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Liability for Destruction of Cultural Property in International Criminal Law: Reading the Al Mahdi Reparations Ruling

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17th August, 2017 will go down in history as a momentous day in Transitional Justice. On this day Trial Chamber VIII of the International Criminal Court (ICC) issued a reparations order in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi holding Mali Isalmist militant Al Mahdi liable for 2.7 million euros in expenses for individual and collective reparations for destruction of cultural property in Timbuktu, Mali, the second time in the history of the Court where orders for reparations have been made, the first being in Germain Katanga’s case.

Background

Al Mahdi was convicted of war crimes on 27th September, 2016 following an admission of guilt by Trial Chamber VIII, composed of Presiding Judge Raul C. Pangalangan, Judge Antoine Kesia-Mbe Mindua and Judge Bertram Schmitt. The war crimes pertained to attacking 10 protected objects as co-perpetrator under Articles 8 (2) (e) (iv) and 25 (3) (a) of the Statute. The 10 projected objects were the mausoleum Sidi Mahmoud Ben Omar Mohamed Aquit, mausoleum Sheikh Mohamed Mahmoud Al Arawani, mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, mausoleum Alpha Moya, mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, mausoleum Sheikh Muhammad El Micky, mausoleum Cheick Abdoul Kassim Attouaty, mausoleum Ahamed Fulane, mausoleum Bahaber Babadié, and the Sidi Yahia mosque.​

The attacks which took place between 30th June 2012 and 10th July 2012 resulted in a nine year prison sentence for Mahdi that was delivered by the Court in September 2016. Pursuant to the conviction, the Chamber initiated a reparations phase calender and granted applications by the UNESCO and other amici curiae to file submissions on reparations related issues. Additionally, general submissions on the reparations from the Trust Fund for Victims (TFV), Legal representative of Victims (LRV), defence, Office of the Prosecutor (OTP), Registry and Malian authorities were invited. This process set in motion the reparations process. A total of 139 reparations applications were submitted by the LRV claiming both collective and individual reparations.

Applicable Law

Article 75 (1) of the Rome Statute provides that the Court shall establish principles relating to reparations of victims including restitution, compensation and rehabilitation. On this basis the Court is competent to determine the scope and extent of any damage, loss and injury to victims.  In addition, the UN Basic Principles of Justice for Victims of Crime and Abuse of Power and the UN Basic Principles on Reparations for Victims complement Article 75 to establish principles relating to reparations.

Reparations in the present case, according to the Court, ought to be designed  to relieve the suffering caused by the serious crime committed, addressing the consequences of the wrongful act committed by Al Mahdi, enabling the victims to recover their dignity and deter future violations. In addition, these may assist in promoting reconciliation between the victims, the affected communities and the convicted person.

Principles of Reparations enunciated by the Court

The Chamber emphasized the following principles to be fundamental while deciding on reparations:

All victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial.

The victims of the crime shall have equal access to information relating to the reparations proceedings as part of their entitlement to fair and equal treatment throughout the proceedings. However, at the implementation phase, it is acceptable to prioritise reparations to those victims who are most harmed by the convicted person’s conduct.

Victims should be allowed to participate throughout the reparations process and all support to make this participation substantive and effective should be undertaken.

Reparations shall be granted to victims without distinction on grounds of gender, race, age, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.

During the process of deciding reparations the safety, physical and psychological well-being and privacy of the victims shall be respected.

Adequacy and promptness of the reparations are of paramount importance.

Reparations should reflect local cultural and customary practices unless they are discriminatory or deny victims equal access to their rights.

Award of reparations in the present case does not exonerate States from their separate and independent obligations, if any, which may exist under International Law.

A reparations order cannot be inconsistent with the rights of the person required to give reparations.

Lastly, a reparations order should contain the following five mandatory elements:

  • It must be directed against the convicted person
  • It must establish and inform the convicted person of his/her liability with respect to the reparations awarded in the order
  • It must specify and provide reasons for the type of reparations ordered, namely collective, individual or both.
  • It must define the harm caused to direct and indirect victims as a result of the crimes of which the person was convicted. In addition, the modalities of reparations that the Chamber considers appropriate in the case should be mentioned.
  • It must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes of which the person was convicted.

Who are the Victims?

In the Victim Participation Decision of the Court on 8th June, 2016, the criteria to be met for individuals or organisations to be considered as victims was laid down.

