ITPCM International Commentary Vol. VII no. 28, December 2011

The ITPCM International Commentary

International Training Programme ISSN. 2239-7949 for Conflict Management

in this issue: A SECURITY CROSS ROADS EUROPEAN PERSPECTIVE LIBYA & BEYOND Dear Reader

We are happy to send out this second security perspective. During the last quia - Debating European Security - in issue of ITPCM International Commen- academic year, the Scuola Superiore the framework of the Jean Monnet Pro- tary, entirely devoted to recent events Sant’Anna organised a series of lec- gramme and financed by the European in Libya, analysed from the European tures, workshops and research collo- Commission through the Education,

continued

Arab spring or revolution? Libyan energy fuelling Crimes against humanity & by Katerina Pishchikova, p. 5 Europe UNSC Res. 1970 by Andrea Prontera, p. 14 by Alice Riccardi, p. 24 Libyan civil war step by step Taking flight from Libya Sic transit gloria mundi. by Dario Sabbioni, p.8 by Oladapo Kayode Opasina, p. 18 And now what? by Giulio Maria Raffa, p. 28 Weapons exports to Libya The EU Defence Policy in by Simone Tholens, p. 11 Libya. Test failed about the ITPCM: by Barbara Nicoletti, p. 21 Trainings Offer 2012, pp. 33

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Audiovisual and Culture Executive At the end of the publication our read- Agency (EACEA). The purpose of the ers will find as usual a list of main ac- programme, designed by Prof. Straz- tivities and trainings on the ITPCM zari, Dr. Coticchia and Dr. Pishchiko- agenda, many dealing with similar is- va was to foster interactive fora to de- sues in a more concrete and operative bate the different facets of European way. Our website remains the main security, exploring a number of issues reference point. that range from foreign policy and in- ternational relations to the emergence Our warmest regards and best wishes of a home security industry. for what we hope to be a peaceful and recovering Christmas break and hap- It was on the occasion of one of these py New Year 2012 to all of you. colloquia, last June 2011, that we de- Andrea de Guttry cided to produce an issue focussing on the rapidly evolving situation in Libya. While discussing impacts and implications of the revolution, we agreed to take stock of political analy- sis, relevant academic research and journalism debated during the collo- quium and to re-elaborate them in the form of op-eds, briefings and articles. All contributors, invited scholars as Andrea de GUTTRY well as researchers, PhD candidates ITPCM Director and students of the Scuola, are to be equally praised for their efforts, in- valuable insights and help. Thanks to the ITPCM their effort and availability we man- International Commentary aged, maybe, to have enlightened crucial aspects and disclosed relevant knowledge that otherwise would Editor in chief: have remained confined to the strict Francesco Ceccarelli circle of the research colloquia attend- Director and Scientific Supervision: ees. Professor Andrea de Guttry Editor: The ITPCM International Commen- Michele Gonnelli tary is meant to be an open space for Contributors to this issue: knowledge sharing and dissemina- Barbara Nicoletti, Kateryna Pishchikova, tion. An opportunity to draw atten- Andrea Prontera, Oladapo Kayode tion and interest to less debated or Opasina, Giulio Maria Raffa, Alice often overlooked issues beyond the Riccardi, Dario Sabbioni, Simone mere political, social or international Tholens column. We hope, with this issue, to Graphic Design: have taken a further step towards Michele Gonnelli those achievements.

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Security matters.

Libya has almost disappeared from The NTC is ruling over this people (or horizontal dimension, as mentioned international fora, suddenly forsaken most of it). The question is whether above, while the European Security by media spotlights or embedded and to what extent this political body and Defence Policy failed the Libyan journalism. As if the Libyan question is representing and matching with test, immigration, energy, political had been resolved and then dismissed that country profile. How internal se- and humanitarian issues raised or along with Muammar Gaddafi’s curity ‘threats’ are tackled by the in- deepened by the conflict are being ad- body. The man dead, the country terim government while being wooed dressed, in one way or another. Cor- overlooked. 6.5 million people, half by the international institutions and porate interests, single countries ini- of whom under 24 years old, aban- the European countries, again for se- tiatives, or regional and international doned to their destiny. Apparently. curity reasons. Reasons that in part organisations other than the EU took The western world, Europe in the first overlap and in part clash with each the lead and settled the matter. place, is too occupied to tackle the fi- other under the given emergency cir- nancial crisis to draw its official atten- cumstances. While the international In this issue we make an attempt, to tion at this ‘secondary’ issue now. The community is setting the pace with a deal with at least part of these aspects mainstream media acts accordingly. view to next democratic elections, the and their impact on European and The aftermath of a revolution in a po- NTC agenda is full of challenges and international level. Internal threats litically pacified (?) country seems left incoherencies. to security, in the globalised era, can uncovered, but it is far from being un- constitute or easily be interpreted - of- attended. It is true that the energy, se- If political prisoners held by the Gad- ten instrumentally - as external ones, curity and the counter-extremism diplo- dafi regime have been released, about and vice versa. The terms become in- macies are still at work, undisturbed, 7000 new detainees are now currently terchangeable. trying to secure the smoothest and held in prisons, under the control of Given this intricate scenario, and most convenient transition possible. revolutionary brigades, with no ac- right after the conclusion of the Third Because security matters, and security cess to due process (according to the Arab Bloggers Meeting - which was is a twofold concept – hard and “soft” last UNSMIL report). Militias never held in Tunis last October - the words - whose vague borders can be pulled thought seriously to give up their from a couple of Libyan posts that we indefinitely along internal and exter- weapons, en tant que ‘guardians of quote at last, instinctively inspired by nal dimensions, vertically, within the the revolution’. Osama al-Juwali, the a sort of people history approach. These country, and horizontally, beyond the head of the military council in Zintan, words are revealing and predicting, national borders. has now been appointed to lead the more than any analysis from outside. Defense Ministry and will have to Muammar Gaddafi was killed on the bring them together under the same Last February 28, 2011: 20th of October, 2011. It was the end umbrella. “I am terrified that when all the ashes of an era, of a 42 years’ long experi- Seif al-Islam el-Qaddafi and Abdul- from the uprisings that are consuming us ment, the failure of the Great Social- lah Senussi, the last fugitive son and settle down we become blinded by the cel- ist People’s Libyan Arab Jamahiriya. the intelligence chief for Colonel Gad- ebratory mood and find ourselves having A regime that claimed to be inspired dafi, respectively, will not be handed exchanged one agenda for another whose partly by Islamic socialism and Arab over to the International Criminal nature would be like an octopus: soft but nationalism, partly by the principles Court, and to prosecutor Luis Moreno with many slippery tentacles” of direct democracy. Revolutionary Ocampo, until a formal national gov- committees – accounting for 10 to 20 ernment will be formed (in the best Last December 9, 2011: percent of Libyans – used to survey case scenario). “In the past two days Tripoli has wit- the population and repress any po- The country is a powder keg. 26500 nessed major demonstrations in Martyrs litical opposition. Since 1969, Libya sorties of the NATO operation Unified Square demanding a weapon free zone never witnessed free elections. Still, Protector could not destroy nor reach in the city. Since the liberation of Tripoli even more surprising, according to the largest known stockpile of man- many militias and armed fighters were the CIA’s World Factbook of 2011, the portable defence systems of any non- everywhere; some for safety reasons and average life expectancy of a Libyan is manpad-producing country. If once some just for the sake of milking the glo- 77.6 years. One year less than that of it was about arming Gaddafi’s Libya, rification of the victory of 17th February an EU citizen. The median age of the then the anti-Gaddafi revolution, now revolution. In other words it is about time country is 24.5 (that of Italy is 43.5). it is about securing and neutralising for them to go home to their cities and The literacy rate reaches quota 82.6 those same weapons. come back weapon-less and replace them %. Hence, here is the Libya country with the national Libyan army. Tripoli profile: young, healthy, well educated Prime minister Abdel Rahim el-Keeb is the capital to all Libyans but with no people, deprived for years of the basic is in charge now. Assisted by the UN- weapons.” rights and freedoms, with about an- SMIL and all those western powers other 50 years to live (in average) and that played a significant role on the experiencing a wave of enthusiasm, long road to Tripoli. A moderate Islam- after having succeeded in the revolu- ic government seems to be the best tion. compromise for everybody. On the Michele Gonnelli

3 ITPCM International Commentary December 2011 ISSN. 2239-7949 pp. 5 - 32 Contributions

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Arab Spring - Hot water from a spring is pumped in to an irrigation channel at Dakhla Oasis, Egypt cc, To Progress ARAB SPRING OR REVOLUTION?

by Kateryna Pishchikova

Research Fellow at Scuola Superiore Sant’Anna

WESTERN AND EASTERN PERSPECTIVES OVER THE TRANSITION. OLD PARADIGMS AND NEW UNPREDICTABLE SCENARIOS.

Every time I run into a Tunisian, Egyptian, Libyan, Syrian, Bahraini or Yemeni, I ask them how they refer to their own political actions. Their answer is an almost universal: “revolution” (thawra, in Arabic). (…) They also use descriptor collective-nouns such as the Arab “uprising” (intifada), the Arab “awakening” (sahwa), or the Arab renaissance (Nahda), the latter mirroring the Arab Awakening against Ottoman and European domination in the early years of the 20th Century.*

* Rami G. Khouri, Spring or Revolution? 2011 < www.ramikhouri.com>, August 17, 2011

The unfolding “Arab Spring” was not expected to be a promenade. This expression, used by Westerners to describe the Arab revolutions, is very mild and does not express the bloody sacrifices made every day in order to honour the fight against fierce rogue regimes.**

** Fatima El Issawi, “Did the Arab Spring Find its Roots in the New Iraq?” Open Democracy, 2011 , October 4, 2011

Naming tells us something about the reasons. First, it is reminiscent of the reminder that when shared rhetoric expectations and the place attributed “disconnect” between Eastern expec- is not accompanied by shared prac- to events on the collective cognitive tations and Western approach that tice, even the best of intentions may map. The fact that the “West” calls characterised Eastern European tran- fail. Second, it alerts us to the fact that recent popular revolts in North Africa sitions in 1990s1 and serves as a useful this time the “disconnect” may go and Middle East differently from how even further as there may not even Arabs themselves do is extremely 1 Janine Wedell, Collision and Collu- telling. It is telling for a number of sion: The Strange Case of Western Aid to Eastern Europe, Palgrave, 2001.

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be shared rhetoric on many crucial than to the democratic transitions set in Belarus). Moreover, some of those issues. Third, it reminds us that the motion by the crumbling of the Soviet countries that have been showing cer- difficulties of external engagement Union in 1989.2 tain progress are still in danger of fall- in regime change and transition go ing back onto the authoritarian track beyond straightforward issues of suc- Has this been another “wave” of de- (think Russia or Ukraine). cess or failure of project implementa- mocratization similar to the ones of No is the answer as far as the expected tion and involve finding shared ideas 1970s, 1989, 2003-2005? The answer is outcomes are concerned. These are and a common language. yes, maybe, and for some aspects defi- very different countries in terms of nitely not. their political system and history and By drawing on recent debates among Yes is the answer because of the large the only thing they have in common experts and academics as to the na- numbers of ordinary people (some is popular discontent with socio-eco- ture and prospects of the recent up- experts talk about “leaderless” revo- nomic and political stalemate. How- risings in the Arab world as well as lutions) participating in mostly non- ever, many of the structural factors on the academic literature on democ- violent protests that broke up quite behind these failures are different in ratisation and regime change more unexpectedly. Another similarity is each of these Arab countries, some generally, this brief commentary of- the “wave”-like character of these being resource-rich others resource- fers a number of conceptual points events because of the cross-country poor, some monarchies, and still oth- and broad guidelines that should be contagion that has been one of the key ers tribal states. These and many oth- kept in mind when projecting the fu- characteristics. er factors will determine the months ture in these countries and discussing Maybe is the answer to whether or and years to come and so no outcome ways of getting engaged. What have not these are waves of democratiza- of these Arab revolutions will be simi- we learnt from regime changes and tion. What the experience elsewhere lar to another. transitions elsewhere that could help teaches us is that democratization is us understand these events and their not a linear process. Early 1990s have Other differences from “waves” of aftermath, in Libya and in the region seen the rise and consolidation of the democratization in Europe have to as a whole? The discussion below so-called “transition paradigm” that do with the geopolitical context. Each focuses on the following main argu- dominated the thinking about regime country in North Africa and the Mid- ments: change of policy-makers and academ- dle East is subject to several conflict- - what we have witnessed so ics alike.3 At the heart of this paradigm ing geopolitical interests (US, Saudi far have been a series of attempts at there was a belief that all the coun- Arabia, the Gulf states, several Euro- regime change that have been more tries emerging from a previously au- pean states, notably France and Brit- or less violent and at the moment of thoritarian regime pass through a se- ain). It is likely that the aftermath of writing, have not succeeded in every quence of standard steps on their way revolutions will be subject to a “di- place they were tried, so more hu- to democracy – transition, democra- vide and rule” approach at least by mility is needed when talking about tization and consolidation. What the some of these big actors, as is already possible future trajectories of these trajectories of different countries in evident from the recent policies of countries and especially when label- the former Soviet Block have taught Saudi Arabia. In addition, as far as ling them as “democratising” or “in us is that the “transition paradigm” their relations with the “West” are transition to democracy”; does not hold. The process of change concerned, those countries will no - external actors have proven is not linear and does not necessarily doubt continue to suffer from intense to have limited impact on democra- lead to democracy. With the hindsight securitisation of the whole region. tisation elsewhere, so we should stop of more than two decades of the so- looking for a magic bullet for Libya called “triple transition” that was un- There is also lack of consensus – both and for other countries in the region; leashed by the break-up of the Soviet externally and internally – as to what - no outcome of these revolts empire, we now know that regime kind of polities and economies these will be similar to another and the change can lead to the recurrent es- have to become and which ideal they commonalities of Arab revolts may calation of violence and civil wars have to aspire to. While Eastern Eu- stop just at that – their timing and in some countries (think the Balkans ropean revolutionaries were clear in their initial character; and the Caucasus), to re-constitution their ambition to join the rest of Eu- - what really matters is the af- and re-concentration of power for the rope, in fact, they draw their inspira- termath and so what we are witness- ruling elite, old or new (think Central tion from their own “European” past, ing is just the beginning of a long and Asia) and to the rise of new forms this is not the case in the present-day painful transformation that may still of authoritarianism that have been Arab world. As Thomas Carothers of degenerate into civil war, sectarian consolidated behind a façade of sup- the Carnegie Endowment for Inter- violence or another authoritarian re- posedly democratic elections (think national Peace notes, “we should be gime. acutely aware that (…) local politi- cal actors in the Arab world harbour Another 1989? What have we learnt 2 Robert Springborg, “Whither the enormous and often bitter scepti- from regime change elsewhere Arab Spring? 1989 or 1848?”, International Spec- cism of our democratic bona fides”.4 tator , Vol. 46, No. 3, September 2011, pp. 5–12 3 Thomas Carothers, “The end of the The Arab Spring of 2011 may thus be transition paradigm.” Journal of Democracy, 4 Thomas Carothers, “How Not to more akin to the 1848 failed revolutions Vol.13, No. 1, 2001, pp. 5-21 Promote Democracy in Egypt”, Washington

