Tag Archive | "Libya"

soldiers blinded in WWI

The Chemical Weapons Convention: Preventative Measures Against Horror (Part 2 of 3)

This is the second blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  The first blog post described key features of the Chemical Weapons Convention.  This second blog post compares the Chemical Weapons Convention to other sources of international law that address chemical weapons.  The third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.

 

Part II: International Law Addressing Chemical Weapons

This post analyzes the sources of international law—other than the Chemical Weapons Convention (“CWC”)—that address chemical weapons, and then explains how the CWC provides the strongest protections against chemical weapons.[1]  Both  customary international law and international treaty law provide clear prohibitions on using chemical weapons in international war, and under some interpretations, customary international law prohibits the use of chemical weapons in non-international war.  However, in contrast to the CWC, neither customary international law, nor international treaty law, address the production, stockpiling, or possession of chemical weapons.  First, this post examines the multilateral treaties addressing chemical weapons that predate the CWC.  Next, this post discusses customary international law about chemical weapons.  Finally, this post compares the CWC to the other sources of international law addressing chemical weapons.

 

A. Multilateral Treaties Addressing Chemical Weapons

chlorine attack in wwi

Aerial photograph of one of the first chlorine attacks on the Western Front in World War I (www.cbwinfo.com)

France and Germany reached the first international agreement on chemical warfare in 1675.[2]  Subsequently, on July 29, 1899, the Hague Declaration Concerning Asphyxiating Gases was created during the First Hague Peace Conference of 1899.  The Hague Declaration expressly prohibited the use of projectiles to disperse asphyxiating gases, but it only applied in instances of war between two or more signatories, which included thirty-two countries.  The second Hague Peace Conference, in 1907, expanded the prohibition on chemical weapons by forbidding all signatory countries from “employ[ing] poison or poisoned weapons.”  Unfortunately, despite these attempts to prevent chemical weapons use, major violations occurred during World War I.  Germany used multiple forms of chemical warfare to fight Allied forces.  Germany’s use of phosgene and chlorine gas during World War I changed the “lethality of chemical warfare forever.”[3]

The 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (the “Geneva Protocol”) prohibited “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices.”[4]  The Geneva Protocol developed during a conference, overseen by the League of Nations, in Geneva from 4 May to 17 June 1925.  The use of chemical weapons during World War I motivated the Geneva Protocol.  The Geneva Protocol restated the prohibitions in the Hague agreements and expanded the prohibition to all use of chemical weapons in international war.  The Geneva Protocol only applies to international war because the parties only “agree to be bound as between themselves”; thus, the prohibition only applies to war between two or more signatory states.[5]  Over the years, General Assembly of the United Nations (“U.N.”) adopted resolutions to show the continued legitimacy of the Geneva Convention,[6] and the Geneva Protocol continues to be a binding source of international law.  The early treaties used broad language that covered both chemical and biological weapons, but later treaties distinguished between the two.[7]  The Geneva Protocol was the strongest multilateral-international-treaty protection against chemical weapons until the adoption of the CWC in the 1990s.

 

B. Customary International Law Addressing Chemical Weapons

The International Court of Justice Statute treats customary international law as a binding source of international law.[8]  Customary international law, under most definitions, contains two elements: (1) state practice and (2) opinio jurisState practice exists if states consistently and uniformly conform to the same actions.  State practice “does not mean that the practice must be ‘universally followed;’ rather ‘it should reflect wide acceptance among the states particularly involved in the relevant activity.’”[9]  Opinio juris exists if states engage in the relevant state practice “because they believe it is required by international law, not merely because . . .  they think it is a good idea, or politically useful, or otherwise desirable.”[10]  Despite generally agreement about these basic definitions, customary international law “remains an enigma” because of disagreement about some particulars, such as how to identify it.  Establishing the existence or scope of customary international law is difficult because broad customs and practices create it, rather than from “any single, definitive, readily-identifiable source.”[11]

In order to identify and clarify customary international law, the International Committee for the Red Cross (“ICRC”) published a study in 2005 called Customary International Humanitarian Law, which identified 161 rules of customary international law.  Those rules are now available here, in the ICRC’s online database.  Despite criticism from the U.S. government about how the ICRC conducted the study, these rules provide some guidance about what constitutes customary international law.[12]  ICRC Rule 74 addresses the topic of chemical weapons.  According Rule 74, “[t]he use of chemical weapons is prohibited,” and according to Rule 74’s official summary, “State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.”

soldiers blinded in WWI

Soldiers blinded by gas lined up outside a first-aid post near Bethune, France during WWI (International Committee of the Red Cross)

While treaties are generally only binding on the parties to the treaty, treaty rules can become binding on non-parties “as a customary rule of international law.”[13]  Analysts disagree about when a widely adopted treaty becomes binding on third parties, but any U.N. resolution recognizing a treaty as binding on third parties is influential.  For example, in 1969, the U.N. adopted a resolution asserting that the widespread accession to the Geneva Protocol made the use of chemical weapons in international warfare contrary to customary international law.  Specifically, the U.N. resolution “Declares as contrary to the generally recognized rules of international law, as embodied in the [Geneva Protocol], the use in international armed conflicts” of chemical weapons.[14]  The ICRC cited to this U.N. resolution to support Rule 74 as a statement of existing customary international law.  Despite the general consensus that customary international law prohibits using chemical weapons in international wars, scholars disagree about whether Rule 74 accurately represents customary international law regarding the claimed prohibition on the use of chemical weapons in domestic armed conflict.[15]

Essential international organizations, such as the U.N., consider all use of chemical weapons a violation of international law.  The U.N. relies on both the Geneva Protocol and “other relevant rules of customary international law” to enable investigations of both domestic and international use of chemical weapons because the Geneva Protocol only applies to international war.  The U.N. is empowered to investigate allegations of the use chemical weapons by any U.N. member under the Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons.[16]  The enabling General Assembly Resolution refers to both the Geneva Protocol and “other relevant rules of customary international law,” which enables investigations into alleged use of chemical weapons by any U.N. member-state in international war or domestic war.  This framework provides an enforcement regime for the customary international law identified by the ICRC in Rule 74.  As described in the first post and illustrated in the third post of this series, the OPCW also lends its expertise to the U.N. if such an investigation occurs in a country that is not a CWC State Party.

