. They chained and handcuffed us, and gave us expired food.” Vladislav, M, Ukrainian, age not provided. Hungary. 07/08/2015.^[111]

“We want you to talk to Ban Ki-moon and ask him why he isn’t helping us.” Ahmed Saadoun, M, Iraqi, 27. Hungary. 09/02/2015.^[112]

Meanwhile, twenty-two statements pulled language from human rights discourse, with migrants pointing out how state actions violated their rights to freedom, justice, fairness, tolerance, dignity, and movement, as well as to more immediate material rights including shelter, food or water.

“We are sleeping in trash. We don’t know what to do. It’s a matter of human rights. If they don’t do something about the situation, we are going to start walking.” Ramadan Mustafa, M, Syrian, 23. Hungary. 09/02/2015.^[113]

“I am worried that Germany may send us back home. That would not be fair. Afghanistan is in the same situation as Syria … The Taliban killed my brother and they will kill me too if I return.” Ali Hussani, M, Afghan, 35. Croatia-Slovenia. 10/26/2015.^[114]

Accompanying this discourse, migrants asserted their humanity in explicit terms, recognizing that their status as subjects of extreme violence threatened to relegate them to the status of subhuman. Four speakers compared their treatment to that of “animals,” and three speakers used a variation of the phrase “we are human(s).”

“Hungarians look after animals more than people, they treat dogs and cats better.” Jamal al-Deenberra, M, Syrian, 23. Hungary. 09/05/2015.^[115]

“They don’t want us to pass. Why? We are humans. We are Syrians, and there is a war in our country that even we don’t really understand.” Zahraa Daoud, F, Syrian, 23. Serbia-Croatia. 09/18/2015.^[116]

Two speakers expressed they were “not criminals” and one speaker said migrants were “not terrorists.” The assertion is that migrants’ lack of criminality should protect them, intuiting that their inhumane treatment would be more valid were they actually “criminals” or “terrorists.” 

“I just don’t understand. We come from a country that has been torn apart by war. We’re not criminals and we don’t want to sabotage anything.” Marwan, M, Syrian, 19. Hungary-Austria. 09/05/2015.^[117]

“We are refugees, not criminals, why are you doing this?” Anonymous migrant. Croatia-Slovenia. 11/02/2015.^[118]

“They need to check the people somehow… take fingerprints… do whatever they need to separate us, because we are not terrorists… we just want to start a new life from the beginning.” Sadam Ahmed, M, Afghan, 19. Serbia. 11/17/2015.^[119]

These statements reflect the understanding that states reserve the right to inflict violence upon individuals they deem deviant—those othered into states of exception, to borrow Giorgio Agamben’s term. Migrants’ reassertions of humanity constitute attempts to escape exception; claims to refugee status here are notable, as they demonstrate an understanding of refugeedom as a legal status within human rights discourse that should protect those who fall under it.

In commenting on politics and human rights, migrants often discussed how Europe had met or betrayed their expectations. Thirty-four speakers expressed that Europe’s progressive reputation had acted as a type of pull factor, a phenomenon I coded when speakers tied liberal democratic values, namely human rights language, to their descriptions of Europe. Speakers here positioned Europe as a beacon, an ultimate destination where self-actualization became possible.

“I want to go to Germany. I don’t know what will happen when we leave Belgrade but I will find out. Germany is the only place I want to go to.” Zaid, M, Syrian, 31. Serbia. 09/11/2015.^[120]

“I am applying for asylum in Croatia for the third time. I know Croatian laws and I know that I have the right to it… every night I go to bed and imagine that asylum. I know I’ll get it, it’s just a matter of time.” Rory, M, Jamaican, age not provided. Croatia. 09/17/2015.^[121]

“EU is good, we are not afraid of EU. Young Afghani people who want to work can make it there. They have respect for people, I believe in that.” Hikmat, M, Afghan, age not provided. Serbia. 11/17/2015.^[122]

Fifteen statements expressed that speakers’ treatment at the hands of European states had shattered this image, which sometimes happened concurrently with the speaker tying liberal democratic values to what Europe should be, in some cases bordering on Orientalist descriptions that placed Europe as morally superior to other regions. Speakers often expressed frustration, surprise, and anger that Europe could treat them so poorly. In at least two cases, speakers interpreted “European” not as a demonym but as a value set which could be appropriated and learned, asserting their ability to “act” more European than the Europeans who had abused them.

“This is the so-called developed Europe? It’s supposed to be different to the fucking Arab world.” Mouti, M, Syrian, 50. Hungary. 09/07/2015.^[123]

“We only want to work and have a decent life. We know how to act like Europeans and we know European values, as do most of the educated people from Syria.” Korh, M, Syrian, 22. Serbia. 08/19/2015.^[124]

“Once I said to a policeman: ‘I am more a Croat than you are, since I obey and respect the laws of this country.’ I want to be a proper citizen. Is this the way Croatia treats me?” Rory, M, Jamaican, age not provided. Croatia. 09/17/2015.^[125]

These statements reflect the rhetorical work of the European project, which has positioned itself as a promoter of human dignity, freedom, democracy, equality, rule of law, and human rights—the values enumerated in the EU charter.^[126] The clashing of these values with the realities of creating and maintaining borders produced a crisis of legitimacy which migrants were quick to articulate, internalizing and reproducing EU rhetoric to justify their cause and condemn European states’ hypocrisies. 

Lastly, migrants in my data set commonly cast themselves as part of a collective “we.” Seventy-seven statements reflected this identification, using the first-person plural even when referring to individual opinions or experiences. 

“This wall, we will not accept it,” Mohamed Hussein, M, Syrian, age not provided. Serbia-Hungary. 06/22/2015.^[127]

“I do not know why we are here, it’s terrible. I’m afraid my father will die. I do not understand why this is happening to us, but I know that we are nothing – less than zero.” Mahtab, F, Afghan, age not provided. Hungary. 08/28/2015.^[128]

“I am scared, everybody is scared. We are worried they will close the border, but we are also worried about winter. We must get where we are going before the snows fall.” Ali Lolo, M, Syrian, 35. Serbia-Croatia. 10/18/2015.^[129]

Ironically, this self-identification mirrors state and media discourses which casted migrants as an inseparable whole and could be read in part as an internalization of these discourses. However, I argue this collectivizing more so represents the coalescing of an identity around the shared experience of violence, deprivation, and near death—the shared identity of a population subjected to an extreme form of necropolitics. Fleeing countries where violent actors have destroyed “life” and “future[s],” migrants arrive at Europe’s borders only to be treated as “less than zero,” as “animals.” These forces produce a visceral experience of limbo, of dying slowly, where migration becomes the only way to transfigure from half-dead to fully human.

This analysis can thus be read at several levels of complexity. At its most basic, it shows that migrants were not deterred by border controls at the Serbian-Hungarian border because personal motivations superseded fears of border violence. At a more abstract level, it shows that border violence amplified feelings of desperation and compulsion, allowing for the coalescence of a migrant body politic around shared experiences as necropolitical subjects. Stories of national identity, faith, and other narratives emerged as coping mechanisms and motivators, driving migrants forward, individually and collectively, in pursuit of resurrection—a more powerful impetus than can be stopped by any border wall. 

Analysis: Migrant Smugglers, Border Controls, and Illegal Economies

I have dedicated most of my analysis to discourse from migrants, as they are the primary actors and targets of border controls along the Balkan route. However, since Europol estimates that 90% of illegalized migrants use “facilitation services”—otherwise known as smugglers—during their journeys to the EU, I decided to also analyze how controls affect the operations and discourses of migrant smugglers. To the extent possible, I have also tried to illuminate how deterrence policies at the Serbian-Hungarian border in 2015 affected the economics of migrant smuggling. 

Lawmakers have at times acknowledged, though internally, the hypocritical effects of the deterrence paradigm on migrant smuggling. Strikingly, the US Border Patrol’s own documents list “increased alien smuggling fees” as an “indicator of success” for its deterrence framework, believing that this change signals that migrants are attempting more difficult border crossings.^[130] Indeed, smuggling fees along the US-Mexico border have increased since 1980, belying the US Border Patrol’s insistence that “anti-smuggling” constitutes one of its key goals.^[131] Though the EU’s lack of an institutionalized and universal deterrence framework precludes drawing a similarly explicit pattern, migrant smuggling to the EU enjoyed its most profitable year in 2015 even as states closed borders, debated new strategies, and considered bombing smuggling boats off the coast of Libya.^[132] Might EU policy reorientation towards deterrence in 2015 have triggered changes similar to those seen with migrant smuggling along the US-Mexico border? 

Unfortunately, a limited data set prevents me from establishing a categorical relationship between the 2015 Serbian-Hungarian border closing and migrant smuggler actions. Even with my expanded search parameters, I only pulled twenty-seven relevant smuggler quotes from ten distinct speakers as represented in eight stories across five publications (The Guardian, The New York Times, Reuters, The Wall Street Journal, RFERL). Only four explicitly mentioned borders or border controls, of which I coded one as undeterred, one as deterred, and two as indeterminate. The undeterred speaker expressed that the closure of the Serbian-Hungarian border presented only a minor hiccup in larger transnational smuggling operations. 

“We have other ways. This was the easiest, but we have other ones.” No demographic info provided. Serbia-Hungary. 09/15/2015.^[133]

Conversely, the deterred speaker expressed that the Serbian-Hungarian border had become impassable. It is worth noting that the smuggler is speaking to a migrant, presenting the possible ulterior motive that he is persuading the migrant of the futility of crossing without assistance. 

“The border is so closely watched, not even a bird can fly over.” Anonymous Syrian smuggler, no age provided. Serbia-Hungary. 10/22/2015.^[134]

One of the indeterminate statements, classified as such because it does not communicate a response to heightened border controls, does provide some actionable information. The smuggler is discussing route prices from the Balkans to Germany in late August and early September—before Hungary closes its Serbian border. The smuggler remarks that this period of relative ease of transit, facilitated by state bussing of migrants to external borders and welcoming policies in Germany, has forced smugglers to drop their prices. This statement establishes that some smugglers’ operations did respond to changes at the Serbian-Hungarian border, and intuits that if prices go down when that border eases, the inverse is also likely to be true: 

“There are other people who take asylum seekers from Serbia to Hungary for 100 euros per person — the rate was 500 euros before between Hungary and Germany, but nowadays routes are easier. We can take people beyond Serbia, since we have friends and contacts. But asylum seekers can go by themselves as well, because everything is easy now. You saw that people are being given tickets to go to [Germany] from Hungary.” Abdullah, M, Afghan, age not provided. Balkan route. 09/11/2015.^[135]

However, my discourse analysis does not provide sufficient evidence to establish a definitive correlative relationship here. Yet, other patterns from my discourse analysis, particularly regarding smuggler methods and narratives, are more generalizable.

It is clear that many smugglers operating at the Serbian-Hungarian border operated as part of loose, transnational, horizontal networks. Smugglers like Abdullah, quoted above, formed chains which would transfer clients between smugglers at various points on the route to the EU. Four other smugglers mentioned their coordination with those working other points along the route to Europe. Quoted smugglers were of Bulgarian, Afghan, Kurd, and Syrian nationalities, with the latter three primarily smuggling migrants of their own nationality. In at least two cases, smugglers were family friends or acquaintances of the migrants they smuggled and at least one smuggler was a former migrant himself, though reporting from other contexts such as Turkey^[136] shows this to be a common phenomenon. Other smugglers found clients by making themselves known at common transit points, such as in Serbian border towns or at Keleti train station in Budapest. These methods reveal a certain level of sophistication, but they also reveal the familial, cultural, and experiential familiarities which connect migrants to smugglers on a personal level. While the European Commission’s description of migrant smugglers as members of “ruthless criminal networks organiz[ing] the journeys of large numbers of migrants” may hold for contexts like the Aegean crossing, migrant smuggling in the 2015 Balkans seems to have been more diffuse, spontaneous, and individualistic.^[137]

My data set does not provide much insight into why smugglers joined the industry, aside from one Bulgarian smuggler who cited a lack of economic opportunity: “Take me to America, and I’ll happily work as your gardener,” he told The Wall Street Journal.^[138] What does emerge are several narratives which smugglers told themselves to justify their often-deadly work. To understand how smugglers interpreted why some operations went wrong, I coded for references to events of violence and death on the smuggling trail, “I” statements, keywords signaling responsibility (blame, fault), and directives smugglers claim to have given to migrants and families. Not one smuggler in my data set took upon themselves responsibility for a death during their operations. Instead, four statements (two speakers) placed responsibility onto other smugglers and five statements (four speakers) placed responsibility onto migrants.

Other smugglers:

“Bewar [the other smuggler] is to blame because when he passed the job on … he didn’t get any information. Even now we don’t know the truth.” Sediq Sevo, Iraqi Kurd, M, age not provided. Hungary-Austria. 11/12/2015.^[139]

“I was nobody’s boss. Giving information is not giving orders. I didn’t create this crime group, it was not in my hands.” Lahoo Samsooryamal, M, Afghan, 31. Hungary-Austria. 06/14/2018.^[140]

Migrants: 

“There is no guarantee in this business of trafficking. We tell people that there could be a shortage of food and water. There could be police arrest. There could even be death. Anything can happen. We tell all this to people. And they understand this. They tell us all this is evident. They tell us they know this. They accept all this on themselves.” Abdullah, M, Afghan, age not provided. Balkan route. 09/11/2015.^[141]

These statements give the smuggler a level of plausible deniability, where—in their minds—the risks are understood, and the journey is out of their control. Many incidents contradict this logic, not least of which was the infamous mass death event in August 2015 in Austria. Seventy-one migrants died inside the lorry, and Lahoo Samsooryamal, an Afghan smuggler charged as the ringleader, alluded that he directed smugglers to pay no mind to the migrants’ pleas, even as, in court, he washed his hands of responsibility. Events like these lead other smugglers to try to distinguish themselves, claiming they have “good experience”^[142] and that they’re not like “smugglers who squeeze too many people in one car. You heard what happened to those seventy-one [people] in that truck.”^[143] We can see how smugglers conceive of themselves not just as service providers but humanitarians, professional in their craft and acting with a strong moral compass. 

Smuggler prosecution case data from the UNODC correlates with many of these quote patterns, lending strength to the idea that 2015 Balkans migrant smuggling was more individualized and opportunistic than in some other regions. The thirteen cases prosecuted in Serbia and listed in the UNODC database have offense dates ranging from 2006 to 2016 and verdict dates ranging from 2013 to 2016. Cases involved between one and eleven smugglers and four and seventy-six migrants. The smugglers were of Serbian, Bulgarian, and Afghan origin, while the migrants were of Albanian, Afghan, Bangladeshi, Iranian, Iraqi, Libyan, Somali, and Syrian origin. Seven cases involved smugglers acting essentially as paid guides for migrants who wanted to move through and exclusively within Serbia’s borders—that is, individuals charged migrants for private transport or even just information to help them move from southern Serbia to Belgrade or from Belgrade to towns along the Hungarian border. 

Notably, these latter offenses do not meet the definition of migrant smuggling outlined in the 2000 Office of the High Commissioner for Human Rights (OHCHR) protocol, which defines migrant smuggling as requiring a border crossing.^[144] Nonetheless, Serbian courts charged many of these individuals with “enabling illegal entry” and/or obtaining “financial or other material benefit (to smuggler).” Several instances appear opportunistic, occurring when individuals came across lost migrants in border towns or at public transit stops and assisted them for a fee. In two cases the offenders were minors, and in one such case a fifteen-year-old Serbian male escorted a group of migrants from Macedonia into Serbia as he returned from visiting family.^[145] This does not mean larger crime groups were not involved—the UNODC signaled the involvement of TOC in at least two cases^[146]—but rather that the increase in migrants in the mid-2010s created opportunities for local citizens to exploit the crisis amid the inconsistency of state programs. Defendants in three cases were characterized as living in “poor” economic conditions, and a 2016 European Commission study on migrant smuggling noted “financial necessity” and destitution as predictors of Serbian local community involvement in migrant smuggling.^[147]

The UNODC cases also reveal that certain routes—and the price smugglers charged migrants on those routes—increased and became standardized in the period preceding and during the 2015 migrant crisis. While cases in 2006 and 2011 involved smugglers charging migrants 250 to 300 euros^[148] to move from southern to northern Serbia, three independent cases between 2013 and 2015^[149] saw individuals charge migrants 500 euros to leave from towns on the Macedonian and Bulgarian borders, merge with the highway running from Niš to Belgrade, and then continue to border towns. Prices for transfers across the Serbian-Hungarian border were more erratic. A large TOC group moving Albanians in 2009 charged up to 8000 euros per group.^[150] Meanwhile, one smuggler operating in February 2016^[151] charged migrants 1200 euros each to move across Serbia and into Hungary, and three smugglers operating in May 2016^[152]charged migrants just 100 euros each to go from Belgrade to Subotica and across the border. While, again, inconclusive as to the exact relationship between border controls and smuggling, these patterns suggest a market responsiveness to demand and the operations of other smugglers, with operators adjusting their prices to remain in line with the market. 

Prices cited in migrant quotes about smugglers—of which I coded and analyzed twenty—paint a similarly hazy picture, as the exact distances and routes to which migrants assign prices in their conversations with journalists are not always clear. The price of 500 euros reoccurs three times in the context of moving across northern Serbia or through Hungary, again supporting the idea of price standardization. Two migrants referenced exorbitant prices charged by taxi drivers in Serbia, showcasing the exploitation of the crisis by local citizens. Five quotes demonstrated a scarcity mindset, which I coded when speakers referenced the need to conserve money or expressed relief when presented with opportunities to save money, showing how the smuggling industry placed severe financial pressure on migrants. 

“I’ve got to save money, we all do. I’ve already spent 2,500 euros, so I want to make this as fast as possible.”Ahmed, M, Syrian, age not provided. Serbia. 08/21/2015.^[153]

“We had been going to take a taxi for €500. But then when we heard that the Hungarians were letting people get on the train, we thought ‘why waste the money and take such a risk if they’re letting us do this?’” Ahmed, M, Syrian, 19. Hungary-Austria-Germany. 09/02/2015.^[154]

“I’m lucky because we were thinking of talking to a smuggler again. The government just brought us here without any money. We saved like 400 or 500 euros.” Ashamaz Saeed, M, Syrian, 23. Hungary. 09/06/2015.^[155]

These comments also reveal that migrants sought legal or state-sponsored routes when possible, turning to smugglers primarily in the absence of such options. When Hungary offered migrants train rides to its border with Austria in early September, prior to the shuttering of its Serbian border, many accepted. While Hungary’s move should be read as a nativist attempt to rid its territory of migrants, my analysis suggests the campaign did fleetingly reduce migrants’ reliance on smugglers in Hungary. From a humanitarian perspective, interventions to keep money in migrants’ pockets also reduce migrants’ reliance on cheap smugglers who are more likely to force large groups of migrants into unsafe traveling arrangements to recoup lost profit. 

My analysis of migrant quotes about smugglers did not provide much actionable information about how migrants came to find smugglers—one migrant said he found smugglers on the internet, another migrant said he knew his smuggler from Syria, and another quote reflected a migrant-smuggler interaction at a petrol station along the Serbian-Hungarian border. Migrants in my analysis, however, were very aware of the risks of smuggling. News of smuggling tragedies spread quickly within migrant information networks. 

“We were close to being like them [those killed in the van].” Mahmoud Otri, M, Syrian, 23. [Smale, The New York Times, 08/30/2015, Hungary-Austria.]^[156]

“I heard about the people that have died of suffocation in lorries.” Ahmed, M, Syrian, 19. [Connolly, The Guardian, 09/02/2015, Hungary-Austria-Germany.]^[157]

It was also common for migrants to note times when smugglers had scammed them or lied to them (five quotes), separate from experiences of near death like the one mentioned by Mahmoud Otri above. It is clear that consulting a smuggler was neither a preferred nor pleasant experience for most migrants moving through the Balkan route in 2015. Instead, it represented a logical, resource-based choice made with increasing frequency as state programs present in early and mid-2015 evaporated with border closures in late 2015. 

Upon synthesizing these three threads of migrant smuggler analysis, a few patterns deserve reiteration. First, the sharp increase in migrants moving through the Balkans in 2015 certainly spiked demand for smuggling services. On the other hand, the effect on supply was decidedly mixed. Experienced and confident smugglers continued operating, while others were scared off by border closures. To an extent, this consolidated supply. At the same time, the UNODC cases show that opportunistic, local actors began to involve themselves in the trade, proliferating but fracturing the supply. However, even if just demand rose as supply equilibrated, this would still provoke a market-based rise in smuggling prices. Simultaneously, we can see that migrants resisted using smugglers for cost and safety reasons, preferring to use state programs when possible. Deterrence policies and border closures pushed migrants closer to smugglers as these safety nets were removed. While the exact economic effects are unclear, closures at the very least created new challenges for migrants, and therefore new opportunities for smugglers. 

Conclusion: Lessons for the European Project, Borders, and Identities

Throughout 2015 and the early months of 2016, illegalized migrants moving through Balkan states en route to the EU consistently articulated discrepancies between the EU’s espoused liberal institutionalist values and its treatment of those who attempted to cross its external and internal borders. Far from experiencing justice, fulfilled human rights, or equal treatment, migrants were faced with pushbacks, walls, forced fingerprinting, tear gas, expedited asylum denial, family separation, and vigilante violence. At the same time, the EU doubled down on a border securitization approach to combating migrant smuggling—an approach which likely boosted incentives for smuggling rings, with the industry pulling in a record profit in 2015. Some smugglers even appropriated rhetorical space to present themselves as Samaritans filling a state absence. By almost any metric, the EU failed to live up to its values or operational goals during the so-called 2015 migration crisis, and today thousands of migrants remain stranded in camps in Greece, Bosnia, France, and elsewhere. What explains this paradox? 

