Stefan Talmon is Professor of Public International Law at the University of Oxford.
A wind of change is currently sweeping through North Africa and the Middle East. While the transformation in Tunisia and Egypt has, at least so far, occurred peacefully the popular uprising in Libya, according to some media reports, has already claimed more than 1,000 lives. There were reports that the Libyan Air Force was ordered to bomb anti-government protesters in the city of Benghazi and the capital Tripoli. On 23 February 2011, UN Secretary-General Ban Ki-moon condemned Libyan President Muammar Al-Qadhafi’s actions against protesters as possible crimes against humanity. Others have gone further, referring to the events unfolding in Libya as ‘genocide’. Ibrahim Dabbashi, Libya’s deputy envoy to the United Nations, told the BBC that the crackdown on protesters in his country was ‘a real genocide.’ The Secretary-General of the Gulf Cooperation Council (GCC) Abdurrahman bin Hamad al-Attiyah said in a statement that the Libyan people are being subject to ‘an act of genocide.’ A view shared by the Foreign Minister of Luxembourg, Jean Asselborn, who commented on Qadhafi’s TV address to the nation, in which he said that he was going to fight to the last bullet: ‘He started genocide against his own nation.’
French President Nicholas Sarkozy and others have called for a NATO-imposed no-fly zone to be enforced over Libya to ‘prevent the use of that country’s warplanes against [its] population’. Such a measure could also prevent mercenaries, weapons and other supplies from reaching Qadhafi and his security forces. Others, including the British Government, are however, concerned that Russia and China could veto a no-fly zone at the United Nations Security Council.
Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action byNATO or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.
Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?
In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007), the ICJ held that States parties to the 1948 Genocide Convention are under an obligation ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible’ (para. 430). The content of the obligation varies greatly from one State to another and depends, inter alia, on
‘the capacity [of the State] to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide’ (ibid.).
It is argued that the least the 141 States parties to the Genocide Convention can do to prevent genocide, and are legally capable of doing, is to challenge genocidal acts before the ICJ. As the Court pointed out, the obligation ‘is one of conduct and not one of result’ (ibid.). The obligation, and the corresponding duty to act, arises at the instant that States learn of, or should normally have learned of, the existence of a serious risk that genocide will be committed. Bringing a case against Libya combined with a request for the indication of provisional measures to halt the (impending) genocide may be considered a ‘means likely to have a deterrent effect on those suspected of preparing genocide’ (para. 431).
Under Article IX of the Genocide Convention any Contracting Party can submit a dispute with another Contracting Party relating to the ‘interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide’ to the ICJ. The Libyan Arab Jamahiriya acceded to the Convention on 16 May 1989. Any Party to the Convention can thus bring a case against Libya for the non-fulfilment by its government of its obligation not to commit genocide against its own people.
Once proceedings against Libya have been instituted before the ICJ, the State bringing the case could immediately make a written request for the indication of provisional measures (Rule 73(1) of the Rules of Court). For the ICJ to indicate provisional measures it must first find that it has prima facie jurisdiction to hear the (merits of the) case, the existence of a risk of irreparable harm or prejudice to the rights which form the subject-matter of the dispute, and an element of urgency. Much will depend on the factual circumstances on the ground and the phrasing of the application. The fact that Libya is a party to the Genocide Convention without reservation to Article IX will not, on its own, be sufficient. In order to determine, even prima facie, whether a dispute within the meaning of Article IX of the Genocide Convention exists, the Court must ascertain whether the alleged breaches of the Convention ‘are capable of falling within [its] provisions [...] and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX’ (Legality of Use of Force (Yugoslavia v. United Kingdom), Provisional Measures, Order of 2 June 1999, para. 33). The Court will put particular emphasis on any evidence of Libya’s special intent to destroy a particular group as such (ibid., para. 35). The biggest obstacle to overcome in the present case, however, would be to show that the violence is directed against a ‘national, ethnical, racial or religious group’ (Article II of the Genocide Convention). As long as the violence is directed against political opponents of the current Libyan government, rather than particular tribal groups, it will be difficult to argue that the events taking place in Libya are capable of coming within the provisions of the Genocide Convention. Trial Chamber I of the International Criminal Tribunal for Rwanda pointed out that the crime of genocide targets
‘only “stable groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner’ (Prosecutor v Akayesu, Case No. ICTR-96-4-T, Decision of 2 September 1998, para. 511).
