Jun 14, 2011 | Digital Industry, Globalization, Passage au crible (English)
By Jenna Rimasson
Translation: Davina Durgana
Passage au crible n°44
Pixabay
On June 1st, 2011, Google announced the piracy of its network. Affected by this operation are high government officials, Chinese dissidents as well as members of the army. Peking refused all implication in this cyber-attack, which was taken very seriously by Washington.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
Developed during the Vietnam War, the Internet became a technology intrinsically tied to the idea of combat, as militaristic as it is democratic. From then on, computer espionage became one of the threats against which States and transnational firms are trying to protect themselves. In terms of the virtual, it often sustains an engaged fight on other fronts. Thus, in April 2001, after the death of a Chinese pilot, above a Hainan island, caused by an American spy plane, the official website of the Pentagon was the victim of a cyber-attack. In 2004, the South Korean government was also targeted. The following year, the Chinese hackers were introduced in the networks of the largest Japanese firms – notably, Mitsubishi and Sony – the Embassies and the Ministry of Foreign Affairs of Japan. Note that this operation arose after the defeat of the PRC in facing the Country of the Rising Sun, before the Asian Soccer Cup, an event illuminated by the emergence in China of anti-Japanese sentiment. In 2006, the Navy War College system, in Newport, United States, was infiltrated before they were pirated by the French and German Ministries of Defense. Denying all responsibility of their Government, Prime Minister Wen JIabao had then presented his apologies to German Chancellor Angela Merkel on August 27th, 2007.
Theoretical framework
Cyber-criminality. It seems that criminal infractions such as fraud, violations of intellectual property rights, and of confidentiality, are perpetrated by technological tools, in particular with the advantage of the Internet. In accordance with this concept, issues are properly posed by new technologies as well as by the Revolution of Aptitudes of citizens and by their mobilizations in networks. Cyber-criminality has thus allowed different contested transparencies of State monopoles, notably that of the control of territory and security. Beyond the public order, Governments are sometimes obliged to negotiate with non-conventional actors, capable of exerting an impact on structures of knowledge and production. Industrial espionage is accomplished by technological means, such as to this end, through cyber-crimes.
Decompartmentalizing Public and Private Spheres. Already emphasized by Norbert Elias, the evolution of macro-social practices does not seem to be without ties with those of micro-social components. The acceleration of globalization, a global process, consolidates the interactions between heterogeneous actors. More than an interaction between these two spheres, one observes currently a remodeling of the international order previously dominated by States with entities capable of challenging them, that is to say equaling, national authorities.
Analysis
Desiring to preserve sovereign monopoles, the Chinese government attempts to control the development of emerging activism, associated with New Technological Information and Communication (NTIC). To this end, it integrates in its fight citizens competent in this growth. The SPLA (Sudan People’s Liberation Army) has invested in this domain and has consecrated today a Cyberspace Department. Thousands of engineers are thus recruited as Soldiers of the Net. The State and Civil spheres overlap and – thanks to this technological development – offer Beijing the opportunity to undertake a democratic opening from above. All at once, distinguishing this fundamental distinction is made more difficult – in the case of Cybercrime – by the incrimination of Chinese authorities by other countries; the State can always argue of a lack of jurisdiction and use as an excuse their powerlessness in facing private entities to exonerate all responsibility.
The control of these immaterial and decentralized flows as well as the elaboration of judicial measures reveal to be as complex at the international level as on the domestic level because the young generations, aspiring for more freedom, are exploring the possibilities offered by the Web and are forcing the adoption of a new mode of regulation policy. From this point on, the Government can no longer pretend to control all of the emissions of information and can see for example, the concurrence with citizen journalism. The security response demonstrates its inefficiency in a globalized world; the attempt of Chinese leaders to install filtering software on Internet sites – a Green Block – on particular computers has been unsuccessful. The inadequacy of these devices is much more confirmed on the transnational scene. Currently, the collectives formed on the Web, whether they are illegal or legal, allows them to voice their demands in a public space and to directly access the global arena. The distinction between local, national and international seems outmoded and suggests a glocalized universe.
