Wednesday, July 13, 2011

On Intervention in Libya: The Emerging Nature of Supra-National Legal Framework/Norms for Disciplining States and their Leaders by Others

There has been much discussion about the recent events in Libya, where popular protests led to what can reasonably be described as a combination civil war and popular insurrection against an unpopular regime--unpopular with the Libyan population as well as with various powerful states.

 In the area around Bin Jawad, about 110 miles from Tripoli, the Libyan Army clash with rebels who are moving toward the capital
 (From Libya unrest: rebels clash with Gaddafi's troops near the oil terminal town of Ras Lanuf, Telegraph, May 7, 2011; "Rebel fighters take cover as a bomb dropped by a Libyan air force fighter jet explodes near a checkpoint on the outskirts of the oil town of Ras Lanuf Picture: AFP/GETTY IMAGES.")

In the old days, such unpopularity, tied with the convenient excuse of civil war/insurrection, would have been all that was needed for powerful states to intervene and install such government as they had the power or will to impose. That intervention would have been all the excuse necessary for other powerful states to intervene to protect their own interests as well.  The sovereign character of the state that was the subject of the intervention would be preserved, diminished or extinguished as a consequence.

June 1972: President of Uganda Idi Amin Dada, second left, poses with some of the Organisation of African Unity. From left, Syrian President Hafez al-Assad, Egyptian President Anwar El Sadat and Lybian leader Muammar Gaddafi
(From Telegraph (U.K.); "Col Gaddafi turned Libya into a haven for anti-Western radicals. Any group, no matter how bloodstained or discredited, could receive his guns and cash, provided it claimed to be fighting "imperialism". Thus Idi Amin, the Ugandan despot who believed in nothing save self-enrichment and murder, was a particular favourite. When Amin [seen here with Syrian President Hafez al-Assad and Egyptian President Anwar El Sadat] faced a war which eventually overthrew him in 1979, Col Gaddafi tried to save his friend by sending Libyan troops to fight in Uganda. Picture: AFP/Getty Images")

But things are different now.  After the establishment of the United Nations system and its progeny, the global system has embraced a new set of conceits through which it is more and more effectively governing relations between states and the rules for intervention in states in which the internal governance structure has been weakened or is challenged. This new system is grounded in the integrity of states. Its purpose is to manage the populations residing within distinct political territories to minimize damage to people and their productive capacity, but with a nod to the ultimate power of these masses to organize themselves for the purpose of effecting extra-legal change (now legalized through these transnational norms, if only post facto). See, e.g., Backer, Larry Catá, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment. Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003.   This new system manifests itself in a set of of rules providing protection for the government of states that depend on its (democratic) character, judged by the normative standards of the rules themselves.  I have suggested that this system has provided the framework for the development of what I have called transnational constitutionalism. See, e.g.,  Backer, Larry Catá, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.  Many people tend to see this developing structure and normative framework as the rise of an international law regime for the governance of states in their relations with each other and in the limits of their authority to assert authority against their own populations.  This transnational constitution management framework, whether understood as an extension of international law inwards or the development of a new set of principles, ultimately makes it both harder and easier to intervene ion the internal workings of states "in crisis."  Intervention is harder for individual states (though one can discuss the exceptions--principally committed by the most powerful states--no system is perfect and this one is young) because the new legal institutional framework  discourages unilateralism.  On the other hand, deeper and more long-term intervention is permitted at the instance of the agreement of a majority of the community of nations or otherwise when there is a communal consensus approving the action-intervention. The technique, first cobbled together during the Korean intervention of the 1º950s, has now become institutionalized within a legal-juridical framework that moves discretion up from a state to the community of states formally organized in international bodies. 

1 September 1994: Muammar Gaddafi watches a military parade in Tripoli during the celebration of the 25th anniversary of his arrival in power
 (From Libya's leader Colonel Muammar Gaddafi in pictures, Telegraph; "During the 1990s, he began a long rapprochement with the West, appearing to have grasped that Libya's isolation prevented the country from benefiting from its oil and gas reserves and, in the long term, threatened his grip on power. He was also isolated within the developing world and treated with derision by other Arab leaders. Picture: MANOOCHER DEGHATI/AFP/Getty Images.").

