The world must not stand idly by as Gadafy murders his own people

Dr Siobhan Mullally

This piece was originially published as an Opinion piece in the Irish Times on 12 March 2011

THE CRISIS in Libya presents new Minister for Foreign Affairs and Trade Eamon Gilmore with many urgent and pressing questions. As yet, the international community has failed to respond effectively to this unfolding humanitarian crisis. Disagreement at the United Nations Security Council and the threat of veto from both Russia and China is continuing to limit the possibility of a concerted collective response to the crisis. A draft resolution imposing a no-fly zone has been prepared by the UK and France, apparently ready to be formally presented if Libya commits an “egregious act”.

Egregious acts are, however, already occurring, and it is not clear that, even in such an event, consensus would be forthcoming.

Sadly, for observers of the security council, such disagreement and paralysis in the face of mass atrocity is all too familiar.

In the 1990s, the UN’s failure to intervene in Rwanda and Srebrenica contributed directly to the deaths of hundreds of thousands of innocent civilians, and led finally to the recognition that the UN’s role in protecting civilians was in need of urgent and dramatic reform.

Many international law commentators have pointed to the parallels between the Libyan and Kosovan crises. In 1999, inaction on the part of the Security Council in the face of widespread human rights violations in Kosovo ultimately led to unilateral action by the North Atlantic Treaty Organisation (Nato), without security council authorisation.

The independent Commission on Kosovo, established by the UN secretary general in the wake of the Nato action, concluded that the intervention was “illegal”, but legitimate. The spectre of inaction in the face of a humanitarian crisis could not be countenanced.

Following quickly on the Kosovan crisis, the security council authorised intervention in East Timor, but only when it had secured an invitation from Indonesia, and only after Indonesian and militia forces had run amok, killing, raping and pillaging with impunity.

In his essay “Two Concepts of Sovereignty”, then UN secretary general Kofi Annan called on the international community to reach consensus – not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom.

The Responsibility to Protect (R2P) Doctrine, developed through a series of high-level meetings of heads of state and governments in the early years of the new millennium, sought to address the past failings of the UN. At the heart of the R2P doctrine is the commitment by the international community, acting through the UN, to take collective action, in a timely and decisive manner, to protect populations from genocide, crimes against humanity and war crimes.

The crisis in Libya represents precisely the kind of situation envisaged by the R2P doctrine. The possibility of effective action by the UN, however, faces the hurdles of realpolitik and the self-interested disengagement by Russia and China, mindful no doubt of the potential for Jasmine revolutions to extend beyond this Arab Spring.

The security council has taken a first step towards a decisive response to the crisis. Security council Resolution 1970, adopted on February 26th, imposed a targeted regime of sanctions, and, reflecting the commitment to pursue accountability, the security council referred the situation in Libya to the International Criminal Court.

Significantly, the resolution was adopted unanimously, with support from the US. This support reflects the Obama administration’s policy of positive engagement, a welcome reprieve from the Bush administration’s open and hostile opposition to the court.

The swift referral of the situation to the court is remarkable, given the delays that usually accompany negotiations on the role of the court. The referral of the situation in Libya is not without its difficulties, however. Libya is not a party to the Statute of the International Criminal Court, and Col Gadafy has been a vocal opponent, along with other African heads of state, of the court’s role in Africa, calling in particular for a deferral of the arrest warrant against Sudan’s President Omar al-Bashir.

All of the situations and cases currently before the court concern African states, raising questions as to the impartiality of the court and doubts as to why similar referrals did not occur in the context of Israel’s attacks on Gaza in 2009, for example.

For the moment, African states have not opposed the security council’s actions against Libya, though South Africa (a non-permanent member of the security council), is reported to be sceptical of the proposed no-fly zone and possible military action.

The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has now officially opened the investigation into the Libyan crisis, warning that crimes against humanity may be occurring, and that those responsible will be held accountable.

