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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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Somali Piracy

Piracy Continues Unabated

Somali Piracy

Somali Piracy

The surge of piracy attacks worldwide and their increasing threat to international shipping are indeed alarming.  The Piracy Reporting Center of the International Maritime Bureau (IMB), an independent arm of the International Chamber of Commerce, reports that incidents of piracy and robbery at sea reached 445 in 2010, compared with 400 in 2009, while there were 293 attacks in 2008, and 263 and 239 for the years 2007 and 2006, respectively.  In the first five months of 2011 there have been 273 such incidents — almost 50 percent more than in 2010.  92 percent of all hijackings in 2010 were off the coast of Somalia.

The global economic cost of maritime piracy is estimated at between $7-12 billion per year, according to a December 2010 report by the One Earth Future Foundation.  The report found that the ransoms paid to Somali pirates had increased from an average of $150,000 in 2005 to $5.4 million in 2010.  Pirates have killed several hostages when ransoms were not paid.

The international community has responded to this growing threat of piracy, especially in the Gulf of Aden and off the Somali coast, by undertaking naval operations, coordinated by NATO, the EU, and a coalition led by the United States, in addition to several countries operating on their own.  It has been suggested to arm crew members, but this has not won favor from the shipping companies; perhaps it is more feasible to use private security companies, as is being done in some cases.  Notwithstanding all these efforts, the scourge of piracy continues to be a major challenge to the international community.  The major reason is that Somalia is a failed state, it has Africa’s longest coastline, spanning 3,025 miles, and its geographical location lies next to key shipping routes connecting the Red Sea and Indian Ocean.

Piracy constitutes a violation of international law, a crime that is considered a threat to all nations navigating the open seas.  In an 1820 US Supreme Court case, US v. Smith, Justice Story, writing for the Court, declared that “there is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature.”  Consequently the principle of universal jurisdiction applies to acts of piracy.  Under this principle, any nation may prosecute acts of piracy in its domestic court, no matter where these acts occurred and no matter who the perpetrator is.  Accordingly, a nation could rely on this principle to seize and prosecute Somali pirates engaged in piracy on the high seas.  However, most countries have routinely released the pirates after capturing them because of the problems associated with trying them in their own national courts — expense, lack of adequate evidence, and the feared claim of asylum on the pirates’ part.

Some national courts have begun prosecuting pirates.  Kenya has entered into several agreements with the European Union, the United States, the United Kingdom, China, and several other countries, to take custody of and prosecute pirates in its courts.  Seychelles has also been prosecuting suspected pirates in its national court.  Also, in late November 2010, the Virginia Federal District Court convicted five Somali pirates on federal piracy charges.  Some European courts, too, have considered trying Somali pirates.  Among these courts, the Dutch have taken the lead.

In addition to customary international law, two treaties are pertinent, under which a state could arrest and prosecute pirates in their national courts.  The conventions are the United Nations Law of the Sea Convention (UNCLOS) and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA).  UNCLOS calls upon all states to combat piracy by cooperating to the fullest extent in repressing this crime on the high seas or any other place outside the jurisdiction of any state, although only warships, military ships, or other crafts of government service are permitted to seize them.

The 1992 SUA currently has 150 state parties and is aimed at addressing concerns about violence and terrorism on the high seas.  Although it does not expressly outlaw piracy, an offense under SUA is committed if a person willingly takes part in seizing control of a ship by force or intimidation, uses violence against an individual on a ship affecting the safety of a ship, or damages a ship in such a way that it affects the ship’s safe navigation.  Attempts at these piratical actions, aiding or abetting a pirate, or threatening to commit piratical acts are also included.  The SUA Convention provides for extradition of offenders to ensure that a criminal is prosecuted even though the state in whose territory the offender is located is unwilling or unable to prosecute.  In addition, the International Tribunal for the Law of the Sea may also provide a remedy as a forum for a piracy trial.

The United Nations Security Council, acting under Chapter VII, has adopted several resolutions since 2008 to counter piracy and armed robbery at sea.  It has authorized member states to take action against pirates even in Somalia’s territorial waters and has called upon states and regional organizations to deploy naval vessels, arms and military aircraft and seize and dispose of vessels and equipment used in the commission of these crimes.  It has also called on states to criminalize piracy under their domestic laws, and to favorably consider prosecuting and imprisoning suspected pirates.

There is currently no possibility of a Somali court sitting in Somalia or in the territory of another regional state applying Somali law.  Could a regional tribunal or an international tribunal established by the Security Council under Chapter VII of the UN Charter be feasible?  The challenges of creating such an international judicial body are enormous, but it is worthwhile seriously considering this possibility.

Ved Nanda is the John Evans Distinguished University Professor, University of Denver; Thompson G. Marsh Professor of Law and Director, International Legal Studies Program, University of Denver Sturm College of Law

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University of Denver Sturm College of Law

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