The Conflict in Libya: Is it Genocide?

Dr Paul Behrens, University of Leicester

Paul Behrens, University of Leicester, debates on Leicester ExchangesIf you send tanks and planes and missiles against your own people, if killing and torture become a pattern of your campaign, you must not be surprised if the International Criminal Court gets interested in you.

On July 25 2011 then, it was Colonel Gaddafi’s turn: together with his son Saif and his intelligence chief Al-Senussi, he is now officially wanted by The Hague. That there would be an arrest warrant sooner or later is not all that surprising. What is surprising is that it is quite a modest document. Only two charges there: murder and persecution, both of them crimes against humanity. When the Prosecution asked for an arrest warrant against Omar Al-Bashir, the President of Sudan, they pulled out all stops: crimes against humanity, war crimes and genocide as well. Why not in the Gaddafi case?

War crimes are tricky, and there is no telling how the Court would have dealt with them.  Is there a war in Libya? When did it start? Was this or that crime part of an armed conflict, or was it still an attempt to crush a facebook rebellion?

Genocide is even more difficult – and at this point, the cases of Bashir and of Gaddafi really go in different directions. It’s not merely a matter of numbers – the point is not that Gaddafi hasn’t quite reached the 300,000 deaths for which the Bashir regime is blamed. Genocide, as a legal concept, can exist even if victim numbers are still quite small. But the tragic dimension of the Gaddafi case is this: the people of Benghazi, of Misrata, of Ajdabiya and the other cities were the Colonel’s iron fist is felt, are not considered victims of genocide. Gaddafi could kill thousands of them or a million. And still the Genocide Convention would turn its back on them.

The Genocide Convention is in many regards a restrictive instrument. Only four groups are protected by it: those defined by nationality, ethnicity, race or religion. The atrocities of a Robert Mugabe in Zimbabwe, post-election violence in Kenya, the attacks on an entire population in Libya, are not recognised – because they go “only” against political groups. It gets even more absurd: most of the killings of Pol Pot, commonly called the “architect of genocide” in Cambodia, would not be genocide at all, because his intention was not to destroy one of the protected groups as such. (the Khmer Rouge commanders who are now on trial in Cambodia, are charged with genocide – but only where their acts targeted the Cham and the Vietnamese minorities).

Excuses have certainly been offered for these exclusions. The Convention, according to some, is meant to cover only “stable groups”. But religious groups are included even though their membership and composition are subject to significant fluctuation. Another argument is that the Convention must not be “watered down”. But why should the inclusion of those who fight genocidal maniacs be a dilution? In Rwanda, there is now the strange situation that the Tutsi who died in the 1994 massacres, are recognised as genocide victims, but courageous Hutus who sought to protect them, are not.

The real reason why political groups are excluded is wedded less to logic than to political convenience. When the Convention was drafted, in the late 1940s, one State was particularly opposed to the inclusion of political groups – the Soviet Union: led back then by Josef Stalin, the master of political purges.

This causes unease among genocide scholars, and calls for reform are therefore not uncommon.  And it doesn’t stop there – some are starting to wonder if the Convention itself makes sense at all. One of the judges in the Mladic case has asked whether one couldn’t create a different crime, perhaps that of “mass murder”.

But abolishing the genocide concept is a radical solution, and not altogether necessary. The Genocide Convention does fulfil a purpose. For one, it makes sense to have a criminal law which stigmatises acts aiming at the extermination of an entire group. And then, there is more to the convention than just the definition of a crime. The treaty obliges its members (140 States to date), to prevent genocide. The fact that large victim numbers are not required, is a good thing in this regard – it means that the international community can intervene at an early stage and does not have to wait until mass killings have taken place. (The reality is always different: even 800,000 victims in Rwanda did not lead to an appropriate reaction by the international community).

This year marks the 60th anniversary since the Genocide Convention entered into force. Its limitations continue until today and are still utterly indefensible. The solution of this problem can only be a reform which involves all member States – a reform which extends the protection of the Convention to those groups, for whose sufferings it has hitherto been deaf. The Convention does not need to be pensioned off. What it needs, is a hearing aid.

Dr Paul Behrens teaches international law at the University of Leicester. His research interests include Public International Law and Constitutional Law. He has written expert commentaries for leading British and German newspapers (including the Guardian and the Süddeutsche Zeitung). His most recent radio interview (in German) is available online: (click on “WDR5 Politikum Sendung vom 04.07.2011”).

