...and counting...

(Occasional sobering thoughts.) The United States, France, and other countries intervened militarily against Libya's government yesterday -- the 8th anniversary of the U.S.-led invasion of Iraq.
Participation by France (under President Nicolas Sarkozy) departed from the earlier script, when France (under President Jacques Chirac) vocally opposed intervention and so thwarted the United States' bid for U.N. Security Council authorization.
This time around, France pushed earlier and hard for a Security Council resolution. Some officials in the United States initially resisted. But as predicted nearly a month ago by our Opinio Juris colleague Chris Borgen, a tweet heard 'round the world (below center, by Anne-Marie Slaughter, who just finished a 2-year stint as the head of policy planning at the State Department) seemed to set the stage for support by Secretary of State Hillary Clinton and, eventually, President Barack Obama.


Five of the 15 Security Council states, including China, Russia, and Germany, abstained from Resolution 1973, which was billed as a no-fly resolution during early negotiations, yet included this paragraph authorizing greater intervention:

Protection of civilians
4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; ....

Hence yesterday's Tomahawk strikes on Libyan air defense systems. Hence, too, today's complaint from an advocate of the no-fly zone -- the leader of the Arab League said "the use of force was excessive following an overnight bombing campaign that Libya claims killed at least 48 people."
The Security Council-endorsed actions are taking place in the name of civilians. A noble cause, yet one without end. If Libya, why not other countries whose governments harm their own people? To name one, why not Côte d'Ivoire, site of tragic deaths amid months-long post-election violence?
As made explicit in the preamble to Resolution 1973, the Security Council resolved to act in the name of the fledgling doctrine of responsibility to protect. The Council's choice of Libya, to the exclusion of other global trouble spots, exposes once again the unsettling selection bias inherent in current conceptualizations of that doctrine.
Unsettling too is the notion of a 3d (or 4th, depending on how one counts AfPak) armed conflict in which the United States is engaged -- and in which civilian deaths are likely to occur even in the course of efforts to protect civilians.
While waiting to see what transpires on the Libyan front, it is due time to review casualties since our last post, 16 weeks ago, in the long-running conflicts in Afghanistan and Iraq.
► In Afghanistan, "[t]argeted killings of civilians in Afghanistan doubled" in 2010, according to an annual report recently issued by the United Nations. Specifically, there was "a 15 percent increase in the number of civilians killed to 2,777 -- continuing a steady rise over the past four years" in the nearly decade-old conflict.
The U.S. Department of Defense reports that in Afghanistan, coalition military casualties stand at 1,505 Americans, 360 Britons, and 507 other coalition servicemembers. That's an increase of 89, 15, and 23 casualties, respectively, in the last 16 weeks. The total coalition casualty count in the Afghanistan conflict is 2,372 service women and men.
► Respecting the Iraq War launched 8 years ago this weekend -- a milestone observed by scattered protests --Iraq Body Count reports that between 100, 051 and 109,318 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of between 1,030 and 1,224 persons since 16 weeks ago. According to the U.S. Defense Department, 4,440 American servicemembers have been killed in Iraq, representing 11 servicemember deaths in the last 16 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

Questions constitutionnelles

Imagine if ex-Presidents were automatic members of the U.S. Supreme Court.
If, that is:
► John Adams had been on the Court that decided Marbury v. Madison, or
► George W. Bush were sitting now, while the Court continues to resolve cases involving post-9/11 policies?
Even ad hoc recusal might seem insufficient to relieve the Court of an unwelcome appearance of potential partiality.
Yet that is the situation in France.

As of right, former Presidents -- today, Valéry Giscard D'Estaing and Jacques Chirac -- serve on the Conseil constitutionnel. Serving along with them are 2 women and 7 additional men, each of whom owes nomination, to a 9-year term, to France's President or to a president of a house of parliament.
Le Monde's just raised questions about that arrangement, suggesting that it may be "obsolete." The Paris-based newspaper also is questioning the absence of any requirement that Conseil members satisfy some standard of judicial competence.
A couple developments have prompted these new questions about the 52-year-old institution:
►1 ex officio member, ex-Président Chirac, remains dogged by a range of legal problems (and see here), some of which were present even during his executive tenure.
► The Conseil is a "constitutional court" now more than ever. As IntLawGrrl Naomi Norberg then posted, it just acquired a judicial review power approaching that which its U.S. counterpart claimed in Marbury: consideration of a citizen's after-the-fact claim of constitutional violation. Since the change took effect in March, the Conseil's constitutional docket has mushroomed. Among the 1st uses of its new power, as Naomi also posted, was a September decision invalidating reforms pushed by the current Président, Nicolas Sarkozy, and enacted, of course, by the parliament.
Time will tell if Le Monde's questions gain traction.

France giveth to the ICC, but ...

