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Leading by example: The UN Human Rights Council's report on casualties in Libya

First published 20th Mar 2012

Although out of the spotlight, the intervention in Libya remains a point of contention internationally. The publication this month of the UN Human Rights Council's International Commission of Inquiry's second report provides both new information on civilian casualties and a formal call upon NATO to do its share to record them.

At the beginning of Operation Unified Protector (OUP) in April 2011, the Every Casualty Programme (ECP) wrote a joint letter supported by civil society organisations specialising in armed violence, human rights and humanitarian issues. This letter called on all parties to the armed conflict in Libya to exercise every possible restraint in their conduct of military operations, and 

commit to recording and reporting on the civilian casualties of conflict from military operations in that country.

In his reply to us, UK Parliamentary Under Secretary of State for the Foreign and Commonwealth Office Alistair Burt referenced the Commission’s first report, stating:

We welcomed the UN Human Rights Council’s Commission of Inquiry into Libya which concluded that it had not seen evidence to suggest that civilians or civilian objects had been intentionally targeted by NATO forces, nor that NATO had engaged in indiscriminate attacks.… Any civilian loss of life is regrettable. However, as the Commission said, it has not been possible to confirm allegations or reports that civilians have died as a result of NATO airstrikes. Any reports that civilians have died as a result of NATO airstrikes will be carefully investigated.

The Commission's second report, published in March 2012, allows us to consider Mr Burt's statement in a new light.

The report’s findings demonstrate a range of violations of International Humanitarian Law and Human Rights Law by both Qaddafi and anti-Qaddafi forces. With regard to NATO, the Commission found that five out of the 20 attacks investigated caused 60 civilian casualties and 55 injuries. With this said, the Commission held that while NATO ‘did not deliberately target civilians in Libya,’ it remains

unable to conclude, barring additional explanation, whether these strikes [where civilians were killed and targets found by the Commission to have no military association] are consistent with NATO’s objective to avoid civilians casualties entirely, or whether NATO took all necessary precautions to that effect.

Fundamental to our work at the Every Casualty Programme is that deaths caused by armed violence are thoroughly recorded, and that there is dedicated effort put into this by conflict parties. In conjunction with Amnesty International’s significant discovery of civilian casualties caused by NATO forces, the Commission’s work comes into perspective as having made a valuable contribution towards the recording of casualties in that conflict. Notably, both AI's press release and the Commission's report provide evidence that serious recording efforts are necessary, and that NATO’s ‘battle damage assessment’ methods involving aerial reconnaissance are an insufficient means of monitoring or recording civilian casualties.

In uncovering specific instances of civilian harm and setting out its recommendations, the Commission makes at least two further important contributions in relation to the recording of casualties in the context of OUP.

The Commission’s contribution to the practice of casualty recording:

First, the Commission demonstrated the feasibility of thoroughly recording casualties at the incident-level, thereby fulfilling its mandate while stipulating the extent and standards underpinning its investigations. As the Report explains:

the Commission took a cautious approach in assessing the information gathered. It relied where possible on its own observations and first-hand accounts. The Commission bore in mind that it was not seeking evidence of a standard to support a criminal conviction, but an assessment based on a ‘balance of probabilities’ to determine whether a violation had occurred.

The methods employed by the Commission are also worth noting, as these contributed towards the identification of incidents, of weapons used in them, and of victims and responsible conflict parties. Their methods included:

1. Interviews of medical personnel on duty during the protests
2. Interviews of the general population
3. Witness testimony (survivors, observers, participants, etc.)
4. Firsthand observation of events
5. Medical Records
6. Photographs
7. Videotapes/cellphone-derived video footage
8. Media reports
9. Physical evidence (such as mass graves, ammunition casings, detention centres, etc.)
10. Forensic analysis
11. Corroboration of witness testimony with physical evidence, photographs, video footage, etc.
12. Thorough understandings of the conflict parties leading to the attribution of group- and individual-responsibility

This elaboration of practice undermines potential claims that casualty recording is logistically impossible. Whilst the Commission cannot serve as a comprehensive resource for data on the conflict, it can provide evidence, and perhaps guidance, for further work.

The Commission’s contribution to the principle of casualty recording:

The Commission's second contribution is towards the fulfillment of NATO’s responsibility to protect civilians and to account for its actions. This responsibility is concerned with the mandate given to NATO under the terms of UNSC Resolution 1973, in addition to the guidelines prescribed under the Responsibility to Protect and the framework of the Protection of Civilians in Armed Conflict.

In their recommendations,

1. The Commission calls upon NATO to:
a. Conduct investigations in Libya to determine the level of civilian casualties, and review how their procedures operated during Operation Unified Protector.
b. Apply the “Non-Binding Guidelines for Payments in Combat-Related Cases of Civilian Casualties or Damage to Civilian Property (NATO 20 September 2010)” to civilian losses in Libya resulting from Operation Unified Protector, preferably in cooperation with NTC efforts to make amends for civilian harm across the country.

Given the above recommendations, the Commission and Amnesty International have made some overlapping demands on NATO. In particular, that NATO investigate the human costs, with emphasis on civilian deaths, of Operation Unified Protector; to utilise these findings in a responsible way by making them inform future operations; to determine whether any civilian deaths resulted from breaches of international law; and to maintain accountability for civilian deaths through reparations, contributing towards conciliation with families of the dead.

These demands are already reflective of the Responsibility to Protect and in particular the framework on the Protection of Civilians, to which the international community appealed in order to intervene. Specifically, within the ‘five core challenges’ to the Protection of Civilians of Armed Conflict, the UN Secretary General holds that states and other parties to conflict should enhance their compliance with international law; that protection of civilians by peacekeeping forces should be better monitored and evaluated; and that accountability of conflict parties be enhanced through reparations and other judicial processes.

Concluding Remarks:

The thorough recording of casualties is a necessary means of successfully completing the recommendations above (whether sourced from the Commission and NGOs, international norms and frameworks, or indeed the joint letter we circulated nearly one year ago).

NATO has indicated that it is willing to progress by reviewing its procedures. However, the logical flow framing NATO's interest in 'reviewing the conduct of OUP in order to identify any ways in which its planning and execution can be further improved as a result of experience gains during the campaign' necessarily begins with understanding the direct consequences of that campaign. This includes – even if it is not limited to – the recording of casualties.

Is NATO capable of this? Fundamentally any review requires comprehensive information on the relationship between tactics and outcomes. To fully establish these linkages, NATO will need to thoroughly engage casualty recording and take an active role either directly or indirectly in the evaluation of OUP. Consistency with its own stated intentions would entail reorienting its workflow from ‘giving consideration to every allegation of harm of civilians of which it has been made aware,’ to exhaustively seeking out cases for review. Rather than explaining to the Commission that NATO ‘does not itself have the ability to gather evidence onsite,’ and that ‘it appreciates that the Libyan authorities, officials of NATO Allies and other states, international organisations and bodies including the Commission, journalists and others’, NATO would be better advised to more directly engage with the organizations willing to provide expertise, put feet on the ground, or otherwise assist and contribute to the recording of casualties.

Only then can essentially unchallengeable claims – such as of ‘countless’ civilians having been saved in Libya – be evaluated against the reality of civilian lives that have, in fact, been lost.