 

C. Comparison of the CWC and Other Sources of International Law

Past treaties, including the Geneva Protocol, provide fewer protections than the CWC.  None of the early treaties addressed the production, stockpiling, and possession of chemical weapons, which are essential for preventing chemical weapons use.  Unlike the CWC, the “Geneva Protocol does not… prohibit the development, production or possession of chemical weapons”; instead, the Geneva Protocol only prohibits the use of chemical weapons in international war.  Similarly, the Geneva Protocol provides insufficient protection because compliance is voluntary, there is no mechanism to verify compliance, and it, “implicitly, does not cover internal or civil conflicts.”  This is not to disparage the protections of the Geneva Protocol; rather, this is to emphasize the innovations of the CWC relative to earlier protections.  The differences between the two treaties are understandable: Geneva Protocol takes up no more than two typed pages, while the official copy of the CWC is one-hundred eighty-one pages and took more than a decade to negotiate.  Without the earlier treaties—and their shortcomings—negotiators would have been less likely to develop the complex structure of the CWC.  Overall, the more detailed and comprehensive structure of the CWC provides better protections than previous chemical weapons treaties.  Similarly, existing customary international law does not provide the same protections as the CWC.  Irrespective of whether the prohibition on using chemical weapons applies in both international and non-international war, no one claims that customary international law prevents countries from stockpiling, producing, or transferring chemical weapons.[17]

 

D. Conclusion

In sum, using chemical weapons in international war violates international law, and under some interpretations, using chemical weapons in non-international war violates international law.  Thus, both international treaty law and customary international law  authorize the investigation and prosecution of actual use of chemical weapons.  However, these international investigations and prosecutions occur only after the damage is done and the victims are hurt.  And sometimes they do not happen at all.  By not addressing more than the use of chemical weapons, most sources of international law provide no preventative protections against the horrors of chemical weapons.

While no legal structure can be perfect, the CWC definitely provides better protections than any existing alternative.  The main advancement of the CWC is the ability to ensure that countries do not reach the point of use, by enabling intervention upon mere possession, development, or production of chemical weapons or their precursors.  The proactive CWC requires the destruction of existing chemical weapons stockpiles and prevents the transfer of those chemical weapons to others.  The CWC prevents the use of chemical weapons by eliminating access to chemical weapons.  Events in the Syrian Arab Republic illustrate the difference between the protections of the CWC and other sources of international law.  There, despite knowledge of Syria’s chemical weapons stockpile, the U.N. only stepped in to investigate after reports of actual chemical weapons use surfaced because Syria had not adopted the CWC.  The third and final blog post in this series analyzes those events in detail.

 

Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy

 

[1] For a detailed explanation of the CWC, see the first blog post in this three part series.

[2] Megan Eshbaugh, Note, The Chemical Weapons Convention: With Every Step Forward, We Take Two Steps Back, 18 Ariz. J. Int’l & Comp. L. 209, 216 (2001).

[3] James D. Fry, Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention, 31 Mich. J. Int’l L. 475, 481-82 (2010).

[4] Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65.

[5] Id.

[6] See, e.g., Measures to Uphold the Authority of the 1925 Geneva Protocol, G.A. Res. 65/51, U.N. Doc. A/RES/65/51 (Dec. 8, 2010).

[7] Early treaties addressed chemical and biological weapons together, but international law has treated them separately, at least since the adoption of the 1972 Biological Weapons Convention.  Biological weapons are weaponized bacteria or viruses.  Chemical weapons are weaponized synthetic substances.  The first post of this series explains the difference between chemical weapons and biological weapons in more detail.

[8] Statute of the International Court of Justice, art. 38(1)(b), June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 993.

[9] Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (quoting Restatement (Third) of Foreign Relations Law, § 102, cmt. b (1987)).

[10] Id.

[11] Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1015 (7th Cir. 2011).

[12] See generally Noura Erakat, The U.S. v. the Red Cross: Customary International Humanitarian Law and Universal Jurisdiction, 41 Denv. J. Int’l L. & Pol’y 225, 227-29 (2013) (describing criticisms from the U.S. government about the methodological approach used by the ICRC during the study).

[13] Vienna Convention on the Law of Treaties, May 23, 1969, art. 38, 1155 U.N.T.S. 331, 8 I.L.M. 679.

[14] U.N. G.A. Res. 2603-A (16 December 1969) U.N. Doc A/RES/2603 (XXIV) A.

[15] Compare Carsten Stahn, Syria and the Semantics of Intervention, Aggression and Punishment: On ‘Red Lines’ and ‘Blurred Lines’, 11 J. Int’l Crim. Just. 955, 958 (2013) (relying on Rule 74 as accurate customary international law), with Jillian Blake & Aqsa Mahmud, A Legal ‘Red Line’?: Syria and the Use of Chemical Weapons in Civil Conflict, 61 UCLA L. Rev. Disc. 244, 255-56 (2013) (treating Rule 74 as inaccurate and arguing that customary international law only prohibits using chemical weapons in international conflicts).

[16] G.A. Res. 42/37, C, U.N. Doc. A/RES/42/37 C (Nov. 30, 1987).

[17] See Stutts v. De Dietrich Group, 2006 U.S. Dist. LEXIS 47638, at *39 (E.D.N.Y. June 30, 2006) (noting absence of “prohibition on the development, manufacture and stockpiling of chemical weapons” from customary international law).

 

 

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emergency response training

The Chemical Weapons Convention: Preventative Measures Against Horror (Part 1 of 3)

This is the first blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  This first blog post describes key features of the Chemical Weapons Convention.  The second blog post compares the Chemical Weapons Convention to other sources of international law that address chemical weapons.  The third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.

 

Part I: The Structure of the Chemical Weapons Convention

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction—more commonly known as the Chemical Weapons Convention (the “CWC”)[1]—provides the strongest protection against chemical weapons in international law.  The CWC attempts “to exclude completely the possibility of the use of chemical weapons”[2] by destroying existing chemical weapons stockpiles and preventing production of new chemical weapons.  The CWC’s near-universal implementation and proactive enforcement structure provides the strongest protection in international law against the horrors of chemical weapons.  First, this post provides background on the CWC.  Second, it describes the international organization created by the CWC.  Third, it explains the CWC’s key provisions.  Finally, this post discusses the CWC’s enforcement and verification regime.

 

A. Background on the CWC

Early efforts at chemical weapons control provided deficient protections, and the CWC developed in response to that deficiency.[3]  The U.N. Conference on Disarmament adopted the final draft of the CWC on September 3, 1992, after twelve years of negotiation.  The CWC opened for signature on January 13, 1993, in Paris.  The CWC entered into force “180 days after the date of the deposit of the 65th instrument of ratification.”[4]  The sixty-fifth country—Hungary—ratified the convention in late 1996; after twenty-two countries ratified the CWC within 180 days of Hungary, the CWC entered into force on April 29, 1997 with eighty-seven State Parties.[5]  The Organization for the Prohibition of Chemical Weapons (the “OPCW”)—the international organization that administers the CWC—started functioning the same day the CWC entered into force.

opcw office

The OPCW office located in The Netherlands (AP)

The CWC faced early academic criticism.  For example, one early article concluded that the CWC “falls short because a significant number of nations with chemical warfare ability have not joined the treaty, these countries have little incentive to join in the near future, and the OPCW has limited powers to react to chemical attacks.”[6]  Nonetheless, the CWC and OPCW developed into formidable institutions.  Today, 190 countries have acceded to or ratified the CWC, leaving just six countries in the world that never acceded to or ratified the CWC.[7]  Additionally, after years of steady progress on the disarmament goals, the OPCW won the Nobel Peace Prize in 2013.

