On August 2, 2024, Europe’s AI Act entered into force, becoming the world’s first comprehensive legal framework on the issue of artificial intelligence. Operative across all 27 of its member states, the legislation provides a holistic set of rules for all players in the AI ecosystem –from developers to exporters and deployers.  

Though the Act got scant press in the US, it is clearly the opening salvo on what real legal proscriptions will look like for any business engaging in generative AI. Enforcement will be punitive – with fines of up to 35 million euros or 7% of global annual revenue (whichever is higher)—so even a large company operating outside the EU will likely contour to its agenda to avoid extraterritorial issues. 

As landmark legislation, it will cast an enduring shadow. AI will soon affect nearly every field of human endeavor. Recent studies suggest that worldwide artificial intelligence may add $2.6 trillion to $4.4 trillion annually to global economic output in the coming decade. AI is already altering the geostrategic landscape, as China deploys it in its military modernization and the US seeks to rebalance this unprecedented new threat to the existing international security architecture.  

Indeed, AI’s promise of epochal transformations portends effects that can’t yet be fully comprehended. To its credit, the EU has risen to the challenge of setting up preliminary guard rails. 

By designing a regulatory framework based on human rights and fundamental values, the EU believes it can develop an AI ecosystem that is inherently safer and more likely to not harm anyone. In this way, the EU aspires to be the global leader in safe AI.  

However, important questions remain. How does the act define artificial intelligence? How does it build on European legal precedent in its effort to protect its citizens? How does it compare to the Chinese and American approaches to AI regulation?  

From a geopolitical perspective, does the act ultimately help the US in the long run, forging a broader consensus as the West competes globally with China for a new era of technological supremacy?   

The Act’s Definition of AI and Risk

Originating from a European Commission proposal aimed at a “human-centric” approach to artificial intelligence, the final Act –a text totaling 50,000 words– is divided into 113 Articles, 180 recitals, and 13 annexes.

It categorizes AI systems based on their potential harm, aiming to ensure scrutiny, oversight, and –in extreme cases– outright bans on those products deemed dangerous.  

In earlier policy iterations, the European Commission’s definition of AI was criticized for being too broad. It was eventually modified to approximate the existing OECD definition and now focuses on two key characteristics of AI systems. Article 3(1) spells it out explicitly:  

1. An “AI system” is a machine-based system designed to operate with varying levels of autonomy.

2. An AI system exhibits adaptiveness after deployment and can infer –based on either explicit or implicit objectives– from the input it receives, how to generate outputs.  (These can be predictions, content, recommendations, or decisions that can influence physical or virtual environments.) 

This issue of inference is key. In its Recital 13, the act is explicit in that does not cover “systems that are based on the rules defined solely by natural persons to automatically execute operations.” Thus, the capacity of an applicable AI system to infer is what takes from the more commonplace data processing. It enables learning, reasoning, and can fashion new modeling on its own. The techniques that enable this type of inference while building an AI system include: 

1. machine learning mechanisms that learn from data to achieve certain objectives.

2. logic-based approaches that infer from encoded knowledge or symbolic representation of the task to be solved. 

With this definition in mind, the AI Act then classifies these autonomous systems according to their risks to society, creating a uniform framework across all EU countries:

Banned AI: Some AIs are prohibited due to the unacceptable risks they pose. These include systems used for government or corporate “social scoring,” certain biometric systems (like those for emotion monitoring at work), or games or bots that could encourage unsafe or compulsive behavior in children. 

High-Risk AI: These include applications like medical AI tools, critical infrastructure, credit loans, or recruitment software. They must meet strict standards for accuracy, security, and data quality, with ongoing human oversight to avoid profiling and personal identification. 

Moderate-Risk AI: This category includes front-facing systems like chatbots and AI-generated content. They must make explicit to users they’re interacting with AI. Content like deepfakes should be labeled that they have been artificially made.  Transparency and labeling are key.

Low risk: Most AI systems (spam filters and AI-enabled video games, etc.) will face no enforcement scrutiny under the Act, but developers may voluntarily adopt to specific guidelines.

It lays down further conditions required to develop and deploy trusted AI systems, both for developers when processing personal data during the development phase, and for users who may seek to pour personal data into a system during the deployment phase.  

Its Timeline: The Ban, the Code of Practice, Harmonization

The AI Act entered into force on August 2, 2024, though most of its rules faze in at different times over the course of the next 2 years. In February 2025 the ban on prohibited practices goes into effect, and later that August all regulatory bodies –the AI Office, European AI Board, etc.– must be in place. On August 2, 2026, full enforcement arrives, with each member state having set up a regulatory agency at the national level. 

In terms of the ban, certain companies have already started to modify their product rollout based on the Act. Meta will not release an advanced version of its Llama AI model in multimodal form in the EU, citing the “unpredictable” behavior of regulators.  

Likewise, on August 8^th, the social media platform X agreed to pause using European user data to train its AI system, after the Irish High Court found that the personal data of millions of EU users were being fed as input into Grok, its AI search tool, in Spring 2024 without any opt-out option available until July. 

The European Commission has launched a year-long consultation on a “Code of Practice on GPAI Models”, with AI developers and academics invited to submit their perspectives on a final draft. This will also set the parameters of the “AI Office,” the enforcement agency that gives teeth to the AI Act.

Human Rights and Europe 

Critics have been quick to suggest that, as Europe is home to only two of the twenty top tech platform companies, its AI regulation is some form of “sour grapes” protectionism. However, this view is flippant. Yes, there are ongoing battles between the US and EU — issues of data privacy, digital taxation, and antitrust—but the Act is clearly built on some of Europe’s most defining legislation. In many ways, it continues the trajectory of the EU’s most ambitious work.  

The European Convention on Human Rights was signed in Rome on November 4, 1950, by the twelve member states of the Council of Europe. Enforced by the European Court of Human Rights in Strasbourg, the Convention was a milestone in international law.   

It was the first legal entity to give binding force to some of the rights stated in the 1948 Universal Declaration of Human Rights. It was also the first treaty to establish a supranational court to ensure that the parties fulfilled their responsibilities, and which could challenge decisions taken by their own national courts. (Any individual, group of individuals, company, or NGO can petition the Strasbourg Court, once all lower venues have been exhausted.) It has now become an urtext for EU relations. To even join the Council of Europe, a state must first sign and ratify the ECHR. 

The convention itself has sixteen protocols, with article 8 the most pertinent here. Article 8 provides the right to one’s “private and family life, his home and his correspondence”, with caveats related to public safety, morality, national security, and the economic well-being of the country. This article clearly provides a right to be free of unlawful searches, but as it protects a “private and family life,” it also clearly provides the direction of a broader interpretation.

This “right to privacy” was not in the UN’s 1948 Universal Declaration of Human Rights. The fact that it is given explicit prominence in European law is telling.

Europe’s focus on privacy has obvious touchstones in its 20th-century history. The Nazi regime abused personal data to identify and annihilate its selected out-groups. Ruthless surveillance tactics further evolved with East Germany’s Stasi and the postwar Warsaw Bloc secret police in general. Governmental data collection practices have a dark past on the continent, and thus the right to data privacy is now closely tied to the issue of human dignity in Europe than perhaps the US. 

“Human-centric Digitization”

In 1981, the Council of Europe created the world’s first international treaty to assure data protection. This convention applied certain rules to the “automatic processing of personal data” and is probably the foundational basis of the EU’s 2018 General Data Protection Regulation (GDPR).  

The GDPR calls for a certain transparency in processing personal data, curtailing the quantity and restricting it to certain purposes. It designates a “privacy by design” protocol that requires companies to ingrain the GDPR rules into their initial design of services.   

The “right to be forgotten” is perhaps the most unique obligation related to the GDPR. This gives any person the right to force platforms to “delink” their name from information that is no longer valid. The Court of Justice of the EU played a key role in shaping this issue through its landmark Google Spain case (2014), in which Mario Costeja Gonzalez, a Spanish citizen, requested that the search engine remove results that linked him to a bankruptcy that had been resolved 15 years prior.  The court judged that Google must honor all requests to pull content proven to be invalid or out-of-date from its search algorithm. 

The GDPR is the world’s toughest data privacy law, and it has a long reach. Any corporation anywhere, if they collect data on EU citizens, can see massive penalties. 

Responding to a rise in cyber breaches and cloud computing, when tracking cookies was becoming insidious, the regulation had an immediate impact. The now ubiquitous “opt-in for cookies” notification is a product of the law, as tech platforms have adhered to its aims even in the US to avoid extraterritoriality issues.   

In this way, the law did succeed in creating a broader global consensus, a “shared vision of human-centric digitization.” As EU Commission VP Josep Borrell described at the time:

The 1948 Universal Declaration of Human Rights established the dignity of the individual, the right to privacy and to non-discrimination, and the freedoms of speech and belief. It is our common duty to make sure that the digital revolution lives up to that promise.

The GDPR’s enforcement arm, the European Data Protection Board, requires that each member state establish a “data protection authority” to enforce its rules. Fines can reach 20 million euros or 4% of a company’s total annual turnover. 

The AI Act does not modify the GDPR but builds on it.  

The Brussels Effect   

Despite massive lobbying against the GDPR before its passing, most of the big tech platforms have now embraced the regime. Meta chose to extend many GDPR protections globally to the company’s 2.8 billion Facebook users. Google revised its privacy policy based on it, and Apple now carries out OS impact assessments globally according to GDPR protocols. Microsoft has gone further, implementing the GDPR’s “privacy by design” and baking it into the early development of its products.

This appears to be yet another example of “The Brussels Effect.” These tech giants know that the size of the EU consumer market is simply too big to ignore. The second-largest economy on earth, Europe has an affluent population of 450 million and a GDP of $17.5 trillion. They enjoyed stunning success: Google is 90% of search in the 27-member union; Apple rakes in a quarter of its global revenue there; and Meta’s Facebook has 410 million monthly active EU users.  

The Brussels Effect can be clearly seen in the adoption of EU laws by foreign nations around the world. As of 2024, more than 150 countries have adopted domestic privacy laws, and most of them resemble the GDPR in some ways. It has essentially become the norm in many parts of the world as governments see it as an easy template for their own regimes.  

This can be seen on every continent. Brazil’s data privacy laws of 2018 emulate the GDPR’s broad definition of personal data. Nigeria’s Data Protection Bill of 2023 often uses exact parlance in sections, though with caveats about public morality. India’s PDPB bill, though withdrawn in 2021, was quite similar. With so many countries now operating with GDPR-like rules, it becomes harder for those nations creating data laws to justify a marked difference from the global norm. 

The effect is even seen in the corporate structure of a few firms. Meta, for example, altered its corporate structure –shifting its Africa, Asia, Australia, and Middle East divisions out of its Irish corporate entity and placing them within its US legal structure. This thus keeps African or Asian users from seeking legal addresses under the EU’s GDPR. 

Anu Bradford has made the point that the Brussels Effect of the GDPR works precisely because it targets the “inelastic” aspect of the market –consumers living in a jurisdiction, and not fleet-footed capital. But it does work to capital’s advantage on one level. Companies always prefer standardization over customization, particularly since compliance is onerous. Customization for too many countries is unappealing, costly, and involves more legal fees for the tech giants. In some way, GDPR does work to tech’s advantage in bringing legal clarity to a large, 27-member state zone.  

The desire for an “adequacy decision” from the EU might also explain the GDPR adoption worldwide. Those nations with privacy laws deemed “adequate” by GDPR standards can be allowed data transfers from the EU. This obviously helps with a foreign nation’s corporate competitiveness, providing more business opportunities in the zone. Canada, New Zealand, Argentina, Uruguay, and Israel are a few of the notable countries granted decisions.  

Ironically, the US doesn’t have an adequacy decision from the EU, a fact that has placed the legality of the data flows between the US and EU in contention and has been the subject of numerous lawsuits.   

AI Convention and AI Act: Velvet Glove, Iron Fist?

The theoretical basis for the AI Act appeared five years ago. In 2019, the European Commission published “The Ethics Guidelines for Trustworthy AI.” This document – which stated that “AI systems should not unjustifiably subordinate, coerce, deceive, manipulate, condition, or herd humans” – arguably set the course for the AI Act. It stresses the importance of a human-centric artificial intelligence, in which “natural persons” must be able to “override” algorithms when needed to protect “fundamental rights.” 

In June 2023, more than a year before the AI Act was signed, the Council of Europe unveiled its inaugural draft of the “AI Convention on AI and Human Rights.” Comprising 34 articles, the document –like others by the Council– aims to formulate a broader open-ended framework of standards, not just within Europe. Its focus: data privacy, protection against discrimination, and the potential misuse of AI deployment. Like the GDPR, it aims to create a regulatory path that other nations may follow.  

In these articles, we can clearly see the founding principles of the EU AI Act. However, two other articles are also designated: each party must provide effective remedies for human rights violations, and each must have the ability to prohibit those systems that are incompatible with the convention’s core principles.

This EU approach is focused on securing the individual and collective rights of citizens in a digital society. They proactively ensure that often opaque AI processes won’t harm a society’s democratic political culture or trammel fairness in the distribution of its benefits.  

The European Declaration on Digital Rights and Principles for the Digital Decade, adapted in December 2022, proclaims that “people are at the center of the digital transformation” and emphasizes “the importance of democratic functioning of the digital society and economy.” All technological solutions should:

1. Benefit everyone and improve the lives of all people in the EU.
2. Technological solutions should also respect people’s rights, enable their exercise and promote solidarity and inclusion.” 

This political statement is interesting in its humanist focus. It identifies “democracy, fairness, and fundamental rights” as key values guiding EU policymaking. 

Pre-eminence: China’s Approach to AI

In contrast to the EU, China has developed its own AI policy, one that is less rights-driven and focused more on sovereignty, economic development, and implementation. It follows from Beijing’s belief, clearly written in both its “Dual Circulation” and “Made in China 2025” policies, that emerging technologies and high-tech manufacturing will be key to twenty-first century dominance.

Due to state funding, powerful tech firms, and select universities like Tsinghua, the country has emerged as a major player in machine learning and AI research. Notable players in the sector include:

Huawei:  AI chips and telecommunications infrastructure.

Baidu:  Autonomous driving / natural language models. 

Alibaba:  E-commerce algorithms / cloud computing 

Tencent:   AI-driven social media & medical imaging / healthcare solutions.

01.AI:   This Chinese unicorn startup is pushing the LLM envelope with its open-source model Yi-34B.

Between 2014 and 2023, China filed over 38,210 AI patents, more than all other nations combined. Even the US military is playing catchup with China’s PLA on the AI front, which is developing a new type of “intelligentized” warfare, looking to create wholly unmanned, swarm combat systems and better situational awareness. The DoD’s Replicator Program is something of a “Hail Mary” effort by the US to get to the Chinese level in AI-enabled swarm drones. 

Over the past several years, China has moved to implement some of the world’s toughest regulations on data and AI.  In contrast to the EU’s focus on state oversight regarding data privacy, fairness, and “human guidance,” Beijing’s policies make frequent reference to the necessary balance between “security” and “development.” For years China has been implementing the public facial recognition systems and “social scoring systems” that are now clearly outlawed by the EU AI Act. More machine learning and artificial intelligence will give these suppressive measures additional teeth.  

As early as 2017, China began placing AI as a new strategic pillar within its national agenda.  That year, the State Council unveiled its “New Generation Artificial Intelligence Development Plan,” with the aim of making the mainland the world’s AI leader by 2030. Like Made in China 2025, this act is comprehensive and focused on harnessing multiple drivers: economic growth, national security, and enhanced social services. The plan’s emphasis is on seizing the strategic initiative, creating the speedy diffusion from theory to application across multiple spheres, and finding dominance through innovation by 2030. 

After ChatGPT exploded on the world stage in late 2022, China was one of the first nations to issue targeted regulations on generative AI, releasing its “Interim Measures for the Management of Generative AI Services.” These set out restrictions on LLM (large language model) training and outputs of LLMs and require AI services “with the capacity for social mobilization” to carry out a security assessment and file pertinent algorithms with state regulators before being made public.  

Because of these “Measures,” since 2023, all LLMs developed by China’s tech platforms must gain state approval before going public. In response to this, Apple pulled nearly a hundred apps that offered AI chatbot service from its China store before the measures became enforced. 

China’s AI strategy –which seeks all developments to align with state objectives while maintaining strict control over information— could further entrench geostrategic splits as it is exported to the Global South. According to Rutgers University Fellow Shaoyu Yun:

Even if China doesn’t outpace the U.S. in developing the latest AI models, its applications can still significantly impact the geopolitical landscape. By integrating AI into areas like biotechnology, industrial engineering, and state security, Beijing can export its controlled AI systems to other authoritarian regimes. This would not only spread China’s model of governance but also consolidate its influence in regions antagonistic to Western ideals.

In this regard, the issue of AI lies not in its novelty but in its strategic deployment in the service of state control. For Yun, China’s approach suggests a fundamental rule in international relations: for new technology to alter a balance of power, it doesn’t need to be pre-eminent or the world’s best. It just needs to be the most effectively wielded.

AI Regulation, American Style

Enforceable regulation does not yet exist in the US at the national level, but there have been developments. In mid-2023 the White House obtained a set of voluntary commitments on AI risk from fifteen big firms at the cutting edge of the industry. It also released its “Blueprint for an AI Bill of Rights” which sets out a preliminary approach to data privacy and safety.  

More prominently, on October 30, 2023, the Biden administration announced its “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.”  This order is focused on national security and misinformation: the US government must be informed of any developer tests that show a risk to national security, and the National Institute of Standards and Technology (NIST) will set standards for “red team” testing (i.e. testing to break the AI models pre-launch to expose problems). It also tasks the Commerce Department to create “watermarking” for AI-generated content so that Americans can recognize deepfakes and know that the communications they receive (particularly from government bodies) are authentic.   

In addition, the order created a new entity –the US AI Safety Institute—which will explore AI safety across “national security, public safety, and individual rights.” Housed in the National Institute of Standards and Technology (NIST) that has been created, with a leadership team appointed in April 2024 by the Commerce Department, this institute will not be an enforcement agency, but a policy center.  

Biden’s EO suggests how US policy will unfold: it will be industry-friendly, offering a voluntary shift by business to best practices, and rely on –like what happened with crypto over the past decade—the various executive agencies to craft their own rules (with input from NIST).

Though hailed as a step forward, the EO remains more carrot than stick. The watermarking technologies that the EO points to are not yet built and may be difficult to ensure. Also, the order does not actually require the tech platforms to use these technologies or even require that AI companies adhere to NIST standards or testing methods. Most of the EO relies only on voluntary cooperation.

Unlike the EU’s AI Act which was passed at the highest level of government, or its AI Office, which will be an enforcement agency operative by August 2, 2025, the US Safety Institute appears to be more of a policy center, one that can be marginalized or “institutionally captured” by whatever political party that is in power. 

This approach remains friendly to tech, emphasizes self-regulation, and has no punitive measures. It also ignores the bigger issue of training models to minimize foreseeable harm outside of national security issues. According to chief ethics scientist Margaret Mitchell, this is a “whack-a-mole” approach, responding to emerging problems instead of requiring best data practices for the start: “The biggest concern to me in this is it ignores a lot of work on how to train and develop models to minimize foreseeable harms.”

At present, the US is unlikely to pass any AI legislation at the national level in the foreseeable future. The 118th Congress (2023-2024), notable for its political infighting, may end up as the least productive legislative session in US history.  

Interestingly, though, there has been a lot of state-level action. Sixteen states had enacted AI legislation, with more than 400 AI bills introduced at that level in 2024, six times more than in 2023.

Colorado is the first state in the nation with an AI law on the books that will be enforceable. The Colorado Artificial Intelligence Act is at its core anti-discrimination legislation, focusing on any bias caused by AI in the context of a “consequential decision” –specifically any decision that can “significantly” impact an individual’s legal or economic interests, whether it be employment, housing, credit, lending, educational enrollment, legal services, and insurance. (In many ways, it is stricter but also more nebulous than the EU’s restrictions on social scoring, and there is now pushback by Colorado businesses that fear its wide mandate will trigger lawsuits.)

Other major states like California, Connecticut, New York, and Texas, are starting the process.  In February, the California State Legislature introduced Senate Bill 1047, which would require safety testing of AI products before they are released. It would require AI developers to prevent deployers from creating any derivative models that could cause harm. Last year, Connecticut passed Senate Bill 1103 which regulates state procurement of AI tools. 

This emerging patchwork of state laws could be tough for companies –even the tech titans– to manage. That is why major players like Microsoft, Google, and OpenAI have all called for regulations at the national level, feeling that this growing number of state laws will crimp the adoption of AI due to the perceived compliance burden. According to Adrienne Fischer, a lawyer with Basecamp Legal, a Denver law firm monitoring state AI bills: “This fragmented regulatory environment underscores the call for national laws that will provide a coherent framework for AI usage.”

Conclusion:  Techno-Democracies Unite

In the regulatory discourse of both China and the EU, there is always the unspoken actor: the US. Whereas China’s process is designed for national economic success vis a vis a truculent American hegemon, the EU’s process is focused on protecting its unique sense of culture and rights-centered governance from overriding big-tech dominance. 

Indeed, for the EU, its contests with the US about data privacy, digital taxation, and antitrust have been going on for nearly three decades. In many ways, the Europeans have been playing catch up to the “move fast and break things” libertarianism of US tech since the mid-1990s, when the opening chapter of the internet began.  

For decades, the US has urged other nations to deploy a non-regulatory, market-oriented approach to tech. The very first effort at an international consensus to digitization embodied this laissez-faire attitude. In 1997 the Clinton administration’s framework for global electronic commerce codified that “markets maximize individual choice and individual freedom” and its 2000 EU-US Joint Statement assured that both parties agreed “that the expansion of electronic commerce will be essentially market-led and driven by private initiative.” 

However, as the scope and power of the tech platforms became so central to daily life in the developed world, a governance issue has arisen. 

Software has now “eaten” many societal processes whole. Digital providers often replace –at least in de-facto, operative ways– local governments as rule setters via their terms of service and community norms. As a result, these global tech companies often provide consumers with digital resources more effectively than some smaller nations, a trend which becomes even more extreme with AI.  

Geopolitically, there will be growing differences between how authoritarian and democratic nations will promote—or weaponize—their AI industries. Because China operates more as a state-capitalist society, its regulatory model reflects its focus on top-down control and national power. Its own historical sense of a “Middle Kingdom” centrality has kept it at odds with the US-led, Brittan Woods-derived, international order.   

As it seeks to become the world leader in most strategic technologies within the decade, China is pouring money into AI development. An Australian “tech competitiveness” think tank recently stated that the mainland is now the world leader in research on almost 90% of critical technologies, essentially switching places with the US in two decades due to heavy state funding.  It is also making a concerted push to bring the developing world to its tech table. Via Huawei, it has been quick to outmaneuver the West and fund many regimes in the developing world with their digital buildouts. It has ambitious projects in Asia and Africa, the “100 smart cities movement” in Indonesia being a perfect example. 

Domestically, the US often operates by post-facto litigation and piecemeal actions from different states. Its political process at the national level is often buffeted by powerful lobbying. Pressure from lobbyists and the money-driven nature of politics in the US often means the deepest pockets will hold sway. Without proactive regulation, reckless AI initiatives clearly risk privacy, covert social scoring, and quiet disenfranchisement. This could lead to disaffection with the Western model.  

This has seriously troubling implications for the United States and its allies. As Anu Bradford has suggested: “the delays that come with democratic rulemaking . . . allow China to quickly operationalize in the absence of democracy. “   

EU regulation may save the US from itself in many ways. Europe’s AI Act could help implement a broader consensus among Western powers and their allies. Technological cooperation among allies will be essential for geopolitical reasons, but also for better visibility and coherence at the business level. Corporations like to avoid the compliance costs, obviously, but the AI Act will also foster the same type of “adequacy decision” coherence that has happened via the GDPR for value-sharing corporations hoping for business access.

Creating a broader consensus between the Western democracies and its allies is exactly what is needed as the systemic rivalry with China emerges. A rights-driven model will be more compelling to a larger swath of the world, including Japan, South Korea, Brazil, and India.  Just as the EU’s Convention of Human Rights was both a statement of values and a rebuke of what was happening behind the Iron Curtain at the time, the AI Act makes crystal clear in its values the contrast between what a 21st-century rights-driven “techno-democracy” will look like vis a vis a 21^st century, state-centric “techno-autocracy.”On August 2, 2024, Europe’s AI Act entered into force, becoming the world’s first comprehensive legal framework on the issue of artificial intelligence. Operative across all 27 of its member states, the legislation provides a holistic set of rules for all players in the AI ecosystem –from developers to exporters and deployers.  

Though the Act got scant press in the US, it is clearly the opening salvo on what real legal proscriptions will look like for any business engaging in generative AI. Enforcement will be punitive – with fines of up to 35 million euros or 7% of global annual revenue (whichever is higher)—so even a large company operating outside the EU will likely contour to its agenda to avoid extraterritorial issues. 

As landmark legislation, it will cast an enduring shadow. AI will soon affect nearly every field of human endeavor. Recent studies suggest that worldwide artificial intelligence may add $2.6 trillion to $4.4 trillion annually to global economic output in the coming decade. AI is already altering the geostrategic landscape, as China deploys it in its military modernization and the US seeks to rebalance this unprecedented new threat to the existing international security architecture.  

Indeed, AI’s promise of epochal transformations portends effects that can’t yet be fully comprehended. To its credit, the EU has risen to the challenge of setting up preliminary guard rails. 

By designing a regulatory framework based on human rights and fundamental values, the EU believes it can develop an AI ecosystem that is inherently safer and more likely to not harm anyone. In this way, the EU aspires to be the global leader in safe AI.  

However, important questions remain. How does the act define artificial intelligence? How does it build on European legal precedent in its effort to protect its citizens? How does it compare to the Chinese and American approaches to AI regulation?  

From a geopolitical perspective, does the act ultimately help the US in the long run, forging a broader consensus as the West competes globally with China for a new era of technological supremacy?   

The Act’s Definition of AI and Risk

Originating from a European Commission proposal aimed at a “human-centric” approach to artificial intelligence, the final Act –a text totaling 50,000 words– is divided into 113 Articles, 180 recitals, and 13 annexes.

It categorizes AI systems based on their potential harm, aiming to ensure scrutiny, oversight, and –in extreme cases– outright bans on those products deemed dangerous.  

In earlier policy iterations, the European Commission’s definition of AI was criticized for being too broad. It was eventually modified to approximate the existing OECD definition and now focuses on two key characteristics of AI systems. Article 3(1) spells it out explicitly:  

1. An “AI system” is a machine-based system designed to operate with varying levels of autonomy.

2. An AI system exhibits adaptiveness after deployment and can infer –based on either explicit or implicit objectives– from the input it receives, how to generate outputs.  (These can be predictions, content, recommendations, or decisions that can influence physical or virtual environments.) 

This issue of inference is key. In its Recital 13, the act is explicit in that does not cover “systems that are based on the rules defined solely by natural persons to automatically execute operations.” Thus, the capacity of an applicable AI system to infer is what takes from the more commonplace data processing. It enables learning, reasoning, and can fashion new modeling on its own. The techniques that enable this type of inference while building an AI system include: 

1. machine learning mechanisms that learn from data to achieve certain objectives.

2. logic-based approaches that infer from encoded knowledge or symbolic representation of the task to be solved. 

