The chaos in Libya is also the responsibility of Europe

Posted by:

Wester Karin

In December 2014, the United Nations reported that in the previous months hundreds of civilians had been killed in the struggle between armed militias in Libya, and that the acts of the militias might amount to crimes against humanity. It seems like a déjà vu. In February 2011, a popular uprising started in Libya and was brutally repressed by the regime of Colonel Qadhafi, who was eventually charged with committing crimes against humanity. The UN Security Council decided to authorize the use of military force on humanitarian grounds, in order to protect civilians. The ensuing NATO operation, which lasted from March to October 2011, resulted in the fall of the Qadhafi regime and in the establishment of a transitional government, which pledged full respect for human rights and international law. So, what has gone wrong – and what responsibility does the international community carry?

When Operation Unified Protector came to an end in October 2011, neither the transitional government in Libya nor NATO were keen to continue NATO’s involvement in the country. Just like the Arab League and the African Union, the Libyan opposition had been careful to prevent a ‘foreign occupation force’ on Libyan soil, ever since the start of the uprising. In the fall of 2011, the generally shared view was that it was up to the Libyans themselves to shape their own future. Given the fact that the Libyan population had been living under domestic or foreign oppression for most of the previous century, this did not seem an objectionable thought. A UN mission with a so-called ‘light footprint’ was established, in order to assist the Libyan authorities in building up the country and constructing state institutions. There was no question of installing a peacekeeping force.

In July 2012, the Libyan transitional government, supported by the international community, organized successful national elections. Many of those involved were relatively optimistic about the future of the country. The Libyan post-conflict model, which contrasted sharply with the large-scale interventions in Afghanistan and Iraq, was even mentioned as a possible precedent for future post-conflict situations. However, while the construction of state institutions was already an enormous challenge in the case of Libya, without any civic traditions, creating a viable security sector proved to be a particularly daunting task. As transpired, the Libyan transitional government, as well as the international community, had seriously underestimated the problems in this particular area.

Apart from the fact that Libya had never maintained a well-functioning army under Qadhafi, the manner in which the revolt had been organized in 2011 turned out to have devastating consequences. The National Transitional Council, which was based in eastern Libya, was the political representation of the uprising and succeeded in securing international support for the revolt. However, the actual war was fought by local militias which operated for the most part independently, without much central or even regional coordination. According to estimates, between 100 and 300 militias were operating relatively autonomously in Libya in the course of 2011. Remarkably, this model, of a central political council and decentralized opposition groups, proved to be a successful formula for winning the war. The NATO intervention, as well as the direct foreign support a number of states provided to the insurgents, were of critical importance in order to secure this result.

Yet, after the conflict ended, many militias, especially the most experienced and battle-hardened militias which had fought prolonged battles in Misrata and the Nafusa Mountains, refused to hand in their arms and recognize a government they felt no connection with. This refusal was partially fueled by historically grown, regional divides. Since the transitional government had no professional national army, the country was quickly divided in different territories which were de facto controlled by non-state armed groups. Efforts to demobilize militias and integrate them in national armed forces yielded few results. The model which had been successful in order to win the war, was showing to be disastrous to keep the peace.

As a consequence, over the last two years Libya has been experiencing an ever deteriorating spiral of violence, which has resulted in a state of chaos, with two governments and two parliaments, each having their own armed militia; one based in Tripoli, and the other one in the city of Tobruk. The division of the country, largely along the lines of secular (Sunni) groups on the one hand, and Islamist factions on the other, does not only affect the Libyan population, but also has devastating consequences for the surrounding region. The enormous arsenals of arms, the ease with which criminal organizations and fundamentalist groups are able to operate, the porous borders and the lack of government institutions which are able to exercise effective control over the state’s territory, have led to a state of lawlessness. This should not only be of great concern to Libya’s direct neighbors, such as Egypt and Tunisia, but also to the countries in Europe.

