Hey, we'll get going. No, it is Cheney, Ryan.
I work with Eli. I fixed an armed conflict.
Let me explain briefly the format that our speakers have chosen for today.
Each of them will speak for 15 minutes, and then we will have just a few moments for comments of the speakers on our work.
What the others have said. Then we will go to the question discussion period.
Let me ask two things. One is that when people ask a question, they might identify themselves briefly.
And the other thing is that they might keep their questions appropriately brief so that we can have as much discussion as possible.
We will go until 230 or then take a very short break for people who will need to leave that.
And then we'll probably continue on for about another 15 minutes after that.
So our first speaker is Professor John four Welch, who is from politics and International Relations, and she will begin.
Great. I'm just going to apologise in advance. I have a very persistent cough right now.
And so if I'm coughing all the way through. You'll have to bear with me because it happened to me yesterday, but I still really wanted to come.
So it's a great it's a great pleasure to sort of be here and reflect on something that's happening real time.
So you'll forgive us if some of the things that we say who's already outdated, but we're really looking forward to having a dialogue with you.
What I want to do is really two main things. One, I'd just like to reflect on what is unusual, relatively unusual about the Libyan case.
And secondly, I want to focus most of my remarks on what the Libyan case means for the principle of the responsibility to protect.
And I'll do that primarily from a political science perspective, more looking at some of the politics and issues around norm development.
So just reflecting very quickly on what's unusual about the Libyan case and the international response,
I think there's three things that are unusual about it.
The first is that the council resolution 1973, which authorised all necessary measures to protect civilians,
did so without the consent of the Libyan state.
The Council's intentions in this respect could not be interpreted as anything other than coercive.
Now, I'm not saying that the Council hasn't come close to doing this in the past.
It has, but it hasn't technically done that in Somalia in 1992, it did authorise action without consent.
But again, at that point it was alleged there really wasn't a partner in Somalia to give that consent.
And with Operation Turquoise, it enjoyed the consent of the interim government in Rwanda, as well itself as its armed forces,
and in more recent cases such as Haiti, the Democratic Republic of Congo and Cote d'Ivoire.
While the Council has authorised the use of all necessary means to protect civilians again,
those original peacekeeping missions operated with the consent of the government.
So I think this is unusual is particularly unusual because in Darfur, correct me if I'm wrong in theory,
of course, the Council's actions under Chapter seven don't require consent.
But the Council has acted almost as if they do in the past for pragmatic reasons and sometimes for principled reasons.
The second thing that's unusual about the Libyan case was the extraordinary clarity of the threat of mass atrocities.
Not since Rwanda, I would argue, was the regime signalling so clearly its intent to commit crimes against humanity.
And there was in some ways direct echoes of Rwanda.
Gadhafi telling the world officers have been deployed in all tribes and regions so that they can purify all decisions from these cockroaches.
And any Libyan who takes arms against Libya will be executed.
Now, I'm not saying there haven't been directed efforts taken against civilians,
but I'm talking here about the rhetoric and the clarity of the rhetoric.
Usually regimes bent on mass atrocities try to cover their tracks a bit more so than the Libyan regime did.
Lastly, I think what's unusual about this case, and I'm going to say a bit more about it later,
is that diplomacy produced a decisive response in a relatively short period of time.
I think not since East Timor in 1999 have we seen the council come together to act so quickly, relatively quickly compared to other instances.
Darfur being, of course, the most prominent example. And again, I'll try to say more.
About this. What's less clear is how the crisis in Libya and NATO's ongoing campaign will affect
the fortunes and trajectory of the principle of the responsibility to protect.
As I'm going to suggest near the end of my talk,
I think there have been costs to the diplomatic strategy of those who are supporters of that principle within the U.N.,
a strategy that has focussed more recently on so-called root cause prevention
and capacity building of states rather than the kind of hard edge of RTP.
And I'm going to come back to that again in the conclusion to my remarks.
But it's also important for us to remember that Resolution 1973 mentions only
the responsibility of the Libyan authorities to protect the Libyan population.
It doesn't talk specifically about the international community's responsibility to protect.
Instead, it uses the language of protection of civilians and in that sense, is not unusual from previous council resolutions.
What I think the Libyan case will do is significantly shape the parameters within which the debate over the responsibility
to protect and and how it might be operationalised is going to be conducted going forward and for the remainder.
So much for my last 10 minutes. I'm going to give you three ways in which I think it's going to do that.
Firstly, I think it's going to shift the organisational focus point for the discussion of our two P
within the United Nations and it's going to reassert the central city of the Security Council.
Now the 2005 summit outcome document essentially made the responsibility to protect, which had been a much more general concept,
a U.N. responsibility to protect it, rooted in allocated the responsibility to protect to the Security Council.
And in that sense, many would argue it didn't create any new legal obligations.
But simultaneously, the outcome document identified the General Assembly as the organ that would continue discussion of RTP.
And this was a nod to dissenters of the principle who wanted to ensure that the concerns of developing countries about this notion remained paramount.
And so, in fact, it has been the General Assembly and not the Security Council that has advanced thinking on the responsibility to protect,
and that has held a number of debates about its content and its meaning.