The six countries refusing to ratify or accede to the CWC are Israel, Myanmar-Burma, Angola, Egypt, North Korea, and South Sudan.  Each country’s refusal is troubling, but not necessarily surprising.  In terms of strategic international relations, ratifying the CWC and agreeing to its enforcement regime may not be rational for a state actor because a country that might have chemical weapons may be able to deter attack by enemies, based in part on that uncertainty.[8]  In the words of Sun Tzu: “All warfare is based on deception.”[9]  North Korea’s Kim-family dictators appear to act erratically, but calculatedly, to deter intervention in North Korea.  South Sudan is a war-torn country that is less than three years old.  Israel probably refuses to ratify the CWC to enhance its bargaining position in a region of enemies, particularly since continued non-recognition of the Palestinian state prevents a parallel ratification of the CWC by Palestine.  Some countries on this list probably do not possess chemical weapons, but others almost certainly do.  For example, in Burma-Myanmar, the current regime recently jailed reporters for “disclosing state secrets” by publicizing the government’s current, operating, chemical weapons factories.  Overall, the most striking thing about the list is that the list only contains six countries.  While the OPCW continues to work towards universality of membership, the CWC already applies in full force to 98% of the world.

 

B. The OPCW: The International Organization Created by the CWC

The OPCW oversees State Parties and redresses violations to supervise CWC compliance.  The OPCW conducted “more than 5,000 inspections in 86 countries” over its seventeen years of existence.  The OPCW monitored ninety-six declared chemical weapons facilities, overseeing the destruction of forty-three and conversion of twenty-two to peaceful purposes.  Some cite this behind the scenes work as the reason the OPCW won the Nobel Peace Prize in 2013—though the OPCW’s work in the Syrian Arab Republic that year certainly helped.

Article VIII created the OPCW, established the OPCW’s headquarters in the Hague, and divided the OPCW’s responsibilities among three organs.[10]  The first organ, the Conference of the States Parties (the “Conference”), consists of all OPCW members.[11]  The Conference oversees CWC compliance, oversees other parts of the OPCW, and redresses violations of the CWC.[12]  The second organ, the Executive Council consists of forty-one rotating members, elected for two-year terms and selected to ensure representation of each geographic region.[13]  One of the Executive Council’s responsibilities is to provide recommendations to the Conference about what measures to take in the event of non-compliance with the CWC by a State Party.[14]  The final organ, the Technical Secretariat, provides administrative and technical support to other parts of the OPCW, and carries out the verification measures described in the CWC, including on-the-ground investigations.[15]

 

C. Key Provisions of the CWC

Three subparagraphs of the CWC define of chemical weapons.  The first subparagraph covers toxic chemicals and their precursors; toxic chemical means “[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”[16]  The Chemicals Annex lists the prohibited chemicals and their precursors.  The second subparagraph covers “[m]unitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals” identified in the first part of the definition.[17]  The third part covers equipment specifically designed for use directly in connection with the employment of munitions and devices” identified in part two.[18]  The CWC prohibitions rely on this three-part definition of chemical weapons.  The CWC and the OPCW classify chemical weapons by their “mode of action” on victims, meaning how the chemical enters and affects the body.  Categories of chemical weapons include choking agents, blister agents, blood agents, and nerve agents.

Chemical weapons are distinguishable from biological weapons.  Chemical weapons are generally man-made chemicals, while biological weapons are weaponized versions of naturally occurring bacteria and viruses.  The 1972 Biological Weapons Convention (“BWC”) prohibits the development, production, and stockpiling of biological weapons.  The broad chemical weapons definition in the CWC could be interpreted to include some biological weapons, where the “possible use is similar” for biological agents and chemical agents.  Thus, the CWC states that nothing in the CWC “shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under” the BWC.[19]  The protections of the CWC and BWC complement each other, but the two treaties address different types of weapons.

State Parties only give up the rights the CWC expressly prohibits.[20]  Thus, the CWC contains excruciating detail to protect against chemical weapons.  This produced what one author described as “the most complex disarmament and nonproliferation treaty in history.”[21]  As a starting point, Article I identifies the general obligations of State Parties under the CWC:

1. Each State Party to this Convention undertakes never under any circumstances:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

2. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.

3. Each State Party undertakes to destroy all chemical weapons it abandoned on the territory of another State Party, in accordance with the provisions of this Convention.

4. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.

5. Each State Party undertakes not to use riot control agents as a method of warfare.[22]

Article I prohibits the most troubling aspects of chemical weapons.  Paragraph 1 prohibits State Parties from using, producing, or stockpiling chemical weapons; it prohibits all preparations to use chemical weapons and prohibits facilitating any third party—including non-state terrorist actors—to prepare to use chemical weapons.  Paragraphs 2-4 ensure the destruction of existing chemical weapons and existing production facilities.  Paragraph 5 expressly prohibits the use of riot control agents in warfare, which clarifies that the permitted for use for domestic law enforcement purposes—under Article VI—does not lead to use of chemical agents in warfare.  Moreover, Article XXII expressly prohibits any State Party from making any reservation to the CWC’s terms.[23]  Thus, all State Parties agree to the exact same limitations, including agreement never to retaliate with chemical weapons.

After a country ratifies or accedes to the CWC, the country must secure compliance by public and private actors within the country.  For example, the provisions addressing chemical weapons production facilities “shall apply to any and all chemical weapons production facilities owned or possessed by a State Party, or that are located in any place under its jurisdiction or control.”[24]  This enables the OPCW to oversee the destruction or conversion to peaceful use of both privately and publicly held chemical weapons factories, which includes both chemical factories and munitions factories under the CWC definition of chemical weapons.  State Parties must enact penal legislation to criminalize actions prohibited by the CWC, which ensures the accountability of private actors.[25]  The OPCW website provides suggestions for how State Parties should implement the CWC through domestic legislation and regulations.