In addition, the international community, especially the states who contributed to the intervention in 2011, should realize it bears a share of responsibility for the current situation. This does not mean that the intervention in 2011 should not have happened; but the international community seems to have been largely disregarding the situation which has been evolving ever since. Given the deeply rooted problems of the security sector in Libya, the mediation efforts currently being undertaken by Bernardino León, the Special Representative of the UN Secretary-General for Libya, can barely provide a sustainable solution. Even if the talks yield some results, inevitably additional measures – such as a peacekeeping force – will have to be considered in order to monitor the agreements, and to assist the legitimate government in establishing effective control over the country’s territory.

In August 2014, U.S. President Obama stated in an interview with New York Times columnist Thomas Friedman that he absolutely believed that the decision to intervene in Libya in 2011 to prevent a massacre had been the right thing to do. However, he immediately added that doing so without making a much more robust effort to support Libya’s democratic transition, may be his biggest foreign policy regret thus far. ‘Do we have an answer for the day after?’ was the crucial question, according to Obama. Let’s hope that European leaders have come to similar conclusions – and that they will muster the political will to address the situation in Libya before it spins completely out of control; in the interest of the Libyan population as well as the stability of the region – including Europe itself.

 

Responsibility of the UK for detentions in Afghanistan: questions of attribution of conduct

 Posted by: Bérénice Boutin

In a decision of 2 May 2014, the British High Court of Justice held that the United Kingdom (UK) was responsible for the continued detention of an individual in Afghanistan, in violation of human rights law. The decision has already been commented on, notably here, here and here, focusing on the affirmation by the Court that the UK’s international human rights obligations applied to the non-international armed conflict in Afghanistan. This post will briefly address another important aspect of the decision, that of attribution of conduct.

The case was brought by Serdar Mohammed, an Afghan national who had been captured by British forces part of the NATO-led International Security Assistance Force (ISAF) in April 2010 on the suspicion of being a member of the Taliban. He remained detained without charges until July 2010, when he was transferred to Afghan authorities. He claimed compensation from the UK for a breach of his right to liberty under Article 5 ECHR.

Apart from finding that the detention was in breach of applicable human rights obligations, the Court engaged in a relatively extensive discussion of whether the disputed conduct was to be attributed to the UK (paras 158–187, pp 47–55), thereby adding a new stone to the debate on allocation of responsibility in international military operations.

The Court answered the question of attribution in two steps: first, it determined to whom the conduct of ISAF should be attributed as a matter of principle, and then asked whether the detention itself should be considered an act of ISAF or whether it actually was an act of the UK. A number of scholars have considered such a two steps method appropriate to implement the test of effective control: they have suggested to first identify which entity is presumably responsible in view of command arrangements before enquiring whether a specific conduct was actually controlled by the troop-contributing State.[1]

The Court wrongly concluded that the conduct of ISAF was in general attributable to the UN because it possessed ‘ultimate authority and control’, but correctly held that the specific detention of Serdar Mohammed was to be attributed to the UK. These two parts of the reasoning of the Court on attribution are explained below.

Grounding once again its argument in the Behrami and Saramati cases, the UK had contended that since British forces in Afghanistan were operating as part of the ISAF – a NATO force that was authorised by the UN – the conduct should be attributed to the UN. If courts in Al-Jedda could distinguish the situation in Iraq from the one in Kosovo on the facts, the Court was here bound to recognise the close similarity of the case at hand with the detention of Mr Saramati by the NATO-led KFOR:

177. […] It seems to me that the chain of delegation of command for ISAF is essentially similar to the chain of delegation and command for KFOR, as described in the judgment of the European Court in the Behrami and Saramati cases.

The British Court did not dismiss Behrami and therefore held that, prima facie, the conduct of ISAF was attributable to the UN:

178. In these circumstances, although I do not find the question easy, I consider that the UN Security Council has “effective control” (and “ultimate authority and control”) over ISAF in the sense required to enable conduct of ISAF to be attributed to the UN. Thus, if the detention of [Serdar Mohammed] had been authorised by [ISAF] […], I would expect the European Court to hold that the detention was not attributable to the respondent state, applying the same analysis as it did in the Behrami and Saramati cases.

