1 00:00:02,990 --> 00:00:07,070 Hey, we'll get going. No, it is Cheney, Ryan. 2 00:00:07,580 --> 00:00:10,580 I work with Eli. I fixed an armed conflict. 3 00:00:11,120 --> 00:00:16,760 Let me explain briefly the format that our speakers have chosen for today. 4 00:00:18,080 --> 00:00:28,010 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. 5 00:00:28,310 --> 00:00:33,710 What the others have said. Then we will go to the question discussion period. 6 00:00:34,640 --> 00:00:40,820 Let me ask two things. One is that when people ask a question, they might identify themselves briefly. 7 00:00:41,180 --> 00:00:46,280 And the other thing is that they might keep their questions appropriately brief so that we can have as much discussion as possible. 8 00:00:46,640 --> 00:00:52,280 We will go until 230 or then take a very short break for people who will need to leave that. 9 00:00:52,280 --> 00:00:56,120 And then we'll probably continue on for about another 15 minutes after that. 10 00:00:56,930 --> 00:01:03,080 So our first speaker is Professor John four Welch, who is from politics and International Relations, and she will begin. 11 00:01:03,740 --> 00:01:08,690 Great. I'm just going to apologise in advance. I have a very persistent cough right now. 12 00:01:09,260 --> 00:01:15,530 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. 13 00:01:15,530 --> 00:01:22,879 So it's a great it's a great pleasure to sort of be here and reflect on something that's happening real time. 14 00:01:22,880 --> 00:01:30,380 So you'll forgive us if some of the things that we say who's already outdated, but we're really looking forward to having a dialogue with you. 15 00:01:31,100 --> 00:01:42,230 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. 16 00:01:42,890 --> 00:01:52,550 And secondly, I want to focus most of my remarks on what the Libyan case means for the principle of the responsibility to protect. 17 00:01:53,420 --> 00:02:04,070 And I'll do that primarily from a political science perspective, more looking at some of the politics and issues around norm development. 18 00:02:05,600 --> 00:02:11,209 So just reflecting very quickly on what's unusual about the Libyan case and the international response, 19 00:02:11,210 --> 00:02:13,820 I think there's three things that are unusual about it. 20 00:02:14,960 --> 00:02:23,630 The first is that the council resolution 1973, which authorised all necessary measures to protect civilians, 21 00:02:24,140 --> 00:02:28,190 did so without the consent of the Libyan state. 22 00:02:28,220 --> 00:02:34,460 The Council's intentions in this respect could not be interpreted as anything other than coercive. 23 00:02:35,930 --> 00:02:40,129 Now, I'm not saying that the Council hasn't come close to doing this in the past. 24 00:02:40,130 --> 00:02:49,040 It has, but it hasn't technically done that in Somalia in 1992, it did authorise action without consent. 25 00:02:49,040 --> 00:02:55,070 But again, at that point it was alleged there really wasn't a partner in Somalia to give that consent. 26 00:02:56,000 --> 00:03:04,580 And with Operation Turquoise, it enjoyed the consent of the interim government in Rwanda, as well itself as its armed forces, 27 00:03:05,390 --> 00:03:12,270 and in more recent cases such as Haiti, the Democratic Republic of Congo and Cote d'Ivoire. 28 00:03:12,710 --> 00:03:17,720 While the Council has authorised the use of all necessary means to protect civilians again, 29 00:03:18,140 --> 00:03:22,370 those original peacekeeping missions operated with the consent of the government. 30 00:03:23,060 --> 00:03:28,760 So I think this is unusual is particularly unusual because in Darfur, correct me if I'm wrong in theory, 31 00:03:28,760 --> 00:03:33,229 of course, the Council's actions under Chapter seven don't require consent. 32 00:03:33,230 --> 00:03:40,400 But the Council has acted almost as if they do in the past for pragmatic reasons and sometimes for principled reasons. 33 00:03:41,600 --> 00:03:49,700 The second thing that's unusual about the Libyan case was the extraordinary clarity of the threat of mass atrocities. 34 00:03:50,960 --> 00:03:59,630 Not since Rwanda, I would argue, was the regime signalling so clearly its intent to commit crimes against humanity. 35 00:04:00,110 --> 00:04:02,570 And there was in some ways direct echoes of Rwanda. 36 00:04:03,020 --> 00:04:11,600 Gadhafi telling the world officers have been deployed in all tribes and regions so that they can purify all decisions from these cockroaches. 37 00:04:12,170 --> 00:04:16,370 And any Libyan who takes arms against Libya will be executed. 38 00:04:16,850 --> 00:04:21,440 Now, I'm not saying there haven't been directed efforts taken against civilians, 39 00:04:21,440 --> 00:04:25,310 but I'm talking here about the rhetoric and the clarity of the rhetoric. 40 00:04:25,550 --> 00:04:34,070 Usually regimes bent on mass atrocities try to cover their tracks a bit more so than the Libyan regime did. 41 00:04:35,210 --> 00:04:39,890 Lastly, I think what's unusual about this case, and I'm going to say a bit more about it later, 42 00:04:40,400 --> 00:04:47,030 is that diplomacy produced a decisive response in a relatively short period of time. 43 00:04:48,470 --> 00:04:58,430 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. 44 00:04:58,730 --> 00:05:02,480 Darfur being, of course, the most prominent example. And again, I'll try to say more. 45 00:05:02,660 --> 00:05:11,750 About this. What's less clear is how the crisis in Libya and NATO's ongoing campaign will affect 46 00:05:12,080 --> 00:05:16,400 the fortunes and trajectory of the principle of the responsibility to protect. 47 00:05:17,930 --> 00:05:21,079 As I'm going to suggest near the end of my talk, 48 00:05:21,080 --> 00:05:28,550 I think there have been costs to the diplomatic strategy of those who are supporters of that principle within the U.N., 49 00:05:29,180 --> 00:05:34,489 a strategy that has focussed more recently on so-called root cause prevention 50 00:05:34,490 --> 00:05:40,640 and capacity building of states rather than the kind of hard edge of RTP. 51 00:05:41,900 --> 00:05:45,530 And I'm going to come back to that again in the conclusion to my remarks. 52 00:05:46,070 --> 00:05:51,680 But it's also important for us to remember that Resolution 1973 mentions only 53 00:05:52,160 --> 00:05:56,600 the responsibility of the Libyan authorities to protect the Libyan population. 54 00:05:57,050 --> 00:06:03,500 It doesn't talk specifically about the international community's responsibility to protect. 55 00:06:03,770 --> 00:06:11,000 Instead, it uses the language of protection of civilians and in that sense, is not unusual from previous council resolutions. 56 00:06:12,410 --> 00:06:20,600 What I think the Libyan case will do is significantly shape the parameters within which the debate over the responsibility 57 00:06:20,600 --> 00:06:28,759 to protect and and how it might be operationalised is going to be conducted going forward and for the remainder. 58 00:06:28,760 --> 00:06:33,230 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. 59 00:06:34,550 --> 00:06:41,580 Firstly, I think it's going to shift the organisational focus point for the discussion of our two P 60 00:06:41,600 --> 00:06:46,850 within the United Nations and it's going to reassert the central city of the Security Council. 61 00:06:48,290 --> 00:06:56,720 Now the 2005 summit outcome document essentially made the responsibility to protect, which had been a much more general concept, 62 00:06:57,260 --> 00:07:06,170 a U.N. responsibility to protect it, rooted in allocated the responsibility to protect to the Security Council. 63 00:07:06,380 --> 00:07:10,130 And in that sense, many would argue it didn't create any new legal obligations. 64 00:07:10,970 --> 00:07:19,340 But simultaneously, the outcome document identified the General Assembly as the organ that would continue discussion of RTP. 65 00:07:19,610 --> 00:07:28,790 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. 66 00:07:29,540 --> 00:07:37,459 And so, in fact, it has been the General Assembly and not the Security Council that has advanced thinking on the responsibility to protect, 67 00:07:37,460 --> 00:07:42,080 and that has held a number of debates about its content and its meaning. 