The broad definition of chemical weapons in Article II specifically excludes chemicals that are used for a “purpose not prohibited” by the CWC, as long as the type and quantity is consistent with such purpose.[26]  The list of purposes not prohibited by CWC recognizes that some chemicals used in chemical weapons also have legitimate, economically beneficial purposes.[27]  When a State Party wishes to use an otherwise prohibited chemical for any of these non-prohibited purposes, the State Party must submit to verification measures overseen by the OPCW, as described in the next section.

libya chemical weapon destruction facility

Members of the OPCW visit a chemical weapons destruction facility in Libya in Feb. 2014 (OPCW/Flickr)

The most controversial use allowed by the CWC is the exception for the purpose of “Law enforcement including domestic riot control purposes.”[28]  The ICRC criticizes the use of any toxic chemicals for law enforcement purposes, mainly out of slippery-slope concerns about undoing the progress towards chemical weapons disarmament in international law.[29]  The ICRC vice-president expressed concern about any potential use of toxic chemicals by law enforcement in this video.  Others express concerns about the ambiguous scope of the phrase “law enforcement.”[30]  The language of this exception could have been more clearly limited to cover a narrow list of chemical agents—such as pepper spray—to guarantee uniform compliance.  State Parties must declare the possession of chemicals useable as riot control agents to the OPCW, as with possession of any chemical listed in the Chemicals Annex, but they are not required to report when or how riot control agents are used.[31]  However, if the OPCW becomes concerned about how a State Party interprets this provision, Article XIV addresses conflicts of interpretation between a State Party and the OPCW, and Article XV describes procedures for amending the CWC.[32]

 

D. Verifications, Inspections, and CWC Enforcement

The CWC’s enforcement and verification system monitors disarmament, monitors chemical industries, and undertakes through short-notice inspections.  As described by the ICRC, one “major innovation of the CWC is its intrusive verification regime.”  That regime defines the roles of the State Party and the OPCW before, during, and after the initial implementation of the CWC.  The process starts with State Parties submitting initial declarations to the OPCW, including a detailed inventory and a plan for the destruction of all existing chemical weapons stockpiles and chemical weapons production facilities.[33]  Creating and implementing the destruction plans can be challenging, especially due to the environmental problems inherent in destroying chemical weapons.[34]  Nonetheless, the Verification Annex provides instructions: it outlines the order of destruction for chemical weapons and describes the on-site inspections used throughout the destruction process.[35]

After the initial implementation of the CWC, State Parties must submit to OPCW monitoring whenever a they wished to use otherwise prohibited chemicals for a non-prohibited purpose.  The Annex on Chemicals divides chemicals into three schedules, and verification measures under the Verification Annex vary based on the chemical’s location in the three schedules.[36]  This structure allows the OPCW to certify a State Party’s compliance by monitoring production of chemicals that could become or be used as chemical weapons, even when the intended use of the chemical is not prohibited by the CWC.[37]

State Parties may call on the OPCW to investigate any concerns about another State Party’s compliance with the CWC through a “challenge inspection.”[38]  The challenging State Party submits a request to the Executive Council of the OPCW, and unless concerns about the validity of the request stop the process, preparations for an inspection will begin.[39]  The CWC requires that State Party submit to challenge inspection by the Technical Secretariat, under an accelerated timeline: the inspected party may receive as little as twelve-hours of notice of the inspection team’s arrival.[40]  The challenge inspection contains different procedures for claims the State Party actually used chemical weapons and for claims of other violations.[41]  However, the timeline for responding to a challenge inspection remains the same for all alleged violations; this indicates that the CWC treats production and stockpiling of chemical weapons very seriously.

emergency response training

The OPCW conducts a training course on emergency response to chemical incidents for Asian State parties (OPCW/Flickr)

First, the Executive Council reviews the inspection team’s final report; then, if the report reveals non-compliance with the CWC, it makes recommendations for action to the Conference.[42]  Article XII’s four relatively short and relatively broad paragraphs describe the measures for redressing noncompliance.[43]  By not specifying how to redress specific violations, the CWC enables the Executive Council and the Conference to be creative and to respond with anything from sanctions to aggression.  The OPCW must notify the U.N. General Assembly and the U.N. Security Council of “cases of particular gravity.”[44]  To some extent, this envisions the two international organizations working together.  The OPCW and the U.N. do work together sometimes.  For example, where allegations of chemical weapons use arise in connection with a non-State-Party and the U.N. asks for help, the CWC commands the OPCW “to put its resources at the disposal of the Secretary-General of the United Nations.”[45]  This ensures that the OPCW’s expertise will be available when it may be most vital.

However, nothing in Article XII prevents the Conference from taking collective action more quickly than the U.N. Security Council.  Instead, “where serious damage to the object and purpose of [the CWC] may result from activities prohibited under [the CWC], in particular by Article I, the Conference may recommend collective measures to States Parties in conformity with international law.”[46]  Perhaps the possibility that the U.N. would refuse to act in the face of a situation serious enough to inspire independent action by the Conference is sufficiently unlikely that this will never be an issue.  The U.N. Charter provides the Security Council with “primary responsibility for the maintenance of international peace and security.”  Nonetheless, the option for independent collective action by the Conference could be a helpful alternative to the Security Council veto, in a hypothetical situation involving the use of chemical weapons alongside regional conflicts of interest.

 

E. Conclusion

The best features of the CWC are the abilities of the OPCW: to interfere in a country’s chemical industry; to oversee both chemical weapons and precursor chemicals; to investigate actions of private and public actors; to monitor the destruction of chemical weapons; to guarantee the destruction, rather than the transfer, of chemical weapons.  Overall, the OPCW prevents the use of chemical weapons by removing them from international commerce and from State Parties.  Sure, the CWC theoretically could be better, but everything could be better: perfection in international law, as in life, is a goal rather than a reality.  But the strengths of the CWC cannot be overemphasized.  As will be shown in the next blog post in this series, the CWC provides exponentially more powerful protection against chemical weapons than other sources of international law.  To show how this system looks in practice, the third and final blog post discusses events before and after the Syrian Arab Republic ratified the CWC in 2013.

 

Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy

 

[1] Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 45 [hereinafter CWC].

[2] Id. at pmbl.

[3] For more information about other sources of international law addressing chemical weapons, see the second post in this three part series.

[4] CWC supra note 1, at art. XXI.

[5] The CWC refers to countries that have ratified or acceded to the CWC as “State Parties.”

[6] Kevin J. Fitzgerald, The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, 20 Suffolk Transnat’l L. Rev. 425, 447 (1997).

[7] Countries that were not signatories of the CWC before the CWC entered into force cannot ratify the CWC; however, any country may accede to the CWC.  CWC, supra note 1, at arts. XIX-XX.

[8] See Thomas Schelling, Strategy of Conflict 3-80, 119-61 (1980 ed.) (explaining that the ability to communicate strength—either overtly or tacitly—is essential for deterrence).

[9] Sun Tzu, The Art of War 9 (Dallas Galvin ed., Lionel Giles trans., 2003 Barnes & Noble Classics) (1910).

