Essay by Mauricio Figueroa-Torres
There is no doubt that nowadays we are facing an era surrounded by many different types of crises; cultural, economical, social and legal problems are going through of everyday life. This is result of the multifaceted XXth century, a period of greattechnology development (the invention of internet, arrival of men to moon, et sit cetera) but at the same time it was a period of ill- fated totalitarian regimes (Nazism and National Catholicism as two examples); all of these events have created a particular state in the humankind, a state full skepticism and lack of interest that characterize what many authors refer as “Postmodernity”.
This is thescenario where the conflict in Libya takes place, a context where a head of state does not respect international law rules, and the state itself is involved in these actions, raising this domestic issue to the international law field. So, in this essay, this law student will make an attempt to describe the legal situation in Libya regarding the individual responsibility of Colonel Gadaffi and theinternational responsibility of Libya itself, supporting the idea that the responsibility of the Libya does not exclude the individual responsibility of its head of state and vice versa. Of course, I am not an expert in the international law subject, but I will try to make an analysis from my poor point of view.
As we have been told by the media, Libya does not allow its people to live within theframe of democracy, and moreover, it uses its force to repress them, its head of state commanding and directing these operations; surely, this is a breaching of an international obligation. Nevertheless I think some attacks to Libya have gone so far (what is the need to launch a bomb over Gadaffi’s residence and kill one son of him and three of his grandsons? - The main concern from my point ofview is to protect society, not killing the head of state’s family, either way, this is not the main topic of this writing). However, I think wherever there’s society, there needs to be law to regulate it, and this case is not the exception, we need to respond for our actions in every legal system: that responding skill, this element, always is going to be called responsibility.
Now, which actionsis Libya bound to respond for? Unlawful detention, physical and mental abuse of detainees, and failure to ensure medical assistance at the earliest opportunity to anyone who is injured, and of course genocide; but why should Libya respond for these? Why these actions do not just remain wrapped up inside the municipal law? This is because the actions and measures the state is taking are governedby international standards, and subject to international legal obligations that are binding on Libya, that of course, it is not fulfilling (Covenant on Civil and Political Rights, which prohibits arbitrary killings, including those resulting from unlawful or excessive use of force, and obviously its conduct goes against customary international law rules already settled). This is not the case of amerely simple wrongdoing; it does not only concerns to certain states (like the breach of a bilateral agreement), it is not a personal or private concern, in Professor Cassese’s words, this is the case of an interest community, because they are rules erga omnes. These are values considered important by the whole international community, therefore, bind all states, the crimes committed by the stateare considered as an threat to the peace, it is a serious violation of a community obligation. Observance of fundamental human rights of the citizens of a state is no more a matter of domestic concern but has become a subject of international responsibility. Sovereignty does not mean that a state can commit international crimes such as crimes against humanity against its citizens within its...