And in fact, there's been a lot of resistance to the council discussing this principle at all.
And so, aside from endorsing the outcome document, the Council has been silent on the responsibility to protect up until now.
And instead what it has done is elaborate and effectively implement the protection of civilians in armed conflict agenda,
which, while similar to the responsibility to protect, is not the same.
The protection of civilians in armed conflict is both narrower and broader than responsibility to protect.
It's nearer because it only deals with situations of armed conflict,
whereas the responsibility to protect refers to for crimes that can be in theory and also in practice,
committed outside the context of an armed conflict. But it's also broader.
It, of course, in that it refers to things designed to protect civilians that go beyond their protection from these for mass atrocity crimes,
crimes against humanity, war crimes, ethnic cleansing and genocide.
And the Council, I would argue, by concentrating on situations of armed conflict,
has been trying to keep its eyes focussed and on more clearcut threats to international peace and security,
as opposed to the more contested area of mass human rights violations,
which is more the broad rubric of of our two P and in fact and this is interesting it came out of some of the interview work I've been doing.
Those countries that are supportive of the protection of civilians agenda within the Security
Council have consciously avoided the association with the principle of our to peace.
They've said to me confidentially, that principle is toxic.
We do not want to associate for the protection of civilians in our conflict, which can generate consensus with that principle.
Now, I think Libya may be changing all of this in interesting ways.
And let me just say three things about that before I move on to my last two points.
First, I think it was clear from the beginning that Western countries,
and particularly if you look at the NATO alliance, would not countenance action without a council mandate.
The Nardo chief very specifically said this during the days prior to 17,
1973 passage that the alliance would assist in protecting civilians only if there was a demonstrable need,
a clear legal basis and strong regional support.
With heavy emphasis on the emphasis on the second dimension.
So to put it another way. No more crossovers, right?
Secondly, I think as as many supporters of our to have hoped.
Permanent five members with concerns about the implications of this resolution abstained rather than blocked council action.
We're beginning to understand the reasons for this, but I think paramount among them were the views of the Arab League crucial to this,
the perception that it was calling for intervention, but also the views of African states who were sitting as non-permanent members on the council.
And I think their views have been given not sufficient attention when you consider that the African Union as an organisation,
declared its strong opposition to military intervention of any kind.
Finally, I think the other interesting thing about this is that the makeup of the council
during the deliberations over 1970 and 1973 approximates that composition,
which is sometimes said by proponents of council reform to be the ideal composition of the council.
In addition to the P-5, we had Germany, Brazil, India and South Africa all regional powers with global aspirations.
And it's sometimes been said if you could design a council from scratch, you'd want them on in terms of representativeness.
So the fact that timely action could be agreed upon by that group may give interesting impetus to debates about council reform.
Let me just quickly, in my last 5 minutes,
move on to the last two things that I think the Libyan case will do to discussions about or to p in its implementation.
I think the second aspect of Resolution 1973 in the air campaign is the degree to which it
shifts the nature of the UN's involvement from one of at least professed impartiality,
which is one of the UN's hallmark principles of peacekeeping to one of taking sides.
Now, I would argue here that the very notion of our two peak crimes, that it is crimes that we are preventing and responding to,
makes that move away from impartiality, inevitable crimes as opposed to parties to a conflict, have perpetrators.
They also have victims. And the actions required to change the incentives of those perpetrators and the degree of vulnerability of those victims move
the United Nations regional organisations and state diplomats out of a very comfortable zone of mediation and compromise.
Even if some would argue this stance of impartiality has been an illusion in many other cases, this case makes this very explicit,
and you can see this by looking at two aspects of the resolution, especially two aspects one of 1970 and one of 1973.
The most obvious, and I know those of you who are interested in criminal justice will have more to say about this.
These resolutions identify particular individuals as the targets of action, both in terms of sanctions and criminal justice.
And as many have noticed, not least Philip sounds, the identification of Gadhafi,
the issuing of an arrest warrant, is going to make his orderly departure from Libya much less likely.
But in addition, and I owe this point to DAPL, I've been thinking about it ever since he said it is Resolution 1973 talk just not about the whole,
but it's doing it for the protection of civilians, but the protection of civilian populated areas.
And by doing that and President Obama's comments the following day echoed this by doing that,
it was effectively saying to one side in the civil conflict, there are certain cities and areas you cannot attack.
There are certain things you cannot do. In my mind, this moves us from protecting civilians broadly conceived into choosing one side.
Now, these tensions, I think, have begun to reveal themselves in the coalition of states who supported 1973.
And we have a very open fissure between those who say this crisis can only be resolved with
the departure of Gadhafi and those who believe in theory that the protection of civilians.
Can be honoured through ceasefire and negotiation as well.
I think these tensions are going to only deepen. We're already seeing real concern about whether air power will do this on its own,
whether it will have to expand the range of targets, as David Richards suggested on the weekend to infrastructure.
And also whether we will actually have to put boots on the ground.