The answer lies in the contradiction between the EU’s rhetorical presentation and its territorial realities. In theory, the EU is a supranational project. Constitutive states, though mostly sovereign, give up varying degrees of autonomy in pursuit of material benefit—such as fewer internal borders, easier trade, and economic development—as well as inclusion within a normatively progressive and powerful rhetorical project based on tolerance, justice, human rights, and other similar values. The traditional elements of statecraft, such as nation building, military force, and territorial expansion, are meant to be subordinate to this more humanitarian and egalitarian model of supranational governance. Yet, because the EU maintains physical borders, it is still in practice equivalent to a traditional state, defined by Max Weber as a “human community that (successfully) claims monopoly of the legitimate use of force within a given territory.”^[158] Further, because the EU governs through a representative democracy, it predisposes itself to the contradictions of nation-state construction, wherein determining who deserves representation (e.g., a European “people”) necessarily determines who does not.^[159] The border, which acts in both its physical and social manifestations as a delineator of difference, draws the fault lines of this represented people. As such, a nationalist and racialized concept of European identity begins to operate and reinforce itself through the infrastructure and borders of the supranational EU. 

As the number of arriving migrants rose in 2015, these dueling presentations—one of a liberal institutionalist Europe, the other of a nationalist Europe—came into escalating conflict, driven by this disconnect between the EU’s espoused goals and its territorial and representational claims. Europe as an idea presented a talking point for leaders in favor of accepting migrants, as well as those wanting to exclude them. Chancellor of Germany Angela Merkel, whose border policies oscillated between open and partially mediated as most other EU states resisted calls for burden-sharing, drew the crisis as an opportunity to prove Europe’s progressive bonafides. Quoted by Reuters in September 2015, Merkel argued that “if Europe fails on the refugee question, its tight bond with universal human rights will be destroyed, and it will no longer be the Europe we dreamed of.”^[160] Merkel’s fears contrasted with those of Hungary’s Orbán, who constructed migrants as a threat to European civilization and Christianity, with Hungary as the frontline in a battle to prevent Europe’s degradation.^[161] The Serbian-Hungarian border, guarding entry into both Hungary and the Schengen Area, became a site of contention, with Hungary utilizing domestic as well as EU infrastructure, such as Frontex, to transform a supranational border into a site for enforcing, paradoxically, a nationalist European identity.

Yet, while Merkel and Orbán may have differed in rhetoric and intention, what remains unquestioned in both presentations is Europe’s quintessential goodness, if not its superiority. To borrow a phrase from French sociologist Daniel Defert, Europe “takes consciousness of itself … as a planetary process rather than [as] a region of the world.”^[162]The ever-expanding and ever-changing nature of EU accession exemplifies this projection, furthering the idea of the EU as a supranational project into and by which nation-states are subsumed and enlightened. The world’s desire to “become” Europe, therefore, is conceived as inevitable and understandable. Yet, membership is still strictly policed, as is made evident by the mediation of both EU accession and refugee admissions. Merkel and Orbán, therefore, represent distant points on a continuum of views articulating who can and cannot become European. Again, the EU’s maintenance of representative borders precludes an all-inclusive answer to this question, and so the border becomes the site for dictating the terms of exclusion, by definition creating discriminatory hierarchies which contradict the EU’s projections of non-discrimination, equality, and fairness. 

This debate takes on an extra dimension when one considers how the EU has convinced third countries to enforce its border regime for it. For EU-candidate countries, the EU has incentivized the harmonization of migration law as a harbinger of accession. In Serbia, the EU’s Stabilisation and Accession Council has shepherded the country’s post-Milošević leadership towards alignment with EU migration controls.^[163] Meanwhile, the EU’s 2016 deal with Turkey has become a cornerstone of EU migration management. These processes show how successfully the EU has projected its progressive image, as candidate countries are willing to enforce EU migration frameworks to preserve the integrity of a European project from which they themselves have been excluded. Indeed, Serbia’s then-Prime Minister and current President Aleksandar Vučić invoked the idea of Europe for his own purposes during the 2015 migration crisis, decrying Orbán’s “non-European” policies and calling on “[EU] members to behave in line with European values” or else “[Serbia] will find a way to protect [its] borders and European values as well.”^[164] Seizing on that opportunity to elevate Serbia to the EU’s moral high ground, Vučić was less eager to place Serbia inside Europe once it became clear Serbia might have to host refugees long-term, insisting his country could not become a “parking lot” for migrants.^[165] Much as Orbán used supranational border infrastructure to execute a nationalist agenda, Vučić latched onto European project rhetoric to articulate and further his goals and Serbia’s positionality. 

As such, rhetorical proximity to the European project sometimes outpaces territorial acceptance, with candidate states often appropriating that space even when faced with official exclusion. It is thus unsurprising that Hungary, Serbia, and Western Balkan countries on the EU’s territorial and rhetorical periphery adopted deterrence-based migration policies on behalf of the EU, performing a hyper-nationalist policing of European identity in order to distance themselves from the migrant other and approximate themselves to enlightened Europe. Many EU-core countries (such as Austria, Poland, and certain movements in the Netherlands, France, and Germany) not only encouraged but ultimately adopted such policies themselves—reintroducing intra-Schengen controls, capping refugee admissions, and engaging in deterrence-focused information campaigns. As demonstrated, migrants were quick to articulate these hypocrisies, as the Europe they had heard about and ran towards—the one based on human rights, justice, and tolerance—gave way to a Europe which abused and excluded them. The fact that migrants were then able to reproduce this liberal institutionalist discourse to argue for their freedom of movement highlights the reach and power of the EU’s rhetoric, as well as the distance between the EU’s projected image and the realities of its border regime. 

Borders, by definition, are a direct contradiction of supranationalism and the values the EU venerates as its most important. Simply put, borders determine the fault lines of discrimination—they write the rules for who falls inside and outside of a given territory and the society within. Deterrence-based migration policies operate as a hyperactive form of this discrimination, manifesting the idea that a territory—and, by extension, an identity—can be “secured” through the vigilant and performative enforcement of the intersections of difference. For as long as borders exist, there will always be those who seek to circumvent the hierarchies they create, just as there will be those ready (smugglers) to assist that circumvention for a fee. Ultimately, it is impossible to enforce borders in such a way that respects human rights; it is an oxymoron, equivalent to trying to find a just way to discriminate. Arguably, border abolition provides the only path towards the reality of a truly egalitarian and liberal institutionalist Europe. At the very least, reorienting migration policy with human rights concerns prioritized would necessitate border relaxation, migrant resettlement programs from traditional countries of origin, and the recalibration of the world economy to eliminate the wage and labor discrepancies which displace and incentivize migrants. Deterrence-based policies at Europe’s borders can only subject more bodies to necropolitics; their continuation ensures the creation and performance of more discrimination, displacement, and mass death. In the end, the body count will include not just the millions arriving at Europe’s frontiers, but the aspirations of the European project itself. 

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References:

^[1] I use “migrant” to refer to non-EU citizens, primarily from Asia and Africa, participating in mass migrations by foot and boat to the EU. Most could be defined as refugees, but I have chosen “migrant” as an all- encompassing term to avoid invoking the legal burden of proof needed to assert refugee status for each individual. 

^[2] Rory Carroll, “US Border Patrol Uses Desert as ‘Weapon’ to Kill Thousands of Migrants, Report Says,” The Guardian, December 7, 2016, http://www.theguardian.com/us-news/2016/dec/07/report-us-border-patrol-desert-weapon-immigrants-mexico.

^[3] Arthur Nelsen and Lizzy Davies, “Italy: End of Ongoing Sea Rescue Mission ‘Puts Thousands at Risk,’” The Guardian, October 31, 2014, http://www.theguardian.com/world/2014/oct/31/italy-sea-mission-thousands-risk.

^[4] Josh Smith, “Germany Launches Campaign to Deter Afghan Refugees,” Stars and Stripes, November 16, 2015, https://www.stripes.com/news/europe/germany-launches-campaign-to-deter-afghan-refugees-1.379170.

^[5] European Commission, “EU Action Plan against Migrant Smuggling (2015 – 2020),” May 27, 2015, https://ec.europa.eu/anti-trafficking/sites/default/files/eu_action_plan_against_migrant_smuggling_en.pdf.

^[6] Europol, “Migrant Smuggling in the EU,” February 22, 2016, https://www.europol.europa.eu/publications-documents/migrant-smuggling-in-eu.

^[7] I use the language of “illegalization” to highlight the role of the state in designating certain migrations as outside of the law, as well as to avoid the negative connotations of terms like “illegal,” “irregular,” or “unwanted” migration.

^[8] See: Achille Mbembe, Necropolitics (Durham, NC: Duke University Press, 2019).

^[9] David Newman and Anssi Paasi, “Fences and Neighbours in the Postmodern World: Boundary Narratives in Political Geography,” Progress in Human Geography 22, no. 2 (April 1, 1998): 187-88, https://doi.org/10.1191/030913298666039113.

^[10] Ivo D Duchacek, Comparative Federalism; the Territorial Dimension of Politics (New York: Holt, Rinehart and Winston, 1970).

^[11] Étienne Balibar et al., Politics and the other scene (London: Verso, 2002).

^[12] Harald Bauder, “Toward a Critical Geography of the Border: Engaging the Dialectic of Practice and Meaning,” Annals of the Association of American Geographers 101, no. 5 (2011): 1129.

^[13] Haselsberger, Beatrix. “Decoding Borders: Appreciating Border Impacts on Space and People.” Planning Theory & Practice 15, no. 4 (October 2, 2014): 505–26, https://doi.org/10.1080/14649357.2014.963652.

^[14] Peter Andreas, “Redrawing the Line: Borders and Security in the Twenty-First Century,” International Security 28, no. 2 (2003): 78–111; Nancy A. Wonders, “Globalization, Border Reconstruction Projects, and Transnational Crime,” Social Justice 34, no. 2  (2007): 33–46.

^[15] Todd Miller, Border Patrol Nation (San Francisco: City Lights Books, 2014).

^[16] A. Naomi Paik, Bans, Walls, Raids, Sanctuary: Understanding U.S. Immigration for the Twenty-First Century (Berkeley, CA: University of California Press, 2020), 77.

^[17] Harsha Walia, Border and Rule: Global Migration, Capitalism, and the Rise of Racist Nationalism (Chicago: Haymarket Books, 2021), 120.

^[18] Walia, Border and Rule, 117.

^[19] Haselsberger, “Decoding Borders,” 505-26.

^[20] Kenichi Ohmae, The Borderless World, Rev Ed: Power and Strategy in the Interlinked Economy, revised ed. edition (New York: Harper Business, 1999).

^[21] Saskia Sassen, “Beyond Sovereignty: Immigration Policy Making Today,” Social Justice 23, no. 3 (65) (1996): 9–20; Peter Andreas, “Redrawing the Line: Borders and Security in the Twenty-First Century,” International Security 28, no. 2 (2003): 78–111.

^[22] Saskia Sassen, “Regulating Immigration in a Global Age: A New Policy Landscape1,” Parallax 11, no. 1 (January 2005): 35–45, https://doi.org/10.1080/1353464052000321083.

^[23] Paik, “Bans, Walls, Raids, Sanctuary,” 8-17

^[24]Walia, “Border and Rule,” 2.

^[25] Haselsberger, “Decoding Borders,” 505-26; Newman and Paasi, “Fences and Neighbours in the Postmodern World,” 188; Basilien-Gainche, “The EU External Edges,” 97.

^[26] Michael Jandl, “Irregular Migration, Human Smuggling, and the Eastern Enlargement of the European Union,” The International Migration Review 41, no. 2 (2007): 291–315.

^[27] Peter Andreas, “The Escalation of U.S. Immigration Control in the Post-NAFTA Era,” Political Science Quarterly 113, no. 4 (1998): 591–615, https://doi.org/10.2307/2658246.

^[28] Moisés Naím, Illicit: How Smugglers, Traffickers, and Copycats Are Hijacking the Global Economy (New York: Anchor, 2006).

^[29] Wayne A. Cornelius, “Controlling ‘Unwanted’ Immigration: Lessons from the United States, 1993–2004,” Journal of Ethnic and Migration Studies 31, no. 4 (July 1, 2005): 775–94, https://doi.org/10.1080/13691830500110017.

^[30] Bryan Roberts, Gordon Hamsen, Derekh Cornwell, and Scott Borger. 2010. An Analysis of Migrant Smuggling Costs along the Southwest Border. Office of Immigration Statistics Working Paper, Department of Homeland Security, Washington, D.C. https://www.dhs.gov/xlibrary/assets/statistics/publications/ois-smuggling-wp.pdf. 

^[31] Susanne Schmeidl, “Exploring the Causes of Forced Migration: A Pooled Time-Series Analysis, 1971-1990,” Social Science Quarterly 78, no. 2 (1997): 284–308, http://www.jstor.org/stable/42864338.

^[32] The UNHCR defines refugees as “people who have fled war, violence, conflict or persecution and have crossed an international border to find safety in another country.”

^[33] Paik, Bans, Walls, Raids, Sanctuary; Sassen, Expulsions; Walia, Border and Rule

^[34] Francesco Castelli, “Drivers of Migration: Why Do People Move?,” Journal of Travel Medicine 25, no. 1 (January 1, 2018), https://doi.org/10.1093/jtm/tay040.

^[35] Antje Missbach, “Asylum Seekers’ and Refugees’ Decision-Making in Transit in Indonesia: The Need for In-Depth and Longitudinal Research,” Bijdragen Tot de Taal-, Land- En Volkenkunde 175, no. 4 (2019): 419–45, https://doi.org/10.2307/26806654.

^[36] Valeria Ottonelli and Tiziana Torresi, “When Is Migration Voluntary?,” The International Migration Review 47, no. 4 (2013): 783–813.https://doi.org/10.1111/imre.12048. 

^[37] Ilse van Liempt, “Gendered Borders: The Case of ‘Illegal’ Migration from Iraq, the Horn of Africa and the Former Soviet Union to the Netherlands,” in Illegal Migration and Gender in a Global and Historical Perspective, ed. Marlou Schrover et al. (Amsterdam: Amsterdam University Press, 2008), 83–104, https://doi.org/10.2307/j.ctt46mwss.6.

^[38] Martin van der Velde and Ton van Naerssen, “People, Borders, Trajectories: An Approach to Cross-Border Mobility and Immobility in and to the European Union,” Area 43, no. 2 (2011): 218–24, https://doi.org/10.1111/j.1475-4762.2010.00974.x. 

^[39] Paolo Campana and Loraine Gelsthorpe, “Choosing a Smuggler: Decision-Making Amongst Migrants Smuggled to Europe,” European Journal on Criminal Policy and Research 27 (July 27, 2020), https://doi.org/10.1007/s10610-020-09459-y.

^[40] Sue Hoffman, “‘If We Die, We Die Together’: Risking Death at Sea in Search of Safety,” in Migration by Boat, ed. Lynda Mannik, 1st ed., vol. 35, Discourses of Trauma, Exclusion and Survival (Berghahn Books, 2016), 219–34, https://www.jstor.org/stable/j.ctvpj7hqz.16.

^[41]Abdullah Mohammadi, Rita Nimkar, and Emily Savage, “”We are the ones they come to when nobody can help” Afghan smugglers’ perceptions of themselves and their communities,” Migration Research Series 56 (2019), https://publications.iom.int/books/mrs-no-56-we-are-ones-they-come-when-nobody-can-help-afghan-smugglers-perceptions-themselves.

^[42] Nassim Majidi, “Community Dimensions of Smuggling: The Case of Afghanistan and Somalia,” The Annals of the American Academy of Political and Social Science 676, no. 1 (March 1, 2018): 97–113, https://doi.org/10.1177/0002716217751895.

^[43] Patrick Kingsley, The New Odyssey (New York: Liveright Publishing Corporation, 2017).

^[44] Natalia Banulescu-Bogdan and Susan Fratzke, “Europe’s Migration Crisis in Context: Why Now and What Next?,” Migration Policy Institute, September 24, 2015, https://www.migrationpolicy.org/article/europe%E2%80%99s-migration-crisis-context-why-now-and-what-next.

^[45] Ibid, 4.

^[46] Agence France-Presse, “Hungary Closes Border with Serbia and Starts Building Fence to Bar Migrants,” The Guardian, June 17, 2015, https://www.theguardian.com/world/2015/jun/17/hungary-closes-border-serbia-starts-building-fence-bar-migrants.

^[47] Beznec et. al, “Governing the Balkan Route,” 26.

^[48] DW, “Hungary claims record daily migrant intake,” DW, August 25, 2015, https://www.dw.com/en/hungary-claims-record-daily-migrant-intake/a-18670646.

^[49] Amnesty International Report: The State of the World’s Human Rights. (New York: Amnesty International, 2016).

^[50] Amnesty International, “Fenced Out: Hungary’s Violations of the Rights of Refugees and Migrants,” last modified October 2015, https://www.amnesty.org/en/documents/document/?indexNumber=eur27%2f2614%2f2015&language=en.

^[51] Ibid.

^[52] Helene Bienvenu and Rick Lyman, “Hungary Blocks Migrants in Border Crackdown,” The New York Times, September 15, 2015, https://www.nytimes.com/2015/09/16/world/europe/hungary-detains-migrants-in-border-crackdown.html.

^[53] Maja Zuvela and Igor Ilic, “‘Heads as Well as Hearts’: Croatia Says It Can Take No More Migrants,” Reuters, September 18, 2015, https://www.reuters.com/article/us-europe-migrants-idUSKCN0RI0CV20150918; Marja Novak and Maja Zuvela, “12,000 Migrants Arrive in Slovenia; Authorities Ask EU for Help,” Reuters, October 22, 2015, https://www.reuters.com/article/us-europe-migrants-slovenia-idUSKCN0SG0DI20151022.

^[54] JROs involve the deportation or repatriation, forced or voluntary, of third-country nationals.

^[55] General Secretariat of the Council. “FRONTEX Annual Activity Report 2015.” Council of the European Union, June 28, 2016. http://statewatch.org/news/2016/jul/eu-frontex-2015-activity-report.pdf.

^[56] Sian Jones, “Refugees Suffer Under Macedonia’s New Border Rules,” Balkan Insight, December 17, 2015, https://balkaninsight.com/2015/12/17/refugees-suffer-under-macedonia-s-new-border-rules-12-16-2015/.

^[57] Patrick Kingsley, “Stranded Migrants Sew Mouths Shut in Protest against Balkan Border Controls,” The Guardian, November 23, 2015, https://www.theguardian.com/world/2015/nov/23/stranded-migrants-sew-mouths-shut-in-protest-against-balkan-border-controls.

^[58] “2015 in Review: Timeline of Major Incidences and Policy Responses,” accessed April 12, 2020, https://www.icmpd.org/news-centre/2015-in-review-timeline-of-major-incidences-and-policy-responses/.

^[59] “The EU-Turkey Deal: Explained,” Help Refugees (blog), April 5, 2018, https://helprefugees.org/news/eu-turkey-deal-explained/.

^[60] Maja Zuvela, “Croatia Overwhelmed by Flood of Migrants, EU Calls Summit,” Reuters, September 17, 2015, https://www.reuters.com/article/us-europe-migrants-idUSKCN0RD0P420150917; Sewell Chan and Palko Karasz, “Thousands of Migrants Flood Into Austria,” The New York Times, September 19, 2015, https://www.nytimes.com/2015/09/20/world/europe/thousands-flood-into-austria-as-refugees-are-bounced-around-europe.html.

^[61] Aleksandar Vasovic and Marja Novak, “Backlog of Migrants Swells in the Balkans, Tempers Fray,” Reuters, October 19, 2015, https://www.reuters.com/article/us-europe-migrants-balkans-idUSKCN0SD0J620151019.

^[62] Barbara Surk, “Stranded in Cold Rain, a Logjam of Migrants in the Balkans,” The New York Times, October 20, 2015, https://www.nytimes.com/2015/10/20/world/europe/stranded-in-cold-rain-a-logjam-of-migrants-in-the-balkans.html.

^[63] Julia Fioretti and Gernot Heller, “Refugee Crisis to Test EU at Summit of Divided Leaders,” Reuters, September 20, 2015, https://www.reuters.com/article/us-europe-migrants-idUSKCN0RK0H420150920.

^[64] Sarah Almukhtar et al., “What’s Behind the Surge in Refugees Crossing the Mediterranean Sea,” The New York Times, May 21, 2015, https://www.nytimes.com/interactive/2015/04/20/world/europe/surge-in-refugees-crossing-the-mediterranean-sea-maps.html.

^[65] Patrick Kingsley, “Croatia Overwhelmed by Volume of Refugees Crossing from Serbia,” The Guardian, September 17, 2015, http://www.theguardian.com/world/2015/sep/17/croatia-overwhelmed-by-volume-of-refugees-crossing-from-serbia.

^[66] Patrick Kingsley, “Refugee Crisis Escalates as Migrants Break through Hungarian Border,” The Guardian, September 16, 2015, http://www.theguardian.com/world/2015/sep/16/refugee-crisis-escalates-as-people-break-through-hungarian-border.

^[67] Dado Ruvic, “‘Who Will Pay for That?’ – Migrants Clog East Europe Trade Routes,” Reuters, October 2, 2015, https://www.reuters.com/news/picture/who-will-pay-for-that-migrants-clog-east-idUSKCN0RW11920151002. 2015.

^[68] Martin Dunai, “Migrants Face New Diversion as Hungary Prepares to Seal Croatia Border,” Reuters, October 1, 2015, https://www.reuters.com/article/uk-europe-migrants-hungary-border-idAFKCN0RV4T420151001; Rick Lyman, “Hungary Seals Border With Croatia in Migrant Crackdown,” The New York Times, October 16, 2015, https://www.nytimes.com/2015/10/17/world/europe/hungary-croatia-refugees-migrants.html.

^[69] Barbara Surk and Stephen Castle, “Migrants Diverted to Slovenia After Hungary Closes Border,” The New York Times, October 17, 2015, https://www.nytimes.com/2015/10/18/world/europe/hungary-closes-border-changing-refugees-path.html.

^[70] Reuters in Ljubljana, “Slovenia to Hire Private Security Firms to Manage Migrant Flows,” The Guardian, October 26, 2015, http://www.theguardian.com/world/2015/oct/26/slovenia-private-security-firms-manage-migrant-flows-refugees.

^[71] Sarah Almukhtar, Josh Keller, and Derek Watkins, “Closing the Back Door to Europe,” The New York Times, September 15, 2015, https://www.nytimes.com/interactive/2015/09/15/world/europe/migrant-borders-europe.html.

^[72] High-end estimates place the number of arriving migrants in 2015 at around 1.3 million, while the population of the EU in 2015 was 443.67 million. 