[10] CWC, supra note 1, art. VIII, para. 1, 3, and 4.

[11] Id. at art. VIII, para. 9.

[12] Id. at arts. VIII, para. 20, XII, para. 1.

[13] Id. at art. VIII, para. 23.

[14] Id. at art. VIII, paras. 35-36.

[15] Id. at art. VIII, para. 38.

[16] Id. at art. II, para. 1-3.

[17] Id. at art. II, para. 1.

[18] Id.

[19] Id. at art. XIII.

[20] Id. at art. VI, para. 1 (“Each State Party has the right, subject to the provisions of this Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention.”) (emphasis added).

[21] Urs A. Cipolat, The New Chemical Weapons Convention and Export Controls: Towards Greater Multilateralism?, 21 Mich. J. Int’l L. 393, 394 (2000).

[22] CWC, supra note 1, at art. I, para 1.

[23] Id. at art. XXII.

[24] Id. at art. V, para. 1.

[25] Id. at art. VII, para. 1.

[26] Id. at art. II, paras. 1-4.

[27] Id. at art. II, para. 9 (“‘Purposes Not Prohibited Under this Convention’ means: (a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; (b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; (d) Law enforcement including domestic riot control purposes.”).

[28] Id.

[29] For more information about the ICRC’s contributions to the discussion of customary international law on chemical weapons, see the second post (upcoming) in this three part series.

[30] Benjamin Kastan, Note, The Chemical Weapons Convention and Riot Control Agents: Advantages of a “Methods” Approach to Arms Control, 22 Duke J. Comp. & Int’l L. 267, 271-72 (2012).

[31] James D. Fry, Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention, 31 Mich. J. Int’l L. 475, 485 (2010).

[32] CWC, supra note 1, at arts. XIV, para. 2, art. XV.

[33] Id. at art. III and Verification Annex.

[34] See generally David A. Koplow, How Do We Get Rid Of These Things?: Dismantling Excess Weapons While Protecting The Environment, 89 Nw. U.L. Rev. 445 (describing the environmental issues related to destroying chemical weapons and chemical weapons production facilities).

[35] CWC, supra note 1, Verification Annex, Part. IV(A), para. 15 and 37.

[36] Id. at art. VI, Annex on Chemicals.

[37] Id. at Verification Annex.

[38] Id. at art. IX, paras. 8-25.

[39] Id. at art. IX, para. 17.

[40] Id. at art. IX, para. 15.

[41] Id. at art. IX, para. 19.

[42] Id. at arts. IX, paras. 22-25, art. XII, para. 1.

[43] Id. at art. XII.

[44] Id. at art. XII, para 4.

[45] Id. at Verification Annex, Part XI, para. 27.

[46] Id. at art. XII, para 3.

 

 

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Critical Analysis: Egyptians Protest Christian’s Death in Libyan Prison

Protestors burn a flag belonging to the Libyan Embassy to protest the death of an Egyptian Christian suspected of proselytizing in Libya. (Ahramonline)

Protestors burn a flag belonging to the Libyan Embassy to protest the death of an Egyptian Christian suspected of proselytizing in Libya. (Ahram Online)

On March 11, Egyptian protestors burned a flag belonging to the Libyan Embassy in Cairo to protest the death of an Egyptian Christian suspected of proselytizing in Libya. The Egyptian Christian, Ezzat Atallah, died in prison where he was detained in Libya with four other Egyptians – all charged with spreading Christianity.  While the Egyptian Foreign Ministry claimed that Ezzat Atallah died of natural causes, protestors suspected that poor prison conditions and possible torture contributed to Atallah’s death in Libyan prison.  The Coptic Christian protestors, which numbered around 100, chanted “the killing of Copts is illegal,” while some masked the Libyan flag with an Egyptian one. In response, Libyan nationals inside the embassy attempted to burn the Egyptian flag and raise two more Libyan flags.

Last week, fifty-five Egyptians suspected of spreading Christianity, the same crime for which Ezzat Atallah was detained, were released from Libya. Thirty-five of the released prisoners were deported for illegal entry into Libya, while the remaining twenty were allowed to stay.  The protests come amid reports that one hundred Coptic Christians are being held by the “ultraconservative” Islamist Libyan militia.  Currently, four foreigners are still being held in Libyan prison for espionage and proselytizing including a Swedish-American, South Korean, South African and an Egyptian.

The Coptic Youth Front began the protest when it announced that it would start its sit-in by the embassy. The Youth Front simultaneously demanded that Atallah’s family be appropriately compensated for his death and that the other prisoners arrested on the same charges be released and returned back to Egypt. The Youth Front stated that they would not move until this had occurred. The previous day, Atallah’s brother spoke to the media stating that his brother had been tortured after moving from Benghazi.  Protestors were outspoken about Libya’s actions.  “Egyptians should not be arrested arbitrarily (in Libya) just because they are Christian,” Sameh Saad, a lawyer, told one media source.  “Atallah had a business there and his wife and children.  Why would he jeopardize his life?”  Others protested to stand up for the rights of Christians globally, especially in strict Islamic nations where Christian animosity is the greatest.  “I joined the vigil here to call for the release of Christians detained for simply possessing Bibles and portraits (of Jesus),” Mina Karas, a university student, told the media.  Karas went on to claim that Egypt’s Islamist President Mohammed Morsi must do more to help those detained in Libya.

The Egyptian church is in charge of wrapping up the legal ties of Atallah’s death.  Bishop Pachomius, a leading pope of the patriarchic Coptic Church, has been in touch with officials in Egypt, the Egyptian Embassy in Libya, and the ministry of foreign affairs.  He recommended that the victim’s family contact the Egyptian embassy in Libya to complete the legal affairs of Atallah’s death and to discuss logistics of transporting his body from Libya to Egypt.  As more attention is drawn to Libya for detaining Christians for “proselytizing,” hopefully the ultra-conservative Libyan government will be deterred from such harsh punishment against Christians who simply possess Bibles.

Dan Warhola is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.

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Critical Analysis: Libya Consulate Attack Sparks Backlash Against Militias

Protestors react to the killing of Christopher Stevens. (The Daily World)

The attack on the United States consulate in Benghazi, Libya, which killed Ambassador Christopher Stevens and three other Americans, provoked widespread outrage not only in the international community, but among Libyans themselves. In the weeks since the attack, thousands of Libyans have joined protests against the radical militia believed responsible, as well as other militias that have been operating outside of government control since the fall of Muammar al-Qaddafi.

Early on September 22, protestors in Benghazi stormed the compounds of the Ansar al-Sharia Brigade and forced the group to flee the city. Militia fighters put up a brief fight, but a spokesman for the group later announced it had evacuated their base, claiming to have done so to preserve security. The takeover came after 30,000 people marched through Benghazi the previous day demanding the disbanding of the militias, in the city’s largest protest since the uprising against Qaddafi.