The operations orchestrated on the Internet require the highest technological competencies, but remains inexpensive and acquires a strong media impact. They are far from being reserved for actors of the civil society that contest official actions; economic operators, public administrators and even illicit organizations will also use it. These network struggles are established between entities with similar natures and capacities, which are equally asymmetrical. To this end, recall the example of Sony where the network was pirated a week after the electronic mailboxes of Google. The interference of the border between individuals and the State thus extends to different fields in which the latter is successful as far as the creation of monopoles, and the abolishing of the hierarchal system dominated by public authorities.
If Cybercrime assumes certain characteristics of terrorism – surprise attacks, symbolic targets, media attention and a political objective – the past events have proven that the State actors are not only the targets. They can also retake to their side this informal instrument of combat with the objective of acquiring intelligence, of manipulating information or of degrading the systems which transmit information. Additionally, the process used and the achieving entity already contains in itself, a message. In the present case, the violation of the Gmail message service by Chinese dissidents and by American leaders is not harmless. Recall the trade dispute that had already taken place in 2010 between China and Google. This firm, accusing Chinese authorities of operating important censures, decided to transfer its network to Hong Kong. Additionally, this infraction and effect to the confidentiality has been inscribed in the context of financial tensions between Beijing and Washington. In fact, the PRC has announced in March the sale of 9.2 billion dollars in American Treasury bonds. Indirectly, this transaction has been translated into a contestation of the monetary hegemony of the United States where the credibility of gold is already attacked by a colossal public debt. Since the attacks on the World Trade Center in September 2001, the American authorities have adopted a repressive attitude and have implemented an active fight against these types of actions. Then, the heterogeneity of implicated actors and the fluidity of their mobility, questions the adequacy of the Stateframework, that is to say inter-state, to curb these threats. Plus, the refusal of governments has thwarted the installation of a global cyber-police since the creation of which would suppose an abandonment of powers of States for the global benefit. Finally, cyber-attacks perpetrated by other States and which the White House has lively condemned, emphasizes the stigmatization of promoting processes favoring entryism of non-State actors, destabilizers of the Westphalian order.
References
Arquilla John, Ronfeldt David, Networks and Netwars. The Future of Terror, Crime and Militancy, Santa Monica, Rand Corporation Publishing, 2001. par la Maison Blanche
Douzet Frédérick, « Les Frontières chinoises de l’Internet », Hérodote, 125, (2), 2007, pp.127-142.
May 28, 2011 | Human rights, Humanitarian, Passage au crible (English)
By Philippe Ryfman
Translation: Davina Durgana
Passage au crible n°43
Since mid-February 2011, the confrontations between insurgents and the loyal forces of Colonel Gaddafi have provoked a humanitarian crisis. Nearly 750,000 people (Libyans and Foreigners) have left the country since the end of the month of May. First mobilized by the massive exodus of foreign workers, humanitarian organizations have extended their activities towards the injured and towards the assistance of the civil population in combat zones and have taken charge of refugees.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
Humanitarian action is particularly visible in the public space through the prism of natural catastrophes, such as in Haiti in 2010 for example. However, recall that in the first place, the violence of the wars to which it remains indissolubly tied since its origin, in the XIXth century. In a conflict context, this is articulated around three areas: 1) Medical needs of civilian and military victims, 2) Essential services (food, water, sanitary), 3) population displacement. The principle humanitarian preoccupations (autonomy of aid agencies, access, logistic difficulties, insecurity, logic of instrumentalization, humanitarian law) remain recurring, but progressive.
Theoretical framework
1. During an armed conflict, the humanitarian role of non-governmental agencies and specialized United Nations forces has been proven essential. They must respect five basic principles – humanity, impartiality and non-discrimination, neutrality, independence and responsibility – as distinguished from politics. Then, operators must not have a monopoly with respect to other actors – notably State actors – who pursue overtly political objectives.