8 Comments

  1. Dr Paul Behrens
    Posted 17/08/2011 at 17:24 | Permalink

    Hi Naser,

    that is a very interesting thought. “Tribes” are certainly closer to the concept of the protected groups that appear in the Genocide Convention (and in the subsequent instruments) than political groups – it would be easier to see them as “ethnic groups” to which the legal concept of genocide refers.
    But this is not the first time that such a situation has arisen – a situation in which a dictator targeted people from particular groups, but not necessarily “because” of their membership in that group. One may recall in that context the killings of the Acholi in Uganda under Idi Amin, who were considered supporters of Obote (his ousted predecessor). The evaluation of such atrocities is ultimately again a question of intent. The perpetrator might well have political motives at the same time as genocidal intent – but genocidal intent he must have; and that means that he must have targeted the group “as such”. The international criminal tribunals have understood that to mean that the victims are not targeted as individuals, but “because of their membership” in that group. That is the test question which a court is likely to apply to the crimes of Gaddafi’s regime as well, if charges of genocide were raised.

    PB

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  2. Dr Paul Behrens
    Posted 16/07/2011 at 07:55 | Permalink

    Hi all.

    Jackson – many thanks for your comment; glad you liked the article.
    I do think the legal response has a place; and international criminal trials certainly fulfil a range of tasks, including the dismantling of myths (one of the many reasons why I really would have liked to have seen Bin Laden in a courtroom). I also feel I have to defend the judicial response to Rwanda here: the Rwanda Tribunal (the ICTR) has convicted nearly 50 persons of genocide (commission, incitement etc, and not counting sentencing judgments). That said, it is always necessary to be aware of the restrictions of international justice, and the battlecry “peace through justice” may in certain situations be somewhat optimistic. Judges cannot order peace. But they can contribute to its establishment.

    PB

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  3. Frank Dawson
    Posted 08/07/2011 at 20:32 | Permalink

    I think I’d agree with Chris. America exists in a world of perpetual double standards. That’s not to say I’d rather live in North Korea. More that I wish the leader of the free world would be rather more effective at living up to it’s billing.

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  4. Naser
    Posted 08/07/2011 at 20:31 | Permalink

    Benghazi, Ajdabiya and the other cities which have been liberated from Gaddafi’ regime, are located in the east of Libya and belong to certain tribes (where Gaddafi’s tribe rarely lives there)Therefore, do you think the presumption of “race” might appear here, and then the genocide is perhaps existent? in other words, the political dimension (that is excluded) could arise, for example, within racial or religous group.

    [Reply]

  5. Chris Williams
    Posted 08/07/2011 at 19:19 | Permalink

    A very large proportion of those killed were killed after GWB declared victory. It is alleged that the action in Fallujah involved the use of indiscriminate violence against civilians and qualifies as a war crime, particularly as the action took place after the main hostilities had ceased and the US forces had entered the country in defiance of international law. The killing of Moslem men and boys in Srebrenica is referred to as genocide but the killing of Muslim civilians in Fallujah is not. The people of Fallujah were deliberately targeted by the US forces. They did not take the same action in other parts of the country against the partisans fighting to liberate their country from an illegal invasion or insurgents as the US likes to call them.

    This action was a repeat of the action in Vietnam where civilians were killed (whole villages of them) to balance the number against the number of US forces killed. In the subtlety of what is and is not genocide, killing Vietnamese civilians for propaganda purposes probably does not count. However, two African tribes who are virtually indistinguishable kill each other over many years but only one tribe (the long persecuted one) is accused of genocide when it rebels against the yoke because that rebellion was particularly bloody.

    There is the genocide that is called a holocaust and the killing of even more people in his own country by Stalin that is not. Am I just missing the subtlety of the definition or is there a political element to the names we give different killing sprees.

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  6. Naser
    Posted 08/07/2011 at 18:51 | Permalink

    the people of Benghazi, Misrata, Ajdabiya and the other cities which have been liberated from Gaddafi’ regime, are located in the east of Libya and belong to certain tribes (where Gaddafi’s tribe rarely live there)Therefore, do you think the presumption of “race” might here appear, and then the genocide is perhaps existent? in other words, the political dimension (that is excluded) could arise, for example, within racial or religous group.

    [Reply]

  7. Chris Williams
    Posted 07/07/2011 at 19:38 | Permalink

    The US and its allies killed around 65,000 people in Iraq. These people were mostly Arab and the allies were mostly not Arab. Does that count as genocide?

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    LXmoderator Reply:

    Thanks for your comment, Chris and your continued support of the site. Dr Paul Behrens, the author of this post, is keen to get involved in this debate on the site. In the meantime, would any other readers like to come back to Chris on the point he raises?

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    Jackson Reply:

    No, because there was no deliberate targetting or intention. Many were combattants. Some clearly weren’t. That’s not to say I particularly support what happened.

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  8. Jackson
    Posted 07/07/2011 at 10:05 | Permalink

    A good piece but it does show that taking a legal response to these issues is problematic. The international community’s work on the Rwandan genocide has barely brought anyone to justice and has taken an age. The trials at the Hague of Milosevic et al have been drawn out and traumatic. Even when one goes back as far as Nuremburg, few were tried given the logistical (and arguably political) difficulties of doing so.

    I’m not sure I’ve a much better suggestion. But you can see why the US might have not been too upset when Bin Laden met a swifter end.

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