Following the Benghazi protests, Libya’s interim government announced it would disband all armed militias not under its authority. The government has struggled to form a cohesive national military or assert control over the numerous separate militias that formed during the civil war, but the consulate attack and the public backlash have increased pressure for more decisive action. Shortly after fleeing Benghazi, Ansar al-Sharia and another Islamist militia also evacuated bases in the nearby city of Derna, saying they would disband.

The backlash against the militias is a powerful example of the rejection of conservative Islamist and extremist groups that have made major political gains in other post-revolutionary countries in the Middle East. Libya’s first multi-party elections, held in July, were won by a moderate coalition, while parties linked to the Muslim Brotherhood and other Islamist groups fared poorly.

While security and the functioning of government in Libya are likely to be ongoing concerns, the response to the attack illustrates factors that make Libya distinctive among the countries emerging from the Arab Spring. First, the Libyan people continue to be engaged and ready to mobilize against potential threats to democratic development, and to demand better performance from their new government. They also are showing themselves more in favor of moderate politics and more resistant to religious, anti-Western politics than, for example, Egyptians. This presents an important opportunity for the United States to forge a positive relationship in the Middle East as it continues to transform.

Travis Gardner is a third year law student and a staff editor on the Denver Journal of International Law and Policy.

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Critical Analysis: Libya Elects New Prime Minister

New Prime Minister Ali Zidan (BBC)

Libya’s 200 member national congress has elected Ali Zidan as its new prime minister.  Zidan, a former Congressman and human rights lawyer, won 93 votes, securing a majority for him from those present and voting.  Zidan, an independent, beat a candidate favored by the Justice and Construction party,a party linked to the Muslim Brotherhood.

The country’s national assembly president announced Zidan’s victory and requested that he propose a cabinet within two weeks.  Libya’s previous Prime Minister elect, Mustafa Abu Shagur, was dismissed after only 25 days in the position because he had failed to form a viable Cabinet list that staffed qualified legislators.  Zidan had unsuccessfully run against Mustafa Abu Shagur in the last election.

Zidan was a career diplomat under Colonel Muammar Gadhafi before he defected in the early 1980s.  He then joined Libya’s oldest opposition movement, National Front for the Salvation of Libya, from Geneva where he was in exile.

He served the former transitional government as its Europe envoy.  He was also seen as a key player in convincing former French President Nicolas Sarkozy to join the uprising against Gaddafi.  BBC’s Rana Jawad, in Tripoli, says the local observers portray him as liberal with a strong personality.

Because security is still not established across the country and western Libya is still seeing outbreaks of renewed violence, this election comes at a crucial time.

 Alexis Kirkman is a 3L and a Candidacy Editor on the Denver Journal of International Law and Policy.

 

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Critical Analysis: Disbanding Libyan Militias

Libyan militias parade though Tripoli, Libya.
(Christian Science Monitor)

According to USA Today, President Mohammed el-Megaref called for “all of the country’s militia to come under government authority or disband.” This move appears to be aimed at harnessing popular sentiment against the militia groups around the country. Since the revolution last year that saw such groups topple Dictator Moammar Gadhafi, there has been public backlash against armed factions that continue to run rampant across the nation after the revolution. The government has been quick to take advantage of the public’s backlash, even going so far to state that the military would “resort to force if the groups refuse.”

The Libyan government has already taken steps to ensure the militias disband. According to the Libya Herald, the National Army drove a “reengage army division” from its base near Tripoli’s airport road, one day after the government had issued its ultimatum. Furthermore, the Army reported it had raised the Secondary Technical Barracks, another prominent militia, and that it had “arrested all the members of the group as well as confiscated the weapons found at the location.” In Benghazi an agreement has been reached between the government and a number of the militia groups to bring the militias under army control.

Although the Libyan government used public anger as the rationale to disband the militias, it has also been an important step in diminishing international pressure. Since the deaths of 11 Americans, a number of foreign embassies remain on security lockdown. Many embassies fearing “jihadist units in the capital will seek revenge for the humiliating rout of their comrades” being disbanded, the Libyan government had a strong incentive in maintaining control and order within the country.  Overall, the move seems to be working. For example, the Raffala al-Sahati milita, whose soldiers shot a number of the 11 protestors killed over the weekend, told Libya’s state news agency “they had decided their role was over” and would disband. Furthermore, according to The Guardian, Benghazi officials are allowing an FBI team to come to Libya to join in the investigation of the deaths of the 11 Americans at the consulate.

The Libyan government still faces a number of obstacles and even though  Libya’s first free election in decades took place in July, it needs to remain cautious in ordering the militias to disband. Not only does the government rely on the militias “for protection of vital institutions and has used them to secure the borders, airports, hospitals, and even July’s elections” but the militias are also an important contracted security force. In the coming weeks, it will be essential for the government to continue to call for the disbandment of the militia groups while maintaining dialogue and cooperation with such groups at the same time to stifle violence and continue legitimizing state authority.

Victoria Kelley is a 3L at the Sturm College of Law. She is currently the Alumni Editor for the Denver Journal of International Law and Policy and a member of the Jessup International Moot Court Team.

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Critical Analysis: The Diplomatic Irony-A Fine Line Between Peace and Violence

 

A Libyan protestor waves outside the U.S. consulate compound
(Huffington Post)

Late at night on September 11, 2012, the American consulate in Benghazi, Libya came under fire from a violent mob.  The protesters swarmed and set fire to the embassy, and American and Libyan forces did not regain control until 2:00 A.M., roughly four hours after the attackers first stormed the premises.  Four Americans were killed during the attack, including the U.S. ambassador to Libya, J. Christopher Stevens.  On a day already sensitive to Americans for the powerful memories of the World Trade Center, the Pentagon, and United 93, the assault on an American embassy raises questions about our foreign policy in the Middle East.

The protests outside the embassy were apparently in response to an inflammatory anti-Muslim video, which provoked similar responses in Egypt.  Adding confusion to the issue, the identity of the filmmaker is unknown; the person is rumored to be either Coptic Christian or Jewish.  While its maker remains a mystery, the video’s very existence emphasizes the potential dangers for a diplomat in an unstable region.  American ambassadors and their staff received recommendations to leave certain countries, including Libya, soon after the offensive video appeared on YouTube.  For officials whose jobs require monitoring, understanding, and improving volatile situations, there is a thin line between working in diplomacy and being thrown into aggression.