The Harm Principle

To be eligible for reparations, a victim must have suffered harm as a result of the commission of the crime. The Appeals Chamber of the ICC defined ‘harm’ in the Lubanga case to mean ‘hurt, injury and damage’. The hurt may be direct or indirect but it should be personal to the victim. It may be material, physical or psychological. Harm may be caused to a natural person or an artificial entity. In case of artificial entities, demonstration of harm to their properties is essential. The concept of moral harm is recognized, which should be estimated without consideration of the economic situation of the local population.  The crime committed should be the actual and proximate cause of the harm for which reparation is claimed. The test of ‘Reasonable Foreseeability’ will be employed to determine proximate cause. The applicable standard of proof is that of ‘balance of probabilities’.

Types and Modalities of Reparations

Reparations may be either individual or collective. They are not mutually exclusive and may be awarded concurrently. Individual business and families may receive financial support as part of collective reparations. As regards modality of compensation, Article 75 of the Rome Statute gives a non-exhaustive list including restitution, compensation and rehabilitation of victims.

Compensation is understood as money awarded to victims recognizing the harms they may have suffered.

Rehabilitation seeks to restore the victims and their communities to their former conditions. This may incorporate economic, social, medical and legal services.

Reparations can be symbolic in character suited to remedy the harm caused to a community.

Who were the victims of Mahdi’s crimes?

According to the Chamber, the victims of the destructions of the Protected Buildings were not merely the direct victims of Timbuktu but all the people of Mali and the international community.  While 3 broad categories of victims were identified, the Chamber noted that the degree of harm suffered varied for each of the groups. Needless to mention, the community of Timbuktu suffered the most on account of Mahdi’s crimes. No applications were submitted for compensation either by Malians outside Timbuktu or members of the international community. Interestingly, even the UNESCO did not submit any application for reparation and stated that the local communities of Timbuktu have been the principle victims of Al Mahdi’s crimes. Despite the same, the Chamber acknowledged the destruction of the protected buildings as an erasure of a part of the heritage of mankind. All but one of the buildings destroyed were UNESCO World Heritage Sites. Most significant was the determination that addressing the harm caused by the Timbuktu community will adequately address the broader harm suffered by Malians and the international community as a whole. This was all the more significant according to the Court as it would ensure the maximisation of reparations awarded to the Timbuktu community. Additionally, the reparations must be directed at the local community so as to bolster their ability to strengthen the cultural heritage of their community in the wake of systematic destruction.

Mahdi’s Apology

While accepting Mahdi’s apology as genuine, categorical and empathetic, the Court did not view the same as a substitute for monetary compensation. A video excerpt of Mahdi’s apology posted in the ICC’s website along with a transcript translated into the primary languages spoken in Timbuktu, according to the Court would also serve as symbolic reparations. A hard copy of the apology could be made available to any of the victims on demand.

Economic Loss caused by Mahdi

The chamber determined that Mahdi caused economic harm. Guardians of the mausoleums, the macons tasked with the prominent responsibilities in maintaining them and people whose business could not exist without the Protected Buildings including those dependent of tourism and economic activity were adversely affected by Mahdi’s acts.  The chamber awarded individual reparations to those whose livelihoods exclusively depended upon the Protected Buildings. For the others, the chamber determined that collective reparations would serve the purpose. Individual reparations imply direct monetary compensation, whereas, collective reparations should be aimed at rehabilitating the Timbuktu community. This may include, according the chamber, community based educational and awareness raising programmes to promote the unique cultural heritage of Timbuktu.

Moral harm caused by Mahdi

The chamber concluded that Mahdi caused moral harm. This includes mental pain and anguish including losses of childhood, opportunities and relationships to the members of the local community. The disruption of the cultural life of the local community is a moral dimension of the harm caused. The protected buildings were viewed as protectors of the community from external harm and its destruction shattered the communities’ collective faith. 

