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Why the Attack on Libya is Illegal
On 19 March 2011, Western nations started the third international armed conflict against a Muslim country in the last decade. They went to great pains to claim that the use of force against Libya was legal, but an application of international law to the facts indicates that in fact the use of force is illegal.
This brief commentary evaluates the use of force against Libya, starting with UN Security Council Resolution 1973 that allegedly authorises it and the eventual attack on the people of Libya.
THE FACTS: Unlike the non-violent demonstrations in Egypt, Tunisia, Bahrain, Yemen, Saudi Arabia and elsewhere in the Arab world, the demonstrations that began in Libya on 17 February had deteriorated into a civil war within days. Both sides had tanks, fighter jets, anti- aircraft weapons, and heavy artillery. The government’s forces consisted of mainly trained military, while the armed opposition consisted of both defecting soldiers and numerous civilians who had taken up arms.
Indications of the level of force each side has at its disposal were shown by claims on Saturday, 19 March, that both a Libyan government fighter and a fighter jet flown by the opposition had been shot down near Benghazi. As the civil war increased in intensity, the international community contemplated action in support of the armed opposition. On 17 March, the UN Security Council adopted Resolution 1973. And within 42 hours an attack on the troops of the Libyan government, aimed, according to the British Defence Minster William Hague, at killing the Libyan leader, had begun.
At around 12:00 noon local time in Washington, DC, on Saturday, 19 March, French fighters launched attacks against targets described as tanks and air defence systems. A few hours later, US battleships began firing cruise missiles at Libyan targets.
Although Arab and Muslim countries had joined the coalition against their Arab and Muslim neighbour, none of them actually participated in the airstrikes by sending aircraft. Already just after airstrikes began, Russia, China and the secretary-general of the Arab League, Egyptian Amr Moussa, condemned the loss of civilians lives that were caused by the bombing sorties.
Despite denials of the intention to target the Libyan leader, sites such as the living quarters and compounds used by Colonel Muammar Gaddafi were attacked. After the first day of bombings, more than four-dozen civilians, including women and children, were reportedly killed.
The attacks came after the UN Security Council adopted Resolution 1973. In response to this resolution the Libyan government had officially called a ceasefire in the civil war that it was waging against armed rebels whose base is Benghazi. Libya also announced that its airspace was closed. Western leaders responded to these actions by the Libyan government by claiming that they could not be believed and arguing that the fighting was continuing. Indeed, Libyan sources confirmed that the civil war was ongoing and that both sides continued to attack each other.
UNSC RESOLUTION 1973: Resolution 1973 was adopted under Chapter VII of the UN Charter with 10 votes for, none against and five abstentions. Voting for it were the UN Security Council’s permanent members, United States, Britain, France, and non-permanent members Bosnia and Herzegovina, Colombia, Gabon, Lebanon, Nigeria, Portugal, and South Africa. Abstaining were permanent members Russia, China and non-permanent members Germany, Brazil, and India.
The resolution was adopted on Thursday, 17 March, just after 18:30 local time in New York. US Ambassador Susan Rice described it as strengthening the sanctions and travel bans imposed earlier in UNSC Resolution 1970. It was promoted by the French and United Kingdom governments, but with a strong presence of the United States in the background pulling the strings.
At the UNSC meeting was the new French Foreign Minister Alain Juppé. Although as former Prime Minister he was not new to the UN, he arrived just weeks after his predecessor had been replaced for having accepted favours from a Libyan businessmen and just days after his government became the first Western government to recognise the forces fighting against the government in Libya’s raging civil war as the legitimate representatives of the Libyan people.
The Libyan government did not have a representative present at the meeting after its nominated ambassador, former President of the General Assembly Ali Abdel-Salam Treki was denied admission to the United States. Nevertheless, although officially relieved of his duties more than a week ago for defecting to the opposition, former deputy permanent representative Ibrahim Dabbashi was on hand at the Security Council media stakeout Wednesday to make a statement and take questions.
Resolution 1973 contains 29 operative paragraphs divided into eight sections. The first section calls for an "immediate cease-fire" in its first paragraph and for respect for international law including "the rapid and unimpeded passage of humanitarian assistance."
A curious second operational paragraph "stresses the need to intensify efforts to find a solution to the crisis" and goes on to qualify this as responding "to the legitimate demands of the Libyan people" and leading to "the political reforms necessary to find a peaceful and sustainable solution." Such vague language leaves open both the question of which Libyan legitimate demands must be met and what political reforms are necessary. Legally these requirements also appear to be a direct interference in Libya’s internal affairs in violation of Article 2(7) of the UN Charter, which all UN Security Council resolutions are bound to respect according to Article 25 of the Charter. This apparently irreconcilable discrepancy will fuel speculation that the resolution is another example of politics refusing to respect international law.
Paragraphs 4 and 5 concern the protection of civilians with the latter paragraph focusing on the regional responsibility of the Arab League.