With this definition in mind, the AI Act then classifies these autonomous systems according to their risks to society, creating a uniform framework across all EU countries:

Banned AI: Some AIs are prohibited due to the unacceptable risks they pose. These include systems used for government or corporate “social scoring,” certain biometric systems (like those for emotion monitoring at work), or games or bots that could encourage unsafe or compulsive behavior in children. 

High-Risk AI: These include applications like medical AI tools, critical infrastructure, credit loans, or recruitment software. They must meet strict standards for accuracy, security, and data quality, with ongoing human oversight to avoid profiling and personal identification. 

Moderate-Risk AI: This category includes front-facing systems like chatbots and AI-generated content. They must make explicit to users they’re interacting with AI. Content like deepfakes should be labeled that they have been artificially made.  Transparency and labeling are key.

Low risk: Most AI systems (spam filters and AI-enabled video games, etc.) will face no enforcement scrutiny under the Act, but developers may voluntarily adopt to specific guidelines.

It lays down further conditions required to develop and deploy trusted AI systems, both for developers when processing personal data during the development phase, and for users who may seek to pour personal data into a system during the deployment phase.  

Its Timeline: The Ban, the Code of Practice, Harmonization

The AI Act entered into force on August 2, 2024, though most of its rules faze in at different times over the course of the next 2 years. In February 2025 the ban on prohibited practices goes into effect, and later that August all regulatory bodies –the AI Office, European AI Board, etc.– must be in place. On August 2, 2026, full enforcement arrives, with each member state having set up a regulatory agency at the national level. 

In terms of the ban, certain companies have already started to modify their product rollout based on the Act. Meta will not release an advanced version of its Llama AI model in multimodal form in the EU, citing the “unpredictable” behavior of regulators.  

Likewise, on August 8^th, the social media platform X agreed to pause using European user data to train its AI system, after the Irish High Court found that the personal data of millions of EU users were being fed as input into Grok, its AI search tool, in Spring 2024 without any opt-out option available until July. 

The European Commission has launched a year-long consultation on a “Code of Practice on GPAI Models”, with AI developers and academics invited to submit their perspectives on a final draft. This will also set the parameters of the “AI Office,” the enforcement agency that gives teeth to the AI Act.

Human Rights and Europe 

Critics have been quick to suggest that, as Europe is home to only two of the twenty top tech platform companies, its AI regulation is some form of “sour grapes” protectionism. However, this view is flippant. Yes, there are ongoing battles between the US and EU — issues of data privacy, digital taxation, and antitrust—but the Act is clearly built on some of Europe’s most defining legislation. In many ways, it continues the trajectory of the EU’s most ambitious work.  

The European Convention on Human Rights was signed in Rome on November 4, 1950, by the twelve member states of the Council of Europe. Enforced by the European Court of Human Rights in Strasbourg, the Convention was a milestone in international law.   

It was the first legal entity to give binding force to some of the rights stated in the 1948 Universal Declaration of Human Rights. It was also the first treaty to establish a supranational court to ensure that the parties fulfilled their responsibilities, and which could challenge decisions taken by their own national courts. (Any individual, group of individuals, company, or NGO can petition the Strasbourg Court, once all lower venues have been exhausted.) It has now become an urtext for EU relations. To even join the Council of Europe, a state must first sign and ratify the ECHR. 

The convention itself has sixteen protocols, with article 8 the most pertinent here. Article 8 provides the right to one’s “private and family life, his home and his correspondence”, with caveats related to public safety, morality, national security, and the economic well-being of the country. This article clearly provides a right to be free of unlawful searches, but as it protects a “private and family life,” it also clearly provides the direction of a broader interpretation.

This “right to privacy” was not in the UN’s 1948 Universal Declaration of Human Rights. The fact that it is given explicit prominence in European law is telling.

Europe’s focus on privacy has obvious touchstones in its 20th-century history. The Nazi regime abused personal data to identify and annihilate its selected out-groups. Ruthless surveillance tactics further evolved with East Germany’s Stasi and the postwar Warsaw Bloc secret police in general. Governmental data collection practices have a dark past on the continent, and thus the right to data privacy is now closely tied to the issue of human dignity in Europe than perhaps the US. 

“Human-centric Digitization”

In 1981, the Council of Europe created the world’s first international treaty to assure data protection. This convention applied certain rules to the “automatic processing of personal data” and is probably the foundational basis of the EU’s 2018 General Data Protection Regulation (GDPR).  

The GDPR calls for a certain transparency in processing personal data, curtailing the quantity and restricting it to certain purposes. It designates a “privacy by design” protocol that requires companies to ingrain the GDPR rules into their initial design of services.   

The “right to be forgotten” is perhaps the most unique obligation related to the GDPR. This gives any person the right to force platforms to “delink” their name from information that is no longer valid. The Court of Justice of the EU played a key role in shaping this issue through its landmark Google Spain case (2014), in which Mario Costeja Gonzalez, a Spanish citizen, requested that the search engine remove results that linked him to a bankruptcy that had been resolved 15 years prior.  The court judged that Google must honor all requests to pull content proven to be invalid or out-of-date from its search algorithm. 

The GDPR is the world’s toughest data privacy law, and it has a long reach. Any corporation anywhere, if they collect data on EU citizens, can see massive penalties. 

Responding to a rise in cyber breaches and cloud computing, when tracking cookies was becoming insidious, the regulation had an immediate impact. The now ubiquitous “opt-in for cookies” notification is a product of the law, as tech platforms have adhered to its aims even in the US to avoid extraterritoriality issues.   

In this way, the law did succeed in creating a broader global consensus, a “shared vision of human-centric digitization.” As EU Commission VP Josep Borrell described at the time:

The 1948 Universal Declaration of Human Rights established the dignity of the individual, the right to privacy and to non-discrimination, and the freedoms of speech and belief. It is our common duty to make sure that the digital revolution lives up to that promise.

The GDPR’s enforcement arm, the European Data Protection Board, requires that each member state establish a “data protection authority” to enforce its rules. Fines can reach 20 million euros or 4% of a company’s total annual turnover. 

The AI Act does not modify the GDPR but builds on it.  

The Brussels Effect   

Despite massive lobbying against the GDPR before its passing, most of the big tech platforms have now embraced the regime. Meta chose to extend many GDPR protections globally to the company’s 2.8 billion Facebook users. Google revised its privacy policy based on it, and Apple now carries out OS impact assessments globally according to GDPR protocols. Microsoft has gone further, implementing the GDPR’s “privacy by design” and baking it into the early development of its products.

This appears to be yet another example of “The Brussels Effect.” These tech giants know that the size of the EU consumer market is simply too big to ignore. The second-largest economy on earth, Europe has an affluent population of 450 million and a GDP of $17.5 trillion. They enjoyed stunning success: Google is 90% of search in the 27-member union; Apple rakes in a quarter of its global revenue there; and Meta’s Facebook has 410 million monthly active EU users.  

The Brussels Effect can be clearly seen in the adoption of EU laws by foreign nations around the world. As of 2024, more than 150 countries have adopted domestic privacy laws, and most of them resemble the GDPR in some ways. It has essentially become the norm in many parts of the world as governments see it as an easy template for their own regimes.  

This can be seen on every continent. Brazil’s data privacy laws of 2018 emulate the GDPR’s broad definition of personal data. Nigeria’s Data Protection Bill of 2023 often uses exact parlance in sections, though with caveats about public morality. India’s PDPB bill, though withdrawn in 2021, was quite similar. With so many countries now operating with GDPR-like rules, it becomes harder for those nations creating data laws to justify a marked difference from the global norm. 

The effect is even seen in the corporate structure of a few firms. Meta, for example, altered its corporate structure –shifting its Africa, Asia, Australia, and Middle East divisions out of its Irish corporate entity and placing them within its US legal structure. This thus keeps African or Asian users from seeking legal addresses under the EU’s GDPR. 

Anu Bradford has made the point that the Brussels Effect of the GDPR works precisely because it targets the “inelastic” aspect of the market –consumers living in a jurisdiction, and not fleet-footed capital. But it does work to capital’s advantage on one level. Companies always prefer standardization over customization, particularly since compliance is onerous. Customization for too many countries is unappealing, costly, and involves more legal fees for the tech giants. In some way, GDPR does work to tech’s advantage in bringing legal clarity to a large, 27-member state zone.  

The desire for an “adequacy decision” from the EU might also explain the GDPR adoption worldwide. Those nations with privacy laws deemed “adequate” by GDPR standards can be allowed data transfers from the EU. This obviously helps with a foreign nation’s corporate competitiveness, providing more business opportunities in the zone. Canada, New Zealand, Argentina, Uruguay, and Israel are a few of the notable countries granted decisions.  

Ironically, the US doesn’t have an adequacy decision from the EU, a fact that has placed the legality of the data flows between the US and EU in contention and has been the subject of numerous lawsuits.   

AI Convention and AI Act: Velvet Glove, Iron Fist?

The theoretical basis for the AI Act appeared five years ago. In 2019, the European Commission published “The Ethics Guidelines for Trustworthy AI.” This document – which stated that “AI systems should not unjustifiably subordinate, coerce, deceive, manipulate, condition, or herd humans” – arguably set the course for the AI Act. It stresses the importance of a human-centric artificial intelligence, in which “natural persons” must be able to “override” algorithms when needed to protect “fundamental rights.” 

In June 2023, more than a year before the AI Act was signed, the Council of Europe unveiled its inaugural draft of the “AI Convention on AI and Human Rights.” Comprising 34 articles, the document –like others by the Council– aims to formulate a broader open-ended framework of standards, not just within Europe. Its focus: data privacy, protection against discrimination, and the potential misuse of AI deployment. Like the GDPR, it aims to create a regulatory path that other nations may follow.  

In these articles, we can clearly see the founding principles of the EU AI Act. However, two other articles are also designated: each party must provide effective remedies for human rights violations, and each must have the ability to prohibit those systems that are incompatible with the convention’s core principles.

This EU approach is focused on securing the individual and collective rights of citizens in a digital society. They proactively ensure that often opaque AI processes won’t harm a society’s democratic political culture or trammel fairness in the distribution of its benefits.  

The European Declaration on Digital Rights and Principles for the Digital Decade, adapted in December 2022, proclaims that “people are at the center of the digital transformation” and emphasizes “the importance of democratic functioning of the digital society and economy.” All technological solutions should:

1. Benefit everyone and improve the lives of all people in the EU.
2. Technological solutions should also respect people’s rights, enable their exercise and promote solidarity and inclusion.” 

This political statement is interesting in its humanist focus. It identifies “democracy, fairness, and fundamental rights” as key values guiding EU policymaking. 

Pre-eminence: China’s Approach to AI

In contrast to the EU, China has developed its own AI policy, one that is less rights-driven and focused more on sovereignty, economic development, and implementation. It follows from Beijing’s belief, clearly written in both its “Dual Circulation” and “Made in China 2025” policies, that emerging technologies and high-tech manufacturing will be key to twenty-first century dominance.

Due to state funding, powerful tech firms, and select universities like Tsinghua, the country has emerged as a major player in machine learning and AI research. Notable players in the sector include:

Huawei:  AI chips and telecommunications infrastructure.

Baidu:  Autonomous driving / natural language models. 

Alibaba:  E-commerce algorithms / cloud computing 

Tencent:   AI-driven social media & medical imaging / healthcare solutions.

01.AI:   This Chinese unicorn startup is pushing the LLM envelope with its open-source model Yi-34B.

Between 2014 and 2023, China filed over 38,210 AI patents, more than all other nations combined. Even the US military is playing catchup with China’s PLA on the AI front, which is developing a new type of “intelligentized” warfare, looking to create wholly unmanned, swarm combat systems and better situational awareness. The DoD’s Replicator Program is something of a “Hail Mary” effort by the US to get to the Chinese level in AI-enabled swarm drones. 

Over the past several years, China has moved to implement some of the world’s toughest regulations on data and AI.  In contrast to the EU’s focus on state oversight regarding data privacy, fairness, and “human guidance,” Beijing’s policies make frequent reference to the necessary balance between “security” and “development.” For years China has been implementing the public facial recognition systems and “social scoring systems” that are now clearly outlawed by the EU AI Act. More machine learning and artificial intelligence will give these suppressive measures additional teeth.  

As early as 2017, China began placing AI as a new strategic pillar within its national agenda.  That year, the State Council unveiled its “New Generation Artificial Intelligence Development Plan,” with the aim of making the mainland the world’s AI leader by 2030. Like Made in China 2025, this act is comprehensive and focused on harnessing multiple drivers: economic growth, national security, and enhanced social services. The plan’s emphasis is on seizing the strategic initiative, creating the speedy diffusion from theory to application across multiple spheres, and finding dominance through innovation by 2030. 

After ChatGPT exploded on the world stage in late 2022, China was one of the first nations to issue targeted regulations on generative AI, releasing its “Interim Measures for the Management of Generative AI Services.” These set out restrictions on LLM (large language model) training and outputs of LLMs and require AI services “with the capacity for social mobilization” to carry out a security assessment and file pertinent algorithms with state regulators before being made public.  

Because of these “Measures,” since 2023, all LLMs developed by China’s tech platforms must gain state approval before going public. In response to this, Apple pulled nearly a hundred apps that offered AI chatbot service from its China store before the measures became enforced. 

China’s AI strategy –which seeks all developments to align with state objectives while maintaining strict control over information— could further entrench geostrategic splits as it is exported to the Global South. According to Rutgers University Fellow Shaoyu Yun:

Even if China doesn’t outpace the U.S. in developing the latest AI models, its applications can still significantly impact the geopolitical landscape. By integrating AI into areas like biotechnology, industrial engineering, and state security, Beijing can export its controlled AI systems to other authoritarian regimes. This would not only spread China’s model of governance but also consolidate its influence in regions antagonistic to Western ideals.

In this regard, the issue of AI lies not in its novelty but in its strategic deployment in the service of state control. For Yun, China’s approach suggests a fundamental rule in international relations: for new technology to alter a balance of power, it doesn’t need to be pre-eminent or the world’s best. It just needs to be the most effectively wielded.

AI Regulation, American Style

Enforceable regulation does not yet exist in the US at the national level, but there have been developments. In mid-2023 the White House obtained a set of voluntary commitments on AI risk from fifteen big firms at the cutting edge of the industry. It also released its “Blueprint for an AI Bill of Rights” which sets out a preliminary approach to data privacy and safety.  

More prominently, on October 30, 2023, the Biden administration announced its “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.”  This order is focused on national security and misinformation: the US government must be informed of any developer tests that show a risk to national security, and the National Institute of Standards and Technology (NIST) will set standards for “red team” testing (i.e. testing to break the AI models pre-launch to expose problems). It also tasks the Commerce Department to create “watermarking” for AI-generated content so that Americans can recognize deepfakes and know that the communications they receive (particularly from government bodies) are authentic.   

In addition, the order created a new entity –the US AI Safety Institute—which will explore AI safety across “national security, public safety, and individual rights.” Housed in the National Institute of Standards and Technology (NIST) that has been created, with a leadership team appointed in April 2024 by the Commerce Department, this institute will not be an enforcement agency, but a policy center.  

Biden’s EO suggests how US policy will unfold: it will be industry-friendly, offering a voluntary shift by business to best practices, and rely on –like what happened with crypto over the past decade—the various executive agencies to craft their own rules (with input from NIST).

Though hailed as a step forward, the EO remains more carrot than stick. The watermarking technologies that the EO points to are not yet built and may be difficult to ensure. Also, the order does not actually require the tech platforms to use these technologies or even require that AI companies adhere to NIST standards or testing methods. Most of the EO relies only on voluntary cooperation.

Unlike the EU’s AI Act which was passed at the highest level of government, or its AI Office, which will be an enforcement agency operative by August 2, 2025, the US Safety Institute appears to be more of a policy center, one that can be marginalized or “institutionally captured” by whatever political party that is in power. 

This approach remains friendly to tech, emphasizes self-regulation, and has no punitive measures. It also ignores the bigger issue of training models to minimize foreseeable harm outside of national security issues. According to chief ethics scientist Margaret Mitchell, this is a “whack-a-mole” approach, responding to emerging problems instead of requiring best data practices for the start: “The biggest concern to me in this is it ignores a lot of work on how to train and develop models to minimize foreseeable harms.”

At present, the US is unlikely to pass any AI legislation at the national level in the foreseeable future. The 118th Congress (2023-2024), notable for its political infighting, may end up as the least productive legislative session in US history.  

Interestingly, though, there has been a lot of state-level action. Sixteen states had enacted AI legislation, with more than 400 AI bills introduced at that level in 2024, six times more than in 2023.

Colorado is the first state in the nation with an AI law on the books that will be enforceable. The Colorado Artificial Intelligence Act is at its core anti-discrimination legislation, focusing on any bias caused by AI in the context of a “consequential decision” –specifically any decision that can “significantly” impact an individual’s legal or economic interests, whether it be employment, housing, credit, lending, educational enrollment, legal services, and insurance. (In many ways, it is stricter but also more nebulous than the EU’s restrictions on social scoring, and there is now pushback by Colorado businesses that fear its wide mandate will trigger lawsuits.)

Other major states like California, Connecticut, New York, and Texas, are starting the process.  In February, the California State Legislature introduced Senate Bill 1047, which would require safety testing of AI products before they are released. It would require AI developers to prevent deployers from creating any derivative models that could cause harm. Last year, Connecticut passed Senate Bill 1103 which regulates state procurement of AI tools. 

This emerging patchwork of state laws could be tough for companies –even the tech titans– to manage. That is why major players like Microsoft, Google, and OpenAI have all called for regulations at the national level, feeling that this growing number of state laws will crimp the adoption of AI due to the perceived compliance burden. According to Adrienne Fischer, a lawyer with Basecamp Legal, a Denver law firm monitoring state AI bills: “This fragmented regulatory environment underscores the call for national laws that will provide a coherent framework for AI usage.”

Conclusion:  Techno-Democracies Unite

In the regulatory discourse of both China and the EU, there is always the unspoken actor: the US. Whereas China’s process is designed for national economic success vis a vis a truculent American hegemon, the EU’s process is focused on protecting its unique sense of culture and rights-centered governance from overriding big-tech dominance. 

Indeed, for the EU, its contests with the US about data privacy, digital taxation, and antitrust have been going on for nearly three decades. In many ways, the Europeans have been playing catch up to the “move fast and break things” libertarianism of US tech since the mid-1990s, when the opening chapter of the internet began.  

For decades, the US has urged other nations to deploy a non-regulatory, market-oriented approach to tech. The very first effort at an international consensus to digitization embodied this laissez-faire attitude. In 1997 the Clinton administration’s framework for global electronic commerce codified that “markets maximize individual choice and individual freedom” and its 2000 EU-US Joint Statement assured that both parties agreed “that the expansion of electronic commerce will be essentially market-led and driven by private initiative.” 

However, as the scope and power of the tech platforms became so central to daily life in the developed world, a governance issue has arisen. 

Software has now “eaten” many societal processes whole. Digital providers often replace –at least in de-facto, operative ways– local governments as rule setters via their terms of service and community norms. As a result, these global tech companies often provide consumers with digital resources more effectively than some smaller nations, a trend which becomes even more extreme with AI.  

Geopolitically, there will be growing differences between how authoritarian and democratic nations will promote—or weaponize—their AI industries. Because China operates more as a state-capitalist society, its regulatory model reflects its focus on top-down control and national power. Its own historical sense of a “Middle Kingdom” centrality has kept it at odds with the US-led, Brittan Woods-derived, international order.   

As it seeks to become the world leader in most strategic technologies within the decade, China is pouring money into AI development. An Australian “tech competitiveness” think tank recently stated that the mainland is now the world leader in research on almost 90% of critical technologies, essentially switching places with the US in two decades due to heavy state funding.  It is also making a concerted push to bring the developing world to its tech table. Via Huawei, it has been quick to outmaneuver the West and fund many regimes in the developing world with their digital buildouts. It has ambitious projects in Asia and Africa, the “100 smart cities movement” in Indonesia being a perfect example. 

Domestically, the US often operates by post-facto litigation and piecemeal actions from different states. Its political process at the national level is often buffeted by powerful lobbying. Pressure from lobbyists and the money-driven nature of politics in the US often means the deepest pockets will hold sway. Without proactive regulation, reckless AI initiatives clearly risk privacy, covert social scoring, and quiet disenfranchisement. This could lead to disaffection with the Western model.  

This has seriously troubling implications for the United States and its allies. As Anu Bradford has suggested: “the delays that come with democratic rulemaking . . . allow China to quickly operationalize in the absence of democracy. “   

EU regulation may save the US from itself in many ways. Europe’s AI Act could help implement a broader consensus among Western powers and their allies. Technological cooperation among allies will be essential for geopolitical reasons, but also for better visibility and coherence at the business level. Corporations like to avoid the compliance costs, obviously, but the AI Act will also foster the same type of “adequacy decision” coherence that has happened via the GDPR for value-sharing corporations hoping for business access.

Creating a broader consensus between the Western democracies and its allies is exactly what is needed as the systemic rivalry with China emerges. A rights-driven model will be more compelling to a larger swath of the world, including Japan, South Korea, Brazil, and India.  Just as the EU’s Convention of Human Rights was both a statement of values and a rebuke of what was happening behind the Iron Curtain at the time, the AI Act makes crystal clear in its values the contrast between what a 21st-century rights-driven “techno-democracy” will look like vis a vis a 21^st century, state-centric “techno-autocracy.”

Featured/Headline Image Caption and Citation: Computer code, Image source from Flickr | CC License, no changes made

“We’ve been standing here for 26 seconds, and nobody has been raped”. On the 2nd of February 2000, the late Minister of Safety and Security went on an American broadcast show called 60 Minutes, to talk about the rape crisis in South Africa, and made the above comment. Often heralded as one of the worst displays of leadership from a politician, his casual dismissal of the gravity of the rape epidemic, in favour of better ‘aesthetics’ for South Africa in front of Americans, illustrates the massive failure of the South African government to curtail this crisis. This essay will analyse scholarship on the rape crisis, in an attempt to not only illustrate it as a ‘crime’ committed by individuals to individuals, but to expand upon the wider political and social context in which it is committed with such frequency in South Africa. Particular focus will be given to the following points; how rape ‘manifests’ in the contemporary South African context; rape’s conceptual point of origin and how it has evolved into its contemporary manifestation; what factors have encouraged this evolution; the groups of people ‘rape’ most affects (physically as well as socially); and finally various contradictions within ‘rape scholarship’. The goal of this essay is to do what the Minister of Safety and Security failed to do, which is to provide a nuanced and well-researched perspective on rape in South Africa, framing this crisis within the broader context of the law, the lived experiences of women, coloniality, and race. 

The introduction to this essay suggests that rape is not merely a crime committed in isolation but a societal complex phenomenon with social and political implications for the victims and communities in which it occurs. However, when discussing how the problem of rape manifests in the modern South African context, it is best to begin with its criminal (legal) definition. Including a legal definition is valuable because it sets a baseline for analysing how rape manifests in South African society. South Africa’s legal definition of rape reflects the state’s current position on what is considered rape, which shapes how rape is understood and prosecuted in society. Furthermore, South African rape laws have evolved over time (as is illustrated below). Including a definition allows this essay to discuss changes in legal approaches to rape and how these changes affect its manifestation in society, such as the expansion of the definition to focus on the lack of consent as its most critical aspect. Most importantly, a legal definition offers a point of comparison for discussing the gaps between legal frameworks and societal experiences of rape.

Rape in South Africa was traditionally legally defined under common law as a male engaging in sexual intercourse with a female without her consent. While rooted in Roman-Dutch law, South Africa’s definition of rape has since evolved, heavily influenced by English law. Unlike Roman-Dutch law, which required violence as part of the crime, South African law, following the English approach, emphasized lack of consent as the key element. In 1999, the South African Law Commission (later renamed the South African Law Reform Commission in 2002) proposed a Bill on Sexual Offences, suggesting the term ‘coercive circumstances’ replace ‘lack of consent’. The Commission argued that this shift would focus less on the victim’s subjective mindset and more on the power imbalance during the incident. However, the current Sexual Offences and Related Matters Amendment Act 32 of 2007 defines rape as missing both voluntary and uncoerced agreement, combining elements of both consent and coercion into the definition. The full definition of rape in the act reads, “Any person (‘A’) who unlawfully and intentionally commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape”. 

In summary, this definition, which emphasizes the lack of consent and considers coercive circumstances, illustrates how the state acknowledges the complexities of sexual violence, prioritizing power dynamics and gender hierarchies over mere physical acts. This framework fundamentally shapes societal understanding and legal prosecution of rape, signalling a progressive shift from earlier definitions that focused on violence and male perpetration alone. At first glance, one might assume that the society which housed such a holistic and comprehensive definition of rape, would be a society without a rape crisis, as surely this piece of legislature automatically translates into the appropriate practices and adequate infrastructure to address the problem of rape. However, the lived experiences of survivors often reveal a disconnection from these ideals the legal definition seems to suggest. It is the gap between South Africa’s progressive and inclusive legal framework and the widespread prevalence of rape, as well as other forms of gender-based violence, that represent how the rape crisis manifests uniquely in the modern South African context. 

As is mentioned above, the current lived experience of women in South Africa in regard to sexual violence stands in great contrast to the progressive and inclusive ideals of legislation on rape. In 2010-2011, reported rape cases reached 56,272 annually, though the true number is likely much higher due to the practice of under-reporting. It is further estimated that one in three South African women will be raped in their lifetime.

Additionally, levels of non-consensual and coerced sex, which may not always be recognized by victims as rape, are alarmingly high. South African academic, Pumla Dineo Gqola, elaborates further on this contradiction in the manifestation of rape and other forms of gender-based violence in South Africa, “The Republic of South Africa, therefore, has the contradictory situation where women are legislatively empowered, and yet we do not feel safe in our streets or homes. Truly empowered women do not live with the haunting fear of rape, sexual harassment, smash and grabs and other violent intrusions into their spaces, bodies and psyches,”. Gqola rightfully suggests that although the legislation aims to protect women, in practice it has not lessened the violence South African women experience at all. She vehemently denies the idealistic reality the legislature seems to point at, saying, “A genuinely gender-progressive country is without the gender-based violence statistics that South Africa has, making South African women collectively a majority (at 52 per cent) under siege,”. As is substantiated above, legislature on rape in South Africa is progressive, in that its definition is victim centric. It focuses on ‘lack of consent’ and coercive circumstances as being the most critical part of the crime, as opposed to violence, the relationship between the perpetrator and victim, penetration etc. However, these liberal, feminist values enshrined in the legislation, have little to no bearing on the lived experiences of women in South Africa, as the rape statistics for only the first quarter of 2024 are at a staggering 9252 reported cases. It this contradiction of one highest rates of rape in the world against the backdrop one of the most progressive Constitutions and subsequent pieces of legislation in the world, that illustrate the uniqueness of how rape manifests in contemporary South Africa. 

Rape has come to be commonly understood within South Africa, as having evolved as a symptom of the patriarchy. Social scholarship has shifted away from earlier interpretations of rape as an act driven by sexual desire or individual pathology, focusing instead on its roots in systemic power imbalances. Patriarchy is seen as the foundation from which the social and gendered dynamics of rape have emerged, framing it not just as a violent act but as an expression of deeply entrenched power relations. Scholars have long argued that rape is a tool used by men to uphold patriarchal dominance, creating a climate of fear among women to sustain male authority, particularly when in environments where male power is perceived to be under threat. This view reframes rape as a social construct linked to patriarchal systems, evolving in response to shifting power dynamics. In the South African context, rape is widely viewed as a symbol of patriarchal oppression and a manifestation of the ongoing quest for gendered power.