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While Richard Youngs of Spain-based Indeed, transition is a long uphill bat- within the political elite. Most of these think tank FRIDE is even more harsh, tle on multiple fronts where no pre- countries have strong military and po- saying that “Arab protests are in the cooked solutions are going to be use- lice that still have to be persuaded to name of freedom from the West and ful. The aftermath of any revolution is put limits on their power and reach. not in aspiration of joining a ‘Western characterised by re-thinking of indi- Moreover, some of the nastier con- project.’”5 This scepticism is not only vidual and collective positions. While flicts might come to the fore, such as driven by cultural difference. The US the presence of a strong ruler unites tribal rivalries that were suppressed and the EU have seriously damaged the opposition in a shared contesta- during the Gaddafi regime as well as their credibility in the region by sup- tion, his fall is the beginning of a long some extremist groups. porting autocratic leaders in order to and painful process of facing and guarantee security on their borders learning to manage the differences Can there be any guideline for the and stability of their oil contracts. The of those who rioted united. Different international community despite the US particularly has had Egypt and Is- actors will have to learn to reconcile challenges outlined above? No pre- rael as top recipients of its foreign aid conflicting visions for the country’s cooked solutions can or should be for decades. It now has to reconcile future, to build coalitions and to agree offered. This is the first and most -im its geostrategic interests with its pro- on a common institutional frame- portant guideline. The biggest chal- democracy rhetoric. work. Some of those most involved in lenge is the one of knowing how to the protests will even disappear from foster the strengths and help with Critical points for democratisation the public life as their revolution- the weaknesses of each single Arab and lessons for the international ary profile and approach might be state that succeeds in a regime change community. at odds with the new imperatives of and starts a period of transition. Sub- political transition (as indeed we have stantive investments should go into It is not enough to cheer for the revolution seen happen in Eastern Europe and practices of public dialogue between while it is happening. The aftermath, the the former Soviet Union). Indeed, as different types of actors and across transition process from authoritarianism Nadim Shehadi rightly argues, “after communities, creating an enabling to democracy, is the crucial moment; and so many years of semi-comatose po- environment for these processes to this is when a country needs most help. litical existence, it is only natural that flourish. This also means that - differ This is also the time when people power at a certain point the awakening will ent civic and political groups should alone cannot guarantee a change in the be disoriented and look in different be offered equal access to any funding right direction, and when bad manage- directions. What is needed is a mecha- or assistance, regardless of just how ment in a critical period can backfire.6 nism to manage the diversity.”7 close their rhetoric is to that of a given Other tensions will also emerge such donor. The goal should be the one of as between the elite, new and old, strengthening the public sphere based Post, February 24, 2011 and the grassroots as well as tensions on dialogue and tolerance rather than 5 Richard Youngs, “The EU and the a particular set of actors whose agen- Arab Spring: From Munificence to Geo-strate- gy” FRIDE Policy Brief , No. 100, October 2011 2011 February 22, das might appeal to the “West”. 6 Nadim Shehadi, “The Arab Revolt: 2011 Transformation to Transition” Open Democracy 7 Ibid

Libyan ruins after NATO raids, 7 cc, www.flickr.com ITPCM International Commentary December 2011 ISSN. 2239-7949

010, by Nasser Nouri, Libya, 28 January 2011, cc, www.flickr.com

by Dario Sabbioni

Political Science and I nternational Relations Student, at Scuola Superiore Sant’Anna LIBYAN CIVIL WAR STEP BY STEP FOR A TIMELINE

17 February 2011 22 February 2011 in the early days of March. A loyalist On the “Day of Rage”, a massive Never surrendering to the numerous révanche was strong during the fol- crowding in Benghazi streets took Gaddafi announcements on State tel- lowing months, but never diminished place, and protesters showed for the evision (since the very beginning he or critically hit the rebels’ advance- first time in years the solidarity and started using the national media as a ments. Resistance spread all around willingness to action of an almost en- means to its purposes, even also, as the country, leaving only few areas tire population, following the arrest it has famously reported, calling for undisputed, the enormous solitudines of human rights activist Fethi Tarbel, the first time his adversaries the stray in the South and tribe zones loyal to which will later be appointed Youth dogs), the so-called rebels conquered Gaddafi such as those in Bani Walid and Sport Minister of the interim gov- Misrata and Tobruk by the end of and Sirte. Also Tripoli came close to ernment. February, putting a precarious end be burnt by the battle rage but the fire to loyalists resistance in these cities was never lit, leading to a fierce perse-

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cution by police forces, due also to the Ambassador Susan Rice, authorized March) proved to be meaningful but fire against the People’s Hall, where member states “to take all necessary the battles of Brega, Brega-Ajdabiya the legislative branch of the General’s measures […] to protect civilians and Road and Misrata demonstrated People Congress resides. civilian populated areas under threat how long the path was up to the long of attack in the Libyan��������������������� Arab Jamahiri- awaited Tripoli. As Moussa Ibrahim 27 February 2011 ya[…], excluding a foreign occupa-occupa- eventually reported, on 30 April 2011 The formation of the National Tran- tion force of any form on any part of Saif Al-Arab, sixth Gaddafi’s son, was sitional Council (NTC) chaired by Libyan territory”. The so-called no-fly killed with three of its nephew and the former justice minister Mustafa zone had been established and the Co- nieces in an air attack by NATO, a Mohammed Abdul Jalil was a major alition intervened in different forms, raid which was considered with many step towards the full consciousness of under the name Operation Odissey controversies because of the bloody the revolt, and it was recognized by Dawn for U.S., Italy, Denmark and and indiscriminate assassination of France just a week later, and by Qatar Belgium, Opération Harmattan for innocents that it had brought to. It one month later, on the 28 of March. France, Operation Ellamy for the UK was not the first neither the last. It Many protests took place through- and Operation Mobile for Canada. was during the early phases of NATO out the world during this period up attacks’ intensification, i.e. May and to mid-March, most notably the Top- 23 March 2011 early June when also Coalition’s he- ple the Tyrants occupation of Saif Al- NATO took over the military opera- licopters entered into action, that the Islam’s home in Hampstead London, tions (Operation Unified Protector), major threats for the civilian popula- but there were also many mediation deploying its forces in a bunch of days, tion were persistently felt, leading to a proposals by Hugo Chavez and other with some tangible achievements psychological demise for many of the “compromised” political leaders, giv- since the very beginning. The Gaddafi combatants. Under the aegis of West- en the popularity by which Gaddafi aviation, composed mainly by U.S. ern political leaders it was first put was still experiencing throughout the and USSR Cold war aircraft, was nei- out that an innocuous Gaddafi would world. As an example, the acknowl- ther given the possibility to spread its be better than a massive slaughter edged achievements of his Gaddafi weak forces or to constitute a threat due to the constant contrast between International Charity and Develop- for the rebel advances. In these frag- the counterparts. The factions of the ment Foundation (GICDF). ments of war some prominent actors “Free Libya”, fatally preconceiving emerged of what would later be the the tragic end of Gaddafi, immedi- Early March “free Libya”: Mahmoud Jibril Head of ately opposed this argument. Following major requests by Western the NTC executive board, Ali Issawi public opinion and opinion leaders, NTC foreign affairs Minister and last 28 July 2011 international aid came to the weak but not least Abdel Hakim Belhaj, an- Another event showed to the eyes rebel forces. When the loyalists were cient fighter in Afghanistan and later of the Western world how the Arab approaching the rebel town of Beng- the besieger and taker of the Gad- Spring still had the potential to be- hazi after the retaking of Ras Lanuf, dafi’s compound in Tripoli, nowadays come something critical and also a Brega and Ajdabiya, it became clear also the man in charge of the military terrible feud: the rebel army chief that even Khamis Gaddafi’s brigade committee responsible for the people and former Minister of Interior until would be able to put in place a mas- of Tripoli. 22 February 2011 Abdul Fatah You- sive slaughter which would have end- nis was put under arrest by the NTC ed the whole rebellion in a graveyard. Early April and then executed without a fair trial, There were numerous efforts by the There were suggestions that CIA and shedding light on the inconsistency international community to weaken MI6 intelligence officers were in Libya of true democratic ideals by the rebel the Gaddafi assets, for example by trying to evaluate the situation and forces. freezing more than US$30 billion be- giving strategic hints both to the ad- longing to the Libyan government vancing rebels and to the Allied avia- Early August and the suspension of Libya from tion. Under the point of view of aid to When the situation was evolving into the major international forums. The the rebels, it is notable that mainly in a “fierce stability” and it tended to menaced charge by the International the first days of April a continuous air- become clear that the future of Libya Criminal Court against Gaddafi didn’t dropping of arms and food supplies was dependent upon a “position war” relief the rebel forces, which were still began, and this was accompanied also which was conducted under the aus- suffering common problems for every by the announcements of the envoy of pices of the NATO raids, the rebels incipient revolution, as it had hap- military advisors by France, UK and from Nafusa mountains at the border pened few days before in Egypt. Italy on the 19 and 20 April. with Tunisia (Yafran and Bir Ghanam battles, 6 August) and those from Mis- 17 March 2011 May rata and Zliten began to advance and Remarkable events brought hope to The clashes during whole April and reached a new frontline near Tripoli. the pulling out anti-Gaddafi forces. early May were characterized by the They encountered a strong resistance United Nations Security Council Res- resistance of the loyalists against the by Gaddafi loyalists but up to 15 Au- olution 1973/2011, which came after a persistent attacks in the East (where gust they had attacked and conquered very difficult debate throughout the there finally was a stalemate) and Sorman, Sabratha, and Gharyan, SC where the leading (and still little in the West. Lessons learned from eventually reaching Zawiya, the last recognized) role was played by U.S. the second loyalist offensive (29 – 31 refuge before Tripoli. Since 20 August,