As often denounced with regard to the Behrami decision, holding the UN responsible for the conduct of forces over which it has no control makes little sense and is not in line with the established test of effective control. Under this test, the conduct of ISAF should rather have been prima facie attributed to NATO which was vested with operational command over the force. The UN only authorised the deployment of ISAF and did not have operational control over its activities in the field. The conduct of ISAF should therefore not have been considered as a conduct of the UN.

While the argument on attribution of ISAF conduct to the UN is weak, the Court nonetheless reached a reasonable conclusion in the second step of its reasoning. It analysed the distribution of authority between NATO, ISAF and the UK, and demonstrated that the detention of Serdar Mohammed was exclusively under the authority of the UK.

Indeed, the Court showed that, as far as detention operations were concerned, the UK was acting independently from ISAF, according to its own policies and through its own channels. Under ISAF’s rules, individuals could be detained for up to 96 hours after which they had to be transferred to Afghan authorities. Considering that ‘detaining individuals beyond 96 hours can yield vital intelligence’, the UK decided to adopt a different policy allowing longer detentions by its troops. As a result, detention operations by British troops in Afghanistan have been conducted under the direct authority of the British Ministry of Defence:

180. […] the chain of command for authorising detention set out in the MOD Standard Operating Instruction J3-9 shows that the detention authority is the Commander of Joint Force Support (Afghanistan) (“Comd JFS p(A)”), who reports directly to the UK Permanent Joint Headquarters (“PJHQ”), which in turn reports to the MOD. By contrast, the chart shows that the relation between the UK detention authority and the ISAF chain of command is one of liaison and coordination only.

Considering that the disputed ‘detention was authorised and reviewed exclusively by UK officials and Ministers’, the Court held that the conduct was attributed to the UK which actually exercised authority over this part of the operation, and not to the UN and NATO.

In effect, the Court demonstrated that the specific disputed conduct was under the effective control of the UK which concretely exercised authority over its troops in detentions matter. The conclusion of the case is therefore in line with the principle enshrined in Article 7 ARIO.

Like in Nuhanovic, attribution of conduct of international forces to the contributing State is justified by a clear link between specific government’s decisions over operational matters and the disputed conduct. In Nuhanovic, the Dutch government was in close contact with the contingent commander and had directly instructed to evacuate the compound. In the case at hand, the direct control of the UK government over detentions justified to attribute the conduct to the State.

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1. See eg: A Sari, ‘UN Peacekeeping Operations and Article 7 ARIO: The Missing Link’ (2012) 9(1) International Organizations Law Review 7; M Zwanenburg, Accountability of Peace Support Operations (Martinus Nijhoff, Leiden, Boston, 2005) at 100.

‘Left to die’ boat reveals collective failure to rescue migrants at sea

 Posted by: Heijer Maarten den

This week, a committee of the Parliamentary Assembly of the Council of Europe released a draft resolution and report on the fateful voyage of what has been dubbed the ‘left to die’ boat – a story that was first picked up by The Guardian. The tragedy involved a boat carrying 72 Sub-Saharan migrants who fled from the conflict in Libya in March 2011, but ran into trouble and, despite a distress call by satellite from the ship’s Ghanaian “captain” to an Eritrean priest living in Italy who alerted the Rome Maritime Rescue Coordination Centre (Rome MRCC), eventually washed up on the shores of Libya 15 days later. By then, only 11 people were still alive.

The story was made all the more rueful because of testimonies from the survivors that, while adrift somewhere between the Italian island Lampedusa and Libya, they had made contact with several boats (commercial fishing vessels and allegedly an aircraft carrier belonging to France, which was however denied by France and NATO) and even a military helicopter which had lowered down bottles of water and biscuits into the vessel and then flew away, never to return – but their calls for help were all but ignored.