2. The situation in Libya reflects in international public law a non-international armed conflict with civilian populations as the principal victims. Additionally, on the humanitarian field, the distinction between civilians and combatants reveal a normative imperative. Finally, Resolution 1973 of February 26th, 2011 of the Security Council serves as the foundation of a military campaign – under the leadership of NATO – driven since March 19th, 2011, constituting the first concrete application of a new concept of International Humanitarian Law, as that of R2P (the Responsibility to Protect).
Analysis
Since the end of the month of March, the number of Libyans leaving the country has remained weak. The economy of oil rents function in Libya and rests on the number of foreign workers engendered by unsolicited humanitarian consequences. The flow of Egyptians, Chinese and Filipinos has been rapidly reabsorbed thanks to the intervention of their governments, of European countries and the IOM (International Organization of Migrations). In return, the departure of many Sub-Saharan nationals or natives of the Horn of Africa has remained precarious. Some have been able to regain their country, but many have not been able to or do not desire to. The EU (European Union), who dreads a migratory influx, is enforcing the prevention of all entry into the Schengen space, especially by sea. This humanitarian situation seems new, as well as the magnitude of the population flows due to the absence of all protective statutes. Around 55,000 Libyans are refugees in Tunisia, while 15,000 have succeeded in winning Italy.
Nevertheless, the two camps opened by the United Nations High Commissioner of Refugees at Dehiba and Ramada thus have been put in place by Qatar in Tataouine which are practically empty and which cannot shelter but hundreds of people. All of the other refugees are sheltered by their parents, individuals, or by local charitable associations. Often stripped and victims of violence on the road of exile, many – estimated at more than a thousand – are also dead in traversing towards Italy on small rafts of fortune. Thousands of Eritreans, Somalians and Sudanese continue to crowd into Tunisia in the camps of Chouch and of Ras Jdir, while on the Egyptian coast, at Saloum, they have sheltered cottages of fortune, authorities are resolutely opposed to the installation of camps. For now, ACF, Solidarity, CARE, the Red Cross and the Red-Crescent have provided sanitation needs, water and food. Considered as migrants and not as refugees – which explains further why the IOM is present on the sides of the UNHCR – their departure continues to be uncertain. While IOM has repatriated to Egypt 35,000 people in three months, but thousands are still blocked. At the same time, Somalians, Eritreans, and Darfouris have demanded to be recognized as refugees. Nevertheless, only Australia, the United States and Sweden have accepted for now to study reinstallation dossiers.
On the interior, the humanitarian situation seems very contrasted. Thus, in the Western part placed under the control of the NTC (National Transition Council), the needs today are limited and are almost covered by local aid and by international aid. As for the front line around towns of Brega and Ajdabya, specialized agencies in war surgery and the needs of the wounded (Medical NGOs and ICRC) have achieved punctual interventions. Note on this regard that the sanitary system put in place by the regime – overall of good quality – has not collapsed and continues to function. In return, humanitarians are busy by the departure of civilians living in the rebel villages besieged by government troops and blindly bombed, particularly Misrata and Zinten. The use of heavy artillery and of Grad missiles has been revealed to be deadly and destructive. Misrata, between mid-March and the beginning of May, has consequently become known as an urgent humanitarian situation; the health structures have been overwhelmed by the influx of wounded, combatants and overall civilians. Access to food, drinkable water and medications has been limited and directly dependent on supplying by sea. Thousands of foreigners have run for flimsy cover while ICRC and MSF have assured the essentials of the humanitarian response. The conditions are now improved, the rebel forces have succeeded in loosening the stranglehold of government troops. However they continue to bombard many quarters. In the mountainous zone, people of the Berber tribes, situated in the South-West of Tripoli and towards the Tunisian border, humanitarian agencies have virtually no access. The needs in terms of aid are probably considerably, even as all evaluation remains currently impossible.
It is important to emphasize the absence of the distinction between combatants and civilians, asserted by the regime, constituting a violation characterized by IHL (International Humanitarian Law). To this end, it must provoke the engagement of prosecution before the ICC (International Criminal Court).