The emerging framework/standards systems based on internal management of states through a consensus based set of international standards overseen by international organizations is complex.  But it is nicely deployed in the context of the Libyan situation.  It may be useful, then, to use Libya as a way into a more precise understanding of the legal regimes networked together that now constitute this emerging system.  For that purpose my research assistant Caroline Frauman (Penn State Law '12) has compiled a preliminary listing of the actions that constitute the basis on which the community of nations have regularized the intervention in Libya and through which its current leader is to be brought to trial outside of the state which he leads. 


UN Security council
·       UN Security Council referral: Resolution 1970 (2011)

·       UN security council resolution 1973 (2011) on Libya
o   [in favor of a no-fly zone and air strikes against Muammar Gaddafi]

ICC basis for intervention
·       ICC-01/11-01/11 - The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi
·       Court Records:
·       First Report of the Prosecutor:
·       Prosecution’s Response to OPCD’s “Requête relative aux propos publics de Monsieur le Procureur et au respect de la présomption d’innocence”  

·       Prosecutor’s Application: ICC-01/11-4 Redacted 16/05/2011
The Prosecution for the International Criminal Court applied to the Pre-Trial Chamber I for the issuance of arrest warrants against Libyan leader Gaddafi, as indirect perpetrator, his son Saif Al-Islam, and his brother-in-law Al-Senussi, as indirect co-perpetrators, for the crimes against humanity of persecution based on political grounds and murder committed by the Libyan Security forces. The petition did not refer to war crimes.
Count 1 – Murder constituting a crime against humanity (Article 7(1)(a) and Article 25(3)(a)of the Rome Statute)
Count 2- Persecution (Article 7(1)(h) and Article 25(3)(a) of the Rome Statute)
Referral from UN Security Council, which decided by Resolution 1970 (2011) and acting under Chapter VII of the Charter of the UN to refer the situation to the Prosecutor. The same resolution decided that the Libyan authorities shall cooperate with the Court and Prosecutor. Pursuant to Art 25 of the Charter, the resolution is binding on Libya which is a member of the UN Charter. “Moreover, having been referred under Chapter VII of the UN Charter, the resolution enables the exercise of jurisdiction by the Court with respect to the situation pursuant to Art 13(b) of the Rome Statute. (¶ 50).
2. Admissibility
“(i) The case has not been and is not being investigated or prosecuted by a State which has jurisdiction over it, in accordance with Article 17(1) (a) and (b) of the Rome Statute”
(ii) The case has not been tried before any national or international jurisdiction for conduct which is the subject of the Prosecution’s Application, in accordance with Articles 17 (1)(c) and 20 (3) of the Rome Statute.
(iii) The case is of sufficient gravity to justify further action by the Court
3. Request for Confidentiality
G. Standard of Proof
H. Request for Arrest Warrants
J. Relief sought