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Allied countries started the launch of plified by NTC officials in a document tioner” Abdullah Senussi, brother-in- light arms and long-range weapons, developed since mid-October which law to Gaddafi and Head of Libyan which were used by the rebels in the contains the “road map” for the nec- Military Intelligence (LMI), which battle of Tripoli (operation Mermaid essary dismantlement of over 40 mi- was captured near Sabha and has a Dawn). litias and 60,000 soldiers and also the fresh accusation of crimes against hu- creation of a “Minister of Outplace- manity. 23 August 2011 ment” for the peaceful times. Following the continuing road bat- 22 November 2011 tles, international agencies reported 31 October 2011 Shortly after the unveiling of the new the palpitating moments that cast a Abdurraheem el-Keib, a dual U.S.- government, there have been wide- final stone on the 42 years long Gad- Libyan citizen and professor in vari- spread consensus among the Western dafi regime, mocking its excesses and ous American and Gulf universities, countries on the 24 lay political figures luxury objects which had been found was chosen by the members of Libya’s which emerged from the Revolution, in his bunker in Bab al-Aziziya and in National Transitional Council (NTC) such as the Defense Minister Osama his numerous palaces with reportages as the country’s new prime minis- al Juwali, Zintan Brigade Chief, and by international media. The rebels ter. He reportedly received 26 out the Oil Minister Abdulrahman Ben had entered the once sacred halls of of 51 votes of the NTC members, in Yazza, former manager of the Italian power of Gaddafi’s power. the same day of Secretary-General of oil company ENI. Most notable is the NATO Anders Fogh Rasmussen’s vis- absence of the already mentioned Bel- 20 October 2011 it to the new free Libya after the lib- haj, which was feared by many as the The same verve of the Tripoli victory eration, when he quite unexpectedly prominent Islamist figure of the new can be found in the handycam-taken announced the ending of the NATO Libya. During his visit in Tripoli, José moments of Gaddafi’s death, when mission. Luis Moreno Ocampo, Prosecutor of Sirte was conquered and the leftovers the ICC, reassured that Saif al-Islam of the Great Socialist People’s Libyan 19 November 2011 and Abdullah Senussi would face in Arab Jamahiriya finally fell into the Following the suggestions by Brit- future a fair trial on the Libyan soil, an Libyan sand. The dictator was over, as ish intelligence, Saif al-Islam Gaddafi important step towards a pacific de- well as his son Mutassem Billah, who was captured near the town of Ubari, mocratization despite the continuing was later killed. Reconstruction was 640 km far from Tripoli, and his im- struggles and clashes among militias about to begin. prisonment by the NTC forces was reported by the international agen- To the case of Libya belong very typi- confirmed by the ICC. The same fate cies. cal traits among the other Arab revo- happened to the last important politi- lutions, one of which has been exem- cal figure of the regime, “The execu-

002, by Nasser Nouri, 28 January 2011, Libya, cc, www.flickr.com

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A rebel mans an anti-aircraft gun in Ras Lanuf March 8, 2011, cc BRQ, www.flickr.com

by Simone Tholens

PhD candidate at European University Institute WEAPONS EXPORTS TO LIBYA THE EU COUNTRIES AND THEIR MARKET SHARE OF THE ARMS TRADE: BEFORE & DURING THE WAR

Introduction

In UN Security Council Resolution MANPADS (man-portable air de- Niger, and Hamas in the Gaza strip. 2017 of 31 October 2011 the world fence systems) in Libya could fuel These security concerns come as a watch dog expressed concern over regional terrorist networks such as second thought to the massive arm- the possibility that looted stockpiles the Al Qaeda in the Islamic Maghreb, ing of first Colonel Gaddafi’s regime, of small arms, light weapons, and but also Tuareg rebellions in Mali and and then civilian militias under the

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leadership of the National Transition- to control mobile networks and limit European motivations: realpolitik or al Council (NTC). What, we may ask, freedom of expression. However, no idealism? is the European perspective on the major weapons, such as the licensed It is no exaggeration to claim that Eu- role of weapons supply and control to but not delivered Russian S-300s and rope has acted hypocritically vis-à-vis reach a political goal in contemporary British Jernas Surface to Air Missile Libya. Within weeks of the popular conflicts? systems, had reached Gaddafi before uprising in North Africa, European the civil war broke out in February states shifted position, and turned EU arms export to Libya 2011. The arms bonanza ended jus against the autocratic leaders they Libya was a paria in international short of creating a militarily signifi- had courted for decades. The weap- politics throughout the latter part of cant Gaddafi. ons they had supplied to Gaddafi the Cold War, and subject to various were turned against demonstrating sanctions including a UN arms em- Arming Libyan militias people, and Libyan security forces bargo from 1992 until its suspension As the uprising began in Libya in Feb- now openly attacked civilians on the in 1998 and lifting in 2003. Upon ac- ruary 2011, and security forces replied streets of Tripoli and Benghazi. Up cepting responsibility for the Locker- with force and brutality against pro- until that moment, dissidents had bie bombing and other support to testing crowds, UN Resolution 1970 been imprisoned, tortured and killed international terrorism, Libya was imposed an arms embargo and other silently, away from the public eye welcomed in from the cold by the in- sanctions against the Libyan regime. and certainly far from international ternational community. As an oil-rich, This was reinforced with UN Resolu- attention. Now, atrocities committed regional power, Libya became a pop- tion 1973, which authorised Member against demonstrations and dissi- ular recipient of European weapons. States “to take all necessary measures dents with weapons provided by Eu- In the period between 2004 and 2009, notwithstanding paragraph 9 of reso- ropean allies were disseminated via the EU granted licenses worth €834.5 lution 1970 [arms embargo require- mobile cameras and social media to million from to Libya, of which Italy ment] to protect civilians and civilian a shocked public on both sides of the (€276.7 million), France (€219.1 mil- populated areas, under threat of at- Mediterranean. Reality had caught up lion), UK (€119.3 million), Germany tack”.4 The US contested the general with European leaders’ hypocrisy. (€83.4 million), and Malta (€79.7 mil- view that this prohibited supplying There are several perspectives lion) represented the lion’s share.1 The weapons to Libyan rebels in the name through which we can read the Euro- Maltese export figures are the most of protecting civilians. Legally speak- pean pragmatic – to use a well-known curious in this respect, Malta not be- ing, it seemed that an explicit arms euphemism – approach. I will focus ing an arms producing country. The embargo still provided loopholes for on three: first, weapons are integral Italian company Beretta had used those states wishing to supply weap- to the nation state system, and ex- a Maltese licence in order to divert ons for defence purposes. porting and importing weapons for attention from the 79 million euro Despite UN Resolution 1973, there the purpose of defending the polity worth of small arms – likely to be are two hitherto known cases of ex- is a legal and legitimate practice. In used for crowd control in non-demo- ternal arms supplied to the rebel the period 2003-2011, there were few cratic Libya. forces: French airdrop of weapons in voices against the international en- In the period from 2003 onward, one the mountains of Western Libya5, and gagement with the Libyan leadership. may describe the situation as resem- Qatari shipments of assault rifles and Selling weapons were simply just one bling an arms bonanza in Libya. Euro- anti-tank missiles.6 These breaches of of many forms of interaction, and of- pean arms exporting countries had a the UN arms embargo were criticised ten accompanied political agreements vested interest in participating in this by Russian and South African/African on more controversial issues, such as process, and actively cultivated ties to Union governments on grounds of immigration and oil or gas contracts. the eccentric government of Colonel geopolitical interference and further From this perspective, the most com- Gaddafi. Illustratively, theLibdex arms fuelling violence. But in the EU, few pelling effect has probably been that fair in Tripoli attracted 100 companies loudly opposed arming rebels under procurement of large quanta of weap- from at least 24 countries in Novem- NTC command. ons emboldened Gaddafi, to the point ber 2010.2 The competition over Liby- The details of how international ac- where his defeat came in the form of an arms purchases was high, and the tors trained and supplied the rebel thousands of deaths, including his sales efforts often politically support- forces in Libya have yet to unravel. own, rather than a bloodless surren- ed, with leaders of France, Italy, Rus- What seems certain is that European der. Weapons can have played a role sia and the United Kingdom paying arms exporting countries were able to as symbols of power, and enhanced visits to Libya while accompanied by lawfully deliver weapons to Gaddafi the belief that the regime could with- representatives of national arms com- prior to the Arab Spring, and also to stand internal threats to its rule. panies. Sales covered all categories of shift side and supply weapons to the Second, the European Union has been weapons; chemical weapons e.g. tear new forces in Libya during and after at the forefront of developing export gas, military planes, small arms, anti- the recent civil war. As such, the case control mechanisms during the last tank rockets, and ammunition.3 In ad- of Libya has been a win-win situation 15 years. This was manifested first in dition, the EU supplied Gaddafi with both politically and financially for Eu- 1998 with the EU Code of Conduct electronic jamming equipment used rope. on Arms Export, which sought to

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harmonize arms export regulations in essence a collection of deeply self- control mechanisms or international among its Member States. In 2008, the interested states with utilitarian na- principles of human rights. However, Code was updated and reviewed, ac- tional policies. it remains to be seen whether Euro- cumulating in the Common Position A third perspective is a potential pean states’ sudden turn to idealism on governing the control of exports of geopolitical contradiction. Europe will lead to the somewhat naive vi- military technology and equipment, has supported a regime change in sion identified by the President of the including dual-use technology. En- Libya, and encourages democracy UN Security Council: “when people suring that the final user of exported in the MENA region at large. At the disarm, peace follows”. weapons does not engage in unlaw- same time, they have fuelled this re- ful human rights violations is a core gion with weapons for decades. UN 1 Council of the European Union, principle of EU export control mecha- Resolution 2017 captures this tension: Twelfth Annual Report According To Article nisms. So how could arming of Gadd- when autocratic regimes fall, states’ 8(2) Of Council Common Position 2008/944/ afi and other authoritarian leaders control over the monopoly on force is CFSP Defining Common Rules Governing Con- in the Middle East and North Africa at risk in the short to medium term. trol Of Exports Of Military Technology And Equipment (2011/C 9/01) thrive parallel to the development of Weapons are likely to proliferate 2 Pieter D. Wezeman, “Libya: Lessons these Codes of Conduct? The simple into regional black markets, which in in Controlling the Arms Trade,” SIPRI, March answer is that the idea of Europe as a turn may fuel the activities of armed 11, 2011, www.sipri.org/media/newsletter/es- ‘normative power’ is entirely self-fab- groups, as identified by the UN Secu- say/march11. ricated fiction, designed to legitimize rity Council Resolution. Preventing 3 Der Spiegel, “Guns to Gadhafi: Lib- supranational institutions and fram- regional black markets through tight yan Arms Deals Come Back to Haunt Europe” ing external policy according to mor- border control and transparency in February 24, 2011, http://www.spiegel.de/inter- al principles. A more complex view registering and stockpiling weapons national/world/0,1518,747440,00.html contend that there is a disconnect in arsenals will surely be one of the first 4 United Nations Security Council Europe, and that EU-level control challenges for the new leadership in Resolution 1973, “On the Situation in Libya”, S/ mechanisms are fiction inasmuch as Tripoli. But the shifting political situ- RES/1973 (2011) they give clout to the idea that the EU ation in the region is likely to affect 5 New York Times, “France Says It exists as an entity, while real decision existing conflict patterns of non-state Gave Arms to the Rebels in Libya”, June 29, on security and defence policy is still groups operating in the bordering Sa- 2011, http://www.nytimes.com/2011/06/30/ being made at the national level in in- hel region and other adjacent conflict world/europe/30france.html dividual Member States, or in more complexes. 6 Al Jazeera, “Gaddafi forces -‘in powerful alliances, such as NATO. Europe has acted according to a long tercept arms from Qatar’”, 5 July, 2011, Germany’s fierce stand against- in tradition of realpolitik in the case of its http://www.aljazeera.com/news/afri - volvement in Libya testify to this im- weapons export to Libya. The bonan- ca/2011/07/2011755223504921.html age of the EU and its regulations as za was lead by export-hungry Europe- fictive, idealist clothing on what is an states, without regard for regional

028, by Nasser Nouri, cc, www.flickr.com

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Libyan Coastline, taken by NASA astronaut Ron Garan fromSpace 8/24/11 on an historic day of transition. Fragile Oasis, cc, www.flickr.com

by Andrea Prontera

Research Fellow at University of Macerata LIBYAN ENERGY FUELLING EUROPE INTERNAL ENERGY, EXTERNAL GOVERNANCE?

Overview Libya has been an OPEC1 member production represents only a minor serve in Africa. With its 46.6 billion since 1962. The country oil and gas fraction of world energy production - barrels Libya is the eighth country in about 2% of crude oil production and the world for proven reserves, and it 0.5% of natural Gas production - but is the 22th for natural gas reserves. In 1 Organization of the Petroleum Exporting Countries Libya holds the largest oil proved re- addition, the proximity and physical

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linkage of Libya to European energy gy security (migration issues played exportation’s activities2. markets and the quality and cheap- an important role too). ness of its oil make this country an The impact of the Libyan war on important actor in the global energy Libya’s economy is strongly depen- energy markets landscape. dent on the energy sector. According The events in Libya resulted in the According to the International En- to the International Monetary Fund first oil supply disruption since the ergy Agency (IEA) in 2010 the major- in 2010 over 95% of Libya’s export outbreak of Arab uprising. The Lib- ity of Libyan oil is sold to European earnings and about 80% of its fiscal yan disruption took place amidst ro- countries, namely, Italy (28%), France incomes derived from oil and gas bust demand growth – driven mainly (15%), Germany (10%), Spain (10%), production. The importance of the by non-OECD countries – while the Greece (5%) and UK (4%). Only 3% energy industry for Libyan economy global economy was consolidating of its production is sold to the US. A can well explain that one of the first its recovery from the 2008 financial growing role is played by China, that buys 11% of Libyan oil, correspond- ing to 3% of Chinese internal demand. Fig. 1. EU imports of crude oil, by country of origin - 2009. Natural gas exports to European Source: EU statistics. countries have increased significantly over the past years, due to the build- Azerbaijan ing of the Greenstream pipeline in 4% Other 2004. Greenstream is operated by Eni 8% Kazakhstan in partnership with the Libyan Na- 5% tional Oil Corporation. It brings the gas from Melitah to Gela in Sicily, and Other Opec then to the Italian mainland. About 26% 90% of Libyan gas export comes to Italy trough Greenstream, which rep- Norway resents the main gateway for Libyan 15% energy resources to European mar- kets. Other gas is exported to Spain in Libya the form of LNG. 9% With regard to the EU-27 oil imports, the total incidence of the Libyan oil has increased from 6.6 % in 2002 to Russian Federation 9.4% in 2009; with regard to natu- 33% ral gas imports the Libyan share has increased from 0.2% in 2002 to 3% in 2009. The Libyan contribution to Fig. 2. EU imports of gas, by country of origin - European security of supply is not 2009. Sources: EU statistics. impressive, but in a context of rising competition for energy resources that country can play an important role in the diversification of supplies and in the reduction of EU dependence from Russian oil and gas. Moreover, some Norway important European countries have 31% a stronger dependence from Libyan resources. Countries like Italy, France, Russian Federation and Spain in 2010 relied on Libya for 34% as much as 25 %, 16 %, and 13 % of total crude oil consumption respec- tively – a supply not easily replaced on short notice. Italy represents a special case because it is extremely Algeria Others dependent also on Libyan gas, which 14% 9% corresponds to 12.5 % of national con- Qatar 5% sumption. Italy’s initial inaction with Egypt respect to the Libyan crisis was mo- Libya Nigeria 2% tivated also by an attempt not to put 3% 2% in danger its privileged relationship with the Gaddafi regime, and by the 2 Libyan Council wants oil firms to fear of growing instability in such an concerns of the NTC is to restore as return quickly, Reuters interview with Ahmed important country for national ener- soon as possible the production and Jehan, 2 September 2011.