References
Barnett Michael, Weiss Thomas. (Eds.), Humanitarianism in Question: Politics, Power, Ethics, New-York, Cornell University Press, 2008.
Holzgrefe J.-L., Keohane Robert O., Humanitarian Intervention, Ethical, Legal and political dilemmas, Cambridge, CUP, 2003.
Ryfman Philippe, Une histoire de l’humanitaire, Paris, La Découverte, Collection Repères, 2008.
Société Française de Droit International, La Responsabilité de protéger, Paris, Pedone, 2008.
May 27, 2011 | China, Human rights, Passage au crible (English), Peace
By Anaïs Henry
Translation: Melissa Okabe
Passage au crible n°42
On March 10th, 2011, the fourteenth Dalai Lama, Tenzin Gyatso, decided to relinquish his political power to the Prime Minister of the Tibetan Government in Exile. Thus, since April 27th, Lobsang Sangay has held the role of leader of the Tibetan community. This decision was very surprising, because for nearly four centuries the Dalai Lamas have embodied a power both political and spiritual at the same time, particularly in the eyes of the 150,000 Tibetans in exile worldwide.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
Tibet has experienced different periods of Buddhist diffusion since the 8th century. However, it was not until the 16th century that Sonam Gyatso, third monk of the Gelugpa (school of Buddhism) of the Drepung Monastery, was recognized for the first time as the Dalai Lama. Retrospectively, his two predecessors became the first and second Dalai Lamas; from then on they were all representative of the system of reincarnation. Initially, they only held religious power and were thus guarantors of four branches of Tibetan Buddhism, namely those of the Nigmapa, Kagyupa, Sakyapa and Gelugpa sects. But in 1642, “thanks to the support of the Mongols, the fifth Dalai Lama unified, […], a vast territory under the authority of an ecclesiastico-nobiliary government, in Lhasa, the Ganden Phodrang”. From this moment, the Dalai Lamas would exert a power equally religious as political in Tibet.
In 1949, Mao Zedong, who came to form the People’s Republic of China (PRC), ordered the invasion of Tibet. In 1950, Tenzin Gyatso – then only 15 years old – was inaugurated as the Dalai Lama. Despite his negotiation efforts with the Chinese government, he was forced into self-exile in India, on March 10th, 1959. Since this date, a number of Tibetans have similarly found refuge abroad. A majority among them has settled in border states (India, Nepal, Sikkim, Ladakh), but also in Europe and in Anglo-Saxon countries. From these first years, the Dalai Lama has laid the foundations of a government to protect his people and his culture. Thanks to the constitution that he established, a government in exile was formed in Dharamsala, in a democratic spirit and in respect of human rights.
The Dalai Lama received many awards for his battle in favor of nonviolence, human rights and peace. In this respect, let’s recall that he was awarded the Nobel Peace Prize on December 10th, 1989. More recently, the American Congress returned his gold medal in October 2007, to acknowledge its commitment in favor of nonviolence.
Theoretical framework
Let us retain two lines of force:
1. The Fulfillment of a Process of Democratization. The decision of the Dalai Lama illustrates Laurence Whitehead’s thesis. According to Whitehead, since the end of the bipolar world, we would witness the standardization of the process of democratization on the international scene, which would occur with the free election of political leaders.
2. Crossed-Games of Qualification. Let us emphasize the exile strategy developed by China and its implementation on the world scene, aiming at the Tibetan Nobel Peace Prize winner.
Analysis
Since his inauguration, the fourteenth Dalai Lama wished for a democratic change. In this perspective, before even leaving in exile, he modified the judicial system and raised the hereditary debt, which subjected the peasants to the aristocracy. After his departure abroad, he put in place a number of guarantor institutions for the Tibetan identity and facilitated the emergence of a democratic system. In the 1980’s and 1990’s, he encouraged the creation of offices in countries where important Tibetan communities were found to be settled. Thus, these populations can at present vote for their representatives. So, by entrusting the executive power to the Prime Minister, the Dalai Lama finalizes a process of democratization already in motion. More recently, the populations of the Arab world have up-risen against their leaders to demand democracy. But here, we are in a particular case of another configuration, because it is not the Tibetans who asked their leader to leave power, rather the contrary. This is no more a result from an exterior directive. Rather, it is a question of the paternalistic and charismatic politics of a seventy-five-year-old man who considered the time would come for the self-government of his people.