The longest operative part of the resolution is then devoted to the creation of a no-fly zone in paragraphs 6 through 12. Article 6 creates the no-fly zone "on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians." Paragraph 7 then enumerates several humanitarian exceptions.
It is perhaps paragraph 8 that will focus the mind of most international lawyers where it is written that states may "take all necessary measures to enforce compliance with the ban on flights." The use of the term "all necessary measures" opens the door to the use of force. At the same time, the use of force is limited to enforcing the no-fly zone and does not extend to attempts to kill the Libyan leader or to supporting one side in the armed conflict, although preventing the Libyan government from using its air force, of course, favours the armed opposition.
Paragraph 8 is unusual in that is appears to authorise the use of force under Chapter VII without applying any of the safeguards for the use force that are stated in Article 41. There is no determination made that measures not involving the use of force had failed. In fact, Resolution 1973 was adopted after the UN Security Council, the UN Human Rights Council and the African Union had decided to send missions to contribute to a peaceful solution, but before any of these missions could visit Libya. Moreover, Resolution 1973 was adopted after an offer by the Libyan leader to step down and leave the country with his family had been rejected by the armed opposition without room for negotiation.
Paragraphs 13 through 16 call for an arms embargo and " [d]eplores the continuing flows of mercenaries" into the Libya. In doing so, paragraph 13 decides that paragraph 11 of UNSC Resolution 1970 (2011) shall be replaced with a new paragraph that "authorises Member States to use all measures commensurate to the specific circumstances to carry out such inspections." Again this language indicates that force may be used against seafaring vessels suspected of carrying arms to Libya in violation of the embargo.
In paragraphs 17 and 18, states are required to deny take off, landing or overfly rights to "any aircraft registered in the Libyan Arab Jamahiriya or owned or operated by Libyan nationals or companies." Although it is clearly stated that these provisions shall not affect humanitarian flights, it will undoubtedly complicate such flights.
Paragraphs 19 to 21 extend the asset freeze imposed by paragraphs 17, 19, 20 and 21 of UNSC Resolution 1970 (2011) to "all funds, other financial assets and economic resources" that are "owned or controlled, directly or indirectly, by the Libyan authorities… or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them." The related paragraphs 22 and 23 extend the travel restrictions and the asset freeze in resolution 1970 (2011) to all the individuals in two annexes. In doing, these paragraphs essentially prevent members of the Muammar Gaddafi family from leaving Libya and effectively force them to fight the armed opposition.
Paragraph 24 creates a new body, a "panel of experts", to assist the committee created in UNSC Resolution 1970, to " [g]ather, examine and analyse information from States, relevant United Nations bodies, regional organisations and other interested parties regarding the implementation of the measures" in UNSC Resolution 1970, to "[m]ake recommendations … to improve implementation of the relevant measures," and to " [p]rovide to the Council an interim report on its work no later than 90 days after the Panel’s appointment, and a final report to the Council no later than 30 days prior to the termination of its mandate with its findings and recommendations."
Paragraph 27 says all states "shall take the necessary measures to ensure that no claim shall lie… in connection with any contract or other transaction where its performance was affected by reason of the measures taken by the Security Council in Resolution 1970 (2011), this resolution and related resolutions."
Finally, in penultimate paragraph 29, the Council "[d]ecides to remain actively seized of the matter."
PUBLIC PERCEPTIONS: By the time the resolution was in the public domain, British tabloids and broadsheets were already rallying the world to war. The French were convening a meeting being described as the planning meeting to use force. And while the US president was remaining cautiously ambiguous, other US officials were openly calling for military intervention in what had by now become a civil war in Libya.
In the emotional fury, international law seems to have been forgotten. One BBC commentator went so far as to suggest that political support for a no-fly zone by the Arab League was a legal justification for the use of force. Similar uses of force in Afghanistan and Iraq, which are widely considered as violating international law, seem not to have had much of an impression on British journalists.
Journalists elsewhere have also seemed oblivious to international law in their consideration of Libya, often calling for the invasion of this sovereign country by force, despite the fact that not only Article 2(4) of the UN Charter prohibits such a use of force, but so too does the language of UNSC Resolution 1973 itself.
Even opponents of the use of force seem unaware of the applicable international law. British MP Jeremy Corbyn in the House of Commons, for example, asked if we use force against Libya to protect one side in a civil war, why don’t we use it in Bahrain were dozens of unarmed protesters have been killed by national and foreign forces, or in Yemen where about 50 peaceful protesters were slaughtered by army sharpshooters. This query at least appears to understand the fact that international law, to have real value in international relations, needs to be applied in similar situations in a similar manner. Failure to apply the law consistently seriously undermines the law and its restraints on international action.
INTERNATIONAL LAW: While decisions regarding the use of force against Libya seem to have been based more on emotions than on an understanding of the relevant law, this law is not irrelevant. International law will continue to reflect the general rules that states use in their relations with each other long after the end of the armed conflict in Libya. It is also, one might suggest, crucial to peace and security in a world made up of people of diverse values and interests.