68 00:07:42,440 --> 00:07:48,050 And in fact, there's been a lot of resistance to the council discussing this principle at all. 69 00:07:49,230 --> 00:07:58,070 And so, aside from endorsing the outcome document, the Council has been silent on the responsibility to protect up until now. 70 00:07:58,370 --> 00:08:07,760 And instead what it has done is elaborate and effectively implement the protection of civilians in armed conflict agenda, 71 00:08:08,390 --> 00:08:12,670 which, while similar to the responsibility to protect, is not the same. 72 00:08:13,760 --> 00:08:19,700 The protection of civilians in armed conflict is both narrower and broader than responsibility to protect. 73 00:08:19,700 --> 00:08:24,950 It's nearer because it only deals with situations of armed conflict, 74 00:08:25,400 --> 00:08:32,360 whereas the responsibility to protect refers to for crimes that can be in theory and also in practice, 75 00:08:32,720 --> 00:08:38,120 committed outside the context of an armed conflict. But it's also broader. 76 00:08:38,120 --> 00:08:46,670 It, of course, in that it refers to things designed to protect civilians that go beyond their protection from these for mass atrocity crimes, 77 00:08:46,970 --> 00:08:51,560 crimes against humanity, war crimes, ethnic cleansing and genocide. 78 00:08:52,970 --> 00:08:58,100 And the Council, I would argue, by concentrating on situations of armed conflict, 79 00:08:58,340 --> 00:09:03,920 has been trying to keep its eyes focussed and on more clearcut threats to international peace and security, 80 00:09:04,460 --> 00:09:09,260 as opposed to the more contested area of mass human rights violations, 81 00:09:09,590 --> 00:09:18,170 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. 82 00:09:18,890 --> 00:09:23,660 Those countries that are supportive of the protection of civilians agenda within the Security 83 00:09:23,660 --> 00:09:28,610 Council have consciously avoided the association with the principle of our to peace. 84 00:09:28,910 --> 00:09:32,300 They've said to me confidentially, that principle is toxic. 85 00:09:32,690 --> 00:09:39,620 We do not want to associate for the protection of civilians in our conflict, which can generate consensus with that principle. 86 00:09:40,940 --> 00:09:45,230 Now, I think Libya may be changing all of this in interesting ways. 87 00:09:45,740 --> 00:09:50,120 And let me just say three things about that before I move on to my last two points. 88 00:09:50,930 --> 00:09:55,459 First, I think it was clear from the beginning that Western countries, 89 00:09:55,460 --> 00:10:01,660 and particularly if you look at the NATO alliance, would not countenance action without a council mandate. 90 00:10:02,890 --> 00:10:07,420 The Nardo chief very specifically said this during the days prior to 17, 91 00:10:07,810 --> 00:10:16,090 1973 passage that the alliance would assist in protecting civilians only if there was a demonstrable need, 92 00:10:16,300 --> 00:10:19,420 a clear legal basis and strong regional support. 93 00:10:19,780 --> 00:10:23,110 With heavy emphasis on the emphasis on the second dimension. 94 00:10:23,140 --> 00:10:27,190 So to put it another way. No more crossovers, right? 95 00:10:28,450 --> 00:10:33,430 Secondly, I think as as many supporters of our to have hoped. 96 00:10:34,300 --> 00:10:41,620 Permanent five members with concerns about the implications of this resolution abstained rather than blocked council action. 97 00:10:41,890 --> 00:10:52,040 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, 98 00:10:52,060 --> 00:10:59,230 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. 99 00:10:59,530 --> 00:11:06,730 And I think their views have been given not sufficient attention when you consider that the African Union as an organisation, 100 00:11:07,420 --> 00:11:11,680 declared its strong opposition to military intervention of any kind. 101 00:11:13,810 --> 00:11:17,980 Finally, I think the other interesting thing about this is that the makeup of the council 102 00:11:18,460 --> 00:11:25,780 during the deliberations over 1970 and 1973 approximates that composition, 103 00:11:25,780 --> 00:11:31,030 which is sometimes said by proponents of council reform to be the ideal composition of the council. 104 00:11:31,810 --> 00:11:41,170 In addition to the P-5, we had Germany, Brazil, India and South Africa all regional powers with global aspirations. 105 00:11:41,290 --> 00:11:48,970 And it's sometimes been said if you could design a council from scratch, you'd want them on in terms of representativeness. 106 00:11:49,390 --> 00:11:57,940 So the fact that timely action could be agreed upon by that group may give interesting impetus to debates about council reform. 107 00:11:59,860 --> 00:12:02,200 Let me just quickly, in my last 5 minutes, 108 00:12:02,200 --> 00:12:11,260 move on to the last two things that I think the Libyan case will do to discussions about or to p in its implementation. 109 00:12:13,360 --> 00:12:19,989 I think the second aspect of Resolution 1973 in the air campaign is the degree to which it 110 00:12:19,990 --> 00:12:26,470 shifts the nature of the UN's involvement from one of at least professed impartiality, 111 00:12:26,800 --> 00:12:32,440 which is one of the UN's hallmark principles of peacekeeping to one of taking sides. 112 00:12:33,340 --> 00:12:44,290 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, 113 00:12:44,620 --> 00:12:53,350 makes that move away from impartiality, inevitable crimes as opposed to parties to a conflict, have perpetrators. 114 00:12:54,010 --> 00:13:05,350 They also have victims. And the actions required to change the incentives of those perpetrators and the degree of vulnerability of those victims move 115 00:13:05,350 --> 00:13:13,240 the United Nations regional organisations and state diplomats out of a very comfortable zone of mediation and compromise. 116 00:13:13,750 --> 00:13:22,300 Even if some would argue this stance of impartiality has been an illusion in many other cases, this case makes this very explicit, 117 00:13:23,350 --> 00:13:32,140 and you can see this by looking at two aspects of the resolution, especially two aspects one of 1970 and one of 1973. 118 00:13:32,620 --> 00:13:37,690 The most obvious, and I know those of you who are interested in criminal justice will have more to say about this. 119 00:13:38,410 --> 00:13:46,750 These resolutions identify particular individuals as the targets of action, both in terms of sanctions and criminal justice. 120 00:13:47,680 --> 00:13:52,930 And as many have noticed, not least Philip sounds, the identification of Gadhafi, 121 00:13:53,140 --> 00:13:59,020 the issuing of an arrest warrant, is going to make his orderly departure from Libya much less likely. 122 00:14:00,400 --> 00:14:10,450 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, 123 00:14:10,450 --> 00:14:17,440 but it's doing it for the protection of civilians, but the protection of civilian populated areas. 124 00:14:18,160 --> 00:14:23,680 And by doing that and President Obama's comments the following day echoed this by doing that, 125 00:14:23,680 --> 00:14:30,610 it was effectively saying to one side in the civil conflict, there are certain cities and areas you cannot attack. 126 00:14:31,240 --> 00:14:42,010 There are certain things you cannot do. In my mind, this moves us from protecting civilians broadly conceived into choosing one side. 127 00:14:42,820 --> 00:14:51,580 Now, these tensions, I think, have begun to reveal themselves in the coalition of states who supported 1973. 128 00:14:51,850 --> 00:14:57,190 And we have a very open fissure between those who say this crisis can only be resolved with 129 00:14:57,190 --> 00:15:01,990 the departure of Gadhafi and those who believe in theory that the protection of civilians. 130 00:15:02,330 --> 00:15:06,620 Can be honoured through ceasefire and negotiation as well. 131 00:15:07,310 --> 00:15:17,870 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, 132 00:15:19,040 --> 00:15:24,680 whether it will have to expand the range of targets, as David Richards suggested on the weekend to infrastructure. 133 00:15:26,030 --> 00:15:29,300 And also whether we will actually have to put boots on the ground. 134 00:15:30,800 --> 00:15:42,380 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 135 00:15:42,710 --> 00:15:51,380 and response in order to gain political consensus around the notion of responsibility to protect the current secretary general. 136 00:15:51,710 --> 00:15:57,260 And the supporters of the principle have wanted to downplay its coercive possibilities. 