Category Archives: Libya

‘Denying the Means’: Small Arms Proliferation and Mass Atrocities

In a previous post, Alexandra Hiniker of ICRtoP member, PAX, wrote a guest blog exploring the links between humanitarian disarmament and the Responsibility to Protect (RtoP), with a particular focus on cluster munitions.  She highlighted relevant assistance strategies that affect the ability of a state to uphold its primary obligation to protect populations. The piece was an entry that helped to illuminate the critical connection between RtoP implementation and another area within the peace and security agenda.

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A Libyan weapons cache that was looted after the fall of Qadaffi. Sean Smith/The Guardian.

Equally important are efforts to stem the flow and illicit transfer of Small Arms and Light Weapons (SALW).  A holistic approach to preventing the proliferation of this weaponry can also contribute to the overall goal of atrocities prevention.

Nowhere has this been made clearer than in Libya, where the collapse of the Qadaffi government and the security vacuum that has ensued has led to a state awash in legacy weapons that have spread throughout the Sahel-Sahara region and beyond. Many of these destinations also happen to be areas where the commission of atrocities have been well-documented.

 

Libya’s Insecure Stockpile

As a previous ICRtoP blog explains, post-revolution Libya verges on civil war, with the widespread proliferation of militias and a central government too weak and divided to restore order. In a state that has been described as one of the “largest arms purchasing countries in the world,” containing a stockpile consisting of tens of thousands of weapons, looting and diversion of arms by both militias and corrupt government officials has been rampant.

Indeed, the magnitude of the problem after the 2011 fall of Qaddafi led Peter Bouckaert of Human Rights Watch to comment that he has “never seen weapons proliferation like Libya,” which has occurred on a scale  “…many times greater than other conflicts.”

The hemorrhaging of weapons is in direct violation of the arms embargo that the United Nations Security Council instituted after passing Resolution 1970 in 2011. A recent report submitted to the Security Council by a panel of experts on Libya released in March of 2014 details the extent of the violations.  It is striking for the fact that experts traced the flow of weapons leaving Libya to 14 other countries in the Sahel-Sahara region and the Levant.

Notable for this blog, is the ominous conclusion that “In terms of end users, while various types of individuals and armed entities are benefitting from the dissemination of Libyan arsenals…the materiel is likely to enhance the capacity of terrorist groups…”  This appears to have played out in tragic fashion most prominently in Mali and Syria.

 

 Libyan Arms Fuel Regional Conflicts

Mali is perhaps the most well known example of intra-regional transfer of weapons in the Sahel, where Tuareg rebels that participated in the Libyan revolution are believed to have brought back an abundance of conventional weaponry that fuelled the country’s instability in 2012.

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Ansar Dine fighters in northern Mali. VOA

The panel of experts report explains that weapons from Libya reached Mali by land via neighbouring Niger, but also through Algeria and Tunisia.  The main traffickers include armed groups in northern Mali such as Al Qaeda in the Islamic Maghreb, the Movement for Oneness and Jihad in West Africa and Ansar Dine.

These extreme elements have been linked to numerous atrocities, including “rape, use of child soldiers, and pillaging of hospitals, schools, aid agencies, and government buildings…” in addition to “abductions and wilful killings of civilians as well as hostage taking.”

The nightmare in Syria that has been raging for three years and claimed the lives of nearly 200,000 also seems to have been inflamed by weapons from Libya. The report indicates that Syrian and Libyan nationals who are sympathetic to the Syrian opposition have utilized a network of arms dealers to finance and transfer weapons, allegedly cutting through Turkey, Qatar, and Lebanon by way of sea, land, and air.

It is conceivable that these weapons may have been used in, or made the commission of a number of atrocities possible. This is particularly so for extreme segments of the opposition who, largely due to the influx of weapons, are becoming “better equipped than other armed groups.”  This is a worrisome development underscored by the recent expansion of The Islamic State in Iraq and the Levant (ISIL, also referred to as ISIS or IS) from Syria into Iraq, and the resulting trail of atrocities that have been committed.

The Mali and Syria examples show that  when left unchecked, illicit transfers of SALW can and likely will find their way into other active crises, where according to the Stockholm International Peace Research Institute, old insecurities lead to “…increased demand for and proliferation of small arms and light weapons,”  that tend to exacerbate the situation further.

 

SALW Linked to the Commission of Atrocities

As the deadly effects of SALW proliferation become acutely clear in places like Mali and Syria, the international community has begun to identify it as a major challenge to atrocities prevention. While it must be noted that the flow of arms from Libya is by no means the sole, or even the greatest cause of violence in these crises, they are what have been called atrocity ‘enablers.’

In 2012, Robert Zuber of the Global Action to Prevent War spoke to the relationship between arms flows and the commission of atrocities, noting that, “Illicit arms inflame conflicts that might otherwise be resolvable, including conflicts that have the potential to incite major violations of human rights, and even rise to the level of mass atrocities.”  He also stressed how the circulation of arms makes it more difficult for a government to dispense its primary responsibility to protect civilians.

Security Council Meeting on Small arms

Australian Foreign Minister Julie Bishop convenes a high-level meeting on the issue of Small Arms and Light Weapons. UN Photo/Amanda Voisard

SALW proliferation is well within the purview of the groundbreaking Arms Trade Treaty, which recently surpassed the number of ratifications required for legal implementation. The treaty contains a key provision that forbids any transfer of weapons by a state party if there is reason to believe they could be used in the commission of atrocities.

In addition, Resolution 2117 was adopted in 2013 by the Security Council on the thematic issue of Small Arms and Light Weapons with the aim of encouraging practical steps to prevent their illicit transfer and misuse. The resolution was largely informed by a 2013 report by the Secretary-General on small arms that stressed the destabilizing impact of arms from Libya in the Sahel-Sahara region and the Levant, pinpointing both Mali and Syria as being particularly impacted.

The resolution further established the connection between SALW and RtoP, recognizing that, “…the misuse of small arms and light weapons has resulted in grave crimes,” and reaffirmed the importance of the Responsibility to Protect in preventing these violations.

 

International Efforts to Prevent Proliferation

Given the correlation between SALW proliferation and the commission of atrocities, it is critical that the international community take steps to stem the flow of arms from one conflict zone to another.

Implementation of the Arms Trade Treaty, which is scheduled to go into effect in December 2014, will be crucial in this regard.  It can ensure states achieve more effective stockpile management, including by improving physical security, record keeping, reporting, and other national and international measures to prevent diversion of arms through illicit channels.

Similarly, Resolution 2117 highlights the role of UN peacekeeping in providing national authorities with assistance in stockpile management and the implementation of civilian disarmament programs. It also encourages states to fully abide by UN-sanctioned arms embargos in an effort to curb violations such as those seen in Libya.

Further action was highlighted by participants at the recent Biennial Meeting of States on Illicit Trade in Small Arms in June 2014, which stressed implementation of existing mechanisms such as the 2001 Programme of Action on Small Arms and utilization of the International Tracing Instrument. Participants encouraged states to:

“…continue strengthening stockpile management, including physical security measures, particularly in conflict and post-conflict situations…” They also called for international assistance and capacity-building to harness new tracing and tracking technologies.

SRSG KOENDERS visit to Facobly

Destruction of Small Arms during Disarmament ceremony in Cote d’Ivoire. UN Photo/Basile Zoma

The recent launch of a pilot programme called the Small Arms Project being implemented in six communities in the Sahel-Sahara region by the European Union and ECOWAS demonstrates what potential action can look like. The programme is aimed at:

“…raising community awareness on the dangers associated with the illicit proliferation of small arms and armed violence; strengthening the capacity of security institutions and communities to enhance safety and above all encouraging voluntary weapons surrender/collection in return for community based development projects.”

 

Understanding Key Relationships for Improved Implementation

The importance of this type of assistance is clearly illustrated by the Libya case. Efforts to disarm militias and account for the legacy weapons of the Qadaffi government have been half-hearted and inefficient, leading to proliferation that has fueled highly volatile crises in places like Mali and Syria. The 2014 Secretary-General’s Report on second pillar international assistance recognizes the importance of effective action to deny would-be perpetrators the means to commit crimes, and further demonstrates the link between disarmament and atrocities prevention.

If the Responsibility to Protect is to be effectively implemented, its relationship between other peace and security dimensions will need to be explored further. Both Alexandra Hiniker’s and this piece on RtoP and disarmament identify overlapping goals and concerns. Continued research and exploration of how this area, as well as others within the peace and security field, can be leveraged to complement one another will be a key consideration as RtoP moves into its second decade of existence, and towards more concrete discussions on implementation.

 

For more information on individual atrocity situations, read our crisis pages. For more on the relationship between The Arms Trade Treaty and the Responsibility to Protect, read our Blog ‘When Arms get in the Wrong Hands. The Arms Trade Treaty and Implications for Upholding the Responsibility to Protect.’