^[73] Rick Lyman and Helene Bienvenu, “Migrants Clash With Police in Hungary, as Others Enter Croatia,” The New York Times, September 16, 2015, https://www.nytimes.com/2015/09/17/world/europe/europe-refugee-migrant-crisis.html.

^[74] Patrick Kingsley, “Migrants on Hungary’s Border Fence: ‘This Wall, We Will Not Accept It,’” The Guardian, June 22, 2015, https://www.theguardian.com/world/2015/jun/22/migrants-hungary-border-fence-wall-serbia.

^[75] Ibid.

^[76] Kingsley, “Croatia Overwhelmed.”

^[77] Rick Lyman, “Europe Lacks Strategy to Tackle Crisis, but Migrants March On,” The New York Times, September 17, 2015, https://www.nytimes.com/2015/09/18/world/europe/europe-migrants-refugees.html.

^[78] Rick Lyman and Dan Bilefsky, “Squalid Migrant City Rises in Budapest as Europe Seeks Solutions,” The New York Times, September 2, 2015, https://www.nytimes.com/2015/09/03/world/europe/europe-migrant-crisis.html.

^[79]Anemona Hartocollis, “Migrants Stuck at Budapest Train Station Weigh Next Move,” The New York Times, September 2, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/budapest-train-station.

^[80] Anemona Hartocollis, “Hungarian Police Spray Family Trying to Cross Border,” The New York Times, September 3, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/hungary-refugees-pepper-spray.

^[81] Anemona Hartocollis, “At Budapest Train Station, Only the Clever and Lucky Remain,” The New York Times, September 4, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/budapest-train-refugee-camps.

^[82] Novak and Zuvela, “12,000 Migrants.” 

^[83] Anemona Hartocollis, “Arriving at Hungary’s Border With 15 Children, Migrants Plot Next Move,” The New York Times, August 31, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/horgos-serbia-hungary.

^[84] Patrick Kingsley, “Refugee Crisis: Young Migrants Blaze New Trails through Europe,” The Guardian, September 19, 2015, https://www.theguardian.com/world/2015/sep/19/young-migrants-trailblazers-hungary-croatia-serbia.

^[85] Filip Avramovic, “Middle East and Balkan War Refugees Share Camp,” Balkan Insight, November 4, 2015, https://balkaninsight.com/2015/11/04/middle-east-and-balkan-war-refugees-share-camp-11-04-2015/.

^[86] DW, “Hungary claims record daily migrant intake.”

^[87] Bienvenu and Lyman, “Hungary Blocks Migrants.”

^[88] Andrew Higgins, “Avoiding Risky Seas, Migrants Reach Europe With an Arctic Bike Ride,” The New York Times, October 9, 2015, https://www.nytimes.com/2015/10/10/world/europe/bypassing-the-risky-sea-refugees-reach-europe-through-the-arctic.html.

^[89] Kingsley, The New Odyssey, 186. 

^[90] Lyman and Bienvenu, “Migrants Clash.”

^[91] Kingsley, “Refugee Crisis.”

^[92] Ibid.

^[93] Europol, “Migrant Smuggling in the EU.”

^[94] Sasa Dragoljo, “Refugees in Serbia Dream of Better Tomorrow,” Balkan Insight, August 19, 2015, https://balkaninsight.com/2015/08/19/refugees-in-serbia-dream-of-better-tomorrow-08-19-2015/.

^[95] Alison Smale, “As Police Investigate Deaths in Truck, Migrants and Smugglers Appear to Shift Tactics,” The New York Times, August 30, 2015, https://www.nytimes.com/2015/08/31/world/europe/as-police-investigate-deaths-in-truck-migrants-and-smugglers-appear-to-shift-tactics.html.

^[96] Patrick Kingsley, “Syria to Croatia: Waiting for the Trains That Never Come,” The Guardian, September 18, 2015, http://www.theguardian.com/world/2015/sep/18/syria-to-croatia-then-taunted-by-the-trains-that-never-come.

^[97] Rod Nordland, “A Mass Migration Crisis, and It May Yet Get Worse,” The New York Times, October 31, 2015, https://www.nytimes.com/2015/11/01/world/europe/a-mass-migration-crisis-and-it-may-yet-get-worse.html.

^[98] Ibid.

^[99] Kingsley, “Migrants on Hungary’s Border Fence.”

^[100] Dragoljo, “Refugees in Serbia.”

^[101] Anemona Hartocollis, “How the Migrants’ March Toward Germany Began,” The New York Times, September 6, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/march-budapest-hungary.

^[102] Emma Graham-Harrison and Jon Henley, “Hungary to Take Thousands of Refugees to Austrian Border by Bus,” The Guardian, September 4, 2015, https://www.theguardian.com/world/2015/sep/04/hundreds-refugees-march-austria-budapest-hungary-syrians.

^[103] Bienvenu and Lyman, “Hungary Blocks Migrants.”

^[104] Emma Graham-Harrison, “Still the Refugees Are Coming, but in Europe the Barriers Are Rising,” The Guardian, October 31, 2015, http://www.theguardian.com/world/2015/oct/31/austria-fence-slovenia-wire-europe-refugees.

^[105] Surk and Castle, “Migrants Diverted to Slovenia.”

^[106] Ibid.

^[107] Anemona Hartocollis, “Hustlers and Humanitarians on the Migrant Trail to Belgrade,” The New York Times, August 29, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/serbia-volunteers-hustlers.

^[108]Patrick Kingsley, “More than 2,000 Refugees Stranded at Croatian Border Town,” The Guardian, September 18, 2015, https://www.theguardian.com/world/2015/sep/18/croatia-closes-border-crossings-with-serbia-refugees-stranded.

^[109] Sasa Dragoljo, “Refugees Fear EU Border Closures After Paris Attacks,” Balkan Insight, November 17, 2015, https://balkaninsight.com/2015/11/17/serbian-refugees-scared-of-border-closing-after-paris-attacks-11-16-2015/.

^[110] Kingsley, “Migrants on Hungary’s Border Fence.”

^[111] Dan Nolan, “Hungary: A Grim Way Station for Asylum Seekers,” The New Humanitarian, July 8, 2015, https://www.thenewhumanitarian.org/analysis/2015/07/08/hungary-grim-way-station-asylum-seekers.

^[112] Hartocollis, “Migrants Stuck at Budapest.”

^[113] Lyman and Bilefsky, “Squalid Migrant City.”

^[114] Ljubljana, “Slovenia to Hire Private Security Firms to Manage Migrant Flows.”

^[115] Emma Graham-Harrison, “At Keleti Station in Budapest, the Refugees Could Wait No Longer,” The Guardian, September 5, 2015, http://www.theguardian.com/world/2015/sep/06/keleti-station-budapest-refugees.

^[116] Kingsley, “More than 2,000.”

^[117] Patrick Kingsley, “On the Road with the Refugees: ‘Finally I’m Getting out of Hungary,’” The Guardian, September 5, 2015, https://www.theguardian.com/world/2015/sep/05/on-the-refugee-buses-finally-im-getting-out-of-hungary.

^[118] Julian Borger et al., “Winter Is Coming: The New Crisis for Refugees in Europe,” The Guardian, November 2, 2015, https://www.theguardian.com/world/2015/nov/02/winter-is-coming-the-new-crisis-for-refugees-in-europe.

^[119] Dragoljo, “Refugees Fear.”

^[120] Avramovic, “Refugees Draw Breath.” 

^[121] Sven Milekic, “Refugees Refuse to Leave Croatian Asylum Centre,” Balkan Insight, September 17, 2015, https://balkaninsight.com/2015/09/17/asylum-seekers-revolt-deportation-from-zagreb-asylum-centre-09-17-2015/.

^[122] Dragoljo, “Refugees Fear.”

^[123] Patrick Kingsley, “Syrian Refugees in Hungary: ‘This Is the so-Called Developed Europe?,’” The Guardian, September 7, 2015, http://www.theguardian.com/world/2015/sep/07/syrian-refugees-hungary-camp-cold-hungry.

^[124] Dragoljo, “Refugees in Serbia.”

^[125] Milekic, “Refugees Refuse to Leave.”

^[126] EU, “The EU in Brief.”

^[127] Kingsley, “Migrants on Hungary’s Border Fence.”

^[128] Natalia Zaba, “Refugees Face Cold Shoulder in Hungary’s Border Towns,” Balkan Insight, August 28, 2015, https://balkaninsight.com/2015/08/28/refugees-face-cold-shoulder-in-hungary-s-border-towns-08-27-2015/.

^[129] Rick Lyman, “Winter Poses New Danger for Migrants,” The New York Times, October 19, 2015, https://www.nytimes.com/2015/10/19/world/europe/refugees-face-winter-as-new-danger-for-europe-migration.html.

^[130] U.S. Border Patrol, “Border Patrol Strategic Plan 1994 and Beyond: National Strategy,” U.S. Border Patrol, Washington, D.C.: U.S. Border Patrol, 1994. https://www.hsdl.org/?abstract&did=.

^[131] U.S. Customs and Border Protection, “Border Patrol Overview,” U.S. Customs and Border Protection, accessed March 2, 2021, https://www.cbp.gov/border-security/along-us-borders/overview.

^[132] Patrick Kingsley and Alessandra Bonomolo, “Italian Coastguards: Military Action Will Not Solve Mediterranean Migrant Crisis,” The Guardian, May 19, 2015, http://www.theguardian.com/world/2015/may/19/italian-coastguards-military-action-will-not-solve-mediterranean-migrant-crisis.

^[133]Patrick Kingsley and Ian Traynor, “Crowds Build at Border with Serbia as Hungary Cracks down on Refugees,” The Guardian, September 15, 2015, https://www.theguardian.com/world/2015/sep/15/hungary-strict-new-border-controls-crackdown-refugees-serbia.

^[134] Anemona Hartocollis, “A Family Swept Up in the Migrant Tide,” The New York Times, October 22, 2015, https://www.nytimes.com/interactive/2015/10/22/world/europe/syrian-refugees.html.

^[135] Bashir Ahmad Gwakh, “From Prey To Predator: An Afghan Migrant Trafficker’s Story,” RadioFreeEurope/RadioLiberty, September 11, 2015, https://www.rferl.org/a/afghanistan-migrant-traffickers-story/27241346.html.

^[136] Patrick Kingsley, “Stories of 2015: The Refugee Who Became a People Smuggler,” The Guardian, December 28, 2015, http://www.theguardian.com/world/2015/dec/28/refugee-people-smuggler-turkey-syria-greece-izmir.

^[137] European Commission, “EU Action Plan.”

^[138] Joe Parkinson, Georgi Kantchev, and Ellen Emmerentze Jervell. “Inside Europe’s Migrant-Smuggling Rings.” Wall Street Journal, October 28, 2015, https://www.wsj.com/articles/inside-europes-migrant-smuggling-rings-1446079791.

^[139] Isabel Coles and Shadia Nasralla, “A Smuggler’s Deathly Tale,” Reuters, November 12, 2015, http://www.reuters.com/investigates/special-report/europe-migrants-truck/.

^[140] Helene Bienvenu and Marc Santora, “They Let 71 People Die in a Stifling Truck. They Got 25 Years,” The New York Times, June 14, 2018, https://www.nytimes.com/2018/06/14/world/europe/austria-migrants-truck.html.

^[141] Gwakh, “From Prey to Predator.”

^[142] [Sediq Sevo, Iraqi Kurd, M, age not provided. Hungary-Austria. 11/12/2015]. Coles and Nasralla, “A Smuggler’s Deathly Tale.”

^[143] [Abdullah, M, Afghan, age not provided. Balkan route. 09/11/2015]. Gwakh, “From Prey to Predator.”

^[144] OHCHR, “OHCHR | Protocol against the Smuggling of Migrants,” last modified November 15, 2000, https://www.ohchr.org/EN/ProfessionalInterest/Pages/TransnationalOrganizedCrime.aspx.

^[145] UNODC, “Km. No. 25/16,” UNODC Smuggling of Migrants Knowledge Portal, September 20, 2016, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2016/km._no._2516.html?lng=en&tmpl=som.

^[146] UNODC, “SPK Po1 Br 26/16,” UNODC Smuggling of Migrants Knowledge Portal, May 30, 2016, 1, https://sherloc.unodc.org/cld/case-law-doc/criminalgroupcrimetype/srb/2016/spk_po1_br_2616.html?lng=en&tmpl=som; UNODC, “OPERATION ‘TISA,’” UNODC Smuggling of Migrants Knowledge Portal, https://sherloc.unodc.org/cld/case-law-doc/criminalgroupcrimetype/srb/operation_tisa.html?lng=en&tmpl=som.

^[147] Angeliki Dimitriadi et al., “Study on Smuggling of Migrants: Characteristics, Responses and Cooperation with Third Countries,” European Migration Network,  (2016): 88.

^[148] UNODC, “2 Kž No. 380/15,” UNODC Smuggling of Migrants Knowledge Portal, October 29, 2015, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2015/2_k_no._38015.html?lng=en&tmpl=som; UNODC, “19K Br.170/15,” UNODC Smuggling of Migrants Knowledge Portal, January 15, 2016, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2016/19k_br.17015.html?lng=en&tmpl=som.

^[149] UNODC, “2K 175/15,” UNODC Smuggling of Migrants Knowledge Portal, April 9, 2015, 175, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2015/2k_17515.html?lng=en&tmpl=som; UNODC, “5K 165/15,” UNODC Smuggling of Migrants Knowledge Portal, June 15, 2015, 165, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2015/5k_16515.html?lng=en&tmpl=som; UNODC, “Kž1 836/15,” UNODC Smuggling of Migrants Knowledge Portal, October 13, 2015, 1, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2015/k1_83615.html?lng=en&tmpl=som.

^[150] UNODC, “OPERATION ‘TISA’.”

^[151] UNODC, “SPK Po1 Br 26/16.”

^[152] UNODC, “2 K. 592/16,” UNODC Smuggling of Migrants Knowledge Portal, October 28, 2016, https://sherloc.unodc.org/cld/case-law-doc/migrantsmugglingcrimetype/srb/2016/2_k._59216.html?lng=en&tmpl=som.

^[153] The New Humanitarian, “Serbia Offers Brief Welcome for Migrants Rushing to EU,” The New Humanitarian, August 21, 2015, http://www.thenewhumanitarian.org/news/2015/08/21/serbia-offers-brief-welcome-migrants-rushing-eu.

^[154] Kate Connolly, “Germany Greets Refugees with Help and Kindness at Munich Central Station,” The Guardian, September 3, 2015, http://www.theguardian.com/world/2015/sep/03/germany-refugees-munich-central-station.

^[155] Anemona Hartocollis, “A Migrant Family Arrives in a No Man’s Land,” The New York Times, September 6, 2015, https://www.nytimes.com/interactive/projects/cp/reporters-notebook/migrants/a-migrant-family-arrives-in-a-no-man-s-land.

^[156] Smale, “As Police Investigate.”

^[157] Connolly, “Germany Greets.”

^[158] Max Weber, “Politics as a Vocation,” in Essays in Sociology, ed. Howard Garth and Cynthia Mills (New York: Macmillian, 1946), 26-45.

^[159] EU, “The EU in Brief.”

^[160] Paul Taylor, “Migration Crisis Tears at EU’s Cohesion and Tarnishes Its Image,” Reuters, September 5, 2015, https://www.reuters.com/article/us-europe-migrants-eu-analysis-idUSKCN0R50Y520150905.

^[161] Ibid.

^[162] Daniel Defert, “La collecte du monde: Pour une etude des recits de voyages du seizieme au dix-huitieme sidcle,” in Collections passions, ed. Jacques Hainard and Roland Kaeht (Neuchatel 1982), p. 26. Quoted in Mary Louise Pratt, “Scratches on the Face of the Country; Or, What Mr. Barrow Saw in the Land of the Bushmen,” Critical Inquiry 12, no. 1 (1985): 119-43, accessed June 17, 2021, http://www.jstor.org/stable/1343465.

^[163] Beznec et. al, “Governing the Balkan Route,” 29-41.

^[164] Maja Zuvela and Krisztina Than, “Hungarian Riot Police Detain Migrants, Including ‘terrorist,’” Reuters, September 15, 2015, https://www.reuters.com/article/us-europe-migrants-idUSKCN0RD0P420150916.

^[165] Tanjug, “PM: Serbia Won’t Be Parking Lot for Migrants,” B92.net, March 28, 2021, https://www.b92.net/eng/news/politics.php?yyyy=2016&mm=02&dd=03&nav_id=96915.

This piece was published in the Winter Issue Online Edition (Volume 11)

Abstract: 

In the aftermath of World War II, a new world order was created with the goal of fostering international cooperation and protecting the human rights that had been violated during the war. The formal institutionalization of human rights that occurred during the development of the United Nations, Universal Declaration of Human Rights, and 1951 Refugee Convention was far less self-evident than is commonly remembered. In reality, the states involved in deliberations prioritized national interests and the avoidance of potentially cumbersome international legal obligations ahead of the comprehensive protection of human rights. This phenomenon can be identified in the deliberations behind the 1951 Refugee Convention, during which national interests and power imbalances contributed to the formation of a legal definition of “refugee” that was inherently exclusionary in nature. This paper explores these deliberations through archival research and analyzes how the determination of global powers to preserve their national interests during negotiations contributed to a restrictive refugee definition that is unfit to adequately protect the rights of the modern refugee. Through a case study of the exclusion of “climate refugees” from the refugee definition and its ensuing protections, the paper highlights significant modern implications for contemporary refugees in need of protection that are a direct result of global powers opting to prioritize national interests and adopting a restrictive, exclusionary refugee definition rather than an inclusive and flexible definition. 

Introduction

            In the wake of the incomprehensible atrocities of World War II, it was exceedingly clear that the creation of a new international order, through which peace would be maintained and human rights would be promoted, was unequivocally necessary. The horrors of the World Wars demonstrated the danger of a world order in which peace between nations was tenuous, prompting the nations fighting the Axis Powers to unite in 1942, and to sign the Declaration of the United Nations. ^[1] Furthermore, the inhumanities of the war motivated this new body of global cooperation to institutionalize human rights on an unprecedented scale in order to prevent future violations. The United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) in December of 1948 with the goal of enshrining the “basic rights and fundamental freedoms” of all human beings and of establishing the universal nature of these rights.^[2] While the scope of the UDHR encompassed a wide range of universal rights, one of its most important functions was establishing the right of individuals to seek asylum and enjoy freedom from persecution in Article 14.^[3] An estimated sixty million people were displaced by World War II alone; consequently, this refugee crisis that exploded as a result of the World Wars was an important factor in the conception and formulation of the United Nations.^[4] Due to the lack of a global system for refugee management during and after World War II, staggering numbers of refugees who lacked any means of protection were failed by existing mechanisms in a time of great need. By incorporating the right to seek asylum into the UDHR, the United Nations took the first step in developing an international system for managing refugees that could protect those seeking help in the aftermath of the war.^[5]Utilizing Article 14 of the UDHR as a starting point, the formation and passage of the 1951 Convention Relating to the Status of Refugees marked the first multilateral treaty designed specifically to define and protect the fundamental rights of refugees.^[6] By setting international standards for the rights of refugees and for resettlement work, the United Nations intended to adequately manage the surge of refugees following World War II and to acknowledge and protect those who would be designated refugees under international law.^[7]

            Regarding both the institutionalization of refugee rights and of human rights as a whole in the aftermath of World War II, a common historical narrative has emerged in which the member states of the United Nations are said to have come together wholeheartedly in the wake of the war to combine forces for peace and to work to comprehensively protect human rights for all people. However, the situation was far more complex. While United Nations member states did come together to deliberate which rights were to be protected and how to go about doing so, many of the global powers involved in these deliberations were extremely hesitant to institutionalize human rights, and by extension refugee rights, due to fear that doing so would create unwanted international obligations by which they would need to abide in order to maintain their status as moral leaders.^[8] A clear example of this resistance came about in the deliberations regarding the construction of the legal definition of a refugee, which was eventually incorporated into Article 1 of the 1951 Refugee Convention. The complexities surrounding the way in which the drafters of the 1951 Refugee Convention chose to define “refugee” under international law had gargantuan ramifications regarding who would be allotted refugee status, and by extension the protections offered by that status. Global powers involved in the deliberations, such as the United States and France, advocated for the definition of “refugee” to be limited in scope in terms of geographic and temporal constraints, and for the definition to focus solely on the issue of persecution as a driver of migration.^[9] These restrictions were inherently exclusionary, and the initial refugee definition served to limit who could claim refugee status and to exclude those who could not from protection. By examining the initial deliberations between United Nations member states that occurred while shaping the definition of “refugee” under the 1951 Refugee Convention, it is possible to analyze the complexities of global powers and their leading interests in terms of outwardly supporting the institutionalization of human rights, while inwardly prioritizing national interests and power at the possible expense of providing comprehensive human rights that could be realized in practice. As the 1951 Refugee Convention and its corresponding refugee definition has served as the cornerstone for international refugee law since its conception, the intricacies and competing interests involved in these initial deliberations have deeply impacted the refugee regime from its advent to present day and play a direct role in the plight of the excluded modern refugee.

            This paper strives to explore the ways in which the initial deliberations over the 1951 Refugee Convention gave rise to an exclusionary definition of “refugee” under international law, and the modern implications of this exclusion. It begins with a literature review that serves to analyze scholarship regarding the power imbalances in the United Nations during the post-war period, how the impact of global power interests shaped the United Nations system, the 1951 Refugee Convention, and the ensuing definition of a refugee included in Article 1 of the Convention. This review additionally analyzes the exclusions that were institutionalized in refugee law as a consequence of power imbalances and competing interests, placing these exclusions in the context of modern limitations of the refugee definition. The paper then delves into a deeper exploration of the definition of a refugee under the 1951 Refugee Convention, examining the United Nations deliberations over the 1951 definition and their implications. By analyzing the refugee definition in modern practice, the paper highlights the shortcomings of this initial definition from a modern lens and connects these contemporary limitations to the initial deliberations and their restrictive outcomes. Finally, the paper examines the modern deficiencies of the refugee definition by utilizing the case study of the exclusion of and lack of protection for “climate refugees” under international law. This paper serves to establish that the initial United Nations deliberations over the 1951 Refugee Convention gave rise to a restrictive and exclusionary legal definition of “refugee” due to the intent of powerful states involved in its construction to protect their power and national interests that could potentially conflict with human rights obligations rather than to ensure that refugee rights were being comprehensively addressed. Setting this restrictive precedent at the start of the refugee rights regime directly produced modern circumstances in which contemporary categories of refugees are excluded from legal protections, necessitating the expansion of the refugee definition to provide adequate protections. 

