2-23-2011By Gabor Rona
International Legal Director
Libyan leader Muammar el-Qaddafi is committing atrocities against his people.
His armed forces and police are reported to be systematically murdering peaceful protesters in a misguided attempt to quell public demonstrations for democratic reform. Justifiable outrage has taken many forms, not all of them entirely productive.
UN Secretary General Ban Ki Moon, for example, said the following 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. For the moment, there is no war in Libya and so, international humanitarian law does not apply. Because the laws of war permit killing, the Secretary General unwittingly lowers the bar for use of official force even as he rightly condemns it. Whatever crimes are being committed by the Libyan regime, they are not war crimes. Human rights law would be the more appropriate benchmark.
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.
The correct aspect of international law to invoke is “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.
The International Criminal Court in The Hague is empowered to prosecute war crimes, genocide and crimes against humanity. Perhaps a good case can be made for the Security Council to refer to the Court the question of Qaddafi’s criminal responsibility for crimes against humanity. But the inappropriate invocation of other international law frameworks such as humanitarian law (war crimes) and genocide merely confuses the issues, provides the perpetrators and their supporters with a convenient hook to deny the charges, and disserves the public interest in understanding applicable international law.
By whatever name, official acts of mass murder appear to be taking place in Libya. They must be stopped and those responsible must be held accountable. But as long as we’re giving those acts a name, let’s use the correct one.