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The Use of Force Against Libya: Another Illegal Use of Force
JURIST Guest Columnist Curtis Doebbler, professor of law at Webster University and Geneva School of Diplomacy and International Relations, both in Geneva, Switzerland, says the UN Security Council and the military coalition in Libya acted in contravention of international law in its use of force against Libya....
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 authorizes it.
At around 12 noon local time in Washington, DC, on Saturday, 19 March 2011 French fighters launched attacks against targets described as tanks and air defense 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 neighbor, none of them actually participated in the airstrikes by sending aircraft.
The attacks came after the United Nations 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 in 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. On Saturday, 19 March, the Libyan rebels announced that a Libyan government fighter had been shot down over Tripoli.
Resolution 1973 was adopted under Chapter VII of the UN Charter with 10 votes for, none against and 5 abstentions. Voting for it were the 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 2011 just after 18:30 local time in New York. American Ambassador Susan Rice described as strengthening the sanctions and travel bans in earlier resolution 1970.
It was promoted by the French and United Kingdom governments, but with the strong presence of the United States in the background pulling the strings.
At the meeting was the new French Foreign Minister Alain Juppe. 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 recognize the forces fighting against the government in Libya's raging civil war as the legitimate representatives of the country.
The Libyan government did not have a representative present at the meeting after its nominated Ambassador, former President of the General Assembly Ali Abdelsalem 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 O. A. Dabbashi was on hand at the Security Council Media Stakeout on 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 and board language leaves open both the question of which Libyans legitimate demands must be met and what political reforms are necessary. Legally these requirements also appear to be a direct interference with 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 League of Arab States.
The largest 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 states 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.
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 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."
Paragraphs 19 to 21 extend the asset freeze imposed by paragraph 17, 19, 20 and 21 of 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."
Paragraphs 22 and 23 extend the travel restrictions and the asset freeze in resolution 1970 (2011).
Paragraph 24 creates a new body, a Panel of experts, to assist the Committee created in 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 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."
By the time the resolution was in the public domain the press 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 American President was remaining cautiously ambiguous, other American 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. Obviously, the use of force in Afghanistan and Iraq, which are widely considered as violating international law, seem not to have had much an impression on the British journalists.
Journalists elsewhere have also seemed oblivious to the international law in their consideration of Libya often calling for the invasion of this sovereign country by force despite not only the fact that article 2(4) of the Charter of the United Nations prohibits such a use of force, but so too does the language of 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 fifty 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 similar situations in a similar manner. Failure to apply the law consistently seriously undermines the law and its restraints on international action.
While decisions regarding the use of force against Libya seem to have been based more on emotions than on an understanding of the relevant facts, international 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. They are 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 Charter of the United Nations. No State can violate this principle of international and neither can the UN Security Council according to article 24(2) of the UN Charter that requires that the Council "shall act in accordance with the Principles and Purposes of the United Nations."
Narrow exceptions to the prohibition of the use of force are found in article 51 and Chapter VII of the 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 Resolutions 1973 after it was adopted. Nevertheless, in an unprecedented show of a lack of diplomatic intolerance and without confirmations 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 their 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. If it had there may have been problems. 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-defense 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-defense.
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 the western forces may not be directed against civilians or civilian facilities in Libya and that Libya's right of self-defense must be exercised in such a way that it does not attack civilians or civilian facilities.
Perhaps the greatest harm to humanity will be the long-term effects on international affairs from the use of force in a manner that is outside of the allowed exceptions of international law. 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 ten 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.
 An American international lawyer. Dr. Curtis F.J. Doebbler is an international lawyer with an office in Washington D.C,, a professor at Webster University and the Geneva School of Diplomacy and International Relations, both located in Geneva, Switzerland, and the representative of Nord-Sud XXI at the UN in New York and Geneva. Suggested citation: Curtis Doebbler, The Use of Force Against Libya: Another Illegal Use of Force, JURIST - Forum, Mar. 20, 2011, http://jurist.org/forum/2011/03/the-use-of-force-against-libya-another-illegal-use-of-force.php.