It serves as an indicator of the persistent patriarchal hierarchies that continue to define post-apartheid South Africa, despite formal advancements in women’s constitutional rights and the widespread adoption of liberal human rights discourse. The evolution of this understanding underscores the contradiction between the government’s progressive stance on gender equality and the lived reality of gender-based violence faced by many women, as is elaborated on in the previous paragraph. The ‘patriarchy theory’ is a plausible conceptual point of origin for rape to have evolved from, however it does present certain problems when applied to the South African context. South African scholars have argued that ‘while useful, western aetiological models that highlight the anger, fear and inadequacy of individual men or the monstrosity of patriarchy as central to the “story” of why men rape, fail to provide sufficiently nuanced explanatory or analytical frameworks for the current South African experience of pervasive sexual violence’. The ‘patriarchy theory’ is also problematic as it has a tendency to feed into assumptions that some societies are, inherently, more patriarchal than others, and that countries with a high level of rape, such as South Africa, are therefore more ‘patriarchal’. These assumptions can tie into colonial discourses of third world countries as being inherently patriarchal and violent, sidestepping broader issues of context and history. For these reasons, this essay will not use ‘the patriarchy’ as the conceptual point of origin when discussing how rape has evolved into its contemporary manifestation discussed above, but rather colonialism. 

To frame rape and its evolution within the context of colonialism, and in keeping with this essay’s pattern of using definitions of rape as the base line for analysis, the definition of rape during the 19th century colonial period can be used. In the colonies, rape was often defined as an illegal act of reproduction. Up until at least 1845 in the Cape, a man could only be convicted of rape if the prosecution could prove that ejaculation had occurred— both “emission as well as penetration” were required. This made prosecuting rape more difficult in the Cape compared to England, where, after 1828, rape victims no longer had to prove ejaculation. This legal discrepancy between the colony and the metropole reveals how racial hierarchies were maintained through the control of sexual relations. Illegal reproduction, particularly involving a black man and a white woman, was seen as a direct threat to the foundations of colonial society. This illustrates the extent to which black male sexuality was demonised, colonial South Africa was not interested in protecting women from rape by black men, but rather they were interested in preventing black men from reproducing with white women because this threatened the racial purity and social order that colonial South Africa sought to maintain. The primary concern was not the protection of women but the preservation of white supremacy through controlling interracial sexual relations. By framing black male sexuality as dangerous and predatory, colonial authorities used rape laws as a tool to reinforce racial boundaries and prevent the mixing of races, which they viewed as a direct threat to the colonial hierarchy. 

The legacy of colonial rape laws continues to shape how rape is handled in contemporary South Africa. While modern legal frameworks, such as the Criminal Law (Sexual Offences and Related Matters) Amendment Act, have expanded the definition of rape to include non-penetrative acts and recognize the role of consent, echoes of colonial logic persist in societal attitudes and the administration of justice. The historical framing of black male sexuality as dangerous and predatory continues to influence present-day racialized narratives of sexual violence, where black men are often disproportionately perceived as perpetrators. This racialized perception affects policing, media portrayals, and judicial processes, reinforcing harmful stereotypes. Furthermore, the colonial preoccupation with controlling women’s reproduction is reflected in contemporary discourses on gender-based violence, where the burden often shifts to victims to “prove” their lack of consent, reminiscent of the evidentiary burdens of ejaculation proof in colonial Cape law. The colonial obsession with maintaining racial hierarchies through the control of sexuality also finds echoes in how marginalized communities, especially black women and queer individuals, experience systemic neglect in the pursuit of justice for sexual violence. Therefore, while South Africa’s legal definitions and procedural safeguards have shifted, the socio-political underpinnings of how rape is understood, prosecuted, and discussed remain haunted by colonial ideologies of race, gender, and control.

Similarly, the concept of rape in this colonial period also evolved as a tool used to subjugate black women. In the nineteenth-century Cape, rape laws allowed for the death penalty in severe cases, such as the rape of ‘a girl still unmarriageable’ (pre-menstruation), married women, or by men in positions of authority—most of these categories possibly serving as a proxy for whiteness (native marriages were not recognised by white society so black women were treated as ‘unmarried’, and a black man could never be in a position of authority). In Cape Dutch settler society, women’s honour was tied as much to the men of their families as to themselves, and this concept of honour and status played a crucial role in how rape cases were handled. It influenced whether a rape was reported, how it was evaluated, and the severity of punishment given to the perpetrator. Black women in the colonies were not given any honour, as they were the ‘colonies most degraded category’, as a result of them being twice removed from society (in their race and gender) and so their rape cases were never considered deserving of full legal protection. In fact, some scholars have gone as far as to categorise black women as ‘unrapable’ during the colonial period, as they have pointed out that before the abolishment of the death penalty in South Africa, no white man had ever hung for rape, and the black men that had hung for rape, had only been convicted of raping white women. In the entire history of the death penalty (343 years) in South Africa, not a single rapist of black women was punished, at least never to the extent that rape of white women was punished. This illustrates the colonial legal system’s focus on preserving racial and gender hierarchies, which meant that black women’s experiences of rape were not considered significant, as their social status was already devalued. This lack of recognition for black women’s dignity and humanity reinforced the idea that they were ‘unrapable’, since the colonial power structure only prioritized protecting white women’s purity and honour, often using rape laws as a tool to control interracial relations rather than to seek justice for black women. In summary, it can be suggested that the contradictory contemporary manifestation of rape in South Africa, evolved not as a result of the patriarchy precisely, but rather as a result of colonial social structures that legitimized violence against marginalised groups. These social structures were built to dehumanise black men and women and are still present in the contemporary manifestation of rape today, which could explain why rape persists as an ongoing crisis (rape is still viewed as an individualised personal crime, or because of misogyny inherent in patriarchal systems, and not as a weapon of oppression inherited from the colonial era). In order to develop infrastructure and resources to combat rape, solving the problem of rape first needs to be understood as part of the greater project of decolonisation. 

Decolonization calls for the dismantling of inherited colonial power structures that continue to render black women and other marginalized groups invisible in the eyes of the law and society. It demands that rape be reframed as a tool of structural violence, rather than as an isolated act of deviance or moral failure. The colonial construction of black women as “unrapable” persists today in how the legal system, media, and public discourse often delegitimize the experiences of marginalized survivors. The over-policing of black men as “inherently dangerous” also reflects colonial logics that pathologized black masculinity. Therefore, decolonizing the approach to rape would mean rethinking the entire system of justice, from how survivors are treated in police stations and courtrooms to how perpetrators are prosecuted. This includes dismantling the racialized logic that frames rape as an “exceptional” crime when it crosses racial or class boundaries but treats intra-communal violence with indifference.

Moreover, a decolonized approach to rape would focus on community-based solutions rather than relying on punitive state mechanisms, which themselves are products of colonial control. Restorative justice models, survivor-centred support systems, and community-driven accountability processes are all essential components of this reimagined framework. Addressing rape as part of the broader project of decolonization also requires educational reforms that confront the colonial roots of gender-based violence and challenge the normalization of sexual violence in marginalized communities. This means developing a consciousness that sees rape not as an individual “crime of passion” but as part of a broader continuum of violence rooted in colonial domination. By recognizing rape as a colonial legacy, it becomes clear that addressing it requires more than tougher laws or higher conviction rates—it requires dismantling the entire colonial order that made rape a tool of domination in the first place.

In order to elevate this essay’s previous point of rape being a tool of oppression against black men and women, both in physical and social ways, this essay will further detail how the concept of rape is used to form the social identities of black women and men. To begin with how it affects black men in South Africa, rape is often framed as a problem of ‘South African’ men, with race frequently left unmentioned. Many empirical studies on masculinity and rape refer to ‘South African men’ or simply ‘men’ in their titles and findings, yet, upon closer examination, their research samples tend to focus on poor, black men, typically from rural or urban areas. While race and class clearly inform sampling choices, explicit discussions of race are often absent, and its presence is only implied through references to colonialism and apartheid. This silence is not race-neutral, as ‘men’—especially violent men—are implicitly conflated with black men, particularly those from the working class.  The identification of ‘problematic masculinity’ predominantly in black working-class contexts reinforces this bias. For instance, a widely publicized study stating that up to one in four ‘South African men’ admit to raping a woman was based on a sample of poor black men from townships. Other commonly cited literature reviews on rape also always seem to cluster their research in provinces with predominantly black populations, such as the Eastern Cape, Limpopo, Mpumalanga, and the Northern Province, rather than in the Western Cape, Gauteng, or KwaZulu Natal, which have higher concentrations of white and other racial groups, despite high levels of rape in these regions as well. While rape statistics are reported across all provinces, research tends to be concentrated in black communities, and specifically on black men. This reinforces stigmas about black men, inherited from the colonial period, through which their sexuality and ultimately their greater personhood, are demonised as being ‘bestial and predatory’. 

Black females and their sexuality are structured as the counterpart for black males and their sexuality, ‘namely as always already raped and therefore unrapable both in law and in social understanding,’. Their ‘unrapable’ identity is deeply rooted in the racist and patriarchal legal and social systems established during colonialism and apartheid. This legacy persisted even into apartheid and beyond, where the rape of black women became so normalized that it was largely ignored by social workers, doctors, police, and even the victims themselves. As Gqola pointed out, rape was so prolific against black women that it was simply accepted by society. Rape during colonialism and apartheid served as a weapon of control, not just by state agents but across society, reflecting the deeply entrenched racial and gender hierarchies. The enduring impact of this colonial legacy is echoed in the words of colonial judge Menzies, who noted that women in the ‘lowest ranks’ suffer less degradation from rape than women of higher status, underscoring how the legal system viewed black women as less deserving of protection and dignity. This inheritance continues to shape the power dynamics in South Africa today, where black women are most likely to be raped, not because of any inherent traits of black men, but due to a history of marginalization and the assumption that the suffering of black women matters least. 

In the effort of providing a nuanced argument for the purposes of this essay, this paragraph will be dedicated to various contradictions in rape literature and discourse. In the previous pages of this essay, it was mentioned that while the death penalty still existed within South African courts, no black or white man had hung for the rape of a black women.  Black men had only hung for the rape of white women. As this essay suggests, this takes black women out of the equation as victims of rape. Following the logic of the political and social system of the colonial period, which informed its legal framework, black women could not be raped. Or when they were raped, it was not a crime. However, this pattern of logic also leaves white men incapable of being rapists, as no white man had hung for the crime of rape. According to colonial thinking, white men were not capable of raping anyone. As is substantiated above, contemporary rape scholarship seems peculiarly fixed on portraying poor black men as their rapists, meaning that this is yet another colonial injustice that has persisted in modern South Africa (the omission of white men and their equal, if not bigger, capacity to rape). 

During the colonial period, white men sat at the top of the hierarchy of power and maintained their seat through developing a complex racial and sexual economy, in which black women (being both ‘black’ and ‘women’) are the most subordinate. It is this system that has allowed white men in South Africa to have historically not been seen as rapists (because of the narratives they constructed around race and power) which framed sexual violence in ways that excluded their own actions from being labelled as rape. In colonial and post-emancipation South Africa, black women’s bodies were viewed as property, particularly the property of white men, and their sexual abuse was rationalized as part of maintaining white supremacy. As was elaborated previously, the criminal records of the time focused on constructing black men as violent aggressors and black women as inherently sexual, while omitting the sexual violence perpetrated by white men. Illustrated in cases like the Booysen petition, where white men defended a black man accused of rape, their actions were not about racial solidarity but rather about preserving their own racially constructed sexual rights over black women. In this way, white men were able to deny the honour and personhood of black women, ensuring that their own sexual violence was neither recognized nor punished, further entrenching the view that they were not capable of being rapists. Including white men into the discussion of rape, is essential as it provides a more nuanced and complete look at rape in South Africa and fills in longstanding contradictions and commissions in popular discourse.

The colonial legacy of framing white men as “incapable of being rapists” continues to influence contemporary discourse on rape in South Africa. Public narratives, media portrayals, and even academic literature tend to disproportionately focus on black men as perpetrators of rape, often portraying them as hypersexual, violent, and predatory. This framing echoes colonial ideologies that pathologized black masculinity while constructing white men as rational, moral, and beyond reproach. As a result, the sexual violence perpetrated by white men is frequently rendered invisible or downplayed in public discourse. Discussions about rape in South Africa often centre on poor, marginalized black men, reinforcing stereotypes and diverting attention from the violence committed by white men, particularly those in positions of power. This racialized framing affects how rape cases are reported, prosecuted, and perceived by society, as white men are less likely to be publicly associated with the image of a “rapist,” even when evidence exists to the contrary. It also shapes the experiences of survivors, as victims of white male perpetrators may face additional hurdles in having their cases believed or taken seriously. By failing to confront the role of white men in the continuum of sexual violence, South African discourse on rape remains incomplete, reinforcing the colonial myth of white moral superiority while continuing to pathologize black men. To develop a more comprehensive understanding of rape, it is essential to expose and challenge the historical roots of these narratives, ensuring that white men are no longer exempt from the accountability that is so forcefully applied to black men. Decolonizing the discourse on rape requires broadening the scope of analysis to include all perpetrators, regardless of race, and dismantling the colonial logic that continues to shape modern perceptions of sexual violence.

In conclusion, the rape crisis in South Africa cannot be understood solely as a series of isolated acts of violence, but rather as the product of deeply entrenched historical, social, and legal structures rooted in colonialism and apartheid. The normalization of rape, particularly against black women, is an inheritance of these eras, where racist and patriarchal systems devalued their bodies and lives. The failure to address this crisis by figures like the late Minister of Safety and Security, exemplifies the ongoing neglect in acknowledging and confronting the broader societal and structural forces that sustain this violence. This essay has aimed to provide a more nuanced analysis of rape in South Africa, considering not only its contemporary manifestations but also its origins and evolution within systems of power, inequality, and racial injustice.  Addressing this crisis requires more than superficial responses; it necessitates a recognition of the historical legacies of violence and an unwavering commitment to dismantling the intersecting systems of oppression that perpetuate it. Only through such an understanding can meaningful change be envisioned for the future.

Featured/Headline Image Caption and Citation: South African spectators watching a football match, Image source from Wikimedia Commons | CC License, no changes made

1. Introduction 

Europe’s shortcomings in managing migration have been evident from the 2015 Syrian refugee crisis to the recent 2024 elections. I argue that Europe’s struggle persists because of the inherently “wicked” character of the migration crisis, especially considering issues of border security and migration weaponization. The European case is particularly unique in its common use of a mitigating “solution” to the migration crisis: third-country agreements. These agreements may come in different forms, but are generally a policy of externalization, which seeks to alleviate the problem of lax border security by deterring the influx of refugees and asylum seekers. I will conduct an evaluative policy analysis of these third-country agreements that answers two questions: First, how effective is the policy of third-country agreements in addressing the wickedness of the European migration crisis? Second, why is this policy so popular among European leaders? 

Regarding the first question, my evaluation is based on two criteria: First, whether these agreements successfully achieve their primary aim of deterrence, and second, whether they adequately address the European migration crisis in the long run. I hypothesize that the policy of third-country agreements is ineffective on both grounds. These agreements, at best, deter refugees and asylum seekers aiming to enter European states only in the short run, failing to deal with its root causes. The short run-long run paradox is at play, as the policy may lead to the short run benefit of reducing the number of irregular migrants, but may exacerbate the possibility of long run failures. Even if some deterrence is achieved, the costs incurred outweigh any benefits. Furthermore, this policy propels additional wicked problems.  The most significant harm of this policy is the weaponization of migration, when third-country partnerships grant the third countries disproportionate amounts of power. These partnerships are also ineffective due to hypocrisy costs from violating human rights and contradicting the liberal ideals many European states promote. However, hypocrisy costs are the least significant drawback, as other states, often guilty of similar policies, rarely impose them. The absence of condemnation is also due to strong anti-immigrant sentiment in Europe, so domestic and regional actors are not concerned with states acting hypocritically if it means keeping migrants out. Rather, hypocrisy costs are primarily enforced by human rights organizations, which wield comparatively less influence than states. 

For the second research question, I will employ a short run rather than a long run framework to display why the policy of third-country agreements is so popular among European leaders. I propose that European leaders are not ignorant that these agreements are only short-term solutions; in fact, this is part of the appeal of such a policy. These partnerships improve the optics of the proactiveness of states in dealing with migration challenges, accomplishing a sufficient temporary reduction in migration numbers. States are willing to bear the costs of such measures, considering that the alternative – structural reform – poses a formidable obstacle that would conflict with the short-term political motivations of leaders. Thus, leaders respond to a crisis-by-crisis approach instead of considering long-term solutions, which I posit produces an inability to address the wicked problems at play.

2. The European Migration Crisis: A Wicked Problem 

The framework of wicked problems was formulated by design theorists Horst Rittel and Melvin Webber by categorizing certain policy planning problems as “inherently wicked” when they embody ten characteristics.A wicked policy problem defies straightforward solutions due to its interconnectedness with other problems and a multiplicity of stakeholders with conflicting interests and values. The European migration crisis is interwoven with many wicked problems, including border security, weaponization of migration, and poverty, and concern multiple conflicting values, such as in the disagreement within the EU. The crisis is also difficult to define and mutates over time, as illustrated by the differences between Ukrainian refugees in 2024 and Syrian refugees in 2015. The European migration crisis is more than a security problem. It is a “ humanitarian crisis based in the suffering of individuals who [have] abandoned their homes; a geopolitical conflict ranging across countries and continents; a security threat for both receiving and transit countries; a potentially heavy financial burden on already overtaxed states; and the breakdown of collaboration in the network of EU member states.”  

The wicked character of the European migration crisis points to the difficulty of neatly defining and solving the crisis. For example, even if push factors are weakened, it is likely that migrants will always want to enter Europe. The solution to the crisis can never be right or wrong, but good or bad. The short-run perspective of political leaders categorizes this  policy as “good” – which incidentally adds to the wickedness of the problem. Rather, in this paper, I argue that the policy of third-country partnerships falls into the “bad” category of solutions. In my analysis, I will address the wicked problems of border security and the weaponization of migration. 

3. The Policy of Third-Country Agreements

The overarching framework of third-country agreements is that European destination countries use them as an externalization policy to deter irregular migrants.This aim is pursued by either moving migrants or shifting the responsibility of dealing with asylum claims to safe third countries. A third country is considered safe if it respects the principle of non-refoulement and treats an asylum seeker in accordance with accepted international standards, such as the Geneva Refugee Convention and Protocol. 

 An example of this policy’s success is seen in Spain and Morocco’s transactional migration agreement. Adamson and Greenhill define “transactional forced migration” as the process surrounding “political deals intended to facilitate and/or forestall engineered cross-border population movements, wherein the parties to the deal do not include the displaced themselves.” In the Spain-Morocco example, “Morocco is…cooperating with its neighbour Spain in efforts to stem the flow of illegal migration by sea with the attendant humanitarian concerns.” On the other hand, a negative example is the infamous EU-Turkey deal, where Greece could return new irregular migrants to Turkey in exchange for six billion euros in financial support for Turkey. The UK’s current Rwanda Plan is an even more extreme case, where “anyone entering the UK illegally – as well as those who have arrived illegally since 1 January 2022 – may now be relocated to Rwanda” even if they have never set foot in the country. 

4. Deterrence 

To evaluate the effectiveness of the third-country agreement policy, I will first examine whether the policy fulfills its main objective: deterrence. The primary aim of the policy is to deter irregular migrants from entering European states. For example, the goal of the UK’s Rwanda Plan is to “stop the boats” and “deter dangerous and illegal journeys,” relying on the belief that asylum seekers will be deterred if faced with the risk of being sent to Rwanda. Similar logic applies to all third-country agreements, as European leaders think the threat of being sent away from a European state will deter irregular migrants from making the journey in the first place. However, this policy rarely provides a stable long-term deterrence effect. Many scholars agree that “there is limited evidence to suggest that the Rwanda deal will reduce the number of small boats crossing the Channel.” 

One of the critical reasons this policy fails to provide deterrence is due to the limited enforcement of these agreements. In 2015, the number of migrants arriving in Greece was approximately 885,386. The EU-Turkey deal was intended to curb this, but only 2,140 people have been returned from Greece to Turkey after the deal. Similarly, “just 20 percent of eligible Dublin cases were actually transferred between EU Member States.” Transfer rates are low due to practical challenges, but also legal obstacles, as many European states are subject to EU and international law, which prevents them from rejecting asylum seekers. 

Another reason why deterrence fails in the long run is because it underestimates asylum seekers’ persistence and determination to flee from persecution in their home countries. Gammeltoft-Hansen and Tan state: “Refugees remain resourceful despite the plight they are forced to endure, and may exhibit extraordinary resilience in their efforts to find safety and protection.”  For example, in the hopes of finding safety in Europe, at least five people died in icy waters in January 2024 near northern France as they tried to traverse the English Channel to Britain. Asylum seekers have to decide whether it is best to stay home where they know they will face persecution or risk fleeing to European countries where it is not certain if they will be granted refugee status. If lethal violence is the main push factor, asylum seekers will not be easily deterred. The latter option is more appealing to asylum seekers, especially since European states have a reputation for not properly enforcing their deterrence measures. If third-country agreements do not effectively secure their main aim, then the policy does not truly ameliorate the wickedness of the European migration crisis. 

Nonetheless, this policy, at times, succeeds in yielding the desired deterrence effect in the short run. Although I questioned the EU-Turkey deal in achieving deterrence, it is undeniable that the numbers, albeit not significantly, went down when viewing irregular migration flows, painting this deal as a success in European policy circles. However, third-country agreements as a policy will not provide sustainable or stable deterrence. The aspect of the EU-Turkey deal that contributed most to a decrease in flows was not safe third-country provisions, but rather interceptions of migrant boats in the Aegean by the Turkish Coast Guard. According to Turkey’s Ministry of the Interior, more than 79,000 migrants and refugees were intercepted attempting to cross into Greece during the first four months of 2019, dwarfing the number of people returned under the safe third country agreement. If deterrence is best achieved through deals that involve interceptions, this is far from a sustainable, long-term solution that appreciates the wickedness of the migration crisis. 

Assuming deterrence is even effective under this policy, its efficacy is undermined if it does not adequately deal with the wicked problems interwoven in the European migration crisis. Gammeltoft-Hansen and Tan argue that “while specific deterrence measures may be successful in stemming a particular migration path in the short term…displacement of migration flows towards alternative routes often significantly, if not completely, undermine the effect over time.” They cite the EU-Turkey deal as showing that while the number of asylum seekers decreased along the Balkan route, the number of refugees and migrants using the Central Mediterranean route via Egypt or Libya dramatically increased during the same period. Even the Spain-Morocco agreement, which is also viewed as a success, does not come close to dealing with the wickedness of migration. The moment Spain stops complying with Morocco’s demands, the number of asylum seekers will instantly rise at the Spanish border. Already the EU’s deal with Tunisia does not seem to provide a stable deterrent; MEP Jeroen Lenaers of the European People’s Party has openly denounced lagging results as “arrivals continue to increase” after the conclusion of the deal. Furthermore, countries face exorbitant costs with this policy. For example, Italy had to pay Libya five billion dollars in 2007 in a negotiation regarding irregular migration. As of December 2023, the UK government has spent a total of £240 million on Rwanda. 

The policy of third-country agreements by European states problematically focuses on one criterion: reducing numbers. Viewing the European migration crisis from this perspective is a gross oversimplification of the complexity of the wicked problems at play. The wicked problem of border security in the European migration crisis requires policies that move beyond the logic of deterrence. The policy of third-country agreements is a crisis-by-crisis approach rooted in short run deterrence logic, which provides patchy results at best. European states should employ a more long-term, sustainable policy that addresses the root causes of irregular migration or focusing inwards on its asylum systems. As Moreno-Lax and Pedersen state: “The short-term European goal of preventing asylum seeker flows thereby risks compromising the stated long-term goal of tackling the root causes of displacement, which is sacrificed in the altar of externalised ‘integrated border management.’” Third-country agreements, despite their presentation as a new, innovative solution, have existed for decades, but the European migration crisis still exists and is mutating, proving this deterrence-based policy does not adequately address the crisis.  

5. Weaponization of Migration 

A key aspect of what makes wicked problems so complex is that attempted solutions “after being implemented, will generate waves of consequences over an extended – virtually an unbounded – period of time.” When evaluating a potential solution, I aim to determine if “the next day’s consequences of the solution may yield utterly undesirable repercussions which outweigh the intended advantages or the advantages accomplished hitherto.” I posit that the policy of third-country agreements in attempting to tackle the wicked problem of border security in the European migration crisis inadvertently creates another wicked problem: the weaponization of migration.

Greenhill underscores the compelling incentives for states to “create, manipulate, or simply exploit migration crises, at least in part, to influence the behavior of target states.” Coercive engineered migration is defined as “cross-border population movements that are deliberately created or manipulated by state or non-state actors in order to induce political, military and/or economic concessions from a target state or states.” Greenhill asserts that the incentives from coercive engineered migration are particularly compelling for weak states, as they lack the recourse for traditional methods of influence. Thus, the threat of using migrants as weapons can be more effective than unsuccessfully attempting to extract concessions using military means. 

An infamous example of coercive engineered migration was in 2004 when the former leader of Libya, Muammar Gaddafi, demanded that the EU lift remaining sanctions and financially assist Libya in exchange for cooperation on the migration issue. Third-country agreements as a policy are ineffective in addressing the wickedness of the European migration crisis as they grant the third countries disproportionate amounts of power, which can be used to weaponize migration. In 2008, Italy and Libya signed a migration deal, in which Italy agreed to pay Libya five billion dollars to stop the flow of African migrants to Europe. This deal gave Gaddafi considerable leverage, and in 2010, he threatened to “turn Europe black” if the EU did not comply with his demands, including lifting arms sanctions and providing aid. Additionally, during the 2011 Arab Spring, Gaddafi tried to deter the EU from providing support to the rebellion by warning that the EU would be “bombing a wall which stood in the way of African migration to Europe.” Despite Libya’s threats, Italy did not learn its lesson, as the two nations signed a Memorandum of Understanding (MoU) on Migration in 2017. Italy supports Libya by intercepting migrants at sea, establishing temporary refuge within its borders to screen asylum seekers, and repatriating individuals willing to return to their countries of origin. The EU has also financially assisted Libya, allocating 57.2 million euros for “Integrated Border and Migration Management in Libya” since 2017.  Libya capitalized on Europe’s migration crisis in 2015 by negotiating this deal following the blueprint set out by the EU-Turkey deal. According to Greenhill’s theory, Libya acted as an opportunist, as it did not create the migration crisis, but carefully exploited it for its own gain. As Greenhill states, “a crisis can help level the playing field, enhance the credibility of weak actors, increase the potency of their threats, and thereby improve their coercive capabilities.”

The problem with the policy of third-country agreements is that the third countries are aware of Europe’s struggle to deal with migration, and can exploit Europe’s weaknesses by continually asking for concessions. For example, Turkey used the migration crisis as leverage to reopen talks about its EU membership. I take it as far as to say that no partnership is safe from the threat of coercive engineered migration. Even the Spain-Morocco partnership has been subject to the weaponization of migration. This was seen in 2021, as the leader of the Polisario Front, Brahim Ghali, who was subject to a Moroccan arrest warrant for terrorist acts, was admitted for treatment in a Spanish hospital. Morocco threatened Spain with “consequences,” which included alleviating enforcement on the border with Ceuta, allowing thousands of migrants to enter Spain. This is an example of exportive engineered migration, as Morocco engineered migration to fortify a domestic political position. 