The report finds that pretty much everything went wrong: there was a failure of NATO, the United Nations and individual States in planning the Libyan military operations and preparing for an expected exodus by sea; a failure of the Italian and Maltese authorities in coordinating the rescue and launching a rescue operation; communication misunderstandings; a failure of NATO vessels in the vicinity and commercial fishing boats to follow up on repeated navigational distress warnings. In short, the report concludes: a collective failure.

Although the report was unable to verify all allegations and leaves many questions – especially the legal ones – unanswered, it vividly uncovers how all kinds of dynamics (war, migration) and the sharing of responsibilities between States and international organizations may result in no-one actually undertaking any action.

For me, this is the Council of Europe at its best. Although mainly known for housing the European Court of Human Rights – the Parliamentary Assembly, but also the Committee for the Prevention of Torture (CPT), have often engaged in fact finding activities that later turned out to have major political repercussions. Think, for example, of the frequent CPT’s visits to the imprisoned PKK-leader Öcalan on Imrali island and very recently its visit to the detained former Ukrainian prime-minister Yulia Tymoshenko (see also here and here). Think also of the persistent efforts of Swiss senator Dick Marty and member of the Parliamentary Assembly, to uncover the spider’s web of extraordinary renditions and secret CIA prisons in Europe after 9/11. His efforts eventually lead, some five years after his first report and despite earlier denials, to evidence that such prisons had indeed existed in Europe.

As to the present report’s legal implications, one might expect that it would at least re-open the debate on necessary amendments to the maritime SAR framework (after the 2004 overhaul of the Annex to the International Convention on Maritime Search and Rescue). Some specific points mentioned in the report concern the distribution of responsibilities for coordinating and undertaking rescue operations (one obvious issue was the responsibility vacuum for Libya’s SAR zone), the question of how to enforce duties of rescue on the part of private shipmasters, and the interpretation of what constitutes a vessel in distress (should not any unseaworthy and overcrowded vessel with barely any supplies, navigational equipment and an untrained captain be considered to be in distress, regardless of whether it is still running on its engines? – something which according to the report was disputed by the Rome MRCC).

And then there is the question of distribution of responsibilities between NATO and its Member States. In a letter to rapporteur Ms. Tineke Strik from the Netherlands, NATO explained that it had forwarded all emergency alerts to NATO task force units under its operational control. It further succinctly referred to information provided by the Spanish and Italian authorities that their vessels in the vicinity at the time had often engaged in rescue operations and that they were well aware of their relevant obligations under maritime law. It is at least disturbing to see how readily NATO command discharges itself of any responsibility – and fails to announce for example, that it will try to get to the bottom of things.

Perhaps more than anything, the whole episode signifies how European authorities and societies have learned to look away from the constant flow of migrants packed in makeshift vessels trying to make their way to Europe. The foremost challenge to be confronted then, is reminding ourselves that international legal standards apply equally to all those who embark upon such fateful journeys. This very notion was recently underscored by the European Court in the case of Hirsi v Italy.

On Human Shields: Balancing the Responsibilities of Attackers and Defenders?

 Posted by: Swerissen Isabelle

Professor Yoram Dinstein, a leading authority in international humanitarian law, has been making a whirlwind tour of the Netherlands, giving lectures on various legal issues pertaining to war and peace. One of those lectures featured the topic of human shields. Human shielding involves the use of persons protected by international humanitarian law, such as civilians, to deter attacks on combatants and military objectives.

While certainly not representing a new battlefield phenomenon, human shielding has become more commonplace due to the dramatic asymmetry characterizing many of today’s armed conflicts. Most recently, reports surfaced of human shields being used by forces loyal to former Libyan leader Gaddafi in response to air strikes by NATO. In the face of overwhelming technological superiority, as was the case in Libya, weaker parties to a conflict have embraced shielding as a method of warfare designed to counter attacks against which they cannot effectively defend using conventional weaponry and forces. By making use of human shields instead, it is presumed that the prospect of killing civilians will dissuade the attacker from striking, despite the military advantage that could thereby be gained.