My very last point in 2 minutes is that Libya is going to help us elaborate and I think appropriately the sharp end of our to prevention
and response in order to gain political consensus around the notion of responsibility to protect the current secretary general.
And the supporters of the principle have wanted to downplay its coercive possibilities.
They've wanted to suggest that it can be done through capacity building,
building up the capacities of states to get to the point where they don't commit these atrocities.
But the reality is that pillars, so-called pillar one and pillar two dimensions, and I'm happy to elaborate in question on these, may not be enough.
And what we need to do is both researchers and policymakers is to begin to consider what more targeted and
coercive tools of crime prevention and response entail and what dilemmas they create for international actors.
And I think if the Libyan case can contribute further thinking on these questions,
then it truly will have advanced our understanding and implementation of the principle of a responsibility to protect.
So I'll stop there. Thank you. Our next speaker is David Roden, who is a senior fellow at Elac.
That's right. Thank you. Well, my remarks,
I think you're going to pick up very nicely where Jennifer left off said what I'm going to try to suggest is that Libya creates the potential,
I think, more than potential to really significantly concretise and develop our understanding
of responsibility to protect and humanitarian intervention more generally.
And I say perhaps only potentially, because I fear that we may be and we may already have missed the opportunity to to learn the
most significant lessons that we potentially might be able to learn from from this case.
But what I want to do is say a little bit about three things, first of all, about criteria for intervention,
and secondly, about the appropriate kinds of strategic objectives that we ought to be pursuing through an intervention.
And then finally, something about the tactical aspects of the intervention.
And I am going to be talking from the perspective of how we think about the morality of these cases rather than specifically the law and the legality.
Although I take it that a lot of these things or these ideas, if we wanted to take them forward,
would have to be embedded within some kind of legal structure as well.
I should also just say that this is very much a process of thinking aloud.
I'm going to put forward some ideas, some reasonably provocative, and I'm not sure that I want to commit myself fully to that.
To say the purpose of this is very much to to start of the day, I'll be very interested to hear what the reactions are.
So especially all of you out there in iPod Land, do not take these remarks as as full and settled views.
But the starting point I want to take is that the intellectual debate on responsibility to protect, I think, has really been one.
I think that we all now accept and understand that the sovereignty of states is
conditional and that when states engage in massive abuses of their citizens,
they can lose rights against sovereign intervention and take that as a starting point.
But massive questions obviously still remain about when to intervene,
how to intervene, who should intervene, and the way in which it ought to be done.
And there are persistent and very real worries about the what's seen as the selectivity of intervention.
Why are we intervening in Libya? Why was intervention so slow in Cote d'Ivoire?
Why are we not seeing a similar response in Syria?
Now, I think one way of addressing those concerns is to try to move, to tighten up or concretise the criteria under which we intervene.
So I want to start by just laying out two, as it were,
conceptual distinctions that I think can help us think about the issue of criteria for intervention.
The first one is that when we think about the permission to intervene, in other words, liability to intervention,
we have to distinguish between liability at the level of the sovereign states on the one hand,
and the liability to attack of the actual targets we attack on the other.
If you're going to mention cases. Those two might not line up perfectly.
So we might have a situation in which the state or members of the regime have ordered attacks on civilians.
And therefore, following the logic of the hardship, we might want to say, well,
the state itself has forfeited its sovereign rights against intervention.
But it might not be the case that certain members of the security forces, for example,
those that are manning air defence systems in a remote part of the country,
it may well be the case that those individuals themselves have not done anything to make themselves liable
to being attacked through an air attack or whatever it may be in other cases that line up almost perfectly.
When you have soldiers that are itself engaged in attacks on civilians, then those two will line up.
We have to we have to keep in mind that when we thinking about thresholds for intervention, there is a double threshold that has to be met,
one of which has to do with the criteria for when the state itself is liable to intervention.
The other has to do with when the particular targets we go after are themselves liable to be hit.
And I'll come back to this question at the end when I when I have said very few words about about the idea of targeting senior regime figures,
in particular Colonel Gaddafi. That's the first distinction I want to bear in mind.
Second distinction is that I think when we ask the question, when is it appropriate to intervene?
We're actually asking two questions. First question is when do we have a permission to intervene?
In other words,
when is it the case that the state to stick to the case of the state no longer has sovereign rights against intervention in its internal affairs?
My first question then is about the permission to invent. The second question is the question about when intervention may be presumptively obligatory.
All right. And when we say obligatory, we mean not simply that there is a permission to intervene.
The state is liable to that intervention, but stronger than that, that there is a presumption in favour of intervention so that the failure intervene,
to intervene would itself be a moral wrongdoing that might in turn have various normative consequences.
Now, when you think about it in that context, it seems to me that there is no reason to assume that those two different decision points, right?
The point at which somebody in which intervention becomes permissible and the and the
and the point at which it becomes presumptively obligatory would be the same point.
It seems to me entirely possible that there may be a lower threshold for permission to intervene,
but that after a certain higher threshold, intervention may become presumptively obligatory.
Now, let me just right at the outset lay out what are some very obvious problems with this talk,
first of all, about thresholds and secondly, about presumptions.