In addition to this consideration, one must equally understand that the Dalai Lama was the object of the politics of disqualification on the part of the Chinese authorities. Indeed, when he achieves an act or is in movement, the Chinese authorities criticize him. For them, it is about a friar in a monk’s robe, a separatist, a despot, trying to maintain his subjects in submissiveness. Mao Zedong has moreover legitimized, a posteriori, the invasion of Tibet, invoking the necessity to liberate it from a theocratic regime. At the heart of this operation includes, however, a manipulation of information, the researched objective being the illegal securement of an international legitimacy. However, today, the political leader of the Tibetan Government in Exile is henceforth a non-religious person elected by universal suffrage, by the majority of Tibetans in exile (55%). However, in the future, the Chinese government can no longer use this repertoire of stigmatization toward this new leader. Finally, China, but also other countries, have previously denounced the status of the Dalai Lama who mixes the religious and the political. Now, the change carried out recently in the devolvement of the executive power has negated this criticism.
This decision inscribes itself within the framework of a political fight, which has lasted for more than sixty years. By the act of nonviolence, the Tibetan people show how much they aspire to improve human rights in China, and to respect the right of all peoples to self-determination.
References
Heath John, Tibet and China in the Twenty-first Century, Londres, Saqi, 2005.
Stil-Rever Sofia, Le Dalaï-Lama. Appel au monde, Paris, Seuil, 2011.
Travers Alice, « Chronologie de l’histoire du Tibet », Outre-Terre, (21), janv. 2009, pp. 109-128.
Withehead Laurence, « Entreprise de démocratisation : le rôle des acteurs externes », Critique internationale, (24), mars 2004, pp. 109-124.
May 23, 2011 | European Union, Human rights, Passage au crible (English)
By Franck Petiteville
Translation: Davina Durgana
Passage au crible n°41
Faced with the Libyan Crisis in the Spring of 2011, the European Union (EU) has progressively taken part in the Benghazi protests, demanding the depart of Colonel Ghaddafi, by adopting sanctions against his regime on March 11th, 2011 and proposing a European military operation for humanitarian purposes on April 1st.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
The calling of the EU to manage international crises is as old as the first experience of collective diplomacy via the European Political Cooperation of the 1960’s. The Maastricht Treaty (1992) has raised the ambitions of the EU in the management of crises, in creating the CFSP (Collective Foreign and Security Policy), remaining overall powerless in the conflicts of the Former Yugoslavia (250,000 deaths). The launching of the European policy of defense in 1999 has progressively endowed the EU with military instruments to handle the crisis, which have been notably used in Africa in the 2000’s (interventions in the Democratic Republic of Congo in 2003, in Chad in 2008, and on most of the Somalian coast in 2008-2009).
For their side, the involvement of the EU in the Mediterranean is equally old. It has known different levels during the last fifteen years: the process in Barcelona (1995), resting on an ensemble of accords of economic cooperation and development aid, the neighborly policy (2004), and then the Union for the Mediterranean launched in 2008.
The EU has been suddenly caught by surprise by the Arab Spring. Emerging initially in a dispersed manner, the heads of State and the Government of the EU have searched to show a common position during the Extraordinary European Council on March 11th, 2011. They have affirmed their support for the Arab revolutions and notably with the announcements of democratic transition in, Egypt and Tunisia. As for Libya, they have inversely condemned the repression, declaring Colonel Ghaddhafi “illegitimate”, and recognizing the “National Council of Transition” established by the Benghazi protesters as a “political representative”. In support of the Security Council resolutions of the United Nations, the EU has equally adopted diverse sanctions against the Ghaddafi regime (arms embargo, visa ban, freezing of assets, etc.) It has notably demonstrated the intention to prevent the regime from gathering the dividends of the exportation of petrol and gas. On April 1st, EU crossed a new stage in creating bases of EUFOR Libya, a military operation relevant to the CFSP, aiming to secure humanitarian aid for displaced persons by the conflict and is susceptible by prompting demand on the Office for the Coordination of Humanitarian Affairs of the United Nations.