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Three Years On, Libya Still Providing Lessons for RtoP Implementation

NATO’s 2011 intervention in Libya to prevent the imminent slaughter of Benghazi’s civilians, threatened by Moammar Qadaffi and his forces, was hailed by many as the first real test-case for implementation of the third pillar of the Responsibility to Protect (RtoP) – and a successful one at that. However, the intervention also sparked controversy and raised important lessons about the norm’s implementation. Most prominently, many UN Member States expressed concern that through the course of pursuing United Nations Security Council Resolution 1973, the mandate to protect civilians morphed into something that more closely resembled regime change.

A rebel mans an anti-aircraft gun in Ras Lanuf

A rebel manning an anti-aircraft gun during the 2011 civil war. REUTERS/Goran Tomasevic.

This has since led to debates surrounding Security Council monitoring, and the relationship between RtoP and regime change. Three years later, as Libya sits on the precipice of civil war, it appears more lessons have emerged regarding the oft-neglected importance of providing states with post-crisis assistance to prevent the reoccurrence of atrocity crimes, as well as the necessity of employing RtoP measures that straddle the various pillars.

Libya on the Brink

Currently, Libya faces the genuine risk of sliding into civil war. Since Qadaffi’s overthrow, the country’s militias have run rampant, with no effective central government or security force to rein them in. Often, these militias have provided the only security guarantee for many of Libya’s tribes and city-states, while informal cooperation – and often competition – with the regular security forces is common.

Although a delicate balance of power previously kept the militias from engaging in all out fighting against one another, the election of a new Parliament on June 25th, 2014 dealt a significant blow to Libya’s Islamists. Instead of accepting the results peacefully, Islamists and their Misrata-based allies began a siege of Tripoli and its airport. The goal of the assault was to wrest it from the control of the Zintan-based militias they perceived to be Qadaffi sympathizers leading a counter-revolution. The alliance, named ‘Libyan Dawn’, has gone on to reconvene the former General National Congress in Tripoli, in opposition to the newly formed House of Representatives sitting in Tobruk. Simultaneously, the city of Benghazi has plunged into factional fighting as former Qadaffi General, Khalifa Haftar unilaterally launched operation ‘Libyan Dignity’, with the stated intention of ejecting Islamist militants that allegedly pose a threat to Libyan national identity.

As it stands, Libya therefore currently has two opposing governments sitting in different parts of the country, each backed by their own respective armed groups, but neither with any real authority. Militia violence continues to engulf several of Libya’s major cities, with recent reports  from groups like Human Rights Watch noting that since taking control of Tripoli and its airport, Libya Dawn elements have turned their aggression on civilian populations. Given this reality, the risk of mass atrocities is perhaps greatest since the 2011 uprising.

Humanitarian Consequences and Unfolding Atrocities

The recent bout of fighting between rival militias has had devastating consequences for Libya’s civilians. Recent figures provided by the Office for the Coordination of Humanitarian Affairs estimate that over 1,000 Libyans have perished, while 107,028 are internally displaced and an additional 150,000 have sought refuge abroad.  Meanwhile, those remaining in conflict zones are experiencing frequent shortages of food, water, gasoline, and electricity.

Fighting near Tripoli airport

Fighting near Tripoli airport leaves a trail of billowing smoke. Mahmud Turkia/AFP/Getty Images.

Amnesty International called attention to the indiscriminate nature of the violence, stressing that “The warring parties in Tripoli and Benghazi have displayed a wanton disregard for the safety of ordinary civilians who have found themselves mercilessly pinned down by indiscriminate shelling with imprecise weapons.” Citing the rising civilian death toll and the damage to civilian infrastructure, they warn that the failure to distinguish between military and civilian targets is punishable as a war crime under international law.

Notably, a local civil society organization called Lawyers for Justice in Libya has indicated that on top of the suffering caused by fighting, activists and civil society advocates are being targeted for assassination on a frequent basis, while both state and non-state detention facilities rampantly use torture against detainees, with little hope of due process. The group has warned that “the Libyan state’s ongoing tolerance of such grave acts may constitute a crime against humanity,” and has reminded the newly elected House of Representatives of their responsibilities and legal obligations under international law to prevent such action, and prosecute perpetrators.

The Office for the High Commissioner for Human Rights confirmed reports of torture and other abuses. The Office echoed warnings that such violations could constitute war crimes, stating “The direct perpetrators of any such crimes in Libya, as well as commanders who ordered or failed to stop the commission of such crimes, could be prosecuted, including by the International Criminal Court (ICC).”

Calls for Action and Forthcoming Assistance

The situation in Libya has deteriorated to the point that on August 13th the democratically elected government called on the UN to take action to protect civilians and help build state institutions. While specific protection measures were not mentioned, Libyan government officials have since suggested that a UN peacekeeping force tasked with disarming militias is needed. France seems to agree with this assessment, calling for “exceptional support” to Libya, and warning that the country could fall into chaos without UN intervention.

However, there appears to be little appetite for this on behalf of the UN and other members of the Security Council. Indeed, Bernadino Leon, the incoming head of the United Nations Support Mission in Libya (UNSMIL) has stressed that “…more conflict, more use of force will not help Libya get out of the current chaos.” Instead, he emphasized that Libya needs “a lot of international support” to back “Libyans who want to fight chaos … through a political process.

Likewise, Secretary-General Ban Ki-moon recently elaborated on this sentiment stating, “There is no space for violence in the political transition process…Concerns must be addressed through inclusive political dialogue, including with those in Tobruk, Misrata, Tripoli, Benghazi and elsewhere.”

Accordingly, recent revelations that Egypt and the United Arab Emirates allegedly launched airstrikes against Islamist targets have been met with condemnation by both the Council and neighbouring states.

Security Council Meeting: The situation in Libya. Vote, 15 in favor.

Head of UNSMIL Bernardino Leon briefs the Security Council on the situation in Libya. UN Photo/Evan Schneider.

On August 27th, the UNSC unanimously adopted Resolution 2174, which further confirmed the preference to settle the conflict through inclusive political dialogue. Additionally, as head of UNSMIL, Leon has sought to use his good offices to broker a ceasefire – an effort that may finally be yielding results. However, more coercive measures were also laid bare, as Resolution 2174 modified the sanctions regime established in Resolution 1970 to target those responsible for inciting current violence, though the Council has yet to release a new list of names for inclusion.

As for NATO’s involvement, the trans-Atlantic organization has been considering sending military assistance to the Libyan state for some time, but seems to have delayed these plans due to the volatile security situation. However, at the recent NATO Summit that took place in Wales, the organization confirmed its support for UNSMIL’s ceasefire efforts, and reiterated its willingness to provide assistance for security and defense institution building, as well as to forge a partnership under the Mediterranean Dialogue.

 

 New Lessons for Implementation of the Responsibility to Protect

Several atrocity indicators, as outlined in the Analysis Framework laid out by the Office of the UN Special Adviser on the Prevention of Genocide, have persisted since the NATO intervention of 2011. These include, but are not limited to: a permissive environment created by ongoing armed conflict, the presence of multiple armed groups and militias, impunity for past crimes, a history of mass human rights violations, and a lack of credible judicial, human rights, and security institutions.  These indicators underscore the importance of international assistance in completing Libya’s transition, as well as for preventing and halting fresh atrocities.

In his 2012 report ‘The Responsibility to Protect: Timely and Decisive Response,’ Ban Ki-moon noted that  “Putting an end to the four specified crimes and violations in a particular situation should be the beginning of a period of social renewal and institutional capacity-building aimed at making future violence less likely.”

 The Secretary-General goes on to explain the importance of “building the institutions, legislation, practices and attitudes to lessen the likelihood of…[atrocity] reoccurrence.” This demonstrates that action taken by the international community to halt atrocities can and must also be used as to assist the state and strengthen its capacity to uphold its primary Responsibility to Protect.

It also means that the Responsibility to Protect does not end once an atrocity situation does. Rather, it is an ongoing effort that requires the steadfast support of the international community. The case of Libya demonstrates this plainly, as insufficient attention to post-crisis institution-building has led to a Libyan state too weak to prevent the reoccurrence of atrocities.  As Sarah Leah Whitson of Human Rights Watch has bluntly stated, “The international community that played such a pivotal role in abetting the revolution is failing in its duty to save it.”

Update: A previous version of this article mistakenly indicated that Qatar had allegedly launched airstrikes. The article has been revised to indicate Egypt and the UAE as the responsible parties. 

