1 Smoke and Mirrors: COVID-19 and the War Rhetoric

The language of ‘inevitable collateral damage’ and ‘precision warfare’ are undoubtedly familiar to international lawyers. The regulation of hostilities is, after all, one of the most developed area of international law. While many international lawyers would agree that the war metaphor is entirely inaccurate for the situation we are facing, it is equally true that the professional discipline of international law has become an integral part of the securitisation and militarisation of international affairs.¹⁴ If, as put by Judith Butler, ‘the frames that, in effect, decide what lives will be recognizable as lives and which will not, must circulate in order to establish their hegemony’,¹⁵ the role of international law – understood as a discipline, a normative project, and a practice – in the circulation of specific narratives deserves to be carefully considered.

Ongoing academic and policy debates on the whether the pandemic gives rise to a threat to international peace and security and fits within the mandate of the United Nations Security Council (unsc) are an indication of the power and responsibility of the legal interpretive community.¹⁶ In its remarks to the unsc, in April 2020, the UN Secretary-General has called the coronavirus pandemic the ‘fight of a generation’ and a significant threat to the maintenance of international peace and security.¹⁷ Antonio Guterres warned the unsc that the pandemic had the potential to increase social unrest and violence, which would greatly undermine the world’s ability to fight the disease. On 1 July 2020 the unsc followed up and unanimously adopted Resolution 2532, recognising that the unprecedented extent of the novel coronavirus pandemic ‘is likely to endanger the maintenance of international peace and security’.¹⁸ The Resolution also “[d]emand[ed] a general and immediate cessation of hostilities in all situations on its agenda” (para. 1) and call[ed] upon all parties to armed conflicts to engage immediately in a durable humanitarian pause for at least 90 consecutive days (para. 2). However, interestingly, the general and immediate cessation of hostilities and humanitarian pause do not apply to military operations against the Islamic State in Iraq and the Levant (isil/Da’esh), Al-Qaida, and all other Council-designated terrorist groups (para. 3). The ‘war on terror’ seems, in other words, compatible with the ‘war’ against the COVID-19 pandemic.

For some commentators, framing COVID-19 as a peace and security issue is plausible and a natural outcome .¹⁹ The precedent invoked is the unsc’s response to the Ebola crisis in West Africa, which Resolution 2177 (2014) characterised as a ‘threat to international peace and security’.²⁰ As such, the conclusion is reached that there is an arguable case for the Security Council to act in response to COVID-19, although it remains unclear what kind of measures the unsc should take.²¹ Security Council actions are, in other words, presented as a necessary and desirable means to manage and contain the ‘crisis of disorder facing the world’.²² Other international legal scholars, however, have warned that the militarised language may encourage counter-productive responses at the domestic and international level. Christine Schwöbel-Patel observes that ‘[a]lthough the enemy is invisible, war talk nevertheless creates the spectre of an enemy. And, because war is associated with the ‘other’, war talk has the tendency to create and build on ethno-nationalist sentiment’.²³ For Ntina Tzouvala the ‘war’ narrative has the potential of expanding executive power and increasing tensions between states.²⁴ Rather than encouraging international solidarity and compassion, the militarised language suggests the need for measures to defend ourselves against ‘a shadowy enemy’.²⁵

It is important to note that the securitisation of COVID-19 is not atypical, but in line with recent developments in international law. Over the last couple of decades the unsc has been expanding its primary responsibility for the maintenance of international peace and security (under Article 24 of the UN Charter), by affirming its jurisdiction over a variety of issues, such as human rights violations, gendered violence, humanitarian disasters, illicit trade in natural resources, organised crime, and infectious diseases.²⁶ Recently, climate change has been approached through an international security lens and as a subject matter that could be addressed by the unsc.²⁷ In 2007, 2011 and 2018 the unsc hosted thematic debates on the implications of climate change for international security, thereby asserting a link between anthropogenic climate change and increased rate of violence.²⁸ However, in a field were sensitivities are rapidly shifting, the meaning of ‘security’ in relation to climate change is increasingly viewed as ‘a site of contestation between alternative discourses’ or world views.²⁹ This is illustrated by the statements made by developing and small-island states in the context of unsc thematic debates mentioned above. Global South countries disproportionately impacted by climate change consider conventional notions of security, grounded on military intervention or stabilisation, as ineffective in coping with the complex reality of climate change.³⁰ Many countries also expressed skepticism as to whether the unsc would be the appropriate institutional body to deal with climate change given the broader causes and consequences of climate breakdown.³¹