Theoretical framework
Retain two lines of reasoning:
1. The Libyan Crisis as a Litmus Test for the Cohesion of the 28
In a Realist theoretical perspective of international relations, the notion of European foreign policy seems improper. In fact, only States possess the attributes of foreign policy: sovereignty, national interest, military power. In this perspective, the Member-States of the EU should always be reticent to cede their sovereignty in the matter of high politics, as it has done in the economic domain. Thus, Realists are not surprised that, following large international crises, the Member-States of the EU respond in a dispersed manner and demonstrate initially their national interest, such as the European division in 2003 on the war in Iraq. In turn, the Libyan crisis could give the sentiment of reinforcing this vision because the Europeans have not shown a very strong or very visible common position. The France of Nicholas Sarkozy and the United Kingdom of David Cameron have thus precociously imposed the idea of an exterior armed intervention. As for Germany of Angela Merkel, they have to the contrary, refused all risk of involvement in war, and have abstained during the vote on Resolution 1973 on March 17th, 2011 on the Aerial Exclusion Zone of the Security Council. For their side, the Italy of Berlusconi has not stopped procrastinating, since the reaffirmation of the Italian-Libyan friendship at the beginning of the crisis until the conversion pressured on coalition armed operation at the end of April 2011.
2. A Credibility Test of European Foreign Policy after Lisbon
Many attempts have occurred in recent years simultaneously in the new potentialities of the European policy of collective defense and in the new levers of European foreign policy created by the Lisbon treaty: the President of the European Council, the post of High Representative for Foreign Affairs and Security, and European Service of Foreign Action. For now, it is not sure that the handling of the Libyan Crisis by the European Union has responded to these attempts. In fact, on the military plan, it’s NATO and not the EU that has taken in charge of the operation of bombardment of the forces of Colonel Ghaddafi. The European defense policy was not mobilized for conflict margins, but to eventually put in place a humanitarian operation. On the diplomatic plan, Herman Van Rompuy and Catherine Ashton have ensured that they can relay European positions on the international scene, but their visibility has remained limited by the minimalism of the harmony between the 28. It could then be said that the Libyan Crisis has at once revealed the capabilities and expectations gap maintained by European treaties and the official discourse of the EU. Otherwise said, the pit continues between the attempts incited by the EU before public opinion and its effective realizations in the international order.
Analysis
The Arab revolutions globally, and the Libyan crisis in particular, have proven the limits of European Foreign Policy. Europeans have taken time to react positively to the democratic claims of Arabic peoples and have shown a clear position in favor of the resignation of dictators, as Obama had rapidly states about Ben Ali and Mubarak. Substantively, this spiral of revolutions is empty of consistence with the policies of cooperation promised from a long time by the EU in favor of the Mediterranean. Never has the democratization of the region appeared as a central stake of this policy (the clauses of democratic conditionality inserted in the Euro-Mediterranean accords have never been activated). In return, the European fear of immigration from Northern Africa and Sub-Saharan Africa has been revealed as a long-term structural stake of European policy. This is more than ever the case in the aftermath of the Arab revolutions and the Libyan crisis.
Faced with the perspective of an armed intervention in Libya to give substance to the famous “responsibility to protect”, Europeans have not thus reached a substantial agreement. While the EU has supported successive resolutions of the Security Council, notably on the sanctions against Ghaddafi, on the jurisdiction of the International Criminal Court, and toward the launching of an aerial exclusion operation. The EU has also participated in talks of the Contact Group on the future of Libya with the Arab League and the African Union. In doing so, the EU always remains in retreat behind the Security Council, and relatively absent behind the initiatives of certain Member States (France and the United Kingdom at the lead). On the military plan, the European offer of a military-humanitarian complementary intervention was not negligible, but – if it sees realization – it will never be anything but a limited and auxiliary operation of the strong military intervention of NATO. The European management of the Libyan Crisis leaves thus the souvenir of a reaction contingent on the smallest common denominator (sanctions, humanitarian operation) between the Member States divided again on legitimacy or the recourse to use of force.