NATO Basis
·       NATO and Libya - Operation Unified Protector
o   “NATO Allies decided to take on the whole military operation in Libya under United Nations Security Council Resolution 1973.
o   “The purpose of Operation Unified Protector is to protect civilians and civilian-populated areas under threat of attack. NATO is implementing all military aspects of the UN Resolution.”
·       Libya Contact Group: Chair's statement
o   Statement by Foreign Secretary William Hague following the Libya Contact Group meeting in Doha
o   13/04/11
o   “3. Participants in the Contact Group set out their determination to ensure effective ongoing implementation of UNSCRs 1970 and 1973 (2011) and additional restrictive measures to deprive the regime of funds.  These had exerted significant pressure on Qadhafi, protected civilians, including in Benghazi, from violent attack and averted a humanitarian disaster. They welcomed NATO’s command and control of military operations and underlined the need for robust implementation of UNSCR 1973 (2011). So long as the regime continued to attack areas of civilian population, all necessary action to implement UNSCR 1973 (2011) would continue. Participants also agreed on the need to monitor any potential threat from extremist elements who could seek to take advantage of the situation in Libya.
o   “4. To this end, participants in the Contact Group underlined OP 1 of UNSCR 1973 (2011) which “demands the immediate establishment of a ceasefire and a complete end to violence and all attacks and abuses of civilians”. They called for an immediate end to all attacks against civilians and for Qadhafi and his regime to pull back all regime forces from Libyan cities they have forcibly entered, occupied or besieged including Ajdabiyah, Brega, Jadu, al Jebal al Gharbiyah, Kikla, Misrata, Nalut, Raslanuf, Yefrin, Zawiyah, Zintan and Zuara.  Qadhafi and his regime should comply with their obligations under international law, international humanitarian law, human rights and refugee law including protecting civilians and meeting their basic needs. The Contact Group called for re-establishment of water, electricity and gas supplies to all areas, and the release of all those arbitrarily detained including political prisoners.
o   “5. They underlined OP 2 of UNSCR 1973 (2011) which “stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people”. Participants reiterated that a political solution would be the only way to bring lasting peace to Libya and reaffirmed their strong commitment to the sovereignty, independence, territorial integrity and national unity of Libya.  They were united in believing that Qadhafi’s continued presence would threaten any resolution of the crisis. There should be an inclusive political process so that the Libyan people can determine their own future. They called on all Libyans who wanted to see a process of political transition to urge Qadhafi to step down. Participants noted that Qadhafi’s regime was weakening as his followers left him.
o   “6. Participants also welcomed and supported the efforts of the UNSG’s Special Envoy on Libya, noted in OP2 of UNSCR 1973 (2011), “with the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution”….
o   7. It is for the people of Libya to choose their own government.  Participants welcomed the decision of the Interim National Council (INC) to meet with the Contact Group on Libya.  In contrast with the current regime, the INC is a legitimate interlocutor, representing the aspirations of Libyan people. The aspirations which the INC has consistently described - dialogue, reconciliation, free and fair elections, civil society, human rights and constitutional and economic reforms  - represent important elements of an inclusive and representative political process. Participants stood ready to support the realisation of these goals.”
·       Statement on Libya
o   08/06/11
o   “We will continue to coordinate with other key organisations, including the United Nations, the European Union, the League of Arab States and the African Union, and to consult with others such as the Organisation of the Islamic Conference, and we encourage these organisations’ efforts in the immediate and longer term post-conflict period. Once the goals laid out in Berlin have been achieved, NATO stands ready to play a role, if requested and if necessary, in support of post-conflict efforts that should be initiated by the United Nations and the Contact Group on Libya”
·       NATO After Libya
o   The Atlantic Alliance in Austere Times - by NATO Secretary General Anders Fogh Rasmussen
o   Reprinted by permission of FOREIGN AFFAIRS, (July/August 2011). Copyright (2011) by the Council on Foreign Relations, Inc.
o   “The mission in Libya has revealed three important truths about military intervention today. First, to those who claimed that Afghanistan was to be NATO's last out-of-area mission, it has shown that unpredictability is the very essence of security. Second, it has proved that in addition to frontline capabilities, such as fighter-bombers and warships, so-called enablers, such as surveillance and refueling aircraft, as well as drones, are critical parts of any modern operation. And third, it has revealed that NATO allies do not lack military capabilities. Any shortfalls have been primarily due to political, rather than military, constraints. In other words, Libya is a reminder of how important it is for NATO to be ready, capable, and willing to act.
o   “Although defense is and must remain the prerogative of sovereign nations, an alliance that brings Europe and North America together requires an equitable sharing of the burden in order to be efficient.
o   “The paradox, then, is that the global order enjoys more stakeholders than ever before and yet it has very few guarantors. Europe is still one of them, but for how long?
o   “Particular efforts must be made to ensure that the two major Euro-Atlantic security providers, NATO and the EU, cooperate more closely. This will be essential, as both will have a role in helping states transitioning to more democratic systems.
o   “Uncoordinated defense cuts could jeopardize the continent's future security. Libya can act as a wake-up call, but this mission needs to be followed by deeds. Making European defense more coherent, strengthening transatlantic ties, and enhancing NATO's connections with other global actors is the way to prevent the economic crisis from becoming a security crisis.
Additionally, the action of the African Court on Human and People's Rights ought to be considered.  See In the Matter of African Commission on Human and Peoples' Rights v. Great Socialist People's Libyan Arab Jamahiriya, App. No. 004/2011 (March 25, 2011. For a discussion, see Anna Dolidze, African Court on Human and Peoples’ Rights – Response to the Situation in Libya, ASIL Insights, 15(20) (July 26, 2011) ("The provisional measures require that Libya “immediately refrain from any action that would result in loss of life or violation of physical integrity of persons, which could be a breach of the provisions of the African Charter on Human and Peoples’ Rights or of other international human rights instruments to which it is a party.”" Id., quoting in part form the opinion).

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