 

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RtoP and Rebuilding: Preventing atrocities through post-conflict reconstruction

In the lead up to the World Summit, then Secretary-General of the United Nations, Kofi Annan, noted that “roughly half of the countries that emerge from war lapse back into violence within five years.” RtoP was first put forward in the report of the International Commission on Intervention and State Sovereignty, with advocates embracing it as a full spectrum of responsibilities from prevention, to reaction and rebuilding. When governments unanimously endorsed RtoP in the 2005 World Summit Outcome Document, the “responsibility to rebuild” was not included (presumably because rebuilding was to be the focus of the newly created Peacebuilding Commission), but rebuilding obviously plays a large part in preventing a return to conflict and the commission of atrocity crimes. This leaves us asking – What is the responsibility of actors in post-atrocity situations? With a number of states – Libya, te d’Ivoire, Sri Lanka, and Kenya – emerging from bloodshed in recent years, it is important to understand how actors can effectively contribute to the rebuilding process.

What does post-crisis reconstruction after mass atrocities entail? 

Mass atrocities – genocide, war crimes, crimes against humanity and ethnic cleansing – are the most extreme forms of violence and often literally destroy a country by leaving it with collapsing infrastructure and destabilized political, judicial and legal systems. These institutions often need to be rebuilt from scratch and on top of this, the social fabric – how members of a society interact with each other – breaks down, and mistrust and suspicion predominate between the fractured communities.  As can be expected then, rebuilding is a complicated and multi-faceted process, and includes a range of measures that can be taken by actors at all levels to assist in reconstruction. Such measures may include fostering political inclusiveness and promoting national unity, reforming legislation, ratifying relevant treaties, promoting human rights, monitoring elections, improving judicial processes, reintegrating ex-combatants and others into productive society, curtailing the availability of small arms, providing psychological support and reparations to victims, and establishing truth and reconciliation commissions. It is critical that these efforts not only serve to bring security to a country or region, but also address the causes of the conflict and mistrust between communities.  Without this complete approach, it is likely that continued suspicion could fester, risking a return to the deadly cycle of violence. What this demonstrates is that no single measure in the rebuilding process stands alone, but rather that all action must be linked to ensure a holistic approach that achieves long-term stability.

Responsibility to Rebuild in Practice

But what does rebuilding look like in practice?  As the cases of Libya, Côte d’Ivoire and Sri Lanka show, post-conflict countries are fragile and the tasks before them complex, as each state faces unique challenges based on its past, the causes of the conflict, and the level of destruction experienced.

Libya: Weapons continue to destabilize a nation and the region

The international community upheld its responsibility to protect populations in Libya by taking swift and coordinated efforts to halt the bloodshed and imminent threat to the people of Benghazi at the hands of the Gaddafi government, which had resorted to force against what began as a peaceful popular uprising. However, rebuilding remains an ongoing challenge as the countless weapons, which flooded the nation during the crisis following the arming of the opposition by outside states, continues to destabilize security in Libya and surrounding countries. While measures were taken to secure anti-aircraft missiles, nearly every adult male carries a weapon, and countless more arms that went missing have turned up in the hands of rebel forces in Mali. This is not to say the government and international community have done nothing since the crisis – both have remained engaged in the justice process by attempting to eliminate impunity through the national judiciary and the International Criminal Court, and have provided economic support, with the European Union giving an economic package to combat post-crisis challenges and the United States unfreezing assets worth US $32 billion. Yet as Ramesh Thakur argues, the challenges we see today demonstrate that more needs to be done to prevent revenge killings, reprisal attacks and the return to mass violence by establishing security and law and order and disarming the country.

Côte d’Ivoire: The struggle for justice and reconciliation 

Meanwhile, Côte d’Ivoire continues to struggle to rebuild by holding perpetrators accountable following the disputed 2010 presidential election between former President Laurent Gbagbo and recognized election winner Alassane Ouattara that left hundreds dead, thousands displaced and descended the country into war. Since the crisis, claims of one-sided justice have emerged – further perpetuating divisions between communities and causing an increase in attacks. Pro-Ouattara forces were quick to seek justice by arresting Gbagbo on 11 April 2011. They re-established key institutions such as courthouses and prisons, and assured that all responsible for atrocities would be held accountable. Yet, as Human Rights Watch (HRW) points out, tensions remain as the special unit established to investigate crimes has charged more than 150 people, but all only from Gbagbo’s supporters. If continued, this would ignore the risks associated with giving one side of the conflict a free pass for committing atrocities, which could have devastating outcomes for the people and the country. As HRW states, “the impunity of today leads to the crimes tomorrow”.

Sri Lanka: “Exclusive development” renews tensions

Following the 30-year civil war that arose out of ethnic tensions between the majority Sinhalese and the Tamil minority and ultimately destroyed the country’s infrastructure, halted development, and resulted in the commission of RtoP crimes – including 40,000 killed in the last months of the conflict – the Sri Lankan government began to rebuild. The government has driven development by addressing housing needs and providing safe drinking water and electricity. With the building of highways and airports, the government has begun to extend transportation and develop the tourism industry. These efforts, however, have not been without their challenges.  Firstly is the fact that some areas of the country remain devastated and uncultivated, leading, as International Crisis Group (ICG) points out, to renewed tensions between communities as some Tamils believe the development process has been selective and the government has undertaken efforts to impose Sinhala culture on Tamil communities across the country.  Then there’s the issue of accountability, with HRW noting that the government has resisted taking meaningful steps to investigate and prosecute government forces for alleged war crimes and failed to implement most of the accountability-related recommendations of its own Lessons Learnt and Reconciliation Commission. ICG recommends that the international community increase pressure on the government to make it more accountable and to expand the democratic political role for the Tamil minority. The failure to address these social aspects of rebuilding may risk reviving Sri Lanka’s violent past.

Preventing atrocities in the long-term

Just as every crisis is unique, so is every path for reconstruction.  While the process of rebuilding a society following atrocity crimes remains an imprecise science, what these cases demonstrate is that there needs to be a holistic approach where security, justice and reconciliation and sustainable development are able to be achieved. The responsibility of all actors is not just to act to prevent or respond to imminent threats but assist in rebuilding efforts to ensure that populations are not threatened by the reoccurrence of atrocities.  As the UN Secretary-General reminds in his 2009 report on RtoP, “The surest predictor of genocide is past genocide,” so we need to be sure that the world’s attention goes well beyond stopping the most immediate threats, and includes long-term commitments to preventing atrocities.

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Filed under Cote d'Ivoire, Libya, Post-Conflict, Prevention, RtoP, Sri Lanka

FEATURE: Responsibility while Protecting – the impact of a new initiative on RtoP

The “responsibility while protecting” (RwP) concept and its potential influence on the development of the Responsibility to Protect norm (RtoP, R2P) have been a source of ongoing discussion in recent months. RwP was first introduced by Brazilian President Dilma Raousseff as “responsibility in protecting” during her address to the United Nations General Assembly (UNGA) in September 2011 and then expanded on in a concept note presented to the UN Security Council (UNSC) on 9 November 2011 by Brazilian Permanent Representative, Maria Luiza Ribeiro Viotti. RwP seeks to address concerns regarding the implementation of military measures to prevent and halt mass atrocities, emphasizing that prevention is the “best policy” and that the use of force in particular must be regularly monitored and periodically assessed so as to minimize the impact on civilians.

On 21 February 2012, the Brazilian Permanent Mission organized an informal discussion on RwP with Member States, UN actors, and civil society organizations. Debate has since continued, most recently at the fourth UNGA informal, interactive dialogue held on 5 September, with many commentators and scholars reflecting on how RwP will impact RtoP and more importantly, the international response to future situations of genocide, war crimes, crimes against humanity, and ethnic cleansing. The ICRtoP Secretariat reached out to civil society organizations with a series of questions in order to map the origins of RwP and analyze the concept’s influence on the Responsibility to Protect.  

Read the full feature post.

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Filed under CivSoc, First Pillar, General Assembly, Informal Interactive Dialogue, Libya, Prevention, RtoP, Second Pillar, Security Council, Third Pillar, Timely and Decisive Action, UN, Uncategorized

A “Responsibility Not to Veto”? The S5, the Security Council, and Mass Atrocities

A bloc of small countries – the so-called Small-Five or S5, comprised of Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland – was forced to withdraw their draft resolution at the United Nations General Assembly (UNGA) on 16 May, which sought to amend the working methods of the UN Security Council (UNSC).

Among other measures that were aimed at “enhancing the accountability, transparency, and effectiveness” of the UNSC, a notable element of the S5 resolution recommendation No. 20 that urged the Permanent Members (P5) of the UNSC – Britain, China, France, Russia, and the United States – to agree to refrain from using their veto power to block collective Council action to prevent and halt genocide, crimes against humanity and war crimes. As the S5 stated in their 4 April speech to the UNGA, in which the bloc introduced the resolution, their work stems from the commitments made at the 2005 World Summit:

“The recommendation #20 to refrain from using the veto to block action in situations of “atrocity crimes” (genocide, war crimes, crimes against humanity) is in line with the 2005 World Summit resolution which states, in its paragraph 139, that the, “international community, through the United Nations, also has the responsibility to use the appropriate diplomatic, humanitarian, and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

The idea of such restraint on the Council’s veto power in situations of mass atrocities was expressed in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS), the ground-breaking document that first articulated the Responsibility to Protect (RtoP, R2P). As the report stated:

“An issue which we cannot avoid addressing, however, is that of the veto power enjoyed by the present Permanent Five. Many of our interlocutors regarded capricious use of the veto, or threat of its use, as likely to be the principal obstacle to effective international action in cases where quick and decisive action is needed to stop or avert a significant humanitarian crisis. As has been said, it is unconscionable that one veto can override the rest of humanity on matters of grave humanitarian concern. Of particular concern is the possibility that needed action will be held hostage to unrelated concerns of one or more of the permanent members – a situation that has too frequently occurred in the past.”

