Tag Archive | "Muammar Gaddafi"

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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Libyans celebrate their freedom

Libya and the “Responsibility to Protect”

The recent uprisings which toppled Ben Ali in Tunisia and Mubarak in Egypt spread fast throughout the Middle East and North Africa.  They overtook Libya, as well.  Inspired by the revolutions in Tunisia and Egypt, protesters and demonstrators filled the streets in several Libyan cities.  Qaddafi called those opposing his brutally repressive regime, “cockroaches” and “rats” who did not deserve to live, and his bloodthirsty forces, including mercenaries, indiscriminately executed any suspected rebel.  The UN Security Council invoked for the first time ever the “Responsibility to Protect” (R2P), an emerging new norm of international law.

Condemning the violence and use of force by the Libyan government against civilians and welcoming the similar early condemnation by the Arab League, the African Union and the Secretary-General of the Organization of Islamic Conference, the UN Security Council adopted a resolution on February 26, 2011, demanding an immediate end to the violence, and urging the Libyan authorities to act “with the utmost restraint, respect human rights and international humanitarian law.”  It also decided to refer the situation to the International Criminal Court and imposed sanctions on Libya, including an arms embargo, a travel ban against 16 named Libyan government officials, including Qaddafi, his sons and daughter, and freezing the Qaddafi family assets.

Libyans celebrate their freedom

Libyans celebrate their freedom

As the Libyan situation worsened and Qaddafi continued his brutal oppression in defiance of the Security Council’s resolution, the Council adopted Resolution 1973 on March 17, 2011, authorizing member states “to take all necessary measures . . .  to protect civilians and civilian populated areas under threat of attack.”  It also established a no-fly zone and further strengthened the sanctions imposed in the earlier resolution.  Subsequently, on June 27, the International Criminal Court issued warrants of arrest for Qaddafi, one of his sons, and Libya’s intelligence chief, on charges of crimes against humanity (murder and persecution) committed through the state apparatus and security forces.  Since Libya is not a party to the Rome Statute that created the Court, it is subject to the ICC’s jurisdiction through the UN Security Council resolution.

Pursuant to the call in Resolution 1973 authorizing Member States “to take all necessary measures . . . to protect civilians,” NATO soon began its air campaign against Qaddafi’s forces.  The context was the imminent attack on Benghazi by Qaddafi’s forces and the feared resulting massacre.

After six months of NATO’s assistance to the rebels, the new NATO-backed and internationally recognized administration, the Libyan National Transitional Council (NTC), was established in Tripoli.  The United States and more than 80 countries have recognized the NTC as the legitimate government of Libya, which has also replaced the old Qaddafi regime at the UN.  The interim Libyan government has received part of Libya’s frozen assets and it is receiving political, technical and economic assistance toward the challenging task of rebuilding the country after 42 years of abuse under the Qaddafi regime.

The “responsibility to protect,” the new norm invoked against Libya, is a promising development.  It should be recalled that the international community was a silent observer witnessing the killing fields of Cambodia.  And the genocide in Rwanda, the Srebrenica massacre and other mass atrocities prompted then-Secretary-General Kofi Annan to seek effective measures for “swift and decisive action” to prevent genocidal actions and to mount an appropriate response.

The Canada-based International Commission on Intervention and State Sovereignty’s report, “Responsibility to Protect,” was the basis of subsequent discussions in the UN.  Eventually, in September 2005, the UN World Summit of Heads of State and Government adopted in its World Summit Outcome Document the core elements of R2P.  The basic element of the concept is that the state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity, as well as their incitement.  The world leaders added that when peaceful means are inadequate and national authorities are “manifestly failing” to protect their populations from these crimes, they are prepared to act collectively, “in a timely and decisive manner,” through the Security Council, in accordance with the Charter and on a case-by-case basis.

After 2005, the Security Council referred to the R2P concept in two resolutions prior to its action in Libya.  Ban Ki Moon, the current Secretary General, has outlined the three pillars of R2P: 1) the responsibility of the state to protect its population from these crimes; 2) international assistance and capacity building in states so that they can provide that protection; and 3) timely and decisive response when a state is “manifestly failing” to protect its population.  The General Assembly has been discussing the concept in order to explore effective means to operationalize it.

NATO’s action in Libya has come under scrutiny and criticism.  Its mandate to protect the civilian population in Libya has, critics assert, been stretched to changing the regime.  Why has R2P been invoked to support military action in Libya and not in Syria, they ask.  Time will tell whether NATO by overstepping its mandate in Libya may have damaged the concept.  In any event, much more needs to be done to ensure that the concept is operationalized by setting standards to determine when military action is appropriate.  R2P is a work in progress, but it is undeniable that the concept is a monumental step forward.

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Source: the New York Times

News Post: Lessons learned from Libya

Source: the New York Times

Source: the New York Times

On March 28, 2011, President Obama laid out two principles for any U.S. action in Libya. The first is that America has the responsibility to stop “looming genocide” in Libya. The second is that when the safety of Americans is not directly threatened, but where action can be justified, America will act only on the condition that it is not acting alone.

