The Responsibility to Protect: Why Libya but not Syria? – Panel Discussion and Book Launch

 Posted by: Have Nienke van der

On the 8 March, the book “The Responsibility to Protect: From Principle to Practice” was launched at Spui25 in the center of Amsterdam. The launch could not have been more timely in light of the continuing reports of atrocities being committed in Syria and the discussions surrounding the inaction of the United Nations Security Council (UNSC). Appropriately so, the topic for discussion was: Why Libya but not Syria? The panel consisted of Prof. André Nollkaemper, Prof. Ko Colijn and Frank Majoor and was moderated by Juurd Eijsvoogel.

Opening the panel discussion, Prof. André Nollkaemper described how the responsibility to protect (R2P) has quickly descended from its finest hour in March 2011 to its deepest crisis in 2012. The intervention in Libya was based on widespread agreement that the threats posed by Colonel Moammar Gadhafi warranted a forceful response. The question is why Syria has not attracted similar attention based on collective action. Given the widespread use of sanctions, the true question for this meeting boils down to why there has been no military intervention. The use of force can only be allowed by the UNSC under Chapter VII of the United Nations Charter. This is somewhat paradoxical, because sometimes unilateral action is the only way to prevent or halt atrocities; a point forcefully made by Daniel Goldhagen in the book. Under current positive international law it cannot be said that the UNSC is obliged to use force. Even though the vetoes of China and Russia were strongly condemned in the political arena, they still have to be characterized as legal.

Consequently, the matter comes down to the question of why the UNSC has not allowed the use of force in this particular case. According to André Nollkaemper, the main political explanation can be found in the fact that the R2P concept was abused in the case of Libya. The NATO used the mandate to protect civilians to secure regime change, despite efforts of the African Union and neighbouring states to come to a negotiated solution. Overthrowing a government can be legal under international law, but in this particular case those conditions were not satisfied. Western Europe and the United States mistook the widespread support for the R2P for support for installing a Western-style democracy. The tragedy in this course of events is that the UNSC’s monopoly on the use of force was bolstered, while political support for military intervention based on the R2P concept has waned.

Frank Majoor continued the discussion by describing the concept of the R2P as a ‘game-changer’ on its way to becoming a legal norm. He stressed that military intervention based on a resolution of the UNSC is only to be used as a last resort and is not a flexible basis for intervention. The more innovative and important contribution of the R2P is the focus on prevention and assistance efforts. According to Frank Majoor, the objective of the NATO in Libya was not on regime change. It was merely the practical result. He stated that military operations, when started, must end in a successful manner. This does not mean that there is no possibility to negotiate about intermediary solutions.

The selectivity critique with which the R2P is now faced is, in his opinion, not completely well-founded. Syria is simply a different case when compared to Libya and lacks the wide regional and public support for military intervention. An active process is still being undertaken under the banner of the R2P. Of those, the diplomatic mission under leadership of former Secretary General Kofi Annan is most likely to lead to some form of success. Whether the ultimate stage of military intervention will be reached remains to be seen. According to Frank Majoor, selectivity is always part of reality, but not an excuse for absolute inaction.

Finally, Ko Colijn illustrated with a compelling set of figures that the classic inter-state war is fading and intra-state conflicts are on the rise. The R2P is one of the ways of responding to this reality, by attempting to strike a balance between neo-colonialism and non-intervention. However, the international community is reluctant to acknowledge it as a legal norm because it is to some degree still seen as illegitimately meddling with a state’s internal affairs. The claim that the R2P has been stretched in the case of Libya to make regime change possible leads to the very complicated discussion of when and which governments can legitimately be toppled. Therefore, the R2P was, from the start, doomed to become a responsibility to select. This is difficult to explain to the world’s population, as expectations have been set high. Nevertheless, the R2P has shifted the burden of evidence from the countries which are in favor of intervention in large scale atrocities to those who are not. This is illustrated by the strong criticism that Russia and China had to endure after their vetoes.

The question remains whether the R2P also contains a responsibility to succeed. Tied in with this is a question which was raised by a member of the audience: whether it is still possible to wage an “old-fashioned civil war”. According to Ko Colijn, the protection efforts should always be targeted at the whole population, which almost inherently means that you support the opposition. It was added that the level of government control is indeed another important difference between Libya and Syria. The discussion focused on several other interesting matters, such as the concrete measures which could be taken in Syria at the moment, whether other international organizations could take action in the future and whether a reform or institutionalization of the decision making process could help properly implement the R2P.

