Libya, the UN, the ICC and the Responsibility to Protect

Marianne Ducasse-Rogier

As Europe has somewhat passively been watching the Libyan crisis unfold, wondering about its impact on European migration flows, and then conveying an emergency meeting to adopt the same sanctions as the UN Security Council 24 hours earlier, the genuine answer to the chaos in Libya seemed indeed to come from the United Nations in New York and (perhaps more surprisingly) Geneva. It nevertheless took close to two months for a serious international reaction to the crises in the Arab world and the subsequent hundreds of deaths. And yet...

In 2005, the UN heads of states and governments gathered at the global summit to celebrate the UN's sixtieth anniversary and solemnly endorsed the 'responsibility to protect' (R2P) principle. This notion states that the main responsibility for protecting their citizens rests with the states, but that the international community can also take appropriate measures if a state fails to respect its obligations in that regard. This is particularly valid when a state is violating the fundamental rights of its citizens, engaging in crimes against humanity, war crimes, genocide or ethnic cleansing. Although the means proposed in 2005 to implement this principle were mainly peaceful, the declaration also mentioned the possibility of resorting to collective action under a UN Security Council resolution and chapter 7 of the UN Charter.

This principle has generated numerous criticisms and fears since 2005, but also hopes. It has, however, slowly moved out of the headlines as international crises occurred without reaction. Darfur, Kenya, Guinea and Ivory Coast: in all of these places, very few voices were heard to invoke the responsibility to protect while civilian populations were the target of human rights' violations and deliberate violence. The only international actor to become involved in these countries and regions in order to punish or prevent the crimes committed by national authorities against their own citizens has been the International Criminal Court (ICC). However, and with the notable exception of the Darfur case (which was, however, six years ago, in 2005), none of those situations has been referred to the ICC by the 'international community'. Two of them are still under preliminary analysis, but have not yet been referred to the Court, while the Prosecutor submitted to (and obtained authorization from) the Chambers the request to open an investigation in Kenya on his own initiative-'proprio motu'. This is why UN Security Council Resolution 1970 is a true revolution in international crisis management. R2P is not mentioned in the resolution: nonetheless, its flavour impregnates the decision. In referring the situation to the ICC, and thus sending a clear signal to unscrupulous leaders that their crimes will not go unpunished, the UN Security Council brings the responsibility to protect to the forefront of the battle to maintain international peace and security in the world.

This may not have been the primary objective of the countries sponsoring the resolution, which also incidentally covers them against potential future accusations of failing to prevent a genocide, but the decision taken on 26 February 2011 is nevertheless a huge step forwards for the UN Security Council, after years of contrition and stagnation following the interventions in Kosovo in 1999 and Iraq in 2003. It is also a major recognition for the ICC. In association with the UN Human Rights Council (another new institution born from the ashes of the UN Commission for Human Rights, which was discredited precisely because it could not take action against states such as Libya, which was elected its chair in 2003), the ICC is now appearing as a primary actor of international peace and security. The fight against impunity has become a concrete way to implement the responsibility to protect.

UN Security Council Resolution 1970 is perhaps not a sufficient answer, and it might not be solving all of the issues. A no-fly zone over Libya or even an international military intervention may well be required as an additional step if the situation worsens in Libya. The 1990s taught us that such a decision has to be backed up by appropriate means in order to be efficient. To date, it is only a (small) part of the R2P implementation measures that has been engaged; this is not negligible, however, contrary to what would be implied by the relatively small media attention that it has been granted. It is a long-awaited demonstration that the fate of civilian populations can still be taken seriously at the UN. This is definitely good news.

Marianne Ducasse-Rogier

Senior Training and Research Fellow

Clingendael CDSP