Libya

zeidCHAUTAUQUA, New York – Without the emergence of a genuine, contemporary Arab philosophy, a top Jordanian diplomat predicted today, stops and starts likely will remain the present and near future in the Middle East. To be precise, the diplomat, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Permanent Representative to the United Nations, told participants in the 7th International Humanitarian Law Dialogs here in upstate New York:

‘When we look at the Arab world, there is no authentic Arab liberal philosophy, and no authentic Arab liberal philosopher, at this moment.’

Citing developments in Iraq since 1968, Zeid said that an earlier such philosophy, the Baath movement, “a strong socialist Arab tradition,” fell apart. The “absence of a genuine drive to articulate something from within” has left a void:

‘If you don’t have an authentic Arab liberal philosophy … what you have in default is the Islamic ideologies which are authentic to the region.’

A new tradition rooted in Arab tradition is essential to “escape” from “mimicking” Western liberal philosophy, he said, noting that citations to documents like Rousseau’s Social Contract invite “the charge that these are important Western ideas. And so he urged liberals to “start writing,” to theorize liberal traditions “in Arab terms” and “grammar.” Until that happens, he predicted:

‘For a long time we are going to see this rather jerky movement backward and forward. … That will be the narrative for sometime to come.’

Zeid’s comments formed the opening lecture for a conference ostensibly devoted to accountability; after all, the centerpiece of the Dialogs is the coming-together of chief prosecutors from each of the international criminal tribunals and courts. Yet Zeid – who helped draft founding documents of the International Criminal Court and served as the 1st President of the ICC Assembly of States Parties – stopped far short of recommending a rush to judgment. Citing history in post-World War II Germany as his example, Zeid called for creating post-conflict “space” within which fighters might come to terms with the conflict, before the onset and investigation of trials. Having spoken of events in Syria, Egypt, Libya, and Yemen, he said:

‘Many of us have been very passionate supporters of inserting courts into events where a tremendous amount of blood has been spilled. I really think we have to revisit this – not reduce support for the ICC, but we need to develop a more nuanced field.’

Given Zeid’s role in the establishment of the ICC, the comments seem to herald a new moment in the field accountability and transitional justice. Should that be, one hopes for a comprehensive, effective, and well-resourced mix of responses – not confusion that amounts to a retreat from the field.

Flag_of_the_United_Nations.svgApparently so. See Seton Hall Law Professor Kristen Boon’s Opinio Juris post on U.N. Secretary-General Ban Ki-moon’s 5th report on responsibility to protect here.

Ban’s 17-page report, dated July 9, 2013, is here. Prior posts detailing the development and invocations of the doctrine of responsibility to protect – and thus placing in context the report’s omission of the 2011 U.N. Security Council referral of the situation in Libya to the International Criminal Court – may be found here and here.

powerobamaNews of Samantha Power’s nomination as U.S. ambassador to the United Nations prompted me to read her biography of that 68-year-old international organization. In truth, the book is a biography of the top diplomat killed 10 years ago when a car bomb gutted U.N. headquarters in Baghdad. Yet because that diplomat had effectively grown up alongside the United Nations – he was born fewer than 3 years after its Charter entered into force, and he would serve under 5 of its 8 Secretaries-General – Power’s Chasing the Flame: Sergio Vieira de Mello and the Fight to Save the World (2008) tells the life story of both the man and the organization. The book thus indicates what Power thought of the United Nations back when she was advising then-Senator Barack Obama on foreign policy.

Emphasized throughout Chasing the Flame is Vieira de Mello’s transformation from a man of humanitarian action alone to one who comes to realize, indeed to embrace, the significance of politics in humanitarian endeavors. Recounting his late-1980s role in repatriating Vietnamese refugees, Power wrote with disapproval of Vieira de Mello’s decision to “downplay his and the UN’s obligation to try to shape the preferences of governments” (p. 69, emphasis hers). She likewise criticized his early ’90s stance of neutrality while serving in UNPROFOR, the hapless U.N. Protection Force mission in Bosnia: “impartial peacekeeping between two unequal sides was,” she wrote, “its own form of side-taking” (p. 179). In contrast, Power conveyed approbation when she wrote that by the late 1990s, after working to return Hutu refugees to Rwanda, Vieira de Mello “was now convinced that UN officials would better serve the powerless if they could find a way to enlist the power of the world’s largest countries” (p. 219). According to Power’s epilogue, the key to harnessing that power is flexibility (p. 516-17):

power‘While many have responded to today’s divisions and insecurities with ideology, Vieira de Mello’s life steers us away from one-size-fits-all doctrine to a principled pragmatism that can adapt to meet diffuse and unpredictable challenges.’

The United Nations, she added (p. 519), has a critical role to play:

‘UN civil servants had to become more self-critical and introspective, accepting what had taken Vieira de Mello years to learn: that they are agents of change themselves and not simply the servants of powerful governments.’