137 00:15:57,950 --> 00:16:01,310 They've wanted to suggest that it can be done through capacity building, 138 00:16:02,810 --> 00:16:08,330 building up the capacities of states to get to the point where they don't commit these atrocities. 139 00:16:08,930 --> 00:16:19,070 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. 140 00:16:19,970 --> 00:16:26,930 And what we need to do is both researchers and policymakers is to begin to consider what more targeted and 141 00:16:26,930 --> 00:16:37,130 coercive tools of crime prevention and response entail and what dilemmas they create for international actors. 142 00:16:38,030 --> 00:16:44,780 And I think if the Libyan case can contribute further thinking on these questions, 143 00:16:45,290 --> 00:16:53,180 then it truly will have advanced our understanding and implementation of the principle of a responsibility to protect. 144 00:16:54,080 --> 00:17:01,970 So I'll stop there. Thank you. Our next speaker is David Roden, who is a senior fellow at Elac. 145 00:17:02,780 --> 00:17:05,359 That's right. Thank you. Well, my remarks, 146 00:17:05,360 --> 00:17:14,239 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, 147 00:17:14,240 --> 00:17:20,420 I think, more than potential to really significantly concretise and develop our understanding 148 00:17:20,420 --> 00:17:24,770 of responsibility to protect and humanitarian intervention more generally. 149 00:17:25,400 --> 00:17:35,330 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 150 00:17:35,330 --> 00:17:39,980 most significant lessons that we potentially might be able to learn from from this case. 151 00:17:40,580 --> 00:17:46,909 But what I want to do is say a little bit about three things, first of all, about criteria for intervention, 152 00:17:46,910 --> 00:17:53,780 and secondly, about the appropriate kinds of strategic objectives that we ought to be pursuing through an intervention. 153 00:17:54,110 --> 00:17:57,500 And then finally, something about the tactical aspects of the intervention. 154 00:17:58,280 --> 00:18:06,469 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. 155 00:18:06,470 --> 00:18:10,730 Although I take it that a lot of these things or these ideas, if we wanted to take them forward, 156 00:18:10,730 --> 00:18:14,990 would have to be embedded within some kind of legal structure as well. 157 00:18:15,350 --> 00:18:18,799 I should also just say that this is very much a process of thinking aloud. 158 00:18:18,800 --> 00:18:24,990 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. 159 00:18:24,990 --> 00:18:30,520 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. 160 00:18:30,530 --> 00:18:36,380 So especially all of you out there in iPod Land, do not take these remarks as as full and settled views. 161 00:18:37,070 --> 00:18:43,700 But the starting point I want to take is that the intellectual debate on responsibility to protect, I think, has really been one. 162 00:18:44,450 --> 00:18:49,339 I think that we all now accept and understand that the sovereignty of states is 163 00:18:49,340 --> 00:18:53,390 conditional and that when states engage in massive abuses of their citizens, 164 00:18:53,660 --> 00:18:57,830 they can lose rights against sovereign intervention and take that as a starting point. 165 00:18:58,310 --> 00:19:02,660 But massive questions obviously still remain about when to intervene, 166 00:19:02,840 --> 00:19:07,640 how to intervene, who should intervene, and the way in which it ought to be done. 167 00:19:08,090 --> 00:19:14,960 And there are persistent and very real worries about the what's seen as the selectivity of intervention. 168 00:19:14,970 --> 00:19:19,070 Why are we intervening in Libya? Why was intervention so slow in Cote d'Ivoire? 169 00:19:19,310 --> 00:19:21,950 Why are we not seeing a similar response in Syria? 170 00:19:22,640 --> 00:19:31,460 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. 171 00:19:32,300 --> 00:19:36,170 So I want to start by just laying out two, as it were, 172 00:19:36,170 --> 00:19:41,570 conceptual distinctions that I think can help us think about the issue of criteria for intervention. 173 00:19:42,680 --> 00:19:49,190 The first one is that when we think about the permission to intervene, in other words, liability to intervention, 174 00:19:49,190 --> 00:19:55,370 we have to distinguish between liability at the level of the sovereign states on the one hand, 175 00:19:56,090 --> 00:20:00,980 and the liability to attack of the actual targets we attack on the other. 176 00:20:01,230 --> 00:20:04,320 If you're going to mention cases. Those two might not line up perfectly. 177 00:20:04,500 --> 00:20:11,550 So we might have a situation in which the state or members of the regime have ordered attacks on civilians. 178 00:20:11,850 --> 00:20:15,209 And therefore, following the logic of the hardship, we might want to say, well, 179 00:20:15,210 --> 00:20:18,810 the state itself has forfeited its sovereign rights against intervention. 180 00:20:19,320 --> 00:20:23,520 But it might not be the case that certain members of the security forces, for example, 181 00:20:23,520 --> 00:20:26,849 those that are manning air defence systems in a remote part of the country, 182 00:20:26,850 --> 00:20:32,339 it may well be the case that those individuals themselves have not done anything to make themselves liable 183 00:20:32,340 --> 00:20:38,690 to being attacked through an air attack or whatever it may be in other cases that line up almost perfectly. 184 00:20:38,700 --> 00:20:43,860 When you have soldiers that are itself engaged in attacks on civilians, then those two will line up. 185 00:20:43,930 --> 00:20:49,850 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, 186 00:20:49,860 --> 00:20:54,720 one of which has to do with the criteria for when the state itself is liable to intervention. 187 00:20:55,020 --> 00:21:01,590 The other has to do with when the particular targets we go after are themselves liable to be hit. 188 00:21:01,890 --> 00:21:08,610 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, 189 00:21:08,610 --> 00:21:12,030 in particular Colonel Gaddafi. That's the first distinction I want to bear in mind. 190 00:21:12,780 --> 00:21:18,060 Second distinction is that I think when we ask the question, when is it appropriate to intervene? 191 00:21:18,150 --> 00:21:26,400 We're actually asking two questions. First question is when do we have a permission to intervene? 192 00:21:26,430 --> 00:21:26,819 In other words, 193 00:21:26,820 --> 00:21:35,340 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? 194 00:21:35,800 --> 00:21:46,440 My first question then is about the permission to invent. The second question is the question about when intervention may be presumptively obligatory. 195 00:21:46,500 --> 00:21:50,700 All right. And when we say obligatory, we mean not simply that there is a permission to intervene. 196 00:21:50,700 --> 00:21:58,740 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, 197 00:21:58,750 --> 00:22:04,920 to intervene would itself be a moral wrongdoing that might in turn have various normative consequences. 198 00:22:06,210 --> 00:22:14,130 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? 199 00:22:14,160 --> 00:22:18,389 The point at which somebody in which intervention becomes permissible and the and the 200 00:22:18,390 --> 00:22:23,250 and the point at which it becomes presumptively obligatory would be the same point. 201 00:22:23,640 --> 00:22:29,310 It seems to me entirely possible that there may be a lower threshold for permission to intervene, 202 00:22:29,760 --> 00:22:35,880 but that after a certain higher threshold, intervention may become presumptively obligatory. 203 00:22:37,260 --> 00:22:43,260 Now, let me just right at the outset lay out what are some very obvious problems with this talk, 204 00:22:43,260 --> 00:22:46,230 first of all, about thresholds and secondly, about presumptions. 205 00:22:47,040 --> 00:22:51,390 Why don't we talk about what I think about a presumptive obligation rather than an obligation? 206 00:22:51,420 --> 00:22:58,110 Well, obviously, because whether an intervention is in the final analysis, 207 00:22:58,230 --> 00:23:05,610 either permissible or obligatory will depend must depend not simply on the magnitude of the crimes being committed, 208 00:23:05,880 --> 00:23:12,690 but also on the prospects of success. So we always have to bear in mind that however we specify these criteria, 209 00:23:13,290 --> 00:23:21,899 however we specify the thresholds we always have to balance the the crime that we're attempting to prevent 210 00:23:21,900 --> 00:23:29,070 against the likelihood of our succeeding and succeeding in ways that that have tolerable moral costs. 