Denver Journal of International Law and Policy

Sources: CNN, BBC, Dawn.com

Over the weekend continued disputes on the Kunar border led to the accidental deaths of 24 Pakistani soldiers in their military outpost and Pakistan’s boycott of the Bonn conference.  This was not the first of such accidents involving NATO or the United States near Kunar (Afghanistan), which borders Pakistan.  Past incidents include a disputed military action in 2008 where Pakistan claimed that 11 soldiers were killed in a bombing attempt aimed at Taliban insurgents.

This is an area rife with conflict.  Accidents commonly occur due to the lack of available intelligence and the difficulty of surveillance in the mountainous region.  It is occupied by both the Pakistan and Afghan military, but it is also a common spot for Al Qaeda, Haqqani and Hezbi groups to travel between borders.  As one Afghan analyst stated, it is “the perfect storm” for the disputes and military accidents to occur. This complicated structure leading to accidents has increasingly led to issues between NATO, the U.S., Pakistan, and Afghanistan.

These continued attacks have led to Pakistan’s boycott of the Bonn conference and could potentially lead to problems with the withdrawal of American troops from Pakistan beginning next year.  At this time, Pakistan is claiming that the NATO attacks were unprovoked and that NATO’s claims that this was a response to defend troops under fire are untrue.  As a result, Pakistan is protesting the upcoming Bonn Conference and Pakistan’s participation seems unlikely at this time.

However, while Pakistan is currently boycotting the Bonn conference and its leaders are reluctant to attend the Bonn conference, Afghan officials and NATO are urging Pakistan to reconsider.  The Bonn conference is meant to help facilitate and eliminate conflicts such as this. Afghanistan and other nations are hopeful that Pakistan will reconsider the boycott.  However, at this time it appears that Pakistan will not be involved in the Bonn Conference.

Luis Moreno-Ocampo

On November 2, 2011, the I.C.C.’s Chief Prosecutor, Luis Moreno-Ocampo, announced that because of allegations of crimes committed by NATO forces, “allegations will be examined impartially and independently by the Office.” Although the report concerning these allegations will not be presented until May 2012, the investigation alone shows the importance of accountability for all the parties involved in the Libyan revolution.

Damien McElroy of The Telegraph notes that reports continue to emerge that NATO air strikes violated the scope of the Security Council’s resolution by targeting and killing civilians. For example, before the final days of the regime, pro-Gaddafi forces alleged that NATO killed more than eighty-five civilians in an air strike in the town of Ziltan. Furthermore, one of the regime generals, Khaled Hemidi, filed a lawsuit in a Belgian civil court accusing NATO of killing his wife and three children in separate air strike incident. The validity of such reports remains to be seen. It highlights, however, that each party will be investigated to determine responsibility for the violations.

Nonetheless, much of the international community views the military intervention as the right action. In a recent article, the Economist noted that “[i]t is difficult to imagine a stronger case for military intervention to prevent war crimes . . .” and that “it was clear from the beginning that the NATO intervention in Libya was driven by the broad commitment of Western governments and their publics to aiding democratic transitions and stopping murderous repression.” If such widespread support was the foundation of the military intervention into Libya, then an investigation and subsequent finding of an international violation could de-legitimize all subsequent military interventions taken by regional organizations.

Regardless of the alleged violations, NATO’s presence remains hotly debated by Libya’s interim government. The Libyan interim leader asked NATO to prolong its presence through December in an effort to continue its air patrol and place military advisors on the ground amid worry that remaining loyalists might regroup and resume fighting. Nevertheless, the Security Council unanimously voted to end foreign military intervention in Libya on October 29, effectively ending all foreign intervention.

In sum, the statement made to the Security Council highlights the importance of placing the responsibility of any crime committed on the right party. However, the problem remains three-fold. First, if it is determined that NATO did violate the scope of SCR 1970 by targeting and killing civilians, it remains to be seen whether the International Criminal Court will have the capability to bring a claim against NATO. Second, if such a claim is brought, it could diminish the ability of regional organizations to act by using force in similar cases. Finally, although Libya remains stable, there is still a chance that foreign intervention might be necessary. Regardless of whether NATO intervention led to civilian deaths, many would argue that the end of NATO involvement came too soon following the death of Qaddafi.

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.