Why don't we talk about what I think about a presumptive obligation rather than an obligation?
Well, obviously, because whether an intervention is in the final analysis,
either permissible or obligatory will depend must depend not simply on the magnitude of the crimes being committed,
but also on the prospects of success. So we always have to bear in mind that however we specify these criteria,
however we specify the thresholds we always have to balance the the crime that we're attempting to prevent
against the likelihood of our succeeding and succeeding in ways that that have tolerable moral costs.
So we always have to remember that any intervention has to be necessary,
by which we mean it has to be the case that there is no morally less costly way of achieving the same good.
It has to be proportionate by which we mean that the harms we inflict in the course of
that action do not outweigh the good and what is entailed by necessity in proportionality,
that there is a reasonable prospect of success. So that has to be a that has to be a kind of parenthesis to that, to that, to the whole account.
And of course, what that means is that a threshold or a criterion can never be simply automatic.
It can never be the case that once, once abuses have passed a certain level, that there will be an automatic obligation to intervene.
But what I think it does helpfully do and frame is that is it shifts the debate on what the potential dealbreakers for intervention can be.
If we recognise that there is a certain point after which obligation rather intervention becomes obligatory,
then if one is to argue against obligation, sorry intervention, you have to do so in terms that will be specifically about the efficiency,
necessity and proportionality of the action, rather than, as you might have in that domain, below obligation,
the domain of pure permission where the debate can be and often is much more about national self-interest.
So that would be the purpose of of thinking specifically about two sets of thresholds.
And there are obvious and well-known problems when.
You try to specify thresholds that for intervention that have to do with perverse
incentives and of a list two of those simply one possible perverse incentives
that you get with specified thresholds is that you create an incentive for the
abusing state to push that as close as possible to the level of the incentive.
If they know that intervention becomes permissible, say,
at the level of 100 civilian deaths and it becomes obligatory at the level of 1000 civilian deaths,
they will have an incentive to push up as close as possible to that threshold level without crossing it.
Conversely, those who and the those opponents of the regime who would benefit potentially from triggering an international intervention
will have an incentive to provoke the regime to try and get them to respond in ways that will push them above the threshold.
And then there are obvious problems as well about how do you how do you specify what that threshold would be?
Should it be a numerical threshold? Should it be 100 or 1000 to 10000?
What should it be? If it's not a numerical threshold, what else would should be there in that?
Max, let me set the answer.
I have absolutely no way of providing good, analytical or fairly careful arguments as to what those numbers should be or they should be numbers.
My gut feeling tells me that something like 100 is probably around what we want to have for a threshold mission.
Something like getting into the thousands is where you want to have a presumption, not simply of a condition, but of an obligation to intervene.
But as I say, I have no way of defending those with robust arguments.
So it may well be a matter of looking for some kind of equilibrium or consensus.
And I have no way of knowing whether whether that some consensus or equilibrium can can be found.
But maybe it's but I want to bracket that question of whether whether we ought to be thinking
about thresholds and whether those thresholds ought to be considered as numerically,
those numerical or otherwise.
From the more basic point, I think, which is that we do need to think about two different decision points, two different sets of criterion.
And it may well be that we have to specify those in other ways and with thresholds,
but but it seems to me that there is some utility in exploring the idea of a more precise threshold.
So the second question is, if we have determined that intervention is appropriate, then what?
Or the objective of that intervention to date? And it seems to me that Libya is instructive in this case as well,
and that the way that the UN Security Council specified the objective of the intervention struck me as being absolutely right in this case.
But what worries me about the way that the intervention has been undertaken is
that it has drifted significantly from the way the Security Council specified it.
Now, remember, in the end,
the original resolution permission was given to use all necessary means short of an occupation in order to protect civilians.
Now, the reason why I thought that was the right way to specify the strategic objective is that it did not aim
at the kinds of objectives that seemed most objectionable about the interventions in Iraq and Afghanistan,
which is that they were attempts to externally overthrow a domestic political regime and replace it with another one.
What the Security Council mandate said in contradistinction was that the interveners
had the right to take necessary means to protect civilians from attack and from harm.
Now, in the context of Libya, I think that there was a very,
very good chance that if they had been successful in undertaking that mandate, it would have had very significant political effects.
Right.
If it would have been possible to protect the civilians and citizens who were in the first weeks of the crisis, engaging in forms of civil protest.
And like we saw in Tunisia and Egypt, if it would have been possible to protect those civilians from attack by regime forces,
I think it's very likely that the end result would have been regime change in Libya, as it had been in Tunisia and in Egypt.
But it would have been a very, very different kind of regime change.
It would not have been the regime change of foreign armies taking sides on one side in a civil war and overthrowing a government.
That to me is the crucial difference.
It seems to me that Libya offered us the chance of developing a wholly new conception of what intervention strategically ought to be aiming at.
And to my mind, the right way to specify that was to say that the use of force can be appropriate
in order to open up and protect a space for an indigenous and peaceful.
All domestic politics. That's a very different proposition from offering to provide the air combat wing for one side in the Civil War,
which is effectively what we've ended up doing.