Literature Review

A. Power Imbalances in the United Nations: The Impact of Great Power Interests in the Shaping of the United Nations System and the 1951 Refugee Convention

            The dichotomy in which global powers outwardly supported the institutionalization of human rights while inwardly exhibiting great hesitation due to the potential jeopardization of their national interests, which would come with comprehensive human rights, played a massive role in the shaping of the United Nations and the 1951 Refugee Convention.^[10] Mark Mazower explores the shaping of the United Nations Organization in his book “No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations.” He highlights that many commentators were disillusioned with the concept of the United Nations from its conception, viewing the world body as a hypocritical attempt to universalize human rights rhetoric in an extremely partial manner, while masking the consolidation of world powers.^[11] As he describes, international legal norms did not inspire widespread confidence during the World Wars, as they completely failed to both prevent the wars from starting and to regulate the manner in which the wars were waged. However, the dangers of failing to “check the Hobbesian excesses of  sovereign power” that were exhibited in World War II prompted nations to become more receptive to the concept of strengthening international law and legally safeguarding individual human rights.^[12] Though this vision of the institutionalization of human rights on a global scale was able to gain support, the creation of the United Nations was a “product of evolution, not revolution, and grew out of existing ideas and institutions” that were products of empire and favored consolidated power rather than egalitarianism.^[13] Furthermore, as described by Seth Mohney, the concept of human rights during and after World War II was far from self-evident. In his view, the period of the institutionalization of human rights has become deeply romanticized in history, as the deep power struggles and issues of realpolitik involved in the formation of the United Nations and the UDHR demonstrate a narrative of realism in which the development of human rights in this period is best described as a product of powerful forces constraining the scope of human rights content and the United Nation’s ability to enforce the institutionalized rights.^[14] Mazower highlighted these powerful forces through an analysis of the United Nations’ structural formation, namely that the Big Three powers (the United States, United Kingdom, and Soviet Union) were unprecedentedly receptive to the idea of the United Nations due to the fact that their permanent seats on the Security Council would grant them veto power, ensuring that the organization could not realistically work against them.^[15] For the United Kingdom in particular, these circumstances were especially attractive in terms of colonial interests. Colonizing states regarded the United Nations as an adequate mechanism to protect the colonial system, and the non-binding nature of the UDHR ensured that violations of these mechanisms could be easily ignored.^[16] Though the United Nations moved away from its colonialist acceptance as more and more colonies gained independence and diluted the colonizer stronghold in the General Assembly, the organization’s formation was pervaded with powerful colonial interests.^[17] Lucy Mayblin highlights how these colonial interests caused the British government to be highly hesitant in regards to the institutionalization of human rights, and caused their reluctance to sign any conventions that would apply to colonial subjects.^[18] Thus, as Mayblin, Mohney, and Mazower describe, the beginnings of the United Nations and the UDHR can be characterized by an attempt for great powers to deliberately exert their influence rather than promote comparative egalitarianism. While mechanisms such as the UDHR did attempt to institutionalize the individual human rights that proved more palatable to states that were wary of collective rights, the unenforceability of these instruments allowed powers to virtually behave as they pleased without legitimate fear of consequences.^[19]

            The power imbalances at the root of the United Nations and formation of the UDHR were just as paramount in the creation of the 1951 Refugee Convention. Irial Glynn describes how the United Nations Economic and Social Council (ECOSOC) requested that the organization study the situation of refugees and the stateless, with the goal of providing recommendations on how the United Nations could best offer protection.^[20] Representatives of the International Refugee Organization (IRO), an organization created during World War II to confront the refugee crisis created by the war, were primarily responsible for drafting what came to be the 1951 Refugee Convention.^[21] The Ad Hoc Committee on Statelessness and Related Problems working on the Convention ended up dominantly opposed to a generalized refugee definition without strict parameters, fearing that a general definition would be a “blank cheque” that would “undertake obligations towards future refugees, the origin and number of which would be unknown.”^[22]Glynn also analyzes the rift between “Europeanists” and “universalists” during the Convention revision process, establishing that those in the Europeanist camp believed the scope of refugee protection should be limited to Europeans displaced by the World Wars, while universalists disagreed with this geographic and temporal restriction.^[23] Though these restrictions were incorporated into the 1951 definition, authors such as Kazimierz Bem have examined the period between 1951 and 1967 in which new events made it more difficult to link refugee problems to the 1951 definition and thus necessitated the removal of these constraints in the 1967 Protocol Relating to the Status of Refugees.^[24] Lucy Mayblin highlights the British perspective regarding these constraints in particular, illustrating that while United Kingdom representatives were outwardly in favor of a broad definition, inwardly, the government was against signing conventions that applied to people in the colonies, due to awareness that the country’s treatment of colonized subjects would not meet human rights standards.^[25] Thus, their representatives  advocated for a colonial application clause to be included under the guise that doing so would somehow promote self-determination in the colonies, while privately hoping such a clause would mean that their empire would not be obligated to apply the principles of human rights conventions in their colonies. A territorial application clause was included in the final product of the Convention, which allowed states to decide whether to extend the Convention to their territories. Thus, colonial interests were able to exert their power in negotiations in order to safeguard their questionable national practices through the shaping of the United Nations itself and the 1951 Refugee Convention.^[26

B. Institutionalized Exclusions as a Consequence of Power Imbalances and Great Power Interests

The power imbalances inherent to the structure of the United Nations and the interests of global powers gave rise to an exclusionary definition of “refugee” under the 1951 Refugee Convention. In addition to the exclusion of non-Europeans examined in the previous subsection, the definition was also inherently restrictive due to its sole focus on persecution as a driver of migration. As Article 1 of the Convention states, the term “refugee” shall apply to any person who:

1. As a result of events occurring before 1 January 1951 and owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ^[27]
2.  

The phrasing of “well-founded fear of persecution” in this definition is the basis of many contemporary critiques of the refugee definition, as it excludes those in need of refuge that do not fit into this mold from refugee classification and its ensuing protections. Jane McAdam highlights the implications of this exclusion, noting that the Convention’s denial of refugee status to those who do not fit the definition leaves those outside of it to the mercy of international human rights law, which is “strong on principle but weak on delivery.”^[28] She notes that due to the gap between the theory of universal human rights and the realistic ability to exercise these rights, being able to claim refugee status is deeply important to those seeking protection.^[29] As Glynn describes, this persecution-specific definition stems directly from the circumstances that predominantly created refugees in the period of the World Wars, yet became acutely limited as global circumstances shifted and complicated both the designation of refugee status and asylum procedures.^[30] The same phenomenon applies to the inclusion of the “events occurring before 1 January 1951” classification, which was included by governments with the goal of limiting international obligations to those specific to the refugee crisis at hand, yet quickly became outdated as global circumstances evolved over time.^[31]

            The specificity of “reasons of race, religion, nationality, membership of a particular social group or political opinion” proved to be exclusionary in nature as well. By limiting the reasons through which those seeking refugee status could claim a “well-founded fear of persecution,” the definition limits the scope of who is eligible for inclusion. L.W. Marshall writes about these limited grounds for inclusion, noting that many modern circumstances, especially displacement due to environmental causes such as climate change, do not conform to the categories established in the definition.^[32] As a result of these restrictions ingrained in the 1951 definition of a refugee, the scope of who is considered a refugee under international law and offered the ensuing protections that come with that status is extremely limited. This limitation, as Marshall notes, has dangerous implications for modern refugees whose contemporary circumstances do not fit within the scope of the post-World War II definition.^[33

C. Modern Implications of Initial Exclusions

            There is a significant amount of existing scholarship exploring the ways in which the exclusivity of the original refugee definition restricts categories of contemporary refugees from the ability to claim refugee status and its ensuing protections. As previously discussed, L.W. Marshall argues that contemporary circumstances that create refugees are not included within the scope of the persecution-focused legal definition, and thus the definition of “refugee” must be expanded in order to ensure that the global community will adequately respond when modern refugees are in need of aid.^[34] Joan Fitzpatrick concurs, arguing that contemporary circumstances necessitate a broader and more inclusive definition, as the 1951 definition’s focus on persecution fails to consider modern drivers of refugee movement. She argues that while the concept of persecution has evolved alongside changing global circumstances since the conception of the original definition, basing status on persecution is too subjective and dependent on the interpretations of individual decision-makers to offer adequate legal protection to those seeking it.^[35] Through the example of the “climate refugee,” authors such as Marshall and Joanna Apap highlight the modern inadequacies of the refugee definition by demonstrating how it fails to define and protect contemporary categories of refugees, thus necessitating the expansion of the definition.^[36] Finally, Mayblin adds an important lens to the linkage between restriction in the initial formation of human rights mechanisms after World War II and the modern restrictive refugee regime in Britain by demonstrating that contrary to common belief, contemporary exclusion does not represent a deviation from “earlier moral standards”; instead, it represents a continuation of international standards that have been deeply rooted in exclusivity since their initial institutionalization.^[37]

This paper concurs with the authors mentioned thus far who believe that the exclusionary refugee definition should be expanded in order to comprehensively protect modern refugees. Through the analysis of initial deliberations behind the 1951 Refugee Convention and its resulting definition, it is clear that the prioritization of national interests over comprehensive international refugee protection contributed to the creation of an exclusionary, European-biased definition. The plight of the modern refugee, excluded from refugee status and its protections, is a product of this deliberate decision to restrict that can be traced clearly back to these initial negotiations.

The 1951 Refugee Definition: Forming A Legal Foundation for the International Refugee Regime Under the Influence of State Power Imbalance 

A. United Nations Deliberations Over the 1951 Refugee Definition

            Through a careful examination of archival records regarding the deliberations behind the 1951 Refugee Convention, specifically the refugee definition established in Article 1, it is clear that the state actors involved in the Convention’s formation navigated the deliberations with motivations that prioritized preserving national interests and avoiding unwanted legal obligations ahead of the comprehensive institutionalization of inclusive refugee rights, resulting in a restrictive definition. Bearing in mind modern criticisms of the original refugee definition that argue it is too narrow to offer adequate protections to contemporary refugees, analyzing these initial deliberations and the national interests at play in their outcomes highlight that the eventual decision to adopt a restrictive definition rather than a more expansive one directly led to the modern situation in which contemporary refugees are excluded from refugee status and its ensuing protections.

Analyzing the initial deliberations regarding the 1951 Refugee Convention and its definition of “refugee” contained in Article 1 is primarily undertaken through the examination of summary records of meetings of the Ad Hoc Committee on Statelessness and Related Problems. This committee, adopted through a resolution from ECOSOC in 1949, was composed of representatives from Canada, Belgium, Brazil, China, Denmark, France, Israel, Turkey, Venezuela, the United Kingdom, the United States, the International Refugee Organization, and the United Nations Secretary General.^[38] It is important to note the Western dominance of this committee makeup, as this configuration had a significant role in shaping the stances of states on the refugee topics at hand and thus in guiding the decisions of the committee. 

            From the beginning of committee deliberations in January of 1950, the primary issue at hand was how broad or narrow the scope of the definition should ideally be, which encompassed the question of how a refugee should be defined under international law. Before the committee could delve into the specifics of the refugee definition, discourse regarding the scope had to be navigated. At the onset of the process, the United States representation was the primary advocate for a narrow definition, while the representatives from France and the United Kingdom were in favor of a definition that was more generalized.  The French committee representative argued the following in favor of a broad scope at the committee’s second official meeting:

France, true to its tradition, would like the definition of the term “refugees” to be as generous as possible; since, before the proposed convention entered into force, new and undreamed-of categories of refugees might be created, the definition should be couched in general terms, if necessary with specific exceptions, but should not enumerate the categories to be protected. In view of the turbulent states of the world, no such list could ever be complete.^[39]

This perspective is immensely meaningful from a modern lens. First, it is interesting and suggests external factors at play that France advocated so strongly for an inclusive definition at the onset of negotiations but altered the state’s stance and joined the United States in favor of a restrictive definition mere months later. Secondly, analyzing this perspective within a contemporary context in which its argument proved correct demonstrates the massive, lasting implications of the eventual adoption of a narrow definition: in the seventy years since the definition was solidified, “new and undreamed of categories of refugees” were in fact created as a result of “turbulent states of the world.”^[40]These records unequivocally highlight that the powerful states involved in the formation of the refugee definition were well aware that creating a restrictive definition specific to the current global circumstances could very easily become unfit to adequately protect future categories of refugees that they could not fully anticipate, yet they chose to proceed restrictively despite this knowledge. This decision clearly establishes that national interests and the desire to avoid international legal obligations were prioritized before the desire to create a truly inclusive definition.

Returning to the technicalities of committee deliberations, the United Kingdom’s draft proposal for Article 1 of the Convention submitted the following definition for consideration:

(1) The provisions of this Convention shall, except where otherwise provided, apply to unprotected persons.

(2) In this Convention, the expression “unprotected persons” means:

(a) persons who are not nationals of any State; and

(b) persons who, being outside the territory of the State of which they are nationals, do not enjoy the protection of the State either because that State refuses them protection or because for good reasons (such as, for example, serious apprehension based on reasonable grounds, of political, racial or religious persecution in the event of their going to that State) they do not desire the protection of that State.^[41]

This proposed definition was far more inclusive in nature than the final product. The United States government, represented by committee member Mr. Henkin, vehemently opposed the concept of such a broad refugee definition, instead advocating for a clearly defined definition that prevented the possibility that the United Nations would have to “undertake responsibility in advance for all possible refugees who might become such as a result of unforeseeable happenings in the future.”^[42] As Henkin argued at the third meeting of the committee:

The United States Government considered that the categories of refugees to which the draft convention under discussion should apply should be clearly enumerated. Since the responsibility of the United Nations would be committed with regard to refugees placed under its protection under that convention, the extent of that responsibility must be known in advance, and to that end, it must be known what categories of refugees would be admitted to that protection. Too vague a definition, which would amount, so to speak, to a blank check, would not be sufficient.^[43]

Within the United States’ ideal definition, four specific groups of refugees were to be covered: refugees of World War I; refugees from the inter-war period and World War II; neo-refugees, which included those who had left their homes since the start of World War II as a result of “political, racial, or religious persecution,” but explicitly did not include any future refugee groups; and displaced persons and unaccompanied children.^[44] The United States representation clearly wanted to avoid the international legal obligations that would arise with a more general, inclusive definition, and thus advocated for the stricter approach, stating that the concept of imposing obligations on signatory states for “refugee groups the nature and number of which were unknown” was undesirable.^[45] This argument proved effective; additional global power representatives such as China and eventually France supported the adoption of a stricter definition.^[46] Thus, as of the sixth meeting of the Ad Hoc Committee on Statelessness and Related Problems, the Committee Chairman announced that the definition was to be more strictly defined in line with the United States’ proposal.^[47]

The reversal of France’s position on the broad versus restrictive scope continuum was an extremely significant turning point in the deliberation process. As discussed previously, French representation entered negotiations with a powerful argument for an inclusive definition, making the critical point that constantly shifting global circumstances necessitated a dynamic, broad definition that would protect categories of future refugees of which were not conceivable at that time.^[48] By drastically altering their position in favor of the United States’ restrictive proposition, the French representation voiced their support for an overall exclusive definition, for the time clause that only accepted refugees that became so prior to January 1, 1951 and for a European-specific scope.^[49] In justifying this sharp change, the French representative explained the undesirability of an expansive definition for signatory states in terms of the obligations it would bring.^[50]

It would be remiss to examine the competing interests of great powers within the Convention deliberations without additionally examining the ways in which less powerful states were dismissed or unable to exert influence during negotiations. The majority of states involved in deliberations supported the adoption of a broad, inclusive definition, including Belgium, Canada, Sweden, and Switzerland.^[51] The competing perspectives regarding the scope of the definition spurred intense contention, especially regarding the French representation’s reversal of perspective. Most notably, the representatives from France and Belgium entered such an aggressive debate regarding the situation that the records of this conversation were removed from the Travaux Preparatoires. A note from John Humphrey, the first director of the Human Rights Division of the UN Secretariat,  reveals that the French representative “accused the Belgians of smuggling refugees over the border on moonless nights.”^[52] The degree of controversy exhibited throughout negotiations further suggests that the concept of a broad, inclusive definition was favored by many states with relatively less power, yet the preferences of the majority of global powers won out in the end and resulted in a narrow definition.

 As a whole, the inclusion of temporal and geographic limitations in the 1951 refugee definition was a direct product of the United States-led effort to warn against the unwanted international obligations that a “blank cheque” would bring. It is extremely noteworthy that the United States never became a signatory to the 1951 Refugee Convention, as President Harry Truman was too wary of the obligations that would be brought about by their participation.^[53] Though deliberations began with numerous states arguing on behalf of a generalized definition, fear of the international obligations that would accompany an expansive definition spurred a change in stance on the part of the majority of committee representatives. This situation demonstrates the national interests at play in the construction of the refugee definition; though it was clear that a narrow definition would not encompass or protect future categories of refugees or refugees outside the scope of the World War-specific included distinctions, the committee still opted to enact a restrictive definition. Adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in Geneva in July of 1951, the finalized definition left obvious protection gaps that instituted exclusionary international refugee law from the start of the new, post-World War II global order.^[54]

The role of the United Kingdom in the deliberations of the refugee definition is also interesting to consider. The United Kingdom committee representation was the strongest advocate for an expansive refugee definition and for the omission of time and territorial clauses, yet other significant factors were at play in terms of prioritizing national interests, especially regarding colonization. Records of internal discussions in Britain concerning the issue of colonization in the new human rights era indicate that the government was well aware that adopting a refugee convention that included colonized subjects would impose international obligations on the empire that would force their hand into changing standards of treatment.^[55] The United Kingdom representation on the Ad Hoc Committee advocated strongly for the inclusion of a colonial application clause in the 1951 Refugee Convention, arguing that opting against such a clause would take away the autonomy of colonies to decide for themselves whether or not to participate in the Convention.^[56] As the General Assembly Memorandum regarding this argument states:

The Delegate of the United Kingdom emphasized that the question before the Committee was not whether it was right or wrong that a colonial system should still exist in the 20th Century but merely whether, with such a system in existence a colonial clause should be incorporated in the Covenant. The U.K. had never claimed that the peoples of the territories under its administration were sovereign and independent. No one could deny however that those peoples were constantly progressing along the road to self-government and independence, and it was precisely in order to take such progress into account that a colonial clause should be inserted in the Covenant. As a rule, the U.K. Government undertook no obligations on behalf of the colonies under any convention or treaty without consulting the local Governments. If the colonial clause were omitted, the participation of colonies in an international convention would become automatic and those territories would thus find themselves deprived of the right to decide for themselves. The opponents of the colonial clause would therefore seem to be illogical since they demanded autonomy for the peoples of the non-self-governing territories while at the same time denying them the right to decide for themselves.^[57]

Bearing in mind that the British government was extremely unwilling to enter any international agreement that would mandate human rights protections for colonized subjects, the argument for allowing colonizing states to make the decision on whether to extend or not extend human rights to their subjects was somehow supposed to grant colonies autonomy, is questionable at best.^[58] It is noteworthy that the states in support of the colonial application clause were colonial powers such as France and Australia, while those against it were the “colonized and formerly colonized peoples of the world” such as India, Pakistan, and Chile.^[59] The fact that colonized/formerly colonized peoples were not in support of the colonial application clause demonstrates that while the United Kingdom attempted to pass the clause’s inclusion off as beneficial to colonies and appeared to promote autonomy for colonized peoples, those who would actually be affected by its admittance vehemently disagreed with the United Kingdom’s portrayal of the situation.^[60] This case highlights that though global powers such as the United Kingdom were talented at maneuvering situations in order to advocate for national interests while maintaining an outward appearance of commitment to universal human rights, these efforts were often relatively transparent in execution. Though the colonial application clause did not end up in the Convention, the territorial application clause included in Article 40 of the Convention had virtually the same effect, in that it allowed signatory states the right to extend the Convention to “all or any of the territories for the international relations of which it is responsible.”^[61]

The United Kingdom representation subtly exerted national interest within the deliberations in other areas as well. For example, Sir Leslie Brass, the United Kingdom committee representative, advocated for reservations to be permitted in almost every article of the convention, as the United Kingdom wanted to ensure that they would be able to opt out of any part of the final product that did not coincide with their national interests.^[62] In addition, the Travaux Preparatoires for the 1951 Refugee Convention show that the United Kingdom representation advocated for the alteration of the phrasing of the originally proposed Preamble to the Convention, suggesting that: “Considering that the United Nations has, on various occasions… manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of these fundamental rights and freedoms” be changed to “Considering that the United Nations has, on various occasions… manifested its profound concern for refugees and the need for their international protection.”^[63] This minor but significant change served to remove the statement that refugees would be assured the “widest possible exercise of these fundamental rights,” as the United Kingdom representation did not want to make that broad assertion and subsequently have to deal with its ramifications.^[64]

Examining these understated exertions of national interest within the convention deliberations clearly highlights that while global powers were outwardly committed to the comprehensive institutionalization of human rights and refugee rights, inwardly the protection of national interests took priority. It is especially fascinating to view this phenomenon through the lens of the United Kingdom, as it is a prime example of a state that despite outwardly advocating for an expansive and inclusive refugee definition, held complex ulterior motives during the negotiations. The position of committee members on this scale of national versus international interests was very interesting, as they situationally possessed conflicting loyalties. A comment by the Danish representative during deliberations encapsulated this struggle well: “It was true that the representatives in the Committee were speaking as representatives of their respective Governments and, as such, should not propose anything which they knew to be unacceptable to their own Governments. On the other hand, the task of the Committee members was not limited to the presentation of what their own Governments would approve, for they also represented the entire membership of the United Nations and it was their task to prepare an instrument acceptable to all or most of the Members.”^[65] While it was understandable that state representatives on the committee should strive to build a document that is favorable to as many members of the United Nations as possible, these representatives were realistically allegiant to the governments of their respective states and thus primarily advocated for national interests. 