211 00:23:29,430 --> 00:23:33,690 So we always have to remember that any intervention has to be necessary, 212 00:23:33,690 --> 00:23:39,330 by which we mean it has to be the case that there is no morally less costly way of achieving the same good. 213 00:23:39,660 --> 00:23:44,639 It has to be proportionate by which we mean that the harms we inflict in the course of 214 00:23:44,640 --> 00:23:49,860 that action do not outweigh the good and what is entailed by necessity in proportionality, 215 00:23:49,860 --> 00:23:58,769 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. 216 00:23:58,770 --> 00:24:03,150 And of course, what that means is that a threshold or a criterion can never be simply automatic. 217 00:24:03,270 --> 00:24:11,070 It can never be the case that once, once abuses have passed a certain level, that there will be an automatic obligation to intervene. 218 00:24:11,100 --> 00:24:20,550 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. 219 00:24:20,790 --> 00:24:26,970 If we recognise that there is a certain point after which obligation rather intervention becomes obligatory, 220 00:24:27,540 --> 00:24:38,900 then if one is to argue against obligation, sorry intervention, you have to do so in terms that will be specifically about the efficiency, 221 00:24:38,910 --> 00:24:45,149 necessity and proportionality of the action, rather than, as you might have in that domain, below obligation, 222 00:24:45,150 --> 00:24:51,960 the domain of pure permission where the debate can be and often is much more about national self-interest. 223 00:24:52,140 --> 00:24:56,850 So that would be the purpose of of thinking specifically about two sets of thresholds. 224 00:24:58,010 --> 00:25:01,980 And there are obvious and well-known problems when. 225 00:25:02,030 --> 00:25:06,319 You try to specify thresholds that for intervention that have to do with perverse 226 00:25:06,320 --> 00:25:12,469 incentives and of a list two of those simply one possible perverse incentives 227 00:25:12,470 --> 00:25:16,430 that you get with specified thresholds is that you create an incentive for the 228 00:25:16,430 --> 00:25:22,370 abusing state to push that as close as possible to the level of the incentive. 229 00:25:22,430 --> 00:25:26,089 If they know that intervention becomes permissible, say, 230 00:25:26,090 --> 00:25:31,310 at the level of 100 civilian deaths and it becomes obligatory at the level of 1000 civilian deaths, 231 00:25:31,700 --> 00:25:37,250 they will have an incentive to push up as close as possible to that threshold level without crossing it. 232 00:25:38,510 --> 00:25:49,220 Conversely, those who and the those opponents of the regime who would benefit potentially from triggering an international intervention 233 00:25:49,640 --> 00:25:56,570 will have an incentive to provoke the regime to try and get them to respond in ways that will push them above the threshold. 234 00:25:57,200 --> 00:26:02,180 And then there are obvious problems as well about how do you how do you specify what that threshold would be? 235 00:26:02,210 --> 00:26:06,650 Should it be a numerical threshold? Should it be 100 or 1000 to 10000? 236 00:26:06,650 --> 00:26:12,680 What should it be? If it's not a numerical threshold, what else would should be there in that? 237 00:26:12,680 --> 00:26:14,540 Max, let me set the answer. 238 00:26:14,540 --> 00:26:22,940 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. 239 00:26:23,450 --> 00:26:31,700 My gut feeling tells me that something like 100 is probably around what we want to have for a threshold mission. 240 00:26:32,210 --> 00:26:39,980 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. 241 00:26:40,310 --> 00:26:45,260 But as I say, I have no way of defending those with robust arguments. 242 00:26:46,130 --> 00:26:52,160 So it may well be a matter of looking for some kind of equilibrium or consensus. 243 00:26:52,160 --> 00:26:57,320 And I have no way of knowing whether whether that some consensus or equilibrium can can be found. 244 00:26:57,470 --> 00:27:01,220 But maybe it's but I want to bracket that question of whether whether we ought to be thinking 245 00:27:01,220 --> 00:27:04,850 about thresholds and whether those thresholds ought to be considered as numerically, 246 00:27:04,850 --> 00:27:06,260 those numerical or otherwise. 247 00:27:06,710 --> 00:27:12,470 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. 248 00:27:13,190 --> 00:27:16,759 And it may well be that we have to specify those in other ways and with thresholds, 249 00:27:16,760 --> 00:27:22,340 but but it seems to me that there is some utility in exploring the idea of a more precise threshold. 250 00:27:23,480 --> 00:27:31,070 So the second question is, if we have determined that intervention is appropriate, then what? 251 00:27:31,070 --> 00:27:36,770 Or the objective of that intervention to date? And it seems to me that Libya is instructive in this case as well, 252 00:27:36,770 --> 00:27:46,760 and that the way that the UN Security Council specified the objective of the intervention struck me as being absolutely right in this case. 253 00:27:47,630 --> 00:27:52,550 But what worries me about the way that the intervention has been undertaken is 254 00:27:52,550 --> 00:27:56,480 that it has drifted significantly from the way the Security Council specified it. 255 00:27:56,930 --> 00:27:58,579 Now, remember, in the end, 256 00:27:58,580 --> 00:28:06,200 the original resolution permission was given to use all necessary means short of an occupation in order to protect civilians. 257 00:28:07,400 --> 00:28:14,780 Now, the reason why I thought that was the right way to specify the strategic objective is that it did not aim 258 00:28:14,930 --> 00:28:22,159 at the kinds of objectives that seemed most objectionable about the interventions in Iraq and Afghanistan, 259 00:28:22,160 --> 00:28:31,010 which is that they were attempts to externally overthrow a domestic political regime and replace it with another one. 260 00:28:32,330 --> 00:28:37,790 What the Security Council mandate said in contradistinction was that the interveners 261 00:28:37,790 --> 00:28:44,360 had the right to take necessary means to protect civilians from attack and from harm. 262 00:28:44,990 --> 00:28:47,479 Now, in the context of Libya, I think that there was a very, 263 00:28:47,480 --> 00:28:55,830 very good chance that if they had been successful in undertaking that mandate, it would have had very significant political effects. 264 00:28:56,090 --> 00:28:56,290 Right. 265 00:28:56,900 --> 00:29:09,170 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. 266 00:29:10,700 --> 00:29:18,049 And like we saw in Tunisia and Egypt, if it would have been possible to protect those civilians from attack by regime forces, 267 00:29:18,050 --> 00:29:25,850 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. 268 00:29:26,240 --> 00:29:29,030 But it would have been a very, very different kind of regime change. 269 00:29:29,180 --> 00:29:37,250 It would not have been the regime change of foreign armies taking sides on one side in a civil war and overthrowing a government. 270 00:29:38,300 --> 00:29:40,400 That to me is the crucial difference. 271 00:29:40,700 --> 00:29:50,930 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. 272 00:29:51,290 --> 00:29:55,880 And to my mind, the right way to specify that was to say that the use of force can be appropriate 273 00:29:56,150 --> 00:30:01,760 in order to open up and protect a space for an indigenous and peaceful. 274 00:30:01,820 --> 00:30:10,729 All domestic politics. That's a very different proposition from offering to provide the air combat wing for one side in the Civil War, 275 00:30:10,730 --> 00:30:12,680 which is effectively what we've ended up doing. 276 00:30:13,430 --> 00:30:19,730 I think that the risks and the strategy we have chosen are enormous, both politically but also morally. 277 00:30:20,090 --> 00:30:27,950 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. 278 00:30:28,780 --> 00:30:41,179 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. 279 00:30:41,180 --> 00:30:45,470 And just to pick up. Just very briefly on a couple of things that Jennifer said that I thought was very interesting. 280 00:30:46,070 --> 00:30:56,150 She said that the intervention in Libya looked as though it was overturning a long held policy of impartiality. 