I think that the risks and the strategy we have chosen are enormous, both politically but also morally.
We're choosing one side in the Civil War when we have very little understanding of what the side we are siding with actually stands for.
And and and I think that we are violating the impartiality, which is, Jennifer said, had always been at the heart of a view in policy.
And just to pick up. Just very briefly on a couple of things that Jennifer said that I thought was very interesting.
She said that the intervention in Libya looked as though it was overturning a long held policy of impartiality.
But then you made the point that in the context of crimes, in distinction to warfare, impartiality might not be actually an appropriate response.
Now, I would I would maybe nuance a little bit and say in the context of a criminal attack,
to to be impartial may actually require abandoning neutrality.
So, so, so preventing the criminal from executing a crime is to step back from neutrality,
but it's not necessarily to step back from impartiality or impartiality.
Understood as properly, appropriately.
Exactly. Treating both sides equally. Might actually mandate an abandonment of impartial neutrality.
So I probably would want to kind of nuance that by saying that although the action was not neutral,
it could still be understood as impartial in that respect.
So that's what I think was the opportunity in terms of defining the strategic objective of the intervention.
I fear that it is probably a lost opportunity.
I'm not sure whether we can actually get back to that role of simply providing impartial
protection for civilians and trying to open up that space for peaceful civilian politics.
I'm not sure we can get back to that from where we are at the moment,
but I think that that was the opportunity we had in the opening days and weeks of the campaign.
And then just very briefly, like I say, a couple of words on. On tactics and on targeting in the last couple of minutes.
So one question that's been raised by a number of people is whether we would be permitted to or whether we ought to target
very senior figures within the regime and whether potentially Colonel Gaddafi himself may be an appropriate target.
Now, on one way of thinking about the ethics of war that I've been very persuaded by,
which says that liability to attack in war is essentially a matter of responsibility
for wrongful actions that are appropriate to resist or combat with force.
On that view of thinking about liability,
then it seems perverse to say that you you there ought to be a prohibition on targeting the the senior members of regimes or even the head of state,
if anybody is there. I mean, if we think that there is that the reason, the rationale for intervention is that crimes have been committed.
If anybody's responsible for those crimes, then it is surely the head of state is Colonel Gadhafi, much more so than, for example,
an armed serviceman who might be doing nothing more than manning a radar station or an, you know, air defence system.
We've taken no part in actual attacks on civilians and whose motivation may be unclear, who may be acting under duress or coercion and so forth.
The responsibility of Gadhafi seems much, much greater than than those much lower down uniformed servicemen.
So why what they said is meant to be liable to attack and the and the head of state not.
I think that's probably a little bit too easy.
I think you have to recognise that the targeting of head of state would have very profound and momentous consequences.
I mean, you only need to think about what the reaction to our state, our own state, would be and how much we may dislike the serving prime minister,
but what the reaction psychologically, politically, morally would be within our state if that kind of action was taken.
It's a very, very profound step to take.
So the question is, could we think about ways to make administrative all in a in an acceptable and appropriate way,
which is more a a move to to act against the head of state.
And one thing that we might want to.
Think about, and I'm not sure what I want to commit to this or not would be trying a commission
to target high ranking officials to the indictment process through the ICC.
So we may want to think about some kind of process whereby if there is very strong
evidence that a high ranking official is currently engaged in ongoing mass crimes,
war crimes, crimes against humanity, genocide and so forth,
if he is given an appropriate opportunity to come before a proper, impartial legal body such as the ICC, if he fails to turn up to that body,
then we might want to think about a mechanism whereby that person could be then identified as as a target for a military attack.
As I say, I don't know that I want to commit myself to that, but it at least seems to me to be something,
something that we ought to think about in terms of resolving that question of who ought to be appropriately targeted in these kinds of actions.
Sorry. For any of the time that the last speakers of our time do you as a lecturer in public international law.
Thanks very much. I want to start by addressing know those of you who are in front of me,
but by addressing those who might be listening on a podcast because I spent the
first 15 minutes chomping very hungrily on the sandwich and I was really hungry,
which is why I decided to go go ahead with it.
And this morning I was listening on the radio, radio for the program so that you may listen to it in our time.
And you could quite clearly hear them pouring cups of tea, stirring the milk into the cup and all of that.
And I just imagine that as I was eating my Sun Micro just in front of me, people are wondering what is going on.
Okay, what I thought I would do is perhaps pick up on a couple of things that Jennifer and David have talked about and
respond to some of the bigger questions about what Libya might mean in relation to responsibility to protect,
and then talk about some more specific issues relating to what it is that the Security Council has authorised and in particular,
pick up on some of these issues relating to targeting of whether it is lawful under the resolutions to support the rebels who are
fighting in Libya and then perhaps finish off by talking about the role of the International Criminal Court in in the Libyan situation.
Because, as you know, the Security Council referred the situation in Libya to the ICC.
I'm just at the start of this week, the ICC prosecutor revealed that he's requesting arrest warrants for three individuals,
Gadhafi, one of his sons, and I think a brother in law of Gadhafi.