Analyzing the minute details of the deliberations regarding the refugee definition under the 1951 Refugee Convention highlights the harsh realities of the situation: while state representatives worked to build the definition of a refugee under international law, state interests and desire to avoid unwanted international obligations had a deep impact on deliberations that resulted in a narrow and exclusive refugee definition. Records of these deliberations unequivocally establish that the committee members were well aware that a restrictive definition would fail to comprehensively protect future refugee categories that did not fit the mold of the current global circumstances, yet the potential of creating a definition that could offer dynamic, comprehensive protections was purposefully rejected. This intentional decision to exclude directly produced the modern situation in which contemporary refugees are denied access to the restrictive status of refugee, a situation that could have been prevented if an expansive understanding of “refugee” had been originally adopted.

B. The 1967 Protocol Relating to the Status of Refugees: A Partial Solution

            The passage of the 1967 Protocol relating to the Status of Refugees marked a partial solution to the limitations of the 1951 Refugee Convention. Changing global circumstances following the passage of the 1951 Convention caused new refugee situations to be created, and the geographic and temporal restrictions included in the original refugee definition thus needed to be updated. To that end, the Protocol states that “Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,” state parties to the Protocol have agreed under Article 1 that:

For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article I of the Convention as if the words “As a result of events occurring before 1 January 1951 and…” and the words “…as a result of such events”, in article 1 A (2) were omitted. 

The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save those existing declarations made by States already Parties to the Convention in accordance with article I B (I) (a) of the Convention, shall, unless extended under article I B (2) thereof, apply also under the present Protocol.^[66]

By removing the temporal and geographic limitations from the refugee definition, the Protocol expanded the qualifications for refugee status to include refugees that emerged from circumstances unrelated to the World Wars. This was extremely beneficial from a lens of removing European bias, as the process of decolonization allowed more state actors to enter the international stage and caused significant numbers of refugees to move towards locations outside of Europe.^[67]

            However, the removal of the temporal and geographic limitations of the 1951 definition did not represent a complete solution to the issue of exclusivity in the refugee definition. As briefly discussed in the literature review, the preservation of the phrase “owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion” throughout the 1967 modification maintained the narrow scope and exclusionary quality of the definition.^[68] Though precise examinations of the deliberations regarding the 1967 Protocol fall outside the scope of this paper, the decision to maintain the persecution-focused definition had the consequence of the continued exclusion from refugee status of those seeking refuge that do not fit into the persecutory mold. This phenomenon has prompted the majority of modern criticism regarding the failure of the modified refugee definition to adequately offer comprehensive protection to contemporary refugees, an example of which will be explored in the following section of this paper.

 Case Study: The Lack of Protection for “Climate Refugees” Under International Law

A. Implications of Modern Exclusion from Refugee Status

            As the state representatives who constructed the original refugee definition anticipated, modern circumstances have shown that “new and undreamed-of categories of refugees” have indeed been created as a result of “turbulent states of the world,” and thus the narrowness of the definition has created a situation where contemporary refugees exist in a legal gap in which much-needed protection is often denied.^[69] Many different opinions regarding how to rectify this legal gap exist among experts, but there is a general consensus that the refugee definition should be reevaluated and potentially expanded to better reflect modern circumstances. While the foundational instruments of international refugee law that have been discussed throughout this paper succeeded in establishing unprecedented protections for refugees, their lack of consideration towards potential sources of refugee influx that were unrelated to subject of persecution arguably necessitates expanding the definition of refugee under international law a second time in order to encompass categories of refugees that are unique to the twenty-first century.

B. The Case for “Climate Refugees”

            A prime example regarding the necessity of expanding the refugee definition in order to provide adequate protection to modern categories of refugees is the case of “climate refugees.” The term “climate refugee” has not been formally recognized or defined under international law, but is commonly used in reference to the category of people who are driven to migrate by environmental factors, especially climate change.^[70] The case of climate refugees is a robust example of the modern shortcomings of the restrictive refugee definition, as the representatives who constructed the original definition in 1951 could not have anticipated that the climate crisis would escalate to the point where it would create such a staggering number of refugees. However, this does not excuse the choice to initially adopt an exclusionary definition; though the state representatives could not have anticipated the specific category of climate refugees during the 1951 Refugee Convention deliberations, they did generally anticipate modern categories would come into existence even if they could not predict exactly what these categories would be.

            As the climate crisis continues to escalate and to render more and more areas of the planet unfit for human habitation, the number of people who are being displaced by its effects will increase exponentially. Statistics from the Internal Displacement Monitoring Centre highlight that over seven million people were internally displaced by disasters in 2020 alone (this figure is a “significant underestimate), and the number of people that will be displaced both internally and externally will continue to surge.^[71] This data indicates that millions of people will be catastrophically impacted by the increasing severity of the climate crisis, yet climate refugees have not been defined under international law and no protective mechanisms exist. As most externally displaced climate migrants are not seeking refuge due to persecution, they generally do not fall under the definition of refugee highlighted in the 1951 and 1967 definitions. Consequently, these migrants are forced to confront the often extensive and exclusionary immigration systems of the countries into which they want to relocate. Without an international system of accommodation for the millions of people who will inevitably be displaced due to climate change as the number of climate refugees continues to swell, climate refugees are in an extraordinarily precarious position. 

            The connection between the decision to adopt a narrow definition of refugee during the original deliberations over the 1951 Refugee Convention and the current plight of climate refugees not only highlights the consequences of the intentional creation of an exclusionary definition, it also provides a clear example of the power imbalances and ulterior state interests that dominated the 1951 deliberations, and of the central desire of powerful states to avoid international legal obligations. As the climate crisis escalates, the states that did the least to cause it are the same states that are experiencing its consequences most severely, while the powerful states that created the climate crisis through excessive greenhouse gas emissions remain relatively unscathed.^[72] Potential means of rectifying the protection gap for climate refugees would likely include compensatory justice principles that would place the burden of managing the increasing number of climate refugees on the states that caused the climate crisis through international obligations, which is a deeply unappealing possibility for powerful states.^[73] By extension, the United Nations defining and offering protection to climate refugees could invoke obligations on powerful states, making it clear why a definition or mechanism for protection has not yet been reached. Thus, the case of climate refugees highlights two important realities regarding refugee definitions. Primarily, the purposeful decision at the onset of deliberations over the 1951 Refugee Convention to adopt a narrow definition of refugee created a modern situation in which contemporary categories of refugees are excluded from status and protection. Secondly, the current global circumstances under which less powerful states are being harmed by a crisis directly created by powerful states, yet powerful states are hesitant to extend status and protection due to fear of creating international legal obligations, highlights how national interests on the part of powerful states are still being prioritized over the comprehensive institutionalization of human rights in present day, just as they were in 1951. 

It is important to note that while there is a consensus amongst experts that the persecution-focused refugee definition is objectively restrictive and excludes categories of individuals that are displaced by modern circumstances, the potentially negative connotations of being labelled a “refugee” and the general inadequacy of the international human rights framework regarding refugees, especially concerning enforcement, mean that the idea of expanding the definition is more nuanced than it seems at first glance. Though alternative methods to working within the current international refugee framework for protecting persons displaced by climate change is outside the scope of this paper, it remains necessary to emphasize that prioritizing the autonomy of the persons and cultures being impacted is essential in determining protection mechanisms, and that any reevaluation of the international human rights and refugee systems should be realistic about their abilities to comprehensively realize rights and protections in practice. The implications of this are that while expanding the refugee definition is an important part of protecting those displaced by causes not based in persecution, it will logically serve as one component in what will ideally be a range of innovative, inclusive approaches to the issue of climate displacement.

Conclusion

            When analyzing the exclusionary, often morally bankrupt characteristics of the modern international refugee regime, it is dangerous to idealize the roots of the United Nations and the organization’s ensuing institutionalization of human rights. Recognizing the development of human rights and refugee protections in the aftermath of World War II for the complex and contentious period it was makes it far more feasible to contextualize the contemporary flaws of the refugee regime, as it is apparent that exclusion, prioritization of national interest, and power imbalances have been representative of this regime since its formal conception. The examination of the initial United Nations deliberations over the 1951 Refugee Convention conducted in this paper clearly highlights how the creation of a restrictive and exclusionary legal definition of “refugee” was the result of the intent of powerful states involved in its construction to protect their power and national interests that could potentially conflict with human rights obligations, and how setting this intentionally restrictive precedent at the advent of the refugee rights regime directly produced modern circumstances in which contemporary categories of refugees are excluded from legal protections. These realities demonstrate the necessity of expanding the refugee definition in order to provide comprehensive, inclusive protections to modern refugees. While exclusion has been shown to be a foundational characteristic of the international refugee regime, embracing inclusivity is absolutely necessary for the creation of a concept of “refugee” that genuinely reflects dedication to the respect of the inherent, fundamental human rights of all people.

References

^[1]United Nations, “1942: Declaration of The United Nations,” n.d., 

^[2]“Universal Declaration of Human Rights,” United Nations, n.d., https://www.un.org/en/universal-declaration-human-rights/.  

^[3]Ibid. 

^[4]Giada Zampano, Liam Moloney, and Jovi Juan, “Migrant Crisis: A History of Displacement,” The Wall Street Journal, September 22, 2015. http://graphics.wsj.com/migrant-crisis-a-history-of-displacement/. 

^[5] “Universal Declaration of Human Rights,” United Nations, n.d, https://www.un.org/en/universal-declaration-human-rights/.  

^[6] “The 1951 Refugee Convention.” United Nations High Commissioner for Refugees, n.d., https://www.unhcr.org/en-us/1951-refugee-convention.html. 

^[7] Ibid.

^[8] Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press, 2013).

^[9] Kazimierz Bem, “The Coming of a ‘Blank Cheque’ — Europe, the 1951 Convention, and 

the 1967 Protocol,” International Journal of Refugee Law 16, no. 4 (2004): 609-627. 

^[10] Mazower, No Enchanted Palace.

^[11] Ibid.

^[12] Ibid.

^[13] Ibid.

^[14] Seth Mohney, “The Great Power Origins of Human Rights,” Michigan Journal of 

International Law 35, no. 4 (2014): 827-860.

^[15] Mazower, No Enchanted Palace.

^[16] Ibid.

^[17] Ibid. 

^[18] Lucy Mayblin, “Colonialism, Decolonisation, and the Right to Be Human: Britain and the 1951 Geneva Convention on the Status of Refugees,” Journal of Historical Sociology 27, no. 3 (2014): 423–41. 

^[19] Ibid.

^[20] Irial Glynn, “The Genesis and Development of Article 1 of the 1951 Refugee Convention,” Journal of Refugee Studies 25, no. 1 (2012): 134–148. 

^[21] Ibid.

^[22] Ibid.

^[23] Ibid.

^[24] Bem, “The Coming of a ‘Blank Cheque’,” 609-627.

^[25] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41. 

^[26] Ibid.

^[27]UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.

^[28] Jane McAdam, “The Legal Status of Persons to Whom the Refugee Convention Does Not 

Apply,” Complementary Protection in International Refugee Law, (2011): 197–251.

^[29] Ibid.

^[30] Glynn, “The Genesis and Development of Article 1 of the 1951 Refugee Convention,” 134–148.

^[31] Ibid.

^[32] L.W. Marshall, “Toward a New Definition of ‘Refugee’: Is the 1951 Convention Out of 

Date?,” International Journal of Disaster Medicine 37 (2011): 61–66.

^[33] Ibid.

^[34] Ibid.

^[35] Joan Fitzpatrick,  “Revitalizing the 1951 Refugee Convention,” Harvard Human Rights 

Journal 9 (1996): 229-254.

^[36] Joanna Apap, “The Concept of ‘Climate Refugee’: Towards a Possible Definition,” 

European Parliamentary Research Service. European Parliament,  (2019). 

^[37] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41. 

^[38]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons – Memorandum by the Secretary-General,” UNHCR, January 3, 1950. 

^[39]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Wednesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.

^[40] ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Wednesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.

^[41]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, United Kingdom: Draft Proposal for Article 1,” United Nations High Commissioner for Refugees, January 17, 1950.

^[42]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Third Meeting Held at Lake Success, New York, on Tuesday, 17 January 1950, at 3:00 p.m..,” United Nations High Commissioner for Refugees, January 26, 1950.

^[43]Ibid.

^[44]Ibid.

^[45]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Sixth Meeting Held at Lake Success, New York, on Thursday, 19 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.

^[46]Ibid.

^[47]Ibid.

^[48] ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Tuesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26,1950.

^[49]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Thirty-Third Meeting Held at the Palais des Nations, Geneva, on Monday, 14 August 1950, at 11:00 am.,”  United Nations High Commissioner for Refugees, September 20,1950. 

^[50]Ibid.

^[51] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41.

^[52] John P. Humphrey and A. J. Hobbins, On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights (Montreal: McGill University Libraries, 2000).

^[53]“The 1951 Refugee Convention,” Immigration History, last modified September 3, 2019. 

^[54] “Convention Relating to the Status of Refugees,” United Nations, n.d.

^[55] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,”

423–41.

^[56]General Assembly, “Draft Convention Relating to the Status of Refugees, Memorandum Prepared by the Legal Department,” United Nations High Commissioner for Refugees, July 3, 1951. 

^[57]Ibid.

^[58]Brook, N.  Notebook: Cabinet Minutes. Cabinet Papers. CAB 195/5, The National Archives: Public Record Office. 1947. 

^[59] Mayblin, “Colonialism, Decolonisation, and the Right to Be Human,” 423–41. 

^[60] Ibid. 

^[61]UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.

^[62]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Forty-Third Meeting Held at the Palais des Nations, Geneva, on Friday, 25 August 1950, at 10:30 a.m.,” United Nations High Commissioner for Refugees, September 28, 1950.

^[63]United Nations High Commissioner for Refugees. “The Refugee Convention, 1951: The Travaux Préparatoires 

Analysed with a Commentary by Dr. Paul Weis.” UNHCR, n.d. 

^[64]Ibid.

^[65]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Sixth Meeting Held at Lake Success, New York, on Thursday, 19 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 28, 1950.

^[66]UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267.

^[67]Bem, “The Coming of a ‘Blank Cheque’,” 609-627.

^[68] Marshall, “Toward a New Definition of ‘Refugee’,” 61–66. 

^[69]ECOSOC, “Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Second Meeting Held at Lake Success, New York, on Wednesday, 17 January 1950, at 11:00 a.m.,” United Nations High Commissioner for Refugees, January 26, 1950.

^[70] Apap, “The Concept of ‘Climate Refugee’: Towards a Possible Definition.” 

^[71] “2021 Global Report on Internal Displacement,” Internal Displacement Monitoring Centre.

^[72] Apap, “The Concept of ‘Climate Refugee’: Towards a Possible Definition.”

^[73] Ibid.

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This piece was published in the Global Issue Print Edition (Volume 12)

Abstract

This research paper constitutes a critical analysis of the Keystone International Economic Organizations (KIEOs) specifically the World Bank and International Monetary Fund and the imposition of Structural Adjustment Policies (SAPs) in Argentina. After providing an historical exegesis of the nation’s tumultuous political economic history, I deploy critical analytic framework, most popularly known as Dependency Theory to uncover the pernicious methods by which these KIEOs have forged unbalanced relations between developing countries and themselves through a wide-ranging structural adjustment regime. I utilize a vast literature to demonstrate the aggressive liberalization that occurred in Argentina after the Perónist regime. I trace this gradual cycle of economic liberalization and crisis through the course of the 1970s to the 1990s and further examine these policies’ effects on trade, labor, capital accumulation, monetary relations to the USD, and the dilution of national institutional determination as a direct result of structural adjustment. I conclude this paper with an extensive analysis of the relationship between SAP regimes and its specific effect on the institutional dependency/determination of Argentina. 

Introduction 

The degree of political determination that a nation can exercise is very often contingent on its ability to determine a broad index of economic structures and practices. This degree of autonomy is also heavily associated with the specific contours of the global economic system within which it is placed. The nation of Argentina is no exception. It is no secret that within the vast system of the global economy, certain regions have been deferentially treated in relation to others. Some of these very same regions have intentionally structured the global political economy (GPE) in particular ways based on their national interests. The tumultuous history of political economy in Latin America garnered widespread attention in the 20^th century and has been the impetus for rich theoretical insights into the inner workings and power struggles of the GPE. This paper focuses on the structures and practices which characterize the current landscape of international political-economic relations and their effect on Argentina in the 20^th-century. 

This research paper aims to thoroughly explicate the political economy of Argentina and the structural adjustment programs (SAPs) that it has implemented at the behest of keystone international economic organizations (KIEOs) such as the International Monetary Fund (IMF) and the World Bank (WB). Here, a historical and theoretical exegesis of the SAP regime will be instructive to my analysis. In the process, I tackle numerous aspects of the GPE concerning Argentina, including the country’s debt and monetary crises, its trade regimes, and the overarching transition towards economic liberalization in the late 20th-century. I will further examine SAPs and Argentina through the lens of the critical political-economic theory known as dependency theory. In doing so I attempt to construct a political theory of economic institutional determination and sustainable development and growth. In this paper, I argue that the implementation of structural adjustment policies in Argentina by KIEOs such as the IMF and World Bank have had a negative effect on development and curtailed institutional economic determination in the country. I will be deploying dependency theory as the analytical framework to explain the role of SAPs in the developmental and institutional shortcomings as well as to explain the transition toward neoliberal hegemony imposed on Argentina. 

During the 1980s, many heavily indebted developing nations adopted an index of economic restructuring policies now famously referred to under the structural adjustment umbrella. A wide body of scholarship strongly suggests that the policy prescriptions attached to the idea of structural adjustment were not merely a host of prescriptive economics measures aimed at increasing growth in developing nations but consisted in a systematic subversion of existing institutions to conform to specific workings of the market.^[1] Essential features of these programs included industrial privatization of formerly nationalized sectors, regulation rollbacks, and currency convertibility schemes that aimed to attach capital inflows with the nation’s internal currency. It is important to note that many, if not all, of these policy reforms, were grudgingly accepted by the politicians of developing countries through “conditionality” programs wherein debt-ridden countries received much-needed loans from these KIEOs on the condition that they carried out policy changes. These reforms saw entire state institutional practices and administrations discarded under the auspices of capital aid and necessary macroeconomic stability offered by such programs. 

Argentina’s national economy, like many others, became a subject of a structural adjustment regime dominant among developing countries during the outset of the neoliberal era. This era, however, is only the latest juncture to emerge out of the paradigmatic relations of the post-war global economy between the core and periphery nations. Prospects of development and the imposition of developed countries’ mode of governmentality was one of the main theoretical subjects of the highly popular development framework in the 1960s known as dependency theory. Dependency theory was the theoretical brainchild of Marxist and structuralist approaches to development relations that had a targeted focus on development in Latin America.^[2] 

Dependency theory was frequented by developmentalist intellectuals, including Argentine economist Raul Prebisch, Andre Gunder Frank, and former Brazilian president Fernando Henrique Cardoso.^[3] The primary thrust of their work, and the theory generally, was to dissect the structural factors of development in Latin American regions and the obstacles to development by the intentional structural relations of global trade and finance between DCs and LDCs. The dependency school rejected conventional notions that predicted increasing growth and modernization by way of global trade and financial integration of these LDCs and instead argued that periphery nations would encounter declining terms of trade.^[4] The theory imputes a structural and relational struggle between the two paradigms of the GPE in which developed nations not only benefit from favorable trade conditions but also impose structural practices in LDC economies that ultimately disadvantaged them and further reinforced a dependent relationship. Therefore, a central claim of dependency theory is that LDCs are bound to experience sclerotic growth by the very fact of their economic association with DCs.

Such a relationship encourages financial and trade penetration into these LDCs by DCs. More than this, dependency theory aimed to shed light on the internal factors that simultaneously reinforced the relation and stifled prospects of autonomous sustained growth over time. For instance, as Tausch notes, the advancement of modernization brought about by dependent development limits the formation of a national entrepreneurial and middle class and consolidation of labor strength. The integration issue, argued Sunkel, was its partial nature which saw a certain class of national elites and entrepreneurs engage with and incorporated into the enterprise of transnational corporations.^[5] The remainder of the workforce consisting of the middle and working-class would be subjected to disarticulation from the social and economic benefits of capital penetration thus consolidating a stark class divide. In response, developmentalist economists like Prebisch encouraged protectionist trade policies such as import barriers which would serve to protect LDC industries from exploitation by core countries; many of which were adopted by politicians during this period only to be reconstituted or completely abandoned during the neoliberal turn.^[6] 

A Brief History of Argentine Political Economy

It is often remarked that Argentina is the only country to be regarded as developed at the beginning of the 20th-century only to become a developing one at the beginning of the twenty-first. A massive influx of foreign capital helped to bolster an export market of agricultural goods such as grain, meat, leather, and wool. Overall, the large South American country experienced rapid economic growth during the early twentieth century with per capita income higher in the country than many prominent European countries shortly before the onset of the first world war.^[7] Some scholars, however, have argued that much of this growth occurred in lieu of equitable distributive economic policies.^[8] The agricultural sector, for instance, was dominated by wide-reaching privatization controlled by an oligarchy that would take advantage of most of the benefits of agricultural expansion prior to World War I and exercised cast influence in political affairs as well.

