Recently in Libya Conflict Category


Targeted Killings Increasingly Supplant Legal Justice
3:11 PM ET

JURIST Guest Columnist Mark Kersten, an MPhil/PhD candidate at the London School of Economics and Political Science, says that Gaddafi's death is just one example of worrying trend, in which legal justice is being replaced with targeted killings...



Hillary Clinton thought it was funny. Millions rejoiced and took to the streets in celebration. Some were simply disgusted. Others worried about what it all meant for Libya and for justice. Indeed, the reactions to the death of Muammar Gaddafi have been remarkably mixed and contradictory. In particular, there has been a vast gulf between those who see Gaddafi's killing as having finally served justice to a man who reigned, at times brutally, over his police state and those who viewed his killing as a concerning demonstration of injustice. Perhaps even more worrying is the reality that, rather than being exceptional, Gaddafi's killing is part of an increasingly acknowledged trend, which may challenge not only international law, but the nature of justice itself.

Numerous scholars, diplomats, human rights activists and lawyers often proclaim that we live in a world where impunity is outdated. This high rhetoric represents the belief that international criminals, including heads of states who perpetrate war crimes, crimes against humanity and genocide, have no place to hide. Even if they escape justice now, accountability will catch up with them eventually.

Kathryn Sikkink, for example, recently published The Justice Cascade, wherein she argues that we have been in the midst of a tectonic normative change in how the world deals with human rights abuses and international crimes. Today, Sikkink argues, the world expects that leaders who abuse their people will be held to account. That is the conclusion we should draw, according to Sikkink, from the experiences of Argentina's junta trials, the indictment of Pinochet, and from seeing Slobodan Milosevic in the dock. Does Sikkink's notion of a "justice cascade" represent an accurate reflection of the way the world is or is it instead a form of talking norms into reality?

It is worth wondering whether part of the reason so many observers were so shocked by Gaddafi's death was because they believed in the justice cascade. Surely if a justice cascade existed, Gaddafi would have been presented alive, in front of his victims, in a cold courtroom, rather than dead, his corpse lying half-naked in a cold storage container.

Indeed, it seems that the belief in a settled norm where leaders who commit international crimes are held legally accountable is an expression of hope of where international politics could go, rather than a reflection of where it actually is. Shaping the belief that a norm of international accountability exists is a selection bias in the narratives of transitional justice. For example, most studies tend to look at only one type of mechanism, with criminal prosecutions being by far the most popular. The result is that much greater attention has been paid to the fact that leaders like Pinochet and Milosevic sat in the docks of international tribunals, than to the fact that the use of amnesty laws to protect perpetrators of human rights violations has actually increased in recent years.

Remarkably, it was not until 2010 that the first truly comprehensive quantitative analysis of various transitional justice mechanisms was produced. The conclusions drawn from the study by Tricia Olsen, Leigh Payne and Andrew Reiter run in direct contradiction to what many have for so long believed. They demonstrate evidence that the use of trials with amnesties has a positive effect on democratization and respect for human rights and that when taking into account the increased number of national transitions from violent autocracy to peaceful democracy, the frequency of trials has not actually changed at all.

The extent to which expectations were created that Gaddafi would face his day at the International Criminal Court (ICC) masked the reality that his killing was, unfortunately, no surprise. Nor was the fact that his death was called "justice" surprising. Killing Gaddafi only comes as a shock if we are blind to the trends that suggest that killing Gaddafi and calling it justice was not unlikely. It is worth remembering that following the assassination of Osama Bin Laden, President Barack Obama declared that anyone who questioned whether Bin Laden's killing was just "should get their head checked."

In his thoughtful and thought-provoking article for JURIST, Kevin Govern laid out an emerging trend wherein "extensive tracking, investigation and a lengthy trial process for trying tyrants and terrorists may be supplanted by the trend of foreign intervention, targeted killings and domestic extrajudicial sanctions of foreign intervention, targeted killings and domestic extrajudicial sanctions." The proof is in the pudding; the killing of individuals like Bin Laden and Gaddafi, as well as the dramatic increase in the use of drone strikes by the US, is symptomatic of a shift in practice towards eliminating enemies rather than ensuring they face justice in front of judges.