Award of Compensation

Adding up the total cumulative liability of Mahdi’s act, the chamber set his total liability at 2.7 million euros. The figure includes both individual and collective reparations. Symbolic reparation of 1 Euro was ordered to be granted to the international community best represented by UNESCO.  The fact that Mahdi was indigent would have no bearing on the question of personal liability. Rule 97 (1) provides that the Chamber shall take into account the ‘scope and extent of any damage, loss or injury’, however, the personal financial circumstances of the convicted persons are not mentioned.  However, since Mahdi is indigent, the Chamber encouraged the TFV to complement any individual and collective reparations to the extent possible and engage in fundraising events to the extent necessary to complement the totality of the award. The TFV is required to notify the draft implementation plan for the reparations award by 16 February 2018 on which the Defence and LRV are required to file observations within 30 days of the notification. While the TFV’s implementation plan will be keenly awaited, the Trial Chamber order does a great service to International law by articulating the principles of reparations in International Criminal Law, thereby strengthening the anti-impunity framework in a creative and robust manner.

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International Law

Undemocratic United Nations and Global Peace

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War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.

If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.

Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.

What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.

But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.

This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.

UN has six principal organs and many Specialized Agencies and Funds for different tasks.  Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).

However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.

So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.

 Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.

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United States thinks it’s ‘the exception to the rules of war’

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The architects of those Nuremberg trials—representatives of the United States, the Soviet Union, the United Kingdom and France fully expected that the new United Nations would establish a permanent court where war criminals who couldn’t be tried in their home countries might be brought to justice. In the end, it took more than half a century to establish the International Criminal Court (ICC). Only in 1998 did 60 nations adopt the ICC’s founding document, the Rome Statute. Today, 123 countries have signed.

Guess what superpower has never signed the ICC? Here are a few hints? – writes Rebecca Gordon in an article at “The Nation”:

Its 2021 military budget dwarfed that of the next nine countries combined and was 1.5 times the size of what the world’s other 144 countries with such budgets spent on defense that year.

Its president has just signed a $1.7 trillion spending bill for 2023, more than half of which is devoted to “defense” (and that, in turn, is only part of that country’s full national security budget).

It operates roughly 750 publicly acknowledged military bases in at least 80 countries.

In 2003, it began an aggressive, unprovoked (and disastrous) war by invading a country 6,900 miles away.

Yes! The United States is that Great Exception to the rules of war.

While, in 2000, during the waning days of his presidency, Bill Clinton did sign the Rome Statute, the Senate never ratified it. Then, in 2002, as the Bush administration was ramping up its Global War on Terror, including its disastrous occupation of Afghanistan and an illegal CIA global torture program, the United States simply withdrew its signature entirely. Secretary of Defense Donald Rumsfeld (photo) then explained why this way:

“The ICC provisions claim the authority to detain and try American citizens — U.S. soldiers, sailors, airmen and Marines, as well as current and future officials — even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the Constitutional rights of our citizens.”

The assumption built into Rumsfeld’s explanation was that there was something special — even exceptional — about US citizens. Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity.

Even if a citizen is convicted of such a crime in a US court, he or she has a good chance of receiving a presidential pardon. And were such a person to turn out to be one of the “current and future officials” Rumsfeld mentioned, his or her chance of being hauled into court would be about the same as mine of someday being appointed secretary of defense.

The United States is not a member of the ICC, but, as it happens, Afghanistan is. In 2018, the court’s chief prosecutor, Fatou Bensouda, formally requested that a case be opened for war crimes committed in that country. ‘The New York Times’ reported that Bensouda’s “inquiry would mostly focus on large-scale crimes against civilians attributed to the Taliban and Afghan government forces.” However, it would also examine “alleged C.I.A. and American military abuse in detention centers in Afghanistan in 2003 and 2004, and at sites in Poland, Lithuania, and Romania, putting the court directly at odds with the United States.”

Bensouda planned an evidence-gathering trip to the United States, but in April 2019, the Trump administration revoked her visa, preventing her from interviewing any witnesses here. It then followed up with financial sanctions on Bensouda and another ICC prosecutor, Phakiso Mochochoko.

So where do those potential Afghan cases stand today? A new prosecutor, Karim Khan, took over as 2021 ended. He announced that the investigation would indeed go forward, but that acts of the United States and allies like the United Kingdom would not be examined. He would instead focus on actions of the Taliban and the Afghan offshoot of the Islamic State.

When it comes to potential war crimes, the United States remains the Great Exception. Wouldn’t it be wonderful if we were just a little less exceptional?

If, for instance, in this new year, we were to transfer some of those hundreds of billions of dollars Congress and the Biden administration have just committed to enriching corporate weapons makers, while propping up an ultimately unsustainable military apparatus, to the actual needs of Americans?

