JANIK E. J.

RODRIGO

2010/BII/MAIR/10

503

PUBLIC INTERNATIONAL LAW

SECOND TERM PAPER

... (It) is very doubtful if the present form of intervention has any basis in the modern law. The instances in which States have purported to exercise it, and the terms in which it is delimited, show that it provides infinite opportunities for abuse. (Ian Brownlie)

Citing authorities discuss the above statement in the light of the UN Security Council Resolution No: 1973 adopted on the 17th of March 2011 authorizing military action against Libya. Your analysis should include the relevant legal principles relating to use of force in International law.

Janik E. J. Rodrigo
2010/BII/MAIR/10

JANIK E. J. RODRIGO

2010/BII/MAIR/10

An uprising against Colonel Muammar Gaddafi's rule on 16th February 2011 developed into an armed conflict pitting rebels against government forces and drawing in a NATO-led coalition with a UN mandate to protect civilians. At least several thousand people have been killed and many more have been injured as the two sides battle for control over territory. The country's vital coastal cities are now roughly split between pro-Gaddafi forces controlling the capital, Tripoli, and the west, and rebels controlling Benghazi in the east. ProGaddafi forces, however, reversed the course of the conflict and were at the gates of Benghazi. A slaughter in Benghazi was likely, and as Obamas Middle East adviser Dennis Ross pointed out, everyone would blame us for it. That would be unacceptable, as would a Qaddafi military victory enhancing his power and independence. The US then joined in UN Security Council resolution 1973 calling for a no-fly zone, to be implemented by France, the UK, and the US, with the US supposed to move to a supporting role.1

The council acted five days after the Arab League urged the U.N.'s most powerful body to try to halt Gaddafi's advancing military and reverse the realities on the ground, where rebels and their civilian supporters are in danger of being crushed by pro-government forces using rockets, artillery, tanks and warplanes. The U.N. Security Council paved the way for international air strikes against Muammar Gaddafi's forces, voting to authorize military action to protect civilians and impose a no-fly zone over Libya.

Chomsky, N. On Libya and the Unfolding Crisis. May 20, 2011 < http://hamsayeh.net/society/511-noam-chomsky-on-libya-and-the-unfolding-crises.html >

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2010/BII/MAIR/10 The vote was 10-0 with five countries abstaining including Russia and China, which have veto power in the council, along with India, Germany and Brazil. Russia and China expressed concern about the United Nations and other outside powers using force against Gaddafi.2 Although the concurring votes of the permanent members are required under Article 27(3) of the UN Charter for all decisions on other than procedural matters, the resolution, adopted without the consent of China and Russia, is considered legally valid since it has become customary among United Nations member states to treat abstention as consent.

In order to meet the requirement of Article 39 of the Charter for the imposition of coercive measures, including the use of force, the Council has determined that the situation of domestic conflict in Libya constitutes a threat to international peace and security. In contravention to the provisions of Articles 42ff of the Charter related to the collective enforcement of resolutions by the Council itself, operative paragraphs 4 and 8 of the resolution authorize all Member States, individually or through regional organizations or arrangements, to undertake all necessary measures for the protection of civilians and for the enforcement of a so-called no fly zone in the airspace of Libya. Acting under Chapter VII of the Charter of the United Nations ...Demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, human rights and refugee law and take all measures to protect civilians and meet their basic needs, and to ensure the rapid and unimpeded passage of humanitarian assistance.3

Lederer, E. M., Libya No-Fly Zone approved by U.N. Security Council, May 20 2011 <http://www.huffingtonpost.com/2011/03/17/libya-no-fly-zone-un-united-nations_n_837378.html>
3

UN security council resolution 1973 (2011) on Libya full text , April 29 2011, <http://www.guardian.co.uk/world/2011/mar/17/un-security-council-resolution?intcmp=239#history-link-box>

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2010/BII/MAIR/10 The resolution also authorises U.N. member states to take all necessary measures...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.4

UN Security Council has approved this significant resolution -- the second in less than three weeks -- to address the outrageous violence being perpetrated by Colonel Gaddafi on the Libyan people and Resolution 1973 provides legal authority for the international community to use force to protect civilians.