An ambassador’s responsibilities are based on trying to improve relations through diplomatic efforts.  This results in an ironic foreign policy situation for ambassadors in hostile or unstable areas, such as the Middle East.  The envoy must become established as a peaceful, non-threatening person who takes a genuine interest in the country.  Stevens appears to have achieved that objective.  During his service in Libya, he worked to promote the new democratic government and opened the U.S. Embassy in Benghazi, despite the possible dangers in a country greatly affected by civil war and continuing violence.

John Limbert, who was among the U.S. embassy staff taken hostage in Iran thirty-three years ago, raises the issue that a consul’s regard for personal safety can undermine diplomatic endeavors.  Limbert notes, “You can’t just hop in your own car and drive off to a dinner somewhere.  You come up with follow cars and chase cars and guys toting guns around.  And then you say ‘I’m from the US government and I’m here to help?’”  When working with U.S. diplomatic staff in Iraq, Limbert tried to convey a less hostile demeanor by wearing no armored clothing and having security with minimal weapons.  Appearing in a less physically threatening manner can improve diplomatic work, even though security is a significant concern for diplomats.

However, U.S. foreign policy on an individual level can only prove effective with a national framework behind it.  After the anti-Muslim video was posted, Stevens’ individual efforts in Libya were not enough to stop violent protests and attacks on the American embassy.  There were still too many tensions due to the United States’ international image to deflect such violence.  The United States needs to reconsider its foreign policy and its foreign image so that its ambassadors will better be able to balance the fine line between diplomacy and hostility.

Tanny Sevy is a 3L at the University of Denver School of Law and the Survey Editor of DJILP. 

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Critical Analysis: Libya’s Lessons for the Responsibility to Protect

Libya Post-Qaddafi (The Guardian)

As the dust from the armed intervention in Libya settles, the dangers of outright regime change are laid bare.  This has brought about a certain amount of what might be called buyer’s remorse on the part of organizations and governments previously supportive of the humanitarian intervention in Libya.  One of the main problems of regime change is the power vacuum left by the previous regime.  Once the previous regime is removed, the ensuing vacuum opens up space for various previously repressed or insignificant power brokers to take prominence in the new order.  In the case of Libya, removing the Qaddafi regime precipitated the rise of local government and militias at the expense of the central government.  Additionally, the sudden release of oppressive pressure from the top has led to acts of retribution based on longstanding grudges.  These acts of retribution have been both organized and unorganized, and human rights organizations, such as Amnesty International and Human Rights Watch, accuse the Libyan anti-Qaddafi militias of gross and widespread human rights violations.  Homelessness, violence, and lawlessness are widespread and acts of retaliation against the Tuareg population are ubiquitous.

In the last few days, the rift between the central government and the local power brokers hit the world stage with the detention of the International Criminal Court’s delegation.  The delegation was on its way to visit Saif al-Islam Qaddafi, Muammar Qaddafi’s son, when a local militia group detained them in the western town of Zintan.  Although the central government and the ICC have demanded their release, the militia has refused.  The refusal lays bare the divisive issue of prosecution of the previous regime.  Although the ICC has asserted jurisdiction over members of the previous regime, the Zintan militia and other factions within the Libyan state have expressed their desire to have members of the previous regime tried in Libyan courts.

The ICC has a statutory responsibility of complimentarity to domestic jurisdictions; that is, the ICC may only take jurisdiction over a case if the domestic courts are unwilling or unable to prosecute.  Although various human rights organizations, and the ICC itself, have expressed doubts about the capability of the Libyan judicial system and, moreover, the state of human rights within the Libyan state, various factions within Libya assert that the judicial system is willing and able to prosecute members of the previous regime.

Other divisions since the end of the Qaddafi regime are becoming apparent, as relations between the majority Arab population and the minority Tuareg population demonstrate.  Indeed, whereas the speedy removal of Colonel Qaddafi was hailed as a victory for the principle of the responsibility to protect, recent attacks by local and national militias, particularly against the city of Tawargha, have been decried as war crimes, undermine that progress.  These crimes might also fall under the jurisdiction of the ICC, though a continued relationship with the new Libyan regime would be necessary in order to bring the violators to justice.  Such a continued fruitful relationship seems unlikely at this point.

These divisions underline the importance of the humanitarian aspects of any humanitarian intervention.  It is apparent that armed intervention in support of a civilian revolution is insufficient to fulfill humanitarian goals, and that, as demonstrated in Afghanistan and Iraq, regime change must be followed with extensive support to rebuild infrastructure and civil and political institutions.  Invoking a responsibility to protect during the armed intervention and then stepping back to allow the inevitable violent effects of regime change to take their natural course is irresponsible at best, and criminal at worst.  The responsibility to protect must apply not only to vicious dictators, but also to well-meaning intervening states.  That is to say, in order to be a meaningful, coherent policy, any state invoking the responsibility to protect must include a plan to address the consequences of their actions, including the prosecution of members of the previous regime and the ensuing violence and retaliation.

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Saif el-Islam al-Gadhafi

News Post: Which Court Should Try Seif-al-Islam el-Qaddafi?

By: Brandi Joffrion

Saif el-Islam al-Gadhafi

Saif el-Islam al-Gadhafi

Libyan rebels captured Seif al-Islam el-Qaddafi, Moammar Gadhafi’s son, this past Saturday.  Within hours after his capture, the International Criminal Court’s (“ICC”) prosecutor, Luis Moreno-Ocampo, announced that he would be traveling to Libya becaus Seif-al-Islam is wanted by the ICC for charges of crimes against humanity.  However, Libya is not a member of the ICC Rome Statute, and it is arguable that Libya may not have an obligation under the U.N. Security Council Resolution 1970 to cooperate with the ICC’s regulations.  If Libya were to cooperate, it would have to hand over Seif-al-Islam or, at the very least, recognize that Libya is within the ICC’s jurisdiction to determine whether Seif-al-Islam can, and should, be tried in Libya’s domestic courts.

The rebels from the town of Zintan, who captured Seif-al-Islam, and the unelected interim government of Libya want him tried in Libya, where he would face the death penalty.  This is assuming, of course, that he is not murdered before trial, as occurred to his father.  The ICC, on the other hand, forbids capital punishment and would therefore not seek the death penalty against Seif-al-Islam.  Additionally, concerns have been raised that if Seif-al-Islam is not tried in Libya, Libyan citizens would be denied due justice.

Despite these concerns, it is argued that Seif-al-Islam should be tried in the ICC in order to prevent a repeat of the depraved proceedings that were brought against the Iraqi leaders.  In those cases, the leaders never received due process since they were never tried for their crimes of genocide due to the United States’ insistence that Saddam receive the death penalty.  According to the ICC’s statute, a sovereign nation is to be given priority to try its own citizens and the ICC is only to act as a court of last resort in the instance that the local justice system is in a state of “substantial collapse” or unable to operate in an impartial manner.  Currently, Libya has no working court system that will satisfy international standards and it plans to enforce the death penalty without regard to ICC standards.  Moreover, the Libyan people have demonstrated their willingness to take justice into their own hands without resorting to the justice system, as exemplified through Gadhafi’s death last month at the whim of his captors.