In this book as in A Problem From Hell: America and the Age of Genocide (2002), Power put much blame on the U.S. government. The United States’ perception of its own self-interest often appeared short-sighted and inept. U.S. officials’ resistance to the International Criminal Court won them no favor. Ineptitude was especially evident in the U.S.-led invasion and occupation of Iraq – events that would place Vieira de Mello and other humanitarians in Baghdad on the fateful date of August 19, 2003.

Power herself began working for the U.S. government not long after Chasing the Flame was published. As Special Assistant to President Obama and Senior Director for Multilateral Affairs and Human Rights at the White House-based National Security Council, she spent years working on issues at the heart of her earlier writings.  (An account of a central effort, establishment of an Atrocities Prevention Board made up of officials from various U.S. agencies, was the subject yesterday of a New York Times article.) She’s reported to have played a pivotal role in the U.S. decision to intervene in Libya based on U.N. Security Council resolutions that invoked a concept discussed in her book, the responsibility to protect; to be precise,at p. 528 and elsewhere, Power stressed Vieira de Mello’s espousal of the emerging doctrine. These experiences may have adjusted Power’s views on the relation between the United Nations its member states. Yet most likely her 5 requirements for foreign policy success, distilled from her account of Vieira de Mello’s life, remain a constant. Quoted in full from p. 523, they are:

  • Legitimacy matters, and it comes both from legal authority or consent and from competent performance.
  • Spoilers, rogue states, and nonstate militants must be engaged, if only so they can be sized up and neutralized.
  • Fearful people must be made more secure.
  • Dignity is the cornerstone of order.
  • We outsiders must bring humility and patience to our dealings in foreign lands.

Did regime-change overreach in Libya seal the awful fate that civilians have endured these last years in Syria? A new article in a Beijing-based law journal, China Legal Science, strongly argues “Yes.”

liAmong the 5 permanent members of the U.N. Security Council are 3 from the West – Britain, France, and the United States – plus China and Russia. The latter 2 countries have incurred much criticism for blocking Council action on Syria. ‘Way back in October 2011, for example, the United States’ Permanent Representative to the United Nations, Susan E. Rice, “storm[ed] out” after the latter 2 P-5 countries refused to join what she called “a watered-down resolution” against Syria. Criticism has tended to center around Russia’s commercial and geopolitical relationships with Syria. But the new article, “Responsibility to Protect: A Challenge to Chinese Traditional Diplomacy” (no. 1-2013, pp. 97-120), indicates that other concerns also have been at play. Asserts Dr. Zhu Wenqi, Professor of International Law at Renmin University (formerly a diplomat in China’s Ministry of Foreign Affairs and an attorney in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and holder of a doctorate from the University of Paris II):

‘The Council’s failure to take action in the Syrian case is because of reflections by China and Russia upon what happened after the resolutions adopted by the Security Council in the case of Libya.’

Zhu cites Resolution 1970 (Feb. 26, 2011), which imposed certain sanctions against Libya and referred the situation to the International Criminal Court, and Resolution 1973 (Mar. 17, 2011), which authorized member states “to take all necessary measures … to protect civilians.” China voted in favor of 1970 and abstained from voting on 1973. In positing “the Libyan authorities’ responsibility to protect” its people, each resolution invoked the responsibility to protect doctrine. With admirable clarity and conciseness, Zhu recounts the 15-year history of that doctrine, by which:

► 1st, each state has a duty to protect its own population; and

► 2d, should a state fail in its duty, the international community has the responsibility to step in and protect the threatened population.

What happened right after adoption of Resolution 1973? NATO mounted a many-month military operation, which ended only after Libya’s longtime ruler, Muammar Gaddafi, was deposed, put on the run, and ultimately killed. The Security Council had not made regime change an explicit aim in either Resolution 1970 or Resolution 1973; a month into the intervention, however, an op-ed by the leaders of the Western P-5 members insisted that Gaddafi “must go, and go for good.” Zhu writes that this ouster effort led China to criticize the resolutions as “pretextual” and as costly in the numbers of civilians harmed.

The Libya lesson has prompted China to resist calls for intervention in Syria, Zhu states. (credit for AP photo above, captioned “Chinese Ambassador to the UN Li Baodong sitting with his hands down as Security Council members vote on resolution to back an Arab League call for Syria’s Assad to step down, Feb. 4, 2012”) What’s more, it has led China to revert to skepticism toward the doctrine of responsibility to protect. In an account that echoes writings of Judge Xue Hanqin on which I recently posted, Zhu sets out not only the value that China places on the sovereignty guarantees in Article 2(4), (7) of the U.N. Charter, but also the relation of that value to the desire to maintain independence from “‘the remnants of imperialist and colonialist oppression'” (quoting the late Wang Tieya). Quoting from this article, Zhu writes that China’s opposition to regime change in Syria is seen as reinforcing the Charter:

‘In the eyes of many Chinese evaluators, China’s attitude toward the Syrian issue actually demonstrated that China “is assuming more responsibilities and obligations” in international affairs.’

Amid this week’s reports that the United States may be backing off from demands for the resignation of Syria’s President, Bashar al-Assad, the article is timely – and its explication of the Chinese legal perspective on global security has value any time.