When President Obama made this speech, he was criticized as leading from behind. In recent weeks, the President’s policy seems to be effective, and may prove to be a model for the use of force. The U.S. used its military power, including providing cruise missiles, aircraft, bombs, intelligence, and military personnel, as part of a larger NATO coalition, to begin airstrikes and create a no-fly zone over Libya. American officials have argued the Libya strategy worked because it was perceived as an international effort, and not a unilateral action by the American military.  U.S. efforts in Libya have also been criticized because of the continued use of American warplanes after control of the air war was given to NATO in early April.

Since the Libyan intervention, the Obama administration indicated it will respond to the Arab world’s revolts against its dictators on the basis of “moral imperatives”. This approach has led to criticism of the Obama administration’s response to Syria. Deaths in Syria have risen to 1,400 over four months of clashes. The U.N. has not condemned the violence in Syria, and the U.S. has not named those countries supplying Syria with arms and financial wherewithal. The lack of action or results in Syria is frustrating to both the international community and Syrian citizens.

However, experts caution that the time may not be ripe for multilateral NATO action in Syria. Robert Malley, head analyst for the Middle East and North Africa at the International Crisis group said: “What distinguishes Syria from Libya is there is neither regional nor international consensus on Syria. There’s no specific area of the country to come in and defend.” Instead of using military force to intervene in Syria, Secretary of State Hillary Rodham Clinton suggested the broadest possible diplomatic pressure could ultimately have an effect, and potentially lay the foundation for more aggressive action.

The multilateral action taken in Libya and contemplated in Syria adds to the Responsibility to Protect (R2P) doctrine debate in international law.  The R2P doctrine arose as a result of the global community’s failure to protect populations from genocide, war crimes, ethnic cleansing and human rights violations, and it outlines the international community’s response to such violations should the states involved abdicate their primary responsibility. The R2P doctrine has been strongly criticized in the past. However, in the past ten years, the doctrine has gained wider acceptance in the international community. In particular, the idea of sovereignty as responsibility to protect one’s people has begun to take hold. If Libya and Syria’s leaders abdicated their responsibility both to their citizens and to the international community, multilateral action may be justified as the R2P doctrine’s influence grows.

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Sources: The Age, The Guardian, War and Law Blog

News Post: What to do with Muammar Gaddafi

Sources: The Age, The Guardian, War and Law Blog

Sources: The Age, The Guardian, War and Law Blog

Following Muammar Gaddafi’s fall from power, there has been much discussion in the international law community about how to try Gaddafi, his son Saif al-Islam Gaddafi and Abdullah al-Senussi for their war crime charges.

Geoffrey Robertson, a former UN appeal judge, argues that Libyans should not decide the fate of Gaddafi. He bases his opinion partly on the problems surrounding the trial of Saddam Hussein. “Saddam’s trial was manifestly unfair: two judges who showed signs of independence were forced off the bench . . .” Additionally, Robertson believes that the National Transitional Council will not be able to provide a fair trial and the Libyan justice system must be “reconstructed from scratch with judges independent of the new government.” Robertson argues that Gaddafi must be tried at The Hague because he is “charged with crimes against humanity-the mass murder of civilians with offences so barbaric they demean us all.” Robertson also asserts that since Gaddafi’s removal from power was largely due to international law via the Security Council ordering NATO involvement, Libyans now have a “reciprocal duty” to follow international law.  Robertson goes even further to state that any country that harbors Gaddafi should face UN sanctions. Gaddafi must face fair trial by rule of law.

The International Criminal Court (ICC) prosecutor’s office made a statement that Luis Moreno-Ocampo, the ICC prosecutor will continue to have conversations with Libya’s Transitional National Council about how to handle the fate of Gaddafi and his associates. The ICC prosecutor’s officer indicated that “further conversations will define the precise way to move forward,” which may include “the possibility to apprehend and surrender to the court the three individuals alleged to have committed crimes after 17 of February 2011, and also to investigate and prosecute them in Libya for crimes committed previously.” Alison Cole, writer for the Guardian UK, worries that the National Transitional Council may decide not to send the suspects to the ICC. Similar to Robertson, Cole argues that under international law Gaddafi and his associates should be transferred to The Hague to be tried by the ICC. However, once at The Hague, Cole believes the Libyan government can present their argument on why the suspects should be tried at home. Despite calls for local justice, Gaddafi should be tried at the ICC.

Max du Plessis, a law professor at the University of Kwa-Zulu Natal, and Christopher Gevers, a teacher of human rights and international criminal law at the University of KwaZulu-Natal, discuss the issue of other nations harboring Gaddafi and his associates. There are concerns that the suspects may elude justice by escaping to Angola or Zimbabwe, which are not parties to the ICC. However, du Plessis and Gevers were pleased about the South African Department of International Relations and Co-operation’s (DIRCO) announcement that it would not assist the suspects in hiding from justice. “South African officials and/or nationals who make themselves complicit in Gaddafi’s evasion of justice would place themselves at risk of being responsible under both South African law and international criminal law as accessories after the fact to the crimes that Gaddafi is alleged to have committed,” state du Plessis and Gevers. Libya: Essential that ICC member states not lend support to Gaddafi evading justice.

Clearly, the international law community will be watching to see when and if Gaddafi and his associates are located and brought to trial at the ICC. This complicated matter depends in part on the actions of Libya and other nation states. As du Plessis and Gevers stated, “the ICC does not have its own police force . . .”

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