Despite the partnership between the two nations spanning decades, Morocco was undeterred from using migrants as an instrument to exert pressure on Spain. Spain and Morocco will continue to perpetuate the same pattern of engagement as they have done since the late 1990s, with Spain having to comply with Moroccan demands to curb irregular migration flows. In 2015, countries such as Egypt, Jordan, and Lebanon tangentially benefitted from the post-2015 European fear, allowing them to negotiate migration deals without threatening refugee arrivals due to European trauma. Europe will continue to expect migration crises, as seen in the influx of Ukrainian refugees and predictions of increased climate change migration. 

European states must decide what wicked problem they want to prioritize. The policy of third-country agreements may address the wicked problem of border security, albeit, I argue, not effectively, but it further propels and ignites the wicked problem of weaponization of migration. It is undeniable that the Spain-Morocco partnership reduced the number of irregular migrants entering Spain. However, the question is: how sustainable is this deterrence effect, and is the cost of potential weaponization worth it? I have argued that this deterrence effect is far from sustainable, and if an over-30-year partnership is susceptible to weaponization, then all partnerships are under threat. Already, Tunisia is wielding significant power against the EU; in October 2023, Tunisian president Kais Saied rejected financial support from the EU, claiming that the money “was a small amount,” and the EU “lacks respect.” The European Commission said it would disburse 127 million euros to Tunisia as part of their deal to curb illegal immigration to Europe.  However, Tunisia rejected what the EU announced, saying that “the proposal conflicts with the memorandum of understanding signed in July,” which includes a pledge of 1 billion euros in aid. During the dispute between the two parties, a record number of migrants arrived on the Italian island of Lampedusa from Tunisia and North Africa.  Migrant numbers have been rising in many places in Europe, but I still question if this was a coincidence and is potentially proof of Tunisia weaponizing migration against the EU. Without the third-country agreement in place, Tunisia would not have been able to weaponize migration as easily against the EU and extract financial concessions. The agreement increased Tunisia’s legitimacy at the negotiating table of migration diplomacy. Hence, threats to alter or suspend third-country agreements in response to political disagreements or disputes can create a dynamic where migration becomes a tool for exerting influence. Due to geographical limitations, Rwanda may not directly weaponize migration by sending migrants to the UK, but still has the power to cause instability in the region and potentially threaten the UK. As Greenhill’s research shows, coercers achieved at least some of their objectives in about three-quarters of the cases. In more than half the cases, coercers obtained all or most of what they sought.” 

6. Hypocrisy Costs 

Another significant cost of third-country agreements is hypocrisy costs. Greenhill defines hypocrisy costs as “those symbolic political costs that can be imposed when there exists a real or perceived disparity between a professed commitment to liberal values and norms and demonstrated actions that contravene such a commitment.” In fact, third-country agreements create a lose-lose situation: if the European state fails to keep unwanted immigration out, it fails the policy’s original aim of deterrence. However, if European states do manage to keep migrants out, this is usually a result of illiberal means, potentially incurring hypocrisy costs. I want to ensure that I do not appear contradictory by introducing the drawback of hypocrisy costs to the policy, as even if deterrence is not effective, hypocrisy costs may still be incurred because human rights organizations have criticized European states for making deals with authoritarian leaders. 

Hathaway argues that the right of states to remove refugees is conditional if the safe third country implements and respects the rights of the refugee under the Refugee Convention or any other legal instruments.  I use Hathaway’s formulation of the expectations of safe third countries and the principle of non-refoulement as a baseline to determine if third-country agreements have abided by human rights expectations. For example, the EU-Turkey deal rested on the notion that Turkey is a safe third country. However, Turkey’s safe third-country status has been questioned, mainly due to the surge in Turkish state violence against minorities since 2017.  Greek courts in early 2018 found that Turkey was not a safe third country, delaying the number of migrants that could be sent back. Thus, the deal was ineffective in offering sustainable deterrence and displayed hypocritical behavior. Hypocrisy costs were incurred as the Greek national court condemned state behavior for violation of human rights, thereby highlighting the discrepancy between the liberal values European states must obey by law versus the restrictive agenda leaders want to pursue. The UK’s Rwanda Plan is an even more extreme example, as the UK’s Supreme Court has declared the policy unlawful, and the European Court of Human Rights has also stopped the first scheduled flight taking asylum seekers to Rwanda. The policy also goes against the principle of non-refoulement due to the severe risk asylum seekers would face if returned to their home countries. Instead of listening to the Supreme Court, the government tried to create legislation to enforce its Rwanda Plan. The UK is one of the leading proponents of liberal democracies globally, yet this policy goes against the values it espouses.  

The MoU between Libya and Italy is laden with human rights abuses. Firstly, Libya is not a party to the UN Refugee Convention and Protocol, which already raises legal and ethical questions about whether migrants should be sent to Libya. The United Nations High Commissioner for Refugees (UNHCR) expressed concern, stating that “it is far from clear that Italy has taken the necessary precautions to ensure that it is not sending back any bona fide refugees to Libya, which cannot be considered a safe country of asylum.” Additionally, the UNHCR stated that refugees being removed from Libya to their country of origin violates the principle of non-refoulement. Both Italy and the EU have provided technical and financial support to Libya to stop migration flows to Europe, but a UN report states the migrants that are intercepted at sea and sent back face “murder, enforced disappearance, torture, enslavement, sexual violence, rape, and other inhumane acts…in connection with their arbitrary detention.” Similarly, an International Criminal Court  prosecutor stated crimes against migrants in Libya “may constitute crimes against humanity and war crimes.” Human rights organizations such as Human Rights Watch have argued that the EU and Italy are thus complicit in such crimes. Hence, the Libya case study is a salient example of exposing the hypocrisy displayed by European leaders, as “the anxiety over a refugee invasion from Africa reveals the contradictions present in Europe today, where, on the one hand, the moral imperative of universal emancipation is proclaimed, but on the other, policies and practice continue the trend of refusing a safe haven to the very refugees they have helped to create.” 

Hence, European states are seen as hypocritical as they advocate for human rights protection on the world stage, yet are knowingly putting migrants in a situation where their rights are violated. Even now, the EU faces scrutiny for atrocious human rights abuses in Tunisia by EU-funded security forces. Moreno-Lax and Pederson argue that “EU border externalization entrenches forms of undemocratic governance in third countries, empowering undemocratic actors, transforming their relative weight within domestic structures, and weakening democratic channels of scrutiny, accountability, and power control.” Hence, the EU may espouse democratic values and condemn authoritarianism, but concerning migration, they are more than willing to shift the responsibility to third countries and embolden their undemocratic, illiberal practices to keep migration out of Fortress Europe. As stated by Galeotti, European states are “underscoring a fundamental point, that authoritarian regimes can get not only a free pass from the EU on many issues but also lucrative assistance, so long as they continue to keep migrants out.”  

Nonetheless, I argue that hypocrisy costs are an insignificant drawback of the policy relative to other impacts, including the weaponization of migration. My reasoning is based on strong anti-immigrant sentiment in the countries where this policy is used. For example, Pew Research Center data suggests that “Greeks and Italians are…the most likely to be concerned about immigration from outside the EU (84% and 76%, respectively).” I am not arguing that European states are predominantly anti-immigrant, but rather that migrant camps in European states are common, and current populist governments in Europe thrive on anti-immigrant sentiment. Migration has moved from low politics to high politics and is now at the center of many political debates. The Leave campaign during Brexit partially derives its success from exploiting xenophobic views on migration in British society. As stated by Greenhill, “popular political discourses within the EU draw upon traditional nationalistic sentiments and xenophobic assertions that current waves of migrants and refugees reduce national living standards by siphoning away social resources from ‘real’ citizens, taking employment away from more qualified applicants, bringing tensions from their home state with them and committing a disproportionate amount of crime.” It is irrelevant if migrants pose a real threat, because “if they are perceived as fundamentally threatening to their security, culture or livelihood, anxious and motivated individuals and groups will mobilize to oppose their acceptance.” Due to migrant opposition, hypocrisy costs are less of a drawback to the policy of third-country agreements as many European citizens, particularly those who border the Mediterranean, are not concerned with migrant rights or hypocritical state action, so it is less likely costs will be imposed.  

Likewise, while European states are acting hypocritically, it does not mean hypocrisy costs are incurred. For the cost to be incurred, another actor needs to condemn the state for displaying hypocritical behavior. However, this policy is used globally from the US to Australia, thereby shielding European states from hypocrisy costs as many states themselves engage in the same behavior. Thus, it is usually human rights groups that condemn European states for their hypocritical behavior, which holds less weight. 

7. The Policy’s Popularity Among European Leaders

This paper has primarily focused on evaluating the effectiveness of third-country agreements and concluding that the policy fails to address the wicked problem of border security, in turn, creating significant drawbacks, such as the weaponization of migration and hypocrisy costs. This raises the question: why is the policy so widespread in Europe? For this section, I focus on the perspective of the European leaders who created and implemented the policy.

  Democratic countries are all plagued by short-termism. Offe argues in Europe Entrapped that democratically elected governments cannot address the structural issues afflicting the EU because citizens are focused on the short-term, stating “the problem is one of ‘time inconsistency’: The implementation of promising long-term strategies is obstructed by the failure of ‘presentist’ electorates fixated on a short-term time horizon to grant them green light, unless political leaders can persuade their constituencies to adopt a more far-sighted perspective.” Politicians’ primary goal is to get elected and to stay in power, so when it comes to migration management, politicians are not incentivized to devise policies focused on a long-term perspective on migration that addresses structural and wicked problems. As Streeck puts it, “long-term solutions are not even attempted because short-term problems take priority; holes keep appearing that can only be plugged by making new holes elsewhere.” In the case of the policy of third-country agreements, the “new holes” are the wicked problem of migration weaponization. 

I now examine the statements of European leaders to showcase how short-term political perspectives connect with the externalization policy of third-country agreements. Meloni states in regard to her support of the MoU with Tunisia that “work[ing] on the external dimension and stop[ping] the illegal departures of immigrants” is “the only way to seriously address the problem.” She argues that “this is what European citizens are asking of us.” European leaders recognize that citizens want solutions, and leaders believe third-country agreements can yield short-term, tangible results. Von der Leyen echoes Meloni, stating that “irregular migration is a European challenge” that “needs a European answer.” This European answer is not the dramatic structural reform of Europe’s asylum systems or improving legal pathways to residency or citizenship. Instead, externalization persists as the preferred approach and will likely remain so: “We want our agreement with Tunisia to be a template. A blueprint for the future. For partnerships with other countries in the region.” The UK is following suit, as Sunak states, “In order to fully solve this problem, we need a deterrent. We need to be able to say pretty simply and unequivocally that if you come to our country illegally, you won’t get to stay.” For European leaders, “an immediate reduction in irregular arrivals is sufficient for a deal to be considered successful, and a partner country to be cooperative and effective.” While I criticize the EU-Turkey deal and the Italy-Libya partnership, in EU circles, these deals are considered a success when merely considering a short-term number.  Now Italy is facing the same problem it did in 2023, but with Tunisia rather than Libya. It is the same story with slightly different characters, as European leaders continue to use the policy of third-country agreements as a temporary fix to reduce numbers.

European leaders are not ignorant that the policy of third-country agreements is a short-term solution. Migration was a central issue in the June 2024 elections, where right-wing, anti-immigrant parties thrived. As stated previously, European citizens, particularly those who border the Mediterranean, are not open to refugees and asylum seekers, and “pundits, politicians and even some policy makers may argue that migrants who are from different religious, linguistic and ethnic backgrounds than the majority in their newly adopted homelands are a danger to societal security.” For instance, during the 2015 migration crisis, a median of 59% across 10 EU countries voiced concern about the prospect of increased terrorism, and 50% believed refugees are a burden to society because they take jobs and social benefits that would otherwise be available to citizens of each nation. Mediterranean states in particular saw refugees from Syria and Iraq as a major threat. The Pew Research Center concluded that these negative views toward refugees are tied to negative views about Muslims. This explains why Ukrainian refugees in 2022 were more welcomed than Syrians in 2015. 

Refugees and asylum seekers are not always viewed as people in desperate need of protection, but as a national liability infringing on cultural identity and economic opportunities. European leaders, instead of trying to change the perceived negative image of migrants, capitalize on this xenophobic sentiment and use it to justify their externalization policies. Overwhelmingly, regardless of one’s position regarding refugees, most Europeans believed that the EU did a poor job in handling the 2015 refugee crisis. This includes a staggering 94% of Greeks and 88% of Swedes. Disapproval was high among many segments of society but exceptionally high among people with favorable views of the anti-immigrant parties in Britain (UK Independence Party), Germany (Alternative for Germany), and the Netherlands (Party for Freedom). European leaders recognize now that they should take a hard line on migration and assure the public there will not be a repeat of 2015. This is why the policy of third-country agreements is so appealing: politicians need a fast reduction in numbers, and it does not matter if it’s not sustainable. More sustainable policies addressing the problem’s wickedness, such as expanding legal channels for migrants to access the EU’s labor market, are not as politically desirable as the immediate impact of third-country agreements. 

If the policy of third-country agreements is more about optics than about effectively dealing with the European migration crisis, this begs the question of whether the policy is an instrument of political theater. In his book Border Games, Andreas outlines in Chapter 1 his thesis of border enforcement as political theater. The book focuses on the US-Mexico border, but Andreas describes the border as a “political stage” that can also apply to the European context. In essence, Andreas observes that actors enforce certain policies not because of their practical effectiveness but for their symbolic significance. The policy of third-country agreements is not just to prevent migrants from coming to Europe, but also to send a message to the public about the government’s commitment to border security. If we assume the policy of third-country agreements is more about optics, then this explains why leaders care less about incurring hypocrisy costs. If this policy is “for show,” then it does not matter how effective the policy is. It only matters if the public believes their leaders are doing something about combating the migration crisis.

8. Conclusion 

By viewing the European migration crisis as a microcosm of a wicked problem or as a wicked problem itself, I determined that the policy of third-country agreements fails to treat the crisis as a long-term structural issue. Firstly, I evaluated the policy’s effectiveness on its intended aim of deterrence and concluded that third-country agreements do not provide a sustainable, long-term deterrent effect. The policy deters migrants only in the short run, and even then, results are patchy at best, as seen by the small number of migrants returned from Greece to Turkey under the EU-Turkey deal. Next, I assert that the policy of third-country agreements in trying to address the wicked problem of border security exacerbates the wicked problem of weaponization of migration. I argue that this is the most critical drawback of the policy, as its wickedness entails a whole host of other problems, and involves a short run-long run trade-off. Lastly, I argue that the policy incurs hypocrisy costs, a drawback that is less significant compared to the weaponization of migration due to anti-immigrant sentiment in Europe overriding human rights concerns. 

For my second research question, my analysis was rooted in short run rather than long run logic, as I viewed the policy from the perspective of the leaders who implement these agreements. I concluded that the policy fulfills the short-term political aims of the politicians promoting the policy. European leaders prioritize being proactive in tackling migration crises and curbing migration flows, albeit for a limited period. The policy of third-country agreements is seen as a politically effective solution as by the time the problem resurfaces, a different political actor may be in the position of power. 

Recent developments with the EU’s MoU with Tunisia show that this policy appears to be here to stay. The deal with Tunisia already is displaying issues of weaponized migration and hypocrisy costs. Moving beyond the logic of deterrence will be a challenge, but it is the only way to tackle the wickedness of the European migration crisis. Unless Europe shifts its mindset to the long run perspective, these wicked problems will only persist.

Featured/Headline Image Caption and Citation: Migrant influx in Greece, Image source from FMT | CC License, no changes made

Two Artsakhtsis displaced from Nagorno-Karabakh in Goris, Armenia with the few possessions they managed to bring with them. | Credit: Anoush Baghdassarian.

One year ago this month, Azerbaijan launched a military offensive into the enclave of Nagorno-Karabakh which led to the total ethnic cleansing of over 100,000 ethnic Armenians in just one week. Until September 2023, Nagorno-Karabakh was overwhelmingly ethnic Armenian, self-governing as a de facto state that had declared independence from Azerbaijan in 1991.

From September 26-29, 2023, Anoush Baghdassarian, field researcher for the University Network for Human Rights, documented the experiences of refugees streaming into Armenia from Nagorno-Karabakh. The photos and testimonies gathered along the border bore witness to the final stage of Azerbaijan’s years-long campaign to empty Nagorno-Karabakh of its Indigenous Armenian population.

The world must hear these stories, particularly now as Azerbaijan assumes the global spotlight. In two months, world leaders will convene in Baku, Azerbaijan’s capital, for the 2024 United Nations Climate Change Conference (COP29). As those expelled from Nagorno-Karabakh remain in exile, Armenia and Azerbaijan now negotiate a peace treaty¹ that could require Armenia to withdraw² its cases against Azerbaijan from international courts. Azerbaijan has yet to face any meaningful consequences for the atrocities it committed. Meanwhile, the rights of the people captured in these images—along with over 150,000³ others—remain unaddressed and unrestored.

Amid the September 2023 military assault on Nagorno-Karabakh, Azerbaijani authorities vowed to fight “until the end”⁴ unless local Karabakh officials surrendered. Once Azerbaijani soldiers entered the villages, many residents had just 30 minutes to pack what they could and flee. Two sisters interviewed by UNHR recounted their escape on September 19, 2023: “There was no other choice. We weren’t able to take clothes, grabbed only our documents and ran away. . . . There were cars carrying 50 to 60 children.”⁵ 

Within 24 hours, the leadership of the de facto Nagorno-Karabakh Republic capitulated. Soon after, its president signed a decree to dissolve “all state institutions and organizations under their departmental authority.”⁶ 

Stuck in a 50-mile traffic jam visible from space, families were stranded for up to 40 hours⁷ on the road to Armenia—a journey that normally takes just two hours. One mother recounted, “We were on the road for two days. . . . Our children were hungry, thirsty. . . . Stuck in the car, there was no air to breathe.”⁸

Over the course of a single week, more than 100,600 Armenians fled Nagorno-Karabakh. One middle-aged father recalled the experience of evacuating civilians from his village: “I was going to elderly ladies and men and seating them in my tractor, 30, 40 people. . . . People were sitting on top of each other.”⁹

A grandmother from Martakert shared the heartache of fleeing: “During the war we saw a lot of loss. . . . We left everything, but we’d rather that all those people we lost were here with us instead.”¹⁰

The forced displacement of over 100,000 Armenians marked the culmination of a prolonged campaign of systematic persecution characterized by violence, discrimination, and repeated rights violations. Azerbaijan’s efforts to erase the Armenian presence in Nagorno-Karabakh has continued over the last twelve months through operations to destroy Armenian monuments, churches, and cemeteries.¹¹ This year, Nagorno-Karabakh was rated by Freedom House as the least free¹² country or territory in the world, with a worse ranking than North Korea, Afghanistan, or Sudan. 

In 2020, Azerbaijan released a stamp depicting a man in a biohazard suit standing over a map of Azerbaijan, fumigating the region of Nagorno-Karabakh. The imagery reflects a broader state-sanctioned policy of hate speech against ethnic Armenians. Azerbaijan’s President, Ilham Aliyev, has famously referred to ethnic Armenians as a “virus” and boasted that “Azerbaijani soldiers drive them away like dogs.”¹³ Published three years before the ethnic cleansing, the 2020 stamp stands as a chilling warning of the final chapter of forced displacement that would soon unfold. 

Nearly ten months before the ethnic cleansing, the Azerbaijani government blockaded¹⁴ the Lachin Corridor, Nagorno-Karabakh’s only passageway to Armenia and the primary entry point for humanitarian aid, on which the enclave’s populace depended. The blockade resulted in critical shortages of food, fuel, electricity, and healthcare. The UN labeled the crisis a “humanitarian emergency.”¹⁵ One affected woman described, “Every new day of the blockade [was] a life-and-death struggle.”¹⁶ 

By the time Azerbaijani munitions began falling on the regional capital of Stepanakert, the people of Nagorno-Karabakh had already endured the constant threat of starvation under blockade compounded by years¹⁷ of intimidation, arbitrary detentions, and unlawful killings. These conditions made life untenable and presented families with only one option when Azerbaijani forces took over the enclave: to flee for their lives.

Faced with impossible decisions, many families were separated during the exodus. In one case, a family was forced to leave behind their 95-year-old grandmother. The local mayor explained, “Because we had to climb through the mountains and forest to escape and we couldn’t carry the grandma, I told [the son] to leave her in the house.”¹⁸  

After arriving to safety in Armenia, a woman from Martakert expressed how she had no choice but to leave her home behind: “There was no way back. . . . They forcibly took everyone out of their homes. . . . We don’t have a place to go. We don’t have relatives to stay with here,” she said.¹⁹

Looking to the future, one displaced woman spoke with optimism, saying, “I believe I will return back to my Artsakh, my homeland, where I was born, where my father and relatives are buried.”²² Many others, meanwhile, expressed despair, “What Artsakh? Artsakh is gone. . . What international community? They don’t see us. We do not exist to them.”²³

One year ago, the international community failed to act to protect the people of Nagorno-Karabakh; indeed, it failed to act over years of escalating atrocities. Now, the world has the chance to advocate for a different path forward: a future in which, under guarantees of international protection, those forcibly displaced might return, keys in hand, and enter their homes once again.

1. https://eurasianet.org/armenia-and-azerbaijan-take-new-step-towards-finalizing-peace-deal. ↩︎
2. https://tatoyanfoundation.org/withdrawal-from-armenias-lawsuits-against-azerbaijan-in-international-instances-will-cause-irreparable-damage-to-the-republic-of-armenia-and-the-armenian-people/?lang=en. ↩︎
3. https://www.civilnet.am/en/news/768720/refugees-from-nagorno-karabakh-in-armenia-different-people-with-different-needs/. ↩︎
4. https://www.aljazeera.com/news/2023/9/19/azerbaijan-forces-attack-nagorno-karabakh-as-threat-of-new-war-looms. ↩︎
5. https://www.humanrightsnetwork.org/we-are-no-one. (pg. 182) ↩︎
6. https://www.humanrightsnetwork.org/nk-live-monitor. ↩︎
7. https://apnews.com/article/nagorno-karabakh-%20azerbaijan-armenia-separatist-government-5f7b940643a3d6e63a6f3d512158e51a. ↩︎
8. Ibid. (pg. 191) ↩︎
9. Ibid. (pg. 183) ↩︎
10. Ibid. (pg. 196) ↩︎
11. https://indd.adobe.com/view/b1b54fc0-dce2-4eb0-ba83-eb728c49dd20. ↩︎
12. https://freedomhouse.org/country/nagorno-karabakh/freedom-world/2024. ↩︎
13. https://president.az/en/articles/view/45924. ↩︎
14. https://www.ohchr.org/en/press-releases/2023/08/un-experts-urge-azerbaijan-lift-lachin-corridor-blockade-and-end. ↩︎
15. https://www.ohchr.org/en/press-releases/2023/08/un-experts-urge-azerbaijan-lift-lachin-corridor-blockade-and-end. ↩︎
16. Human Rights Defender of the Republic of Artsakh, Report on the Violations of Individual and Collective Human Rights as a Result of Azerbaijan’s Blockade of Artsakh, quoting from an interview with Mariam (pg. 9). ↩︎
17. https://www.humanrightsnetwork.org/we-are-no-one. ↩︎
18. Ibid. (pg. 195) ↩︎
19. Joint interview with UNHR and CFTJ, Goris, September 29, 2023. ↩︎
20. https://www.humanrightsnetwork.org/we-are-no-one. (pg. 195) ↩︎
21. Ibid. (pg. 197) ↩︎
22. Ibid. (pg. 201) ↩︎
23. Ibid. (pg. 199) ↩︎

Kathryn Hemmer is a senior at Yale University studying Political Science and Human Rights. She has done advocacy and documentation work in the US, Yerevan, and Geneva as a student researcher for the University Network for Human Rights.

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. 

Bibliography:

Acosta, Pablo, and Gabriel Montes-Rojas. “Informal Jobs and Trade Liberalisation in Argentina.” The Journal of Development Studies 50, no. 8 (2014): 1104-1118.

Baer, Werner, 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.

Blanton, Robert G., 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.

Calvo, Ernesto, and María Victoria Murillo. “Argentina: The Persistence of Peronism.” Journal of Democracy 23, no. 2 (2012): 148-161. 

Campos, Nauro F., Menelaos G. Karanasos, and Bin Tan. “From Riches to Rags, and Back? Institutional Change, Financial Development and Economic Growth in Argentina since 1890.” The Journal of Development Studies 52, no. 2 (2016): 206-223.

Castellani, Ana. “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.

Ciccariello-Maher, George. “Cutting the Populist Knot.” Latin American Research Review 55, no. 2 (2020): 368-378.

Cohn, Theodore. Global Political Economy: Theory and Practice. New York City: Routledge, 2016.

Cruces, Guillermo, Guido Porto, and Mariana Viollaz. “Trade Liberalization and Informality in Argentina: Exploring the Adjustment Mechanisms.” Latin American Economic Review 27, no. 13 (2018): 1-29. 

Dollar, David, and Jakob Svensson. “What Explains the Success or Failure of Structural Adjustment Programmes?” The Economic Journal 110 no. 466 (2000): 894-917.

Ejdesgaard Jeppesen, Anne Marie. “Economic Adjustment and Cultural Change: Peronist Unions in Argentina 1990.” International Journal of Manpower 15, no. 9 (1994): 77-88.

Felder, Ruth, and Hepzibah Muñoz Martinez. “Neoliberal Reforms, Currency Pegs and Crisis in Mexico and Argentina.” Policy & Society 27, no. 1 (2008): 43-53. 

Felder, Ruth, and Viviani Patroni. Austerity and its Aftermath: Neoliberalism and Labour in Argentina. Socialist Studies 7, no. 1/2 (2011): 259-281.

Goldin, Ian, and Mike Mariathasan. The Butterfly Defect: How Globalization Creates Systemic Risks, and What to Do about It. Princeton: Princeton University Press, 2014. 

Hermann, Christoph. “Another ‘Lost Decade’? Crisis and Structural Adjustment in Europe and Latin America.” Globalizations14, no. 4 (2017): 519-534.

Hope, K. R. and G. Kayira. “Development Policies in Southern Africa : The Impact of Structural Adjustment Programmes.” The South African Journal of Economics 65, no. 2 (1997): 118-126. 

James, Ben 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. 

Kentor, Jeffrey and Terry Boswell. “Foreign Capital Dependence and Development: A New Direction.” American Sociological Review 68, no. 2 (2003): 301-313.

Londero, Elio. “Trade Liberalization and Adjustment in Argentina.” The Journal of International Trade & Economic Development 12, no. 3 (2003): 225-246. 

Murillo, María Victoria, and S.J. Rodrigo Zarazaga. “Argentina: Peronism Returns.” Journal of Democracy 31, no. 2 (2020): 125-136.

Potts, Shaina. “Deep Finance: Socreign Debt Crises and the Secondary Market ‘Fix’.” Economy and Society 46, no. 3-4 (2017): 452-475. 

Reinsberg, Bernhard, 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.