The poltico-economic trajectory of the nation would change fundamentally with the elections of its most pivotal political leader Juan Domingo Perón in 1946. Perón had founded the nationalist-populist Justicialist party in 1945 after a military junta seized power in 1943. He was democratically elected in 1946 based on intransigently populist sentiments. Perón’s presidency has been categorized as dictatorial and have even drawn comparisons to fascistic regimes in twentieth-century Europe, with observers confirming that Perón drew much inspiration from fascism’s tenets.^[9] “Perónism” consisted of inherently nationalistic economic and political policies which emphasized the necessity for national economic independence and determination as well as the assurance of social justice and labor security.^[10] Both Juan Perón and his wife (and eventual successor) promoted protectionist policies as prescribed by Raul Prebisch. Immediately after World War II, the Peróns utilized policy instruments such as “import and export taxes, import controls, exchange rate and wage policies to turn the domestic terms of trade between agricultural and manufactured goods in favour of the urban industrial and working classes.”^[11] Peronism’s communitarian ethos, underscored by fervently distributive policies to the urban working class and strong political alliances between his administration and the labor union, garnered wide support from the voting base throughout his tenure. Support for Peronism largely persists to the present day.^[12]

Unadulterated Peronism and its attendant economic policies did not go unchallenged, however, nor were these policies unassailable when it came to prospects of economic prosperity. Protectionism would eventually see the decline of agricultural production and sclerotic export sectors which contributed to the country’s balance of payments crises in the 1950s.^[13] Eventually, Perón was ousted in 1955 and exiled to Spain for nearly two decades before dying of pneumonia in 1974. Shortly after, Juan Perón’s wife Isabel succeeded her husband as president of Argentina. The country continued to face mounting tumult due to several economic and political crises. A military coup against the democratically elected Isabel eventually usurped power and usher in the transition toward neoliberal governance in the country.^[14] 

The military junta which organized against Isabel Perón’s democratically elected government began to introduce initial neoliberal reforms. During the seven-year military dictatorship (1976-83), numerous policy measures were implemented which only vaguely tended down the path of the neoliberal revolution taking place across the globe during the late 1970s and 1980s. Known as “Proceso,” this dictatorial regime designed its policies to favor increased financial speculation. Financial reforms occurring during 1977 made financial operations more flexible and foreign debt in Argentina much more prevalent. Argentine foreign debt raised from $7 billion USD at the beginning of the dictatorship to $46 billion USD at its end in 1983.^[15] The military dictatorship collapsed shortly after their defeat in the short-lived Falklands War with Great Britain in 1982. Newly elected president Raul Alfonsin of the Union Civica Radical party (UCR) would come to inherit a rapidly corroding national economy, inflation and currency debt crisis along with the national outrage associated with such crises.^[16] Crises for which he and his eventual successor, Perónist leader Carlos Menem, would respond with more aggressive neoliberal reforms and structural adjustment policies than had been heretofore achieved in the country. The 80s and 90s were two pivotal decades in Argentina marked not merely by economic and political crises but a sharp and widespread transition in policy and governance practices toward neoliberalism that would have lasting impacts on its prospects for political determination and economic development.

The Role of Structural Adjustment Programs 

The KIEOs, especially the IMF and WB, have been two mainstays of post-war international economic coordination and governance as well as being the fundamental structural vestiges of economic distribution and development. SAPs have been a tool widely deployed by the KIEOs to address underdevelopment in the global south for the last three decades with varying degrees of effectiveness. Blanton et. al. mentioned other IMF and WB lending programs such as Stand-By Agreements, Extended Fund Facility programs. SAPs are comprised of a combination of two types of policies disambiguating stabilization and structural adjustment. The former is tackled by the IMF and the latter the World Bank.^[17] According to the researchers, stabilization policies are those that attempt to “return an economy to equilibrium path that was followed prior to a shock” and are typically short-term and corrective in nature.^[18] Meanwhile, structural adjustment takes aim at a more sustained growth and development issues by addressing “better supply responses to market liberalization and efficient macroeconomic management.” Moreover, the major objectives of SAPs are as follows: “(1) macroeconomic stability; (2) the need for prices to reflect relative scarcities; and (3) a reduction in the role of the state in economic affairs.” These objectives are achieved by employing the following policies instruments and/or practices: 

To achieve the objectives of SAPS, the primary policy instruments employed are (1) exchange rate adjustment, primarily devaluation; (2) control of the money supply and credit ceilings; (3) interest rate policy, allowing interest rates to respond freely to market forces; (4) debt rescheduling; (5) fiscal policy, including measures to reduce public expenditure and mobilize resources; (G) deregulation of prices of goods, services and factor inputs; (7) liberalization of trade and payments. (Kayira & Hope 1997, 118)

SAPs have long been touted by the IMF and WB as viable solutions for developing regions to tackle institutional challenges. More than this, however, it has long been argued that the SA policy regime, including and especially in Argentina, was a forceable imposition of liberalized economic governmentality at the behest of the United States, which then and now wielded vast influence on the incumbent KIEOs. As I will attempt to show, SAPs affected numerous aspects of Argentina’s economy since its subtle to rapid transition to a neoliberal mode of economic governance. Effects that run the gamut of trade, currency stability, union power, and productive capacity.

Effect on Labor and Trade 

One prevailing policy conditionality that came along with the SA or the the “Washington Consensus,” was the immediate liberalization of trade. In the literature, trade liberalization is often measured as cross-industry tariff cuts on imports.^[19] The Menem years, beginning with his election in July 1989, saw a stark reversal of the import substitution industrialization (ISI) strategies in place during the three decades preceding the Second World War.^[20] National and regional protectionism seen in import substitution and targeted sector subsidies between Argentina and its larger neighboring countries were rapidly replaced by some of the most sweeping liberalization reforms in the global South during this period. Acosta and Montes-Rojas point to the large import tariff reductions implemented on frequently imported resources to the country such as wood, paper, chemical and petrochemical resources, and electrical equipment.^[21] The large commercial regional trade bloc agreed between Argentina’s large neighbors (Brazil, Paraguay, and Uruguay), known as MERCOSUR, was instrumental during this period of tariff reduction too. Their data indicate a sustained decline in import tariffs from 21 per cent in 1992 to 14 per cent in 2003 and an inverse rise in trade openness as a measure of GDP from 14 per cent to 39 per cent across the same period.^[22] An associated rise in international imports from $6.8 billion USD in 1990 to $32 billion USD in 1998 and an import of goods and services/GDP ratio increase of 12.6 per cent to 22.2 per cent in 2000 are notable here as well.^[23]

Londero theorizes an effect on price responsiveness on exports due to trade liberalization. Essentially, because trade liberalization opens up the availability of substitutes for synthetic and non-traded goods, price responsiveness of import demands will likely increase.^[24] This was the main impetus for the import substitution prescriptions offered by Prebisch in the 1960s as means of trade protection for Argentina’s heavily industrialized sectors. Londero argues that reducing protections for exports has a strong positive relationship with the reduction of “labor intensive manufactures in total exports and to an increase in the share of more rent intensive products.”^[25] Liberalization, therefore, may lead to decreased price responsiveness of a country’s exports. Argentina during the latter decades of the twentieth century experienced one of the greatest increases in import coefficients in Latin America.

Structural adjustment, whether explicitly imposed by the KIEOs or tacitly implemented, underwrote the intention for global economic liberalization tout court. This is to say, this policy regime and alternate form of economic governmentality bore credence to a rapidly transitioning global economy in which American and British neoliberal economic policies of monetary, trade, and industrial liberalization were instituted as the new norm. That said, the SA policies modestly undertaken first by Alfonsin and then more aggressively by Menem had staggering effects on industry and labor both on economic and political levels. According to Ejdesgaard-Jeppesen, Menem’s introduction of economic reforms based on intense liberalization, wage restraints, privatizing welfare sectors and other industries, and cutting down public expenditure, was conducted to attract foreign capital investment and gain favor with the IMF and WB to negotiate new credits and payments.

Alfonsín and Menem’s administrations saw Argentina go from being one of Latin America’s industrial powerhouses, on par with that of South Korea in terms of technological integration into industry and industrial production, to an industrially sclerotic and socially disarticulated nation. Specifically, the Economic Emergency Law passed by Menem in 1989 which eliminated a number of subsidies for manufacturing eliminated redundancies for public sector employment and a State Reform Law which legalized the wide-scale privatizations that took place.^[26] Under the new regime of accumulation occurring during the mid-1970s dictatorship, which marked the neoliberal structural turn in Argentina, ISI was slowly beginning to be abandoned. Under import substitution and protectionism, large corporate conglomerates in Argentina existed in equanimity with medium and small-sized businesses.^[27] Other major effects of liberalization in this era were the shift in employment rates and hiring practices. The privatization of public companies and enterprises during the 80s and 90s saw a marked reduction in the total share of public sector employment between 1990 and 2000 all across Latin American, with some of the most severe reductions in public sector labor occurring in Argentina.^[28]

Using a time series between 1980-2001, Cruces et al. examines the strong connections between Argentina’s SAPs, including and especially trade liberalization and the increase in labor informality. Informality can be described as a lack of both taxation and regulation compliance by employers and a lack of social protection for workers. This may also include limited ability to contest for higher wages, social security, and other benefits Across the time frame of the data set, tariffs fluctuated considerably but a continuous downward trend was recorded from an average of 40.95 per cent in 1980 to 18.73 per cent in 2000, only for it to rise dramatically in 2001 to 25.51 per cent; this is presumably due to the economic collapse experienced by Argentina during these two years discussed later in the paper. Acosta and Montes-Rojas’ work show similar results that within both natural resource industry and service industry, labor informality from 1992-2003 increased steadily across crucial manufacturing sectors. 

Their study’s findings further corroborate Teubal’s work to the extent that labor informality experienced as a result of trade liberalization after SA implementation had a more disproportionate impact on labor belonging to smaller firms. In their words, “In the cross-section, inter-industry differences in tariff cuts increase labor informality being the effect differentially stronger in industries with a larger share of small-size firms.”^[29] The neoliberalization of Argentina during these decades is defined by numerous approaches to economic liberalization and financialization that does not strictly harp on trade openness as described here. Nonetheless, the reversal of ISI was a serious hamper in the country’s development prospects. As a result, income distribution began to regress, wages and income of lower-income groups declined, and unemployment and poverty in numerous forms increased.^[30] Much of these trends, I suggest are the direct results of the specific aspect of trade liberalization within the SA regime adopted since 1983 after the fall of the Proceso dictatorship. Liberalization, in essence, spelt a new form of capital consolidation and accumulation, privileging larger conglomerates of old and new and disarticulating capital from workers.^[31] Menem’s reforms came as a surprise to Argentine labor at the time of implementation. Menem, then leader of the Perónist party, campaigned on the distinctly nationalist protectionist sentiments and values as the Peróns had practiced only to eschew the close ties to labor that had fostered political cooperation between governmental institutions and labor in the 40s and 50s. Perónism had then (and still does) a massive economic and symbolic gravity in the lives of labor unions and ordinary working-class Argentines who viewed Perón as the man who proffered to them a dignified and secured position within the economy and society.^[32] The subsequent gradual transition to liberalization and asymmetrical capital accumulation can be viewed, in their eyes at least, as no less than political betrayal, regardless of the perhaps earnest economic stabilization efforts of Alfonsín and Menem.

Monetary Crisis 

When considering the impact of SA, especially as it came to define Argentina from the mid-1970s onward, one would be remiss to not thoroughly examine the role that the neoliberalization of finance and currency in the country had to play in its various crises. A confluence of factors contributed to the particular direction and scope of economic policy during the military dictatorship. The Proceso made foreign indebtedness a hallmark of its economic policy. The beginning of Argentina’s neoliberal turn included a newly found openness toward financial penetration and speculation within a once populist and highly protectionist economy. National debt began to quickly diverge from the imports or exports of commodities and capital goods to pure finance. Foreign debt and the interest on it rose exponentially by nearly $39 billion USD.^[33] According to Teubal, the major impetus for the accumulation of such debt was Proceso’s preoccupation with the integration of Argentina’s finances with the international financial markets and the monetary liberalization—including floating exchange rates and capital mobility—that defined it then and now. The financial regimes implemented in 1977-79 which introduced full mobility of foreign finance capital and financial activities all but guaranteed that foreign debt would come to categorize economic affairs in the country for years to come.

Amid the crisis of 1981, public enterprises were deprived by the central government of the liquidity necessary to finance their operations or investments to be put toward public services. Instead, these funds were allocated for speculative uses by the governments in foreign exchange markets, which effectively funded capital flight from the country (Teubal 2004, 177).^[34] In 1981, the country experienced extraordinary levels of inflation. Soon to follow was a currency devaluation of 500 percent. A crisis for which the reaction under Alfonsín was to carry out stabilization mechanisms that were inadequate at tackling the deepening economic and social crises of the runaway inflation and mounting foreign debt. The consequences of this pervasive speculation and the failed attempts at stabilization were that foreign creditors in both the United States and Britain as elsewhere exercised enormous leverage over domestic economic policy in Argentina, every ally translating to more vehement IMF conditionalities and, thus, greater structural adjustment. By 1989, inflation had grown to annual rates of 5000 percent.^[35] Menem would appoint several neoliberal-oriented ‘Chicago Boys’ (economic thinkers influence by the University of Chicago brand of economic liberalism) to important government posts, including the finance minister Domingo Cavallo. Cavallo introduced the infamous Convertibility Law in 1991 which mandated that the Argentine peso be pegged to the US dollar. This entails that the Argentine currency maintain a fixed exchange rate between itself and the US dollar. 

Under the new currency convertibility law, price indexing was prohibited and the full backing of the US dollar—which became legal tender—was required for monetary circulation. Money creation not backed by the foreign exchange reserves of the Central Bank or by a foreign inflow of capital was distinctly prohibited.^[36] The embrace of this extreme financial neoliberalization was justified by Cavallo under the promise that the currency peg would curtail inflation by tamping down on devaluation expectations. As Felder and Muñoz-Martinez explain, part of the Convertibility plan was to “back the circulating money with the foreign reserves accumulated in the central bank” and that “the central bank had to sell or buy both currencies without restrictions.”^[37] Monetary creation in this context was the imbrication of the peso to foreign reserves ultimately entrenching an exogenous mechanism for the creation of money beyond the control of the domestic economic authorities. What convertibility meant was that the prosperity of the Argentine currency was no longer in the hands of Argentina. 

There were some positives to be taken from the Convertibility plan, at least ostensibly. The liberalization of finance from earlier regimes coupled with the currency peg and low-interest rates on foreign reserves meant a large inflow of capital and a penchant for foreign reserves. The tacit implementation of neoliberal reform that came with a bevy of financial and industrial reversals to their traditionally protectionist values and policies appeared to bring beneficial results. Exports increased, agricultural activity experienced a boom and the country was becoming competitive again.^[38] The stability experienced after these massive adjustments were short-lived, however. The original success of the swift neoliberalization under Menem and Cavallo was pivotal in securing the legitimacy of SAPs in Argentina even if this came at the real and symbolic expense of labor strength and economic determination which underpinned the early developmentalism of Prebisch and Perón.  

A combination of external shocks such as the Mexican liquidity crises in its banking sector in 1995, the precipitous rise in international interest rates not to mention that the Argentine peso was perennially overvalued caused the economy to suffer. Rising interest rates reduced capital inflows to emerging markets, currency overvaluation seriously hampered exports, and competitiveness and the trade deficit became imminent. The abiding currency peg to ensure stability became unsustainable as US reserves became increasingly expensive and the peso continued to devalue, even as outlying deficits payments loomed. Unironically, only an assistance package conditioned by the IMF was able to prevent courage flight and halt an irremediable debt crisis.

The veritable solidification of economic dependence came in 1993 when Argentina joined the Brady Plan with an aim at restricting outstanding debt and the attached interest. The plan would securitize the debt principal and some of the interest into US Treasury bonds. In other words, old bonds were repackaged and consolidated into new bonds with less interest. Although the previously defaulted bonds were now able transformed into new ones with less interest to pay, a new and more intractable cycle of public debt emerged in its place.^[39] 

SA reforms presented a surreptitious issue of economic governmental indeterminacy. The sad fate of Argentina after the fall of Perónism in 1976 was that the gradual neoliberalization of the economy steadily relinquished economic (namely financial) determination to an ever-advancing neoliberal order imposed more after each crisis by IMF and WB conditionality as a stopgap to preceding crises. For instance, a price the Argentine people had to pay for the high and stable currency peg domestic production becoming more expensive thus paving the way for an influx of cheap imports that devastated local industries and jobs. The Argentine economy became more unstable with the implementation and progression of SAPs until it eventually teetered on collapse—only to be rescued by the two KIEOs whose conditions for crisis mitigation expanded over time and fostered greater dependency on relations to the core. A dependency that elides the labor relations to economic stability, social welfare, and development in favor of a regime of capital accumulation for economic elites. 

A Critical Theory of Structural Adjustment: Tackling SAPs with Dependency Theory

After exploring the structural reforms made to Argentina’s economy since the incumbency of the Proceso through to Alfonsín and Menem, I wish to take a critical view of the SA regime. It is difficult to examine the neoliberal SAPs adopted throughout this period and their  gradual ascendance in Argentine political-economic policies  without establishing linkages between a newly liberalized mode of economic governance and the manifold interests and institutions at play on a global economic level. The trajectory of Argentina since the Proceso has been the one tending towards greater SAs along neoliberal lines either taken implicitly or under the burden of IMF and WB conditionalities to attain economic relief. The coming and passing of each crisis has resulted in a deeper entrenchment of KIEOs and foreign capital involvement in Argentina’s economy.  Hence, the structural crises SAs were deployed to solve has only worsened further.  

Dependency theory was a widely embraced critical analytic framework to view the relationship of the core global capitalist system that enjoys profound influence over KIEOs and the periphery countries that behold it. Moreover, many developmentalist economic strategies such as those contained within the ISI regime were highly sought after by LDCs in the 1960s and 1970s.^[40] However, a there was a radical shift in the approaches of many LDCs during the global neoliberal turn in the late 70s and the early 80s. It reoriented economic governance to more open interaction between the core and the periphery under the auspices that liberalization was an indubitable spur to economic growth and development. So far, this hypothesis has come back with mixed results at best and I shall try to analyze why this might be the case.

 SAPs carry out a systematic externalization of structural economic relations between the institutionalized apparatuses that design such adjustment measures (namely the IMF and WB). who condition monetary distribution around them and the developing countries that implement them to attain said distribution and capital inflows. To avoid the conceptual opacity that has been the object of criticism of dependency theory in the past, I want to make my nuanced position clear: I do not believe that Argentina has always been an undeveloped, let alone an underdeveloped country. Ample imperial evidence exists to show the wealth of natural resources and the depth of industrial potential displayed in the county for generations. As such, within the dependency theory, I adopt the position that the economic development in Argentina was regressively inhibited by interaction with the core via the integration of SAPs during the period in consideration. 

The neo-liberalization of Argentina caused a regression in numerous key areas in the economy spanning from national institutional capacity and the regression of labor’s social positions to capital accumulation, and the potential of its currency among other things. Each in their turn, unraveled the protectionist systems of accumulation and growth the country once experienced and how they incrementally undermined its economic determination. More than just a mere scrutiny of the institutions and practices which have influenced this developmental trajectory, a critical theory of SA ought to account for the specific interests of the institutions at play within these structural relations. The IMF and WB have long functioned as the designated arbiters of global financial order and developmental stability, especially through their distribution of capital loans and liquidity. But, more attention should be paid to the relationship existing between loan conditionality and the soft enforcement of economic restructuring under a neoliberal guise in developing regions such as Latin America.

It is crucial to acknowledge the conceptual fissures between Frank’s contributions to dependency theory and the Cardoso-Faletto strain. While the former preferred to strictly examined the external factors of underdevelopment, the latter dually examined the multiplicity of internal and external factors contributing to asymmetrical capital accumulation and the underdevelopment. The same would later come to plague countries in the global south with Argentina being the main culprit. In taking on gradual SA, Argentina unfortunately brought about a transformation of its structural relations to the globally institutionalized neoliberal order, perhaps its most vital feature. Thus, Argentina lend itself to dependency through the ‘valorization of financial capital’.

Potts argues that debt crises have long served as the economic leverage necessary for KIEOs to employ SA and stabilization measures in developing countries through the means of bail-out loan conditionalities.^[41] Foreign financial concentration and foreign debt provided the perfect opportunity for various creditors including the U.S. to make Argentina a financial emissary. High levels of financial concentration manifest in foreign investment and reserve debt incentivize creditors to influence policy levers in recipient DCs to protect investments.^[42] Studies have found that higher concentrations of financial penetration in DCs and a “robust long-term negative effect on growth in GNP per capita that begins in the initial 1970-1975 period and lasts through 1990.”^[43] As Menem continued to accrue debt through foreign loans in the 1990s, they found it difficult to repay interest on loans that the IMF kept giving through 2000. Overvaluation of the peso pegged to the US dollar experienced an upturn in value which all but guaranteed incoming crisis. 

When President Fernando de la Rúa came to power in 1999, a recession had set in. The looming crisis necessitated a preventative loan orchestrated by the IMF, WB, Inter-American Development Bank, and the other creditors. Several claims suggest that this loan, while being presented as a stimulus, actually was a protection for creditors against default of foreign loans. Kentor and Boswell’s suspicions proved true and dependency only continued.  

Another political-economic vestige that KIEOs directed their reforms toward were the unions. Justification for labor reforms in recipient countries of IFI loans is founded upon concerns that labor inflexibility and the structural unemployment that strong unions are known to cause will have adverse effects on growth potential.^[44] It is often the case that the participation in IMF and WB SAPs directly undermines collective labor rights and instead cultivates the conditions for the disarticulation of capital accumulation among workers. This was realized in Argentina during the Proceso era when trade liberalization devastated labor for formality. Depletion of labor came to pass again in 2001 when default on foreign debt placed the country in a state of collapse and the conditions of the loan provided by the IMF and WB mandated a swath of policies aiming labor. Pensions were overhauled to reduce benefits, legal protections for workers were eliminated giving employers increased powers to lay off workers, and salaries for government employees were slashed. 

Argentina’s SA regime came to a head when in a flagrant attempt to reel in inflation and reverse negative GDP growth, Menem instituted full austerity measures. Menem massively cut government spending and to further reduce public expenditure, several industries including oil companies, gas, electricity, water utility, post office, and telephone were privatized. Less than five years after taking office, the President privatized thirty state public sectors accumulating over USD 15 billion in government revenue by late 1993. The development literature is clear on the extent of state contribution to differentiated rates of capital accumulation, and by whom, through the design or repeal of economic policies.^[45] Policies for example, may include export subsidies, sectoral subsidies, import tariffs, and the nationalization of debt. Indeed, the inverse of these sort of policies that promote liberalization frequent and characterize Argentina’s political economy from the 70s and onwards.