As such, ICISS recommended that the UNSC agree to a “code of conduct” with regards to their veto power. Citizens for Global Solutions (CGS) , an ICRtoP member, has explored this notion of a code of conduct, or a “responsibility not to veto” (RN2V) further in a 2010 paper that seeks to advance the understanding of the initiative and the RtoP. As CGS’s paper explains:

“Momentum for the idea of a responsibility not to veto continued in the debates leading up to the World Summit in 2005. However, the final version of the outcome document did not address any measures that would limit the P5’s veto powers in relation to situations of mass atrocities.  According to accounts of the long process of drafting the outcome document this particular omission was due in large part to P5 pressure.”

Despite its omission in the 2005 World Summit Outcome Document, the idea for an RN2V would re-emerge with the UN Secretary-General’s (UNSG) 2009 report, Implementing the Responsibility to Protect, with Ban Ki-moon stating:

“Within the Security Council, the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter. I would urge them to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect, as defined in paragraph 139 of the Summit Outcome, and to reach a mutual understanding to that effect.”

Despite the endorsement by the UNSG and the efforts of the S5, as well as the work of civil society in advancing the RN2V concept, the veto has remained a complex issue in formulating collective responses to situations of mass atrocities, as evidenced recently by the situation in Syria. On two occasions over the course of the government-led crackdown, China and Russia employed their veto powers (on 4 October 2011 and 4 February 2012) to block Council action aimed at resolving the crisis, which were widely believed to have been employed as an expression of their respective national interests in the situation, and their concerns over the implementation of Resolution 1973 in Libya.

And as Colum Lynch at Foreign Policy noted on 15 May, the S5 draft resolution led to a rift within the UN, pitting the bloc of small countries and the supporters of their resolution against members of the P5, which felt the resolution would impede their prerogatives. Ultimately, the RN2V and other provisions in the S5 resolution would not be voted on, as the S5 dropped their motion as the UNGA was set to meet. As Lynch writes in his 16 May post on his Foreign Policy blog:

The U.N. secretary general’s top lawyer today effectively killed off an initiative by five small U.N. member states to press the U.N. Security Council to allow greater outside scrutiny of its actions…the initiative failed after the U.N.’s lawyer, Patricia O’Brien, recommended that the resolution require the support of two-thirds of the U.N. membership, rather than the simple majority required for most U.N. General Assembly votes.

Lynch explains further:

Under the U.N. Charter, a General Assembly resolution requires the support of a simple majority, unless it involves particularly “important questions,” like an amendment of the U.N. Charter, in which case it would require a vote by two-thirds of the General Assembly. But in 1998, the General Assembly passed a resolution declaring that the assembly would not adopt any resolution “on the question of equitable representation on and increase in the membership of the Security Council and related matters” without a two-thirds majority.

According to Lynch, the Swiss representative to the UNGA withdrew the motion when this recommendation was made, suggesting that the S5 bloc did not have the support of two-thirds of the Assembly on its resolution.

Ahead of the consideration of the S5 resolution by the UNGA, the ICRtoP – as well our partners at the Coalition for the International Criminal Court (CICC) – sent a letter to all Heads of State and Ministers of Foreign Affairs on 14 May expressing its support for recommendation No.20. The letter from the ICRtoP stated:

[…] this provision reflects the historic decision in the 2005 World Summit document which states that the international community, through the UN, has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help protect populations from genocide, war crimes, and crimes against humanity; and that when a  state is manifestly failing, the international community has a responsibility to take timely and decisive response, including measures authorized by the Security Council under Chapter VII…Tragically, almost every year and even at present the international community witnesses Council deliberations where use of the veto (or its misuse) is inconsistent with these provisions – a situation that this measure in the resolution attempts to address…This recommendation within the S-5 resolution would enhance the goal for preventing and ending impunity, and strengthen the responsibility of States, the international community, the UN and the Security Council to prevent and stop the commission of these crimes.

The RN2V remains an important initiative that will likely continue to be advanced at the UN and in national capitals by like-minded governments, often working in tandem with an engaged and supportive civil society, that strive to ensure that early and flexible responses to protect populations are available to the international community when faced with cases of mass atrocities. While the withdrawal of the S5 resolution may have been a setback, and current Security Council practice dictates that a “responsibility not to veto” is far from being accepted by the P5, the RN2V idea is certainly here to stay.

Further reading:

Global Action to Prevent War: Small-5 Propose GA Resolution on Improving Working Methods of the Security Council

“Small Five” Challenge “Big Five” Over Veto Powers – IPS News Agency

 

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Filed under CivSoc, First Pillar, General Assembly, Libya, Prevention, RtoP, Second Pillar, Security Council, Syria, Third Pillar, Timely and Decisive Action

The G8 – An Untapped Forum for Advancing R2P

A guest post special to ICRtoP’s blog by Naomi Kikoler, Director of Advocacy and Policy at the Global Centre for the Responsibility to Protect (GCR2P), on tonight’s G8 +5 Summit and the role the body can play in implementing the Responsibility to Protect (RtoP, R2P) and preventing mass atrocities. 

This evening a small but exclusive group of world leaders, the G8+5,[1] will sit down for a ‘working dinner, leaders only’ to discuss regional and political security issues. Not on the table formally, but should be as it speaks to core interest of each participating state and the organization, is the urgent need to advance the global commitment to the responsibility to protect (R2P) by prioritizing the prevention of mass atrocities.

G8 summits have increasingly, in their discussions on international peace and security, delved into matters directly relevant to R2P. As a group of likeminded states (with the exception of Russia) on human rights issues, with each summit there has been a growing willingness to raise and speak out on mass atrocity situations.

At the 2011 Deauville Summit, G8 members jointly declared that “Qadhafi and the Libyan government have failed to fulfill their responsibility to protect the Libyan population and have lost all legitimacy.” At that same summit they also discussed and expressed concerns about the risks facing civilians in Sudan, Syria, Yemen and Burma.

That these concerns were included in the final joint communique shows that the G8 can be an important forum for building consensus amongst members, notably Russia, on contentious issues related to R2P. For example, the strong language on Libya and Syria at last year’s summit came at a point when Moscow was critical of NATO’s implementation of United Nations (UN) resolution 1973 and was blocking UN Security Council action on Syria.

The G8 has also played an important role in operationalizing R2P – even prior to the 2005 commitment. As G8 scholar John Kirton notes, “the G8’s most decisive achievement was in preventing a major genocide in Kosovo, by agreeing on military action in 1999.” Faced with a paralyzed Security Council, G7 leaders authorized an air campaign carried out by NATO to halt and avert atrocities in Kosovo which Russia subsequently supported.

While the G8 has had conflict prevention on its agenda in the past, there has been no formal discussion of the need to prioritize the prevention of mass atrocities. As Libya has shown, halting atrocities once they have begun is an incredibly difficult task. It is a costly undertaking, especially in an economic downturn. It also requires considerable political resources and energy to mobilize the Security Council and other relevant actors, and to sustain domestic support for action. As the leading world economies, the G8 has an incentive to see the emergence of an international prevention agenda and to be at the fore of such efforts.

How then can the G8 fulfill its potential as an agenda setter on R2P and more specifically on prevention? For starters states should include a re-affirmation of their 2005 World Summit commitment to R2P, and the importance they place on early prevention, in the final Summit Communique. They should also outline the steps that they individually and collectively will endeavor to take to advance an international prevention agenda. These steps should include at the national level three things: (1) issue an official statement outlining the priority the government places on prioritizing atrocity prevention and R2P; (2) appoint a senior-level government official to serve as an R2P focal point to help improve intra-state and inter-state coordination on mass atrocity prevention; and (3) undertake a review of existing domestic capacities for mass atrocity prevention.

The G8 members should also use the opportunity to start a conversation with the +5 states, Brazil, China, India, Mexico and South Africa, about mass atrocity prevention. The G8 presents a unique forum to start crafting an international prevention agenda. Because averting and halting mass atrocities requires a collective response, the effectiveness of the G8’s efforts will depend on the support of states like the +5.

As the leaders sit down for dinner tonight to discuss Burma, Syria and ‘others,’ may they discuss not only what needs to be done to save lives today, but what they, the G8 and +5, can do together to prevent crimes from occurring in the future.

The comments expressed above are the author’s alone, and do not necessarily reflect the positions of the GCR2P or the ICRtoP. 