References
Delcourt Barbara, Martinelli Marta, Klimis Emmanuel (Éds.), L’Union européenne et la gestion de crise, Bruxelles, éditions de l’Université de Bruxelles, 2008, 270 p.
Petiteville Franck, « Les mirages de la politique étrangère européenne après Lisbonne », Critique internationale, avril-juin 2011, pp. 94-112.
May 2, 2011 | Human rights, International Justice, Passage au crible (English)
By Yves Poirmeur
Translation: Davina Durgana
Passage au crible n°40
The United Nations Security Council decided in Resolution 1970 on February 26th, 2011 to give jurisdiction to the ICC (International Criminal Court) on the situation in Libya. In fact, the regime of Colonel Ghadaffi is suspected of committing crimes against humanity since February 15th, 2011 in repressing the insurrection which had broken out in the East of the country and in directing systematic and generalized attacks against the civilian population. The Prosecutor of the ICC, Luis Moreno-Ocampo, opened an investigation from March 3rd, 2011. Then he announced on Friday, May 13th, 2011 that he would ask the judges to deliver international arrest warrants against “three people that seem to carry the most responsibility“. Additionally, recall that as Resolution 1970 has not dissuaded the Libyan government from pursuing its military repression, the Security Council authorized an aerial military intervention. (Resolution 1973, 2011).
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
Created in 1998 by the Rome Convention, the ICC represents the first permanent and independent international criminal jurisdiction charged with judging the perpetrators of the most serious international crimes, which the State Parties have not prosecuted, in application of their universal jurisdiction. As 78 of the Member-States of the UN have not ratified the Statute and can provide asylum to these criminals, the option offered to the Security Council to use this jurisdiction, as a measure which can be taken against a situation that threatens international peace and security (Chapter 7 of the United Nations Charter) is a complementary means of efficiently fighting against impunity. This procedure was already used for the first time for the crimes committed in Darfur (Resolution 1593 on April 1st, 2005). In utilizing this again, the Security Council has thus confirmed the legitimacy of the ICC to address situations where States refuse its competence and denounce the ICC as a Western instrument of Imperialism. In quickly deciding to refer this situation, the Security Council has renewed interest in this mechanism for preventative usage as well.
Theoretical framework
1. The penalization and judicialization of international conflicts. The authority of the ICC is not imposed only on States that have accepted its jurisdiction by ratifying the Rome Statute. In fact, as they are by nature rare and precise, the resolutions of the Security Council extend to the situations that they have referred to the ICC the global authority that it retains. In quickly deferring a situation as was done with Libya, the Security Council consequently does not only support the legitimacy of the ICC as a global criminal judge, charged with surveillance over the obligation of States to protect their populations. It additionally replaces conflict on the domestic criminal domain, and in doing so, increases the repertoire of measures with which they could treat the conflict.
2. Economy of international sanctions extended to criminal threats. The referral of the Libyan situation to the ICC confirms the idea that the threat of international criminal repression could play an important role in the prevention of international crimes in dissuading the fulfillment of an act. The use of the ICC enriches the arsenal of measures intended to prevent a conflict and to reestablish the peace. It participates in a new economy of international threats placed on political leaders. This rests upon: 1) highlighting the gravity of the criminal sanctions incurred; 2) the certainty of prosecutions that will be engaged against perpetrators of crimes; 3) the existence of a competent jurisdiction in which to judge these crimes. Nonetheless, if this doctrine of employing this threat is clearly established, its dissuasive power remains however very limited.