Wouldn’t it be wonderful if just a little of that money were put into a new child tax credit? – asks Rebecca Gordon.

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Selective Standards: Fight Against Oppression or Just a Geopolitical Showdown for Global Supremacy?

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The karma of destiny is perhaps the most patent representation of natural balance one could witness in a lifetime. The global divide between democracy and autocracy has been a mainstay of western diplomacy since the days of the Cold War. ‘Rule-based International Order’ has been the de facto foreign policy of subsequent western administrations – the United States, in particular. One would assume that the virtue of such an altruistic agenda would extend universally regardless of caste, creed, and ethnicity. But unfortunately, while nature could prove occasionally unfair, each successive American regime sets new records of cant and hypocrisy, as if trying to remind us of its duplicitous existence and deviant machinations.

The war in Ukraine was the grotesque highlight of the year 2022. But what notably garnered considerable spotlight was the western unity against Russian maneuvers. Placing crippling sanctions on the Kremlin – done. Cutting energy imports from Russia – mission accomplished. Military and humanitarian aid to Ukraine – $65 billion have already been appropriated to Kyiv, while an additional $47 billion got approved in a $1.7 trillion government funding bill signed by President Biden. What else? Oh, yes! Sanctions on Iran for supplying military drones to Russia, allegedly used in surveillance and targeted attacks on Ukrainian energy infrastructure. Russia got ejected from the United Nations Human Rights Council (UNHRC), ridiculed in the UN General Assembly (UNGA), and suspended from the Group of Eight (G8) in 2014 for annexing Crimea. All in the name of, and I quote the US Secretary of State Antony Blinken, “defense of the UN Charter and in resolute opposition to Russia’s devastating war of aggression against Ukraine and its people.” Well, is the defense of the UN Charter absolute or subject to the selective judgment of the United States? Is all aggression against any innocent civilians culpable, or just Russian predation against innocent denizens of Ukraine? The answer was pretty evident on (ironically) the last day of the year that would remain earmarked in history as the year of the notorious Russian invasion of Ukraine.

The UNGA voted on a resolution calling on the International Court of Justice (ICJ) to opine on the legal consequences of Israel’s illegal occupation of Palestinian territories. Today, Israel colonizes swathes of Palestinian land beyond the borders established under the 1947 UN Partition Plan (contentious in itself to begin with). Since the 1967 Arab-Israeli War, this illegal occupation also includes Gaza, East Jerusalem, and the West Bank. The resolution passed 87 to 26 with 53 abstentions. Unsurprisingly, the typical states opposing the resolution were the United States and Britain – the flag-bearers of justice in the Russian war in Ukraine. The same standard-bearers of international law that applauded Ukrainian President Volodymyr Zelenskyy for dragging Russia to the ICJ before Russian forces even fully penetrated the Ukrainian borders. It is another rueful example of a shameless display of hypocrisy on the geopolitical canvas. And it would’ve been tragicomical had it not been par for the course – a historical cliche!

Last month, two US lawmakers: namely House Reps. Steve Cohen and Joe Wilson, introduced a bipartisan congressional resolution calling on President Biden to boot Russia from the United Nations Security Council (UNSC) for its “flagrant violations” of the UN Charter, including its illegal naturalization of four Ukrainian oblasts and committing atrocities against civilians in Ukraine. While the expulsion proceedings of a permanent member of the UNSC are both obscure and (frankly) unrealistic without Russian consent, this scenario is spectacularly ironic.

In November 1967, the members of the UNSC voted unanimously for Resolution 242: calling out Israel to withdraw from the annexed territories seized in the Six-Day War. Yet 55 years later, Israel not only continues to violate the resolution, it also proceeds to expand settlements on expropriated Palestinian land with impunity. In the last five decades, the Israeli regime has demolished over 28,000 Palestinian homes in the occupied territory; spawned more than 200 settlements and outposts. And between 600,000 and 750,000 Jewish settlers have been transferred to the West Bank and East Jerusalem. The violence against Palestinians has never ceased.