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crisis. Nevertheless, OPEC’s surplus market has shown great resilience in less the impact of the loss of Libyan capacity in 2009-2010 was relatively dealing with the Libyan output loss gas supply on the European and Ital- high due to a decline in global oil de- trough price adjustments, the use of ian markets has been minimal. In par- mand in the aftermath of the financial spare capacity, and a shift in trade ticular, ENI has been able to replace crisis, and the coming on stream of flows across regions3. Libyan gas without much difficulty. In fact since 2009 the country has Fig. 3. OPEC Total Spare Crude Oil Production Capacity 2003-2010 (md/d). Source: been oversupplied and gas storages EIA statistics were plenty. As a result, the gas price 5 has been only limitedly affected by the Libyan war. Yet, in the first half of the year 2011 the Russian gas supplies 3,93 3,99 4 to Italy increased by over 50% (when compared to the corresponding pe- riod in 2010) in order to compensate 3 the shortage of Libyan gas4.

2,07 1,92 Prevention and management of the 2 Libyan energy crisis: which role for 1,42 1,37 1,27 the EU? 1 In the short run, Libyan war has not 1 affected significantly the oil and gas markets. As noted before, some mar-

0 ket fundamentals are able to prevent 2003 2004 2005 2006 2007 2008 2009 2010 a more incisive shock. However, in the long run the situation can be dif- ferent. The effect of the revolution Fig. 4. Europe Brent Spot Price FOB November 2010- September 2011. Source: Price statistics from EIA. 130 and regime change on the Libyan oil and gas production and exportation will depend on the capacity of the new government to restore as quickly 120 as possible the energy industry and to build a stable political and legal framework for the foreign companies 110 operating in the country5. Libya's uprising begin, 17 febrary Libya is an important country for EU security of supply. Due to the diver-

100 gent interests of the leading member states and the unwillingness to con- cede more power to European institu- tions, the traditional EU energy exter- 90 nal policy has been based mainly on a ‘market-governance’ approach to crisis prevention6. 80 nov nov dic dic dic gen gen feb feb mar mar apr apr mag mag giu giu lug lug lug ago ago set set This institutional architecture had 05, 19, 03, 17, 31, 14, 28, 11, 25, 11, 25, 08, 22, 06, 20, 03, 17, 01, 15, 29, 12, 26, 09, 23, 2010 2010 2010 2010 2010 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 2011 some success in integrating the en- ergy markets of some Eastern and South European countries, but it was new projects in Saudi Arabia in 2009. largely insufficient in enforcing the Prior to the Libyan crisis surplus ca- EU role in front of the main oil and pacity was close to 4 million b/d. gas producers in the MENA region, or

At the beginning, the oil price began As regards the gas market, the shut- 4 EU Directorate General for Energy, to rise at the end of the year 2010, be- down of the Greenstream pipeline Quarterly Report on European Gas Markets, fore the Arab uprising, mainly in re- represented the most severe disrup- Market Observatory for Energy, vol. 4, issue sponse to the growth of oil demand tion in the MENA region. Neverthe- 1, march 2011. in non-OECD countries. This trend 5 On 14 October 2011, ENI has begun was reinforced by the events in Tu- to restore the gas transit from Greenstream. nisia, Egypt and Bahrain, with a final 3 H. Darbouche e B. Fattouh, The 6 R. Youngs, Europe’s External En- rush after the Libyan uprising.- Nev Implications of the Arab Uprisings for Oil ergy Policy: Between Geopolitics and the and Gas Markets, Oxford Institute for Energy Market, CEPS Working Document n. 278, No- ertheless after the first months the oil Studies, September 2011. vember 2007.

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in front of Russia. According to a long the OPEC – and consumers. As a re- of interests of member states and the established strategic approach to se- sult, the announcement sent a confus- traditional national policy approach curity of supply, the traditional bilat- ing signal to the market, and the IEA’s to energy security have prevented a eral relationship between European stock release had a brief impact on the real innovation in EU energy policy. governments and producers - some- oil price level 9. In this context, the Libyan war has times supported by direct connec- In the end, and leaving aside military given new impetus to EU efforts. In tions between the respective oil and concerns, the possibility of an EU in- September 2011 the European Com- gas companies - has been the rule in tervention in the crisis management mission has adopted a new Commu- the energy crisis prevention in MENA has been limited. The ‘policy space’ nication on Security of Energy Sup- regions. This applied also in the case has been occupied by national diplo- ply11. Three main aspects point to an of Libya, as shown by the special re- matic efforts and by well-established, important development in EU’ exter- lationship between Tripoli and Rome even if not well-effective, internation- nal energy action: the sharing of infor- strengthened with the Treaty of al institutions such the IEA. mation on bilateral contracts between Friendship signed in 20087. members states and producers, and The EU role in crisis management EU external energy governance: the involvement of the Commission has also been very limited. Every something new after Libya? in intergovernmental agreements; EU action has been constrained by The Libyan war has shown that Wash- the expansion of the Energy Charter the NATO military role, by the dip- ington is no longer a guarantor of Eu- Treaty to North African countries (in- lomatic activism of certain European ropean energy interests. As Secretary cluding Libya); and the creation of a states – in particular France and UK of Defense Robert Gates put it: “Libya Strategic Group for International Co- – and by the IEA intervention in the is not a vital interest to US”10. In the operation, formed by member states oil market. In fact, on 23 June 2011 the forthcoming decades EU energy de- and EU representatives aiming at IEA decided to release 60 million bar- pendence will grow, and the concern improving the coordination in inter- rels of oil from emergency stock in re- for security of supply from the South national institutions and fora such as sponse to “the ongoing disruption of of the Mediterranean will be more and the IEA and the G8/20. Is too soon to oil supplies from Libya”8. However, more important. The fact that the EU say if these proposals would entail the release of strategic reserve was not needs a coherent energy policy is well a real change in EU external energy part of a coordinated effort between known in Brussels. With the Lisbon governance; a similar development producers – blocked by the stronger Treaty some steps forward have been will depend on the degree in which tension and political disagreement in made in the direction of a more con- the principal member states recognize sistent internal and external energy that their energy interests in the long 7 Gaddafy regime wasn’t really in- policy. Nevertheless, the divergence period would be better guaranteed by terested in a stronger cooperation with EU a stronger cooperation at EU level. institutions, Libya has been in the Euro-Medi- 9 H. Darbouche e B. Fattouh, The terranean Energy Partnership as observer since Implications of the Arab Uprisings for Oil 1999. and Gas Markets, Oxford Institute for Energy 8 IEA makes 60 million barrels of oil Studies, September 2011. 11 The EU Energy Policy: Engaging available to market to offset Libyan disrup- 10 The Wall Street Journal, online edi- with Partners beyond Our Borders, EC COM tion, IEA Press Release, 23 June 2011. tion, 27 March 2011. (2011) 539.

Tripoli, Libya, taken by NASA astronaut Ron Garan fromSpace 8/24/11 on an historic day of transition. Fragile Oasis, cc, www.flickr.com

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On 26 March 2011 ETNA rescued a stricken boat ...... off the Libya coast with 300 migrants. Photo cc, ...... NATO, press briefing on Libya.

Oladapo Kayode Opasina

PhD Candidate at Scuola Superiore Sant’Anna TAKING FLIGHT FROM LIBYA DID RECIPIENT COUNTRIES VIOLATE THE PRINCIPLE OF NON-REFOULEMENT?

Introduction

The revolutionary wave of protest observers have decried the grave situ- The seemingly complicated migra- that unfolded across the Middle East ation and resultant implications of the tion crisis that emerged as a signifi- and North Africa, known as the “Arab Libyan war. Consequently, the United cant feature of the Libyan war became Spring”, took the entire world by sur- Nations refugee agency declared a one of the most contentious security prise. In Libya, a mere demonstration humanitarian emergency as several issues. A potential flow of migrants, that began on February 17, 2011, cul- thousands of Libyans fled their war- particularly on a large scale, is consid- minated in an armed conflict. Many torn country. ered a security threat. There were re-

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ports of a massive influx of migrants nisia, Egypt, Algeria, Niger, Sudan, ‘New’ Migration Patterns in North from North Africa into Europe, which Chad, Italy and Malta. Africa had put the security, protection and The humanitarian crisis in Libya in- reception systems of many European Within Libya, a significant popula- troduced new migration patterns Union (EU) member states, most es- tion of Internally Displaced Persons into North Africa. Libyan authori- pecially Italy and Malta under great (IDPs) has been recorded as a result ties claimed that between one to two strain. of the armed conflict. The United Na- million foreigners were resident in

In March 2011, some 2,000 Libyans Cross-Border Movements from Libya arrived on the island of Lampedusa, Italy by boat. This added to the over 15,000 migrants, mainly Tunisians who had arrived at the beginning of 2011. In a swift response, the Ital- ian Government temporarily sus- pended transporting migrants from Lampedusa to reception centres in Sicily and on the mainland. Further- more, Italy and the EU border control agency, Frontex, began conducting a joint operation called Hermes 2011. The joint operation was launched on February 20, 2011, following a formal request from the Italian Government. The operation was aimed at helping Italy cope with ongoing and potential migratory flow from North Africa. The EU had created the border man- agement agency, Frontex, in order to ensure the operational cooperation between EU member states, as re- gards the security of external borders.

Quite a number of analysts have que- Source: IOM Daily Statistical Report, November 18, 2011 ried the perception of migration as a threat to national security. Some argue that the human rights of mi- tions High Commissioner for Refu- the country before the outbreak of grants, refugees and asylum seekers gees (UNHCR) put the total number the crisis. At least 360,000 foreigners are threatened when migration is per- of IDPs in Libya at between 100,000 fled Libya during the first six weeks ceived as a security issue. When then, and 150,000, primarily in the zones after fighting broke out. Male migrant does migration becomes a security around Bani Walid, Sirte, Misrata and workers, mainly from neighbouring threat? This commentary also exam- Tarhouna, as well as in areas around Tunisia and Egypt, as well as from ines the critical connections between Tripoli and Benghazi2. Following the West Africa and South Asia constitute migration and security from a Euro- official declaration of national libera- the major group3. Moreover, there pean perspective. tion by Libya’s National Transitional have been large-scale return migra- Council (NTC), quite a number of tions from Libya, causing economic Situational Assessment on Libyan IDPs and other Libyan migrants migrants to become forced migrants Migration have returned to Libya. Nonetheless, and forced migrants to enter irregular The International Organization for there are growing concerns over the migration channels in the search for Migration (IOM) report indicates that, situation of certain IDPs and tribes survival4. between February 20 and November known to be loyal to Gaddafi’s Gov- 16, 2011, a total of 777,990 migrants ernment. Another issue is the serious The group, “Third Country Nation- had crossed Libya’s borders and this risk posed by the significant presence als” actually has gained more promi- figure includes 316,035 Third Coun- of landmines and other explosives nence because of the transformation try Nationals (TCNs) and 27,465 mi- around the conflict zones. migrants in this group have under- grants who had crossed to Europe1. Migrants fleeing Libya entered Tu- 3 Urs Fruehauf, EU-Libya Agreements on Refugees and Asylum Seekers: The Need for a Reassessment, Heinrich Böll Stiftung, 2011. 1 International Organization for Mi- 2 Internal Displacement Monitoring 4 Ayla Bonfiglio, North Africa in Tran- gration, Migration Crisis from Libya – IOM Centre (IDMC), Libya: Many IDPs return but sition: Mobility, Forced Migration and Human- Middle East and North Africa Operations. Dai- concerns persist for certain displaced groups, itarian Crises, Oxford Department of Interna- ly Statistical Report, November 18, 2011. Nowergian Refugee Council, 2011. tional Development Report, May 6, 2011.