So I will finish off with that. But let me start with with the bigger picture and maybe start with where Jennifer started, actually,
about what's unusual about Libya and what it is that the Libyan situation might be telling
us about the way in which the doctrine of responsibility to protect might might develop.
I think Jennifer's is right to point out, and I must say that I hadn't actually thought about this,
that this is unique in the sense that, as she said, this intervention was carried out without the consent of the Libyan government.
And I suppose the the reason for that sort of corollary for that is a corollary to that is that, of course,
this is an intervention that is primarily directed against the government but based on humanitarian ground.
So we have seen in the past a number of Security Council authorised operations which are justified on humanitarian
grounds so that the so called robust peacekeeping that we've seen in Liberia and Sierra Leone and the DRC,
even in even in Ivory Coast, were all justified on humanitarian grounds.
One of the mandates of these missions was to create a safe area for civilians.
This is the first time a different way of putting the same point that the general was making.
This is the first time in which it is, if not explicitly in the resolution,
but at least intended in the resolution to be an authorisation against the government and on humanitarian grounds.
So it's not like Iraq 1991, which was against the government, but not primarily humanitarian.
So the question then is, does this change the position in relation to the the competence of the Security Council in the way in which the security.
Council is and ought to be exercising its powers.
I suppose that there are two reasons why I would be more reluctant than Jennifer is to say that things have changed.
One is because of the reasons that Jennifer's already pointed out in the sense that the Security Council,
even though in previous cases it had acted by consent, had also acted under Chapter seven.
In other words, it had already indicated that it had the power to intervene in an internal situation in which the concerns were humanitarian.
In other words, the Security Council had already indicated a different interpretation to Article 39
of the Charter than what might otherwise be thought from the reading of Article 39.
As I'm sure many of you know,
Article 39 authorises the Security Council to act if there's a threat to the peace breach of the peace or act of aggression.
And I suppose on an ordinary reading of that, one would have assumed that it was talking about an international situation.
The Security Council has already indicated that it construed that provision as allowing it to act in humanity on humanitarian grounds,
even in purely internal situations. Even though, as you say, has it has always done this in the past with with consent.
So perhaps it's not that big of a of a shift, but perhaps it's the it's the opera.
It's the opera. Operationalising if there there's such a word of a power that the Security Council has already claimed before for itself.
My second point in relation to what this might tell us about intervention and responsibility
to protect actually draws draws from the point that David was making about thresholds.
So David was talking about the possibility of crafting two sets of thresholds, one relating to permission and another one relating to obligation.
And this is one of the questions that I that I have, which I think is still unanswered,
at least to me, in relation to what precisely the concept of our two piece supposed to do.
And I would imagine that the context about who is operating mainly at that second
level that David was talking about in relation to obligation to intervene,
because in relation to the permission to intervene, at least for the Security Council,
I think that that is already well established that the Security Council has the permission.
And so the further change that might come is one which suggests that the Security Council might, in certain circumstances,
have the obligation to intervene now in relation to individual states or states acting outside the context of the Security Council.
The question would be at that first level, is there permission in the first place?
Right. But of course, Libya says nothing about the position of individual states to intervene.
I think it only really tells us if it tells us anything, it tells us about the the situation of the Security Council.
And it's in relation to that second question of obligation that I think the potential well,
it's in relation to that second question that there could be any change,
given that we already have, in my view, a permission for the Security Council.
And I'm not sure that this episode indicates an acceptance or even a movement towards
the view that there is an obligation on the part of the Security Council to intervene.
And of course, the Security Council does use the language of responsibility to protect in the relevant resolutions,
but it uses that in the context of of the responsibility of the Libyan authorities,
not in the context of of the responsibility of the Security Council.
So those are general questions about Libya and our two piece.
Let me just address some more specific questions about what it is that the Security Council has done.
And actually, my first point there, bridges between the specific and the general.
And it's this point which Jennifer mentioned at the end of the authorisation in Security Council Resolution 1973,
which is not just to protect civilians, but it also includes the language of protecting civilian populated areas.
And it seems to me that what the Security Council was saying in authorising the use
of force to protect civilian populated areas was to say essentially that these areas,
towns and cities, were not to be the subject of attacks.
In other words, essentially what the Security Council was saying was, you're not just we're not just saying you shouldn't attack civilians.
What we're also seeing is that you should. Even put them at risk. You know what?
You shouldn't even conduct operations that would put civilians at risk because the threat of an attack on a civilian
populated area is in itself something which makes the the Libyan authorities and actually truth under the resolution as well.
Even the rebels make them liable to attack.
I think it's unlikely that the key to attacking the rebels, but it's not precluded under the under the resolution.
Now, what this tells me, in other words, the fact that it's not just the protection of civilians, but civilian populated areas,
is that essentially, I think the council is concerned about international crimes, but is concerned about more than that.
It's not just about preventing war crimes or preventing crimes against humanity, but it's also essentially,
at least if one assumes that the intention was to target the Libyan government side,
it's essentially saying you must not carry this war any any further.
It's really what the what the Security Council is saying.