281 00:30:56,540 --> 00:31:05,180 But then you made the point that in the context of crimes, in distinction to warfare, impartiality might not be actually an appropriate response. 282 00:31:05,220 --> 00:31:11,660 Now, I would I would maybe nuance a little bit and say in the context of a criminal attack, 283 00:31:13,520 --> 00:31:20,300 to to be impartial may actually require abandoning neutrality. 284 00:31:20,630 --> 00:31:27,440 So, so, so preventing the criminal from executing a crime is to step back from neutrality, 285 00:31:27,440 --> 00:31:32,659 but it's not necessarily to step back from impartiality or impartiality. 286 00:31:32,660 --> 00:31:37,580 Understood as properly, appropriately. 287 00:31:37,580 --> 00:31:43,280 Exactly. Treating both sides equally. Might actually mandate an abandonment of impartial neutrality. 288 00:31:43,320 --> 00:31:49,280 So I probably would want to kind of nuance that by saying that although the action was not neutral, 289 00:31:49,280 --> 00:31:52,100 it could still be understood as impartial in that respect. 290 00:31:54,170 --> 00:31:59,340 So that's what I think was the opportunity in terms of defining the strategic objective of the intervention. 291 00:31:59,360 --> 00:32:03,530 I fear that it is probably a lost opportunity. 292 00:32:03,650 --> 00:32:08,990 I'm not sure whether we can actually get back to that role of simply providing impartial 293 00:32:08,990 --> 00:32:14,680 protection for civilians and trying to open up that space for peaceful civilian politics. 294 00:32:14,690 --> 00:32:17,479 I'm not sure we can get back to that from where we are at the moment, 295 00:32:17,480 --> 00:32:22,520 but I think that that was the opportunity we had in the opening days and weeks of the campaign. 296 00:32:23,480 --> 00:32:31,070 And then just very briefly, like I say, a couple of words on. On tactics and on targeting in the last couple of minutes. 297 00:32:31,850 --> 00:32:40,249 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 298 00:32:40,250 --> 00:32:47,990 very senior figures within the regime and whether potentially Colonel Gaddafi himself may be an appropriate target. 299 00:32:48,830 --> 00:32:53,600 Now, on one way of thinking about the ethics of war that I've been very persuaded by, 300 00:32:53,600 --> 00:33:01,610 which says that liability to attack in war is essentially a matter of responsibility 301 00:33:01,610 --> 00:33:09,860 for wrongful actions that are appropriate to resist or combat with force. 302 00:33:11,090 --> 00:33:13,490 On that view of thinking about liability, 303 00:33:13,550 --> 00:33:25,730 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, 304 00:33:26,090 --> 00:33:32,810 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. 305 00:33:33,110 --> 00:33:40,040 If anybody's responsible for those crimes, then it is surely the head of state is Colonel Gadhafi, much more so than, for example, 306 00:33:40,040 --> 00:33:45,470 an armed serviceman who might be doing nothing more than manning a radar station or an, you know, air defence system. 307 00:33:45,860 --> 00:33:54,680 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. 308 00:33:55,340 --> 00:34:04,040 The responsibility of Gadhafi seems much, much greater than than those much lower down uniformed servicemen. 309 00:34:04,400 --> 00:34:11,190 So why what they said is meant to be liable to attack and the and the head of state not. 310 00:34:12,430 --> 00:34:14,610 I think that's probably a little bit too easy. 311 00:34:14,630 --> 00:34:21,870 I think you have to recognise that the targeting of head of state would have very profound and momentous consequences. 312 00:34:21,990 --> 00:34:29,690 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, 313 00:34:29,900 --> 00:34:36,320 but what the reaction psychologically, politically, morally would be within our state if that kind of action was taken. 314 00:34:36,320 --> 00:34:39,320 It's a very, very profound step to take. 315 00:34:39,740 --> 00:34:47,330 So the question is, could we think about ways to make administrative all in a in an acceptable and appropriate way, 316 00:34:48,020 --> 00:34:56,210 which is more a a move to to act against the head of state. 317 00:34:57,020 --> 00:35:01,220 And one thing that we might want to. 318 00:35:01,410 --> 00:35:07,649 Think about, and I'm not sure what I want to commit to this or not would be trying a commission 319 00:35:07,650 --> 00:35:14,580 to target high ranking officials to the indictment process through the ICC. 320 00:35:15,420 --> 00:35:21,690 So we may want to think about some kind of process whereby if there is very strong 321 00:35:21,690 --> 00:35:30,000 evidence that a high ranking official is currently engaged in ongoing mass crimes, 322 00:35:30,270 --> 00:35:33,390 war crimes, crimes against humanity, genocide and so forth, 323 00:35:33,990 --> 00:35:49,170 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, 324 00:35:49,800 --> 00:36:01,890 then we might want to think about a mechanism whereby that person could be then identified as as a target for a military attack. 325 00:36:02,160 --> 00:36:06,290 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, 326 00:36:06,750 --> 00:36:16,170 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. 327 00:36:16,290 --> 00:36:23,130 Sorry. For any of the time that the last speakers of our time do you as a lecturer in public international law. 328 00:36:24,150 --> 00:36:28,049 Thanks very much. I want to start by addressing know those of you who are in front of me, 329 00:36:28,050 --> 00:36:32,910 but by addressing those who might be listening on a podcast because I spent the 330 00:36:32,910 --> 00:36:39,780 first 15 minutes chomping very hungrily on the sandwich and I was really hungry, 331 00:36:39,780 --> 00:36:43,169 which is why I decided to go go ahead with it. 332 00:36:43,170 --> 00:36:48,750 And this morning I was listening on the radio, radio for the program so that you may listen to it in our time. 333 00:36:49,080 --> 00:36:55,440 And you could quite clearly hear them pouring cups of tea, stirring the milk into the cup and all of that. 334 00:36:55,440 --> 00:37:01,860 And I just imagine that as I was eating my Sun Micro just in front of me, people are wondering what is going on. 335 00:37:03,210 --> 00:37:11,370 Okay, what I thought I would do is perhaps pick up on a couple of things that Jennifer and David have talked about and 336 00:37:11,370 --> 00:37:18,360 respond to some of the bigger questions about what Libya might mean in relation to responsibility to protect, 337 00:37:18,930 --> 00:37:27,419 and then talk about some more specific issues relating to what it is that the Security Council has authorised and in particular, 338 00:37:27,420 --> 00:37:36,749 pick up on some of these issues relating to targeting of whether it is lawful under the resolutions to support the rebels who are 339 00:37:36,750 --> 00:37:47,100 fighting in Libya and then perhaps finish off by talking about the role of the International Criminal Court in in the Libyan situation. 340 00:37:47,100 --> 00:37:51,840 Because, as you know, the Security Council referred the situation in Libya to the ICC. 341 00:37:52,110 --> 00:37:58,889 I'm just at the start of this week, the ICC prosecutor revealed that he's requesting arrest warrants for three individuals, 342 00:37:58,890 --> 00:38:03,270 Gadhafi, one of his sons, and I think a brother in law of Gadhafi. 343 00:38:03,270 --> 00:38:09,569 So I will finish off with that. But let me start with with the bigger picture and maybe start with where Jennifer started, actually, 344 00:38:09,570 --> 00:38:16,410 about what's unusual about Libya and what it is that the Libyan situation might be telling 345 00:38:16,410 --> 00:38:23,340 us about the way in which the doctrine of responsibility to protect might might develop. 346 00:38:24,330 --> 00:38:29,520 I think Jennifer's is right to point out, and I must say that I hadn't actually thought about this, 347 00:38:30,030 --> 00:38:38,820 that this is unique in the sense that, as she said, this intervention was carried out without the consent of the Libyan government. 348 00:38:39,210 --> 00:38:47,250 And I suppose the the reason for that sort of corollary for that is a corollary to that is that, of course, 349 00:38:47,640 --> 00:38:55,620 this is an intervention that is primarily directed against the government but based on humanitarian ground. 