Operationalising the Law of Armed Conflict for Dissident Forces in Libya.

As the conflict in Libya appears to be drawing to a close, more allegations are surfacing that war crimes have been committed, and fears have been expressed that reprisals may occur.  The allegations made against the Qadhafi forces of torture and wilful killing (see here and here) are grave, but a Human Rights Watch report that alleges that Libyan dissident forces have unjustifiably damaged property, beaten individuals, and looted hospitals, homes and shops, is also disconcerting.

These allegations are at odds with the declared policy of the Libyan National Transitional Council (NTC) which, on March 24 stated, in relation to the treatment of detainees and prisoners, that “its policies strictly adhere to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ as well as with the ethical and moral values of the Libyan society”.  This statement continued:

“1.        Any Libyan caught whether they be military personnel or citizens recruited to cause sabotage and spread chaos, should not be titled as ‘Prisoner’ but as a Libyan brother (or sister) who has been deceived.

2.         All prisoners and detainees will be provided with food, water and necessary medical assistance and will be treated humanely, without the use of aggression in any form. The NTC will vow to punish those who violate this code and will allow local and international human rights organizations to freely visit and talk to the detainees and prisoners at any time.”

Further, on May 19 the NTC launched a frontline manual on the fundamental rules of armed conflict (see here for the Manual). This has been distributed in various forms, including sending extracts as text messages on mobile phones.  This manual was intended to demonstrate its commitment to do its best to ensure that its forces would adhere to the principles of international humanitarian law, and thus minimize harm to the Libyan people.  In its press release no.21 (which is not on its website), the NTC stated:

 “We recognise that many of those men and women who have taken up arms in opposition to the Qadhafi regime are not combatants who have been formerly trained in the laws of armed conflict. As such, these guidelines were requested in order to help instruct them, as rapidly as possible, in the fundamental rules which they must respect, in particular those relating to the humane treatment of detainees and to targeting in an armed conflict.”

Shortly after the outbreak of conflict in Libya, some expatriate lawyers established a group, Lawyers for Justice in Libya (LFJL) which has the aim of promoting human rights in Libya and, in particular, investigating and documenting possible crimes against humanity committed by the Qadhafi regime since 15 February 2011, and also human rights abuses committed since that regime came to power 42 years ago.

As the group organising Libyan dissident forces, the NTC did not want to “act like Qadhafi and his forces”, it asked LFJL to advise on the applicable rules of the law of armed conflict.  Through personal contacts, LFJL assembled a small group based in the School of Oriental and African Studies, University of London, to draw up basic guidelines for use in the field. We were asked to focus on two areas: guidelines for the detention of captured Qadhafi forces, and guidelines on targeting. Our brief was to provide concise guidance which would set out basic legal standards with the aim of advising how the dissident forces could avoid breaching the law of armed conflict or, for that matter, expose themselves to liability under international criminal law.

Accordingly, these guidelines have two functions: to set out basic standards of behaviour, but also to provide standards of accountability.

This proved to be a challenging task. The guidelines were for the use of untrained fighters who have received no prior instruction in the law of armed conflict. They had to be easily understandable. They were drafted in English, but we were aware they would ultimately be translated into Arabic. We were fortunate that one of the team is a lawyer fluent in both Arabic and English so that problem was not insurmountable, but it still had to be borne in mind. An analogous consideration was that the guidelines should try to be sensitive to cultural and religious sensibilities.

The process was reasonably straightforward. We collected materials, including examples of guidance cards issued by regular armed forces, and asked colleagues for their suggestions. We exchanged many emails and talked at length, identifying the issues that we thought must be addressed in our basic guidance. We drafted. And then our first draft was distributed to three external experts in the law of armed conflict to receive their feedback.  They pointed out areas that needed to be fleshed out and suggested how the guidelines should be augmented. We redrafted and redistributed and reconsidered the feedback we received. This has been a continuing and collective process. When I discussed a draft of the guidelines at the Irish Centre for Human Rights in early May, it was pointed out that we had made no mention of child soldiers. To be honest, this was because we were working under pressure and were focused on our brief of explaining standards for detention and targeting. Shortly afterwards, however, the NTC itself asked for advice on child soldiers and we incorporated a few basic points in another revision. Nevertheless, we are sure that the guidelines are incomplete, but we think that the basics are covered.