And to the extent that it is saying that, I think that it is acting actually in some ways under a more traditional interpretation of Chapter seven,
in other words, an interpretation which is about stopping threats to the peace.
It's about stopping an armed conflict. The council, of course, is concerned about civilian protection.
It makes clear when it talks about threats to civilians.
But I think it's also concerned about trying to bring the conflict to an end,
at least trying to bring the conflict as carried out by by the Libyan authorities to to an end.
So that's my first point about what the resolution specifically authorises.
The second point about what the resolution authorised and this again,
picks up on the point that David was making at the end about the targeting of Gadhafi.
This is an issue that has been hotly debated, whether the resolutions allow need to to to target Gadhafi personally.
And there has been or at least there appears to have been a division amongst the
politicians and and the senior military officers as to whether this was allowed or not.
We know, of course,
that there have been targets on what has variously been described as Gadhafi's compound command and control centres within Gadhafi's compound,
Gadhafi's bunker, etc., etc. We know that there have been.
There have been military strikes on places where Gadhafi might might be.
And the question is, is this within the scope of Resolution 1973?
In my view, it is within the scope of of Resolution 1973 in the sense that they put it this way.
Resolution 1973 does not preclude it.
That's what I mean to say when I say it's within the scope. It doesn't preclude it and it potentially allows it.
In other words, I think it was wrong for David Cameron to say it is not allowed.
I don't think that the position is that the fact that the resolution allows the
use of all necessary measures to protect civilians on civilian populated areas.
And so essentially the question really is some people have regarded that question to be one of what is necessary.
But actually, in my view, all that that language means is that it's an authorisation to use force.
This is the practice of the council, if you like, longhand for saying you may use force.
This is the well-established language of the Council for saying you may use force.
Now, of course, that force, though the authorisation to use force is not unlimited,
but what limits that authorisation to use force are the objectives for which the is is used.
And I think really what is needed here is something like the proportionality analysis which we conduct under,
under the use that bellum under the international law relating to abuse had Belgium, I mean,
the international law relating to the law of self-defence,
where we ask ourselves questions about whether the overall use of force is proportionate to the objectives that we are trying to to achieve.
And that is what limits the authorisation to use force.
Of course, in addition to that, any use of force and any particular act of targeting must comply with international humanitarian law.
But that would not be a bar to targeting a head of state who is also a commander in chief.
Because as commander in chief and as one who is directing the forces,
it would be lawful under international humanitarian law to to attack such such a person.
The second question in terms of this very quickly, my time is nearly up, which has arisen in relation to the resolutions.
Is is it lawful to either use force in support?
What of the rebels? In other words, not just to protect civilians now, but perhaps close air support to permit the rebels to advance.
All the discussion that we've had about arming and training rebels.
And what we're told in the media is that the UK, France, possibly also the US, certainly Qatar are providing non-lethal equipment.
I think is the expression that has been used to to the rebels and Qatar possibly even arms.
Well, at least they've said they were going to provide the money for for arms until there's
been this question about whether this is lawful under the under the resolution.
The reason why this is complicated is because Resolution 1970, which came just, what, a week before 1973, imposes an arms embargo on on Libya.
And so the question is, if you have one Security Council resolution, which imposes an arms embargo on the territory of Libya,
is it then lawful to justify providing arms to one side by reference to a subsequent Security Council resolution,
which authorises the use of all necessary means?
Now it appears that this issue was contemplated in the drafting of the resolution, because if you read it's paragraph nine of Resolution 1973,
it's sort of like a force which authorises authorises the use of all necessary measures.
It makes this subject to the paragraph in the earlier resolution, which imposes the arms embargo also.
So it says it's notwithstanding its notwithstanding the earlier resolution, which imposes the arms embargo.
And one would assume that that means that it is creating an exception to that earlier arms embargo.
But in my view, even if that language did not exist,
there would still be a permission if it were thought to be politically desirable to provide arms to the rebels.
Now, like David, I also have significant reservations about whether this is wise.
And I just want to separate out the two questions. The question of whether it is wise to do and the question of whether it is lawful to do.
I think whether it's wise depends on who these people are, how much we know about them, what their objectives are, and all of that.
But that's not to say that it is unlawful to do so.
And the way in which I reached this conclusion essentially is by reference to previous Security
Council practice and also by reference to just the logic of the authorisation to use force.
At a minimum, every authorisation to use force which follows from an arms embargo,
must create an implicit exception for the people who are using force.
At a minimum, they at a minimum must be allowed to bring in their own arms into the territory.
They must be allowed to resupply their own troops.
And I would argue that it also would allow those who are acting in concert to provide assistance to one another.
In other words, if the U.K. were or if the U.S. were to provide arms to the U.K. for use in Libya, that, in my view, would be lawful.
The real question here is whether vis a this exception, which, as I argue, is necessarily implicit in the authorisation to use force,
whether that exception applies in the case of assistance to a non-state group.
In other words, if it's clear that the U.S. can bring its own arms into Libyan territory in the sense of including the airspace,
it's also clear that the U.S. could provide assistance to the UK and to France.
Does that mean that they can provide assistance to to a non-state group to achieve the same objective?