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gone from being foreign workers to a result, the Italian and Maltese Gov- and freedoms on the other�7. Indeed, being forced migrants. Such migrants ernments faced the challenges of both the refugee issue was at the core of for instance, find themselves in a ref- distinguishing refugees from other relations between Libya and the EU, ugee-like situation but they cannot be migrants, and managing migrant ar- since the European states planned to treated or given the same protection rivals at a time when many parts of systematically send back migrants as refugees because they have an op- Europe claim to be struggling to re- who left the Libyan coasts and to let tion of returning safely to their coun- cover from the global economic crisis. ‘mixed flow’ and asylum requests be tries of origin. managed in Libyan territory. Howev- Consequently, the Italian Government er, this action was in contravention of In a comparative perspective, North called on the EU to establish a “special the 1951 UN Convention Relating to African migrants from Libya outnum- solidarity fund” in order to deal with the Status of Refugees, which prohib- bered those of Sub-Sahara migrants. the large influx of migrants. Also, the its the return of persons to their coun- This suggests that Sub-Saharan mi- facilities at the reception centres be- tries of origin, when there is a well- grants may have been stranded in came overwhelmed by the sudden founded fear of persecution (princi- Libya and thereby, becoming “invol- influx of new arrivals. Migrants who ple of non-refoulement). On the other untarily immobile”5. Many reasons arrived during the first few months hand, Libya is still not a signatory to can be attributed to the involuntary of the crisis described the conditions the 1951 UN Refugee Convention or immobility of the Sub-Saharan mi- at the reception centres as “Prison- its 1967 Protocol and consequently, grants. One is the potential life-threat- Like”. This clearly shows that the Ital- Libya does not officially recognize ening danger involved in crossing ian Government was unprepared for refugees on its soil. land borders and sea, and also, lack of such a massive influx of migrants. financial resources. Furthermore, the Conclusion Libyan war generated an unexpected Hundreds of Libyan migrants The multiple crises in North Africa refugee crisis in the region, with a drowned in the Mediterranean Sea en have brought thousands of migrants significant population of Libyan- mi route to Europe, after their boats cap- and asylum seekers to the shores of grants fleeing to neighbouring coun- sized. Hence, the EU Mediterranean Europe. The EU has come in for heavy tries like Tunisia and Egypt. states (mainly Italy, Greece, Malta and criticism due to its role in fortifying Spain) have been criticized for their its borders, at the expense of the hu- Migration-Security Nexus: A Euro- failure to render assistance at sea, as man rights of migrants and asylum pean Perspective provided by Article 98 of the United seekers. The EU recognized that, as The EU migration policy moves to Nations Convention on the Law of the long as the crises in North Africa and create a connection between migra- Sea, and by the International Conven- Libya in particular persisted, there tion and security. In the aftermath tions on Maritime Search and Rescue, would be continued irregular migra- of the 9/11 terrorist attacks, the fight and Safety of Life at Sea. Such actions tion, which could pose a serious secu- against terrorism topped the inter- could be connected to the adoption of rity threat to member states. Linking national agenda and subsequently, a defensive approach, aimed at push- migration to ‘hard’ security concerns the EU made moves at strengthen- ing back irregular migrants. such as terrorism, smuggling, traffick- ing its migration policy. Thus, the ing and organized crime, and the no- securitization of migration in Europe Prior to the Libyan upheaval, the tion that the arrival of large numbers has resulted in the creation of the EU EU and Libya had signed a ‘migra- of migrants, especially from different Agency for the Management of Exter- tion cooperation agenda’ on October social or cultural backgrounds has se- nal Border Controls, Frontex, and the 4, 2010 in Tripoli. The terms of the rious implications for social cohesion, strengthening of maritime surveil- agenda included cooperation on bor- have both negatively affected the im- lance. This expresses the preoccupa- der surveillance, mobility, migration age of migrants, most especially those tion with keeping irregular migrants and asylum. The EU-Libya coopera- fleeing persecution. as distant as possible and out of na- tion followed a separate agreement tional territory, if at all possible. between Italy (the former colonial In terms of strengthening its borders, power) and Libya, which dates back the European Parliament voted on Irregular migration can legitimately to August 2008. Italy and Libya had September 13, 2011, for the deploy- be viewed as undermining the exer- signed a ‘Treaty of Friendship, Part- ment of European border guard teams cise of state sovereignty, as any state nership and Cooperation’, in which and empowerment of the European has the right to control who crosses Italy agreed to pay 5 billion Euros in border agency, Frontex, to develop a its borders and is resident on its terri- infrastructure projects over 25 years code of conduct that would guarantee tory6. A striking example is the Libyan in compensation for abuses during respect for human rights in all its mis- migrants who arrived in Lampedusa, its colonial rule and also in order to sions and adherence to the principle Italy, at the peak of the Libyan war. As strengthen Libyan border controls. of non-refoulement.

There is a clear tension between se- 5 Ibid. 6 Khalid Koser, When is Migration a curitization of migration, on the one 7 Annette Freyberg-Inan & Mathijs Security Issue? The Brookings Institution, 2011, hand, and the principle of proportion- van Dijk, Securiting Migration to the EU: Law at www.brookings.edu/opinions/2011/0331_ ality and protection of human rights and Order Critical Connections, Jean Monnet libya_migration_koser.aspx (accessed October Lecture, Scuola Superiore Sant’Anna, Pisa, Ita- 3, 2011). ly, 2011.

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Prime Minister David Cameron and French President Nicolas Sarkozy visit a hospital in Tripoli during their visit to Libya., CC The Prime Minister’s Office, www.flickr.com

by Barbara Nicoletti

Research Fellow at Scuola Superiore Sant’Anna THE EU DEFENCE POLICY IN LIBYA. TEST FAILED NATIONAL GOVERNMENTS AND AGENDAS MOLD AND DOMINATE THE EU COMMON SECURITY POLICY?

Similarly to 1991, when the ‘hour of role in managing Yugoslavia’s violent as the perfect case for its newly Europe’ seemed to have come and the collapse, the 2011 crisis in Libya has potentiated Security and Defence EU was expected to play a leading been loudly calling EU’s attention Policy to be tested.

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All through the past 20 years the Resolution 1973/2011 authorized In fact, the role played by EU Member EU has been trying to remedy its member states “to take all necessary states in the Libyan crisis has showed incapacity to manage regional measures […] to protect civilians that national governments fully crises by creating and strengthening and civilian populated areas under dominate EU security policy. National security policy institutions, trying threat of attack in the Libyan Arab governments have demonstrated the to improve its civilian and military Jamahiriya[…], excluding a foreign will and resolve to act on the crisis capabilities, adjusting decision- occupation force of any form on any individually rather than united. making procedures, establishing part of Libyan territory”, the EU Notwithstanding EU collective top positions in view of coherence could have acted in full compliance diplomatic reactions asking for an and coordination improvement. with an existing UNSC authorization ‘immediate end to violence’2, as Although the reforms brought about to the use of force, which would grant well as the positions expressed by by the Lisbon Treaty have eventually full legitimization also in the eyes of institutions’ representatives in the given the EU the institutional setup the EU public opinion. same vein, no EU initiative was put for taking an adequate stand in on the table. the management of regional crises, The US expectations for the EU to the Libyan case has unfortunately play a leading role in dealing with But political divisions over the showed that this would not suffice. the crisis did not add significant appropriateness for military Yet the crisis in Libya fulfilled all the pressure on member states to act as intervention were not the only factor conditions for an EU initiative to be EU. In fact, despite the fact that key to determine EU inaction, although taken under its Common Security EU member states such as France and the most evident. Member states and Defence Policy, which could have Great Britain took a leading role in the awareness of lack of EU capabilities taken the shape of either a EU military military operations, the question of for intervention played a decisive role. operation or a EU, rather than single framing the intervention in Libya as a The process of generating sufficient EU member states, contribution to CSDP operation was never raised. military capabilities to strengthen the NATO military operations. In the What then about the reforms brought EU’s role as an international actor in first place, EU vital interests were by the Lisbon Treaty in 2009 that were the area of security, although further clearly at stake in the Libyan crisis, to create an institutional engineering regulated by the Lisbon Treaty, has as the whole of the Mediterranean able to give the Union the means proved very hard to be pursued. basin from Turkey to Morocco is to tackle international crises in Main constraints are the fact that comprised in what the EU calls its a coherent and robust manner? military spending by EU member “Neighbourhood”. Even ignoring the Institutional factors do not seem states does not seem to be coherent moral responsibility for the protection to have played a decisive role in with the requirements of modern of civilians that the EU should feel shaping EU’s and EU member states’ warfare, which is expeditionary as inherently attached to its value- response to the crisis, up to the point and multifunctional, that personnel based foreign policy, EU interests that commentators highlighted how provided by member states, including were evidently in need of being “Institutional Europe has not faced up trainers, is insufficient and that there safeguarded, namely trade routes, the to the challenge. In the North African is a serious lack of airlift capacity and supply of energy, the “control” over saga it does not exist. It is incapable common communication systems, migration policies and fluxes. The of agreeing on how to act, on whether to mention a few. These factors all higher ambition of proving itself a to recognize the Libyan opposition heavily affect the capacity of the strategic actor , as affirmed by the 2003 and most of all on the legitimacy of EU to perform a credible military European Security Strategy, could the use of force. The disunity is total operation like the one requested by also have been considered, yet this and particularly striking when it is a the Libyan situation. Although the was far too extraneous to prevailing question of deciding on war […]”1. European Defence Agency should considerations of contingent nature. Action under CSDP was in fact not exercise an oversight function on Also, regional support existed in contemplated at all, nor did decision member states in order to coordinate the form of an explicit request for makers care to justify why this option their spending in defence, the way intervention from the Arab League had been neglected, as if the Lisbon national governments choose to use that had called on the United Nations Treaty had not existed. Most probably the money they allocate to defence Security Council to impose a no-fly instead they simply realized how the is still often inefficient and EDA zone over Libya in a bid to protect expectations for the Treaty’s ability to recommendations on the point are civilians from air attack. But above resolve the constraints of EU security not taken completely seriously3. all, what is usually considered to and defence policy by institutional be the main (and most difficult to arrangements were far too unrealistic. Still political will and resolve to act obtain) condition for intervention, as a whole, through the EU, remain i.e. a UN Security Council resolution clearly authorizing the use of force, 1 Quoted in Menon A., European De- fence Policy from Lisbon to Libya, in Survival. 2 Foreign Affairs Council, 21 February was in place in the case of Libya. As Global Politics and Strategy, Vol.53/3, June-July 2011. the United Nations Security Council 2011, p. 76. 3 See on this point Menon A., op.cit.

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the main missing elements in this Both from the point of view of EU References picture. Regardless of the fact that the capabilities’ shortfalls and the lack of Biscop Sven, Mayhem in the Mediterranean: Three chosen military option has been that EU political direction to participating Strategic Lessons for Europe, Egmont Security Policy Brief, No. 19, April 2011. of NATO, the EU as such should have member states in the NATO Operation Biscop Sven, A Long-Term Strategy for Libya and had a leading role in the command Unified Protector, the Libya case has the Mediterranean: Over to the European Union, and control framework of the military showed that, despite the institutional Egmont Security Policy Brief, No. 17, March operations. As rightly pointed out set up being satisfactorily fixed by 2011. Coelmont Jo, First Lessons fron the Libya Opera- by Sven Biscop, “as far as Europe is the Lisbon Treaty, the EU still needs tions, Egmont Security Policy Brief, No. 18, concerned the foreign policy actor to work hard on its member states April 2011. directing the operation at strategic to get them to think strategically IISS Strategic Comments, War in Libya: Europe’s level will always be the EU, for it is and collectively also in the realm confused response, available at http://www.iiss. org/publications/strategic-comments/past- through the EU that we make our of security and defence. In other issues/volume-17-2011/april/ long-term policies towards these words, EU member states should stop Le Monde, 13 March 2011. priority regions. […] Up to the EU, blaming the institutional EU and start Menon Anand , European Defence Policy from not to a coalition of the willing, to working on their role and behavior, as Lisbon to Libya, in Survival. Global Politics and Strategy, Vol.53/3, June-July 2011. assume strategic control and political they still bear major responsibilities Perruche Jean-Paul, Which Strategy for CSDP?, direction of all actions, even though for the most severe problems in this Egmont Security Policy Brief, No. 26, June 2011. the military operations are under areas5. NATO command”4.

Egmont Security Policy Brief, No. 19, April 4 Sven Biscop, Mayhem in the Medi- 2011. terranean: Three Strategic Lessons for Europe, 5 See Menon A. ,op.cit., p.81.