In a similar vein, the ‘securitisation’ of the pandemic raises the question of the nature of the ‘threat’ posed and to whom. As in the case of climate change, the uneven impacts of the pandemic upon the most marginalised individuals and communities are a matter of concern.³² The rhetoric of war/insecurity creates a shared sense of vulnerability vis-à-vis the enemy, thus obfuscating the differentiated effects of the pandemic according to privilege or vulnerability. The depiction of COVID-19 as a peace and security issue diverts attention away from the heterogeneity of human societies and the ‘geographies of injustice’.³³ As a result, it promotes an apolitical approach to deaths and suffering, and discourages the search for their underlying causes.³⁴ Hence, rather than looking at the violence allegedly ‘caused’ by the virus and falling in the trap of environmental/social determinism, in the next section I suggest that we should analyse the pandemic as an instance of structural violence.

2 Understanding the Pandemic via Structural Violence

Writing in 1969, Johan Galtung called attention to pervasive forms of violence that are ‘built into the structure’ and that manifest themselves as inequality of power, resources and life chances.³⁵ In a passage which seems to speak to the current situation, he claims that ‘if a person died from tuberculosis in the eighteen century, it would be hard to conceive this as violence since it might have been quite unavoidable, but if he dies from it today, despite all the medical resources in the world, then violence is present according to our definition’. Anthropologist and medical doctoral Paul Farmer built upon Galtung’s concept of structural violence to study the tuberculosis and hiv epidemics that killed millions of people in Haiti.³⁶ He found that historical political economic domination and inequalities created a society that is ravaged by these diseases, which could be avoided or at least made less severe. Both Galtung and Farmer warn that through focusing on forms of violence that are more immediately visible and directly carried out, we fail to appreciate the structures that systemically distribute life chances in an unequal way.

While the war metaphor and the language of ‘crisis’ distracts us from the ‘politics of everyday life’, to use Hilary Charlesworth’s words,³⁷ by attending to the structural violence of the pandemic we are able to see forms of violence that pre-exist and persist far beyond the emergency. As Lutz Otte put it, COVID-19 has brought into sharp relief the ‘systemic institutional shortcomings and the realities of precarious lives’: weak public health systems, overcrowded prisons and immigration detention facilities are breeding grounds for infections.³⁸ The ‘securitisation’ of the pandemic disguises these structural issues that result in the pandemic being effectively out of control in many countries with the most vulnerable and disenfranchised being hit the worst. The coronavirus pandemic has revealed how a globalised economy based on profit accumulation and consumerism, sustained by international legal norms and institutions, has deepened existing inequalities between the Global North and Global South, as well as within countries in the North.³⁹ In South East Asia, the virus has exposed the weak social protection for urban poor, especially migrant workers,⁴⁰ while for many African people working in the informal sector social distancing is a privilege they cannot afford.⁴¹

Do we have a legal vocabulary to account for this violence? One of the merits of Galtung’s concept of structural violence is that it opens up the category beyond visible, direct and immediate infliction of harm to include social ills, such as poverty, subordination, and exclusion. According to Yves Winter, the traditional definitions restrict violence to the ‘international, direct, immediate and visible infliction of physical harm, the assault or encroachment on the physical integrity of another human being or his or her property’.⁴² Galtung argues that personal violence ‘shows’, whereas structural violence ‘is silent, it does not show – it is essentially static, it is the tranquil waters. In a static society, personal violence will be registered, whereas structural violence may be seen as about as natural as the air around us’.⁴³ Of course, there is nothing ‘natural’ about millions of people dying for an infective disease, especially where evidence demonstrates the differentiated impacts across racial, gender, and class lines. Yes, the ceaseless repetition of this everyday violence makes it normal and thus invisible.