And in my view, there is no reason why they as a matter of law I mean, there's no reason why they should be restricted from from doing that.
In effect, it would be an indirect use of force.
In other words, they're not using force directly, but using force indirectly.
Having said that, though, any provision of of arms is necessarily limited to the objectives in the resolution.
In other words, for civilian protection and for the protection of civilian populated areas.
In other words, it can only be defensive. Now, this is the complication here.
The complication, of course, is that if you protect if you provide arms for defensive purposes,
what do you do when those who have those arms now want to use them offensively?
Right. You can't say we gave you arms to defend yourself yesterday.
Now we're going to go in and we're going to collect it all back or trading you in the use of this weaponry.
But please sign here and say, you know, you must not use this training when you are advancing on Tripoli.
That's the complication. Okay. I said I was going to say. Things about the ICC.
But let me stop there. We can always pick that up in question and answer people.
I'm sure you have no idea what your question is.
I just of do I do remember what they gave us.
Just write a very quick reply to one another and I know you all want to ask questions, so I'll be very, very brief.
There's just two points I wanted to make.
One is, in a sense, when David asks about what should the thresholds be?
My reading is that the summit outcome document in the evolution of RTP has partly answered that question by specifying for crimes,
genocide, crimes against humanity, war crimes and ethnic cleansing.
And so it becomes a very similar exercise to what exists in law after determining evidence for the existence of those crimes.
So to me, the more theoretical general debate about thresholds has been changed.
It's not about number of people. It's about proving the things that you have to prove when you're determining
whether crimes against humanity are being committed or ethnic cleansing or.
So I think it's changed the debate about thresholds in quite significant ways.
And the second point I would make, I take David's point about neutrality and impartiality.
What I was trying to say is and I'm not making a judgement that I think the evolution of our attitude towards crimes was necessarily right.
I'm taking the pragmatic view that that's where the political consensus took us.
That's what's been agreed upon. It's about crimes today.
And I would say that because it's about crimes, it isn't about treating two sides equally anymore.
It's not about parties in a conflict. It's about whether a crime is being committed.
And that's why I say we're moving away from impartiality. We don't have the option of seeing this as a conflict anymore because it's about crimes.
Now, maybe I mean to purist, but to me that is the logic we have bought into by making it about crimes.
And I think that is a number of implications that we haven't fully thought through as diplomats,
as actors who are supposed to be operationalising this principle.
GREGG Yeah, I mean, I think the point about crimes is a really helpful one.
But notice even when we're talking about crimes, there are still certain kinds of protection that even criminals are.
Do you know we ought not to be partial even towards even towards those who are criminals.
That's what you need to process. And you know what that is about. So yeah, I don't think we disagree.
I think it's yeah, it's I think we yeah, it's really kind of terrible.
But that's an interesting point you just make right.
Then just very briefly on on Dubos point about I draw the distinction between what I said were two separate decision points.
One is the point at which there is a permission to intervene when the target state does not have a right against intervention.
And then another which would at which point I wanted to suggest we might want
to think that intervention becomes presumptively mandatory or obligatory.
And David said that he thought that in terms of the Security Council, that actually had to be about the second of those criteria,
and it had to be about the question of when it became mandatory, because the Security Council already has the permission to intervene.
Now, I guess I want to just this this may be a kind of slightly pedantic point,
but the way that the way that I think I would put it is to say the Security Council has the power to make it the case.
They have they have the power, but not necessarily the permission right now that the Security Council has the power to
make it the case that one state is liable to intervention on the power of another state.
But it could exercise that power either to generate a permission, which is essentially what it did in 1973.
Right. It said that, you know, those those states which would they will authorise, but it didn't lay an obligation on them to do it.
Right. I'm not even sure actually whether I mean, this is a question to the other way,
whether there is a mechanism so that when the council mandates under Chapter seven, it is an obligation, though not the use of force.
The use of force is not obligatory for anybody. Right.
And no state is obliged to take up that permission that the Security Council is giving.
Right. That was my understanding of 1973. And if that's the case, then that, you know, that distinction,
that conceptual distinction between between when an intervention becomes permissible and when it becomes obligatory is still a really significant one,
of course, at a high level in to the Security Council as well,
in terms of when it properly ought to exercise the power that you rightly say it always has, it always has the power to authorise an intervention.
But then, you know, the question arises that Security Council as well, are there situations in which it would be obligated to?
Use that power in order either to create a commission or an obligation to intervene.
There are other cases in which it might be permitted but not obligated to do that.
Those obviously wouldn't know what kind of measure obligations that I guess couldn't couldn't really be properly legal.
But what if you're literally looking at it because at least conceptually,
you're going to have to face that question of of of of how we think about those two different decision points.
And the answer might be, you know, drawing on the idea of the four crimes that they do actually collapse.
Maybe we want to say that when those when the the atypical crimes occur, then as a matter of course, one has an obligation and upon the permission.
But I don't see that accepted in practice.
And I and conceptually, I'm not sure that that is necessarily absolutely the right way to go either.
Well, let's take our panellists for an excellent discussion and thank the audience for all time.