... taketh France away as well?
Better late than never comes news that this summer France now fully accepts the jurisdiction of the International Criminal Court, even as to allegations that war crimes were committed by its nationals or on its territory. It joined the ICC in 2000 during the Presidency of Jacques Chirac (below, at far left). At that time France -- alone among all states parties so far -- invoked Article 124 of the Rome Statute of the ICC in order to put a 7-year hold on war crimes jurisdiction. The switch of positions is largely cosmetic given that France's "hold-on-a-minute" declaration would have expired on its own in mid-2009. (Other "interpretive declarations" by France, detailed here, apparently remain intact.) Still, withdrawal of the declaration operates as an endorsement of the ICC, and that has to be a good thing.
Less clear: whether France's behavior in the interim several months will prove an equally good thing.
In mid-September IntLawGrrls posted on machinations at the U.N. Security Council in reaction to the request for a head-of-state warrant in connection with the war his government is waging in the western Sudan region of Darfur. Debate concerns whether to defer the case for a year by invocation of Article 16 (inapt, at least 1 Rome Statute negotiator argues). Though there's been much focus on resistance by 1 member of the Council's Permanent Five -- China -- others in the P-5 also may favor deferral.
A trial balloon floated into public view on September 19, when Agence France-Presse reported the indication by an unnamed aide to France's current President, Nicolas Sarkozy, that

France is not hostile to a suspension of the ICC proceedings targeting Sudanese President Omar al-Bashir, accused by the prosecutor of genocide in Darfur, on the condition that Khartoum make a 'gesture.'

Asked what "gesture" might suffice, the aide demurred, noting only that the ICC prosecutor already had targeted 2 other Sudanese -- neither of whom Khartoum has turned over to The Hague. (credit for above AP photo of Bashir with Chirac, at 2007 summit in Cannes)
Last week reports surfaced that Sarkozy himself confirmed the position while in New York for the opening of the U.N. General Assembly. According to Reuters,

Sarkozy announced that if Sudan changes its behavior and actively supports growing international calls for peace in Darfur, Paris would back suspending any indictments the International Criminal Court (ICC) issues against Sudanese President Omar Hassan al-Bashir.
Sarkozy made clear there would be strings attached. In a speech to the U.N. General Assembly, the French leader said Sudan would have to 'radically' alter its policy towards Darfur, where international experts say at least 200,000 people have died since 2003. It would have to remove a cabinet minister indicted for war crimes in Darfur from the Khartoum government and stop delaying the deployment of international peacekeepers.

Curiously, the official French government account of the speech says only that Sarkozy mentioned Darfur only once -- that he opened his U.N. address by declaring:

'On ne peut pas attendre pour faire la paix et mettre fin à la tragédie du Darfour.'

that is,

'We cannot wait to make peace and put an end to tragedy in Darfur.'

But other accounts (here and here) affirm that Sarkozy called for "radically" changing Sudanese policies at a press conference during the same GA session; indeed, with these words he made such change a Sudanese sine qua non:

'Things must be clear, there will be no recourse to Article 16 unless there is radical and immediate change in Sudan’s policies.'

Perhaps in keeping with that claim, France last week helped broker a 6-month extension of the mandate of the U.N. Human Rights Council's Special Rapporteur on Sudan -- an extension secured notwithstanding that Sudan's diplomat "violently attacked" the "extremely critical" report delivered by that rapporteur, Sima Samar (right), who's served in Cabinet posts in Afghanistan and heads the Afghanistan Independent Human Rights Commission.
Now we must wait, to see how France and others in the P-5 next move through the Sudan/Darfur/ICC mess.

Adieu, M. Chirac

Before events surrounding Nicholas Sarkozy's inauguration today come to an end, a brief interlude to bid adieu to his predecessor Jacques Chirac, President of France these last 12 years. Yes, of course, he was far from perfect. There was, for instance, his decision to put the question of ratifying the Draft Treaty establishing a Constitution for Europe to a referendum. The 2005 vote, unnecessary under French law, not only exposed anti-immigrant ugliness within the populace, but also ended in a resounding defeat that stalled the ratification process regionwide. And then there's that lingering cloud of corruption, which well may gain steam now that exit from office has stripped Chirac of the constitutional cloak of immunity.
Still, there's reason for some appreciation:
1st. For 1 who found herself in Paris on 11 septembre 2001, Chirac's televised comments were most welcome: "[I]n these horrifying circumstances, all the French people -- and I want to say this here -- stand at the side of the American people."
2d. At a time when post-9/11 panic left Americans fearful of uttering a peep about their President, the TV spoof Les Guignols blithely caricatured France's chief executive as SM -- Supermenteur -- Superliar -- in mask and leotards. The country did not collapse.
3d. Soon after 82% of voters supported Chirac in a 2002 runoff against the far right's Jean-Marie Le Pen, the newly re-elected President attended the national soccer championship between Lorient and Bastia. Corsican nationalist/anti-France fans of the latter team booed the "Marseillaise" (the anthem that also introduced his farewell broadcast yesterday). Chirac stormed out of his box and refused to return without apology. The insult, he told a sportscaster in a weighted cadence, was "in-sup-por-tab-le," and offended "tou-te la France." After many long and televised minutes, officials apologized, Chirac went back to his box, and the "Marseillaise" was replayed in a silent and respectful stadium. Only then did the match proceed. Thus did Chirac achieve something few international law teachers have managed: making real the legal fiction that the head of state is the human embodiment of the country.
4th. Need 1 mention Chirac's multipolarist opposition to unipolar pressure for the 2003 invasion of Iraq?