Scholars, pundits and diplomats can debate ad nauseam that the Bin Laden assassination is not the same as the Gaddafi killing, which is not the same as using drones. They would be right — they are not the same. However, they do have two troubling key elements in common: first, they suggest an increasing practice of eliminating inconvenient enemies by killing them; and second, they have been framed as just and necessary acts.

A remarkable feature of the "Arab Spring" was the demonstration that a region of the world not known for being a champion of international criminal justice was speaking in the language of accountability, respect for human rights and the rule of law. More recently, however, hopes for justice and accountability have been challenged on a fundamental level. The fact is that killing leaders like Gaddafi is in direct contradiction to what international criminal law and justice attempt to do. Such acts are in contravention of any possible "justice cascade." Not only does killing remove the possibility of such leaders ever being held legally to account for their crimes, but framing Gaddafi and Bin Laden's deaths, among others, as justice brings the "justice" served by assassinating and killing enemies into the same moral space as the "justice" served by holding individuals to account by trial.

The palpable trend of killing adversaries rather than bringing them to account in front of a panel of judges, whether in The Hague or elsewhere, presents perhaps the most significant normative challenge to the possibility of living in a world where international criminal justice is the rule and not the exception. For some this may be painting a picture a few shades too stark. My premise is rather simple; to ensure that legal accountability becomes the new norm, advocates of international justice need to stop talking about the world in which they wish we lived and start dealing with the shortcomings and injustices of the one in which we do live.

Mark Kersten is a PhD student in International Relations at the London School of Economics. His work focuses on the effects of the International Criminal Court on peace processes in Libya and Uganda, as well as how different actors view the relationship between peace and justice. Mark is also the creator and author of the blog Justice in Conflict.

Suggested citation: Mark Kersten, Targeted Killings Increasingly Supplant Legal Justice, JURIST - Hotline, Nov. 2, 2011, http://jurist.org/hotline/2011/11/mark-kersten-targeted-killing.php.



This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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Gaddafi's Death a Missed Opportunity for the Rule of Law
3:10 PM ET

JURIST Contributing Editor Gabor Rona, International Legal Director of Human Rights First, argues that the death of Muammar Gaddafi may constitute a war crime under international standards and represents multiple missed opportunities for true justice by the parties involved...



The single most important organizing principle of the law of armed conflict is the principle of distinction, which is commonly understood to permit the use of force against combatants and prohibit the use of force against civilians. As the head of Libya's armed forces during an armed conflict, Muammar Gaddafi was certainly a legitimate military target. But once disarmed and taken into custody, combatants, whether they are foot soldiers or commanders-in-chief, are entitled to the same protection as civilians against targeting and ill treatment. Due to this, the circumstances of Gaddafi's death appear to suggest that he was murdered.

The UN Security Council had already referred the situation in Libya to the International Criminal Court (ICC). Had Gaddafi survived, he could have found himself answering charges of war crimes and crimes against humanity in The Hague, providing a powerful object lesson on the reach of international justice. Libya could have also offered to constitute its own trial for Gaddafi in accordance with international standards of due process, permitting the ICC to stand down. That would have been an equally powerful object lesson on the complementary relationship between international and domestic judicial processes for international crimes. Either way, a deliberate and credible trial would have been the venue for truth and accountability and perhaps even reconciliation among competing interests.

Instead, what we appear to have gotten is hot-blooded retribution. The National Transitional Council (NTC) had one chance to bring Gaddafi to justice, and they blew it.