[1] Attending the G8 Summit this weekend are the G8 member states: Canada, France, Germany, Italy, Japan, Russia, the United States and the United Kingdom. They will be joined by five influential powers: Brazil, China, India, Mexico and South Africa.

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Filed under G8, Guest Post, Human Rights, Libya, Prevention, Regional Orgs, RtoP, South Sudan, Sudan, Syria, Third Pillar, Timely and Decisive Action

Debating the Responsibility to Protect in Libya, Syria

The Responsibility to Protect has been the subject of considerable debate in recent weeks, particularly as the international community continues to pursue an end to the violent crisis in Syria, and the transition in post-Gaddafi Libya moves forward with both uncertainty and concern.

This post draws on the discussion surrounding RtoP, its application in the context of these situations, and thoughts on building international consensus on the norm. These discussions reflect the ongoing need to improve international understanding of the Responsibility to Protect, and foster comprehensive international dialogue on how to implement the norm and prevent threats of genocide, war crimes, crimes against humanity and ethnic cleansing on a case-by-case basis. It is important to note that this post is not an opening of debate on the norm or its foundations, but an examination of important points raised on how it is operationalized.

Recent International Responses Spark Debate Over RtoP 

Alex De Waal’s controversial 9 March op-ed in the New York Times on “How to End Mass Atrocities” sparked the debate, in which he chided Gareth Evans, a former chairman of the International Commission on Intervention and State Sovereignty (ICISS), Samantha Powers, an official on the Obama administration’s National Security Council and author of The Problem from Hell, and “fellow idealists” for misrepresenting history and misunderstanding the measures that can most effectively halt mass atrocities.

Drawing on the recent interventions in Libya and Côte d’Ivoire and the so-called insistence on stopping mass atrocities through the use of military force by RtoP supporters and Western powers, De Waal writes:

“The idealists insist on pursuing a more ambitious agenda: nothing short of democracy and justice, imposed by military intervention. And this can undermine simply getting the killing to stop. For perpetrators, the prospect of foreign intervention and prosecution rules out the possibility for compromise. For rebels, it creates a perverse incentive to escalate ethnic violence so as to provoke an international military response…Western policy makers interested in stopping mass crimes should not overlook tools that can work. Where violence is used as an instrument for political gain, it is negotiable. Some perpetrators can be moderated through diplomacy. Others will stop killing if they defeat a rebellion or realize they cannot. The main aim should be to stop genocidal killing.”

De Waal’s piece generated a number of substantive responses, particularly a direct response from Evans defending RtoP in the New York Times (11 March), a post from Roland Paris, a University of Ottawa professor and Director of the Centre for International Policy Studies, on the website of the Canadian International Council (12 March), and an article by Lloyd Axworthy, the former Canadian foreign minister who commissioned the ICISS in 2000, on why RtoP shouldn’t be defined by the situation in Libya in Global Brief Magazine (13 March).

Evans’s rebuttal, In Defense of R2P, disputes De Waal’s arguments, with the former ICISS co-chair reminding that RtoP is not, “old “humanitarian intervention” wine in a new bottle”, and that the norm is not about, “mindless moralizing, or prioritizing democracy or the achievement of longer-term justice, at the expense of effective action to stop mass killing in its tracks.” Instead, as Evans notes, RtoP is about mobilizing the will and resources to respond to mass atrocities flexibly, depending on the circumstances of the particular case.

In R2P Is Not a License For Military Recklessness, Paris also disputes what he calls De Waal’s “misrepresentation” of RtoP:

“…while de Waal criticizes “idealists” for oversimplifying complex conflicts…he himself presents R2P in distortedly simplified terms. Indeed, based on his op-ed and previous writing, he seems to want to demolish R2P rather than to engage with elements of the doctrine that are consistent with his own “pragmatic” approaches to conflict resolution.”

Drawing on the Precautionary Principles of the Report of the International Commission on Intervention and State Sovereignty, Paris raises an important point:

“…even in the face of mass atrocities when all other attempts to end violence have failed, military intervention is not warranted if it is likely to make the situation worse. This important, prudential warning at the heart of R2P is too often forgotten by the doctrine’s critics and proponents alike. R2P is not an automatic licence for military intervention. Any contemplated armed action must be justified, necessary, proportional – and proven to do more good than harm.”

This point is echoed by Axworthy in his piece, Don’t Allow Libya to Define R2P for Global Brief Magazine:

“The reality is that the original International Commission on Intervention and State Sovereignty (ICISS) report, released in 2001 made clear that the implementation of R2P is about the protection of civilians, should be considered primarily preventative and considers military action a very last resort.”

All three authors offer the efforts of Kofi Annan, the former UN Secretary-General and the current Joint UN-League of Arab States envoy attempting to bring a negotiated end to violence in Syria, as an example of a non-coercive measure employed to respond to disastrous situations through the RtoP framework.  Such an effort, they argue, are also in line with De Waal’s preference for diplomatic solutions to mass atrocities.

Libya’s “Long Shadow”, Syria, and the Responsibility to Protect

Beyond De Waal’s critique, further debate regarding RtoP by academics, journalists, and think tanks has touched on the manner in which UN Security Council Resolution 1973, which mandated a no-fly zone and “all necessary measures” to protect civilians in Libya, was enforced by NATO and its allies, and the implications of that enforcement on the international response to the situation in Syria (which is discussed in an extensive post featuring civil society voices).

A 19 March report by the Royal United Services Institute (RUSI) entitled Short War, Long Shadow, discussed the impact of the crisis in Libya on RtoP, highlighting what amounted to an opportunity missed for the norm.

According to the report, despite the crisis in Libya’s being a clear RtoP situation, and the broad support from the international community to respond with “all necessary measures” to protect Libyan civilians, “errors and omissions” by the intervening powers have resulted in a failure to advance international consensus for RtoP.

RUSI cites such issues as NATO’s command and control of the operation, the possible expansion of the scope of the mission from humanitarian (civilian protection) to political terms (regime change) by NATO and its allies, and the decision by Western powers to allow weapons and training to the Libyan rebels despite an arms embargo imposed by the UN Security Council. As the report states, these issues, “have left a sour taste in the mouths of powers like Russia, China, and India,” and a concern that the legacy of Libya will be that, “China and Russia will presume that the model in future operations is rather regime change under the cloak of R2P, and will be more forthcoming with vetoes.

Echoing this, Ruan Zongze, Vice President of the China Institute of International Studies, wrote on 15 March in the China Daily that the Libya case has proven that RtoP is, “nothing more than the pursuit of hegemony in the name of humanity”. Zongze added further that:

“As Libya demonstrated, the responsibility to protect can be abused to change a country’s government, which goes against the purposes of the UN Charter, the principle of national sovereignty and the principle of noninterference in internal affairs.”

Therefore, as the RUSI report stated:

“Libya was touted as a classic test-case of humanitarian intervention, now incorporated as a new United Nations concept and usually referred to as the ‘Responsibility to Protect’, or R2P. And yet, it should have been obvious then – and certainly became obvious thereafter – that Libya remained the exception rather than the rule in the development of such an international responsibility.”

According to RUSI, the “long shadow” of the Libyan experience has loomed large over Syria, emboldening Russia and China to block any future intervention in response to Syrian President Bashar al-Assad’s crackdown, which, RUSI states, would be “justified under RtoP.”

Aidan Hehir, the Director of the Security and International Relations Programme at the University of Westminster, echoed the above findings in his 14 March post for e-IR, Syria and the Responsibility to Protect: Rhetoric Meets Reality. The author concluded that the “celebratory rhetoric” of RtoP supporters – such as EvansAxworthyRamesh Thakur, and Thomas Weiss – in light of the Libya operation has been met by the harsh reality of the Syria case, where, until very recently, a collective international response had been stymied by Russia and China.

In this sense, Hehir states that even if such a response to the situation in Syria is pursued, “it will not, however, constitute a vindication for RtoP.” This, as the author asserts, is because the Syrian case, “demonstrates, in all too graphic detail, the limits of RtoP,” which amount to the national interests of the UN Security Council’s Permanent 5 (P5) members coming to the fore and blocking collective international action. For Hehir, this touches more broadly on the inconsistent use of the veto power by the P5, and the need for “creative thinking” about UN reform and the absence of a UN rapid reaction capability.

Rodger Shanahan of the Lowy Institute for International Policy added to the discussion on Libya, Syria, and the use of force to protect civilians through the RtoP framework with his 22 March piece, Libya Was Easy.  The author drew on the differences between the Libya and Syria case, stating that:

“Even the Libyan experiment showed how difficult military campaigns…are to prosecute.  The Libyan military had a very limited capability, the terrain was extremely favourable to an aerial campaign and the international community was united in its resolve.  And it still took seven months to successfully prosecute the intervention.  In Syria none of the conditions present for the Libyan intervention exist.”