Roy, Ravi K., and Manfred B. Steger. Neoliberalism: A Very Short Intriduction. Oxford: Oxford University Press, 2010.

Tausch, Arno. “Globalization and Development: The Relevance of Classical “Dependency” Theory for the World Today.” International Social Science Journal 61, no. 202 (2010): 467-488.

Teubal, Miguel. “Rise and Collapse of Neoliberalism in Argentina: The Role of Economic Groups.”  Journal Developing Societies 20, no. 3-4 (2004): 173-188. 

Teubal, Miguel. “Structural Adjustment and Social Disarticulation: The Case of Argentina.”  Science & Society  64, no. 4 (2000): 460-488.

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.

This piece was published in the Global Issue Print Edition (Volume 12)

Introduction

The Rwandan genocide of 1994 is considered one of the most egregious human rights violations in modern history.  In 100 days, ethnic Hutu extremists killed an estimated one million Rwandans.^[1]  The extremists carried out the murders with machetes at a rate three times faster than the killings during Nazi Germany’s peak.^[2]  While Rwandan citizens collectively reeled from the horrific scenes of slaughters marring their countryside, Rwandan women suffered an additional burden. During the 100 days of genocide, an estimated 500,000 women and girls were raped.^[3] Many faced multiple assaults by military personnel who apprehended women and girls attempting to flee the scene of their initial attacks.^[4]  The assaults amounted to genocidal rape, which Dr. Christopher Mullins, a professor and author on the structural and cultural aspects of violence, defines as

“…mass rape that extends beyond men satisfying their immediate sexual desires in a forceful demonstration of hypermasculinity… but as a tool of terror and of population elimination … used to generate fear in a subdued population, humiliate the population (both men and women), derogate women (through spoilage of identity) and create a cohort of mixed-ethnic children to maintain the humiliation/soilage/domination.”^[5]

The use of rape as a weapon of war represents a particularly damaging blow to Rwandan culture because Rwandans consider family the genesis of identity and the source of social development.^[6]  In committing genocidal rape across Rwanda, perpetrators created a gash in the fabric of Rwandan identity.  For over half a million women and girls, the end of the genocide’s 100 days marked the beginning of surviving with the trauma of sexual assault.  This paper considers international and domestic courts’ attempts to provide sexual assault victims with restorative justice.  Using the background provided by the Rwandan case-study, the paper will argue that restoring justice to survivors of genocidal rape requires the international court system to work with domestic courts in establishing a community of survivors.  Victim-based justice for sexual assault survivors also necessitates that courts conduct legal proceedings in a culturally appropriate way by adjusting court expectations such as language and procedure to adhere to community norms.  As an inherently victim-centric approach, this paper will mirror restorative justice principles to consider how to tailor policies to survivors’ needs.  

History

Rwanda was part of German East Africa from 1894 to 1918 before its transfer to Belgium under the League of Nations’ mandate system.^[7]  Belgium exploited ethnic divisions between the Hutu and Tutsi ethnic groups, encouraging the Hutu to resist Tutsi control.  Until Belgium rule, the issue of race was irrelevant to tensions between the Hutus and the Tutsis.  Instead, early strains between the two were focused on political clout since the Tutsi, an ethnic minority in Rwanda,  held more political power than the Hutus.^[8]  Racist Belgian colonial masters who argued there were inherent differences between Hutu and Tutsi supported the 1959 Hutu Revolution.^[9]  This ideology of intrinsic superiority perpetuated by Belgium sparked the eruption of violence in 1994.  As genocide survivor J.B. Kayigamba put it, “The colonial rulers sowed the seeds of hatred that led to later massacres of Tutsi.”^[10]  The direct influence of external actors in creating ethnic tensions in Rwanda produces a responsibility for these States to contribute to Rwanda’s recovery.  

Restorative Justice

Restorative justice requires victim participation in legal proceedings and reparation determinations.^[11]  As Claire Garbett, an External Research Fellow at the International Victimology Institute Tilburg notes, restorative justice is considered highly effective in promoting long-term stability in societies reeling from recent conflict and is therefore critical in conceptualizing responses to genocide in Rwanda.^[12]  Restorative justice provides victims a degree of agency in the justice system.  It seeks to equilibrate the power imbalance implicit in typical court proceedings.  Not only are the evidentiary hurdles particularly high in legal cases involving sexual assault, but the limitations associated with sharing testimony within the rigid parameters of typical courtroom proceedings can rob victims of their power throughout the process.^[13]  At the heart of restorative justice are three key pillars: encounter, amends, and reintegration.^[14]  Following an initial crime or assault, victims move into the amends pillar.  There is a common misconception that, according to this pillar, the legal community expects victims to forgive their assailants.  This is not the case.  Consider genocide survivor J.B.’s comment that “unlike what is suggested in Rwanda, I have never heard survivors of the Holocaust being asked to reconcile with the Nazis.”^[15]  As J.B. alludes to, forgiveness can be an impossible benchmark for victims to meet.  However, this does not invalidate the potential for amends.  Victims can seek amends in various form including as a judicial conviction, an acknowledgment of guilt from the attacker, or through discussions with the attacker’s family.  The paths for victims to seek amends are unlimited, but the needs and desires of victims must drive all requests. 

In a divergence from traditional court proceedings, restorative justice introduces flexibility into the justice system to acknowledge the diverse needs of survivors.  The reintegration pillar is especially relevant for sexual assault survivors.  It creates a responsibility to ensure protection and facilitate healing among survivors. Reintegration can catalyze linkages between the justice system and centers for survivors, providing resources to manage trauma.  Through its emphasis on victims’ needs during the legal process and in healing afterward, restorative justice is a method already tailored to aiding survivors of sexual assault.  Therefore, the following analysis of courts litigating post-genocide crimes in Rwanda seeks to uncover where restorative justice is lacking.  Additionally, the subsequent policy section frames prescriptions in terms of restorative justice to re-ingrain agency in survivors’ legal experiences. 

The Gacaca Court System

The Gacaca Courts began as an informal dispute resolution system in Rwanda as early as the 13th CE.^[16]  Deriving from the root word ‘grass,’ the Gacaca Courts are a communal experience intended to facilitate transparency by conducting trials publicly.^[17] The system was revised in 2001 and repurposed as a means of administering justice post-genocide.  Reforms mandated there be a minimum of 100 community members present before proceedings could commence.  They also outlined that elected key leaders (including trained judges, local politicians, and ‘people of integrity’) would serve as judiciaries. By making the cases publicly visible, Rwandan leaders intended to  build a body of collective knowledge that citizens could contribute to.  With rulings decided in the public eye, the community could close the case together and move into the healing process united.  By 2005, Gacaca Courts operated across Rwanda, and although it was a rather ad hoc system, they effectively adjudicated approximately 1.2 million cases.^[18]  This efficiency played a significant role in the nation’s ability to heal from genocide crimes.  

Some legal professionals have criticized the Gacaca Courts as corrupt committees lacking the adequate legal training to rule on cases.  However, when examining statistics, these claims are unfounded.  Of the 169,442 Gacaca judges, only 443 were dismissed for corruption.^[19]  This is not to say that only 443 judges were corrupt, as some corrupt judges may not have faced dismissal.  However, the decentralized nature of Gacaca Courts contained internal incentives, such as accountability to the community, to reduce corruption and improve governance.  It is therefore unlikely that many judges were able to get away with misconduct.^[20]  Additionally, when comparing sentences assigned by the Gacaca Court to those ordered by the International Criminal Tribunal of Rwanda (ICTR) and national Tribunals, scholars found the distribution of sentences administered by the three systems was strikingly similar.^[21]  This indicates the Gacaca Courts were not doling out disproportionate sentences but instead adhering to legal standards.  Thus, concerns about the lack of expertise among some judges did not manifest in unfair sentences.

Since the Gacaca Courts were not externally imposed, citizens saw them as legitimate and wanted to contribute.  Individuals mobilized to gather evidence, and, using kinship networks, private citizens developed tens of thousands of case files.^[22]  The system allowed nationals to contribute to the restorative process and granted universal access to knowledge of genocidal crimes.  The international community was quite skeptical of Gacaca Courts, but they amassed legitimacy among Rwandans because of their links to the Rwandan community.  Of 504 Rwandans in 2011, over 90% stated they had confidence in the Gacaca process.^[23]  This is a heartening statistic because it suggests the communal nature of Gacaca Courts allowed the community to move on from the atrocities of genocide somewhat effectively.

While the Gacaca Courts successfully aided many Rwandans’ attempts to move past the trauma of genocide, they failed to do so with victims of sexual assault.  Although beneficial in increasing transparency and communication among community members, the public nature of the courts was daunting and dangerous for victims of sexual assault.  Rwandan culture emphasizes a taboo of any sexual discussions or mentions of the body.  It is therefore against cultural norms for women to discuss sexual assault.^[24]  One woman who did testify was accused of lying and later stated “I would have preferred to testify in private because after I spoke in front of the assembly, [community members] snickered and whispered.”^[25]  Another woman who decided not to participate in Gacaca Courts said, “They [members of the Gacaca assembly] cry out and you become traumatized, you begin to cry. If you remember what happened, you feel that something has changed inside. An old woman like me, how can I stand before people and tell them everything?”^[26]  To violate cultural norms surrounding discussions of assault in front of a crowd was terrifying for many survivors. They worried that they would be considered impure following any public assault testimony and cited fears their husbands would leave them or they would never marry after testifying.^[27]    

The public nature of Gacaca proceedings also created safety concerns for victims.  Attendee numbers at Court could range from 100 to several thousand, and since witnesses stood up before these observers, there was no option for anonymity.^[28] The accused and their family members were often among the many onlookers.  One woman, B.R. described the terror she felt that her rapists would harm her remaining family.  “I think of my family which was large, with many children…Everyone was killed.  Try to understand, there are only three children and my mother who remain alive.”^[29]  After discussing her rape with some community members, her rapists began threatening B.R.’s mother, and given the inadequate security afforded by the Gacaca system, B.R. quickly fell silent.  B.R.’s statements emphasize the danger forced upon survivors and their loved ones when they stood up to accuse community members of sexual violence.  

Reliving their past trauma is already common for sexual assault victims in private trials.^[30] Remembering the events of one’s attacks repeatedly takes a toll on survivors’ psyches.  To undergo this difficult process publicly and without security protections was enough to dissuade many brave women from pressing charges through Gacaca Courts. Consequently, the Court witnessed few sexual assault trials.  “Since the launch of the pilot program in June 2002, 581 gacaca courts in ten provinces had registered approximately 134 cases of rape or sexual torture [as of 2004], as compared to approximately 3,308 cases of non-sexual violence crimes, such as murder, assault, or looting, brought before the same courts.”^[31]  This is a small sampling, but it provides insight into the disproportionate numbers of non-sexual violence cases that Gacaca Courts heard.  Given these discouraging numbers, it is clear the Gacaca system did not provide restorative justice for victims of sexual assault.  Most survivors were unwilling to testify about their attacks in the public settings Gacaca Courts insisted upon. They were unable to prosecute their assailants for fear of social and physical backlash.  Any system that intrinsically silences victims cannot be considered an appropriate avenue for gaining justice.  Therefore, while the Gacaca Courts benefited the community by promoting agency and healing from genocidal crimes other than sexual assault, it was not an appropriate system to try cases relating to rape.

The International Criminal Tribunal for Rwanda

The United Nations Security Council established the International Criminal Tribunal for Rwanda (ICTR) on January 1st, 1994, to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring States.”^[32]  The Akayesu case represented the first charges of rape as a crime against humanity and the first time rape was recognized as a means of perpetrating genocide.^[33]  Akayesu was the mayor of Taba, Rwanda found guilty on a variety of counts, including crimes against humanity and violations of the Geneva Conventions.  Following testimony about Akayesu raping Rwandan women at his offices during the genocide, the charge of rape as a crime against humanity was added to his indictment.^[34]  For the international community, and particularly for victims of genocidal rape, the conviction of Akayesu acknowledged the deep fragmentation sexual violence causes.  The decision set a landmark precedent and now acts as a deterrent for using rape as a tool of war.  Soldiers watching the convictions knew that the decision to partake in such violence would no longer go unpunished.

While the decisions of the ICTR were critical in establishing an official ruling on rape as a means of warfare, they did not effectively provide victims with restorative justice.  Patterns of victim exploitation permeated various cases the Tribunal handled.  The original indictment in the Akayesu case did not include a charge of rape despite the widespread evidence of sexual violence that human rights organizations gathered.^[35]  The Tribunal did not initially seek to provide victims of genocidal rape with justice.  However, the Jean-Paul Akayesu case changed this.  Akayesu was the mayor of the Taba Commune where he had exclusive control over the Commune’s local police force.  Under Akayesu’s control 2,000 people were killed during the genocide.^[36]  However, the prosecution against Akayesu worried that their case to prove genocidal intent was not strong enough to guarantee a guilty verdict.  Therefore, when Witness H, a Rwandan women called to present evidence against Akayesu, discussed unbelievable system of mass-rape originating in Akayesu’s Bureau Communal during her testimony, the prosecution pounced. Since the prosecution had not considered evidence of rape relevant to their case, they had not asked women about witnessing assaults.  It took a great deal of independent bravery from Witness H to bring these crimes to lights.  Given the scale of sexual assaults occurring in the Bureau Communal which included an inhumane system of signing women out against their wills, the prosecution moved to add charges of rape as a crime against humanity and rape as a crime of genocide to Akayesu’s indictment.  The prosecution presented the evidence they had gathered from Witness H to the Judges to increase the charges against Akayesu.  One of the Justices on the panel granted the prosecution’s request to add this charge to the indictment, and investigators returned to Rwanda to gather evidence on sexual assaults.  Since the original investigation did not emphasize the collection of sexual assault evidence, so upon returning to Rwanda, investigators had to start from square one.^[37]  

Upon returning to Rwanda, the Tribunal failed to liaise with local female leaders.  Consequently, Tribunal workers intimidated Rwandan women as the workers jumped out of the white UN vans to bluntly question survivors about their trauma.^[38]  Very few felt comfortable enough in this setting to discuss the details of their sexual assaults.  “Even those rare investigators who documented sexual violence did not gain the confidence of survivors and failed to ensure that witnesses were protected from possible retaliation.”^[39]  As a result, Tribunal workers left Rwanda and returned to Tanzania and the Hague (the two ICTR locations) with porous versions of events.  The haste and insensitivity with which Tribunal members gathered data inhibited a complete account of the extent of sexual violence.  The shallow nature of the investigations also failed to take customary Rwandan sexual violence responses into account. 

Discussions or accusations of sexual assault violated Rwandan cultural norms, which, in turn, deterred victims from sharing their experiences.  Ineffective privacy regulations by the ICTR meant Rwandans often knew who had flown to the Tribunal to testify, and these witnesses and their families were targeted.  One witness to the Tribunal, witness T.A., returned from the ICTR to find her home and family attacked.  As she attempted to pick up the pieces, her fiancé left her for violating cultural norms.^[40]  The accused and their family members had no trouble uncovering the whereabouts of witnesses given the ICTR’s ambivalence regarding witness protection.  Thus, the lack of security provided by the Tribunal put these women and their loved ones in great danger.  No system using women to strengthen a Court case without subsequently protecting them can be considered an example of restorative justice. 

Accounts of the Tribunal’s deafness to Rwandan culture emerged time and time again throughout the ICTR’s proceedings.  One such example was the use of language.  Rwandan women often described their sexual assaults as “getting married.”^[41]  This phrase frustrated the Eurocentric counsellors in the room because it was not the standard language used to describe sexual assault in Western courts.  The counsellors were comfortable working with the term rape and refused to adjust their conviction of the “right” way to label sexual assault.  As one Rwandan Court interpreter put it, “In my culture you don’t say the words for genitalia.  But in court you have to.  It is a shock for interpreters as well as witnesses.”^[42]  As she noted, the Court was inclined to force victims to adjust their vernacular to the western norm, rather than recognize that the Court should prioritize the comfort of the victims testifying.  

The Tribunal grappled with the convergence of several systems of law since leading judges and lawyers differed in their nationalities.  There was no overarching document establishing a protocol for how witnesses should be treated during either interviews or trials.  One early Tribunal worker, Lisa Pruit, created a guide for conducting appropriate interviews with victims of sexual assault.  Pruit emphasized the importance of treating witnesses with dignity and compassion while providing a safe place to share their memories.  She was publicly ridiculed for creating such an ‘unnecessary’ document, and eventually left the department.^[43]  It was not until the case of Akayesu some years later that her memo resurfaced, and efforts to make victims of sexual assault feel more comfortable in interviews began.  This change only occurred when Counsel recognized the merit of the rape charges against Akayeasu; no efforts were made to support sexual assault survivors before they were directly relevant to the Court proceedings. 

The Tribunal also suffered from the lack of consensus on the treatment of witnesses in the courtroom.  No provisions regarding badgering the witness were agreed to before proceedings.  When Pierre-Richard Prosper, an American lawyer, objected to the badgering of sexual assault victims during their cross-examinations, the presiding judge, Laity Kama of Senegal, dismissed his objections.  Kama’s national legal system did not recognize the merit of such objections and thus he refused to entertain them.^[44]  

There were also accounts of inadequate professionalism and excessive questioning during ICTR cases.  Witness T.A. endured both during her testimony.  The opposing Counsel in the Butare trial insinuated that witness T.A. could not have been raped because she had not showered and therefore must have smelled.^[45]  A judge began laughing at this demeaning line of questioning but did not shut it down.  After this cruel conduct, Witness T.A. faced another fourteen days of questioning. On the fourteenth, the opposing counsel once more asked her to go through her story, to which witness T.A. replied, “Counsel, I would like you to be told on my behalf that since I have been here, this matter has been put to me more than a hundred times. I don’t want to answer as if I have come here to sing some kind of chorus before the Tribunal.”^[46]  Instead of allowing her to reclaim her story and begin the healing process, inadequate legal protections exposed her to further trauma. 

As Steketee and Austin note, delays in the justice process directly correlate with extended recovery times for victims.^[47]  Witness T.A. experienced numerous delays and extensive traumatization during her testimony at the ICTR.  She faced pressure to retell her trauma countless times and faced badgering and belittling.  Throughout all this psychological abuse, the ICTR made no provisions to protect her.  The lack of regulatory action taken to avoid such inhumane treatment of witnesses dealing with trauma is appalling. 

The rigidity of the ICTR curtailed witnesses’ abilities to tell their stories.  Many victims agreed to make the trip to the Tribunal under the impression that they could tell their story in full. Instead, personal narratives were sliced into sterile pieces intended to aid the prosecution’s case by providing only digestible soundbites directly related to their argument.  This clipping of victims’ stories promoted the prosecution’s legal agenda but prevented victims from taking ownership of their stories.  The gathering of ICTR witness statements mirrored this issue.  Investigators translated the complex and traumatic events that witnesses recounted into a one-page document that prioritized dates over victims’ experiences.^[48]  These statements did not provide survivors an opportunity to explain their stories; rather they were hyper-edited documents intended to benefit court cases.  The Tribunal co-opted victims’ experiences, forgetting the central goal of restorative justice for victims.  

The use of sexual assault victims as pawns in the legal process showcases the lack of attention to victim-based justice that characterized the ICTR.  The prosecution in the Tribunal became more concerned with the logistics of winning cases than in protecting and providing justice for survivors of sexual assault.  

Comparative Analysis

Before moving into recommending reforms, readers must understand where the Gacaca system prevailed when the ICTR could not and vice versa. Outlining their shared deficiencies builds the foundation for necessary reforms.  While the ICTR suffered time and time again from its cultural illiteracy, the Gacaca Courts were firmly grounded in the community.  The strength of these ties allowed for the mobilization of Rwandans in evidence collection and facilitated rapid rulings.  The ICTR’s limited partnerships with local Rwandans harmed their evidence-gathering efforts since investigators did not know what witnesses should be contacted and were ignorant to Rwandan sexual assault vernacular.  The differences in location between the two judicial systems serve as a stark reminder of which prioritized communal healing.  The Gacaca’s location in Rwanda undoubtedly contributed to the high numbers of cases adjudicated, and witnesses presented there.  Meanwhile, witnesses testifying for the ICTR had to fly to Tanzania or the Hague and lodge in unfamiliar accommodations for weeks at a time.  The inconvenience and danger presented by such a trip could have been avoided if the ICTR had decided to operate in Rwanda. 

The ICTR did serve an essential function in bringing Rwandan justice to the international stage.  Its efforts in evidence-gathering confirmed the reality of the genocide to international actors.  The landmark ruling of rape as a form of genocide was also incredibly validating for victims and witnesses, and its significance should not be overlooked.  Given the individual merits of both systems, adjudication at both the domestic and international level is critical in cases of genocide.

Most of the shared deficiencies of the Gacaca Courts and the ICTR stem from the lack of sensitivity taken towards victims of sexual assault.  Neither system set out with a commitment to care for the well-being of sexual assault survivors, and thus attorneys took no additional effort during interviews or cross-examinations to reduce the PTSD associated with assault.  Both courts failed to ensure protections for witnesses, and many survivors consequently suffered retaliation.  Women were killed, their families were attacked, and their properties were ransacked.  By requesting testimony from these women while ignoring their subsequent security needs, both court systems treated witnesses as expendable pawns.  Such practice certainly strayed far from the amends and reintegration principles of restorative justice.  Additionally, both systems often forced victims to confront their attacker during trials. In permitting the accused’s attendance while witnesses re-lived their trauma, both Courts showed a profound insensitivity to the trauma associated with sexual assault.  

Judicial Reform

Survivors of sexual assault face specific trauma that judicial members must be sensitive to.  The development of a handbook for conduct in such cases would help reduce the re-traumatization of witnesses. Lisa Pruit and her memo regarding appropriate interviewing tactics for victims of sexual assault can serve as a foundation for a regulatory publication.^[49]  As part of this judicial handbook on managing sexual assault trials, clear limitations need to be placed on badgering the witness.  The conduct at witness T.A.’s trial where she recounted her story over fourteen times is an unnecessary and unprofessional use of the court’s time.^[50]  As Pierre-Richard Prosper, the lead prosecutor in the Akayesu case, made clear during Akayesu’s trial, the lack of a consistent ruling on witness badgering was to blame for its use against sexual assault survivors.^[51]  Since no higher document existed dictating how Kama should rule on witness badgering, witnesses were left unprotected as Kama ruled against every objection.  A potential handbook could include characteristics of witness badgering so judges from all nationalities could identify the practice.  This simple addition to the handbook could significantly reduce the Court-induced trauma that sexual assault victims face.

The sexual-assault Court handbook should also include protocols regarding the presence of the accused at the trial.  Should the witness request attendance from the accused in a desire to face them once more, the current system would suffice.  In that case, the accused can witness the testimony.  The witness can point out the accused in the trial space as is currently practiced.  If, however, a witness requests that the accused be banned from the trial room during testimony, this must be respected.  Attorneys could present witnesses with several photographs before the court and ask witnesses to point out their assailant as a means of identifying the accused.  They could then single out their attacker without having to see them face to face.  This is a far more humane method of conducting trials since coming into direct contact with their attacker can exponentially increase survivors’ anxiety and re-traumatization.^[52]  Such a method for managing the accused would be simple to outline in a potential handbook and place no further cost on the Courts.  

Allowing narration in the courtroom must be an additional reformative component of the handbook. Legal jargon used in Court is a particular form of language.  Short sentences are praised, and the desire to win is palpable.  This linguistic style does not condone the nonlinear recollections of witnesses suffering trauma.  Consequently, legal methodology needs to be adjusted to allow for alternative narration styles. Before the direct examination, the witness should be given time to tell the entirety of their story, un-edited for legal convenience.  When the direct examination is the only method for witnesses to tell their stories, witnesses have no agency because of their inability to control the direction of testimony.  Rather than being able to recall everything that happened to her, an abused woman must stick to telling the pieces of her story that are relevant to what the accused is charged with.  For example, if a victim is brought in to testify about sexual assault, she cannot subsequently discuss the murders of her children that might have happened the same day since those events do not contribute to the specific sexual assault charges.^[53]  All the pieces of an assault story contribute to the realities of trauma.  Therefore, curtailing witnesses’ stories to what is ‘relevant’ is synonymous with dictating what ‘matters.’  Such a value judgement strips the witness of agency in the process.  Thus, the recollection of events strays from a reclaiming of power lost, and becomes another way in which stories are suppressed, and courtroom retraumatization is introduced.  Once the witness is afforded adequate time to deliver her story, the direct examination can help the witness and the Court narrow in on the especially pertinent pieces of testimony.  Such reform represents an inexpensive commitment to granting survivors’ control over their trauma.

Building Relationships

The ICTR would have had more success and saved time if it invested in building connections with the local community — specifically with Rwanda’s female leaders.  The taboo nature of sexual assault applied to all aspects of a survivor’s life, and thus, when the burden of untold sexual assault became too great, it was often women leaders who women privately confided in.^[54]  Godelieve Mukasarai, a female Rwandan social worker, was instrumental in liaising with local women.  She founded Solidarity for the Development of Widows and Orphans to Promote Self-Sufficiency and Livelihoods (SEVOTA) to seek justice for genocide survivors and immediately began facilitating the healing process for rape survivors in her community. Since she previously worked with other Rwandan based NGOs and developed relationships through them, an NGO director put her in contact with the ICTR during their second attempt to collect evidence on sexual assaults.^[55]  Mukasarai became critical to gathering witness testimony for the ICTR.^[56]  Mukasarai put it succinctly in saying, “The bridge between international justice and women had to be a member of the community.”^[57]  Given this sharing method, the ICTR tribunal investigators could have avoided a great deal of inefficiency and cultural illiteracy if they liaised with local female leaders.  Since the Tribunal did not initially tap into these networks, they missed out on hundreds-of-thousands of witnesses because women were unwilling to break the taboo of their culture for insensitive strangers.  The investigation would have benefited from additional time spent in communities, talking with women, and working to develop relationships.

Connecting with local female leaders could have offset the anxiety that Tribunal investigators induced, while aiding in the codification of culturally appropriate terms for sexual assault.  Given the frustration over the phrase “getting married,” local vernacular needs to be indexed such that everyone in the Court understands what witnesses are referring to.  If women feel at-ease using “getting married” to describe their sexual assaults, then they must be allowed to do so.  The ICTR investigators could have worked with local female leaders to draft a document outlining phrases that Rwandan women would be comfortable using.  This document could then be distributed to all Court staff.  Again, the process’ goal is restorative justice, supporting victims to help them move on with the aid of the justice system.  As such, the system itself must be geared towards protection for victims. 

Witness Security

The most extensive oversight shared by the Gacaca system and the ICTR was undoubtedly their indifference to witness security.  The public nature of Gacaca Courts made them incompatible with protecting security for victims of sexual assault.  Instead, the National Rwandan Court network should have exercised complete jurisdiction over sexual assault cases because of its potential for privacy.  The National Courts required no community participation and thus removed the security threat associated with allowing the accused’s loved ones to witness the testimony.^[58]  Given this division of powers, the Gacaca Courts could continue benefiting the country through effective prosecutions without intensifying the risk and stigma for victims of sexual assault.  