In death, Gaddafi has inflicted a well-deserved wound on the NTC, fueling international unease about its willingness and ability to comply with international human rights and humanitarian law rules and principles. One might be tempted to respond that Gaddafi's murder, if that is what it was, is unfortunate but in war stuff happens. It is precisely because stuff happens in war that parties to armed conflict must take the measures necessary to assure that their fighters understand the rules and what can happen when they disobey them. Did the NTC command take measures to inform its fighters that Gaddafi should not be harmed if captured alive? That to do otherwise would constitute a war crime for which they would be held accountable? These and other questions surrounding the Gaddafi's death should be the subject of investigation. If violations of the laws of war are found, including by commanders, those responsible should be held accountable through a legitimate judicial process. The NTC should commit itself to such a process not only because it is the right and legal thing to do, but also as a matter of self-interest in order to begin the process of establishing its bona fides as a responsible, rights-respecting member of the international community that enforces Libya's treaty obligations.

As an American, I would also like to register regret that the President of the United States saw fit to address the nation upon Gaddafi's death in terms that can be construed, at best, as neutral on the manner of Gaddafi's demise. As a party to the Libyan armed conflict, the US bears a special responsibility under the laws of war not only to respect the rules, but to ensure that they are respected. President Obama's failure to note that Gaddafi's death was likely a war crime, and to call for investigation and accountability, is more than a missed opportunity to affirm the rule of law in war. It is a missed opportunity to affirm what the US stands for.

Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.

Suggested citation: Gabor Rona, Gaddafi's Death Highlights Missed Opportunities All Around, JURIST - Hotline, Oct. 28, 2011, http://jurist.org/hotline/2011/10/gabor-rona-gaddafi-death.php.



This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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US Response to Gaddafi's Death Sets Bad Precedent
2:10 PM ET

JURIST Guest Columnist Patricia DeGennaro, International Affairs Specialist and Senior Fellow at the World Policy Institute, says that the recent killing of Muammar Gaddafi sets a dangerous precedent of deposing dictators through military force over diplomatic efforts...



"We came, we saw, he died," said Secretary of State Hillary Clinton in one of the most flippant and least diplomatic comments heard in recent history. She, of course, was referring to the violent death of Libyan leader Muammar Gaddafi. She completely dismissed any calls for justice; there were no declarations by her or any other Western interventionist to honor due process within the rule of law. It almost seemed as if nothing else mattered beyond the US claimed success.

Sparked by protests in Tunisia, dictatorial leaders in the region are being removed through unprecedented peaceful protest despite responses of regimes like those in Bahrain, Yemen and Syria which respond by brutally imprisoning, torturing and murdering populations that want change. These demonstrations are not purely for democracy. They are being waged in hopes of changing an inequitable and unjust system, one that gives no rights to the individuals who want a voice in their future, be it economic, political or legal.

The West, and in particular the US Secretary of State, is missing this important point which is necessary if we are to ensure progress that is for the people, by the people in these countries. Instead Clinton did not waste time celebrating Gaddafi's murder. Following her lead, television outlets seemed overjoyed at the ability to parade the bloody, shirtless and seemingly deceased Gaddafi all over the airwaves. Adding drama to insult and injury, anchors did not quit. "Did they pull him out of a hole?" CNN's Wolf Blitzer asked the Libyan Ambassador to the US over and over again. American soldiers would be in jail for that behavior, but not American leadership. They applaud those responsible for Gaddafi's cruel death. It is exceedingly surreal.

Of course, it is the right of the Libyan people to rejoice in their newfound "freedom," which will hopefully turn into some semblance of order with civil, economic, democratic and judicial progress. It is not however responsible or acceptable for world leaders to mock someone's gruesome demise. From the Secretary of State on down, Senators and Republican presidential candidates took pleasure in American hegemony and the loss of life, apparently oblivious to the grisly pictures. Senator John McCain (R-AZ), a former prisoner of war who should by all counts know better, went so far as to put the leaders of Iran, Syria and even China on notice telling them they should not test American resolve because they could be next.

Instead of embracing engagement and robust diplomacy, the US seems to be too content with its excessive use of military power and coercive statecraft. Rule of law or just basic self-respect are secondary.

Like him or not, Gaddafi, like Saddam Hussein, believed that the US supported him in more ways than arms and oil exploration. Gaddafi gave up his nuclear program, although it was fairly nonexistent, and energy credits to normalize relations at the insistence of one American president only to find himself the literal target of another.