Castellani discusses three widely accepted explanations for underdevelopment in Latin America. All three are incisive when considering crisis and economic governance in this particular context. According to her, these perspectives consist of: 

1) the structural explanation, which understands that underdevelopment is a structural phenomenon rooted in the historical dynamics of capitalism and thus the state is the main actor that can promote the economic “take-off”; 2) the neoclassical/neoliberal explanation, which considers that excessive state intervention causes severe distortions in the economic system hindering development because it obstructs the elementary market mechanisms; and 3) finally, the neoinstitutionalist explanation, which considers that the quality of state intervention and institutional framework can explain the causes of underdevelopment and its persistence.^[46]

One source of internal contribution to Argentina’s dependency was the proliferation of Privileged Accumulation Spaces (PAS). Castellani defines these as: 

as a permanent source of privilege quasi-rents for the private corporations operating in it. That is to say, they are spaces where corporations earn extra profits derived from privileges given by the state without the need to take compensating actions to raise development possibilities, either because they are not established beforehand or because the state fails to control their compliance.^[47]

PAS are relations that perpetuate the privilege of capital accumulation by the largest corporations. These relations largely remain unchanged even in the advent of policy changes. Accumulation in this sense obstructs the dissemination of technology; information transfer and innovation begin to stagnate and the increase in the economic power of the large business factions contributes to further underdevelopment. Unfortunately, a lack of state capacity reproduces the cycle of political domination which further enables asymmetrical accumulation which in turn leads reproducing state indeterminacy and underdevelopment. 

In its early stages, ISI was successful in creating the conditions for industrial growth and development. As Castellani explains, these positive outcomes were evinced by the expansive involvement of the state in economic dealings especially regulating income distribution and enlarging its productive capacities. However, during the later stages of Perón’s last administration, this did not last. Bureaucratic porosity and the slim financial capacities hindered state and business relations and the pursuit of development projects. Thus, towards the end of ISI, state autonomy in economic functions reduced significantly to allow for public and private capital accumulation. PAS would only grow in depth and scope as the transference of capital and quasi-rents to large corporations rose. The military dictatorship and the democratically elected Alfonsín and Menem administrations all shared the tendency for state allowance of private expansion. Public resources continued the transfer of domestic concentrated capital and increased profits remained constant.^[48] PAS an already existing practice in Argentina, was necessary in some ways but at various instances, it did more to regress development and the state capacity to carry it out. It was the very impetus of state hollowing out that allowed for this one-sided capital accumulation to become so utterly gratuitous. In my opinion, there are major corollaries between the consistent and deepening restructuring of the economy toward liberalization as a part of KIEO conditionality and international financial integration and the constraint of development because of both internal and external factors. 

The importance of state intervention or lack thereof is demonstrable in each explanation including the neoliberal and neo-institutional. Namely because a mixture of state diminution—as a part of liberalization— and privatization in addition to state oversight—when implementing the Convertibility Law in 1991 and other global financial integration measures summarizes the new regime of adjustment and capital accumulation after Peronism. A testament to the neo-liberalization of Argentina was the state’s simultaneous diminishment in allowing trade and financial liberalization, sectoral privatization, and its interventionist mode of governmentality. They were necessary to eschew its once-close ties to its unions in order to ally with international financial capital and imports which would weaken local industry and shed jobs. All of this coincided with the capture of the entirety of Argentina’s economy by SAPs which allowed capital integration, a series of crises stemming from this soon to follow. Goldin and Mariathasan assert that greater the deregulation and integration of an economy, the less reliable its domestic policy is at ameliorating the effects of exogenous shocks to its citizens and businesses.^[49] Incidentally, the vulnerability of the Argentine state due to its neo-liberalization effectuated vulnerability to endogenous events as well. This is precisely because the externalization (integration into foreign markets and liberalization elsewhere) of its economy became structured by SAP implementation. Hence, “Harmonization not only increases vulnerability to external or exogenous “shocks” but also catalyzes risks within the system or endogenously.”^[50]

Semi-peripheral nations or the ones that have experienced levels of development of which Argentina is one present another conceptual wrinkle in dependency theory or so some have argued. I contend that significant levels of dependency can still occur even in the case of a semi-peripheral country like Argentina whose industrial, infrastructural, financial development have fluctuated throughout its history. In his quantitative study of dependency and development, Tausch lists several quantitative indicators pointing toward dependency, such as: 

-high foreign savings rate

-high Openness-index (export + import shares per GDP)

-MNC penetration (Multi-National Corporations)

Others exist but among these, the author highlights the significance of MNC penetration above the others and declares that Argentina experiences a low level of MNC penetration as a percentage of GDP. ^[51] Nevertheless, the other quantitative indicators have been more than present in Argentina and support the multiplicity of internal and external factors that help to produce dependency. I have demonstrated how SAP implementation was pivotal in the creation of dependency both internally and externally. At the very least, I have put into focus the correlation between SAPs and structural/institutional dependency. Viewing SAPs from a critical lens, as I have done here, should reinvigorate the fundamental positions of dependency theory. The financial and institutional penetration by the developed capital center of the semi-periphery and periphery produces limitations to self-sustained growth and engenders unbalanced structures of capital accumulation and class relations. This happens both within peripheral societies (semi-peripheral in this case) and between them and the center.^[52]

Conclusion: Toward and Political Theory of Institutional Dependence and Determination

The primary issue with Argentina was the neo-liberalization of its state’s form of governmentality. That is to say, Argentina by dint of SAP implementation intentionally reduced their state’s capacity for economic determination instead of ceding more economic territory for capital accumulation and control to large domestic businesses internally and international financial institutions externally. Over time, the power of the state was harnessed to dilute itself and its relation to domestic development so that the dominant place could be given to the core of the world system and big capital. 

I have discussed how the recent study of Reisenberg et al. holds that the conditions of intrusive structural adjustment reforms diminish the bureaucratic quality and capacity of the peripheral and semi-peripheral nations that implement them. On utilizing data from 1985-2014, and accounting for internalized or endogenous conditionality and non-random selection of IMF programs, the findings show structural adjustment reduced bureaucratic quality in developing countries. Liberalization lowers the ability of the state to obtain and retain qualified personnel which affect the efficacy and distribution of public services including social security, average wages, and benefits. Not to mention, SAPs mandate the hollowing out of labor, the public sector, and regulations which corral business and finance seeking more privilege at the expense of local industry. Stabilization regimes did not evoke the same effects but the SA was singled out as an indisputable condition under which state bureaucratic capacity for policymaking and social welfare, were demeaned. 

While defining the relationship between institutional determination and economic growth and development, business and state relations are insoluble. A robust business class is imperative in prospects for development across financial and industrial sectors where private investment is often the sine qua non for local industrial productivity, healthy levels of exports, and employment. Moreover, well-established links suggest that strong state bureaucracy requires particular degrees of state integration with societal actors, notably big business. Understanding the significance of business class involvement in development does not necessarily undermine the part state capacity plays in helping to regulate disingenuous corporate practices that disadvantage labor and local industry and enable unbridled capital accumulation for a particular economic class. 

Frustration and tension with state vulnerability and regression as a course of economic integration and dependency will only affirm the political risks inherent to globalization. The benefits of globalization notwithstanding the internal and external solidification of class disparity due to consolidation of capital by the domestic and foreign business class and the international institutional apparatus that buttress these class divisions will become increasingly untenable. The national populist tendencies evident in Argentina’s tumultuous history can only become more destabilizing and the benefits of democracy and globalization will vanish once the desire to become economically insular grows more attractive.^[53]Protectionist intervention already began to creep back into Argentina shortly after the default crisis with a popular backlash to external calls for additional fiscal austerity and liberalization. In 2002, in opposition to IMF conditionalities, the economic authorities in the country stepped in to regulate capital movements and control currency devaluation. The elections of Perónist Nestór Kirchner and his wife Cristina Fernández de Kirchner in 2003-2007 and 2007-2011, respectively, signaled the rejection of international and domestic pressure to stay the neoliberal course. The political decision in the 2000s to raise exchange rates resulting in the reduction of domestic costs and improving conditions for import substitution sparked a subtle revitalization of industrial capacity. Competitive exchange rates and rising prices for the country’s agricultural and industrial resources helped in supporting export growth. State taxation on primary goods export has raised revenue and partially offset the foreign exchange and inflation crisis plaguing the country the decade prior. Adding to this, the reversal of fiscal austerity has widened the policy space for the state to reimplement subsidies and reinvigorate welfare and social security for its people. For better or worse, the consequences of this reversal have been the specter of inflationary pressures extending from growing consumption and wage demands coming from renewed union strength. Despite this tradeoff, the economic dynamism felt by the repletion of national economic institutional should not be neglected.

One of the central claims of this paper is that the neo-liberalization of Argentina’s economy via SA was the exertion of international force by KIEOs as a means to cultivate institutional dependency and the synthesis of my research was aimed at proving this. A political theory of institutional determination for economic development will both recognize the impact of structural adjustment in this context in the creation of systemic vulnerability and institutional dependency by the by on the semi-periphery and its appending international neoliberal institutions. Liberalization in all the key aspects of political economy: trade, financial, and industrial induced positive results for only a short time when in reality, the depletion of state capacity at the behest of the WB and the IMF only produced toppling financial crises, decimated labor in every way, sullied the social attitudes and relations between the people and the state, all while failing to reverse the fiscal crises that implementation was promised to solve. There are considerable research gaps to fill regarding the competitive quantitative impact of particular dependency indicators such as foreign capital penetration and MNC penetration. Indeed, ambiguity still lingers over the strength of the relationship between these indicators and peripheral countries and semi-peripheral countries like Argentina who have enjoyed a degree of development and international financial integration in their history.

Neoliberalism has been lionized as the most viable form of economic governance for the growth and modernization of LDCs. The consensus on this has been greatly reversed as the DCs and LDCs neoliberalism was meant to help only damaged them further, prompting a form of economic neocolonialism. Technological, financial, and informational penetration, in theory, should expect to increase competitiveness and efficiency leading to productivity gains and improvements in the marginal product of labor. Trade liberalization is also predictive of reduced inequality of wage differentials in LDCs. These theoretical predictions are very often counter to the real-world evidence we see in these regions, however. The frequency of mimetic isomorphism or when states emulate the policy practices and behaviors of SAP success stories should be approached with caution. Considering the vastly different political and historical factors that define a country’s political economy and the fact that degrees on implementation, as in Argentina, have effectuated crisis and vulnerability which in turn reduces state capacity, any form of volitional economic mimesis should be reluctant at best and only done after a thorough assessment of the potential impacts this will have on industrial and financial durability and resilience. 

This paper has further analyzed how the infamous SAPs were crafted and imposed by KIEOs on developing countries for decades in the twentieth century. The KIEOs put in focus during my research were the IMF and WB who have been the most influential regulators of the global economy since their introduction and who have conducted most of the significant capital transfers and redistributive measures in the GPE. Additionally, this paper has delved into the modern political and economic history of Argentina and the volatile relationship it had with KIEOs and the SAPs it candidly embraced beginning in the 1970s, marking a distinct break with its formerly national protectionist policies under Peronism. Using the once very popular dependency theory as my critical theoretical framework, I uncover the various means by which SA implementation in Argentina has systematically dissolved the country’s national state capacity for strengthening its internal economic relations and forwarding development in this way. 

Argentina was once a paragon of self-sustained development and growth, enjoying a wealth of natural resources and comparative advantage in the global economic context. In equal measure, this nation has faced a plethora of complex and far-reaching economic crises which throughout its modern history has placed into its course a series of gradual structural alterations to its economy that have slowly eroded its national capacity and social relations attached to state oversight, notably ISI and social security. The dissolution of national economic institutional capacity in Argentina, as I have shown, was largely caused by, and inevitably helped to further, a broad index of neo-liberalization. Many of the benefits of these reforms were transient at best and financially calamitous at best. The price of capital integration in the country was the radical destabilization of the state and its industries across the most significant spheres. Trade liberalization as tariff reduction helped to consolidate capital accumulation by large conglomerates and depressed labor. The massive increase in imports devastated local industrial capacity. Deregulation of finance allowed a free-for-all for foreign and domestic capital to speculate irresponsibly, for personal interest, and ultimately, against the peso in 1981. Monetary convertibility attached the heavily overvalued currency to a hegemonic US dollar and as reserve borrowing waxed, financial stability and determinacy waned. The deregulation and privatization of over 30 important industries by the early 1990s in a bout of fiscal austerity forged an avenue for greater imbalance in capital accumulation for the corporate class to the detriment of the working industrial class. Finally, the total neoliberal transformation of the Argentine state by the prevailing SA regime mobilized its political powers for the very purposes of diminishing itself to be permeated by a neoliberal policy that would quickly produce crises. The solution to which even greater neo-liberalization, greater institutional corrosion, and greater internal contradiction and dependency had to occur. Recent economic trends in Argentina proffer optimism for a renewal of institutional determinacy that rejects the internationally imposed institutionalization of crises and dependency. Optimism founded upon the recognition that national economic and institutional determination often comes down to political choice. Argentina is far from being free of economic crisis and uncertainty. One does not escape one’s history and the choices defining that history without some measure of struggle. Yet, if there is anything to be learned from the structures and crises that have come to underlie the historical nexus of neoliberal governmentality and Argentina, it is that if progress is to be made in the country, such a nexus needs to be reimagined, if not broken. 

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References:

^[1] Anne Marie Ejdesgaard Jeppesen, “Economic Adjustment and Cultural Change: Peronist Unions in Argentina 1990,” International Journal of Manpower 15, no. 9 (1994): 77-88; Bernhard Reinsberg, Alexander Kentikelenis, Thomas Stubbs, and Lawrence King, “The World System and the Hollowing Out of the State Capacity: How Structural Adjustment Programs Affect Bureaucratic Quality in Developing Countries,” The American Journal of Sociology 124, no. 4 (2019): 1222-1257; Manfred B. Steger and Ravi K. Roy, Neoliberalism: A Very Short Intriduction (Oxford: Oxford University Press, 2010); Miguel Teubal, “Rise and Collapse of Neoliberalism in Argentina: The Role of Economic Groups,”  Journal Developing Societies 20, no. 3-4 (2004): 173-188. 

^[2] Theodore H. Cohn, Global Political Economy: Theory and Practice (New York: Routledge, 2016).

^[3] Arno Tausch, “Globalization and Development: The Relevance of Classical “Dependency” Theory for the World Today,” International Social Science Journal 61, no. 202 (2010): 470.

^[4] Cohn, Global Political Economy: Theory and Practice. 

^[5] Tausch, “Globalisation and Development,” 470.

^[6] Roy and Steger, Neoliberalism.

^[7] Nauro F. Campos, Menelaos G. Karanasos, Bin Tan, “From Riches to Rags, and Back? Institutional Change, Financial Development, and Economic Growth in Argentina since the 1890s, The Journal of Development Studies 52, no. 2 (2016): 206-223. 

^[8] Werner Baer, Pedro Elosegui, and Adrés Gallo, “The Achievements and Failures of Argentina’s Neo-Liberal Economic Policies,” Oxford Development Studies 30, no. 1 (2002): 63-85.

^[9] Ejdesgaard Jeppesen, “Economic Adjustment and Cultural Change,” 83.

^[10] Ejdesgaard Jeppesen, “Economic Adjustment and Cultural Change,” 85.

^[11] Baer, Elosegui, and Gallo, “Achievements and Failures,” 64.

^[12] María Victoria Murillo and S.J. Rodrigo Zarazaga, “Argentina: Peronism Returns,” Journal of Democracy 31, no. 2 (2020): 125-136.

^[13] Baer, Elosegui, and Gallo, “Achievements and Failures,” 64.

^[14] Roy and Steger, Neoliberalism.

^[15] Teubal, “Rise and Collapse of Neoliberalism in Argentina,”  175-176.

^[16] Roy and Steger, Neoliberalism.

^[17] Robert G. Blanton, Shannon Lindsey Blanton, and Dursun Peksen, “The Impact of IMF and the World Bank Programs on Labor Rights,” Political Research Quarterly 68, no. 2 (2015): 324-326.

^[18] K.R. Hope and G. Kayira, “Development Policies in Southern Africa: The Impact of Structural Adjustment Programmes,” The South African Journal of Economics 65, no. 2 (1997): 118.

^[19] Guillermo Cruces, Guido Porto, and Mariana Viollaz, “Trade Liberalization and Informality in Argentina: Exploring the Adjustment Mechanisms,” Latin American Economic Review 27, no. 1 (2018): 1-29.

^[20] Teubal, “Rise and Collapse of Neoliberalism in Argentina,”  173-188.

^[21] Pablo Acosta and Gabriel Montes-Rojas, “Informal Jobs and Trade Liberalisation in Argentina,” The Journal of Development Studies 50, no. 8 (2014): 1104-1118. 

^[22] Acosta and Montes-Rojas, “Informal Jobs,” 1106.

^[23] Baer, Elosegui, and Gallo, “Achievements and Failures,” 63-85.

^[24] Elio Londero, “Trade Liberalization and Adjustment in Argentina,” The Journal of International Trade & Economic Development 12, no. 3 (2003): 225-246. 

^[25] Londero, “Trade Liberalization,” 231.

^[26] Baer, Elosegui, and Gallo, “Achievements and Failures,” 64.

^[27] Teubal, “Rise and Collapse of Neoliberalism in Argentina,”  175.

^[28] Christoph Hermann, “Another ‘Lost Decade’? Crisis and Structural Adjustment in Europe and Latin America,” Globalizations 14, no. 4 (2017): 519-534. 

^[29] Cruces, Porto, and Viollaz, “Trade Liberalization,” 16.

^[30] Miguel Teubal, “Structural Adjustment and Social Disarticulation: The Case of Argentina,”  Science & Society  64, no. 4 (2000): 466. 

^[31]Teubal, “Rise and Collapse of Neoliberalism in Argentina,” 173-188.

^[32] Ejdesgaard Jeppesen, “Economic Adjustment and Cultural Change,” 77-88.

^[33] Teubal, “Rise and Collapse of Neoliberalism in Argentina,” 176.

^[34] Teubal, “Rise and Collapse of Neoliberalism in Argentina,” 177.

^[35] Ben James and Kishore G. Kulkarni, “Critique and Analysis of the Currency Crisis in Argentina,” The Journal of Applied Business and Economics 9, no. 3 (2009): 1-13.

^[36] Ruth Felder and Viviani Patroni, “Austerity and its Aftermath: Neoliberalism and Labour in Argentina,” Socialist Studies: Journal of the Society for Socialist Studies 7, no. 1/2 (2011): 259-281.

^[37] Felder and Patroni, “Austerity and its Aftermath,” 48. 

^[38] James and Kulkarni, “Currency Crisis in Argentina,” 1-13.

^[39] Felder and Patroni, “Austerity and its Aftermath,” 264.

^[40] Cohn, Global Political Economy, 109.

^[41] Shaina Potts, “Deep Finance: Socreign Debt Crises and the Secondary Market ‘Fix’,” Economy and Society 46, no. 3-4 (2017): 452-475. 

^[42] Jeffrey Kentor and Terry Boswell, “Foreign Capital Dependence and Development: A New Direction,” American Sociological Review 68, no. 2 (2003): 304; Reisenberg, Kentikelenis, Stubbs, and King, “The World System and the Hollowing out of State Capacity,” 1128.

^[43] Kentor and Boswell, “Foreign Capital Dependence and Development,” 308.

^[44] Blanton, Blanton, and Peksen, “The Impact of IMF,” 326.

^[45] Ana Castellani, “Privileged Accumulation Spaces and Restrictions on Development of State-Business Relations in Argentina (1966-1989),” The American Journal of Economics and Sociology 72, no. 1 (2013): 90-121.

^[46] Castellani, “Privileged Accumulation Spaces,” 91.

^[47] Castellani, “Privileged Accumulation Spaces,” 93-94.

^[48] Castellani, “Privileged Accumulation Spaces,” 104-105.

^[49] Ian Goldin and Mike Mariathasan, The Butterfly Defect: How Globalization Creates Systemic Risks, and What to Do about It (Princeton: Princeton University Press, 2014).

^[50] Goldin and Mariathasan, The Butterfly Defect, 33.

^[51] Tausch, “Globalisation and Development,” 473.

^[52] Tausch, “Globalisation and Development,” 468.

^[53] George Ciccariello-Maher, “Cutting the Populist Knot,” Latin American Research Review 55, no. 2 (2020): 368-378.

This piece was published in the Global Issue Print Edition (Volume 12)

Abstract

The Muslim Brotherhood has been a constant of Egyptian and Middle Eastern politics since the early 20^th century. Its role in recent years has been increasingly influential; in 2011, the Muslim Brotherhood was catapulted to power in the aftermath of the Egyptian Arab Spring. Their sudden rise to power called into question their ambivalent relationship with democratization, secularism, and other values. This paper explores the historic relationship between the Muslim brotherhood and Egyptian democracy and argues that democratic values are not central to the organization. Instead, they are strategically used for political opportunism. The Brotherhood is entrenched within Egyptian society through its social networks, political advocacy, and charitable organizations—it is this multiplicity of roles that I argue contributed to the organization’s downfall in 2012. In a broader context, the Muslim Brotherhood is an important case study into the role of political Islam in the Middle East and in the West, especially since offshoots of the Brotherhood have defined Middle Eastern conflicts such as Hamas in Palestine. Additionally, I argue that the Brotherhood’s potency forced a strategic alliance between the West and Gulf Monarchies. Ultimately, the Muslim Brotherhood cannot be seen as an anomaly or an extremity. It is a deeply entrenched social construct that will dictate the future of democratization in Egypt.

Introduction

On January 25, 2011, popular demonstrations exploded across Egypt to demand the ousting of Hosni Mubarak’s autocratic regime.^[1] Curiously, the democracy-driven revolution enjoyed the backing of Egypt’s most powerful Islamist organization: the Muslim Brotherhood. Since its conception in the early twentieth century, this organization has sustained itself within Egyptian identity by opportunistically adapting to the moment’s socio-political fervor. Given its ambivalent relationship with democracy, the Brotherhood’s contributions to the 2011 revolution beg the question: can the organization be committed to democracy? Analyzing the Brotherhood’s ideology, leadership, and relationship with the military lends validity to the argument that democracy is not a central belief of the organization. However, given that Egypt’s only democratically elected President was a member of the Brotherhood, the organization has sufficiently proven its adaptability to democracy, 

This paper argues that periods of internal strife following the death of its founding member, particularly the isolationism of the older generations, and its ideological warfare with Gamal Abdel Nasser reduced democracy to an ideological accessory often sacrificed for more lucrative ideological goals. The Muslim Brotherhood exercised multiple roles – it was a social idea, a political organization, a militant group and a religious advocate. During critical periods, such as Gamal Abdel Nasser’s regime and the 2011 Revolution, it utilized those roles strategically. It is this multiplicity and adaptability of agendas that has characterized the Brotherhood as preachers, terrorists, and activists simultaneously, ultimately precipitating the demise of its democratic experiment. 