If we think about COVID-19 in these terms, one important insight for international lawyers is that this form of violence (contrary to ‘personal’ violence) does not presuppose an intentional agent as perpetrator and cannot be accounted for by liability-based models. It cannot be easily attributed to an ‘enemy’ (in our case, the virus) or to a state’s conduct. This raises a number of challenges for a legal system built around the liberal notions of agency, attribution, control, and causation. It also suggests that we need a more resilient set of concepts that goes beyond the juridical grammar that requires every violence to be attached to a subject.⁴⁴ Further, as I will contend in the next section, international law needs to overcome the artificial separation between humanity, ecology, and economy, which makes it unable to account for the root causes of the pandemic.

3 Root Causes: The Interconnection of Humanity, Ecology, and Economy

By defining the virus as something ‘external’ to our society, we turn a blind eye to the centrality of nature in the existing socio-economic order.⁴⁷ Industrial growth and production systems shape the ecological world and are in turn shaped by new and emerging ecological relations. As observed by Ntina Tzouvala, it is misleading to frame the virus as the product of Chinese under-development; instead, we should see it as the result of the country’s rapid development and incorporation into a globalised economy.⁴⁸ The disruption of forests and landscape fragmentation caused by rapid urbanisation and intensive farming have created new opportunities for zoonotic diseases, by helping to align the three core elements needed for disease transmission – a pathogen, a host and a vector.

Rather than pointing the finger at wet markets, we should look at how unsustainable development practices, often facilitated by international legal norms conceptualising nature as property or resource to be exploited,⁴⁹ resulted in increased habitat and biodiversity loss. As ecologists tell us that shrinking natural habitats and changing behaviour may create the conditions for new diseases like COVID-19 to arise in future,⁵⁰ rethinking how we ‘frame’ the environment becomes an urgent task.⁵¹ The COVID-19 pandemic has given renewed weight to such concerns, but it is important to note that these arguments in themselves are not new. Indeed, human–nature relations have occupied a significant place within feminist and critical ecology literature.⁵² Donna Haraway has pointed out that ‘we must find another relationship to nature besides reification and possession’.⁵³ Vandana Shiva has emphasised the need to transcend the ‘polarisation, divisions and exclusions that place the economy against ecology, development against environment and people against the planet and against one another in a new culture of hate’.⁵⁴

The split between ecology and economy is something that critical legal scholars have also explored and challenged.⁵⁵ It has been observed that, although conservation and destruction of nature are mutually constitutive processes, the discipline of international law separates conceptually the rules that apply to nature to those that regulate the economy.⁵⁶ International environmental law defines the ‘environment’ as an object of human protection, while international economic law constructs ‘natural resources’ as objects of appropriation and free commerce. Whereas the environment is regulated with the goal of stewardship, natural resources are governed with the aim of enabling their efficient exploitation. However, as agued by Julia Dehm and Usha Natarajan, ‘when competing governance objectives are directed at an identical object, the result is regulatory dysfunction’.⁵⁷ If the ecological breakdown and the COVID-19 pandemic have the same root-causes, meaning overconsumption, extractivism, and the unrestrained pursuit of economic growth, by severing humanity, economy and ecology, international law condemns itself to have peripheral impact upon the most pressing challenge facing our interconnected world.

This brings to the fore another key limitation of the war/security narrative. War talk does not engage in a full exploration of root causes.⁵⁸ Lori Hartmann-Mahmud explains that the vocabulary of war ‘does not have time for analysis, for understanding, for dialogue. That is at once its strength and its weakness; it cuts through the competing versions of why and how the enemy has emerged and sharply focuses on attacking and defeating the enemy’.⁵⁹ In doing so, it distracts attention from the very discussions that are indispensable for meaningfully addressing the problem.

4 Of Frames, Power, and Responsibility

Breaking with a frame not only generates the possibility of new frames and new content, but significantly discloses a ‘taken-for-granted’ reality.⁶⁴ It is both illuminating and empowering. Ultimately, international lawyers should pay attention to the ends that are at stake in framing the pandemic (and other ‘crises’), reject narratives that oversimplify the reality, and take responsibility for the knowledge we produce and the stories we decide to tell.⁶⁵

Acknowledgments

An earlier version of this chapter was published in the blog of the European Journal of International Law (ejil:Talk!) in May 2020. Many thanks to Marija Jovanovich for her thoughtful comments on an earlier version of this chapter, as well as to the editors for their feedback.