"We hope he can be captured or killed soon," spouted Clinton, basically calling on the Libyan people to assassinate a leader who ruled for over 40 years. At the forefront of this war was the administration's call for the "responsibility to protect." In Gaddafi's case though, he apparently did not deserve protection or trial. In all too many eyes, protection is sadly afforded to some but not "others" — putting little room between the administration and the dictator they deposed.

The world has shockingly become a society that favors some human life over others, blinding us all to brutality and outright murder. True, there are people that are criminals, but this is why there is the rule of law. As the Arab world embraces civil rights and democracy, it would do better to learn to honor the very rights that it is fighting for. As for the US, it must get serious about spreading human rights across the board.

This incessant need to create a foreign policy based on force must change. In July of this year, the Pew Global Attitudes Project reported that "in Turkey, Pakistan, Egypt, and Jordan, the belief that Americans and Europeans are hostile has become more common since 2006." The US call for, and then subsequent reaction to, the Gaddafi's death does little to counter this impression. The only way to respond to such a dishonorable sense of who Americans are is for this and every US administration to conduct foreign policy by holding steadfast to its own beliefs in democracy and the rule of law for all people — and this, like it or not, includes dictators.

Patricia DeGennaro is the International Affairs Specialist and Senior Fellow at the World Policy Institute, and has published several articles on US foreign policy and national security topics. She is often an expert commentator for CNN, MSNBC, Al Jazeera, Fox News, BBC and various nationally and internationally syndicated radio programs. DeGennaro is also a regular columnist on the Huffington Post. She holds an MBA in International Trade and Finance from George Washington University and an MPA in International Security and Conflict Resolution from Harvard University.

Suggested citation: Patricia DeGennaro, US Response to Gaddafi's Death Sets Bad Precedent, JURIST - Hotline, Oct. 28, 2011, http://jurist.org/hotline/2011/10/patricia-degennaro-gaddafi-death.php.



This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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Gaddafi Must Be Held Accountable for Crimes Against Humanity
3:07 PM ET

Richard Dicker, Director of International Justice at Human Rights Watch, argues that any political deal allowing Muammar Gaddafi to avoid prosecution before the ICC would compromise peace and deny the victims of crimes against humanity the possibility of redress...



Amid preparations for the Libya contact group meeting in Istanbul on Friday, which sought a solution to the conflict in Libya, some states reportedly were—behind the scenes—exploring the possibility of offering Muammar Gaddafi the option of internal exile in exchange for relinquishing all power.

The Istanbul talks are a chance to end the nearly five-month-long conflict in Libya. However, to achieve this much-needed peace, governments involved in peace-brokering should bear in mind that the prosecution of people who are wanted for grave crimes should not be bargained away. Indeed, any political solution that avoids meaningful justice will undercut prospects for a long-lasting peace.

On June 27, the International Criminal Court (ICC) issued arrest warrants for Gaddafi, his son Seif al-Islam, and Libya's intelligence chief, Abdullah Sanussi. They are wanted on charges of crimes against humanity for their roles in attacks on civilians, including peaceful demonstrators, in Tripoli, Benghazi, Misrata, and other Libyan cities and towns. Human Rights Watch documented the arbitrary arrests and disappearances of scores of people, as well as instances in which government forces opened fire on peaceful demonstrators after the start of anti-government protests in eastern Libya on February 15.

By issuing arrest warrants, the ICC has taken an important step toward providing the victims of serious crimes in Libya the chance for redress. The ICC's action sends a strong message that the law can reach even those long thought to be immune to accountability. Justice should not be abandoned as efforts to end the devastating conflict are pursued. Human Rights Watch research in countries such as Sierra Leone and Angola shows that the failure to hold perpetrators of the most serious international crimes to account can contribute to future abuses.

The record from other conflicts also shows that arrest warrants for senior leaders can actually strengthen peace efforts by stigmatizing those who stand in the way of conflict resolution. For example, the indictments of Radovan Karadzic and Ratko Mladic by the International Criminal Tribunal for the former Yugoslavia are credited with keeping them sidelined during the Dayton peace talks, which led to the end of the Bosnian war. In this way, accountability for the most serious international crimes can serve not only the interests of victims who want to see justice for their suffering, but also the longer-term interests of peace and stability.