As Shanahan notes, this touches on the general difficulties in using force to protect civilians. Not only are there no guarantees that the use of force can achieve stated goals, but deployment could also have unintended consequences. As an example, the author raises the Syrian case:

Internal conflicts, particularly those of a sectarian or ethnic nature, are nearly always the most vicious and intractable of wars. The use of force against the regime in power in these circumstances, if not employed adroitly, can have unintended second and third order effects that may result in a worse situation than that originally faced.  Just as the guiding principle of ‘do no harm’ applies to the provision of humanitarian assistance, so too does it apply equally to decisions to invoke R2P as a justification for military intervention.  And in Syria, it is difficult to see how the military dimension of R2P would not breach that principle.”

This is explored further by Zack Beauchamp in his 16 March piece at Foreign Policy Magazine online, Syria’s crisis and the future of R2P, in which he contemplates the “options on the table” in Syria and the potential consequences for the norm. Beauchamp wrote:

Understanding the limits of military force in the Syrian case is critical to R2P’s viability as an international norm. A failed intervention — which would almost certainly involve the death of international troops — would taint the idea among emerging powers like Brazil and India who are crucial to making it a widely accepted part of state practice in the 21st century. Such states, while open to R2P as a doctrine, are wary of its use to justify humanitarian intervention. A haphazard invocation of R2P in Syria could destroy the doctrine’s international legitimacy just as it was being built, preventing R2P from becoming a shared framework for understanding the legal and moral role of sovereignty.”

Moving forward, Beauchamp sees a middle ground between non-intervention and the pursuit of military options in Syria, which he suggests are grounded in RtoP’s third pillar – timely and decisive response – and reflected by the UN’s current effort to consolidate a ceasefire agreement by President Assad by potentially deploying unarmed monitors and/or peacekeepers.

But beyond the case of Syria, and touching on the significant debate over Libya, Syria, and RtoP that has occurred both in the halls of the UN and across the Internet, there remains a crucial need to address the concerns that have emerged in the as a result of the Libya operation.

In this sense, this summer’s (yet unscheduled) UN General Assembly informal interactive dialogue on RtoP, which will focus on measures within the third pillar of timely and decisive response, is an important opportunity to address the concerns of Member States over the RtoP’s implementation in Libya. It will also serve as a timely forum to clarify the full range of humanitarian, political, economic and military measures available to the international community to respond to a country-specific situation under the norm’s third pillar, and stimulate further international discussion on best practices and lessons learned.

Read On

Five Ways to Advance a Responsibility to Protect agenda in Syria, by Bennet Ramberg (The Daily Star, 19 March)

The Failure of an Idea, by Kim R. Holmes (The Washington Times, 21 March)

Saving the Syrians, by Gareth Evans (Project Syndicate, 23 March)

When Intervention Fails, by Joshua Foust (PBS Need to Know, 26 March)

Stopping Assad, Saving Syria, New York Times Room for Debate, featuring Radwan Ziadeh, Ammar Abdulhamid, Simon Adams, Mona Yacoubian, Michael Weiss, and Patricia Degennaro (26 March)

Flight is Not Always An Option: A Response to De Waal, Meierhenrich, and Conley-Zilkic, by Phil Orchard (Fletcher Forum, 27 March)

If it brings freedom, a bloody Syrian civil war may be preferable to slavery, by Charles Crawford (The Telegraph, 27 March)

The Least Bad Option, by James Traub (30 March, Foreign Policy Magazine online)

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al-Senussi Arrest: Conflicting Extradition Requests, Concerns About Libya’s Justice System

 Abdullah al-Senussi, a former Libyan Colonel and Chief of Military Intelligence under the regime of Muammar Gaddafi, and wanted by the International Criminal Court (ICC), was arrested in Mauritania on 18 March by Mauritanian and French officials.

Abdullah al-Senussi was arrested by in Mauritania on 18 March 2012. He is wanted by the International Criminal Court (ICC) on two counts of crimes against humanity for his role in the Libyan government's crackdown against protesters last February. (Photo: Paul Hackett/Reuters)

The arrest has led to conflicting calls for al-Senussi’s extradition from the ICC, France, and Libya. The Court has called for Mauritania’s cooperation, based on UN Security Council Resolution 1970 (in which the situation in Libya was referred to the ICC), in surrendering al-Senussi to the Hague for investigation into his role in the commission of crimes against humanity in the country last year,.

press statement from the Office of the French President, Nicolas Sarkozy, indicated that the government was pressing for al-Senussi’s extradition to France to serve the life sentence that was handed down to him in abstentia for his role in the bombing of flight UTA 772, which claimed the lives of 170 people on 18 September 1989.

Meanwhile, Libya’s provisionally-ruling National Transitional Council (NTC) has urged Mauritania to extradite al-Senussi to face justice in Libya, and dispatched its Deputy Prime Minister, Mustafa Abu Shagour, and a delegation of senior officials on 20 March to press for a decision. Libyan officials have expressed that their Courts are ready to hold a trial for al-Senussi.

According to an Al Jazeera report on 21 March, Shagour acknowledged that he had reached an agreement with Mauritanian officials that would see al-Senussi transferred to Libya, despite continued pressure from Paris. Mauritania has not yet confirmed this decision.

These developments come as as civil society expresses the urgent need to transfer al-Senussi to the ICC, rather than to face justice in Libya. ICRtoP member organization Human Rights Watch, and others including Amnesty International, members of the Coalition for the International Criminal Court (CICC), and the International Federation for Human Rights (FIDH) called for such action without delay.

Regarding Mauritania’s responsibilities, the CICC reminded on 19 March that Security Council Resolution 1970 encouraged states to cooperate with the Court’s investigation into Libya, including the arrest and surrender of suspects:

“Although Mauritania is not a State party to the Rome Statute – ICC’s founding treaty – United Nations Security Council (UNSC) Resolution 1970 – which referred the situation in Libya to the ICC – while recognizing that “States not party to the Rome Statute had no obligation under the Statute”, urged “all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.”

The CICC’s release goes on to state:

“While the Libyan authorities retain pri­mary jurisdiction over crimes committed in their territory, they are legally bound to facilitate the transfer of the suspects to the ICC, unless Pre-Trial Chamber I (PTC) decides that the case is no longer admissible before the Court because the Libyan authorities are investigating or prosecuting the same individuals for the same crimes at national level.”

But, as Amnesty International’s Senior Crisis Response Advisor, Donatella Rovera, stated in a press release on 19 March 2012, concerns remain over Libya’s ability to ensure a fair trial for al-Senussi:

“The news of al-Senussi’s arrest is an important moment for the victims of his alleged crimes in Libya. But Libya’s court system does not function and its justice system remains weak and unable to conduct effective investigations into alleged crimes against humanity, none of which are crimes under Libyan law. The ICC remains the best-placed mechanism for accountability in Libya.”

This has been echoed by Human Rights Watch and FIDH, who have also raised concerns over Libya’s troubled transition into the post-Gaddafi era, which includes the fact that thousands remain in detention under the control of militias, with widespread allegations of torture and ill-treatment. Both organizations have thus impressed upon the need for al-Senussi to be sent to the ICC instead of being tried in Libya.

Protesters demonstrate against the ongoing militia violence and pervasive lawlessness in Tripoli, Libya. (UN Photo/Iason Foounten)

However, No Peace Without Justice (NPWJ), an Italian non-governmental organization that runs a transitional justice program in Libya, has called specifically for al-Senussi to be tried in Libya. In a 17 March press release, the organization stated:

We take this opportunity to recall the wishes of the victims, and of the people of Libya, that both Saif al-Islam Gaddafi and Mr Senussi be tried in Libya, to face justice in the same place in which they allegedly waged their brutal attacks. According to the principle of complementarity, the ICC has jurisdiction only if the Libyan authorities are unable or unwilling to investigate and prosecute the crimes of which they have been accused. Libya is certainly willing, as they have proved by requesting Mauritania to transfer Mr Senussi to face charges before the Libyan courts.”

NPWJ followed this call by encouraging the international community to provide assistance to Libya as it seeks to be able to try both Abdullah al-Senussi and Saif al-Islam Gaddafi, who, also wanted by the ICC, was arrested by militias from Zintan on 19 November 2011, and remains in custody in Libya. If, however, Libyan authorities were found unable to try al-Senussi, NPWJ said it would join other civil society organizations in calling for Mauritania to transfer the former Gaddafi-era official to the ICC.

The debate over where to extradite al-Senussi has thus reinforced the necessity of a holistic approach to international assistance in Libya’s post-conflict transition.

As Libya’s new authorities push for al-Senussi to be tried in their courts, concerns over the state of the judiciary and reported conditions in detention centers are a striking reminder of the potential risks of al-Senussi’s extradition to the country. Overall, the present situation raises serious questions about the ability of the post-Gaddafi system to deliver a fair trial that bestows justice to the victims of government-perpetrated crimes during the revolt.