350 00:38:55,620 --> 00:39:04,679 So we have seen in the past a number of Security Council authorised operations which are justified on humanitarian 351 00:39:04,680 --> 00:39:12,540 grounds so that the so called robust peacekeeping that we've seen in Liberia and Sierra Leone and the DRC, 352 00:39:12,750 --> 00:39:17,129 even in even in Ivory Coast, were all justified on humanitarian grounds. 353 00:39:17,130 --> 00:39:21,300 One of the mandates of these missions was to create a safe area for civilians. 354 00:39:22,100 --> 00:39:27,240 This is the first time a different way of putting the same point that the general was making. 355 00:39:27,570 --> 00:39:32,940 This is the first time in which it is, if not explicitly in the resolution, 356 00:39:32,940 --> 00:39:41,670 but at least intended in the resolution to be an authorisation against the government and on humanitarian grounds. 357 00:39:41,850 --> 00:39:48,420 So it's not like Iraq 1991, which was against the government, but not primarily humanitarian. 358 00:39:49,530 --> 00:40:01,020 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. 359 00:40:01,120 --> 00:40:04,780 Council is and ought to be exercising its powers. 360 00:40:06,070 --> 00:40:14,740 I suppose that there are two reasons why I would be more reluctant than Jennifer is to say that things have changed. 361 00:40:15,250 --> 00:40:20,260 One is because of the reasons that Jennifer's already pointed out in the sense that the Security Council, 362 00:40:20,260 --> 00:40:26,770 even though in previous cases it had acted by consent, had also acted under Chapter seven. 363 00:40:26,860 --> 00:40:37,780 In other words, it had already indicated that it had the power to intervene in an internal situation in which the concerns were humanitarian. 364 00:40:38,170 --> 00:40:45,670 In other words, the Security Council had already indicated a different interpretation to Article 39 365 00:40:45,670 --> 00:40:50,830 of the Charter than what might otherwise be thought from the reading of Article 39. 366 00:40:50,860 --> 00:40:52,090 As I'm sure many of you know, 367 00:40:52,270 --> 00:41:00,160 Article 39 authorises the Security Council to act if there's a threat to the peace breach of the peace or act of aggression. 368 00:41:00,460 --> 00:41:07,390 And I suppose on an ordinary reading of that, one would have assumed that it was talking about an international situation. 369 00:41:07,900 --> 00:41:17,020 The Security Council has already indicated that it construed that provision as allowing it to act in humanity on humanitarian grounds, 370 00:41:17,290 --> 00:41:25,000 even in purely internal situations. Even though, as you say, has it has always done this in the past with with consent. 371 00:41:25,300 --> 00:41:33,670 So perhaps it's not that big of a of a shift, but perhaps it's the it's the opera. 372 00:41:34,270 --> 00:41:43,330 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. 373 00:41:44,260 --> 00:41:50,680 My second point in relation to what this might tell us about intervention and responsibility 374 00:41:50,680 --> 00:41:56,770 to protect actually draws draws from the point that David was making about thresholds. 375 00:41:56,770 --> 00:42:05,110 So David was talking about the possibility of crafting two sets of thresholds, one relating to permission and another one relating to obligation. 376 00:42:06,010 --> 00:42:12,520 And this is one of the questions that I that I have, which I think is still unanswered, 377 00:42:12,520 --> 00:42:17,890 at least to me, in relation to what precisely the concept of our two piece supposed to do. 378 00:42:18,760 --> 00:42:24,190 And I would imagine that the context about who is operating mainly at that second 379 00:42:24,190 --> 00:42:28,480 level that David was talking about in relation to obligation to intervene, 380 00:42:29,800 --> 00:42:34,810 because in relation to the permission to intervene, at least for the Security Council, 381 00:42:34,810 --> 00:42:39,400 I think that that is already well established that the Security Council has the permission. 382 00:42:40,060 --> 00:42:47,680 And so the further change that might come is one which suggests that the Security Council might, in certain circumstances, 383 00:42:47,950 --> 00:42:56,440 have the obligation to intervene now in relation to individual states or states acting outside the context of the Security Council. 384 00:42:56,830 --> 00:43:00,850 The question would be at that first level, is there permission in the first place? 385 00:43:00,850 --> 00:43:06,890 Right. But of course, Libya says nothing about the position of individual states to intervene. 386 00:43:06,910 --> 00:43:13,870 I think it only really tells us if it tells us anything, it tells us about the the situation of the Security Council. 387 00:43:14,110 --> 00:43:19,910 And it's in relation to that second question of obligation that I think the potential well, 388 00:43:19,970 --> 00:43:22,629 it's in relation to that second question that there could be any change, 389 00:43:22,630 --> 00:43:27,160 given that we already have, in my view, a permission for the Security Council. 390 00:43:27,790 --> 00:43:36,159 And I'm not sure that this episode indicates an acceptance or even a movement towards 391 00:43:36,160 --> 00:43:41,260 the view that there is an obligation on the part of the Security Council to intervene. 392 00:43:41,750 --> 00:43:49,600 And of course, the Security Council does use the language of responsibility to protect in the relevant resolutions, 393 00:43:50,080 --> 00:43:54,900 but it uses that in the context of of the responsibility of the Libyan authorities, 394 00:43:55,090 --> 00:43:59,470 not in the context of of the responsibility of the Security Council. 395 00:44:00,220 --> 00:44:03,250 So those are general questions about Libya and our two piece. 396 00:44:03,640 --> 00:44:10,330 Let me just address some more specific questions about what it is that the Security Council has done. 397 00:44:10,550 --> 00:44:16,660 And actually, my first point there, bridges between the specific and the general. 398 00:44:17,050 --> 00:44:26,470 And it's this point which Jennifer mentioned at the end of the authorisation in Security Council Resolution 1973, 399 00:44:26,830 --> 00:44:33,970 which is not just to protect civilians, but it also includes the language of protecting civilian populated areas. 400 00:44:34,870 --> 00:44:41,079 And it seems to me that what the Security Council was saying in authorising the use 401 00:44:41,080 --> 00:44:48,040 of force to protect civilian populated areas was to say essentially that these areas, 402 00:44:48,040 --> 00:44:51,190 towns and cities, were not to be the subject of attacks. 403 00:44:51,580 --> 00:44:59,510 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. 404 00:44:59,530 --> 00:45:02,710 What we're also seeing is that you should. Even put them at risk. You know what? 405 00:45:02,840 --> 00:45:09,680 You shouldn't even conduct operations that would put civilians at risk because the threat of an attack on a civilian 406 00:45:09,680 --> 00:45:19,160 populated area is in itself something which makes the the Libyan authorities and actually truth under the resolution as well. 407 00:45:19,190 --> 00:45:21,740 Even the rebels make them liable to attack. 408 00:45:22,040 --> 00:45:28,100 I think it's unlikely that the key to attacking the rebels, but it's not precluded under the under the resolution. 409 00:45:28,580 --> 00:45:34,399 Now, what this tells me, in other words, the fact that it's not just the protection of civilians, but civilian populated areas, 410 00:45:34,400 --> 00:45:41,960 is that essentially, I think the council is concerned about international crimes, but is concerned about more than that. 411 00:45:42,260 --> 00:45:49,520 It's not just about preventing war crimes or preventing crimes against humanity, but it's also essentially, 412 00:45:50,240 --> 00:45:56,180 at least if one assumes that the intention was to target the Libyan government side, 413 00:45:56,450 --> 00:46:00,560 it's essentially saying you must not carry this war any any further. 414 00:46:00,860 --> 00:46:05,690 It's really what the what the Security Council is saying. 415 00:46:06,260 --> 00:46:15,160 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, 416 00:46:15,170 --> 00:46:20,059 in other words, an interpretation which is about stopping threats to the peace. 417 00:46:20,060 --> 00:46:25,850 It's about stopping an armed conflict. The council, of course, is concerned about civilian protection. 