Tarabulus city centre. Central Tripoli with the impressive El Fatah Tower, by gordontour, cc, www.flickr.com

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Supporting the protesters in Libya, 25 February 2011, by NowCastSA, cc, www.flickr.com

by Alice Riccardi

PhD candidate at Scuola Superiore Sant’Anna CRIMES AGAINST HUMANITY & RES. 1970 THE USE AND THE LEGAL IMPLICATION OF RES. 1970 FOR THE INTERNATIONAL CRIMINAL COURT

From 16 February 2011 onwards tions (UN) Under-Secretary-General rity Council (UNSC),1 who reported peaceful protests took place in the for Political Affairs to the UN -Secu Libyan Arab Jamahiriya (Libya) 1 UNSC , Official communiqué of the against the Gaddafi regime. Follow- 6486th (closed) meeting of the Security Council, ing the briefing of the United- Na S/PV.6486, 22 February 2011, at 1.

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the demonstrators’ quell by heinous reveals something regarding the role of which the crimes appear to have means, on 25 February the Secretary- the UNSC meant to assign to the ICC been committed ratified the RS. A General called for the UNSC to “take vis-à-vis States failure to protect their ‘situation’ is meant to “comprise pro- effective action to ensure real- ac own population; and (ii) produced ceedings in single countries, but do countability” of those individuals al- controversial legal consequences, not concern proceedings against in- legedly responsible for the violent re- originating from its compromise na- dividual persons.”8 It follows that the pression.2 The day after, pursuant to ture. UNSC is in principle not empowered article 13(b) of the Rome Statute (RS) to impose a priori boundaries to the of the International Criminal Court The ICC “preventative mandate”5 Prosecutor future investigation tailor- (ICC),3 the UNSC decided unani- The fifth considerando of the RS Pre- ing its referrals. In the case at hand, mously to refer the Libya situation to amble mentions the ICC objectives. on the contrary, the UNSC shaped the the ICC Prosecutor since 15 February Among those, it introduces the con- referral materially and personally. It 2011 through Resolution 1970/2011. cept of ‘prevention by enforcement’6 is here held that both limitations are Vis-à-vis the outbreak of the crisis in – i.e. it purports that putting an end contrary to international law. the country hence – erupted merely to impunity for crimes under interna- eleven days before the adoption of tional law would “contribute to the A limitation ratione materiae? Resolution 1970/2011 – the UNSC prevention of such crimes”. The RS According to article 5 RS, ICC juris- promptly reacted to the alleged com- Preamble acknowledges therefore the diction covers (i) the crime of geno- mission of crimes under international permanent nature of the ICC as a tool cide, (ii) war crimes and (iii) crimes law through an “immediate referral” in the hands of the international com- against humanity. When a situation – which has been claimed to be able munity to affirm that the rule of law is referred to the Prosecutor, article to “deter individuals from supporting is upheld and reinforced, and prevent 54 RS binds him to conduct “effective or otherwise assisting the regime”.4 that the ICC protected interests – the investigation (…) of crimes under the “peace, security and well-being of the jurisdiction of the Court” – i.e. of all Consequently, on 3 March 2011 the world”, as provided for by the third of them. A contextual appraisal of ar- Prosecutor announced the opening RS preambular considerando – are ticle 54 RS and the sixth considerando of an investigation in Libya. On 27 threatened. to Resolution 1970/2011 – which pro- June 2011 ICC Pre-Trial Chamber I vides that “the widespread and sys- (PTC I) issued arrest warrants against The timely UNSC referral of the Libya tematic attacks currently taking place Gaddafi himself, his son Saif and Al- situation mirrors such affirmative and in the Libyan Arab Jamahiriya against Senussi for crimes against humanity preventative role foresaw by the Pre- the civilian population may amount of murder and persecution. Then, on amble – and in that it sharply departs to crimes against humanity” [emphasis 22 November 2011, PTC I terminated from Resolution 1593/2005 that re- added] – is troubling. A legalistic read- the case against Gaddafi following ferred to the ICC Prosecutor the situ- er of the mentioned sixth considerando his death. On the contrary, the Pros- ation in Sudan, adopted by the UNSC could indeed claim that the UNSC ecutor reported that (i) the collection one year after it originally expressed requested the Prosecutor to limit his of evidence continues with regard to “grave concern over the deteriorating investigation only to the alleged com- the case against Saif and Al-Senussi humanitarian and human rights situ- mission of crimes against humanity – and (ii) investigation are undertaken ation in the Darfur region.”7 excluding both war crimes9 and geno- concerning allegations of other crimes cide. Such standpoint is indefensible committed by (a) pro-Gaddafi forces A jurisdictionally limited referral as contrary to (i) the RS, (ii) the notion and (b) NATO and NTC-related forc- Contrariwise, the Libya referral re- of situation embraced by ICC juris- es. calls and amplifies one of the most prudence and (iii) the practice of the contentious aspect of the Sudan one, ICC Office of the Prosecutor (OTP). Notwithstanding the peculiarities of in that it attempts to limit the ICC ju- recent events, it is worthy to analyse risdiction ratione materiae and personae. 8 S. von Schorlemer, ICC – Internation- the act through which ICC jurisdic- Generally speaking, the UNSC may al Criminal Court, in H. Volger (ed.), A Concise tion was triggered, i.e. Resolution refer a situation to the ICC regardless Encyclopedia of the United Nations, Kluwer 1970/2011 – which timely approval: (i) of whether the State on the territory Law International, 2002, at 279. 9 It cannot be contended that with the occurrence of an armed conflict the ICC

2 UNSC, 6490th Meeting, S/PV.6490, 5 See H. Olasolo, The Role of the Inter- jurisdiction would not be anymore operative. 25 February 2011, at 3. national Criminal Court in Preventing Atrocity First, jurisdiction is extended to crimes com- 3 According to which “[t]he Court Crimes through Timely Intervention, Inaugural mitted after the referral “in so far as they are may exercise its jurisdiction with respect to a Lecture as Chair in International Criminal Law sufficiently linked to the situation of crisis re- crime referred to in article 5 in accordance with and International Criminal Procedure at Utre- ferred to the Court as ongoing at the time of the the provisions of this Statute if a situation in cht University, delivered on 18 October 2010. referral”, as provided for in ICC, Prosecutor v. which one or more of such crimes appear to 6 O. Triffterer,Preamble , in O. Triffterer Mbarushimana, ICC-01/04-01/10, Decision on have been committed is referred to the Prosecu- (ed.), Commentary on the Rome Statute of the the Prosecutor’s Application for a Warrant of tor by the Security Council acting under Chap- International Criminal Law, Second Edition, Arrest Against Callixte Mbarushimana, 28 Sep- ter VII of the Charter of the United Nations.” C.H. Beck-Hart-Nomos, 2008, at 10. tember 2010, at para. 6. Second, the UNSC and 4 See United Kingdom and Nigeria 7 UNSC, Statement of the President of its members reiteratively made reference to the declarations in UNSC, 6491st Meeting Record, the Security Council, S/PRST/2004/18, 25 May possibility of an evolution of the crisis into an S/PV.6491, 26 February 2011, at 2-3. 2004, at 1. armed conflict.

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As for the exclusion of the ICC juris- ternational humanitarian law (IHL), i.e. trine.16 Yet two aspects of today Reso- diction over war crimes specifically, the law that applies in times of war: lution 1970/2011 make paragraph six a further element – stemming from a therefore, the circumstance that the even more worrisome. contextual and teleological interpre- crisis in Libya could have turned into tation of Resolution 1970/2011 – rein- an armed conflict was taken into due First, at the time of the adoption of the forces the abovementioned. account by the UNSC. Such presump- four mentioned Resolutions, a large tion is confirmed by UNSC members number of UNSC member States First, article 13 RS establishes that the declarations which consistently re- firmly complained against the -inclu ICC jurisdiction is triggered “with ferred to the need to respect both HR sion of the ratione personae limitation respect to a crime” [emphasis added] and IHL.14 – e.g. affirming that “the jurisdictional when the UNSC refers a situation immunity provided for in the text we “in which one or more” of the crimes Accordingly, it can be concluded that have just adopted obviously cannot under its jurisdiction appear to have the Prosecutor is by no means bound run counter to other international been committed:10 it follows that once to limit his investigation to crimes obligations of States”17 – and even ob- a situation is referred – even if the against humanity. jected that the limitation was “incon- UNSC made reference to a specific sistent in international law”.18 Regret- crime – the Prosecutor shall investi- A limitation ratione personae. tably, today merely Brazil expressed gate with regard to each and every Embedded in paragraph six of Reso- its “strong reservation concerning crime committed within it. Second, lution 1970/2011, the limitation of paragraph 6”,19 in the silence of all ICC jurisprudence established that the ICC jurisdiction ratione perso- other UNSC members, including the a situation is defined in terms of its nae establishes that “nationals, cur- traditionally ICC like-minded States. “territorial, temporal and possibly rent or former officials or personnel personal parameters”:11 clearly, it falls from a State outside the Libyan Arab Second, paragraph six includes a outside the scope of such definition Jamahiriya which is not a party to novelty able to extend limitlessly its any subject-matter limitation. Third, the Rome Statute” shall be subjected applicability. Indeed, in the past im- OPT practice demonstrates that so far to the “exclusive jurisdiction of that munity from ICC jurisdiction was any attempt of the referring entity to State for all alleged acts or omissions granted only whether the relevant limit the Court’s jurisdiction failed,12 arising out of or related to operations State (i) had not ratified the RS and whereas principles of investigative in the Libyan Arab Jamahiriya estab- (ii) did contribute to the operation au- independence, impartiality and objec- lished or authorized by the Council” thorized or established by the UNSC20 tivity13 entail that investigation must – i.e. shall be immune from ICC ju- – whereas the latter element lacks in be conducted “in the same manner risdiction. In other words the UNSC, the Libya referral. It follows that those irrespective of whether the Office -re aware of the fact that it could have nationals, officials and personnel ceives a referral from a State Party or subsequently authorized an opera- from those States that did not ratified the Security Council or acts pursuant tion pursuant to article 42 of the UN the RS but have not participated in the to article 15”. Charter – as it eventually did through operation authorized by the UNSC Resolution 1973/2011 – limited ab ini- As for, specifically, the exclusion of tio the referral as to shield from ICC the ICC jurisdiction over war crimes, jurisdiction nationals, officials and 16 See among others C. Stahn, The Ambi- both the third considerando to Resolu- personnel of RS non-party States that guities of Security Council Resolution 1422 (2002), tion 1970/2011 and its second para- were expected to participate in future in European Journal of International Law 2003, at 85 ss.; and G. Gaja, Immunità squilibrate dalla graph address the need to respect in- military operations in the Libyan ter- giurisdizione penale in relazione all’intervento ar- ternational human rights (HR) and in- ritory. mato in Liberia, in Rivista di diritto internazio- nale, 2003, at 762 ss. Such clause is not new in the UNSC 17 Declaration of France, UNSC, 5158th 10 According to article 5 RS, the ICC Meeting Record, UN Doc. S/PV.5158, 31 March has jurisdiction over genocide, crimes against practice: indeed, it is detectable in 2005, at 8. humanity, war crimes and the crime of aggres- the Sudan referral, as well as in Res- 18 Declaration of Brazil, UNSC, 5158th sion. olutions 1422/2002, 1497/2003 and Meeting Record, UN Doc. S/PV.5158, 31 March 11 ICC, Prosecutor v. Lubanga, ICC- 1487/200315 – which already attracted 2005, at 11. See also declarations of Canada, 01/04-01-06, Decision on the Prosecutor’s Ap- the critics of large part of the doc- New Zealand, Denmark, Costa Rica, Brazil, plication for a warrant of arrest, Article 58, 10 Mexico, and Germany in UNSC, 4568th Meet- February 2006, at para. 21. ing Record, S/PV.4568, 10 July 2002, at 3, 5, 8, 14, 12 See for instance the Prosecutor’s re- 21 and 26. fusal to limit the investigation in Uganda only 14 See South Africa, Nigeria, Lebanon, 19 Declaration of Brazil, UNSC, 6491st to crimes allegedly committed by members of Bosnia Herzegovina and UN Secretary General Meeting Record, UN Doc. S/PV.6491, 26 Febru- the LRA, as requested by Uganda in its self-re- declarations in UNSC, 6491st Meeting Record, ary 2011, at 7. ferral. ICC, ICC-02/04-1, Letter from the Prosecu- S/PV.6491, 26 February 2011, at 3-4, 6, 8. 20 See for instance paragraph six of tor to President Kirsch dated 17 June 2004 annexed 15 ����������������������������������For a comparative analysis of men- Resolution 1593/2005 which provides that to Decision Assigning the Situation in Uganda to tioned Resolutions see M. Roscini, The Efforts “current or former officials or personnel from Pre-Trial Chamber II, 5 July 2004, at 4. to Limit the International Criminal Court’s Juris- a contributing State outside Sudan which is not 13 See article 54(1) RS, according to diction over Nationals of non-State Party States: a party to the Rome Statute of the International which the Prosecutor must investigate “in- comparative study, in The Law and Practice of Criminal Court shall be subject to the exclusive criminating and exonerating circumstances International Criminal Tribunals 2006, vol. 5, at jurisdiction of that contributing State” [empha- equally”. 459 ss. sis added].