However, Libyan citizens could acquire justice through the ICC if it were to try Seif-al-Islam.  It is mandated that all ICC trials be televised, and either part or all of Seif-al-Islam’s trial proceedings could be held in Libya even if tried by the ICC.  Furthermore, it is possible to hold two trials: one trial in the ICC, in which the ICC would charge Seif-al-Islam with crimes against humanity, and a second trial in Libya’s domestic courts, in which Seif-al-Islam could be tried for a wider scope of crimes, which could include anything from corruption and abuse of state funds to murder and torture.

Trying Seif-al-Islam within the ICC would also set precedent for future Libyan officials who are in violation of international law and who are indicted for crimes against humanity.  As one of the “most serious crimes of concern to the international community as a whole,” it is argued that crimes against humanity should take precedence over any individual charges of murder or corruption that could be alleged within domestic courts.  In addition, the ICC provides for a fair and transparent process within the international criminal justice system by permitting the accused to raise defenses and summon witnesses, and by empanelling impartial judges, as well as requiring the heightened burden of proof  of proof beyond a reasonable doubt for any individual who may be convicted by the ICC.

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Libya and the Responsibility to Protect

The Death of R2P

Libya and the Responsibility to Protect

Libya and the Responsibility to Protect

A few weeks ago, Professor Ved Nanda posted on the significance of the Libya conflict for the concept of R2P. This entry takes issue with with Professor Nanda’s comment that “time will tell whether NATO by overstepping its mandate in Libya may have damaged the concept”, and instead argues that R2P in its current form has been damaged beyond repair, never to be utilised again. This pessimistic observation is a direct consequence of the problems of intervention in Libya.

The recognition given to the concept of R2P in 2005 was, as Professor Nanda notes, a momentous achievement. The concept itself reworks in a more positive manner the approach of several jurists1 who advocated the idea of a qualified sovereignty in cases that demanded humanitarian intervention – an idea which understandably aroused great suspicion on the part of post-colonial nations and the developing world. R2P may have seemed a more palatable option due to the emphasis on the availability of intervention as a last resort (including a more structured process for encouraging compliance with human rights standards) as well as post conflict solutions. However, these elements, which formed a large part of the lengthy ICISS report,2 were left untouched in the World Summit Outcome Document. The relevant paragraphs3 were undoubtedly the product of a compromise in which R2P suffered in its association with the controversial, unilateral notion of humanitarian intervention. The clear focus of the delegates, therefore, was to restrict R2P to Security Council authorised action.

Although the UN Secretary General, acting through his Special Representative on R2P,4 has provided valuable guidance and elucidation of R2P,5 it is important to remember that this does not represent the state of international law on the subject. The report has not been endorsed by the General Assembly, indeed, the GA 6th (Legal) Committee remains divided on the proper scope of R2P and its use.

Authorisation of the use of force in an R2P scenario could be considered controversial, but it submitted that such action falls within the tendency of the Security Council to broaden its mandate since the early 1990′s. From this perspective, the affirmation of R2P in the World Summit Outcome Document is merely confirmation that the Security Council is permitted to view a wholly internal, R2P situation as a threat to international peace and security, thus allowing it to legitimately respond under Chapter VII. In UNSC Resolution 1973, it would appear that this is exactly what occurred. Whether NATO, in acting pursuant to that Resolution, has exceeded its mandate is a difficult question which will not be pursued here – but what is clear is that when a mandate is phrased in functional terms such as ‘protection of civilians’, the contours of that authorisation will prove controversial. The emphasis placed on authorisation rather than the content of R2P has lead to its destruction as a credible mechanism. In invoking an R2P concept that lacked clear agreed content, the door was opened to criticisms of mission creep. When such criticism comes from Permanent Members of the Security Council, it would appear that R2P in its current form was a one off magic bullet. It took great efforts to secure UNSC Resolution 1973 – efforts that will likely be in vain in future situations due to the Libyan experience and the negative reactions of P5 members.6

What, then, is the future of R2P? One solution would be to have a clearly defined concept which, when invoked, would leave less room for interpretative differences, at least in terms of the basic mission. This might then give the members of the Security Council renewed confidence to invoke it. However, the difficulties in agreeing anything in the 6th Committee, the lack of positive response to the Secretary General’s understanding of R2P, and the failure of the World Summit Outcome Document to adopt more than a few lines of the ICISS report indicate that such hopes may well be in vain.

The second solution, which might be favourable, is the development of regional arrangements which utilise the concept. Art 4(h) of the AU Constitution provides a prime example of such a position.7 However, it is also illustrative of the problems with this approach, in that the required approval was not given in the case of Libya, leading perhaps to the conclusion that regional arrangements might be more illusory than real. In addition, there remains the issue of whether such authorisation is compatible with the prohibition on the use of force, often invoked as a norm of ius cogens.8

The third, most realistic, and most undesirable option is that R2P will continue to be invoked on a unilateral or multilateral basis outside of the Security Council. The reaction of states to the NATO intervention in Kosovo suggests that such an approach is not permitted under international law, and their insistence on Security Council authorisation in the World Summit Outcome Document supports this view. In taking that step, states emphasised their worries about imperialist ambition and state supported regime change. The irony is that the Libyan campaign, the greatest success of R2P, is also its greatest failure. The scenarios which the contributors to the World Summit sought so hard to avoid have been made more likely by their unfinished and imperfect solution.

  1. See e.g. M Reisman and M McDougal, Humanitarian Intervention to protect the Ibos, in RB Lillich (ed.), Humanitarian Intervention and the United Nations, Charlottesville, 1973, p. 177.
  2. http://www.scribd.com/doc/52015826/Responsibility-to-Protect-Iciss-Report
  3. Paras 138, 139, at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf
  4. http://www.un.org/en/preventgenocide/adviser/index.shtml
  5. Principally in his report, Implementing the Responsibility to Protect at http://globalr2p.org/pdf/SGR2PEng.pdf
  6. The Chinese and Russian vetoes in respect of the ongoing situation in Syria might be illustrative of this stance, despite the fact that no military action has been proposed.
  7. http://www.au2002.gov.za/docs/key_oau/au_act.htm
  8. For a recent and I would argue, persuasive article to the effect that the prohibition on the use of force is not a norm of ius cogens, see Green, Questioning the Peremptory Status of the Prohibition of the Use of Force (2011) 32 Michigan Journal of International Law 215-255.

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