In this blog post, I will highlight one aspect of human shields that may be relevant from the perspective of shared responsibility: the sharing or, more accurately, the balancing of responsibilities between attackers and defenders.

The use of human shields is expressly prohibited by international humanitarian law. Article 51(7) of Additional Protocol I (API) stipulates that ‘[t]he Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations’. This provision stems from the general principle of distinction between combatants and military objectives on the one hand and civilians and civilian objects on the other. The latter shall not be the object of attack pursuant to Article 51(2) API. Article 58 API complements this prohibition by imposing an affirmative obligation on Parties to ‘endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives’. But in the case of human shielding, defenders deliberately fail to comply with these obligations to make things more difficult for attackers.

Do the violations on the part of the defender affect the obligations of the attacker? Put more specifically, does this relieve the attackers from complying with their obligations?

This question should be answered in the negative, according to Dinstein and several other experts. They point to Article 51(8) API which unequivocally states that ‘any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians’.[1] But they are quick to add that, since the defender has failed to live up to its obligations to ensure the safety of civilians, the attacker is effectively saddled with an ‘additional responsibility’ of avoiding injury to them.[2] After all, the attackers must first discern whether individuals are actually involved in shielding and, if so, whether they are acting voluntarily. This is a point made with force by W. Hays Parks, who writes that there was a deliberate attempt during the drafting of API to ‘shift’ responsibility onto the shoulders of the attackers only.[3] Major General A.P.V. Rogers builds on his argument by writing that ‘this is an area where [API] fails to achieve an objective balance’ between the responsibilities of the attackers and defenders and, perhaps, ‘encourages’ the defenders to violate international humanitarian law.[4] The problem is exacerbated by the so-called ‘CNN effect’: the images of dead and injured civilians, even if the result of lawful operations, are likely to get more media attention than the unlawful activities of the defender.[5]

The balance between the responsibilities of the attackers and defenders can, in Dinstein’s opinion, be redressed with the help of the principle of proportionality. Here it should first be observed that international humanitarian law, as it currently stands, does not necessarily bar attack on a military target shielded by civilians, especially when they act of their own volition. Voluntary human shields are generally regarded as civilians who take a direct part in hostilities and, as such, lose their protection from attack.[6] But even the presence of involuntary human shields does not immunize military operations, as long as the number of civilians likely to be injured or killed during an attack is not excessive in relation to the military advantage anticipated.

However, Dinstein pushes the boundaries of the law by adding that ‘the actual test of excessive injury to civilians must be relaxed’ in the case of human shielding.[7] That is to say, ‘the appraisal whether civilian casualties are excessive in relation to the military advantage anticipated must make allowances for the fact that – if an attempt is made to shield military objectives with civilians – civilian casualties will be higher’.[8]

While others, such as Rogers, have made remarks along similar lines, I find this a highly peculiar position to take. Note that Dinstein and Rogers do not deny that care should be taken to spare the lives of involuntary human shields. Yet, by virtue of their rebalancing exercise, they come dangerously close to devaluating the human worth of civilian shields and the protections to which they are entitled if there is no commensurate correction of the military objective’s value in the proportionality analysis. Here I find myself more in agreement with Michael N. Schmitt. He argues that, to the extent that there is balancing, it is between the rights of the parties to the conflict (without distinction as to their offensive or defensive character) to pursue legitimate military objectives and the rights of protected persons to be free from the direct effects of warfare; not between the responsibilities of attackers and defenders. Fairness between these two is, in his view, ‘not the issue’.[9]

Although a full analysis of this complex issue is beyond the scope of this blog, the positions articulated here demonstrate that defenders and attackers in certain respects have a shared responsibility towards protected persons. Indeed, if defenders fail to abide by their obligations, it is up to the attackers to do their share. However, the exact modalities and limitations of such sharing – as evidenced  by the operation of the proportionality principle – remain, as so many other issues of shared responsibility, controversial.