Libya came before the ICC in February as a result of a unanimous referral by the Security Council under Resolution 1970. The states on the council showed support for accountability by voting for the ICC referral. After setting the wheels of justice in motion, council members—among them France, the UK, and US—should stand by the strong action they took in February and reaffirm the message that impunity is no longer an option.

Handing Gaddafi a "get out of jail free card" would not only be inconsistent with the international community's expressed commitment to justice for crimes in Libya, but would also have serious consequences for a durable peace. Sidestepping accountability in Libya would send a message to abusive leaders around the world that if they hang on long enough, all will be forgiven.

Richard Dicker has been the Director of International Justice at Human Rights Watch since its founding in 2001. He has previously been involved in the attempt by Human Rights Watch to charge the Iraqi government with genocide against the Kurds before the International Court of Justice. Dicker also led the Human Rights Watch campaign to establish the ICC.

Suggested citation: Richard Dicker, Gaddafi Must Be Held Accountable for Crimes Against Humanity, JURIST - Hotline, July 15, 2011, http://jurist.org/hotline/2011/07/richard-dicker-gaddafi-warrant.php.




This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



Link | how to subscribe | © JURIST


Regardless of labels accountability must be sought in Libyan atrocities
9:03 PM ET

Gabor Rona [International Legal Director, Human Rights First]: "Libyan leader Muammar Gaddafi is committing atrocities against his people. His armed forces, police and mercenaries have been reported to be systematically targeting civilians in a misguided attempt to quell public demonstrations for democratic reform. A week ago, UN Secretary General Ban Ki Moon said this to reporters in Los Angeles: "I have seen very disturbing and shocking scenes, where Libyan authorities have been firing at demonstrators from warplanes and helicopters. This is unacceptable. This must stop immediately. This is a serious violation of international humanitarian law."

It is gratifying to see the Secretary General's unequivocal condemnation. But there's a problem. International humanitarian law is the law of armed conflict, otherwise known as the laws of war, detailed in the Geneva Conventions. At the time of Ban's statement, there was no war in Libya and so, international humanitarian law did not apply. Because the laws of war permit killing, the Secretary General unwittingly lowered the bar for use of official force even as he rightly condemned it. Whatever crimes were or are being committed by the Libyan regime outside the context of armed conflict, they are not war crimes. Human rights law would be the more appropriate benchmark; specifically "crimes against humanity," defined as a widespread or systematic attack on a civilian population. The "crimes against humanity" label has been properly suggested by High Commissioner for Human Rights, Navi Pillay and other UN human rights experts.

Others have cried genocide, perhaps on the false assumption that what begins as murder - even mass murder - becomes genocide when some magic number of deaths is recorded. In fact, genocide is the destruction of, or attempt to destroy, an identifiable national, ethnic, racial or religious group. While one murder, or even no murders, might still be genocide (for example, forced sterilization of members of the group) genocide is not, at least for now, what's happening in Libya.

In the week since Ban's statement, the situation on the ground has changed. Increasingly organized rebel forces, some of them dissident members of Libya's military, are engaging the government's forces. It's beginning to look more and more like civil war. Once the threshold into armed conflict is crossed, international humanitarian law applies and some important distinctions must be made. Targeting even one peaceful demonstrator in armed conflict is a war crime, while the widespread or systematic targeting of them remains a crime against humanity. On the other hand, humanitarian law recognizes the right of government forces to use armed force against rebels who directly participate in hostilities. In further recognition of the legal equality of parties to the conflict, humanitarian law also contains no prohibition against the rebels' use of armed force, although that would remain a crime under domestic law.

By whatever name, atrocities appear to be taking place in Libya. They must be stopped and those responsible must be held accountable. The Security Council's referral of the Libyan situation to the International Criminal Court and the prosecutor's commencement of an investigation are essential steps on the road to accountability. But as long as we're giving those acts a name, let's use the correct ones."


Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.



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