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through Resolution 1973/2011 would to the 1949 Geneva Conventions and Actually, two arguments run counter be covered by immunity, with the ab- their Additional Protocol I23 which such proposition. First, a deferral can errant consequence that it would be establish that States have universal be requested by the UNSC only for a granted, for instance, to mercenaries jurisdiction with regard to the pros- renewable period of twelve months, nationals of RS non-party States oper- ecution and punishment of individu- whereas paragraph six provides for ating in the Libyan territory.21 als responsible for grave breaches of a permanent limitation. Second, a de- IHL. Indeed, paragraph six, provid- ferral must be adopted under Chapter It is here argued that paragraph six is ing for the exclusive jurisdiction of the VII of the UN Charter, i.e. the on-going inconsistent with international law as relevant State, prevents the exercise investigation or prosecution must be for the following material and formal not only of the ICC one, but also of qualified by the UNSC as a threat to arguments.22 Materially, it is contrary States’ universal jurisdiction over the peace. Therefore, a merely potential abovementioned individuals.24 and future initiation of an investi- gation would not satisfy article 16 21 In this regard, see A. Cassese, Hanno Formally, it is contrary to the RS – RS requirements. Consequently, the vinto le pressioni europee, adesso serve una sentenza rapida, in la Repubblica, 28 February 2011, at 7. wherefore, it would not be able to Prosecutor would not be bound by 22 It falls out of the scope of the present create obligations upon the ICC. The paragraph six. comment to address the following two issues, ICC is indeed bound by UNSC reso- which are nonetheless relevant for a compre- lutions as far as the obligations aris- Conclusion hensive evaluation of paragraph six, i.e. the ing from them find their legal basis in Resolution 1970/2011 entails two notions of: (i) “current or former officials or personnel” and (ii) “alleged acts or omissions the RS. The only arguable legal basis types of effects. From one side, the arising out of or related to operations”. As for for paragraph six under the RS would timing of its adoption is significant the first, the borders of the notion itself and be article 16, which entitles the UNSC and catches the RS Preamble vision the legal qualification of the link between the to defer – i.e. to request the Prosecutor of a preventative ICC. On the other, individual and the State are totally unclear. As for the second, conflicting interpretations have the interruption of – an investigation ICC advocates will barely look at it as been suggested, some that extensively believe or prosecution. a success. Indeed, the distort use the that “the very fact that the conduct was carried UNSC makes of the ICC jurisdiction out by a peacekeeper renders it ‘related’ to the is likely to contribute to the creation of force or the operation, even if it does not fall within the mandate or has not been authorized at 676). a practice contrary to the spirit of the by the UN” (M. Roscini, supra note 15, at 503), 23 See First Geneva Convention, arti- RS. The ICC is a judicial body, which others that purport that crimes such as rape cle 49; Second Geneva Convention, article 50; must be left apart from political deci- Third Geneva Convention, article 129; Fourth would fall out of the limitation as not arising sions. The UNSC should avoid to use out of or related to operations (S. Zappalà, Are Geneva Convention, article 146; Additional Some Peacekeepers Better Than Others? Security Protocol I, article 85(1). the ICC jurisdiction to decide who to Council Resolution 1497 (2003) and the ICC, in 24 See R. Kolb, Droit international pénal, shield, and who to target. Journal of International Criminal Justice, 2003, 2008, Helbing, at 250-251.

Moreno Ocampo, World Bank Photo Collection, cc, www.flickr.com

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Hands off Libya, 1 March 2011, Beghazi, by Frank M. Rafik, cc, www.flickr.com

by Giulio Maria Raffa

Political Science and International Relations Student, at Scuola Superiore Sant’Anna SIC TRANSIT GLORIA MUNDI. AND NOW WHAT? SECURITY CHALLANGES & POLITICAL SCENARIO IN THE POST-GADDAFI ERA

Introduction The death of Colonel Muammar al- been greeted with jubilation by many «Libya’s daunting path2» towards its Qaddafi on October 20, 20111 has Libyans: the ‘killing of the tyrant’ at own future. Although it is too early to the hands of rebel forces has finally precisely describe the shape of post- ended four decades of autocratic rule Qaddafi Libya, it is nevertheless pos- 1 Al Jazeera, Battle for Libya: Key Mo- ments. Timeline of decisive battles and political de- and a bloody eight-month civil war velopments in Libya’s uprising against Muammar within the country. However, the 2 Council on Foreign Relations, After Qaddafi (http://english.aljazeera.net/indepth/ death of Col. Qaddafi and the end of Qaddafi, Libya’s Daunting Path, Expert Round- spotlight/libya/2011/10/20111020104244706760. his power create new questions about up, October 20, 2011 (http://www.cfr.org/libya/ html). after-qaddafi-libyas-daunting-path/p26249).

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sible to identify a number of immedi- latest reports from Libya, in the areas iad armed militias that still roam ate issues that will have a significant of Bani Walid and its surroundings, the country into an official national influence in the short and medium Qaddafi loyalists are still figthing for army12», there are also some positive term. In particular, this article seeks their fallen leader: in particular, sev- signals being given in some of the lat- to briefly outline those features and eral tribesmen «are already trying to est developments. In Misrata (one of challenges which seem to most likely regroup into a new insurgency move- the city which most has suffered from to undermine the post-war Libyan ment in and around the strategic des- the regime’s brutal repression) it has stabilization and transition process ert town south of the capitol, Tripoli7». been reported that no one wants to that will be led primarily by the Na- In summary, as it has been recently give up his weapons «until there is tional Transitional Council (NTC), the noted by a reporter for Reuters, «Lib- a united government and a national fledgling temporary governing body ya is plunging into a cycle of tribal army13», whilst in other parts of the created by the February 17th revolu- violence and retribution which, if left country there are also rebel armed tionary movement3. unchecked, could undermine the au- groups which are ready to defend thority of its new leaders , spur new their fair share of power in the next Security first forms of insurgency and throw the Libya «not by weapons of course, but The first and most critical problem country back into chaos8». by talks, negotiations and so on14» the Libya’s NTC must cope with is Therefore, in light of all of the above, without turning their guns on their to establish and ensure a safe and se- it seems clear that the collection of fellow revolutionaries. Moreover, as cure environment within the country. weapons and fully disarming and de- Mr. Ian Martin - the Special Repre- In the aftermath of the war Libya is mobilizing the various factions across sentative of the United Nations Sec- awash with weaponry and in all like- the country9 will not only be one of retary-General and the Head of the lihood the majority of Libyans are still the most critical, but also one of the United Nations Support Mission in armed. In particular, several armed toughest tasks facing the new lead- Libya (UNSMIL)15- recently reported brigades set up by the revolutionar- ers. Indeed, this fact has already been to the United Nations Security Coun- ies are still very evident across Libya recognized both by the NTC itself cil «the first handovers of weapons by and remain a law unto themselves. as well as the UN and NATO10. Ulti- the armed groups took place as part For example, according to recent first- mately, this will need to be a neces- of liberation ceremonies in Benghazi hand reports from Tripoli, there is a sary precondition for any foreseeable and Tripoli» and even if «they were «persistent problem of armed people pacific settlement of disputes between symbolic and limited in nature», they arriving from different parts of the different factions across the country11. however «sent a message that the is- country trying to move into empty Altough harsh criticisim has been sue was a priority, with broad con- homes that once belonged to Qaddafi recently raised against the NTC’s sensus on the need to immediately loyalists4». Moreover, several sources incapability in «melding the myr- remove all heavy weaponry from city attest that some rebel armed groups centres, to be followed by the col- are still picking up ammunition and lection of light arms16». Finally, the 7 Reuters, Gaddafi loyalists fight on 5 17 weaponry for their own purposes as Libya tries to unite, October 26, 2011 (http:// capture of Saif al-Islam Qaddafi on and, above all, bloody revenge kill- www.reuters.com/article/2011/10/26/us-libya- November 19, 2011 has to be consid- ings are still taking place in danger- bani-walid-idUSTRE79O71U20111026). ous and, sometimes, mysterious cir- 8 Reuters, Analysis by Maria Go- 6 lovnina, Cycle of revenge hangs over Libya’s cumstances . Also, according to the fragile peace, October 31, 2011 (http://www.re- 12 Ali Tahrouni in Reuters, Libya lead- uters.com/article/2011/10/31/us-libya-revenge- ers supported by “money, arms, PR”: ex-premier, idUSTRE79U1OF20111031). November 24, 2011 (http://www.reuters. 3 Libyan National Transitional Coun- 9 In particular, someone argues that com/article/2011/11/24/us-libya-idUSTRE- cil (NTC), Overview, (http://www.ntclibya.com/ «the involvement of Western air forces meant 7AN1W420111124). InnerPage.aspx?SSID=32&ParentID=3&Lang that the rebels never had to form a unified force 13 Abdulbaset al-Haddad quoted in ID=1). (...). That is why they now lack an army with BBC, Vying for a slice of power in the new Libya, 4 BBC, Libya: The challenges ahead, Oc- wich to bring the country under control». See October 5, 2011 (http://www.bbc.co.uk/news/ tober, 21 2011 (http://www.bbc.co.uk/news/ Al Jazeera, Opinion by Tarak Barkawi, Peace world-africa-15191986). world-africa-15407475). may be war in post-war Libya, October 21, 2011 14 Abdulwahab Ezzintani quoted in 5 LiveLeak, Victorious Righteous Rebels (http://english.aljazeera.net/indepth/opin- BBC, Vying for a slice of power in the new Libya, Cruising Tripoli RIng Road and Go Shopping at ion/2011/10/20111021412582958.html). October 5, 2011 (http://www.bbc.co.uk/news/ Arms Dump, Current event, (http://www.live- 10 See, for example, NATO, Securing world-africa-15191986). leak.com/view?i=74e_1314718743). Libya’s Weapons, October 19, 2011 (http://www. 15 UNSMIL, Mission Leadership, 6 The New York Times, Revolution nato.int/cps/en/natolive/news_79684.htm) and http://unsmil.unmissions.org/Default. Won, Top Libyan Official Vows a New and More UN, Post-Qaddafi Libya needs ‘focused, measured’ aspx?tabid=3546&language=en-US. Pious State, October 23, 2011 (http://www. international support, UN Special Envoy reports 16 UN, Post-Qaddafi Libya needs ‘focused, nytimes.com/2011/10/24/world/africa/revo- to the UN Security Council, October 26, 2011 measured’ international support, UN Special En- lution-won-top-libyan-official-vows-a-new- (http://www.un.org/News/Press/docs/2011/ voy reports to the UN Security Council, Octo- and-more-pious-state.html?_r=2&ref=libya), in sc10422.doc.htm). ber 26, 2011 (http://www.un.org/News/Press/ which a Human Rights Watch’s direct testimo- 11 See also Foreign Affairs, James docs/2011/sc10422.doc.htm). ny of at least fifty-three executions perpetrated Dobbins and Frederic Wehrey, Libyan Nation 17 The Wall Street Journal, Gad- by the rebels is quoted. See also BBC, Libya Building After Qaddafi, August 23, 2011 (http:// hafi’s Son Is Captured in Libya, November 20, Militia ‘terrorises’ pro-Gaddafi town of Tawargha, www.foreignaffairs.com/articles/68227/james- 2011 (http://online.wsj.com/article/SB1000 October 31, 2011 (http://www.bbc.co.uk/news/ dobbins-and-frederic-wehrey/libyan-nation- 1424052970203611404577047712839617168. world-africa-15517894). building-after-qaddafi?page=show). html?KEYWORDS=libya).

