CONSISTENCY IN THE CHANGE OF PERCEPTIONS
Mid-February of 2011, a group of civilians began demonstrating in Benghazi (Libya) against the political regime of Colonel al-Qadhafi who had come to power on 1 September 1969, after having overthrown the previous King, Idris I. Despite the ongoing Arab Spring surrounding Libya, it was not obvious that this peaceful attempt to overthrow al-Qadhafi from power would have any success. Instead of addressing the claims of the protestors, and identifying solutions for sustainable peace, the Quadhafi regime used violence in an attempt to stop the peaceful movement. This response and attitude led to a widening of the protest while the movement also became politicized with the birth of the National Transitional Council (NTC). At the heart of the reaction of the regime, al-Qadhafi, and in particular, his son, Saif al-Islam, made statements threatening the protestors with oppression: Saif al-Islam went so far as to state that the regime would fight for its survival until its last bullet. It does not appear that the regime had anticipated the reaction of the international community in spite of the current state of affairs that surrounded the country in this region.
And there was good reason for their view. For 20 years al-Qadhafi had been perceived as a terrorist or a supporter of terrorists against interests of the developed countries, especially the United States of America. However, recently relationships between the developed countries and Libya had become ‘normal’.
In 1988, when terrorists bombed flight Pan Am 103 over Lockerbie, the United Kingdom and the United States had succeeded through the United Nations Security Council (UNSC) in placing Libya outside the international community as an outcast regime. After years of negotiations, in 1999, al-Qadhafi agreed to a criminal trial in Switzerland against the terrorist suspects. The developed countries also sought compensation for the victims. Finally, on 16 August 2003, Libya agreed to pay USD 2.7 billion to the victims’ families. Col. al-Qadhafi also consented to dismantle his weapons and to stop any arms program. As a result, the United Nations Security Council adopted Resolution 1506 lifting all sanctions against Libya. As a consequence, Col. al-Qadhafi became, for the western countries, a sanitized leader with whom they could interact even though human rights violations against the Libyan population were still a characteristic of his regime. In its 2007 Country Reports on Terrorism, the U.S. State Department referred to Libya as a partner in the fight against terrorism. As a consequence, al-Qadhafi visited different developed countries, France and Italy among others, and attended the UN General Assembly in 2009, taking the floor on 23 September for an hour and half long speech. Given this background, it was now somewhat unexpected that in 2011 those very same countries who had stood against al-Qadhafi accusing him of massive violations of human rights now led the UNSC to adopt measures against Libya, some measures allegedly for the protection of the civilians. One can only question these nations legitimacy in doing so. The first measure adopted referred the situation to the International Criminal Court (ICC). While I am in full agreement with such a referral because I believe in accountability (especially in African countries where leadership often feels that it is above the law), nevertheless I feel I must express some strong discomfort with the ICC prosecutorial strategy leading to charges against al-Qadhafi, his son and their intelligence commander exclusively. Now there are also reports on crimes committed by the rebellion while there are also allegations of the targeting of civilians by NATO ensuring the no-fly zone and the mandate to protect the civilians.
Will the ICC prosecutor be considering any cases that would look at these reports? If not, the referral to the ICC cannot be very satisfactory.
“It is my view that presidents’ Obama, Sarkozy, and prime minister Cameron and others in the international community have failed in pointing the way forward toward a more ethical conduct of international affairs.”
The second measure adopted by the UNSC was the establishment of a no-fly zone which, surprisingly, was associated with a mandate to protect civilians. On the basis of the second measure, some NATO countries ran a military operation in Libya leading to a regime change. In the course of the operations, some countries recognized the NTC, while on the ground there were bombings on residences of Col. al-Qadhafi. Each of these actions raise certain questions that need to be answered. Can the NTC be credible and legitimate while the demonstrations and protests were started without them and their participation? Further, those individuals who currently constitute the NTC are former collaborators of Col. al-Qadhafi. Why can’t the usual support for the practice of allowing nationals to exercise their freedom to choose their leadership and form of government work for Libya? No one in Libya has designated the NTC as legitimate representative. Looking at the UN Security Council decision-making is helpful in understanding this current questionable situation.
After World War II, the UN Charter codified the prohibition of the use of armed force in the conduct of international relations, except as a response to an aggression (principle of self-defense, Art 51 of the UN Charter) or through the UN Security Council qualifying the situation either as a threat or a breach of peace or an act of aggression (Art. 39 of the UN Charter). In Libya, in the first instance (UNSC Res. 1970), the Security Council failed to qualify the conflict before employing language that led to the binding measures such as individual sanctions and referral to the International Criminal Court. Such a default is detrimental in my view with respect to the subsequent operations in Libya. In other words, without this initial qualification by the UN of the nature of the conflict, there could not be any legally binding measures against Libya. This problem was avoided with Res. 1973 which included an appropriate qualification before invoking the power to use armed forces. However, in the case of Res 1973, the protection of civilians appeared to be an open agenda which could only be achieved through selective military operations, and not the targeting strategy implemented by NATO during the military operations. Can the plan to outlaw a dictator justify an illegal operation or an abuse of an institution? Certainly not, and the international community, especially the powerful and influential nations interested in the conflict should have demonstrated and lead the way to another approach.
It is my view that Presidents’ Obama, Sarkozy, and Prime Minister Cameron and others in the international community have failed in pointing the way forward toward a more ethical conduct of international affairs. The subsequent execution of Col. al-Qadhafi is simply further evidence of the similarity between the dictator and those who are now in charge and succeeding his regime. And the case now before the International Criminal Court with regard to al-Qadhafi’s execution should require a serious investigation into his execution with a view toward prosecuting whoever was involved in such a killing. That is the new test for the ICC prosecutor and for the countries which now support the NTC while denying actual support for the revolution by the peoples of Libya. The legal and prosecutorial tests will demonstrate and determine the international communities actual commitment towards the betterment of all Libyans and not only a certain portion of the national leadership. Let us wait and see whether the world is changing or whether we are still at square No 1 where those in power do not self-discipline but continue the abuse of those less powerful. Such rule of power, contrary to the rule of law, is not sustainable in the long run. Those who abuse power can always be brought down.
Roland Adjovi, an attorney with extensive teaching experience, serves as Academic Director at the Arcadia Center in Arusha. He is also responsible for teaching a portion of our core course, “Tanzania in the Midst of Peace and Conflict: Contemporary Issues in East Africa.” Mr. Adjovi brings a strong background in working with African judicial and human rights organizations, including his experience as Senior Legal Officer within the Registry of the International Criminal Tribunal for Rwanda and as legal assistant for the Organization of African Unity. He also has extensive experience teaching at various U.S. and French institutions as well as serving as Editorial Assistant for the African Yearbook of International Law (through AFIL, the African Foundation for International Law). Mr. Adjovi earned his BA in Law and Public Administration from the University of Paris and then went on to earn a Master’s degree in Political Science there. Mr. Adjovi recently commented on the First Ruling by the African Court on Human and Peoples’ Rights in both Jurist, newsletter of the University of Pittsburgh Law School and Sentinelle, the weekly newsletter of the French Society for International Law.