Analysis
Unanimously adopted among the six members of the Security Council – of which three permanent members (United States, Russia, China) – have not ratified the Rome Statute, Resolution 1970 consolidated more legitimacy as the ICC received support from the Arab League and the African Court of Human Rights. This approach is invoked by the Security Council immediately as a State can no longer assure the responsibility of protecting its population from genocide, war crimes, and crimes against humanity (World Summit 2005, (60/1)) and is fully recognized. Ranging symbolically from the side of people against their tyrants and presented as capable of retaining them in their criminal institutions, the ICC is inserted in the coherent institutional network of the protection of human rights and the fight against impunity which includes notably NGOs which defend human rights, the Committee of Human Rights, and regional organizations. The ICC seems to be a crucial component of regional organizations and benefits in this respect from its sympathetic capital. Globally, the context of Arab revolutions has proven to be helpful in diffusing the image of the ICC as a protector of the people. It additionally permits the disqualification of the idea of the ICC as simply a Western instrument of Imperialism. As interventions are reclaimed by insurgents who denounce the crimes of the dictatorship, which are then condemned and defended with great difficulty by the leaders of authoritarian regimes who have attempted to maintain their power with limited democratic overtures (Morocco, Algeria).
If the open investigation is directly aimed at Libyan authorities and if the Prosecutor of the ICC chooses to act based on the fact that it also covers the crimes eventually committed by the insurgents, Resolution 1970 has strictly defined the object of its jurisdiction – crimes against humanity committed since February 14th, 2011 – and excludes the nationals of States which have not ratified the Statute of the Court. This arrangement shows that the fight against impunity always resides directly tied to the interests of States. While the legitimacy of the ICC will be without a doubt better assured without such exceptions, which incurs criticism of selectivity. However without this, the situation could not have been deferred and the decided American participation in the aerial military intervention would have then been compromised.
As the arsenal of classic measures does not allow the use of force (United Nations Charter, Article 21 and Article 41) applicable to persons – travel restrictions, freezing of assets – immediately affect their targets, for international justice to act as a threat and to have a dissuasive role, it must confer a high probability of arrest, prosecution and conviction of the leaders of international crimes. Additionally, even if the credibility of the international criminal court could commend strong convictions since the creation of the ICTY and current open investigations, they remain too rare to enter the criminal risk into the calculations of dictators as hardened as Mr. Ghaddafi, of military leaders and special police in the repression of armed factions, all ready to maintain to ascend to power. The pursuit of the repression has, in fact, confirmed that the guide and the majority of Libyan leaders are inaccessible to this argument. Only systematic references intervening from the first warning to the provision of sufficient financial means (Resolution 1970 leaves the financing to fall to the burden of the State-Parties to the ICC Statute) to lead investigations, converting this risk into quasi-certainty that could perhaps render the criminal activities of less determined leaders susceptible. The slowness and restraint with which the Security Council, for reasons and specific interests for the region concerned, dealt with the Libyan situation and lateness in sending it to the ICC (if it ends up completing its investigation) contrasts with its promptness – only 10 days after the beginning of the conflict we saw the first information retrieved by the Commission on Human Rights – to defer the Libyan situation. Such a discrepancy confirms that it will take a lot of time for the certainty of punishment to be able to lead to preventative virtues for the jurisdiction of the ICC. On the other side, it seems likely that international stigmatization of main regime leaders such as international criminals in power will encourage their separation, retreat, and the rallying of insurgences of less engaged political and military leaders that will remain loyal to the regime. However, beyond this uncertain preventative effect, such a jurisdiction presents other repressive merits. Thus, allowing the ICC to open an investigation and to immediately collect evidence that would be more difficult to collect later and – if the elements are all met – to rapidly deliver international arrest warrants before the conflict has even ended. The emission of such orders has rendered impossible – or at least made extremely difficult – all political arrangements, which are designed to ensure impunity after finding themselves in a safe haven.
References
On the conflict: Marzouki Moncef, Dictateurs en sursis. Une voie démocratique pour le monde arabe (entretien avec Vincent Geiser), Paris, Éd. de l’atelier, 2011.
Security Council: Résolutions 1970 (2011) et 1973 (2011) on the Libyan situation.