Perhaps the most fundamental principle of international law is that no state shall use force against another state. This principle is expressly stated in Article 2, paragraph 4, of the UN Charter. No state can violate this principle of international law.
While the UN Security Council can order the use of force in exceptional circumstances, according to Article 24(2) of the UN Charter, the Council "shall act in accordance with the Principles and Purposes of the United Nations." This means, at least, that when peaceful means of dispute resolution are still possible the options for authorising the use of force are extremely limited. In the present case, the Security Council appears to have rushed to use force.
Narrow exceptions to the prohibition of the use of force are found in Article 51 and Chapter VII of the UN Charter. The latter provisions, especially Article 42, allow the Security Council to take action that "may be necessary to maintain or restore international peace and security." Both resolutions 1970 and 1973 state that they are being adopted under Chapter VII. Neither, however, meets the requirements of Article 42 that a determination has been made that "measures not involving the use of force" have failed.
In a civil war it is hard to see how such a determination can be made. It would appear that at the very least it would have to be based on on- the-ground fact-finding. Fact-finding missions by the UN Human Rights Council and the Security Council have not yet gone to Libya. While there is little doubt Western governments, such as the United States, have significant abilities to determine what is happening in Libya with distant surveillance methods, this does not provide sufficient evidence of whether the government of Libya is complying with the Security Council’s resolutions. Only on-the-ground observers can determine this, as we have seen from the misinformation spread about Iraq’s actions based on third party and distant surveillance sources.
Moreover, the evidence of Libya’s compliance is mixed. Libya almost immediately announced it would respect the terms of UNSC Resolution 1973 after it was adopted. Nevertheless, in an unprecedented show of diplomatic intolerance, and without confirmation of the facts on the ground, Western leaders called the Libyan leader a liar.
Libya has also offered to accept international monitors, even extending invitations to them to visit the country. And in an extraordinary concession, the Libyan leader sent a message to the armed opposition when they had the upper hand and were approaching Tripoli, offering to step down and leave the country. It was only after this offer was rejected and opposition leaders said it was non-negotiable that the Libyan leader be captured and killed that the government’s troops launched their offensive.
If international law allows states to use force in very limited circumstances, there are even fewer circumstances in which non-state actors are allowed to use force. One of those circumstances is when the right to self-determination is being exercised against a foreign and oppressive occupying power. This might entitle Iraqis or Afghanis to use force against occupying armies, but it would not entitle the Libyan people to use force against their own government.
Even the extrajudicial right of revolution, that many international lawyers admit exists when the limits of the law have been reached, has not been explicitly relied on by the Libyan rebels. While participation in the governance of Libya might have been a widespread problem, the country had the highest per capita income in Africa and among the best Millennium Development Goals indicators. Moreover, Libya has shown itself to respect international law in the past, implementing judgments of the International Court of Justice in the conflict with Chad and even turning over suspects for which there was questionable evidence for trial abroad in the Lockerbie affair.
Finally, the question of self-defence is relevant to the use of force against Libya. Rather than justifying the Western attack against Libya, however, it would appear to justify action taken by Libya against Western interests. In other words, as Libya has been the object of an armed attack that is likely illegal under international law, it has the right to defend itself. This right includes carrying out attacks against military facilities or personnel from any country involved in the attack. In other words, the attack against Libya by France and the United States makes the military facilities and personnel of these countries legitimate targets for attacks carried out by Libya in self-defence.
Regardless of the legality of the use of force by any party to the armed conflict international humanitarian law or the laws of war will continue to apply. According to this law, all states involved in an armed conflict must take care not to attack civilians. The Libyan authorities alleged they were respecting this restriction in the civil war, although the rebels refuted this claim. International humanitarian law requires that no military force may be directed against civilians or civilian facilities in Libya.
Similarly international human rights law continues to apply, making attacks on civilians subject to the restrictions on the use of force emanating from existing international human rights obligations. If the use of force against Libya is illegal as suggested above, then the standard for determining whether disproportionate force is being used is that applicable during peacetime. This is the case because no state involved in the use of force in Libya has announced its derogation from its international human rights obligations and because to allow states to derogate merely by starting an armed conflict in violation of international law would be contrary to the object and purpose of any of the existing human rights treaties.
The use of force in a manner that is contrary to existing international law is perhaps the greatest harm to humanity in the long-term. In the Pact of Paris in 1928 and again in the UN Charter in 1945, states agreed not to use force against each other to accomplish their foreign policy ends. The Western world has appeared to repeatedly challenge this agreement in the last 10 years, especially by its willingness to take military action against predominately Muslim states. In doing so they have sent an undeniable signal to the international community through their actions, and despite some of their words, that international law does not matter to them. If this message is not answered by the proponents of international law, then the advances we have made to ensure that the international community respects the rule of law may be undone for future generations.
CURTIS DOEBBLER is a prominent US international human rights lawyer.
This article was originally published by Al-Ahram Weekly.