While these developments are to be welcomed, sanctions and the pursuit of accountability are not enough. Judicial remedies, while important, will not, and are not, deterring Col Gadafy and his forces from committing mass atrocity against innocent civilians. It now seems unlikely the US will support or lead any unilateral action against Libya. Nato continues to discuss its possible role in imposing a no-fly zone.

The doctrine of humanitarian intervention recognises the possibility of unilateral action, when a state’s actions against its own civilians are “so brutal as to shock the conscience of mankind”.

The actions of Gadafy’s forces have clearly met this threshold, shocking and distressing all those watching.

On accepting the Nobel Peace Prize, Obama spoke eloquently of the idea of a just war. He also called for the strengthening of the international institutions and international law. Over the last decade, both the US and the UK have invoked the doctrine of humanitarian intervention to support military action, when the UN failed to act. Over-extended now by conflict in Afghanistan and Iraq, and chastened by the errors of past administrations, neither look likely now to act without UN support.

The UN must respond. It is imperative that the security council fulfils its responsibility to the people of Libya, if it is not to be rendered irrelevant yet again in the face of a grave humanitarian crisis. Decisive action, including the immediate authorisation of a no-fly zone, is required.

(UK) Court of Appeal applies Saadi v Italy and Prevents Deportation to Libya

Today the Court of Appeal (Civil Division) released its judgment in AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289, which concerned the lawfulness of the deportation of the applicant to Libya, pursuant to a Memorandum of Understanding with the proposed receiving state.

The applicant was considered to pose risks to national security in the United Kingdom. He claimed that his right to be free from torture, inhuman and degrading treatment and punishment under both the ECHR and the Human Rights Act 1998 would be violated by the deportation as he faced a substantial risk of such treatment on return to Libya, and that the memorandum of understanding provided was not sufficient to discharge the United Kingdom’s positive obligations under Article 3, ECHR (on which see, esp., Soering and Chahal).

Drawing very heavily on the European Court of Human Right’s recent decision in Saadi v Italy (previously discussed on the CCJHR blog here), the Court of Appeal held that the test to be applied when considering whether deportation would constitute a human rights violation was as laid down in Saadi as follows:

Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment … in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 128 and 132 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. (paragraph 142)

The Secretary of State for the Home Department conceded that this test would have been satisfied beyond doubt in this case were it not for the fact that a Memorandum of Understanding (i.e. diplomatic assurances) had been concluded between the UK and Libya. This memorandum, the respondent claimed, was sufficient to discharge the UK’s duty of non-refoulement under Article 3 ECHR.

In this respect the Court of Appeal held that the sufficiency of any memorandum must be decided on a case-by-case basis (paragraph 75). Although the Court did not, perhaps, articulate the principles of assessing the sufficiency of particular memoranda of understanding as clearly as it might have done, it did clearly state that in assessing whether Article 3 is satisfied it is important to consider the reality on the ground in the receiving country and the extent to which – taking into account the unpredictability of the future – it is likely that treatment violating Article 3 might take place notwithstanding the memorandum of understanding.

Whether this decision will be appealed to the House of Lords remains to be seen, but as the judgment is substantively based on Saadi it seems unlikely that the Law Lords would reverse. In essence, then, the judgment outlines three principles:

  1. The protections of Article 3, ECHR are absolute and remain absolute notwithstanding the alleged misbehaviour/terrorist status/national security risk posed by the individual(s) concerned;
  2. In assessing whether deportation would constitute a violation of Article 3 a Court must consider whether there is “a real risk of ill-treatment”, taking into account all of the evidence before it and the necessarily speculative nature of the exercise;
  3. A Memorandum of Understanding/diplomatic assurance can, in principle, be sufficient to ensure compliance with Article 3, but the mere existence of such a memorandum is not sufficient in and of itself. Rather, the court must be satisfied that the situation in the proposed receiving state is such that the memorandum will be effective in protecting the individual from behaviour that violates Article 3.