The first decision to make was how should the conflict be classified? The NTC was by then in control of part of Libyan territory and carrying out sustained and concerted military operations. The situation had obviously moved beyond a human rights/law enforcement paradigm, as its magnitude exceeded that of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” to employ the terminology of Additional Protocol II, to which Libya is a party.  As far as the conflict between the NTC and pro-Qadhafi forces were concerned, it was clear that it amounted to a non-international armed conflict—a view also adopted by the ICRC (see here).

Accordingly, at first instance, the applicable law should be that found in common Article 3 of the Geneva Conventions and Additional Protocol II. While these provide basic protections for those not taking part in hostilities, including fighters placed hors de combat, for the wounded and sick, for medical units, and for detainees, the conventional rules on matters such as targeting and detention in a non-international armed conflict are, at best, rudimentary. We thought that these were inadequate and decided that it was necessary to augment the conventional rules by having recourse to customary law, but also to apply by analogy some conventional rules which would formally only be applicable in an international armed conflict. In short, we thought it necessary to suggest some standards which were in excess of those which need lawfully be applied, such as notifying the ICRC of the identity, location, and release of detainees.

The ability of both parties to detain during a non-international armed conflict is simply assumed by both common Article 3 and Additional Protocol II, inasmuch as both mandate protection for “persons deprived of their liberty for reasons related to the armed conflict” (APII, Article 5.1), but no legal basis is given for dissident forces to do so. There is also a practical gap in the conventional law. During an international armed conflict, the Third Geneva Convention provides that prisoners of war should be logged by capture cards (see Article 70). Prisoner of war status is not applicable during a non-international armed conflict, and there is no similar conventional procedure to keep track of detainees, but ICRC customary rule 123 provides “The personal details of persons deprived of their liberty must be recorded”. We thought it practical to indicate that a method similar to the capture card should be used by the dissident forces in order that they had a record of who they had detained, and where. If implemented, we thought that this might also be a safeguard against allegations of enforced disappearances.

In trying to tailor the basic rules for the specific conflict, we tried to account for local cultural and religious sensibilities. For example, we were told that, under the Qadhafi regime, people expected to be beaten up as a matter of course on arrest. The guidelines emphasise that this must not happen to detained pro–Qadhafi fighters, or any other detainees for that matter. A tricky problem was to try to explain economically the prohibition on reprisals and collective punishments without descending into legalese.  The solution adopted was to use the word “revenge” which, we were assured, on translation into Arabic would capture the essentials of the legal notion of reprisals.

The guidelines are perhaps over-determinative as they leave little room for the use of discretion in their application. This was inescapable given the conditions in which they are intended to be used. The untrained fighter in the field, we thought, needed clear and relatively unequivocal guidance. This was done using two formats: a flowchart to provide clarity in deciding whether someone should be detained; and a set of fairly simple propositions to govern matters such as the treatment of the dead, the wounded and the sick, conditions of detention, and basic rules on targeting.

It is worth recalling that virtually a century and a half ago, in 1862, General Halleck, the commander of the Union Army during the American Civil War proposed an initiative that has rippled through the history of international law. Attributing the brutality of the fighting that had begun a year earlier to the lack of training in the laws and customs of war of the largely volunteer armies of both sides, he proposed that such scattered rules as there were be drawn together so that the Union’s army could be more easily and quickly trained. On 23rd April 1863, General Order No. 100 was promulgated by President Lincoln. Better known as the Lieber Code, this is credited as having provided the inspiration for the 1874 Brussels Conference at which the question of the codification of the war of law on land was first discussed. While no binding treaty resulted from this conference, the resulting Brussels declaration was the text upon which the 1899 Hague Peace Conference based its negotiations. That conference resulted in the 1899 Hague Convention II respecting the Laws and Usages of War on Land.  The rest, as they say, is history.

It is striking that the instant guidelines were requested to deal with a similar problem to that which worried General Halleck under the similar circumstances of a non–international armed conflict. The law has become increasingly codified and much more complicated since Lieber’s day, but the problem of how to train a hurriedly assembled force of untrained men is as acute in the current conflict in Libya as it was in that earlier one.

One may hope that the implementation of these guidelines has lessened suffering during the conflict in Libya, and perhaps indicate a new and welcome trend in the conduct of contemporary non-international armed conflicts. It must be recalled that the NTC itself decided that it needed legal guidance and requested that the guidelines be drawn up.

Click here for Final Libyan LOAC Guidelines 17 May 2011