418 00:46:25,850 --> 00:46:29,089 It makes clear when it talks about threats to civilians. 419 00:46:29,090 --> 00:46:34,219 But I think it's also concerned about trying to bring the conflict to an end, 420 00:46:34,220 --> 00:46:39,500 at least trying to bring the conflict as carried out by by the Libyan authorities to to an end. 421 00:46:40,340 --> 00:46:45,680 So that's my first point about what the resolution specifically authorises. 422 00:46:46,340 --> 00:46:50,989 The second point about what the resolution authorised and this again, 423 00:46:50,990 --> 00:46:56,170 picks up on the point that David was making at the end about the targeting of Gadhafi. 424 00:46:56,180 --> 00:47:06,200 This is an issue that has been hotly debated, whether the resolutions allow need to to to target Gadhafi personally. 425 00:47:06,770 --> 00:47:11,839 And there has been or at least there appears to have been a division amongst the 426 00:47:11,840 --> 00:47:17,360 politicians and and the senior military officers as to whether this was allowed or not. 427 00:47:17,600 --> 00:47:18,620 We know, of course, 428 00:47:18,620 --> 00:47:27,709 that there have been targets on what has variously been described as Gadhafi's compound command and control centres within Gadhafi's compound, 429 00:47:27,710 --> 00:47:31,400 Gadhafi's bunker, etc., etc. We know that there have been. 430 00:47:33,050 --> 00:47:38,540 There have been military strikes on places where Gadhafi might might be. 431 00:47:39,050 --> 00:47:45,050 And the question is, is this within the scope of Resolution 1973? 432 00:47:45,620 --> 00:47:51,500 In my view, it is within the scope of of Resolution 1973 in the sense that they put it this way. 433 00:47:51,770 --> 00:47:54,920 Resolution 1973 does not preclude it. 434 00:47:55,130 --> 00:48:01,190 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. 435 00:48:01,490 --> 00:48:04,920 In other words, I think it was wrong for David Cameron to say it is not allowed. 436 00:48:05,120 --> 00:48:10,370 I don't think that the position is that the fact that the resolution allows the 437 00:48:10,370 --> 00:48:16,520 use of all necessary measures to protect civilians on civilian populated areas. 438 00:48:16,820 --> 00:48:23,450 And so essentially the question really is some people have regarded that question to be one of what is necessary. 439 00:48:23,810 --> 00:48:29,960 But actually, in my view, all that that language means is that it's an authorisation to use force. 440 00:48:30,020 --> 00:48:35,450 This is the practice of the council, if you like, longhand for saying you may use force. 441 00:48:35,750 --> 00:48:39,200 This is the well-established language of the Council for saying you may use force. 442 00:48:39,470 --> 00:48:44,150 Now, of course, that force, though the authorisation to use force is not unlimited, 443 00:48:44,630 --> 00:48:51,350 but what limits that authorisation to use force are the objectives for which the is is used. 444 00:48:51,710 --> 00:49:01,620 And I think really what is needed here is something like the proportionality analysis which we conduct under, 445 00:49:01,670 --> 00:49:06,050 under the use that bellum under the international law relating to abuse had Belgium, I mean, 446 00:49:06,350 --> 00:49:09,710 the international law relating to the law of self-defence, 447 00:49:10,040 --> 00:49:18,800 where we ask ourselves questions about whether the overall use of force is proportionate to the objectives that we are trying to to achieve. 448 00:49:19,070 --> 00:49:23,720 And that is what limits the authorisation to use force. 449 00:49:23,960 --> 00:49:32,600 Of course, in addition to that, any use of force and any particular act of targeting must comply with international humanitarian law. 450 00:49:33,020 --> 00:49:39,349 But that would not be a bar to targeting a head of state who is also a commander in chief. 451 00:49:39,350 --> 00:49:43,729 Because as commander in chief and as one who is directing the forces, 452 00:49:43,730 --> 00:49:49,580 it would be lawful under international humanitarian law to to attack such such a person. 453 00:49:50,360 --> 00:49:56,209 The second question in terms of this very quickly, my time is nearly up, which has arisen in relation to the resolutions. 454 00:49:56,210 --> 00:50:00,950 Is is it lawful to either use force in support? 455 00:50:00,990 --> 00:50:09,180 What of the rebels? In other words, not just to protect civilians now, but perhaps close air support to permit the rebels to advance. 456 00:50:09,540 --> 00:50:13,950 All the discussion that we've had about arming and training rebels. 457 00:50:14,640 --> 00:50:25,950 And what we're told in the media is that the UK, France, possibly also the US, certainly Qatar are providing non-lethal equipment. 458 00:50:26,190 --> 00:50:32,870 I think is the expression that has been used to to the rebels and Qatar possibly even arms. 459 00:50:33,000 --> 00:50:38,309 Well, at least they've said they were going to provide the money for for arms until there's 460 00:50:38,310 --> 00:50:41,970 been this question about whether this is lawful under the under the resolution. 461 00:50:42,510 --> 00:50:53,280 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. 462 00:50:53,880 --> 00:51:00,900 And so the question is, if you have one Security Council resolution, which imposes an arms embargo on the territory of Libya, 463 00:51:01,200 --> 00:51:09,180 is it then lawful to justify providing arms to one side by reference to a subsequent Security Council resolution, 464 00:51:09,450 --> 00:51:12,870 which authorises the use of all necessary means? 465 00:51:13,380 --> 00:51:24,570 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, 466 00:51:24,840 --> 00:51:30,870 it's sort of like a force which authorises authorises the use of all necessary measures. 467 00:51:31,080 --> 00:51:38,610 It makes this subject to the paragraph in the earlier resolution, which imposes the arms embargo also. 468 00:51:38,720 --> 00:51:46,230 So it says it's notwithstanding its notwithstanding the earlier resolution, which imposes the arms embargo. 469 00:51:46,530 --> 00:51:53,670 And one would assume that that means that it is creating an exception to that earlier arms embargo. 470 00:51:54,060 --> 00:51:56,910 But in my view, even if that language did not exist, 471 00:51:57,030 --> 00:52:06,180 there would still be a permission if it were thought to be politically desirable to provide arms to the rebels. 472 00:52:06,420 --> 00:52:12,390 Now, like David, I also have significant reservations about whether this is wise. 473 00:52:13,200 --> 00:52:20,310 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. 474 00:52:21,270 --> 00:52:28,560 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. 475 00:52:29,100 --> 00:52:32,940 But that's not to say that it is unlawful to do so. 476 00:52:33,390 --> 00:52:38,640 And the way in which I reached this conclusion essentially is by reference to previous Security 477 00:52:38,640 --> 00:52:44,430 Council practice and also by reference to just the logic of the authorisation to use force. 478 00:52:44,910 --> 00:52:50,190 At a minimum, every authorisation to use force which follows from an arms embargo, 479 00:52:50,460 --> 00:52:54,840 must create an implicit exception for the people who are using force. 480 00:52:55,020 --> 00:53:00,959 At a minimum, they at a minimum must be allowed to bring in their own arms into the territory. 481 00:53:00,960 --> 00:53:04,230 They must be allowed to resupply their own troops. 482 00:53:04,950 --> 00:53:12,070 And I would argue that it also would allow those who are acting in concert to provide assistance to one another. 483 00:53:12,090 --> 00:53:19,890 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. 484 00:53:20,130 --> 00:53:29,160 The real question here is whether vis a this exception, which, as I argue, is necessarily implicit in the authorisation to use force, 485 00:53:29,520 --> 00:53:35,520 whether that exception applies in the case of assistance to a non-state group. 486 00:53:36,120 --> 00:53:43,890 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, 487 00:53:44,160 --> 00:53:48,300 it's also clear that the U.S. could provide assistance to the UK and to France. 488 00:53:48,630 --> 00:53:56,040 Does that mean that they can provide assistance to to a non-state group to achieve the same objective? 489 00:53:56,460 --> 00:54:05,880 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. 