At the May-June 2010 Kampala Review Conference of the ICC, the Court’s Assembly of States Parties (ASP) adopted a resolution which premised that states willing but unable to fulfill their Statute responsibilities in investigating and prosecuting individuals accused of Rome Statute crimes should be provided with the necessary tools needed to do so. If Mauritania does proceed with al-Senussi’s extradition to Libya, international assistance by the Court, members of the ASP, and civil society will be crucial to ensuring that the trial meets international standards.

The state of the judicial system and its capacity to hold fair, domestic trials reflect the broader challenge confronted by the new Libya as it struggles to consolidate security, build the rule of law, and promote respect for human rights – all integral in upholding its primary responsibility to protect its populations. Consistent with the second pillar of the RtoP, the international community must be prepared to provide assistance and capacity-building to the new Libyan authorities as the transition continues.

Click here for our post on the relationship between RtoP and the ICC.

Click here for our look at the anniversary of the Libyan protests and the challenges faced by the NTC in the post-Gaddafi transition.

Click here for our feature on the Responsibility to Protect in the aftermath of Libya, with voices from our civil society member organizations.

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Filed under CivSoc, Human Rights, International Criminal Court, Libya, National Transitional Council, Post-Conflict, RtoP, Security Council, UN

The RtoP and the ICC: Complementary in Prevention, Assistance and Response

The International Criminal Court (ICC) has delivered its first ever verdict with a finding of guilty in the case of the Prosecutor vs. Thomas Lubanga Dyilo on 14 March 2012.

In light of this, and with the ICC playing differing but integral roles in responding to mass atrocities in recent situations like Libya and Côte d’Ivoire, we’d like to expand on the relationship between the Responsibility to Protect (RtoP) and the ICC. In this effort, we asked several ICRtoP member organizations, including the Kenyan Section of the International Commission of Jurists, Citizens for Justice and Accountability, the International Refugee Rights Initiative, and the World Federalist Movement-Institute for Global Policy to provide their reflections on the relationship.

The Responsibility to Protect (RtoP) and the International Criminal Court (ICC) are two interconnected initiatives that seek to ensure that the world responds to mass atrocities and hold perpetrators of these egregious crimes accountable. At their core, however, the RtoP and the ICC are complementary in seeking to prevent these crimes from occurring altogether.

Both the RtoP and ICC articulate the primary responsibilities of states. The Rome Statute of the ICC provides that it is the primary responsibility of national authorities to investigate and prosecute individuals responsible for the commission of genocide, war crimes and crimes against humanity.

George Kegoro, Executive Director of the Kenya Section – International Commission of Jurists, explains this further: “The ICC is a ‘court of last resort’ – that is, its mandate is to prosecute only when domestic avenues have been exhausted, and where a State is unable or unwilling to prosecute those individuals responsible for the gravest of crimes.”

Similarly, RtoP bestows the primary responsibility to protect civilians from genocide, war crimes, crimes against humanity, and ethnic cleansing – the four ‘RtoP crimes’ – to the state. As William Pace, the Executive Director of the World Federalist Movement-Institute for Global Policy (WFM-IGP), a founding Steering Committee Member of the ICRtoP and the Coalition for the ICC, notes, this synergy dates back to the march towards the creation of the ICC, as “RtoP emerged massively from the Rome Statute process – the same crimes, complementarity, national and international responsibility.”

However, as has been witnessed in countless situations, some states fail to uphold their obligations. In instances where states are willing but unable to protect populations, the second pillar of RtoP – international assistance and capacity-building – asserts that the United Nations (UN), its Member States, regional organizations, and civil society have a role to play in ensuring that those states receive the assistance necessary to assume their RtoP.

Similarly, the Assembly of States Parties of the ICC adopted a resolution at the May-June 2010 Kampala Review Conference which premised that the Court and its members, the States Parties to the Rome Statute, should provide the tools needed to assist states who were willing but unable to fulfill their Statute responsibilities. One such example of this was provided by Sulaiman Jabati, Executive Secretary of the Freetown, Sierra Leone-based Citizens for Justice and Accountability  (COJA), who said that the ICC should “expand its outreach activities in countries that have early warning signs for potential conflict.” In this sense, RtoP and the ICC are both complementary in calling for the provision for international assistance to ensure states uphold their primary responsibilities.

RtoP and the ICC are also complementary in instances where states are found both unable and unwilling to meet their responsibilities. The Rome Statute provides that when a state does not meet its primary obligations to prosecute individuals responsible for the commission of Statute crimes, it will ensure situations are investigated, warrants are issued, and those in its custody are prosecuted.

Similarly, when a state is found unable and unwilling to uphold its responsibility to protect civilians, the norm provides that the responsibility to protect those civilians yields to the UN and its Member States in cooperation with regional organizations.

Libya and Côte d’Ivoire: The ICC in the RtoP Toolkit

As the recent cases of Libya and Côte d’Ivoire have demonstrated, the Court is firmly engrained under RtoP’s third pillar – timely and decisive response – as a tool used to respond to situations where mass atrocities are threatened or have occurred, as well as to prevent further atrocities from being committed through deterrence.

In response to the situation in Libya, where the regime of the now-deceased Colonel Muammar Gaddafi committed widespread atrocities against civilian protesters beginning from 17 February onwards, the RtoP framework guided early and unprecedented action to avert further crimes against civilians. An ICC referral was one of the broad range of measures taken to halt the threat of crimes in this context.

On 26 February, the UN Security Council (UNSC) passed Resolution 1970, in which it referred the Libyan case to the ICC and imposed other non-coercive measures to respond to the crackdown. Pace calls the Resolution 1970, “one of the finest ever of the UNSC, and the process leading to the 15-0 decision [result of the vote] among the best examples of how the international community should maintain international peace and security.”

The investigation that ensued resulted in the indictments of Muammar Gaddafi, his son, Saif Gaddafi, and former intelligence chief, Abdullah Senussi, which were announced by the Court while the conflict raged on. But, as Dismas Nkunda, Co-Director of the International Refugee Rights Initiative (IRRI), suggests, the indictments being made while Libya was in the midst of a conflict were problematic. “The arrest warrants before the fall of Gaddafi regime played into the discourse being propagated by the African Union,” states Nkunda, “that the ICC was more interested in trying African leaders,” than finding peace in the country.

Furthermore, Nkunda said the process raised serious concerns on the African continent about the independence of the ICC from the influence of the UNSC, particularly as, “the Libyan case was seen to be biased against one side of the conflict.” Disquiet over the impartiality of the Court has thus led to concerns over the selective application of the RtoP, Nkunda said, which may prove problematic for both the norm and the institution moving forward.

Despite these concerns, the Court remains actively involved in Libya. After Saif’s arrest in November 2011, the ICC has been engaged with Libya’s National Transitional Council (NTC) on the issue of his trial. It had been reported that the Court would allow Libya to try Gaddafi’s son, but as of 25 January 2012, no decision had yet to be made by the ICC.

As of November 2011, the Court remained involved in Libya as it continues to build its case against Saif Gaddafi and Senussi and investigates allegations that all parties to the conflict, including anti-Gaddafi forces, committed war crimes and/or crimes against humanity. The 2 March 2012 report of the UN Human Rights Council’s Commission of Inquiry into Libya, and its handing over of a list to the UN High Commissioner for Human Rights (UNHCHR), Navil Pillay, of suspected perpetrators, could mean continued involvement for the Court moving forward as well.

The Court also played an important role in the response to the post-election violence in Côte d’Ivoire between 28 November 2010 and 11 April 2011, during which widespread human rights violations and crimes against humanity were alleged to have been committed.

As the situation in the country intensified in March and April 2011, the Office of the Prosecutor of the ICC warned on 6 April that an investigation could be triggered as a result of reports of widespread and systematic killings. On 4 October 2011, in the aftermath of hostilities, the ICC exercised its jurisdiction in the country and authorized an investigation into allegations of such violations committed by all parties to the conflict.

Months after his arrest on 11 April 2011, on 30 November 2011 former President Laurent Gbagbo was transferred to the Court – the first head of state to be in the custody of the ICC – and will stand trial for his in alleged involvement in crimes against humanity over the course of the civil conflict. It was also announced on 22 February 2012 that the Court would expand the scope of its investigation into the country to the 2002-2010 period.

According to Kegoro, while the initial involvement of the Court in Côte d’Ivoire (and Libya as well) was both appropriate and justifiable – in that it had an immediate effect of publicly championing an end to impunity and the promotion of the rule of law – the true impact of the ICC is at a, “fledgling state”.

Assessing how the ICC intervention has affected the prevention of further atrocities and regional stability and the peace will require on-going monitoring and evaluation, both during ICC trial processes and after the decisions,” Kegoro said. While he noted that prosecution of perpetrators of the most serious crimes can have a deterrent impact, “the societal implications of ICC interventions and decisions is something that will only be shaped and understood over time.”