According to the data from the UN Office of the High Commissioner for Human Rights (OHCHR), a total of 424 children have been killed in Ukraine by Russian barbarity. Apartment blocks razed mercilessly; the electricity grid battered to the brink of collapse. The United States has termed it a ’systemic’ assault on humanity, and President Biden even called it a “genocide.” The same department (OHCHR) reported in May 2021 that the Israeli bombardment of the Gaza Strip killed 242 Palestinian children. Was Israel punished for its war crimes? Far from it. President Biden recently congratulated the incoming Israeli Prime Minister Benjamin Netanyahu, the architect of the 11-day war in 2021, on forming the government – terming him as his “friend for decades” while conspicuously ignoring concerns regarding the inclusion of far-right racist politicians in the new cabinet.

The US officials have always maintained a programmed PR narrative of “Israel’s right to defend itself.” From what, children? According to the World Health Organization (WHO), Israeli aggression in Gaza displaced more than 74,000 Palestinians, including 7,000 children without a roof, scant food supplies, and virtually no access to medical assistance. The WHO also reported the decimation of 30 health facilities in Gaza due to Israeli airstrikes. Yet, annualized military aid to the tune of $3.8 billion continues to flow to Israel from the United States. What more to explain other than the absolute mockery of international law; the farce of diplomacy of human rights and equitable justice at the behest of the apparently puritanical United States of America.

History is riddled with numerous examples of American duplicity. The American acquiescence to the Israeli invasion of Lebanon in 1982, which eventually galvanized the Shiite Islamist group Hezbollah. The United States vetoed the UNSC resolution – one of its 53 vetoes time and again used to shield Israel from global denunciation – calling for Israel’s immediate withdrawal from southern Lebanon. An estimated 49,600 Palestinian and Lebanese civilians died during the occupation. And then there are glaring examples of American interventions. Its outright support to the Afghan Mujahideen against the Soviet Union and the subsequent provenance of the Taliban regime in Afghanistan. How can one forget the devastating invasion of Iraq on the utterly bogus canard of Saddam Hussein wielding Weapons of Mass Destruction (WMD). Between 2003 and 2006, the US-led assault resulted in over 655,000 Iraqi civilian casualties, primarily due to the indiscriminate aerial bombardment by the US forces on Iraqi towns and cities. And the civil vacuum engendered in wake of the Iraq War served as a breeding ground for radical offshoots of Al-Qaeda – later accreting under the banner of the Islamic State (IS). How can a country such as America still enjoy a moral high ground when its historical scroll stands emblazoned with unilateral aggression, illegal intervention, and unabashed prevention of justice against its genocidal allies?

The war in Ukraine is a blood-strewn conflict but a rendition of complex realpolitik import and balance of regional power dynamics. Opposing Russian cruelty should not implicitly spell out support for American rhetoric. One could still stand with Ukrainians while denouncing its backers in the name of universal covenants of justice. All humans are entitled to the right to life, security, freedom, and dignity. These fundamental rights should not waver based on alliances – political, ideological, ethnic, or otherwise.

While the passage of this UNGA resolution is a promising sign of growing global consciousness, it won’t yield any significant, policy-altering outcomes. In 2004, the ICJ weighed on the issue of Israeli occupation and ruled that the wall in the occupied West Bank and Jerusalem was illegal. In response, Israel termed The Hague ‘politically motivated’ and rejected the ruling. Similarly, the Permanent Representative of Israel to the United Nations Gilad Erdan, speaking ahead of the vote, characterized this resolution as “a moral stain on the UN,” further arguing that “no international body can decide that the Jewish people are occupiers of their own homeland.” Russia makes an eerily similar argument about Ukraine; Russian President Vladimir Putin aspires to ‘Reunify the Soviet Motherland.’ Even China’s President Xi Jinping posits a parallel assertion regarding the ‘reunification’ of Taiwan with the Chinese motherland. The resemblance is uncanny. But while the US continues to support Ukraine to wrestle back lost territory from Russian troops; continues to arm Taiwan to defend against a potential amphibious invasion from China, plans are effectively underway to move the US embassy to Jerusalem – a tacit nod to Donald Trump’s aberrant recognition of Jerusalem as Israel’s capital – despite the city’s disputed status under the international law. I reckon the words of Ms. Tirana Hassan, the acting executive director at Human Rights Watch (HRW), in her introductory essay in the HRW World Report 2023 aptly bewail these double standards: “[In] a world in which power has shifted, it is no longer possible to rely on a small group of mostly Global North governments to defend human rights.

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