Libya and the Codification of the Crime of Aggression

There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.

In undertaking his investigation into international crimes committed since February 15th, the ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left,photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).

War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict.Common Article 3, whose prohibitions are listed as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.

All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict

which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

It explicitly excludes situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.

The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.

Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab Leaguereportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention.

This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.

The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...

The amendments go on to list the following as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State ...;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; ...
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State...

Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of

• the prosecutor (exercising prosecutorial discretion),
• the Pre-Trial Division (which would need to approve aggression charges), and
• the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).

In any case, the ICC is poised to enter the debate about such humanitarian interventions in the event that they occur once the aggression amendments are operational. The situation in Libya offers yet another potential scenario in which a deployment of armed force might be warranted and beneficial, but may not—for whatever reason—be able to garner Security Council approval.

blood chocolate the dark side of valentines day

Posted By Suzanne Merkelson Monday, February 14, 2011

While there will always be those who would rather chuck those chalky candy hearts than eat them with their sweetheart on Valentine's Day, anti-V-Day sentiments usually focus on how big, evil corporations make couples spend unnecessary cash on each other and how single people hate themselves. But how about the global implications of the holiday?

While examples of romantic gifts gone wrong like conflict diamonds are unfortunately already ubiquitous, some groups are spending this Valentine's Day raising awareness about the global impact of the cocoa trade. This year the focus on cocoa is especially relevant thanks to an ongoing political crisis in the world's biggest cocoa supplier: the Ivory Coast, which produced 1.2 million tons of chocolate's main ingredient last year. Avaaz, an activist group, has been pushing Hershey, Nestle, Cargill, and Cadbury, to boycott Ivorian cocoa, the trade in which is helping to prop up President Laurent Gbagbo's pariah regime.

The European Union's sanctions on the Ivory Coast's ports extend to cocoa. Last month, Alassane Ouattara, the internationally recognized winner of the most recent presidential election, embargoed cocoa exports for a month, in an attempt to cut off support to Gbagbo. He's threatened to extend the ban if Gbagbo doesn't leave office.

Another activist group, Green America, is pushing for increased awareness of the use of child labor in cocoa production. According to the U.S. State Department's 2009 Human Rights Report on the Ivory Coast, nearly a quarter of children between the ages of 5 and 17 who lived in cocoa-growing regions had worked on a cocoa farm, often in hazardous conditions. Green America suggests that buying Fair Trade chocolate can help combat child labor, as well as support small farmers and lessen environmental impacts.

Meanwhile, according to Reuters, cocoa futures prices have risen more than 20 percent since Ivory Coast's disputed Nov. 28 election. And the continuing ban in the Ivory Coast means prices are likely to continue to rise.

This year, instead of blood diamonds, chocolate … whatever, try giving your special someone a hug instead. It just might be sweeter.

North African People Power

North African People Power

After more than 23 years in office, Tunisia’s President Zine el-Abidine Ben Ali, “Zinochet”as he was dubbed, was forced from power yesterday by popular protests.

These protests began after Mohamed Bou’aziz, an unemployed university graduate in the town of Sidi Bouzid, attempted to burn himself to death on December 17 when the produce he sold on the street to earn a living was confiscated. (He later died of his injuries.)
How could Mr. Bou’aziz know what the implications of his desperate act would be in just one month’s time? His sacrifice inspired huge demonstrations that spread across the North African country, organized in part through resourceful use of Twitter and Facebook. These were met with brutality by the security forces, a grim reality that simply provoked more protest. Unarmed demonstrators were regularly teargassed. Many were arrested. As many as 70-80 people were shot or beaten to death. But the protesters marched on.

This largely peaceful, democratic revolution (on the side of the opposition at least) was not led by or inspired by the fundamentalist movements that have tried to claim the oppositional space in many Arab and North African contexts in recent years. It was instead, by all accounts, a largely secular appeal for real political reform and for social justice. As reflected in today's front page of the Paris daily Liberation (above; credit), women, many unveiled, were increasingly visible in the protest marches.

One can hope that today’s initial victory of North African people power will serve as an example of what is possible in other countries in the region. This is what Noam Chomsky has called the threat of a good example. One dictator brought down by popular revolt – no dictator is safe now.
Hope is a powerful, incandescent force.