Secure and discreet transportation between witnesses’ homes and the courts should also have been a priority. Under the National Court system, witnesses could be picked up at predetermined locations to avoid the dangerous optics of court employees coming to their homes.  International tribunals should mirror this method.  First, if possible (i.e. if active fighting is not occurring) a tribunal handling a country-specific issue should be based in that region.  This serves to link the tribunal to the local community and reduce the burden on witnesses.  Had the ICTR been based in Rwanda, secure and discreet transportation could have been provided for witnesses.  The tragedy of witness T.A.’s return to Rwanda after being at a remote ICTR location for over two weeks likely could have been avoided if her testimony was concealed.  

In the cases of both Tribunals and local judicial systems, methodologies for physical witness protection must also be put into place.  The risk that witnesses accept in testifying is too significant to justify a lack of security.  First, the severity of the threat towards a specific witness should be assessed.  If that witness has received threats, knows of an imminent attack planned, or can reasonably indicate a real and present threat to herself or her family members, security should be provided.  Witness security post-testimony could take one of two forms. First, should the witness request it, a bodyguard could be assigned to her and/or her family until the imminent threat has passed.  Second, should the threat escalate, the witness and her family could be granted sanctuary in a community shelter for women (more information to follow).  By tapping into the shelter networks, relocating the witness and her family should the threat fail to cease becomes possible.   

Responsibility to Facilitate Healing

Pillar two of the Responsibility to Protect (R2P), a global political commitment endorsed by all United Nations member states to prevent global atrocities, outlines the international community’s duty to help States build the capacity to protect their populations.^[59]  While this pillar conventionally refers to preventing genocide, it is equally relevant in protecting genocide-affected populations.  R2P centers around states’ responsibilities to protect their populations from atrocities or significant harms.  Ingrained in this prescription are the requirements to react and rebuild.^[60]  The responsibility to rebuild is gaining greater traction with questions of jus post bellum or the morality of the termination phase of war.^[61] R2P affiliated states could use its framework to funnel funds for post-genocide protection into Rwanda.  These contributions would off-set the costs associated with witness security discussed above.  They could also be leveraged as a means of financing centers for victim healing.  

The IBUKA (Rwanda’s largest genocide survivor organization meaning “never forget” in Kinyarwanda) developed a peer-support program to help women gain the tools necessary for surviving with trauma.^[62]  Their teachings focused on assisting women in pushing past traumatic memories.  While this was a useful framework, it was entirely too small to benefit the majority of Rwandan women.  In 2013, there were only 30 women enrolled in the peer-support program.^[63]  Thus, while the materials provided by the IBUKA helped manage the trauma of some women, the limited access to the program inhibited healing and reconciliation.  If instead, the IBUKA were  accessible as a source of expertise in methods for female trauma reduction and healing on a wider scale, it could have produced educational materials for local communities.  These resources could then have been distributed to the local women’s shelters constructed using R2P funding.  These centers could tap into networks of female leaders to spread education and facilitate safe spaces for victims to discuss their trauma.  

Victoire Mukambanda, a sexual assault victim who testified during Akayesau’s trial, said, “Keeping quiet kills you softly.  That pain in your heart destroys you.  But when you open up and you talk about it, the wound gradually gets better.”^[64]  Given the consistent theme of healing through participation in female support groups, this process must be encouraged for survivors.  It is an international responsibility to contribute to establishing local centers dedicated to protecting and healing abused women since their reintegration is critical to rebuilding the state.  National organizations such as the IBUKA do have a place in providing education for these local communities, but managing trauma ultimately takes place through intimate conversations at the grassroots level. 

Framing Justice in the Victim’s Terms

The modern justice system concludes with declaring an accused either guilty or not guilty.  This verdict is not enough to cover the complexities associated with granting victims of sexual assault restorative justice.  For many survivors, a verdict of guilty is insufficient in making a difference for their attempts to heal.  Instead, many survivors cite a desire for a personal acknowledgment of guilt from their attacker.^[65]  Victims often find the impersonal ruling of the Court superficial when compared to the validation afforded by an accused admitting to their role in an attack.  At the end of one woman’s testimony in Akayeasu’s trial, she looked directly at him and said, “Can’t you at least say you’re sorry.”^[66]  

Given that victims of sexual assault face intense scrutiny over the veracity of their statements, an acknowledgment of the reality of an attack can make a substantial difference in allowing women to process their trauma.  Court systems could develop several avenues to accommodate this need specific to sexual assault survivors.  In the proposed handbook, a provision should be made to allow a convicted assailant to write personal acknowledgments of guilt to survivors.  This measure could not be forced upon the convicted but would be looked favorably upon by the court.  Victims of the assault would be under no obligation to read the acknowledgment of guilt but would have the opportunity if they so choose.  This is an example of a free method that prioritizes victims’ needs and wants over strict adherence to traditional court practice. Small evolutions in legal norms, such as this one, promote restorative justice since the reparations process is developed in part by victims.  

Reconciling Opposing Views

These policy recommendations focus on feasible methods for introducing restorative justice into sexual assault cases, but this integration is not supported by all legal personnel.  Traditionally, law has been an inflexible institution.  Legal scholars rationalized that if courts treated everyone the same, without bias or sensitivity, an equitable system would emerge.  The phrase “justice is blind” indicates legal rulings should be made without considering victims’ specific circumstances.  Some legal personnel cling to this norm, arguing processes of restorative justice remove impartiality and corrupt the judicial system.  This reasoning directly contributed to the traumatization of sexual assault victims in Rwanda.  

In the Gacaca system, women could not testify privately despite the widespread knowledge that the Courts’ public nature negatively affected rape survivors.  The Gacaca system prioritized legal norms over victims’ access to justice.  In the ICTR, skepticism over introducing any restorative justice processes was rampant.  The early rejection of the Pruit memo indicates a disinterest in engaging with victims of sexual assault differently than other witnesses.^[67]  In 2005, ICTR prosecutors were reluctant to allow witnesses to access counselors.  One prosecutor stated that if victims spoke to counselors, “the defense could say that someone put these stories in their heads.”^[68]  While this stands as another example of the prosecution prioritizing legal success over the well-being of their witnesses, it also indicates an underlying critique of reformative justice.  Prosecutors feared that external involvement by counselors for sexual assault victims would compromise the impartiality that the legal system supports.  As a departure from traditional practice, allowing access to counselors for victims of sexual assault violated the prescriptions of “blind justice.”  It is this archaic, inflexible thinking that counters every principle of restorative justice.

Allowing sexual assault survivors access to counselors would not have affected the veracity of any sworn in statements because such counselors are tasked with aiding survivors, not manipulating their memories.  Instead, the practice could have served to initiate the healing process for victims.  Adjusting to a restorative justice system has no effect on the fairness of a trial since the underlying evidence provided remains the same.  Rather, restorative justice reforms change the process of court proceedings to accommodate the particularities of trying sexual assault cases. By forcing justice to be ‘blind’ the legal system becomes blind to its own implicit biases, and the needs of those seeking justice.  Such rigidity actively harms witnesses, whereas restorative justice has the potential to protect and heal survivors. 

Conclusion

The tragedies of genocidal rape in Rwanda cannot be undone.  The heartless cruelty of perpetrators left the nation fractured.  However, Rwanda is a case study capable of rewriting how international and national communities deal with genocide and sexual assault going forward.  Investigation of the ICTR yields the overwhelming conviction that future international Tribunals must be grounded in the local culture of the region they are adjudicating.  National systems of justice excel in cultural literacy and can mobilize the community to accommodate a vast number of trials.  Both the ICTR and the Gacaca Courts demonstrate the complexities associated with providing justice for sexual assault survivors, who are a vulnerable population in need of specialized legal provisions.  A handbook regulating legal conduct in sexual assault cases could significantly reduce the trauma of victims currently imbedded in court proceedings.  The failures of the ICTR and Gacaca Courts emphasize the importance of witness security for assault survivors.  Such witnesses must be kept out of the public eye and protected from retribution.  Concerns about witness security also emphasize the importance of secure centers for healing at the local level, which can inform reintegration policy.  Finally, the necessity of facilitating female relationships throughout the justice process became clear in both the ICTR and Gacaca systems.  These networks are central to both evidence-gathering and the trauma-reduction processes.  The Rwandan genocide went down in history as the genocidal rape of a nation.  To honor all victims, it is the responsibility of legal scholars to rewrite local and international judicial norms.  It is only through such revisionary practices that the facilitation of restorative justice for sexual assault survivors can become a reality. 

Works Cited:

Bellamy, Alex J. “Conflict Prevention and the Responsibility to Protect.” Global Governance 14, no. 2 (2008): 135-56. 

Burke, Daniel. “Holocaust, Rwandan Genocide Compared.” LancasterOnline, April 3, 2006. https://lancasteronline.com/news/holocaust-rwandan-genocide-compared/article_26dd84e9-7ac0-5c7d-8061-ae459fd0ad8c.html.  

Centre for Women, Peace + Security. “Jean-Paul Akayesu Case.” Tackling Violence against Women. Last modified August 7, 2016. https://blogs.lse.ac.uk/vaw/landmark-cases/a-z-of-cases/jean-paul-akayesu-case/.

Daly, Kathleen. “Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Cases.” The British Journal of Criminology 46, no. 2 (2006): 334–56. 

Department of Public Information. “ The Justice and Reconciliation Process in Rwanda.” Outreach Programme on the Rwanda Genocide and the United Nations , March 2014.

Fox, Nicole. “Oh, Did The Women Suffer, They Suffered So Much: Impacts of Gendered Based Violence On Kinship Networks in Rwanda.” International Journal of Sociology of the Family 37, no. 2 (2011): 279.

Garbett, Claire. “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice.” Restorative Justice 5, no. 2 (2017): 198–220. 

“IV. Barriers to Justice For Sexual Violence Crimes.” Rwanda: Struggling to Survive: IV. Barriers to Justice for Sexual Violence Crimes. Accessed March 28, 2021. https://www.hrw.org/reports/2004/rwanda0904/5.htm.

Kayigamba, J. B. “Without Justice, No Reconciliation: A Survivor’s Experience of Genocide.” In After Genocide Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond, edited by P. Clark & Z. D. Kaufman, 33-42. New York: Columbia University Press, 2009.

Koomen, Jonneke. “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda.” The University of Chicago Press Journals 38, no. 2 (2013): 253-277.

Macauley, Cameron. “Women After the Rwandan Genocide: Making the Most of Survival.” Journal of Conventional Weapons Destruction 17, no. 1 (2013): 35–37.

 “Meet Godelieve Mukasarasi, Rwanda.” Last modified August 26, 2016. https://nobelwomensinitiative.org/spotlight-godelieve-mukasarasi/. 

Mitchell, Michele, and Louvel, Nick, directors. The Uncondemned.  Film at Eleven Media, 2015.  

O’Reilly, Colin, and Yi Zhang. “Post-Genocide Justice: The Gacaca Courts.” Development Policy Review 36, no. 5 (2016): 561–576. 

“Rwanda under German and Belgian Control.” Encyclopædia Britannica. https://www.britannica.com/place/Rwanda/Rwanda-under-German-and-Belgian-control.

Steketee, Gail, and Anne H. Austin. “Rape Victims and the Justice System: Utilization and Impact.” Social Service Review 63, no. 2 (1989): 285–303. 

“United Nations International Residual Mechanism for Criminal Tribunals.” The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda. Accessed March 28, 2021. https://unictr.irmct.org/en/tribunal.

“United Nations Office on Genocide Prevention and the Responsibility to Protect.” United Nations. Accessed March 28, 2021. https://www.un.org/en/genocideprevention/secretary-general.shtml. 

References:

^[1] Nicole Fox, “Oh, Did the Women Suffer, They Suffered So Much: Impacts of Gendered Based Violence On Kinship Networks in Rwanda,” International Journal of Sociology of the Family 37, no. 2 (2011): 279.

^[2]Daniel Burke, “Holocaust, Rwandan Genocide Compared.” LancasterOnline, April 3, 2006, https://lancasteronline.com/news/holocaust-rwandan-genocide-compared/article_26dd84e9-7ac0-5c7d-8061-ae459fd0ad8c.html.

^[3] Ibid, 288.

^[4] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[5] Fox, “Oh, Did the Women Suffer,” 279.

^[6] Ibid, 283.

^[7] “Rwanda under German and Belgian Control,” Encyclopædia Britannica, accessed March 28, 2021, https://www.britannica.com/place/Rwanda/Rwanda-under-German-and-Belgian-control.

^[8] Ibid. 

^[9] J. B.  Kayigamba, “Without Justice, No Reconciliation: A Survivor’s Experience of Genocide,” in After Genocide Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond, ed. P. Clark & Z. D. Kaufman (New York: Columbia University Press, 2009), 34.

^[10] Ibid, 35.

^[11] Claire Garbett, “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice,” Restorative Justice 5, no. 2 (2017): 199.

^[12] Ibid, 199. 

^[13] Kathleen Daly, “Restorative Justice and Sexual Assault: An Archival Study of Court and Conference Cases,” The British Journal of Criminology 46, no. 2 (2006): 353.

^[14] Claire Garbett, “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice,” Restorative Justice 5, no. 2 (2017): 201.

^[15] J. B.  Kayigamba, “Without Justice, No Reconciliation: A Survivor’s Experience of Genocide,” 41. 

^[16] Colin O’Reilly and Yi Zhang, “Post-genocide justice: The Gacaca Courts,” Development Policy Review 36, no. 5 (2016): 536.

^[17] “IV. Barriers to Justice For Sexual Violence Crimes,” Rwanda: Struggling to Survive: IV Barriers to Justice for Sexual Violence Crimes, accessed March 28, 2021, https://www.hrw.org/reports/2004/rwanda0904/5.htm. 

^[18] Department of Public Information, “ The Justice and Reconciliation Process in Rwanda,” Outreach Programme on the Rwanda Genocide and the United Nations, March 2014. 

^[19] O’Reilly and Zhang, “Post-Genocide Justice,” 569.

^[20] Ibid, 568.

^[21] Ibid, 567.

^[22] Ibid, 567.

^[23]  O’Reilly and Zhang, “Post-Genocide Justice,” 573.

^[24] Jonneke Koomen, “Without These Women, the Tribunal Cannot Do Anything”: The Politics of Witness Testimony on Sexual Violence at the International Criminal Tribunal for Rwanda,” The University of Chicago Press Journals 38, no. 2 (2013): 259.

^[25] “IV. Barriers to Justice For Sexual Violence Crimes,” Rwanda: Struggling to Survive: IV Barriers to Justice for Sexual Violence Crimes, accessed March 28, 2021, https://www.hrw.org/reports/2004/rwanda0904/5.htm.

^[26] Ibid. 

^[27] Ibid.

^[28] Ibid.

^[29] Ibid.

^[30] Gail Steketee and Anne H. Austin, “Rape Victims and the Justice System: Utilization and Impact,” Social Service Review 63, no. 2 (1989): 293.

^[31]“IV. Barriers to Justice For Sexual Violence Crimes,” Rwanda: Struggling to Survive: IV Barriers to Justice for Sexual Violence Crimes, accessed March 28, 2021, https://www.hrw.org/reports/2004/rwanda0904/5.htm.

^[32] “United Nations International Residual Mechanism for Criminal Tribunals,” The ICTR in Brief | United Nations International Criminal Tribunal for Rwanda, accessed March 28, 2021, https://unictr.irmct.org/en/tribunal.

^[33] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[34] Ibid. 

^[35] Ibid. 

^[36] “Jean-Paul Akayesu Case.” Tackling Violence against Women, Centre for Women, Peace, + Security, accessed August 7, 2016, https://blogs.lse.ac.uk/vaw/landmark-cases/a-z-of-cases/jean-paul-akayesu-case/.

^[37] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[38] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  265.

^[39] Ibid, 259.

^[40] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  267.

^[41] Ibid, 265.

^[42] Ibid, 265.

^[43] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[44] Ibid.

^[45] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  266.

^[46] Ibid. 266-267.

^[47] Steketee and Austin, “Rape Victims and the Justice System,” 297. 

^[48] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  261.

^[49] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[50] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  266-267.

^[51] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[52] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  264.

^[53] Koomen, “Without These Women, the Tribunal Cannot Do Anything,”  264-265.

^[54] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[55] Ibid.

^[56] “Meet Godelieve Mukasarasi, Rwanda,” last modified August 26, 2016. https://nobelwomensinitiative.org/spotlight-godelieve-mukasarasi/. 

^[57] Ibid.

^[58] Department of Public Information, “ The Justice and Reconciliation Process in Rwanda,” Outreach Programme on the Rwanda Genocide and the United Nations, March 2014. 

^[59] “United Nations Office on Genocide Prevention and the Responsibility to Protect,” United Nations, accessed March 28, 2021, https://www.un.org/en/genocideprevention/secretary-general.shtml.

^[60] Alex J. Bellamy,”Conflict Prevention and the Responsibility to Protect,” Global Governance 14, no. 2 (2008): 135.

^[61] Ibid, 135.

^[62] Cameron Macauley, “Women After the Rwandan Genocide: Making the Most of Survival,” Journal of Conventional Weapons Destruction 17, no. 1 (2013): 36. 

^[63] Ibid, 37.

^[64] The Uncondemned, directed by Michele Mitchell and Nick Louvel (Film at Eleven Media, 2015).

^[65] Ibid.

^[66] Ibid.

^[67] Ibid.

^[68] Koomen, “Without These Women, the Tribunal Cannot Do Anything,” 272. 

1. INTRODUCTION

Neutrality, in its traditional sense, was activated when conventional war broke out and was limited to neutral states refraining from taking part in active hostilities by not taking any sides during the conflict.  However, with the rapid advancement of technology and new discoveries, conventional warfare has undergone significant transformation over the years. Post World War II, conventional warfare has been replaced by other modern means such as nuclear, space and cyber warfare. The concept of neutrality has evolved with the changing international system and adapted itself to the dynamic practices of war and security prevalent today. This research note aims to analyze the application of the traditional concept of neutrality to such non-traditional means of warfare in the context of the 21^st century with its shifted focus on promoting equality of access and responsibility between states in times of peace as well as conflict.

2. THE PRINCIPLE OF NEUTRALITY IN INTERNATIONAL LAW

The concept of neutrality emerged from a desire of states to refrain from being involved in wars waged by other states. In its simplest form, it is defined as a “policy adopted by countries at peace towards countries at war.”^[i] The law of neutrality as enshrined in the Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land [“Hague Convention V”] and the Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War [“Hague Convention XIII”] lay down the formal rights and duties of neutral states during conflict.^[ii] The duties of neutral states include abstention from participation in a war and impartiality in their dealings with belligerent states, and the rights of neutral states include protecting their territorial integrity from belligerent states, by force if necessary. The Hague Conventions explicitly permit neutral states to continue trading with belligerent states provided they refrain from selling munitions to the belligerents and impose equal trading restrictions (if any) upon each of the warring states.^[iii]

3. THE APPLICATION OF THE LAW OF NEUTRALITY TO NUCLEAR, SPACE AND CYBER WARFARE. 

• THE LAW OF NEUTRALITY AND NUCLEAR WEAPONS

The International Court of Justice’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons acknowledged the application of the law of neutrality to nuclear weapons.^[iv] However, it did not go any further to delineate the scope of the application of the law of neutrality to nuclearization. Due to the peculiar nature of nuclear weapons and their inevitable consequence of lethal radioactive fallout that transcends territorial boundaries, the law of neutrality is practically rendered meaningless. The proponents of nuclear weapons as a mode of deterrence have argued that any harmful effect of the use of such weapons is merely collateral damage and does not per se violate the principle of neutrality.^[v] A plain reading of Article I of the 1907 Hague Convention V, which states that the territory of a neutral state is inviolable, indicates that this provision is absolute and unconditional.^[vi] Further, the deleterious and irreversible effects of radiation due to the use of nuclear weapons — ranging from injury and loss of life to environmental degradation and “nuclear winters” — qualifies radioactive fallout as an instrumentality of war.^[vii] Thus, this means that any radioactive fallout or other blast effects of a nuclear weapon that are not intended for a neutral state but carry over into such a state’s territory and adversely affect its population would result in violation of the law of neutrality. 

Since nuclear weapons are unable to differentiate between belligerent and neutral states, the scope of the law of neutrality is limited.^[viii] In order to be meaningful, the principle of neutrality has to emphasize complete avoidance of nuclear war due to the uncontrollable and adverse effects of the use of nuclear weapons.^[ix] Even though the International Court of Justice in its Advisory Opinion was unable to hold the threat or use of nuclear weapons to be illegal when the existence of the state itself was threatened,^[x] there has been a growing movement around the world to ban nuclear weapons altogether in light of the humanitarian consequences of such use. This has culminated in the Treaty for Prohibition of Nuclear Weapons that recently came into effect on 22 January 2021. This treaty prohibits state parties from using, threatening to use, developing, producing, manufacturing, acquiring, possessing, stockpiling, transferring, stationing, or installing nuclear weapons.^[xi] This treaty aims to reinforce the objective of nuclear disarmament as already laid down in the Nuclear Non-Proliferation Treaty and the Comprehensive Test Ban Treaty. Even though none of the nine nuclear-equipped states have acceded to this treaty, it serves to delegitimize nuclear weapons and strengthen the position of illegality of their use, or threat to use, in international law. The obligation on states party to the Treaty for Prohibition of Nuclear Weapons is more pro-active as compared to the passive obligations under the Nuclear Non-Proliferation Treaty. While the latter urges states to undertake ‘negotiations’ in good faith for nuclear disarmament,^[xii] the former calls upon states to play a more active role to eliminate any nuclear weapons programs of their own and remove any nuclear weapons belonging to another state from its territory.^[xiii] It also imposes an obligation on nuclear powers who seek to accede to the treaty to either destroy its nuclear weapons and then accede to the treaty, or accede to the treaty and then destroy its nuclear weapons within 60 days of accession.^[xiv]  

Thus, the law of neutrality has limited scope when applied to nuclear weapons. The nature of nuclear technology is such that if used it shall inevitably undermine the legitimate right of an independent state to remain neutral. Thus, only by avoiding nuclear war will states not party to the conflict be able to exercise their rights as neutrals and maintain their sovereignty. 

• THE LAW OF NEUTRALITY AND OUTER SPACE

Article II of the 1967 Outer Space Treaty lays down that “the outer space including the moon and other celestial bodies is not subject to national appropriation by claims of sovereignty, by means of use or occupation or by any other means” and is reflective of customary international law.^[xv] Thus, in space law, outer space is considered to be a res communis omnium, i.e. belonging to the entire community.^[xvi] As the law of neutrality is strictly territorial in nature and outer space is exempt from any exercise of territorial sovereignty, this would imply that the law of neutrality does not apply to outer space. Due to this, it would be incorrect to apply the principle of neutrality under The Hague Convention V and The Hague Convention XIII to outer space as these provisions impose an obligation on belligerent parties to respect a neutral territory’s inviolability but do not extend to protect objects that are located outside this neutral territory. Thus, outer space is predominantly governed by space law and rules and principles of general international law. 

For instance, space objects used by a neutral state for non-commercial government purposes enjoy sovereign immunity that belligerent parties are bound to respect. This obligation to refrain from violating a neutral state’s sovereign immunity arises from general rules and principles of international law, such as the sovereign equality of states as laid down in Article 2 (1) of the United Nations Charter, and not necessarily from the law of neutrality.^[xvii] Similarly, another branch of law that governs attacks against neutral space objects is the law of targeting. As per the law of targeting, if neutral space objects were to contribute in a belligerent party’s military action by virtue of their use, purpose, or location, then such neutral space objects can constitute lawful military objectives that can be attacked by the opposing belligerent party.^[xviii] When a belligerent party attacks a neutral space object that offers a definite military advantage in consonance with the law of targeting, then the neutral state cannot plead violation of its sovereignty. 

Even though the law of neutrality is per se inapplicable to the outer space, this does not mean it is wholly irrelevant either. For instance, the launching of belligerent military space objects from within the territory of a neutral state amounts to a violation of the principle of neutrality. Additionally, the law of neutrality prohibits the incursion or transit of belligerent aircrafts, unmanned combat aerial vehicles, or missiles through neutral airspace.^[xix] The scope of this prohibition also includes military space objects that transit neutral airspace before reaching outer space. In such cases, the neutral state must prevent or terminate such violation of its neutral airspace within its capability.^[xx]

Further, the scope of Article III of The Hague Convention V as discussed above is broad enough to prohibit the erection, installation, and use of ground stations on neutral territory for controlling or communicating data to belligerent military space objects. As the belligerent party would effectively be using neutral territory as a base to conduct its military operations, such an act would be violative of the law of neutrality.^[xxi]

Neutrality is also considered violated in the event that a neutral state supplies to a belligerent state any object that has military relevance, such as remote sensing satellite imagery or earth imaging data.  In this case, the supplying state would lose its neutral status.^[xxii]

To conclude, even though the law of neutrality may not be applicable in outer space, it is still relevant to belligerent military space objects that are launched from neutral territory or transit through neutral airspace before reaching outer space. It is the duty of neutral states to exercise due diligence so as to prevent a satellite launch from their territory when they have reason to believe that such a satellite is intended for hostile operation against a belligerent party with which they are at peace.^[xxiii]

• THE LAW OF NEUTRALITY AND CYBERSPACE

Cyberspace is the interdependent network of information technology infrastructures that includes the internet, telecommunication networks, computer systems, and embedded processors and controllers in critical industries.^[xxiv]Governments and industries all around the world are heavily dependent on cyberspace to store critical information and data, which renders this space more vulnerable to cyberattacks as a form of proxy conflict by belligerent parties. The 2007 attack on the Estonian government’s cyber infrastructure and the 2008 distributed denial of service (DDoS) cyberattack against Georgia, both allegedly by Russia, are two such instances. In the latter instance, Georgia sought cyber refuge in the servers of American private corporations without the approval of the U.S. government — a move that threatened the United States’ neutral status.^[xxv]

The principle of neutrality is integral to cyber warfare. Given the internet’s borderless international structure, a belligerent may route the attack through neutral states’ servers or launch cyberattacks from within the territory of the neutral state itself. Even though there is no physical violation of the neutral state’s territory in such cases, attacks routed through their cyber infrastructure prima facie violate the principle of neutrality. As stated previously, the principle of neutrality is applicable in situations of international armed conflict. The position in international law as to whether cyberattacks constitute legitimate acts of armed conflict is unclear. The United Nations Charter defines an armed attack as a “crossing of geographic domains by the use of armed force.”^[xxvi] In light of this, it has been argued that malicious software effectively moves a weapon across cyberspace that can cause physical destruction, and hence cyberattacks can constitute an armed attack within the meaning of the United Nations Charter.^[xxvii] Thus, when an information packet containing a malicious code travels through the cyber infrastructure of a neutral state, it amounts to a ‘munition of war’ under Article II of The Hague Convention V and results in violation of such state’s neutrality.^[xxviii]

The applicability of the principle of neutrality to cyberspace has also been reiterated in the HPCR Manual on International Law Applicable to Air and Missile Warfare, which has been endorsed by several states and hence evidences opinio juris.^[xxix] In accordance with this principle, belligerent parties are prohibited from engaging in “the use of network-based capabilities to disrupt, deny, degrade, manipulate, or destroy information resident in computers and computer networks or the computers and networks themselves” of a neutral state.^[xxx]

The principle of cyber neutrality confers upon a state not party to the cyber conflict the right to remain neutral by not taking sides or supporting any cyber belligerent so as to maintain relations with all belligerent parties. In addition to this, a strict interpretation of the concept of cyber neutrality also imposes a duty on neutral states to prevent a cyberattack from either originating or being routed through their cyber infrastructure, as well as preventing their own citizens from independently participating in a cyberattack in any way. This positive obligation on states poses practical problems for two reasons. First, it presupposes knowledge (either actual or constructive) of the neutral state before the cyberattack, which is highly improbable owing to the vastness of the cyber space. Second, it entails government surveillance of citizens’ activities within cyberspace through constant monitoring, which is unacceptable in most countries that protect citizens’ right to free speech/internet communication and privacy. Despite this, states may risk losing their neutral status if they fail to take action, which could entitle the belligerent party whose security interests have been adversely impacted to take measures to terminate the violation of neutrality.^[xxxi]

Further, Article III of The Hague Convention V prohibits belligerents from erecting a wireless telegraphy station or any other apparatus for communicating with belligerent forces on land or sea within the territory of a neutral state.^[xxxii] In the present context, the term ‘other apparatus’ has been interpreted broadly to include communication through cyberspace as well. In light of this, Georgia can be said to have violated this provision when it was a belligerent state in conflict with Russia and it set up websites in U.S. cyber neutral territory and used them to communicate with its forces. However, this law is subject to the exception laid down in Article VIII of The Hague Convention V that states that there is no violation of neutrality provided the neutral state impartially permits equal use of its telecommunications infrastructure to all belligerents.^[xxxiii] Here, it is important to note that this exception applies only to telecommunications for military purpose but not to cyber weapons. 