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[1] See also Article 60(5) of the Vienna Convention on the Law of Treaties which provides that ‘treaties of a humanitarian character, in particular … provisions prohibiting any form of reprisals against persons protected by such treaties’ may not be terminated or suspended as a consequence of its breach by one of the parties.

[2] W. Hays Parks, Air War and the Law of War (1990) 32 Air Force L. Rev. 1, 163.

[3] ibid.

[4] A.P.V. Rogers, Law on the Battlefield (Juris Publishing / Manchester University Press: Manchester, 2004) 129.

[5] ibid.

[6] Article 51(3) API.

[7] Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press: Cambridge, 2004) 131.

[8] ibid.

[9] M.N. Schmitt, Book Review: Law on the Battlefield (1998) 8 U.S. A.F. Acad. J. Legal Stud. 255, 268-267.

What Responsibility for States Participating to a Lesser Extent to the NATO Operation in Libya?

 Posted by: Bérénice Boutin

As usually for international military operations led by an international organization, States participating in the NATO-led Operation Unified Protector placed their military contingents under the operational command of NATO.  However the Rules of Engagement – which define the conditions under which members of a national contingent can engage force – may differ amongst participating States.

The Netherlands, for instance, decided to send planes to Libya but limited their mission to providing support in enforcing the UNSC Resolution, while forbidding them to participate in ground bombings.  In military terms, the Dutch forces can provide surveillance, intelligence or air-to-air refuelling, but they do not engage in air-to-ground missions. This limited engagement probably stems from a will of limiting the Dutch responsibility in case of a wrongful act of the coalition. However, one can wonder to what extent the Netherlands could be held liable for the injuries resulting of wrongful acts of the Operation Unified Protector.

The first question is whether acts of contributed troops would be attributable to the contributing States at all. Indeed, it is well established that when an international organization is entrusted with operational command and control over national contingents, the acts of the troops are presumably attributable to the organization under Article 6 DARIO, as it would a priori have effective control over the acts of the troops. Nevertheless, it is now more often argued that attribution of the acts of troops to an organization does not exclude attribution to the State of the contingent, where this State exercised effective control over its troops as well. Therefore, the acts of troops could possibly be attributed to States and not only to NATO. The rationale for dual attribution in international military operations lies in the share of authority and control that a State necessarily retains over its own troops in the form of training obligations and disciplinary powers, which provides him with some level of effective control over its troops. The wrongful acts of the troops could thus be attributed to their sending State if they are the result of insufficient training and/or discipline.

Further to attributing acts of troops to the sending State together with NATO, one could envisage the joint responsibility of all participants in the NATO-led operation, in the sense that wrongful acts would be attributable to each State. This argument was made by Brownlie in his pleading in the Case concerning the Legality of the Use of Force.  The argument of the joint responsibility of NATO member States for their military operations seems to rely on the specificity of NATO being a military alliance through which States act. However, this progressive argument leading to holding the Netherlands responsible for acts it did not itself commit is probably not the strongest.

More convincingly, the responsibility of States limitedly involved in the operation could be sought on the ground of aid and assistance given in the commission of an internationally wrongful act. The supportive role of the Dutch planes, providing surveillance and intelligence, could easily qualify as aid and assistance provided to the main coalition partners. This aid was provided with the full knowledge of how it will be used and with the view of facilitating the operations. In that case, the State would not be directly responsibility for the wrongful act itself. However, as shown by the Corfu Channel case, the liability obligation arising from indirect responsibility could maybe consist of an obligation to make full reparation for the injury. In other words, a party injured by a bombing could attempt to claim full reparation from the Netherlands even though it would not be responsible for the direct violation.

Finally, a State participating in the Operation could be responsible if it was in breach of its duty to ensure respect of International Humanitarian Law by other parties. Again, the responsibility would be based on a wrongful act distinct from the main violation, but an injured party could seek to recover full reparation.

This short overview demonstrates that there are avenues to hold a State liable for injuries caused by the military operation, even though that State wanted to limit its involvement and responsibility.