Hope in the political realm has been a rare commodity of late in this part of the world. Bou’aziz’s revolution may have brought that back. But, just as the power of hope should not be underestimated, neither should the danger of hopes unfulfilled.

It is unclear exactly what the future holds for Tunisia now.

Mohammed al-Ghannouchi, the Prime Minister who has also been in power since 1999, has taken over as President since the departure of ousted President Ben Ali, whom Saudi Arabia "'welcomed.'" A state of emergency was declared, with soldiers guarding public buildings, tanks on the streets of Tunis, and prohibitions on public meetings.

The government must respond to the grievances that first provoked these events – creating jobs, meeting human needs, fostering equality of all kinds, enabling freedom of expression and association, institutionalizing real social democracy – rather than simply engaging in window dressing that preserves the Tunisian system with a different figurehead.

The international community, and the U.S. government, should support this process.
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The biggest external impact of events in Tunisia could come in neighboring Algeria, which Ivisited twice last fall, and which witnessed scattered, sporadic émeutes– riots – throughout 2010. The country has just experienced a week of widespread, intensive youth protests that seem to have been the result of a similar long-simmering anger over high unemployment, corruption, economic disparities and la hogra, the arrogance with which officials often treat ordinary people. (photo credit)

However, the immediate catalyst was likely the sharp increase in the price of staples like cooking oil and sugar at the beginning of the year. See this useful discussion of the possible causes by journalist Chawki Amari writing in El Watan, one of Algeria’s leading daily newspapers.

Some have suggested that the initial disturbances may have been provoked – perhaps by private interests that control the sugar and oil markets and were unhappy over government regulatory action in this arena. It is hard to say.

However, even if this were the case, legitimate popular anger clearly took over from there. Some - only some - of the recent protests turned violent with young rioters throwing stones at police and passing cars, burning tires and looting shops.

Unfortunately, the avenues for peaceful protest are stifled in Algeria due to the continuing imposition of a state of emergency since 1992.

For example, following the week’s protests, last Sunday, January 9, a civic group called the Intercommunal Association of Aïn Benian-Staoueli tried to hold a peaceful gathering in the coastal town of Staoueli about 20 kilometers outside of Algiers. Their efforts were forcefully thwarted by “preventive” arrests. Algerian writer and journalist Mustapha Benfodil, who was attempting to cover the event, was among those arrested. He later recounted his experiences in El Watan, offering an eyewitness account of la hogra in action. As he notes, those picked up by the police that day were suspected of the rather kafka-esque offense of “attempted peaceful gathering.” (They have since been released – though across the country many young protestors remain in jail.)

While the roots of Algeria’s emergency law admittedly lie in the terribly real struggle with armed fundamentalism that consumed the 1990s and claimed as many as 200,000 lives, and the fight against terrorism in Algeria remains a concern in light of the current activities of Al Qaeda in the Islamic Maghreb, today’s emergency regulations are often used instead against peaceful government critics who have nothing whatsoever to do with such movements. (During the recent protests, attempts by fundamentalists to rally demonstrators to their banner failed resoundingly.)
In fact, the Algerian government now uses the state of emergency to justify the banning of public gatherings of all kinds.

For example, when I visited Algiers in late November to attend a meeting on a proposed draft law on violence against women, the meeting was declared officially non-authorized the day before it was to take place in the central Hotel Safir. Hence, it was held quietly instead in a small room at a more remote location, with many participants unable to attend. It is shocking that a meeting of women working to stop violence against women requires an official permit. Who exactly is being protected by “emergency” legislation in this scenario?

For Algeria’s democratic opposition, the current challenge is to find a way to translate this month’s explosion of youthful anger into positive political change, and to maximize the jolt of energy from events in next door Tunisia.

According to Benfodil, the former task requires the mobilization of civil society, trade unions, academics, the middle class, NGOs and others, “if they truly want to transform this impetuous winter into a democratic spring…”

Some believe that it may be difficult to make a real political transformation as long as Algeria’s government possesses the significant material resources it uses to selectively placate sectors of the population. But attempts to publicly speak out for change continue, as witnessed by a peaceful youth demonstration today in Algiers. And it remains to be seen what the impact of the winds blowing from Tunisia now will be.

While in life Mr. Bou’aziz was given little opportunity to have an impact on society, in death he may have helped to change not only his own country, but the entire region.