The Formative Years: Dawa’a at Coffee Shops

A schoolteacher in rural Egypt, Hasan Al-Banna found himself disillusioned by the exploitation of British colonialism.^[2] He believed that Egyptian society could only be saved from imperialist exploitation through religion,^[3]inspiring the Brotherhood’s iconic slogan: “Islam is the Solution.”^[4] Since the organization’s founding in March 1928, the Brotherhood was marred by an organizational detail that would haunt the organization till its demise: an ill-defined relationship between the leader than the followers. Originally, the Brotherhood’s goals were a return Egypt to purist Sunni Islam. It planned to utilize dawa’a (act of inviting one to Islam), political organization, cultural-educational unions, and commercial companies to achieve this goal.^[5] It was a social idea, malleable in form but rigid in ideology. The organization sought to permeate every facet of Egyptian society, alarming secularist, nationalist, and liberal groups.

In his memoir, The Call and the Preacher, Hasan Al-Banna explains his dawa’a approach and in doing so invents a morphing Islamist organization. He argues that Islamic teachings have been missing from Egyptian society,^[6]convincing his peers that their first dawa’a should be to people at coffee shops in order to reach ordinary Egyptians.^[7]Al-Banna’s approach defined the Brotherhood’s identity and cemented its role as a socioreligious actor. This organization would not be a Muslim organization preaching to Muslims in a Mosque; it would be applying Islamic teachings to everyday life. So, while democratic values were absent during the Brotherhood’s formative years, its practicality, inclusivity, and adaptability made it a formidable socio-political force regardless. Notably, despite the Brotherhood’s potency and discontent with the state of affairs it did not challenge the government. The organization, through Al-Banna’s heavy-handed guidance, distinctly self-defined itself as an activist group, not a political organization. The fact that the goals of the organization revolved around those of the leader pointed to a broader struggle for authority within the organization: what would happen when Al-Banna is gone? Especially given that Al-Banna personally believed democracy provided accountability, his criticisms revolved around colonialism.^[8]

Until 1952, most organized groups in Egypt were obsessed with the singular task of ridding the country of colonial influences – an obsession that proved to be favorable in expanding the Brotherhood’s presence. Al-Banna, during the 1919 Revolution, explained that service to the nation is a Jihad (struggle) that cannot be shied away from.^[9] In this regard, the Brotherhood collaborated with secular nationalist groups, like the nationalist Free Officers Movement. Even their fiercest critics, like Gamal Abdel Nasser, had short-lived membership within the Brotherhood because of its extensive infrastructure.^[10] It is during this time that the Brotherhood established its paramilitary organization, the Special Apparatus, to combat colonial influences and support the Palestinian nation-state against Zionism.^[11] The evidence that suggests Al-Banna was willfully blind to the militancy of the Brotherhood demonstrates  the group was loosely defined, particularly in the militant realm. ^[12] Nonetheless the significance was profound – the Brotherhood’s transnational ambitions were realized in the establishment of the Brotherhood’s Palestinian offshoot, Hamas.^[13] More significantly, it signified that the organization grew faster than it could keep up wherein the multiplicity of its roles were increasingly difficult to discern – less and less Egyptians identified the Brotherhood as a social organization. Despite early religious and social activities, the internal struggle for direction after Al-Banna’s death and clash with Nasser forced an expansion into politics and militancy – fertile ground for radicalization – where the organization could best survive.  

The Prison Years: Radicalism, Qutb and the Nasserist State

Following the assassination of Al-Banna in February 1949, the Brotherhood’s General Guideship fell to Hasan Al-Hudaybi, a man unable to tame factions within the organization, especially the Special Apparatus.^[14] Al-Hudaybi’s personal struggle with Nasser led an all-out war with the State costing the Brotherhood precious socio-political capital. This period significantly fragmented the Brotherhood and transformed the organization into one that was unrecognizable to the Egyptian people. It was at this point that the Brotherhood adapted to a hostile environment, when its ideological goals were threatened radicalism and militancy became a convenient justification for rank-and-file members.

When the Free Officers and the Brotherhood each took credit for the departure of colonialism from Egypt, the organizations engaged in an ideological war.^[15] Clearly, the Brotherhood’s own ideological force was much stronger than the Free Officers. Nasser’s confidant conceded that their movement rested on “transcendental hopes”.^[16] Nasser’s recognition of this deficiency forced him to marginalize the Brotherhood from all spheres of influence. Although this frustrated Al-Hudaybi, Nasser had no interest in power-sharing or democracy.^[17] Nasser’s ability to obtain political legitimacy through non-democratic means normalized autocracy and contributed to an illiberal culture that would hamper the Brotherhood in 2011. Since democracy lacked intrinsic value and because it was politically costly, the Brotherhood chose an alliance with Nasser that guaranteed its temporary survival. However, years of Nasser-manufactured criticism created a menacing image of the Brotherhood in the eyes of the public as an organization that restricts private life and monopolizes the definition of a Muslim.^[18] It is this public campaign led by one of Egypt’s most popular figures that contributed to a generational fearfulness and mistrust of the Brotherhood. In 2011, when the Brotherhood would compete in elections they could not recast their image. They could not be both activist and terrorist. 

The attempt on Nasser’s life by the Special Apparatus in 1954 caused Nasser to ramp up his repression of the Brotherhood and gave rise to a radical adaptation of Al-Banna’s social idea. As a consequence of the vague relationship between the leader and the led, radicalism caused factionalism within the organization. Nasser used the attempt on his life to exterminate the Brotherhood from public life; show trials painted the Brotherhood as terrorists, many members were jailed without charge, and more died in prison.^[19] During these years, the Brotherhood’s cohesion dissipated and, in its place, as justification, radicalism spurred. 

Among those arrested was the Brotherhood’s propagandist, Sayyid Qutb who theorized about the Islam’s role in society and the concept of jihad while in prison. In his book, Social Justice in Islam, he explains that the separation of religion and politics is “Western” and should not be accepted in Islamic societies.^[20] In this, Qutb envisioned a role for Islam that would be rejected by most Egyptians but embraced by many Brothers. While Al-Banna believed in the political system, Qutb had no use for it at all. Those prisoners suffering at the hands of repression adopted Qutb’s extremist view, depicted in his manifesto, Milestones. In that, he explains that no political or material power should hinder one’s ability to preach Islam and that those thinkers who say Islam has only prescribed defensive war are not real Muslims.^[21] Qutb’s distortion of the conventional understanding of jihad to an existential war resonated with some members who would carry out actions that would depict the Brotherhood more as terrorists than preachers. ^[22]  Additionally, Qutb expands the understanding of the Muslim homeland and radicalized transnational ambitions. It was under these pretenses and this argument, that some inmates undertook a radical mission upon release, including Mustafa Shukro who established the militant group Al-Takfir wa al-Hijra. Other followers of Qutb’s Milestones were Al Qaeda’s Dr. Ayman Al Zawahiri and the Islamic State’s Abu Musab Al-Zarqawi.^[23] That radicalism’s deep penetration of the Brotherhood undermined its charitable and social activities. Factionalism created both a new perception of the Brotherhood in the eyes of Egyptians and in the eyes of the West. 

The prison years temporarily disarmed Nasser’s rivals, but it also allowed Qutb’s radical and violent agenda to fester in Egypt’s prisons. Nasser’s defeat in the Six-Day War killed Pan-Arabist ambitions in the region and created an ideological vacuum. ^[24] It was an opportunity for the Brotherhood to exercise its transnational goals and expand its reach across the region. Nasser’s successor, Anwar Sadat, allied himself with the U.S. for this reason; he recognized the efficacy of the Brotherhood and the threat it posed to Egypt’s national interests. Qutb’s influence in particular exemplified both an internal schism but also the weaponization of his theoretical teachings. While the 1948 Palestinian War saw the Brotherhood’s first regional military excursion, Qutb’s beliefs were operationalized in the creation of Al-Qaeda in Pakistan and ISIS in Iraq. Qutb’s successful inspiration of the militant forced the West to endorse monarchical regimes, weakening the cause of democracy in Egypt and the Middle East. While this radicalization made its way into factions, the core Brothers attempted to work within the system under President Mubarak. 

The Mubarak Years and the 2011 Revolution: Everything to Everyone

Hosni Mubarak’s loosening of political organization restrictions provided an opportunity for the Brotherhood to advocate for mainstream legitimacy. ^[25]  After the Mubarak regime agreed to hold parliamentary elections following pressure from the Bush Administration, the Brotherhood won 20% of the seats in Parliament, making it the second biggest bloc after Mubarak’s National Democratic Party. ^[26] Under Mubarak, some leading reformists in the organization argued that the Brotherhood’s message was being misconstrued and that Islam requires government to be chosen by the people but governed according to Islamic rule.^[27] These arguments from traditionalist factions became so intense that when protests erupted on the 25^th of January, the Brotherhood chose to take no sides at all. In retrospect, siding with democratic reforms is an easy choice but by design, the old guard of the Brotherhood hampered quick decision making. The Brotherhood’s leadership hesitancy conditioned to reject reform caused a repeat of the organization’s position in the 1952 Revolution. When it tried to be preacher, activist, and politician, the Brotherhood could not successfully be any of them at all. 

The youth groups that organized demonstrations against the Mubarak regime consisted of many of the Brotherhood’s own youth leaders. Young Brotherhood leaders, like Islam Lotfy, joined the protests despite orders expressly forbidding it. It was this division between the traditional old guard occupying the leadership posts and the reformist youths that carry out day-to-day operations which exemplified an Al-Hudaybi era factionalism. When the Brotherhood finally endorsed the protests, it took an Islamic approach that was rejected by those at the centre of the revolution – young Brotherhood members, by virtue of the leadership structure, were forced to resign or be sidelined. Lotfy was forced to resign for his dissent, but he still believes that had he followed instructions, Mubarak would have remained in power.^[28] Members like Lotfy demonstrate the ways that the Brotherhood became victims of their own actions. As Al-Hudaybi engaged with Nasser only to be imprisoned by him, his successors did the same with Mubarak only to face the same fate by the people, not the state. A consequence of monolithic leadership and lopsided relations with the state, reform, democratic or otherwise, became unwelcome and ideology and the religious advocate role reigned supreme.  

In 2011, the Brotherhood leadership’s hesitancy to reform saw a missed opportunity to capitalize on beneficial democratic reforms. Following Mubarak’s ouster senior leadership at the Brotherhood entered talks with the Mubarak regime in this it betrayed the revolution but secured its survival. ^[29], The Brotherhood attempted to be everything to everyone, from a status quo actor benefitting from the mercy of the military regime to a proponent of reform and democratization. The multiplicity of roles became harder to maintain. Many Egyptians saw the Brothers as opportunistic, religious fear-mongers or terrorists. Still, the Brotherhood enjoyed the largest socio-political infrastructure in the country and so when Parliamentary and Presidential elections came in 2012, they won a majority and the Presidency. 

Despite the decision to include Christians and minorities within the political wing of the Brotherhood, the organization was opposed by powerful actors in the Egyptian society. The armed forces moved to take away key parliamentary powers and limit the civilian powers of the President.^[30] The Mubarak-era media continued to exaggerate and sometimes falsify its reporting on President Mohammad Morsi, even suggesting that he was planning the sale of the Pyramids of Giza.^[31] One might argue that criticism of government is a healthy and central aspect of democracy. However, Egypt’s lack of democratic culture that began with Nasser and an inherent resistance to Islamist ideals made criticisms ill-willed. It’s carefully crafted image in 2011 could not be accepted by those powerful agents. However, the is not without blame. It’s unwillingness to compromise made it ineffective, often authoritarian, within party politics. Having failed to receive a popular mandate, despite elections, the armed forced removed President Morsi in 2013.^[32] The organization’s history cannot be separated from that of the military regime, in fact, its survival rested on it. Unlike under Nasser, the internal strife and multiplicity of roles could not withstand repression, but the movement continued to spread abroad.  

The Transnational Movement 

 For most of its history, the Brotherhood has acted as a shadow government, influencing the decisions of the military regime and while it never achieved power permanently, it inadvertently affected domestic and foreign policy decisions. In 1948, the Brotherhood lent both material and ideological support to a cause that would later be adopted by Hamas, an organization that would threaten Egypt’s relationship with Israel. Its anti-Israel sentiment destabilized the military regime. One of its former members assassinated Anwar Sadat.^[33] There is no doubt that its alliance with other Islamist groups like Hamas have contributed to the Palestine-Israel conflict since 1948. The repression of the Brotherhood, particularly after the Manshiyya incident and Morsi’s ouster, created an exile community in the Middle East and Europe that have succeeded in creating an unlikely transnational movement envisioned by Al-Banna and Qutb. While some have argued this has created a web of jihadist cells, others insist that in Europe the Brotherhood was able to reconcile with secular democratic governance.^[34] Perhaps this is evidence that democratization of Brotherhood values is possible, just not in the Middle East where the opportunity to monopolize power is too great. Furthermore, its ideological opposition to communism jeopardized Nasser’s relationship with the Soviet Union. If the Brotherhood could wield power, it could tip the scales in the Arab Cold War and end Soviet influence in Egypt.^[35] The ideological influence of Qutb in the Afghanistani mujahideen even contributed to the USSR’s defeat in 1989. 

Situated outside the religious realm, the Brotherhood challenged the regional interests of established theocracies in the Middle East. Regional alliances particularly in the Gulf region are interested in crushing the Brotherhood because of the threat it poses to their monopoly over religious authority. These Gulf nations allied with West who were equally fearful of jihadism. It is this co-dependent policy between Gulf monarchies and Western nations to dispel Islamist influences in the region that may be chiefly responsible for the lack of democratization. This is not to say that the Brotherhood would have surely succeeded absent this policy, but it severely undermines democratic political culture in the region. The rise of the Brotherhood in the 2011 forced the U.S. to decide between geopolitical interests or moral ones – evident by President Obama’s late backing of the revolutionaries^[36], the Brotherhood’s rise unveiled American hesitancy with a non-secular conception of democracy. The Brotherhood’s ability to unify Islamist groups played an important role in policy towards Palestine, the Arab Cold War and the West’s Middle East policy. While it may not have established an Islamic caliphate, the Brotherhood has influenced governments and guided the course of Islamist movements around the world.

Conclusion 

As activists, militants, politicians, and preachers, the Brotherhood has changed the socio-political landscape of the Arab world. At conception, the organization was designed around the ideals of its leader and became subject to internal struggle over the judgement of that leader. Throughout its history, internal divisions emerged to reflect and adapt to social currents of the time. It was the inability of the structure, enabled by leadership, that made the values of the Brotherhood vulnerable to radicalism, like Sayyid Qutb, and reform, like Islam Lotfy. Ideologically, the Brotherhood has shown that it can operate within a democratic system, but its factionalism served to its detriment. Internationally, its potency changed the course of Western-led democratization in the Middle East and forced relationships with Arab monarchies. And while a Brotherhood-led democracy in Egypt would complicate the strategic Western interests in Israel and Egypt, the chances of its success are slim. The internal splintering – a symptom of the organization’s structural leadership – compounded by foreign interference and hostile domestic culture cannot equip the Brotherhood with the necessary discipline to compete in democratic elections. Its ideological adaptability has proven to be a blessing and a curse; ideology helped the Brotherhood survive the Nasserist state, but doomed its only chance at power. Throughout its history, survival, and opportunity motivated the Brotherhood’s stance on democracy – not an intrinsic belief.  Perhaps, the Brotherhood re-emerges in another revolution but, at that time, it must contend with its roles and divisions. 

Bibliography:

Al-Anani, Khalid. Inside the Muslim Brotherhood: Religion, Identity and Politics. New York: Oxford University Press, 2016.

Al-Banna, Hasan. Memoirs of the Da’wa and the Preacher. Kutub Arabiyah, 2007.

Bartal, Shaul. Jihad in Palestine: Political Islam and the Israeli-Palestinian Conflict. London:Routledge, 2015. 

Berman, Paul. “The Philosopher of Islamic Terror.” The New York Times Magazine, March 23, 2003. https://www.nytimes.com/2003/03/23/magazine/the-philosopher-of-islamic-terror.html

Finklestone, Joseph. Anwar Sadat: visionary who dared. London: Routledge, 1996.

Gerges, Fawaz A. Making the Arab World: Nasser, Qutb, and the Clash That Shaped the Middle East. Princeton: Princeton University Press, 2018.

Gudrun, Kramer. Makers of the Muslim World. London: Oneworld Publications, 2010. 

Kirkpatrick, David D. “Named Egypt’s Winner, Islamist Makes History.” The New York Times, June 24, 2012. https://www.nytimes.com/2012/06/25/world/middleeast/mohamed-morsi-of-muslim-brotherhood-declared-as-egypts-president.html

Milton-Edwards, Beverly. The Muslim Brotherhood: The Arab Spring and its Future Face. London: Routledge, 2015. 

Mitchell, Richard P. The Society of the Muslim Brothers. New York: Oxford University Press, 1993.

Nordland, Rod and Mayy El Sheikh. “Contrary to Gossip, Pyramids Have No Date with the 

Wrecking Ball.” The New York Times, July 23, 2012 https://www.nytimes.com/2012/07/24/world/middleeast/in-egypt-rumor-of-pyramids-demise-proves-flimsy.html.

Osman, Tarek. Egypt on the Brink: From Nasser to the Muslim Brotherhood. New Haven: Yale University Press, 2013.

Poppe, Annika Elena. US Democracy Promotion after the Cold War: Stability, Basic Premises, and Policy towards Egypt. London: Routledge, 2019.

Qutb, Sayyid. Milestones. Kazi Publications, 1964.

Qutb, Sayyid. Social Justice in Islam. Translated by John Hardie and Hamid Algar. Islamic Publications International, 1999.

Tadros, Mariz. The Muslim Brotherhood in Contemporary Egypt: Democracy Defined or Confined? Routledge, 2012.

Zollner, Barbara. The Muslim Brotherhood: Hasan Al-Hudaybi and Ideology. Routledge, 2009.

References:

^[1] Beverly Milton-Edwards, The Muslim Brotherhood: The Arab Spring and its Future Face (London: Routledge, 2015), 3.

^[2] Richard P. Mitchell, The Society of the Muslim Brothers (New York: Oxford University Press, 1993), 7.

^[3] Mitchell, The Society of the Muslim Brothers, 12.

^[4] Milton-Edwards, The Muslim Brotherhood: The Arab Spring and its Future Face, 3.

^[5] Mitchell, The Society of the Muslim Brothers, 14.

^[6] Hasan Al-Banna, Memoirs of the Da’wa and the Preacher (Kutub Arabiyah, 2007), 65.

^[7] Al-Banna, Memoirs, 66.

^[8] Khalid Al-Anani, Inside the Muslim Brotherhood: Religion, Identity and Politics (New York: Oxford University Press, 2016), 7.

^[9] Al-Banna, Memoirs, 42.

^[10] Fawaz A Gerges, Making the Arab World: Nasser, Qutb, and the Clash That Shaped the Middle 

East (Princeton: Princeton University Press, 2018), 164.

^[11] Mitchell, The Society of the Muslim Brothers, 56.

^[12] Kramer Gudrun, Makers of the Muslim World (London: Oneworld Publications, 2010), 100.

^[13] Shaul Bartal, Jihad in Palestine: Political Islam and the Israeli-Palestinian Conflict (London: Routledge, 2015), 44.

^[14] Barbara Zollner, The Muslim Brotherhood: Hasan Al-Hudaybi and Ideology (Routledge, 2009), 2. 

^[15] Gerges, Making the Arab World, 77.

^[16] Gerges, Making the Arab World, 79.

^[17] Gerges, Making the Arab World, 81

^[18] Gerges, Making the Arab World, 95.

^[19] Barbara Zollner, The Muslim Brotherhood: Hasan Al-Hudaybi and Ideology, 38.

^[20] Sayyid Qutb, Social Justice in Islam, trans. John Hardie and Hamid Algar (Islamic Publications International, 1999), 203.

^[21] Sayyid Qutb, Milestones (Kazi Publications, 1964), 65.

^[22] Sayyid Qutb, Milestones, 71.

^[23] Paul Berman, “The Philosopher of Islamic Terror,” The New York Times Magazine, March 23, 2003, https://www.nytimes.com/2003/03/23/magazine/the-philosopher-of-islamic-terror.html.

^[24] Gerges, Making the Arab World, 19.

^[25] Tarek Osman, Egypt on the Brink: From Nasser to the Muslim Brotherhood (New Haven: Yale University Press, 2013), 181.

^[26] Mariz Tadros, The Muslim Brotherhood in Contemporary Egypt: Democracy Defined or Confined? (Routledge, 2012), 24.

^[27] Tadros, The Muslim Brotherhood in Contemporary Egypt, 51.

^[28] Tadros, The Muslim Brotherhood in Contemporary Egypt, 33.

^[29] Tadros, The Muslim Brotherhood in Contemporary Egypt, 32.

^[30] Milton-Edwards, The Muslim Brotherhood: The Arab Spring and its Future Face, 45.

^[31] Rod Nordland and Mayy El Sheikh, “Contrary to Gossip, Pyramids Have No Date with the Wrecking Ball,” The New York Times, July 23, 2012.

^[32] Milton-Edwards, The Muslim Brotherhood: The Arab Spring and its Future Face, 48.

^[33] Joseph Finklestone, Anwar Sadat: Visionary Who Dared (London: Routledge, 1996), 13.

^[34] Milton-Edwards, The Muslim Brotherhood: The Arab Spring and its Future Face, 168.

^[35] Annika Elena Poppe, US Democracy Promotion after the Cold War: Stability, Basic Premises, and Policy towards Egypt (London: Routledge, 2019), 159.

^[36] Annika Elena Poppe, US Democracy Promotion after the Cold War: Stability, Basic Premises, and Policy towards Egypt (London: Routledge, 2019), 182.