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.

Who’s responsible for protecting terrorist suspects?

 Posted by: Heijer Maarten den

In its recent judgment in Othman, the European Court of Human Rights held that the United Kingdom could not expel a Muslim cleric suspected of ties to Al-Qaeda to Jordan. The judgment is of interest for our SHARES project, as the Court on the one hand cautions against international cooperation in the sphere of extradition of terrorist suspects – stressing the responsibilities under human rights law of expelling States – but on the other hand urges States that definitely wish to expel or extradite to do so only in close cooperation with receiving States so as to protect against maltreatment and to ensure a fair trial.

Othman, who had been allowed to reside in the UK as refugee in 1993 and was detained there in 2002 under the Anti-terrorism, Crime and Security Act which was introduced two months after 9/11, is facing charges of terrorist conspiracies in Jordan. The European Court found that there was a real risk that evidence obtained by torture would be used against Othman during his trial in Jordan. The judgment, together with other recent pronouncements of the European human rights court, constitutes important guidance for those countries struggling with the twofold objective of bringing to trial and permanently relocating terrorist suspects, while at the same time guaranteeing their human rights. On this very issue, also see André’s post on the UK Court of Appeals decision in Yunus Ramhmatullah v Secretary of State for Foreign and Commonwealth Affairs et ano.

Although the judgment was not well received in the United Kingdom (see here and here) and Prime Minister Cameron publicly voiced his disappointment over it only days after it was published in a speech before the Council of Europe – in support of his argument that the European Court is in dire need of reform – the judgment is on closer inspection also receptive to on-going efforts of Western countries to extradite or expel terrorists. Indeed, Amnesty’s Julia Hall describes the judgment as ‘an alarming setback for human rights’, in view of the Court’s holding under Article 3 of the Convention that the diplomatic assurances negotiated between the Jordanian and UK governments effectively removed the risk that Othman would be tortured or otherwise ill-treated in Jordan.

Thus, notwithstanding the Court’s strong stance on the admissibility of evidence obtained by torture, the judgment may open a path for Western countries facing the problem of not being able to remove terrorist suspects due to human rights concerns, to try to alleviate these concerns by procuring diplomatic assurances and cooperate in post-expulsion monitoring. That the European Court sees diplomatic assurances as a viable option in this respect is also confirmed in last week’s judgment in M.S. v Belgium (French only) where the Court found that the expulsion from Belgium to Iraq of a Al-Qaeda suspect would violate Article 3 of the European Convention but adding, notably, that the Belgian authorities should have obtained a series of safeguards from the Iraqi authorities with a view to ensuring his safety in Iraq. Although the Court has in the past shown reluctance to accord weight to diplomatic assurances from countries which systematically violate human rights (see for example the judgment in Saadi v Italy, the Court is now signalling that even in respect of such countries, it may be worthwhile to consider the procurement of diplomatic guarantees and the setting up of monitoring mechanisms with and in the receiving country.

The M.S. v Belgium case also underscores that it may well be that, in some cases, diplomatic assurances will be the only realistic option for States who want to remove terrorist suspects – since these persons are not particularly welcome in third countries. Like the U.S. government in respect of the Guantanamo Bay detainees, Belgium had sought resettlement possibilities in a whole range of countries (the judgment mentions Venezuela, Burundi, Vietnam, Burkina Faso and Costa Rica) – but all apparently refused. Absent any resettlement possibilities, it will be the ‘joint responsibility’ of the country of origin and the country of residence to find a solution which is satisfying to all parties.

One positive offspring of this development is that Western countries have a clear interest in contributing to improving the quality of justice systems in receiving countries. One example of a country where international efforts in this respect appear to bear fruit is Rwanda. The International Criminal Tribunal for Rwanda in 2011 in the case of Uwinkindi considered the justice system in Rwanda sufficiently improved so that it for the first time allowed for a case to be transferred to the Rwanda prosecutor. This reasoning was some months later confirmed by the European Court in the case of Ahorugeze v Sweden. In both cases, mention was not only made of successful international efforts to improve the quality of the Rwandese judiciary and detention conditions, but the Courts also referred to diplomatic guarantees as a means to ensure international standards are met. In respect of Kenya, international efforts are also underway to ensure the fair prosecution of piracy suspects. However, as we reported, a German court found the current agreements in place between the EU and Kenya to insufficiently remove the risk of ill-treatment.