Kegoro concluded by adding that, “The long-term impact of the ICC, especially on African nations, is something that needs to be carefully assessed,” particularly in the wake of the Court’s involvement and the implementation of RtoP in Libya and Côte d’Ivoire.

Peace vs. Justice?

As the ICC was involved in Libya during the conflict, but formally announced its investigation into the situation in Côte d’Ivoire only after hostilities had ceased, debate has arisen over the timeliness of the employment of the ICC as a tool to respond to mass atrocities under the RtoP framework. The debate also touches on a more general discussion of whether justice for victims of atrocity crimes can be pursued while attempting to secure a peaceful resolution to a conflict or vice versa. This is more commonly known as the peace vs. justice debate.

Both Jabati and Pace were unequivocal in stating that there can be no peace in any situation without justice for crimes committed. This idea spurred Jabati’s COJA, along with a number of other civil society organization’s present at the Kampala Review Conference, to push for the ability of the ICC’s Chief Prosecutor to prioritize conflict prevention in Africa through extensive outreach programs, highlighting the importance placed on justice in the pursuit of peace in cost-conflict settings, and in the prevention of violence altogether.

Pace argues against the premise that pursuing peace and accountability for international crimes at the same time doesn’t work, and says that there has been, “no peace strategy that has worked worse” than giving major combatant leaders amnesty and transferring them to a third country with personal and financial security. Instead, the WFM-IGP Executive Director stated that while each individual situation must be evaluated independently, the recent-year examples of Bosnia, Sierra Leone, Uganda, the DRC, and Colombia, “make the case that in many conflict situations introducing international criminal justice actually helps achieve and fortify peace.”

But, drawing on the specific example of Kenya, where the ICC opened an investigation on 31 March 2010 and is currently in the process of trying four individuals it has found responsible for the 2007-2008 post-election violence, Kegoro says that the country’s experience points to the fact that the “most practicable time for ICC intervention is in post-conflict situations.

However, according to Kegoro, this was a result of the fact that Kenya had only exhibited its unwillingness to prosecute perpetrators of violence well after it had subsided; thus the ICC had little role to play during the crisis. Therefore, he states that, “there may be a set of circumstances in the future where direct ICC intervention during an armed conflict is appropriate, or even required.”

Also drawing on recent examples, Nkunda sees both positives and negatives of the Court’s involvement during armed hostilities. With the Lubanga case, Nkunda notes that the Court’s engagement during the conflict in the DRC did have a positive impact on limiting crimes, specifically in raising awareness that the practice of conscripting child soldiers was contrary to international law and that such behaviour to could lead to the docket in the Hague.

In terms of negative implications, the IRRI Co-Director points to Sudan as a glaring example, where, “the unintended but expected consequences of the Court’s decision was the expulsion of humanitarian organizations [16 aid agencies operating in Darfur were expelled in early March 2009], which heavily impacted the lives of the very people – the victims – whom the Court was trying to protect.” Furthermore, in singling out individuals as direct perpetrators of the violence, as the ICC did with the indictment of Sudanese President Omar al-Bashir and others in the context of the crisis in Darfur, Nkunda notes that the actions of the Court may have served to insulate one group to become, “more deadly, since they have nothing to lose.”

Our members’ insight, drawn from their experience working in the fields of international law and conflict prevention in unique national and regional contexts, shows that much depends on the complexities of the situation at hand, but that justice should certainly not come at the expense of peace.

Deterrence and the Need for Prevention

Jabati, Kegoro, Nkunda and Pace all touted the deterrent effect of the ICC on would-be violators of Rome Statute provisions, both in conflict and post-conflict settings. At times, however, the ICC itself may not be enough to halt ongoing mass atrocities in specific cases. In both Libya and Côte d’Ivoire, a wider array of measures became necessary to protect populations, including the use of force.

The present Syrian crisis, which has claimed as many as 8,000 lives since March 2011, continues unabated as the civilians remain victim to gross human rights violations at the hands of the regime of President Bashar al-Assad.  Regional and international actors must uphold their Responsibility to Protect the population of Syria by employing additional measures to effectively end the continued “collective punishment”.

In addition to a range of measures to respond to the crisis, the ICC has emerged as a potential tool to respond to the crisis through the RtoP framework. Calls have been made on a number of occasions by UNHCHR Pillay, as well as by French Foreign Minister Alain Juppé, and civil society organizations, including Human Rights Watch and Amnesty International, for the Security Council to refer Syria to the ICC. To date, however, there have been no such moves to ensure justice for the victims of the crackdown through the ICC, and the killing has largely continued unabated.

Only when tangible steps are taken to prevent genocide, crimes against humanity, war crimes, and ethnic cleansing from occurring altogether will this cycle of atrocity and reaction be broken.

UN Secretary-General Ban Ki-moon put forth two such preventive measures in his January 2009 report, Implementing the Responsibility to Protect, by urging Member States to ratify the Rome Statute of the International Criminal Court and to implement national legislation against atrocity crimes.

As the report reads, “The Rome Statute seeks to develop mechanisms and processes for identifying, investigating and prosecuting those most directly responsible for crimes and violations relating to the responsibility to protectI would encourage additional States to become parties to the Statute and thus to strengthen one of the key instruments relating to the responsibility to protect.”

But the Secretary-General noted that becoming a Party to the Rome Statute, along with other relevant instruments of international law, is just the first step in the full of the responsibility to protect. Consistent with the emphasis on the primary responsibilities of states by both the RtoP and the ICC, the Secretary-General’s report states that, “these core international standards need to be faithfully embodied in international legislation,” so that impunity for any of the four RtoP crimes is not accepted nationally or globally.

Taking these steps may ensure that states meet their primary responsibilities of protecting civilians by criminalizing the four RtoP crimes under both their domestic laws and their international obligations, and may work to realize their prevention altogether.

Please see the links below for the full statements by our members:

Statement by Sulaiman Jabati, Executive Secretary of Citizens for Justice and Accountability (Freetown, Sierra Leone)

Statement made by George Kegoro, Executive Director of the Kenyan Section of the International Commission of Jurists (Nairobi, Kenya)

Response by William Pace, Executive Director of the World Federalist Movement-Institute for Global Policy, Convenor of the Coalition for the International Criminal Court (CICC), and Co-Founder and Steering Committee Member of the International Coalition for the Responsibility to Protect (New York, USA)

Statement by Dismas Nkunda, Co-Director of the International Refugee Rights Initiative (Kampala, Uganda and New York, USA)

Special thanks to George Kegoro, Sulaiman Jabati, Dismas Nkunda, and William Pace. A shorter version of this post was expanded upon for this blog, and will be appearing in the upcoming print edition of World Federalist Movement News.

Editor’s Note: The views expressed in these individual responses prepared by our civil society member organizations do not necessarily reflect the views of the International Coalition for the Responsibility to Protect.

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Filed under African Union, CivSoc, Cote d'Ivoire, Human Rights, International Criminal Court, Kenya, Libya, Post-Conflict, Prevention, Regional Orgs, RtoP, Sudan, Syria, UN

FEATURE: Civil Society Reflects on Challenges for RtoP Post-Libya

To better understand the challenges posed for RtoP in the aftermath of the UN-mandated, NATO-led operation in Libya, we asked a few ICRtoP Member organizations from throughout the world to reflect and provide insight on the following questions:

  • Was the UN-mandated, NATO-led operation in Libya a step forward or a setback for the norm? What implications – positive and/or negative – does the Libya operation carry for RtoP moving forward?
  • What are the responsibilities of the international community as Libya transitions into the post-Gaddafi era? Despite the ending of the NATO mandate in Libya, should the international community continue to play a role in civilian protection?
  • Through an RtoP lens, what lessons can be learned from Libya for future cases where international action – whether non-coercive or coercive – is necessary to protect civilians?

The enlightening responses we received drew on the individual expertise of these ICRtoP Members, and brought in unique regional perspectives as well. Members who contributed were:

Rachel Gerber, Program Officer at The Stanley Foundation

Gus Miclat, Executive Director of Initiatives for International Dialogues

Robert Schütte, President of Genocide Alert

Jillian Siskind, President of Canadian Lawyers for International Human Rights

Sarah Teitt, Outreach Director and China Programme Coordinator for the Asia-Pacific Centre for the Responsibility to Protect

Dr. Robert Zuber of Global Action to Prevent War and Armed Conflict

The full post, “Civil Society Reflects on RtoP Post-Libya“, includes our review of the international response to the situation and analysis on its implications for RtoP, as well as the reflections on the challenges for the norm post-Libya by the individuals above.

We have also published a piece to mark the one-year anniversary of the first protests in Libya, which discusses the difficulties of the transition into the post-Gaddafi era.

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Filed under African Union, Arab League, CivSoc, Gulf Cooperation Council, Human Rights, International Criminal Court, Libya, National Transitional Council, Post-Conflict, Regional Orgs, RtoP, Security Council, Syria, UN