490 00:54:06,750 --> 00:54:09,880 In effect, it would be an indirect use of force. 491 00:54:09,900 --> 00:54:13,470 In other words, they're not using force directly, but using force indirectly. 492 00:54:14,010 --> 00:54:21,990 Having said that, though, any provision of of arms is necessarily limited to the objectives in the resolution. 493 00:54:22,020 --> 00:54:26,660 In other words, for civilian protection and for the protection of civilian populated areas. 494 00:54:26,670 --> 00:54:31,020 In other words, it can only be defensive. Now, this is the complication here. 495 00:54:31,230 --> 00:54:37,470 The complication, of course, is that if you protect if you provide arms for defensive purposes, 496 00:54:37,740 --> 00:54:42,930 what do you do when those who have those arms now want to use them offensively? 497 00:54:43,360 --> 00:54:46,370 Right. You can't say we gave you arms to defend yourself yesterday. 498 00:54:46,380 --> 00:54:51,510 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. 499 00:54:51,810 --> 00:54:57,960 But please sign here and say, you know, you must not use this training when you are advancing on Tripoli. 500 00:54:58,110 --> 00:55:01,909 That's the complication. Okay. I said I was going to say. Things about the ICC. 501 00:55:01,910 --> 00:55:05,990 But let me stop there. We can always pick that up in question and answer people. 502 00:55:06,080 --> 00:55:09,200 I'm sure you have no idea what your question is. 503 00:55:09,500 --> 00:55:14,690 I just of do I do remember what they gave us. 504 00:55:14,690 --> 00:55:19,460 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. 505 00:55:20,780 --> 00:55:24,110 There's just two points I wanted to make. 506 00:55:25,310 --> 00:55:33,290 One is, in a sense, when David asks about what should the thresholds be? 507 00:55:35,270 --> 00:55:44,930 My reading is that the summit outcome document in the evolution of RTP has partly answered that question by specifying for crimes, 508 00:55:45,560 --> 00:55:48,860 genocide, crimes against humanity, war crimes and ethnic cleansing. 509 00:55:49,730 --> 00:55:58,550 And so it becomes a very similar exercise to what exists in law after determining evidence for the existence of those crimes. 510 00:55:59,210 --> 00:56:04,790 So to me, the more theoretical general debate about thresholds has been changed. 511 00:56:04,790 --> 00:56:09,619 It's not about number of people. It's about proving the things that you have to prove when you're determining 512 00:56:09,620 --> 00:56:12,760 whether crimes against humanity are being committed or ethnic cleansing or. 513 00:56:13,010 --> 00:56:16,760 So I think it's changed the debate about thresholds in quite significant ways. 514 00:56:17,690 --> 00:56:22,940 And the second point I would make, I take David's point about neutrality and impartiality. 515 00:56:23,390 --> 00:56:32,330 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. 516 00:56:32,990 --> 00:56:36,890 I'm taking the pragmatic view that that's where the political consensus took us. 517 00:56:37,520 --> 00:56:40,250 That's what's been agreed upon. It's about crimes today. 518 00:56:40,850 --> 00:56:47,630 And I would say that because it's about crimes, it isn't about treating two sides equally anymore. 519 00:56:48,110 --> 00:56:51,710 It's not about parties in a conflict. It's about whether a crime is being committed. 520 00:56:52,430 --> 00:57:00,980 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. 521 00:57:01,190 --> 00:57:08,030 Now, maybe I mean to purist, but to me that is the logic we have bought into by making it about crimes. 522 00:57:08,030 --> 00:57:14,059 And I think that is a number of implications that we haven't fully thought through as diplomats, 523 00:57:14,060 --> 00:57:17,900 as actors who are supposed to be operationalising this principle. 524 00:57:18,810 --> 00:57:22,490 GREGG Yeah, I mean, I think the point about crimes is a really helpful one. 525 00:57:23,720 --> 00:57:31,190 But notice even when we're talking about crimes, there are still certain kinds of protection that even criminals are. 526 00:57:31,190 --> 00:57:37,009 Do you know we ought not to be partial even towards even towards those who are criminals. 527 00:57:37,010 --> 00:57:40,879 That's what you need to process. And you know what that is about. So yeah, I don't think we disagree. 528 00:57:40,880 --> 00:57:44,440 I think it's yeah, it's I think we yeah, it's really kind of terrible. 529 00:57:44,450 --> 00:57:46,100 But that's an interesting point you just make right. 530 00:57:47,090 --> 00:57:56,050 Then just very briefly on on Dubos point about I draw the distinction between what I said were two separate decision points. 531 00:57:56,060 --> 00:58:03,350 One is the point at which there is a permission to intervene when the target state does not have a right against intervention. 532 00:58:03,620 --> 00:58:08,959 And then another which would at which point I wanted to suggest we might want 533 00:58:08,960 --> 00:58:12,920 to think that intervention becomes presumptively mandatory or obligatory. 534 00:58:14,030 --> 00:58:22,720 And David said that he thought that in terms of the Security Council, that actually had to be about the second of those criteria, 535 00:58:22,730 --> 00:58:29,780 and it had to be about the question of when it became mandatory, because the Security Council already has the permission to intervene. 536 00:58:29,790 --> 00:58:34,669 Now, I guess I want to just this this may be a kind of slightly pedantic point, 537 00:58:34,670 --> 00:58:44,360 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. 538 00:58:44,930 --> 00:58:50,149 They have they have the power, but not necessarily the permission right now that the Security Council has the power to 539 00:58:50,150 --> 00:58:57,620 make it the case that one state is liable to intervention on the power of another state. 540 00:58:59,780 --> 00:59:04,790 But it could exercise that power either to generate a permission, which is essentially what it did in 1973. 541 00:59:04,790 --> 00:59:10,220 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. 542 00:59:10,280 --> 00:59:14,389 Right. I'm not even sure actually whether I mean, this is a question to the other way, 543 00:59:14,390 --> 00:59:21,440 whether there is a mechanism so that when the council mandates under Chapter seven, it is an obligation, though not the use of force. 544 00:59:21,440 --> 00:59:24,590 The use of force is not obligatory for anybody. Right. 545 00:59:24,680 --> 00:59:30,370 And no state is obliged to take up that permission that the Security Council is giving. 546 00:59:30,410 --> 00:59:34,190 Right. That was my understanding of 1973. And if that's the case, then that, you know, that distinction, 547 00:59:34,190 --> 00:59:43,150 that conceptual distinction between between when an intervention becomes permissible and when it becomes obligatory is still a really significant one, 548 00:59:43,190 --> 00:59:45,980 of course, at a high level in to the Security Council as well, 549 00:59:46,220 --> 00:59:55,070 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. 550 00:59:55,070 --> 01:00:00,530 But then, you know, the question arises that Security Council as well, are there situations in which it would be obligated to? 551 01:00:00,540 --> 01:00:05,930 Use that power in order either to create a commission or an obligation to intervene. 552 01:00:06,320 --> 01:00:10,040 There are other cases in which it might be permitted but not obligated to do that. 553 01:00:10,310 --> 01:00:16,800 Those obviously wouldn't know what kind of measure obligations that I guess couldn't couldn't really be properly legal. 554 01:00:16,820 --> 01:00:19,790 But what if you're literally looking at it because at least conceptually, 555 01:00:19,790 --> 01:00:26,120 you're going to have to face that question of of of of how we think about those two different decision points. 556 01:00:26,480 --> 01:00:30,940 And the answer might be, you know, drawing on the idea of the four crimes that they do actually collapse. 557 01:00:30,950 --> 01:00:40,339 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. 558 01:00:40,340 --> 01:00:43,940 But I don't see that accepted in practice. 559 01:00:43,940 --> 01:00:50,510 And I and conceptually, I'm not sure that that is necessarily absolutely the right way to go either. 560 01:00:51,860 --> 01:00:56,690 Well, let's take our panellists for an excellent discussion and thank the audience for all time.