Gabor Rona [International Legal Director, Human Rights First]: "Libyan leader Muammar Gaddafi is committing atrocities against his people. His armed forces, police and mercenaries have been reported to be systematically targeting civilians in a misguided attempt to quell public demonstrations for democratic reform. A week ago, UN Secretary General Ban Ki Moon said this to reporters in Los Angeles: "I have seen very disturbing and shocking scenes, where Libyan authorities have been firing at demonstrators from warplanes and helicopters. This is unacceptable. This must stop immediately. This is a serious violation of international humanitarian law."
It is gratifying to see the Secretary General's unequivocal condemnation. But there's a problem. International humanitarian law is the law of armed conflict, otherwise known as the laws of war, detailed in the Geneva Conventions. At the time of Ban's statement, there was no war in Libya and so, international humanitarian law did not apply. Because the laws of war permit killing, the Secretary General unwittingly lowered the bar for use of official force even as he rightly condemned it. Whatever crimes were or are being committed by the Libyan regime outside the context of armed conflict, they are not war crimes. Human rights law would be the more appropriate benchmark; specifically "crimes against humanity," defined as a widespread or systematic attack on a civilian population. The "crimes against humanity" label has been properly suggested by High Commissioner for Human Rights, Navi Pillay and other UN human rights experts.
Others have cried genocide, perhaps on the false assumption that what begins as murder - even mass murder - becomes genocide when some magic number of deaths is recorded. In fact, genocide is the destruction of, or attempt to destroy, an identifiable national, ethnic, racial or religious group. While one murder, or even no murders, might still be genocide (for example, forced sterilization of members of the group) genocide is not, at least for now, what's happening in Libya.
In the week since Ban's statement, the situation on the ground has changed. Increasingly organized rebel forces, some of them dissident members of Libya's military, are engaging the government's forces. It's beginning to look more and more like civil war. Once the threshold into armed conflict is crossed, international humanitarian law applies and some important distinctions must be made. Targeting even one peaceful demonstrator in armed conflict is a war crime, while the widespread or systematic targeting of them remains a crime against humanity. On the other hand, humanitarian law recognizes the right of government forces to use armed force against rebels who directly participate in hostilities. In further recognition of the legal equality of parties to the conflict, humanitarian law also contains no prohibition against the rebels' use of armed force, although that would remain a crime under domestic law.
By whatever name, atrocities appear to be taking place in Libya. They must be stopped and those responsible must be held accountable. The Security Council's referral of the Libyan situation to the International Criminal Court and the prosecutor's commencement of an investigation are essential steps on the road to accountability. But as long as we're giving those acts a name, let's use the correct ones."