The resolution excludes a foreign occupation force of any form on any part of Libyan territory, requesting them to immediately inform the Secretary-General of such measures. Recognizing the important role of the League of Arab States in the maintenance of international peace and security in the region, and bearing in mind the United Nations Charters Chapter VIII, the Council has also asked the Leagues member States to cooperate with other Member States in implementing the no-fly zone. 5

The adoption of Resolution 1973 on March 17 by the United Nations Security has invoked the particularly difficult legal territory under the Responsibility to Protect, raising some

unprecedented debates of what it might entail for the future.

Lederer, E. M., Libya No-Fly Zone approved by U.N. Security Council, April 20 2011 <http://www.huffingtonpost.com/2011/03/17/libya-no-fly-zone-un-united-nations_n_837378.html> Security Council Meeting- 6498th Meeting, April 15 2011 <http://www.un.org/News/Press/docs/2011/sc10200.doc.htm>

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2010/BII/MAIR/10 In international law, it is considered unlawful to intervene in the sovereign state without a valid reason. With respect to Libya, we need to take account of the fact that the Gaddafi government, however distasteful on humanitarian grounds, remains the lawful diplomatic representative of a sovereign state, and any international use of force even by the UN, much less a state or group of states, would constitute an unlawful intervention in the internal affairs of a sovereign state, prohibited by Article 2(7) of the UN Charter unless expressly authorized by the Security Council as essential for the sake of international peace and security. One could see that the International community wanted to justify and have proper legal backing to initiate any action, whereby not committing a mistake like in Iraq. Also, there is no assurance that an intervention, now already undertaken, would lessen the suffering of the Libyan people or bring to power a regime more respectful of human rights and dedicated to democratic participation.6

Upon close inspection, we find that claiming authority under the UN Charter's Article VII, in fact, violates Article 51. This article says that nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Therefore one may say that UN Resolution 1973 authorized war, not peace. Moreover, it denied a sitting government, despotic or otherwise, the right of self-defense. A Western-backed insurgency initiated attacks, permitting a head of state to respond.7
6

Falk. Richard, Libya- Will we ever learn? Kicking the Intervention Habit, April 30 2011 <http://www.voltairenet.org/article168826.html> Lendman, Stephen. Lies, Damn Lies, And Humanitarian Intervention. May 1 2011 <http://www.rense.com/general93/lies.htm>

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2010/BII/MAIR/10

Further, the UN Charter explains under what conditions intervention, violence and coercion are justified. None of these conditions seem to exist in Libya. In addition, Article 2(3) and Article 33(1) require peaceful settlement of international disputes, not guided-missile attacks. Article 2(4), in fact, prohibits force or its threatened use, including no-fly zones that are acts of war.

Further, Articles 2(3), 2(4), and 33 absolutely prohibit any unilateral or other external threat or use of force not specifically allowed under Article 51 or otherwise authorized by the Security Council - that may not violate its own Charter. In fact, Washington bullied enough members to do so, planning naked aggression in response.

Apparently to protect civilians, Resolution 1973's paragraph 4 authorized Member States "to take all necessary measures". As a result, a giant interventionist loophole was created they knew Washington would exploit.

Frances intervention in the affairs of Ivory Coast is another instance where a state may have violated rules of intervention. A similar thing has now happened in Libya where the UN mandated states to take all necessary measures to protect civilians. On this platform, the western states seemed to have gone beyond that mandate to attempt to remove Gaddafi (which may have been their own, but not the UNs goals). The complaints of Russia and China after Gaddafis compound was bombed gives an indication of the political costs to the USA and its Allies of the continued targeting of the Libyan President. Thereafter they withdrew from directly targeting Gaddafi and his family.

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2010/BII/MAIR/10

The above events have been preceded b y the questions surrounding the Iraq invasion of 2003, when the US and UK claimed to be acting on the provisions of an earlier UN mandate. Hence, the war seems to have raised concerns of commentators, states and NGOs on the ramification of going beyond a UN Mandate.

The gravity of this issue is compounded by the consideration that the system of international law permits states the discretion as to how to interpret international rules as their context may allow, so far as such interpretation complies with the objectives of the general rule or instrument they appear to be applying. The interpretation of a UN resolution which has been questioned by other states, particularly UN Security Council members suggest that interpretation seem to be stretching the values the council agreed to protect in the resolution. The attacks on Libya cities and in particular the targeting of Gaddafis compound, suggests the US, UK and France had a different objective than to protect civilians. Their officials openly spoke of regime change in Libya. This objective does not appear to be the included in the resolutions demand that states take all necessary measures to protect civilians. Wide and ambiguous the phrase may be, it will be stretching it to suggest it includes removing Gaddafi from power.