Thus, it can be concluded that the traditional law of neutrality is applicable to cyberspace as well, and its special characteristics do not hinder such application. In order to prevent the escalation of an international armed conflict through belligerent cyber operations, it is of paramount importance that states arrive at a consensus regarding interoperability, network stability, reliable access and cybersecurity due diligence.^[xxxiv]

CONCLUSION

Even though neutrality is an age-old concept that evolved with conventional warfare, its applicability to modern means of warfare still persists in varying degrees. Neutrality is rendered completely irrelevant in nuclear war due to the destructive nature of nuclear weapons that respects no borders. Further, the question of neutrality fails to arise in outer space, as such territory cannot be claimed by any state. However, neutrality is still relevant in the context of belligerent military space objects that are launched from neutral territory or transit through neutral airspace before reaching outer space. Lastly, with respect to cyberspace, the concept of neutrality is wholly applicable, provided cyberattacks are treated as legitimate acts of armed conflict — a position which requires further crystallization in international law. 

References:

^[i] Allen Dulles and Hamilton Armstrong, Can We Be Neutral? (New York: Harper and Brothers for Council on Foreign Relations, 1936), 196. https://doi.org/10.1177%2F000271623618600132.

^[ii] “Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land,” conclusion date: January 26, 1910, Hague International Peace Conference, https://ihl-databases.icrc.org/ihl/INTRO/200?OpenDocument.; “Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War,” conclusion date: January 26, 1910, Hague International Peace Conference, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/240.

^[iii] Hague Convention V, arts. 7, 9.

^[iv] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶ 89 (1996), https://www.icj-cij.org/public/files/case-related/95/095-19960708-ADV-01-00-EN.pdf.

^[v] Scott Witthuhn, “The Law of Neutrality and the Threat or Use of Nuclear Weapons: Application of a Traditional Law to a Non-Traditional Weapon”, Fordham Lawyers Committee on Nuclear Policy (Fall 2011): https://static1.squarespace.com/static/603410a4be1db058065ce8d4/t/605b75023b1fad4672e4bef2/1616606466537/Witthuhn_Law-of-Neutrality.pdf.

^[vi] Hague Convention V, art. 1; Michael Bothe, “The Law of Neutrality,” in The Handbook of Humanitarian Law in Armed Conflicts, ed. Dieter Fleck (Oxford: Oxford University Press, 2013), 495. 

^[vii] Witthuhn, “The Law of Neutrality and the Threat or Use of Nuclear Weapons,” 18. 

^[viii] Memorial of the Government of the Republic of Nauru, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1994 I.C.J. Pleadings 35 (Sep. 1995). 

^[ix] Curt Dahlgren, “Neutrality, International Law and the Nuclear Arms Race,” in On Nuclear Weapons, Denuclearization, Demilitarization and Disarmament: Selected Writings of Richard Falk, ed. Stefan Andersson (Cambridge: Cambridge University Press, 2019), 167-182, https://doi.org/10.1017/9781108675796.009.

^[x] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 266. 

^[xi] “Treaty on the Prohibition of Nuclear Weapons,” conclusion date: January 22, 2021, United Nations Treaty Series, registration no. 56487, https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXVI/XXVI-9.en.pdf., art. 1.

^[xii] “Treaty on the Non-Proliferation of Nuclear Weapons,” opened for signature July 1, 1968, Treaty Series: Treaties and International Agreements Registered of Filed and Recorded with the Secretariat of the United Nations 729, no. 10485 (1974): 172, https://treaties.un.org/doc/Publication/UNTS/Volume%20729/v729.pdf., art. 6. 

^[xiii] Treaty on the Prohibition of Nuclear Weapons, art. 3.  

^[xiv] Treaty on the Prohibition of Nuclear Weapons, art. 4. 

^[xv] “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” opened for signature January 27, 1967, United Nations Treaty Series 610: 205, http://hrlibrary.umn.edu/peace/docs/treatyouterspace.html. 

^[xvi] Vladlen S. Vereshchetin, “Outer Space,” in Max Planck Encyclopedia of Public International Law, ed. R. Wolfrum (Oxford: Oxford University Press, 2006), ¶ 5. 

^[xvii] “Charter of the United Nations,” opened for signature June 26, 1945, United Nations Treaty Series XVI, no. 1, https://treaties.un.org/doc/publication/ctc/uncharter.pdf. , art. 2, ¶ 1. 

^[xviii] Wolff Heintschel von Heinegg, “Neutrality and Outer Space,” Stockton Center for the Study of International Law 93, (2017): https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1715&context=ils.

^[xix] Program on Humanitarian Policy and Conflict Research at Harvard University, Manual on International Law Applicable to Air and Missile Warfare (Cambridge: Cambridge University Press, 2013), r. 170 (a). https://assets.cambridge.org/97811070/34198/frontmatter/9781107034198_frontmatter.pdf.

^[xx] Ibid., r. 170 (c) 

^[xxi] Louise Doswald-Beck, “San Remo Manual on International Law Applicable to Armed Conflicts at Sea,” American Journal of International Law 89, no. 1 (1995): 192-208. https://iihl.org/wp-content/uploads/2018/04/9780521558648_excerpt.pdf.

^[xxii] Heintschel von Heinegg, “Neutrality and Outer Space,” 541. 

^[xxiii] Michel Bourbonnière, “The Ambit of the Law of Neutrality and Space Security,” in Israel Yearbook on Human Rights (Leiden: Martinus Nijhoff Publishers, 2006), 221. https://doi.org/10.2514/6.IAC-06-E6.4.07.

^[xxiv] National Security Presidential Directive 38/ Homeland Security Presidential Directive 23, Security and Monitoring (2008).

^[xxv] Joshua E. Kastenberg, “Non-Intervention and Neutrality in Cyberspace: An Emerging Principle in the National Practice of International Law,” Air Force Law Review 64 (2009): 43. https://core.ac.uk/download/pdf/151610187.pdf.

^[xxvi] Charter of the United Nations, art. 51. 

^[xxvii] Davis Brown, “A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict,” Harvard International Law Journal 47, no.1 (Winter 2006): 179. https://heinonline.org/HOL/P?h=hein.journals/hilj47&i=188.

^[xxviii] William J. Bayles, “The Ethics of Computer Network Attack,” Parameters: US Army War College Quarterly (Spring 2001): 44-45. https://www.hsdl.org/?view&did=439857.

^[xxix] Program on Humanitarian Policy and Conflict Research, Manual on International Law, sec. X.

^[xxx] Arie J. Schaap, “Cyber Warfare Operations: Development and Use under International Law,” Air Force Law Review 64 (Winter 2009): 127. https://www.afjag.af.mil/Portals/77/documents/AFD-091026-024.pdf.

^[xxxi] Wolff Heintschel von Heinegg, “Neutrality in Cyber Space”, in 2012 4^th International Conference on Cyber Conflict, ed. C. Czosseck (Tallinn: NATO Cooperative Cyber Defence Centre of Excellence, 2012) https://www.ccdcoe.org/uploads/2012/01/1_3_von_Heinegg_NeutralityInCyberspace.pdf

^[xxxii] Hague Convention V, art. 3. 

^[xxxiii] Hague Convention V, art. 8. 

^[xxxiv] The White House, International Strategy for Cyberspace: Prosperity, Security, Openness in a Networked World (Washington, 2011), 10,https://obamawhitehouse.archives.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspace.pdf.

Research Question(s): Were material, intellectual, or personal factors the most important to Sino-American rapprochement? Why did rapprochement happen during the Nixon Administration and not earlier or later? How can we examine Sino-American rapprochement through a “structure versus agency” lens?

The 1972 rapprochement between the United States of America and the People’s Republic of China remains a pivotal moment of Cold War history: its effects are still felt today. This essay will demonstrate that American perceptions of China and their larger international environment were essential to guiding the United States down the path of rapprochement. Furthermore, much of the American intellectual framework for rapprochement, in the existing worldviews of Richard Nixon and Henry Kissinger and domestic public views towards China, had already been established when Nixon became President. The decline of China’s Cultural Revolution and the Sino-Soviet Border Conflict created new American perceptions in “triangular diplomacy” and growing Chinese moderation, which only further reinforced the initial trend towards rapprochement. Thus, Sino-American rapprochement was a “perfect storm” in which new and old perceptions combined at the right moment, eventually setting Nixon on the path to stand atop the Great Wall. 

Notable among the extensive historiography on this topic is Margaret Macmillan’s short summary of rapprochement, which effectively describes the specific details and larger international dynamics that led to rapprochement. However, her summary is much less focused on the ideological formations that led to rapprochement.^[1] This essay shall seek to fill this gap. Another important piece of historiography and inspiration is Pete Millwood’s article (Mis)perceptions of Domestic Politics in the U.S.-China Rapprochement, which focuses on how intellectual/ideological perceptions, including inaccurate ones, affected and changed the process of rapprochement.^[2] This essay will build upon Millwood’s work by examining perceptions predating the beginning of rapprochement. The focus of this analysis is how perceptions changed, and complexifying Millwood’s views on misperceptions in rapprochement. Finally, in exploring the role of perceptions, this essay will further support the role of agency in the classic structure-agency debate of International Relations, as perceptions are inherently tied to specific people and decision-makers. However, the examination of perceptions and their effects is difficult because oftentimes perceptions are not explicitly stated and must be inferred. Moreover, even when perceptions are explicated, it is impossible to determine whether they actually affected political decision-making. Thus, the essay will highlight perceptions that likely affected decision-making without making definitive statements.

Pre-1968 American Perceptions and Views Towards Rapprochement

In looking at personal perceptions, this essay will largely focus on Nixon and Kissinger for the leading roles they played within US foreign policy decision-making. Their role in Sino-American rapprochement was especially important because of the reforms they implemented within the American government bureaucracy. Due to Nixon’s dislike of “cabinet government” and his desire to run foreign policy personally, he actively walled himself off from the State Department. This practice was led to much of foreign policy decision making coming from the National Security Council (NSC), over which Kissinger maintained a tight grip.^[3]

Looking at Nixon first, one can see the seeds of rapprochement emerge through Nixon’s very personality and worldview.  Historian David Greenberg makes the case that part of Nixon’s psychological ego was wholly consumed by his need to be a “world-historic visionary” and a “solitary prophet,” an image he cultivated throughout his interviews.^[4]As Nixon once reflected privately: “Great men of action have always been of the meditative type. They have without exception possessed to a very high degree the faculty of withdrawing into themselves.”^[5] This attitude was then melded to his desire to be a “peacemaker,” potentially originating from his Quaker religious beliefs and upbringing.^[6] As such, it is possible these personality traits could have influenced Nixon’s need to pursue a policy as radical as rapprochement. However, as the scholars of international relations Richard Immerman and Lori Gronich caution us regarding the examination of leadership psychology, this point should not be overstated,^[7] especially in lieu of more substantial evidence.

Whatever the cause of his support for rapprochement, Nixon had long-held beliefs regarding its possibility with China.^[8] As early as his time as Vice President, Nixon was urging a surprising amount of restraint and moderation towards China, arguing for reduced trade restrictions to help pry China away from the Soviet Union.^[9] These views toward China were further reinforced in Nixon’s time outside of office. During that period, French President Charles De Gaulle expressed to Nixon the need for the US to reach out to China while it was weak and the US was strong.^[10] This meeting with De Gaulle was likely especially impactful due to Nixon’s noted reverence of De Gaulle, going so far as to call himself “RN” in imitation of De Gaulle’s use of the third-person.^[11] As Immerman and Gronich write: “first-hand experiences, particularly those that take place at an earlier time in one’s career or are remembered vividly, can powerfully affect subsequent perceptions, images, and actions,”^[12] likely even more so if it is with one’s personal hero. 

All these earlier experiences built up to Nixon’s 1967 Foreign Affairs article “Asia After Vietnam,” a culmination of his existing views towards China and a framework for the future. This article contains the famous line, “we simply cannot afford to leave China forever outside the family of nations…There is no place on this small planet for a billion of its potentially most able people to live in angry isolation.”^[13] Thus, long before Nixon was elected in 1968, both his personality and existing perceptions of China primed him to be the President to pursue rapprochement. 

Beyond Nixon, National Security Advisor Henry Kissinger’s personal beliefs also influenced the United States move towards rapprochement. Kissinger, as National Security Advisor, was so important that some assumed he was actually in charge of the Nixon Administration’s foreign policy.^[14] Thus, examining his beliefs is necessary. Kissinger and Nixon shared a mutual Weltanschauung that incentivized and allowed for rapprochement. The first part of this worldview revolved around the growing internationalism of foreign relations. In a 1968 essay, Kissinger wrote that “For the first time, foreign policy has become global…Today, statesmen face the unprecedented problem of formulating policy for well over a hundred countries.”^[15] Likewise, Nixon in his 1967 Foreign Affairs article encourages Americans to look beyond Europe, writing “history has its rhythms, and now the focus of both crisis and change is shifting. Without turning our backs on Europe, we have now to reach out westward to the East.”^[16] Similarly, in light of the Vietnam War, both leaders recognized that traditional forms of American military dominance were no longer viable methods to achieve foreign policy goals. Instead, the new international landscape required a renewed focus on peaceful negotiation and traditional diplomacy.^[17] For instance, Kissinger stated that “We are a superpower physically, but our designs can be meaningful only if they generate willing cooperation,”^[18] while Nixon wrote that “other nations must recognize that the role of the United States as world policeman is likely to be limited in the future.”^[19] In the context of Nixon and Kissinger’s truly international focus and recognition of the limits of force, rapprochement with China makes perfect sense. 

In addition, the larger domestic environment within the United States was also amenable to rapprochement. The United States’ continued war in Vietnam incited a domestic dislike of military intervention, which in turn forced decreases in military spending, and discredited the long-standing American policy of “Containment.”^[20] These changes meant that existing US foreign policy was no longer acceptable to the public, further advancing Nixon’s new foreign policy outlook.^[21] Furthermore, as Rosemary Foot describes, the American public had largely realized that despite the threat of China, it was now a permanent fixture of international relations that could only be dealt with through diplomacy and contact.^[22]As such, a 1966 poll showed that more than half of Americans surveyed wanted to recognize China.^[23] Further revealing the nature of changing views, during the 1968 Presidential Election, Nixon’s opponents, Nelson Rockefeller and Hubert Humphrey, also publicly stated their support for greater attempts at reaching out to China.^[24]

By looking at Nixon’s personal views towards China, Nixon and Kissinger’s ideological worldview, and the domestic situation within the United States, it is clear that by 1968, the Nixon Administration had both the ideological consistency and enough domestic support for rapprochement with China. Events in China would only strengthen this ideological base towards reconciliation.

1968-1970 Changes within China and Changes in US Perceptions

Two major events within China helped further change and mold American perceptions towards the possibility and importance of rapprochement: the Sino-Soviet Border War of 1969 and the decline of the Cultural Revolution in 1968-1969. The first event was part of a larger Sino-Soviet Split that is beyond the scope of this essay, but to summarize: in 1969, two major clashes occurred between the Soviet Union and China in the Russian Far East and Xinjiang, which were serious enough for the Soviets to consider a nuclear first-strike and caused the Chinese leadership to distribute throughout the country to prepare for an eventual invasion.^[25] The need to reinforce security after these attacks, in addition to the larger failure of China’s “World Revolution” approach to the Third World, created a need for China and Mao Zedong specifically to pivot towards the United States.^[26] Thus, the Sino-Soviet Border War helped convince Mao to reach out to the Americans and begin the first step towards rapprochement: responding positively to restarting the Warsaw Talks.^[27]

Equally important, and the focus of this essay, the Sino-Soviet Border Conflict created new American governmental perceptions about the increasing likelihood of success in rapprochement. In a summary of the first Warsaw Talks of the Nixon administration, Kissinger wrote that “The immediate Chinese purpose is to show the appearance of the ability to deal with us—primarily for Soviet consumption,” but that “having convinced themselves of the desirability of appearing to be able to make deals with us, they may find it easier to justify seeking the substance of understandings.”^[28] In other words, Kissinger believes that Chinese moves towards rapprochement are only feints meant to improve its security against the Soviet Union, but that the existence of these very feints might inadvertently lead to real rapprochement.

More importantly, the Sino-Soviet Border War further reinforced Nixon and Kissinger’s view that the Soviet Union should take first precedence in American foreign policy, ^[29] using it as another argument to bolster rapprochement. . The Soviet Union had by-then caught up to the United States in the deployment of intercontinental ballistic missiles and thus had achieved strategic parity, which is why the Nixon Administration increasingly emphasized diplomatic solutions to the Soviet issue, as seen in its arms-control agreements with the Soviets such as the Strategic Arms Limitations Talks.^[30]

In this context, the Sino-Soviet Border Conflict was crucial to creating the perception that reaching out to China could assist the United States in its goals with the Soviet Union, what is popularly known as “triangular diplomacy.”^[31]As Kissinger himself concedes, he only considred this approach viable after  the conflict. Within the State Department at large, there was also a strong belief that the conflict would help achieve their goals with the Soviet Union.^[32] For example, in a National Intelligence Estimate issued only a few days after the conflict in Xinjiang, the opportunity for Soviet détente was recognized: “In the light of the dispute…. The Soviets seem intent on attracting new allies… in order to ‘contain’ the Chinese. To that end Moscow has signified some desire to improve the atmosphere of its relations with the West.”^[33] Likewise, National Security Study Memorandum 63 recognized that “the character of Soviet policy could change if Moscow comes to believe that the Chinese are on the way to breaking out of their largely self-inflicted isolation …the Soviets might decide that a serious effort to improve relations with the U.S., even at the expense of concessions on specific issues, was more likely to serve their interests.”^[34] The importance of this document is that it recognizes the existence of a “triangular” relationship both implicitly in the quote but also explicitly later on in the document.^[35]Furthermore, the document implies that as a result of recent clashes, the Soviets would be more conciliatory towards “specific issues.” This phrase is likely in reference to the SALT due to the document’s mentioning of SALT and of overlapping US-Soviet interests in “our mutual desire to avoid a nuclear war.”^[36]

The second major event within China that encouraged rapprochement was the dampening of the Cultural Revolution, which convinced the Nixon Administration of the rise of “moderates” within China. During the height of the Cultural Revolution, China had adopted a radical foreign policy that favored “World Revolution.” This policy entailedg rhetorical support for conflicts across the world, while within China ambassadors were recalled and foreign missions like the British in Beijing were burned by radical Red Guards.^[37] Yet, by 1968-1969, Mao had become so disillusioned with the Red Guards that he ordered the Chinese military to suppress them. This decision marked a turning point within the Cultural Revolution as a whole.^[38] As such, Chinese foreign policy as began to moderate as China toned down its foreign propaganda, mended relations with North Korea and Cambodia, and resent ambassadors to the outside world.^[39]In this context of larger moderation, Maoreleased two American prisoners and agreed to restart the Warsaw Talks as a response to American probes.^[40]

For the United States, these factors showed not just a moderation of policy within China, but also the rise of moderate Chinese leadership, incentivizing the United States to reach out. Previously, according to one CIA report, the agency belived that “there is little prospect for change in China’s attitudes and policies regarding the US while the present leadership obtains…. Any US ‘overtures’ to Communist China would be primarily intended to have an impact on China’s post-Mao leadership.”^[41] Similarly, a National Intelligence Estimate on China stated: “In the longer run, if Mao’s successors follow a more steady and pragmatic course, they are likely to have greater success than Mao in expanding China’s political influence and acceptance.”^[42] In both documents, the Nixon Administration initially seemed pessimistic about rapprochement while Mao was still alive, but implied that a moderate faction could take power eventually. As a result of the Cultural Revolution, this view was then transformed into one where moderates didn’t just exist, but were also fighting back. For example, in an examination of the Ninth Party Congress, NSC analysts stated their belief of a divide “between Mao and the leaders who resist his revolutionary programs,”^[43] while Nixon noted that “some of [the] top [Chinese] leaders were skeptical” in response to a briefing regarding the Cultural Revolution.^[44]

Finally, due to Chinese outreach attempts towards the United States, the perception transformed into a fully formed belief of rising moderation within China, encouraging rapprochement. For example, Kissinger urged Nixon to reinforce their opposition to a Soviet attack against China in order to take advantage of the “behavior of Chinese Communist diplomats in recent months [which] strongly suggests the existence of a body of opinion, presently submerged by Mao’s doctrinal views, which might wish to put US/Chinese relations on a more rational and less ideological basis” (emphasis added).^[45] The emphasized line demonstrates the belief of a moderate faction that was beginning to emerge following the end of the Cultural Revolution. Another piece of evidence comes from Secretary of State William Rogers. He recommended a variety of policies to reach out to China, reasoning that because “the Chinese leadership appears to be in some disarray, we may contribute to a strengthening of those who advocate moderation.”^[46]

Thus, in response to the end of the Cultural Revolution, American foreign policy leadership created the image of rising moderates within China, rather than believe that Mao could urge for reconciliation. This case demonstrates Immerman and Gronich’s point regarding the durability of beliefs and how people “normatively interpret new evidence as conforming to our prior beliefs.”^[47] In this case, earlier American beliefs of Mao as an opponent to rapprochement influenced China’s foreign policy moderation, which led to the belief of a rising moderate faction within China following the end of the Cultural Revolution. Yet, despite being largely false in ignoring Mao’s role in rapprochement, this perception nevertheless encouraged the Nixon Administration to move towards reconciliation. This fact slightly problematizes Millwood’s analysis in that he focuses only on how misperceptions created issues towards rapprochement.^[48] Thus, building upon an already strong ideological base, the Sino-Soviet Border Conflict and the decline of the Cultural Revolution reinforced and appropriated existing views to further compel American foreign policy towards rapprochement with China.

Existing ideological perceptions within the United States before the Nixon Administration were inclined towards rapprochement with China. This foundation was only strengthened following the Sino-Soviet Border War and the end of the Cultural Revolution. These two events reinforced and created new perceptions within the American Foreign Policy structure that encouraged further attempts towards reconciliation. Thus, the early stages of Sino-American rapprochement was a perfect storm in which larger structural changes within China supported existing American perceptions, creating an intellectual environment favorable towards rapprochement.

Works Cited:

Foot, Rosemary. The Practice of Power: US Relations with China Since 1949. Oxford: Oxford 

University Press, 1997. Oxford Scholarship Online.

Garver, John W. China’s Quest: The History of the Foreign Relations of the People’s Republic of China. New York: Oxford University Press, 2016.

Goh, Evelyn. Constructing the U.S. Rapprochement with China, 1961-1974 From ‘Red Menace’ to ‘Tacit Ally.’ Cambridge: Cambridge University Press, 2005. Proquest Ebook Central.

Immerman, Richard H, and Lori Helene Gronich. “Psychology.” In Explaining the History of American Foreign Relations, edited by Frank Costigliola and Michael J. Hogan, 334-355. New York: Cambridge University Press, 2016. Scholars Portal Books

Lieberthal, Kenneth. Governing China: From Revolution Through Reform. New York: W.W Norton & Company, 2003.

Logevall, Fredrik, and Andrew Preston eds. Nixon in the World: American Foreign Relations, 1969-1977. New York: Oxford University Press, 2008.

Ma, Jisen. The Cultural Revolution in the Foreign Ministry of China. Hong Kong: The Chinese University Press, 2004. Hathitrust.

Millwood, Pete. “(Mis)perceptions of Domestic Politics in U.S.-China Rapprochement, 1969-1978.” Diplomatic History 43, no. 5 (2019): 890-915. Scholars Portal Journals.

Nixon, Richard M. “Asia After Vietnam.” Foreign Affairs 46, no. 1 (October 1967): 111-125. JSTOR.

Phillips, Steven E., ed. China, 1969-1972. Vol. XVII of Foreign Relations of the United States, 1969-1976. Washington D.C.: United States Government Printing Office, 2006. https://history.state.gov/historicaldocuments/frus1969-76v17. 

Ross, Robert S. Negotiating Cooperation: The United States and China, 1969-1989. Stanford: Stanford University Press, 1995.

Siniver, Asaf. Nixon, Kissinger, and U.S, Foreign Policy Making: The Machinery of Crisis. 

Cambridge: Cambridge University Press, 2008. Scholars Portal Books.

Smith, Louis J, and David H. Herschler, eds. Foundations of Foreign Policy, 1969-1972. Vol. I of Foreign Relations of the United States, 1969-1976. Washington D.C.: United States Government Printing Office, 2003. https://history.state.gov/historicaldocuments/frus1969-76v01.

Thomas, Evan. Being Nixon: A Man Divided. New York: Random House, 2016.

Yang, Kuisong, and Yafeng Xia. “Vacillating between Revolution and Detente: Mao’s Changing Psyche and Policy Toward the United States, 1969-1976.” Diplomatic History 34, no. 2 (April 2010): 395-423. Oxford Academic.

Zanchetta, Barbara. The Transformation of American International Power in the 1970s. New York: Cambridge University Press, 2014. Scholars Portal Books.

References:

^[1] See for Macmillan’s specific chapter within the larger edited work: Fredrik Logevall and Andrew Preston, eds., Nixon in the World: American Foreign Relations, 1969-1977 (New York: Oxford University Press, 2008), 107-125. Note, I chose to cite this work as one edited work rather than individual chapters to reduce clutter and save space.

^[2] Pete Millwood, “(Mis)perceptions of Domestic Politics in U.S.-China Rapprochement, 1969-1978,” Diplomatic History 43, no. 5 (2019): 890-891, Scholars Portal Journals.

^[3] Asaf Siniver, Nixon, Kissinger, and U.S, Foreign Policy Making: The Machinery of Crisis (Cambridge: Cambridge University Press, 2008), 45-47, Scholars Portal Books.

^[4] Logevall and Preston, Nixon in the World, 47-48.

^[5] Evan Thomas, Being Nixon: A Man Divided (New York: Random House, 2016), 145.

^[6] Logevall and Preston, Nixon in the World, 49.

^[7] Richard H. Immerman and Lori Helene Gronich, “Psychology,” in Explaining the History of American Foreign Relations, eds. Frank Costigliola and Michael J. Hogan (New York: Cambridge University Press, 2016), 347-348, Scholars Portal Books. 

