Interview: Inside ICC
10 years of International Criminal Court (ICC)
As Muammar Gaddafi's regime began to fall and National Transitional Council troops took Tripoli, there was much celebration and mutual pats on the back in the foreign policy control centres of London and Paris: The decision to take sides in a domestic conflict to protect the people of Benghazi from the threatened wrath of a dictator had been the right one.
The British and French took the lead in implementing Resolution 1973 of the UN Security Council in March that called for the protection at all cost of the civilian population of Libya using all necessary means. Libya was the first time the Responsibility to Protect adopted by the UN General Assembly in 2005 had been applied.
On October 24, 2005 the General Assembly of the United Nations adopted the concept of the Responsibility to Protect with an overwhelming majority. This was developed at the instigation of the Canadian government by the "International Commission on Intervention and State Sovereignty".
The goal of the Responsibility to Protect is to recognise the imminent danger of war crimes, genocide and crimes against humanity early and, as a best case scenario, prevent them entirely, or at least stop them. If this responsibility is not fulfilled or even violated by national states, it passes on to the international community, who then bears responsibility for protecting civilians through negotiation, sanctions and, in extreme cases, military intervention.
The "Responsibility to Prevent" is the foundation of the RtoP concept. It states that all members of the international community are obliged to take steps to prevent conflict. These include development cooperation approaches, such as poverty reduction, and promoting good governance, education and dialogue between different civil society groups. These measures are naturally accompanied by responsible foreign and trade policy that subordinates one's own interests if these would clearly increase the conflict potential in a country or region. Germany, for example, as a country that exports weapons, must constantly and very thoroughly monitor and regulate what may be shipped to which countries. This is not just a question of tanks either. Small weapons and radar and communication technologies that can be put to military use play a role as well.
In the political and feuilletonistic debate in Germany, this aspect of the concept is often ignored by its opponents. Response is seen as limited to the option of military intervention (the Responsibility to React). This is often called "humanitarian interventionism" or a "return to the rule of force" and raises conjecture that neo-imperialistic motives cannot be excluded.
While this polemic seems to have more of an ideological motive, the concept of the Responsibility to Protect should be critically analysed, since its application does raise the following complex questions of international law:
A resolution from the UN Security Council is the formal prerequisite for the application of the Responsibility to Protect. Based on the different and at times competing geostrategic and power-political interests of the Council's permanent members, we may assume that resolutions will only be passed in rare and very serious cases. On the one hand this undermines the assumption that the Responsibility to Protect legitimises military interventions that are actually driven by interest. On the other though, the balance of power in the Security Council creates another issue. Good relations with a permanent member can protect dictators like Omar Al-Bashier in Sudan from an intervention like that in Libya, legitimate in the eyes of international law, despite the fact that serious human rights violations have been and are being perpetrated in Sudan. In the current situation, then, the question must arise as to why Syria is allowed to use disproportional violence against demonstrators in full view of the global public while the UN intervenes in Libya.
The case of Libya clearly demonstrates three additional prerequisites that must also be fulfilled to justify the use of military means:
France's actions were criticised - and rightly so. The sticky question remains though: What were the alternatives in this situation? If NATO had restricted itself to its actual mission, the NTC troops would surely not have reached Tripoli since they would have lacked the necessary firepower to win against even weakened government troops. This would probably have resulted in a long, drawn-out civil war that would have ended with many more victims in all likelihood. In the Libya conflict, the French approach may be grated legitimacy after the fact based on the success of the NTC and the clearly confirmed atrocities perpetrated by the regime (HRW). This can in no way become the rule though, since the responsibility to protect must remain an emergency option and not a measure to rid oneself of dictators in the manner of the Bush Doctrine.
At what point though is a deployment to protect human rights over? The wording of the UN resolution covers all measures needed to protect citizens under the threat of attack. It is hard to determine the exact point when an aggressor no longer represents a threat. And in this concrete example, one also has to assume that Gaddafi would have made good on his threat of retribution sooner or later.
The so-called "do no harm" rule says that interventions are not justified if there is a clear expectation that they will acerbate a conflict. Although we can never truly be sure in advance if a military operation will save more lives or cause more civilian victims. At any rate, the first goal of any military operation should be to prevent attacks on the civilian population through air strikes and artillery and to evacuate as many people as possible from the combat zone.
The war in Libya is over for the moment. Now the task at hand is to meet the responsibility for reconstruction and prevention that goes along with it in this post-conflict situation with development policy measures in the areas of security sector reform, administrative development and promoting civil society. For Germany this is a new chance to show a willingness to assume international responsibility that goes beyond written promises and soapbox speeches.
Over the long-term, applying the Responsibility to Protect in Libya will send an important message: The Security Council has proven that is not entirely incapable of action and showed the global public that it is no longer helpless in the face of serious human rights violations during domestic conflicts. But the problems that arise with the application of the Responsibility to Protect mentioned here must be taken very seriously. In particular civil society must play a role as critical observer. Still, Libya can be assessed as a successful stress test for the norm of the Responsibility to Protect.
 Schorlemer, Sabine von, 2007: Die Schutzverantwortung als Element des Friedens, Policy Paper 28 (pub. the Stiftung Entwicklung und Frieden).
 Ruf, Werner, 2011: Der Weg zurück zum Faustrecht, in: The European (29.05.2011), (retrieved on 22.08.11)
 Human Rights Watch 2011: Libya: Evidence suggests Khamis brigade killed 45 detainees, (retrieved on 26.08.2011)
 Ischinger, Wolfgang, 2011: Die Last der Verantwortung, in: Süddeutsche Zeitung from 27.05.2011, p.3.
 Interview by Genocide Alert with Prof. Dr. Claus Kreß on 22.03.2011