The issue here is to what extent are there legal consequences for going beyond a UN resolution or using the UN Mandate to violate other core principle of international law. There are other legal and political issues with the events unfolding in Libya and Cote dIvoire; such as arming and supporting a faction of an internal conflict which is not supported and in fact states are precluded from doing so in international law. The moral rightness of the intervention should not 7

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2010/BII/MAIR/10 deceive us into accepting the limits to such humanitarian ideals. One of such limit is expressed by the legal concerns.8

The legal interpretation the UN Security Council Resolution 1973 and subsequent military action of the Western powers accentuate the objective of the Resolution that is to stop Gaddafi forces from establishing the writ of the government in the state or from winning the civil war in Libya. Whereas, the Gaddafi government possesses the legitimate right, as a sovereign nation, to put down the armed rebellion, even if it did not have the right to kill the innocent protesters, within its border to establish the writ of the government for the sake internal peace. This is an undeniable right of the sovereign state.9

The characterization of the resolution by the Prime Minister of the Russian Federation as defective and flawed insofar as it allows everything and resembles medieval calls for crusades, was very much to the point. Shocking as this assessment may be for the selfappointed guardians of mankind and representatives of the international community, a procedure by which a countrys leadership is declared an international outlaw, and everyone (state or regional group) is invited to join in the battle in whichever way they please, indeed resembles the rationale of the crusades. However, a medieval declaration has no room in modern international law. International vigilantism and a humanitarian free-for-all are elements

Interventions in Libya and Cote DVoire. April 20 2011. <http://www.africaworldview.com/2011/04/interventions-in-libya-and-cote-dvoire.html> Dr. Jaspal, N. Liberal Interventionism A Violation of National Sovereignty?. April 29 2011. <http://www.weeklypulse.org/details.aspx?contentID=423&storylist=10>

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2010/BII/MAIR/10 of anarchy and belong in a pre-modern system of imperial powers, as it existed before the abrogation of the jus ad bellum.10

It is obvious that the delegation of virtually unlimited authority to interested parties and regional groups as has become customary since the Gulf War resolutions of 1990/1991 is not only incompatible with the United Nations Charter, but with the international rule of law as such. Although the provisions of Articles 43 of the Charter for the making available to the Security Council of armed forces and national air force contingents have remained out of use and the Military Staff Committee has never become operational, the Security Council can under no circumstances authorize a use of force the extent and form of which is solely at the discretion of those parties that volunteer to intervene on behalf of the UN. The procedures outlined in the operative paragraphs of resolution 1973 (2011), and their implementation by the interested parties, including NATO, contradict the doctrine of collective security which is the foundation of the provisions of Chapter VII of the United Nations Charter in several important respects.

In an act of utmost hypocrisy, the intervening countries hide their vested interests behind the stated humanitarian goal of resolution 1973 (2011). Under the cover of the Responsibility to Protect, which the Secretary-General of the United Nations suggested as rationale of the resolution, an effectively unilateral use of force has taken hold, amounting to military measures that, as acts of war on the side of one party in a domestic conflict, go far beyond the stated objectives of the resolution and are carried out with total impunity and without sufficient checks and balances.

10

Dr. Kochler, Hans. United Nations vs. Libyan Arab Jamahiriya: Humanitarian Intervention or Colonial War? . April 28 2011. <http://www.i-p-o.org/IPO-nr-UN-Libya-28Mar.htm>

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2010/BII/MAIR/10

To authorize states to use all necessary measures in the enforcement of a legally binding resolution is an invitation to an arbitrary and arrogant exercise of power, and makes the commitment of the United Nations Organization to the international rule of law void of any meaning. The fact that the Security Council, using the phrase all necessary means, adopted the same approach earlier, namely in resolution 678 (1990), dealing with the situation between Iraq and Kuwait, does not justify the present action in the domestic conflict situation in Libya. The UNSC Resolution 1973 and the subsequent developments have authorized the violation of the state sovereignty. It sets a pattern, which is perilous for the smaller states sovereign existence in current global politics.11 Therefore, in conclusion, one can see that it is very doubtful if the present form of intervention has any basis in modern law. The instances in which States have purported to exercise it, and the terms in which it is delimited , show that it provides infinite opportunities for abuse. Libya is turning out to be yet another clear example.

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