There must also be a sufficient connection or ‘link [...] between the alleged rights the protection of which is the subject of the provisional measures being sought, and the [rights forming the] subject of the proceedings before the Court on the merits of the case’ (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, para. 118). It is submitted that the rights at the heart of any genocide claim, and thus at the centre of any request for provisional measures, are ‘the right of existence of entire human groups’ (A/RES/96(1) of 11 December 1946), and the right to life of the individual members of the group. These rights are of such a nature that prejudice to them would be irreparable. According to Article 41(1) of the Statute of the ICJ the object and purpose of the indication of provisional measures is ‘to preserve the respective rights of either party’ (emphasis added). In the case of genocide, the State bringing the case before the Court is not technically protecting its own rights but those of the human group at risk. The prevention of genocide is a matter of international concern. It could be said that the State bringing the case is acting on behalf of ‘mankind’ (A/RES/96(1)) providing functional protection for the human group in question. The element of urgency will usually require that there is a ‘real risk’ that action prejudicial to the rights of either party might be taken before the Court has given its final decision.
Assuming that Article IX of the Genocide Convention constituted a basis on which the jurisdiction of the Court could prima facie be founded in this case and that the other requirements for the indication of provisional measures were fulfilled, the question remains whether a State instituting proceedings against Libya could request the Court to indicate as a provisional measure the establishment of a no-fly zone over Libya (in addition to the Court requesting the Libyan government to cease immediately its acts of violence against its own population). The fact that the Security Council is also seized with the situation in Libya and on 22 February 2011 issued a press statement calling ‘for an immediate end to the violence and for steps to address the legitimate demands of the population’ and stating that ‘members of the Security Council will continue to follow the situation closely’ (SC/10180 – AFR/2120) is not an obstacle to the simultaneous seisin of the ICJ and an application for provisional measures. The indication of a no-fly zone by the ICJ raises however the general question of the nature and possible content of provisional measures orders. Article 41(1) of the Statute of the ICJ provides that:
‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’ (emphasis added).
This provision would suggest that the Court has a very wide discretion in the sense that it can indicate any measure necessary for the preservation of the rights perceived to be at risk. Provisional measures orders are addressed to the parties of the dispute and may require them to take a certain action (positive orders) or refrain, and ensure that others under their direction and control refrain, from certain behaviour (negative orders). It is submitted that the Court could order the Libyan government to establish a no-fly zone over (parts of) its own territory if it considered such a measure necessary for the preservation of the right of existence of a certain human group in Libya. Such a measure would be binding upon Libya (LaGrand (Germany v. United States), Judgment of 27 June 2001, para. 109). The question of whether the Court can order the establishment of a no-fly zone, however, must not be confused with the question of whether the Court could authorize with binding force the party instituting the proceedings (and States cooperating with it) or any other party such as NATO to enforce such a no-fly zone. The Court is the ‘principal judicial organ of the United Nations’ (Article 82 UN Charter); it does not have any enforcement powers under the Charter. The enforcement of provisional measures falls, if at all, to the Security Council. According to Article 41(2) of the ICJ Statute
‘notice of the measures suggested shall forthwith be given to the parties and to the Security Council.’
Any measures indicated are to be communicated to the Security Council through the UN Secretary-General (Article 77 of the Rules of Court). This shows that within the combined framework of the UN Charter and ICJ Statute (Article 92 UN Charter) it is the Security Council who is responsible for the follow-up of the Court’s decisions and for its enforcement if necessary. The communication of a provisional measures order to the Security Council, however, does not mean that the Council will automatically enforce such an order. Even assuming that, despite its reference to ‘judgment’, Article 94(2) UN Charter was applicable to provisional measures decisions this would leave the Council with an almost unfettered margin of discretion as the Council would have to decide upon any measures to give effect to the Court`s pronouncements only ‘if it deems [it] necessary’. Experience to date shows that in such questions the Council will be guided more by political expediency than by considerations of law (enforcement).
Having said that, the Court’s standing in these matters should not be underestimated. The indication by the ICJ of a no-fly zone over Libya as a necessary measure to prevent a genocide in that country from unfolding would carry considerable weight with the Security Council and might help to build enough pressure on individual Council members to finally embrace their responsibility to protect the people of Libya. In the worst case scenario for international law, if the unilateral enforcement of a no-fly zone should become necessary in order to prevent genocide in Libya, the Court’s order could provide, if not legality, so at least some form of legitimacy for such action.