The following article appeared in The Times Online on 8 September 2011
The Libyan War has raised several challenging issues for international law. The most important point to emerge is that it is the first time that the UN Security Council has, by its Resolutions 1970 and 1973, authorised an armed intervention in the name of protecting a civilian population from its own national authorities in the absence of any threat posed by that nation to other states. This did not happen even in relation to Kosovo or in relation to Darfur.
Given the abstentions of the BRIC countries and Germany from Resolution 1973 which authorised the implementation of a no-fly zone, the Resolutions would not have occurred in the absence of the stance taken by the Arab League and other Arab organisations condemning Gaddafi’s actions against his own people. There is now a significant possibility that there will be similar interventions in other countries. Syria is the obvious, if much more dangerous, candidate.
Regime change was not a direct aim of international community’s policy on Libya. But it is unrealistic to suggest that intervention on such humanitarian grounds could ever lead to anything else. This is what, in part, gives rise to the allegation that such action by the United Nations is merely serving the interests of former colonial powers.
The manner in which such intervention is implemented also raises issues. A ‘no-fly zone’ sounds innocuous. But, as Secretary of State Hilary Clinton made clear, no one should be in any doubt that it generally involves destroying ground air defences. In short, it amounts to an armed attack on the state concerned.
In such a situation, it is all too easy to go beyond the limits of authorised intervention. To enforce the zone is one thing; taking action which amounts to an attempt to assassinate the sitting head of state by directly bombing him may be another (and Colonel Gaddafi would no doubt contend that, even if the Resolutions were lawful, the NATO forces breached their mandate and went too far).
The second most important point to emerge relates to the role of the International Criminal Court. The Libyan situation was referred to the ICC by the Security Council in its Resolution 1970. The only other time this has happened is in relation to Sudan’s conduct in Darfur.
The referral, in February this year, required the Prosecutor to investigate the situation. It is what gave the ICC jurisdiction, Libya not being a party to the ICC Statute. At that time, the conduct of the Gaddafi regime, which was said by the Prosecutor of the ICC to engage the responsibility, directly or indirectly, of the regime’s leader, involved a sitting head of state.
The decision of the Prosecutor to seek and obtain from the ICC in June 2011 an arrest warrant for Gaddafi was only the second time that the ICC has taken such action in respect of a sitting head of state; the first being the arrest warrant issued in respect of Omar Al-Bashir, the President of Sudan. Article 27 of the ICC Statute clearly gives the ICC the power to take such action against even a sitting head of state.
But the practicalities of enforcing such a warrant are more problematic. The African and Arab states have generally disapproved of the Bashir warrant. Many such countries do not recognise the ICC and owe no obligation to co-operate with it. The ICC has itself faced criticisms as to its operation but these criticisms largely arise from the fact that it remains a young institution. Its focus on crimes against humanity committed in Africa has also led to criticism that it is a tool of Western colonialism. These are some of the reasons why the warrant against Al-Bashir remains unenforced; revealing the practical limits of the ICC’s powers.
There are, however, differences between the Bashir case and Gaddafi’s situation. The former remains a sitting head of state who is in control of his country; whereas Gaddafi has probably already lost that status. Moreover, Arab nations have directly participated in the armed action in/over Libya to enforce the UN Resolutions.
Nevertheless, it does not follow that if Gaddafi is found in another state he will be handed over to the ICC rather than to the Libyans. And if he is found in Libya, a newly established Libyan national authority is unlikely to hand him over to the ICC. It will probably wish to try him within Libya; just as Saddam was tried within Iraq by Iraqis. Issues will arise as to the fairness of any trial within Libya. The ICC could not prevent such a local trial as its power to prosecute only arises where the nation responsible is either unable or unwilling to investigate to prosecute him or where its conduct is inconsistent with an attempt to bring the defendant to justice.
As the Libyan War meanders to a close, one is left with the thought that national authorities which are in conflict with their own civilian populations and which fail to act in accordance with international standards are likely to find they are at greater risk of armed intervention by the international community, especially if they have something which that community needs: oil. Whilst the chances of intervention in Syria may be much less, the warning signals for Syria, and for responsible individuals amongst its leadership, have been sounded.
By Manjit Gill QC