^[8] Evelyn Goh, Constructing the U.S. Rapprochement with China, 1961-1974 From ‘Red Menace’ to ‘Tacit Ally’ (Cambridge: Cambridge University Press, 2005), 121, Proquest Ebook Central.

^[9]Goh, Constructing the U.S. Rapprochement with China, 103-104.

^[10] Goh, Constructing the U.S. Rapprochement with China, 106-107.

^[11] Thomas, Being Nixon, 146, 198.

^[12] Immerman and Gronich, “Psychology,” 342.

^[13] Richard M. Nixon, “Asia After Vietnam,” Foreign Affairs 46, no. 1 (October 1967): 121, JSTOR. This quote is also mentioned or summarized in: Logevall and Preston, Nixon in the World, 108; Goh, Constructing the U.S. Rapprochement with China, 108-109.

^[14] Logevall and Preston, Nixon in the World, 27.

^[15] Foreign Relations of the United States, 1969-1976, eds. Louis J. Smith and David H. Herschler, vol. I, Foundations of Foreign Policy, 1969-1972(Washington D.C.: United States Government Printing Office, 2003), Document 4, https://history.state.gov/historicaldocuments/frus1969-76v01/d4.

^[16] Nixon, “Asia After Vietnam,” 124. 

^[17] Logevall and Preston, Nixon in the World, 30, 32, 40, 109.

^[18] Foreign Relations of the United States, 1969-1976, eds. Louis J. Smith and David H. Herschler, vol. I, Foundations of Foreign Policy, 1969-1972, Document 4 https://history.state.gov/historicaldocuments/frus1969-76v01/d4. This quote is also found in: Logevall and Preston, Nixon in the World, 110.

^[19] Nixon, “Asia After Vietnam,” 114.

^[20] Barbara Zanchetta, The Transformation of American International Power in the 1970s (New York: Cambridge University Press, 2014), 22, Scholars Portal Books. 

^[21] Zanchetta, The Transformation of American International Power, 22-23.

^[22] Rosemary Foot, The Practice of Power: US Relations with China Since 1949 (Oxford: Oxford University Press, 1997), 101, Oxford Scholarship Online. 

^[23] Foot, The Practice of Power, 100.

^[24] Goh, Constructing the U.S. Rapprochement with China, 112.

^[25] John W. Garver, China’s Quest: The History of the Foreign Relations of the People’s Republic of China (New York: Oxford University Press, 2016), 279, 281-282, 284-285.

^[26] Kuisong Yang and Yafeng Xia, “Vacillating between Revolution and Detente: Mao’s Changing Psyche and Policy Toward the United States, 1969-1976,” Diplomatic History 34, no. 2 (April 2010): 399-401, Oxford Academic.

^[27] Garver, China’s Quest, 290-293.

^[28] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972 (Washington D.C.: United States Government Printing Office, 2006), Document 59, 

^[29] See: Zanchetta, The Transformation of American International Power, 27; Logevall and Preston, Nixon in the World, 33.

^[30] Robert S. Ross, Negotiating Cooperation: The United States and China 1969-1989 (Stanford: Stanford University Press, 1995), 19; Zanchetta, The Transformation of American International Power, 21-22, 25-27.

^[31] Logevall and Preston, Nixon in the World, 112.

^[32] Goh, Constructing the U.S. Rapprochement with China, 131, 133.

^[33] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 24, https://history.state.gov/historicaldocuments/frus1969-76v17/d24.

^[34] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 40, https://history.state.gov/historicaldocuments/frus1969-76v17/d40. 

^[35] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 40, https://history.state.gov/historicaldocuments/frus1969-76v17/d40.

^[36] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 40, https://history.state.gov/historicaldocuments/frus1969-76v17/d40.

^[37] Garver, China’s Quest, 260, 269, 272.

^[38] Kenneth Lieberthal, Governing China: From Revolution Through Reform (New York: W.W Norton & Company, 2003), 115-116. 

^[39] Jisen Ma, The Cultural Revolution in the Foreign Ministry of China (Hong Kong: The Chinese University Press, 2004), 309, 315-316, 319, Hathitrust.

^[40] Garver, China’s Quest, 293-294.

^[41] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 12, https://history.state.gov/historicaldocuments/frus1969-76v17/d12.

^[42] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 95, https://history.state.gov/historicaldocuments/frus1969-76v17/d95. 

^[43] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 11, https://history.state.gov/historicaldocuments/frus1969-76v17/d11. 

^[44] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 25, https://history.state.gov/historicaldocuments/frus1969-76v17/d25. 

^[45] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 37, https://history.state.gov/historicaldocuments/frus1969-76v17/d37. 

^[46] Foreign Relations of the United States, 1969-1976, ed. Steven E. Phillips, vol. XVII, China, 1969-1972, Document 49, https://history.state.gov/historicaldocuments/frus1969-76v17/d49, 

^[47] Immerman and Gronich, “Psychology,” 341.

^[48] Millwood, “(Mis)perceptions of Domestic Politics in U.S.-China Rapprochement,” 890-891

On December 30, 2020, the European Union (EU) and China announced that they concluded the Comprehensive Agreement on Investment (CAI), a long-awaited deal that would provide the EU with greater access and a “more level playing field” in the Chinese market.^[1] However, the announcement immediately drew criticism from scholars, civil society groups, and Members of the European Parliament (MEP) for failing to secure concessions from China on human rights in light of its recent string of high-profile transgressions.^[2] Hastened to a conclusion by the six-month German Presidency of the Council, the CAI’s controversy exemplifies the pattern of the EU’s cautious approach to human rights in China.. This paper argues that the bloc’s disinclination for a tougher line on China is largely the result of local political elites eager to preserve their own bilateral economic interests with Beijing, with pressure exerted by Member States such as Hungary and Greece involved with the Belt and Road Initiative (BRI), and pressure exerted by Germany, which seeks to preserve access to the Chinese market for its powerful export sector. 

The self-interest of Member States involved with the BRI and the related 17+1 regional grouping in Central and Eastern Europe (CEE) have undermined the EU’s effort to hold China accountable for its human rights abuses. The BRI is a large-scale Chinese investment program, launched in 2012, that nominally aims to boost Eurasian economic relations and streamline the flow of trade. Yet, for sub-initiatives such as the 17+1 group, the very practice of opening a new diplomatic front that distinguishes the different needs and interests of Eastern and Western Europe relies on exploiting existing divisions within the region.^[3] As Richard Q. Turcsányi outlines, the roots of the rapprochement between CEE Member States with China are a product of the enduring socio-economic disparities within the EU.^[4] In particular, there is the lasting impression that more could have been done by Western Europe in response to key recent crises such as 2007-2008 financial crisis, the succeeding Eurozone crisis, and the 2015 migrant crisis.^[5] Of the 11 EU Member States that have signed up to the 17+1 framework, a key factor is that “there is a widespread feeling (substantiated and deserved, or not) that they are still treated as second-class citizens in Brussels” and that the policies of the Western-dominated bloc often leaves them behind.^[6] These conditions made the initial prospect of Chinese capital with lax rules and regulations attractive to CEE leaders. For Brussels, in contrast, Chinese-backed infrastructure projects and acquisitions throughout the region often lack transparency and violate EU norms, giving rise to corruption.^[7] Prominent examples include the controversial construction of the Budapest-Belgrade railway and the sale of a majority stake in the strategic Greek port of Piraeus to a Chinese state-owned firm. In particular, China has shown an aptitude for connecting with local political elites and producing agreements with opaque procurement procedures (auctioning off contracts in a non-competitive manner), non-public documentation, and lax environmental standards that make them especially conducive to existing processes of state capture and cronyism. For many CEE states grappling with chronic corruption, these BRI infrastructure projects are especially problematic. In recent years, “public procurement became the most important payout channel enabling the allocation of state funds to government-friendly economic players,” reinforcing existing corruption cycles.^[8] In essence, Chinese investment is seen by many ruling parties as a way to funnel money to political allies in the private sector and strengthen their hold onto power.

In Hungary, the largely Chinese-financed Budapest-Belgrade high-speed railway represents the cornerstone of efforts by Prime Minister Orbán to cultivate closer ties with Beijing. Proposed back in 2013, the railway was to be the flagship project of the 17+1 framework and a milestone in Orbán’s “Eastern Opening” strategy, which defied Brussels by seeking greater investment flows from Russia and China.^[9] However, plagued by delays and ballooning costs, it became the target of a 2017 investigation launched by the EU into allegations that Hungary had broken EU laws on procurement as well as claims that the project was being pushed ahead despite its financial unviability.^[10] In 2018, after the EU concluded that only the Serbian portion of the railway was profitable and forced the Hungarian government to organize a public tender, the project came under further criticism both within and outside Hungary.^[11]It was revealed that one of the contracts was given to Lőrinc Mészáros, childhood friend and key ally of Prime Minister Orbán.^[12] To many, it did not come as a surprise. According to the 2020 European Commission (EC) Report on Hungary, the country had one of the highest instances of state contracts awarded with only a single bid with frequent “systemic irregularities” in the bidding process and clear preferential treatment of select firms.^[13] Furthermore, the railway’s staggering €3 billion price tag, the largest for an infrastructure project in Hungarian history, led critics to lambaste the economic feasibility of the project by pointing out that the proposed line fails to connect adjacent major cities along the route, leaving taxpayers to foot the bill for a transportation venture that offers them dubious benefits.^[14] Indeed, even the pro-Fidesz magazine Figyelő concluded in its investigation that the project’s debt would take some 2,400 years to pay off.^[15]

BRI investment has come to serve as a mechanism that exacerbates processes of corruption and democratic backsliding under Orbán’s regime.. The Budapest-Belgrade railway is just one example of the many infrastructure projects with Chinese financial backing that channel money to private Hungarian firms with murky ties to state actors and to Fidesz-loyalists as part of an expansive crony capitalist network designed to strengthen and perpetuate what has been called Orbán’s brand of “Hungarian Authoritarian Populism.”^[16] It is within this context that other projects similar to the Budapest-Belgrade railway in its questionable economic feasibility can be better understood, for they are first and foremost politically-motivated and implemented based on the availability of Chinese funding with “little focus on the demand of, or sustainability of, the services that they are intended to support.”^[17] For Orbán, these engagements with China have synergized particularly well with the anti-Brussels stance that he has come to adopt. Hungary, he argues, does not have to rely on the EU when it has powerful partners like Russia and China. In turn, deepening Sino-Hungarian ties under Orbán have translated to breaks with Brussels on the latter’s China policy. 

Greece’s situation bears large similarities to Hungary’s. Greece has also enjoyed large-scale BRI investments, most notably the acquisition of its port at Piraeus, a crucial centre of the country’s economic livelihood, by the Chinese state-owned shipping firm COSCO. China sought to capitalize on Greece’s continuing struggle with high debt pressure and its resentment of years of austerity imposed by Brussels. As a result, China’s involvement has been very welcome in Greece. According to an EC report, investment in Piraeus “led to an increase in freight traffic by 600% between 2009-2018 and is expected to lead to additional investment of close to 0.5% of Greek GDP and the creation of more than 30,000 new jobs by 2025.”^[18] Whereas the Piraeus port was shunned by EU investors who did not consider it an attractive prospect, China has already announced additional plans to boost local tourism by building new terminals for cruise ships, luxury hotels, shopping malls, and a large recreation park.^[19] Yet China’s involvement in Greece has also raised concerns similar to those in Hungary. In 2015, the EC found that Greece had granted unfair tax exemptions and preferential treatment to COSCO in breach of EU rules.^[20] In addition, the increasing rate of Chinese investment flowing into Greece has highlighted the country’s longstanding struggles with corruption. Local business leaders “perceive corruption to be rather widespread in public procurement (according to 72% of respondents), with 83% of businesses citing tailor-made specifications as a particular issue,” pointing to concerns of favoritism and clientelism in the disbursement of state funds.^[21]

For Member States like Hungary and Greece who have been on the receiving end of this Chinese “checkbook diplomacy,” they have demonstrated in return a proactiveness in tamping down on the discussion of what China considers “key sensitive issues.” The two states have been the most active in blocking EU statements that criticize China on human rights, with the use of their vetoes increasing significantly since 2015, according to interviews conducted with members of the European External Action Service (EEAS).^[22] For example, in July 2017, Hungary, Greece, and Croatia repeatedly blocked a joint 28-member statement recognizing the ruling reached by the Permanent Court of Arbitration in The Hague which declared China’s territorial claims in the South China Sea to be in violation of international law. It was later revealed that diplomats from the three countries had privately consulted with senior Chinese officials prior to the vote.^[23] In 2017, Greece blocked the EU joint statement to the UN Human Rights Council (UNHRC) in Geneva—marking the first time that a 28-member statement was not issued—on grounds that it constituted “unproductive criticism” and that individual bilateral talks outside of the UN were more appropriate.^[24]While these countries have officially denied that their vetoes were influenced by their bilateral investment relations with China, the empirical result as well as some off-the-record interviews make the picture very clear. To maintain good investment relations with China, some CEE Member States are willing to cater to Beijing’s demands on issues surrounding territory and human rights. For Greece, the contrast between an austere EU that has treated them as the Eurozone’s delinquent compared to an amenable China that was eager to invest was particularly stark. Paying greater respect to what China has declared its core interests did not seem like an unreasonable repayment of favors.^[25]

Germany, which has long exerted its influence to shape the EU’s relationship to China according to its interests, has also contributed to the bloc’s failure to hold China accountable for its human rights abuses.^[26] Since the start of China’s market-opening reforms in the late 1970s, Europe has benefited from lucrative access to China’s vast market and no country more so than Germany. As a result, the EU’s stance towards Beijing can be thought of as operating on a sort of Brussels-Berlin axis.^[27] Thus, the tensions and criticisms that have recently defined the Germany-China bilateral relationship are reflected in EU-China ties. 

In recent years, the EU has called for a redefinition of its China strategy in recognition that “China’s economic power and political influence have grown with unprecedented scale and speed, reflecting its ambitions to become a leading global power.”^[28] In its high-profile 2019 report “EU-China – A Strategic Outlook” which largely formed the basis of the 2020 CAI, it described China as simultaneously an important “cooperation partner” with whom a more reciprocal relationship needs to be reached and a “systemic rival promoting alternative models of governance.”^[29] The report exemplified the balancing act that EU leaders have tried to sustain for many years, a consensus that is coming under increasing strain as China’s authoritarian rule becomes further entrenched and its human rights abuses come more to light. The result is a disjointed, mixed message about where EU priorities lie. Even the “tougher line” which some media outlets characterized the new approach concerned only the economic dimension. The EU is keen to address longstanding frustrations about the imbalanced trade relationship and called for China to end its practices of “preserving its domestic market for its champions, shielding them from competition through selective market opening,” placing restrictions on investment, and forcing the transfer of technologies by EU firms wishing to do business in China.^[30] However, while the label “systemic rival” dominated the headlines, in reality the 2019 report merely drew attention to the “deterioration” of rights in Xinjiang and urged China to respect “the high degree of autonomy enshrined in the Hong Kong Basic Law.”^[31] Similarly, the 2020 CAI  secured only from China a “commitment to make continued and sustained efforts to pursue ratification of the ILO fundamental Conventions on forced labor.”^[32] In both cases, there was an absence of any substantial, tougher measures that would induce China to rein in its human rights and international law transgressions.

The EU is careful to avoid introducing what is viewed as unnecessary friction into its relationship with China, an approach that reflects the outsized influence of Germany. According to Max Zenglein, chief economist at the Mercator Institute for China Studies, “Europe’s weak point is Germany, and in Germany it’s the car industry, and in the car industry it’s Volkswagen.”^[33] This factor has been especially prominent under the chancellorship of Angela Merkel, who is very mindful of the powerful German industrial-business lobbies and their concerns that that Germany should not upset its lucrative economic relationship with the world’s largest market, especially given that Germany exports more to China than the next six EU Member States combined.^[34] For instance, the Volkswagen Group sold over 4.2 million cars in China in 2018 and comprised 20% of all new cars sold in the country; by comparison, the US market accounted for only 350,000 sales in the same period.^[35] As a result, German auto executives have long lobbied against tougher positions against China, emphasizing that angering Beijing on sensitive issues would affect access to the Chinese market and potentially cost jobs at home.^[36] In a 2018 interview with Die Welt, the CEO of Siemens said that Germany should be “thoughtful and respectful towards China…if jobs in Germany depend on how we deal with controversial topics, then we shouldn’t add to indignation, but rather carefully consider all positions and actions.”^[37]Merkel’s approach to China embodies the traditional policy of Wandel durch Händel (“change through trade”), a doctrine rooted in Cold War ideas which holds that, through deepening economic ties, China would gradually move towards further political and economic liberalization.^[38] In the summer of 2020, as Beijing imposed the controversial National Security Law on Hong Kong and many in the Bundestag were calling for a strong German response, Peter Altmaier, the Minister of Economic Affairs and Energy, expressed in an interview that Germany “[has] trade relations with many regions across the globe, including in many cases countries that have a different understanding of civil rights than we have in Germany…I have always been convinced and I still believe that change can be achieved through trade.”^[39] Yet, despite long being a core tenant of policy-making in Berlin and Brussels, it is an approach that has increasingly been criticized as outdated and naïve in dealing with a China under Xi Jinping that has shown no qualms about disregarding international rules and norms. 

There is no better exemplification of the soft approach that Brussels has continued to take vis-à-vis China on human rights than the increasingly obsolete EU-China Human Rights Dialogue, an annual bilateral forum established in 1995. Done behind closed doors, the Dialogue has achieved substantively little, and scholars have characterized it as an ineffectual approach “symptomatic of the EU prioritizing its material interests with China.”^[40] The fundamental disagreement is over China’s rejection of of EU values and the obligation of the government in guaranteeing them. Indeed, Beijing takes a statist view on human rights where individual rights can and should be subordinate to the collective welfare of the nation in the name of “maintaining stability.” As a result, interviews with former EU Dialogue participants and analysis of classified documents show that the ineffectiveness of the Dialogue means that it has come to serve as “intensive training for a small number of Chinese officials on how to engage with—and effectively counter—human rights related inquiries, criticism and recommendations.”^[41] Comments aimed at the situations in Hong Kong or Xinjiang are met with well-rehearsed rebuttals stressing “principles of mutual respect and non-interference in internal affairs” and a “refusal to be lectured” by EU officials who—the Chinese side accuse—have their own problems with the mistreatment of minorities and migrants in Europe.^[42] Over time, China has largely succeeded in leveraging its growing economic power to water down the Dialogue by pressuring the EU to agree to reducing the frequency of the meeting from biannually to annually as well as engaging in time-wasting practices that obstruct the EU side.^[43]

The EU-China relationship is at a critical junction. With the provisional agreement of the CAI with China, the Commission and EU Member State leaders sought to reorientate the relationship towards greater reciprocity in recognition of China’s rising place in the world. Yet, it has received substantial criticism from scholars and experts on China as well as from MEPs who say they will vote against ratification on grounds that the CAI largely fails to address China’s high-profile human rights transgressions. This paper has sought to situate the defining tension within the EU establishment—the bloc’s balancing act of weighing its economic interests against its commitment to uphold its values as an international normative power—in the context of pressure exerted by Member States involved in BRI investment relations with China and the preferences of Germany with its high prioritization of access to the Chinese market. Moving forwards, it is clear that while some within the EU favor a tougher line on China in principle, there is considerable reluctance to bear the economic and diplomatic blowback that would come with a more confrontational approach. It remains to be seen whether the EU’s balancing act will be sustainable, or that a time of choosing, where it will have to come down on one side or the other is fast approaching.

References

^[1] “Key elements of the EU-China Comprehensive Agreement on Investment,” European Commission Press Release (December 30, 2020)

^[2] Shannon Tiezzi, “China-EU Investment Deal Sparks Backlash Over Rights Concerns,” The Diplomat, January 13, 2021. 

^[3] Ágnes Szunomár, “Blowing from the East,” International Issues & Slovak Foreign Policy Affairs 24, no. 3 (2015): 61-64.

^[4] Richard Q. Turcsányi, “China and the Frustrated Region: Central and Eastern Europe’s Repeating Troubles with Great Powers,” China Report56, no. 1 (February 2020): 71.

^[5] Ibid.

^[6] Ibid.

^[7] Angela Stanzel, “A common EU China Policy: The divided, the ruled, and the united,” European Council on Foreign Relations (2017), 36-38.

^[8] Anita Koncsik, “From the Happiest Barrack to the Saddest Shopping Mall: Accountability, transparency and (anti-)corruption in Hungary,” Frontiers of Democracy (Palgrave Macmillan: London, 2016), 5.

^[9] Szunomár, 61-64.

^[10] Ibid.

^[11] Nick Miller, “‘Why are they giving us the money?’ Behind China’s plans to ‘rescue’ a decrepit rail link,” Sydney Morning Herald (June 20, 2018).

^[12] Edit Inotai, “Budapest to Belgrade: All Aboard the Secret Express,” Balkan Insight (April 22, 2020)

^[13] “Country Report Hungary 2020,” European Commission, Report (Brussels, February 2, 2020), 43.

^[14] Valerie Hopkins, “Hungary to keep details of Beijing-funded rail link secret,” Financial Times (April 2, 2020)

^[15] Inotai.

^[16] Samuel Rogers, “The Changing Dimensions of the post-2010 Hungarian Political Economy and the Emergence of Hungarian Authoritarian Populism,” PhD diss., University of Bristol, 2019, 229-233.

^[17] Ibid, 17.

^[18] “Country Report Greece 2020,” European Commission (Brussels, February 26, 2020), 46-47.

^[19] Frank Sieren, “Sieren’s China: Athens caught between Brussels and Beijing,” Deutsche Welle (November 7, 2019).

^[20] “State aid: Commission orders Greece to recover incompatible aid from Piraeus Container Terminal” European Commission Press Release(Brussels, March 23, 2015).

^[21] “Country Report Greece 2020,” 64.

^[22] Max Roger Taylor, “Inside the EU–China Human Rights Dialogue: assessing the practical delivery of the EU’s normative power in a hostile environment,” Journal of European Integration (2020), 11.

^[23] Laurence Norman, “EU Issues South China Sea Statement Ending Discord Within Bloc,” The Wall Street Journal (July 17, 2016)

^[24] Robin Emmott and Angeliki Koutantou, “Greece blocks EU statement on China human rights at U.N.,” Reuters (June 18, 2017)

^[25] Jason Horowitz and Liz Alderman, “Chastised by E.U., a Resentful Greece Embraces China’s Cash and Interests,” The New York Times(August 26, 2017)

^[26] Janka Oertel, “The New China Consensus: How Europe is Growing Wary of Beijing,” European Council on Foreign Affairs (2020), 9

^[27] Mark Leonard, “The End of Europe’s Chinese Dream,” European Council on Foreign Affairs (May 27, 2020)

^[28] “EU-China – A strategic outlook.” European Commission (March 12, 2019), 1.

^[29] Ibid.

^[30] Ibid, 5.

^[31] Ibid, 2.

^[32] “EU-China Comprehensive Agreement on Investment,” European Commission (December 30, 2020), 4.

^[33] Jakob Hanke Vela, “Europe’s China weak spot: Germany,” Politico (September 13, 2020)

^[34] “China-EU – international trade in goods statistics,” Eurostat – European Commission, (March 2020).

^[35] Vela.

^[36] Erika Solomon and Guy Chazan, “‘We need a real policy for China’: Germany ponders post-Merkel shift,” Financial Times (January 5, 2021)

^[37] Kate Brady, “Germany’s reluctance to speak out against China,” Deutsche Welle (July 7, 2020)

^[38] Solomon and Chazan.

^[39] Vela.

^[40] Taylor, 1.

^[41] Katrin Kinzelbach, The EU’s Human Rights Dialogue with China: Quiet Diplomacy and its Limits, (Routledge, 2014), 214.

^[42] Taylor, 7.

^[43] Ibid.

Works Cited

Brady, Kate. “Germany’s reluctance to speak out against China.” Deutsche Welle, July 7, 2020.

“China-EU – international trade in goods statistics.” Eurostat – European Commission, March 2020.

“Country Report Greece 2020,” European Commission, Brussels, February 26, 2020.

Emmott, Robin, and Angeliki Koutantou. “Greece blocks EU statement on China human rights at U.N.” Reuters, June 18, 2017.

“EU-China – A strategic outlook.” European Commission, March 12, 2019.

“EU-China Comprehensive Agreement on Investment.” European Commission, December 30, 2020.

“Key elements of the EU-China Comprehensive Agreement on Investment,” European Commission Press Release, December 30, 2020.

Horowitz, Jason, and Liz Alderman. “Chastised by E.U., a Resentful Greece Embraces China’s Cash and Interests.” The New York Times, August 26, 2017.

Hopkins, Valerie. “Hungary to keep details of Beijing-funded rail link secret.” Financial Times, April 2, 2020.

Inotai, Edit. “Budapest to Belgrade: All Aboard the Secret Express.” Balkan Insight, April 22, 2020.

Kinzelbach, Katrin, The EU’s Human Rights Dialogue with China: Quiet Diplomacy and its Limits. Routledge: 2014.

Koncsik, Anita. “From the Happiest Barrack to the Saddest Shopping Mall: Accountability, transparency and (anti-)corruption in Hungary.” Frontiers of Democracy. Palgrave Macmillan: London, 2016.

Leonard, Mark. “The End of Europe’s Chinese Dream.” European Council on Foreign Affairs, May 27, 2020.

Oertel, Janka. “The New China Consensus: How Europe is Growing Wary of Beijing.” European Council on Foreign Affairs, September 7, 2020. 

Miller, Nick. “‘Why are they giving us the money?’ Behind China’s plans to ‘rescue’ a decrepit rail link.” Sydney Morning Herald, June 20, 2018.

Norman, Laurence. “EU Issues South China Sea Statement Ending Discord Within Bloc.” The Wall Street Journal, July 17, 2016.

Rogers, Samuel. “The Changing Dimensions of the post-2010 Hungarian Political Economy and the Emergence of Hungarian Authoritarian Populism.” PhD diss., University of Bristol, 2019.

Sieren, Frank. “Sieren’s China: Athens caught between Brussels and Beijing.” Deutsche Welle, November 7, 2019.

Solomon, Erika and Guy Chazan. “‘We need a real policy for China’: Germany ponders post-Merkel shift.” Financial Times, January 5, 2021.

“State aid: Commission orders Greece to recover incompatible aid from Piraeus Container Terminal.” European Commission Press Release, Brussels, March 23, 2015.

Stanzel, Angela. “A common EU China Policy: The divided, the ruled, and the united.” European Council on Foreign Relations, October 7, 2017. 

Szunomár, Ágnes. “Blowing from the East.” International Issues & Slovak Foreign Policy Affairs 24, no. 3 (2015): 60-77.

Taylor, Max Roger. “Inside the EU–China Human Rights Dialogue: assessing the practical delivery of the EU’s normative power in a hostile environment.” Journal of European Integration (2020).

Tiezzi, Shannon. “China-EU Investment Deal Sparks Backlash Over Rights Concerns.” The Diplomat, January 13, 2021.

Turcsányi, Richard Q. “China and the Frustrated Region: Central and Eastern Europe’s Repeating Troubles with Great Powers.” China Report 56, no. 1 (February 2020): 60–77.

Vela, Jakob Hanke. “Europe’s China weak spot: Germany.” Politico, September 13, 2020.