Tuesday, January 31, 2023

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B. International Organizational Racism

A second category of racism in international law occurs by the actions or inactions of international organizations and their agents. How might international law conceptualize racism by the United Nations, the International Criminal Court (ICC), the World Bank, the World Trade Organization, or other international organizations? Institutional racism, which occurs when an institution perpetuates racism through its policies and practices, is well recognized. Slavery in America, apartheid in South Africa, and racial profiling by police are well-known examples. International organizations, whether they be inter-governmental or international non-governmental (“INGO”) in nature, are capable of proliferating institutional racism.

The United Nations is not immune. One concerning area involves the United Nations Security Council's authorization of the use of force. Pursuant to the UN Charter, and derived from the very foundation of the United Nations, only the Security Council can legally authorize the use of force. The only other case where force is legally permissible is a nation's inherent right to use self-defense under particular circumstances. Over the years, the Security Council has authorized the use of force many times, primarily throughout Africa and in the Middle East. Notably, the use of force has never been authorized against any of the Permanent Five countries. The geographic disparities in where force has been used and where it has not raise doubt about the racial neutrality of the Security Council's decision making and the application of its authority under international law.

Another international organization that has been criticized for being racially biased is the International Criminal Court. Established by the Rome Statute in 2002, it stands as the only permanent international court with the authority to prosecute individuals for committing international crimes. Most of the people the ICC has prosecuted have been of African descent and, for this reason, the Court has been criticized for perpetuating institutional racism. The overwhelming majority of defendants that the ICC has prosecuted have been from African nations. In 2017, in response to the ICC's unpopularity, Burundi became the first nation to withdraw from the Court.

At present, rules governing the responsibility of international organizations for breaches of international law provide a framework for analyzing internationally wrongful acts. In 2011, the International Law Commission finalized Draft Articles on the Responsibility of International Organizations (“DARIO”). According to DARIO, international organizational responsibility requires three elements: a) an internationally wrongful act, b) attribution of conduct to the international organization or its agent, and c) no circumstances, such as consent, self-defense, or necessity, that would preclude wrongfulness.

One of the clearest cases of international organizational responsibility concerns wrongful acts taken by the United Nations during peacekeeping operations. Starting in 1996, the UN has taken responsibility for all acts conducted by UN Peacekeepers in their official duties. Since then there have been claims and findings of peacekeepers engaging in sexual assault and child abuse and being responsible for cholera epidemics and lead poisoning. When a peacekeeper engages in an internationally wrongful act, the UN bears international organizational responsibility and the consequences of such a finding may include compensation, damages, or ex gratia payments. Such acts that imply international organizational responsibility may also include omissions. Since racism is not, per se, an internationally wrongful act, there could be no finding of international organizational responsibility. If the act was racial discrimination, ICERD and other treaties establish it as an internationally wrongful act. One would then have to show that the employee or agent engaged in conduct that was racially discriminatory and that such conduct is attributable to the UN.