29 ITPCM International Commentary December 2011 ISSN. 2239-7949

ered a «boon for all Libyans18», since returning from abroad and those who by some key militias groups like the he could have potentially led a pro- stayed and opposed the regime at Zintanis, who captured Saif al-Islam, longed and destabilizing insurgency enormous personal expense21». and the Misratans, who killed Col. against the new leaders and the stabi- In particular, great attention must be Qaddafi, which had both tried to lization process promoted by them19. payed to the recent creation of the obtain key posts in the new govern- new interim government. In fact, on ment25. Who will govern the next Libya with November 24, 2011 Libya inaugurat- In particular, it is to Abdel Hakim legitimacy: «A magic power-sharing ed an interim government headed by Belhadj26 - also known as Abu Abdul- formula between local militias and Abdurrahim El-Keib that will have to lah Al-Saliq in the jihadi world - that seasoned technocrats20»? lead the country to elections in seven many are pointing to as a major but While small military battles are still months according to the NTC’s draft ‘unpredictable’ player in the future being fought across the country, constitutional charter22. The composi- political field. In fact, as the leader Libya’s political struggle for power tion of the cabinet and the designation of the Tripoli Military Council he is has already begun. Beyond the wide- of the ministers, however, highlight arguably one of the most powerful spread fears of the abovementioned the tribal and regional factionalism man in Libya, having also managed revenge killings, increasing tensions and rivalries undermining the Libyan during the war fundamental technical are «evident between Islamists and political stability23. The legitimacy of and tactical military agreements with secularists, and between technocrats the government, indeed, has been im- important foreign States27. Belhadj is mediately contested by the so-called Libyan Amazigh (i.e. Berber) Con- new government line-up, November 23, 2011 18 BBC, Jason Pack and Shashank Joshi, gress24 and put under strong pressure (http://www.reuters.com/article/2011/11/23/us- Gaddafi’s son capture complicates struggle over libya-idUSTRE7AL0JM20111123). cabinet, November 19, 2011 (http://www.bbc. 25 BBC, Jason Pack and Shashank Joshi, co.uk/news/world-africa-15798274). See also 21 Council on Foreign Relations, Op-ed Gaddafi’s son capture complicates struggle over cab- the statement by Navi Pillay, the United Na- by Isabel Coleman, Why Libya Has a Real Shot at inet, November 19, 2011 (http://www.bbc.co.uk/ tions High Commissioner for Human Rights, Democracy and Stability, October 21, 2011 (http:// news/world-africa-15798274). where she welcomed the «enormous signifi- www.cfr.org/libya/why-libya-has-real-shot- 26 BBC, Profile: Libyan rebel commander cance [of the Saif al-Islam’s arrest] for the future democracy-stability/p26259). Abdel Hakim Belhaj, September 5, 2011 (http:// of justice in Libya», November 21, 2011 (http:// 22 Reuters, Libyan interim government www.bbc.co.uk/news/world-africa-14786753). www.ohchr.org/en/NewsEvents/Pages/Dis- sworn in, November 24, 2011 (http://www. 27 See The Guardian, Ian Black, Qatar playNews.aspx?NewsID=11628&LangID=E). reuters.com/article/2011/11/24/libya-govern- admits sending hundreds of troops to support Libya 19 The Economist, Libya’s Militias. Hard ment-idUSL5E7MO3NT20111124). rebels, October 26, 2011 (http://www.guardian. to control the cocky gunmen, November 26, 2011 23 For a brief biography of the new co.uk/world/2011/oct/26/qatar-troops-libya- (http://www.economist.com/node/21540298). Ministers see Reuters, Ministers in the new rebels-support?INTCMP=SRCH); see also The 20 BBC, Jason Pack and Shashank Joshi, Libyan government, November 23, 2011 (http:// Wall Street Journal, Tiny’s Kingdom Huge Role in Gaddafi’s son capture complicates struggle over cab- www.reuters.com/article/2011/11/23/us-libya- Libya Draws Concern, October 17, 2011 (http:// inet, November 19, 2011 (http://www.bbc.co.uk/ government-idUSTRE7AM2N320111123). online.wsj.com/article/SB100014240529702040 news/world-africa-15798274). 24 Reuters, Libyan tribes protest at the 02304576627000922764650.html); see also The

040, by Nasser Nouri, 2 March 2011, cc, www.flickr.com

30 ITPCM International Commentary December 2011 ISSN. 2239-7949

also considered the leader of the coun- Beyond the abovementioned politi- ist triumphalism37». try’s Islamist camp - he has spoken on cal cleavege between secular and Is- Ultimately, important political de- several occasions as the ‘voice’ of the lamist Libyans, in the medium and velopments in Tunisia38 and Egypt39 Islamist camp, publicy warning that long term another important feature will have significant influence over Libyan Islamist groups «will not al- has to be acknowledged in trying to Libya’s future. In particular, although low» secular politicians to exclude or determine the next stage of the de- between Tunisia, Libya and Egypt marginalise them in the intensifying mocratization process embraced and there are substantial differences, all battle for power in the post-Qaddafi pursued by the NTC’s leadership32, the three countries, however, not only era28. Moreover, whilst his past ties i.e. the ‘unique’ Qaddafi Jamahiriya’s have very similar agendas in their to jihadi groups have sparked much legacy to the country. Whilst it is gen- path from authoritarian regimes to controversy around the world29, the erally agreed that «for a democracy electoral democracies, but also they national visibility he gained leading to take hold, a country needs parties all have several common and remark- the victorious military assault against and civic organisations that bridge able challenges to face, among which Col. Qaddafi’s notorius Bab Al-Azizia national divides33», in Libya «the long the most meaningful is the rise and compound has been seen with some shadow of Muammar al-Qaddafi’s the entry in the political arena of dif- concern by secular Libyans. How- incoherent and contradictory Jama- ferent forms of political islam40. ever, he himself remarkably adopted hiriya system, which claimed to be a a more moderate and less assertive direct rule of the masses, but in real- The international community: a re- tone by publicly claiming that «there ity involved containing tribal and re- newed role for the United Nations is room in Libya for the various par- gional allegiances through force and The United Nations Security Council ties and political persuasions to be money while preventing the emer- on October 27, 2011 ordered the end represented, and Libyans must be gence of parallel political or religious to authorized international military allowed to listen to diverse opinions power bases34» has not allowed the action in Libya41 and, therefore, the so they can decide who they want to emergence nor the consolidation of activities of the NATO-led operation elect to lead the country in the next any ‘national’ experience with partici- in Libya (Operation Unified Protector42) stage» and that «all Libyans are part- patory politics35. Indeed, the imple- ended at 11.59 local time in Libya on 31 ners in this revolution and all should mentation of Qaddafi’s singular Third October. Whilst at the moment there be part of building the future of this International Theory36 has left the coun- are some rumours about a new alli- country30». try without active and widespread ance of «Libya’s friends» which will Despite this, however, in a set-back to political parties nor civil society orga- replace NATO43 after a previous NTC Belhadj’s camp, the post of the Minis- nizations (CSOs). In light of this, the request for a prolonged international try of Defence in the new cabinet has task of creating represantative and le- military commitment in the country44, been allocated to Osama Al-Juvali, the gitimate institutions able to unite and head of the Military Council of Zintan bring together all Libyans in spite of 37 The Guardian, Jason Pack, Post- and a close ally of the Zintan militia’s their regional and tribal differences Gaddafi Libya should think local, October 23, leader Abdullah Naker, who had pre- and divisions will be a tough chal- 2011 (http://www.guardian.co.uk/commentis- viously strongly opposed to «any role lenge for the NTC, if it wants to avoid free/2011/oct/23/post-gaddafi-libya-local). in government or a national Libyan the danger of any so-called «regional- 38 See Issandra El Amrani and Ursula 31 Lindsey, Middle East Research and Informa- army for Belhadj ». tion Project, Tunisia Moves to the Next Stage, No- hadj-airport-idUSL5E7MO46X20111124). vember 8, 2011 (http://www.merip.org/mero/ Eonomist, Libya and its allies. All too friendly, No- 32 See Libyan National Transitional mero110811). vember 12, 2011 (http://www.economist.com/ Council, A vision of a democratic Libya (http:// 39 See Nate Wright, Middle East Re- node/21538208). www.ntclibya.com/InnerPage.aspx?SSID=4&P search and Information Project, Egypt’s Intense 28 See The Guardian, Ian Black, Libyan arentID=3&LangID=1). Election Eve, November 10, 2011 (http://www. Islamists must have share in powers, warns leader, 33 Foreign Affairs, Dawn Brancati and merip.org/mero/mero111011). September 25, 2011 (http://www.guardian. Jack L. Snyder, The Libyan Rebels and Electoral 40 See Jeffrey Fleishman, Los Angeles co.uk/world/2011/sep/27/libyan-islamists-pow- Democracy, September 2, 2011 (http://www.for- Times, Political islam at a crossroads in Egypt, er-share-warning?INTCMP=SRCH). eignaffairs.com/articles/68241/dawn-brancati- November 25, 2011 (http://www.latimes.com/ 29 See The Guardian, Ian Black, and-jack-l-snyder/the-libyan-rebels-and-elec- news/nationworld/world/la-fg-egypt-muslim- The Libyan Islamic Figthing Group: from al- toral-democracy?page=show). brotherhood-20111125,0,1441739,full.story). Qaida to the Arab Spring, September 5, 2011 34 Foreign Policy, Alex Warren, Libya’s 41 UN News, Libya: Security Council (http://www.guardian.co.uk/world/2011/ Post-Qaddafi Party, September 21, 2011 (http:// ends mandate for international military operations, sep/05/libyan-islamic-fighting-group- www.foreignpolicy.com/articles/2011/09/21/ October 27, 2011, (http://www.un.org/apps/ leaders?INTCMP=SRCH); see also The Wall libyas_post_qaddafi_party?page=full). news/story.asp?NewsID=40221&Cr=libya& Street Journal, Discorde Riddles Libyan Factions, 35 Foreign Affairs, James Dobbins and Cr1=). October 8, 2011 (http://online.wsj.com/article/ Frederic Wehrey, Libyan Nation Building Af- 42 NATO, Nato and Libya - Operation SB100014240529702042945045766170333120607 ter Qaddafi, August 23, 2011 (http://www.for- Unified Protector, (http://www.nato.int/cps/ 42.html?KEYWORDS=belhaj). eignaffairs.com/articles/68227/james-dobbins- en/SID-B318D726-64EA2A1F/natolive/top- 30 The Guardian, Abdel Hakim Belhaj, and-frederic-wehrey/libyan-nation-building- ics_71652.htm?). The revolution belongs to all Libyans, secular or after-qaddafi?page=show). 43 Reuters, New Alliance to back Libya, not, September 25, 2011 (http://www.guardian. 36 The New York Times, Neil MacFar- replacing NATO: Qatar, October 26, 2011 (http:// co.uk/commentisfree/2011/sep/27/revolution- quhar, An Erratic Leader, Brutal and Defiant to www.reuters.com/article/2011/10/26/us-libya- belongs-to-all-libyans). the End, October 20, 2011 (http://www.nytimes. qatar-idUSTRE79P7JB20111026). 31 Reuters, Libyan militia briefly holds com/2011/10/21/world/africa/qaddafi-killed- 44 Reuters, NATO support for Libya Libya Islamist chief, November 24, 2011 (http:// as-hometown-falls-to-libyan-rebels.html?_ welcome until end-2011: NTC, October 26, 2011 www.reuters.com/article/2011/11/24/libya-bel- r=1&ref=neilmacfarquhar). (http://www.reuters.com/article/2011/10/26/uk-

31 ITPCM International Commentary December 2011 ISSN. 2239-7949

it seems clear that in the medium and take immediate steps required to ini- «So far, so pretty good»48? long term it will be the UN-deployed tiate economic recovery46. Indeed, not The last eight-month history of Libya mission to the North African country only will UNSMIL be a crucial player has been followed with anxiety and that will bring enormous benefits to in coordinating all the actors present apprehension all over the world. The Libyans and to the NTC-led stabiliza- in Libya (both national and interna- death of Col. Muammar Qaddafi at tion and transition period. tional), but will also decisively assist the hands of the rebels signaled a cru- In fact, the UN Security Council man- and support Libyan national efforts to cial moment for the end of the civil date given to the United Nations Sup- rightly implement the numerous pro- war and a key moment for the dawn port Mission in Libya (UNSMIL)45 visions enlisted in the Constitutional of a new era. However, for Libya’s on September 16, 2011 comprises a Declaration of August 10, 201147. new rulers and for the future of the list of ‘focused and measured’ tasks country the way ahead is full of ob- which may better help the NTC face 46 See UNSMIL Mandate in S/RES/2009 stacles and challenges. the difficult challenges previously (2011), (http://www.un.org/ga/search/view_ Nevertheless, «amid trepidation, the mentioned in this article. In particu- doc.asp?symbol=S/RES/2009%282011%29). new regime is making a remarkably lar, UNSMIL will assist and support 47 In particular, after the Declaration hopeful start49» and, as it has been Libyan national efforts to restore pub- of Indipendence of October 23, 2011, «the es- highlighted in this article, there are tablishing of an interim Government within 30 lic security and order and promote days, adopting electoral legislation and estab- good signs from both currently devel- the rule of law; to undertake inclusive lishing an electoral management body within oping events within Libya and from political dialogue, promote national 90 days, and within 240 days holding elections the fact that international community reconciliation and embark upon the for a National Congress to give democratic le- is laying down the proper basis for gitimacy to a new Government and the body constitution-making and electoral that would draft a Constitution», reported the ‘right’ beginning of the post-Qad- process; to extend state authority, by Mr. Ian Martin in UN, Post-Qaddafi Libya dafi era. promote and protect human rights needs ‘focused, measured’ international support, and support transitional justice; to UN Special Envoy reports to the UN Security Council, October 26, 2011 (http://www.un.org/ News/Press/docs/2011/sc10422.doc.htm); see also Tunisia-live.net, NTC announces Constitui- libya-nato-idUSTRE79P26Z20111026). onal Declaration, August 11, 2011 (http://www. 48 The Economist, So far, so pretty good, 45 See UNSMIL Website, tunisia-live.net/2011/08/11/the-ntc-issues-the- September 10, 2011 (http://www.economist. (http://unsmil.unmissions.org/Default. constitutional-declaration-for-the-transitional- com/node/21528654). aspx?tabid=3543&language=en-US). period/). 49 Ibid.

Prayer and protest in Bengazi, Libya, by David Degner

32 ITPCM International Commentary December 2011 ISSN. 2239-7949

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33 ITPCM International Commentary December 2011 ISSN. 2239-7949

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