بسم الله الر حمن الر حيم
NATO Secretary General Anders Fogh Rasmussen has repeatedly said that the alliance was considering various options against Libya, including possible military action, but said any intervention in Libya would be strictly in line with UN Security Council decisions.
NATO has been enforcing a no-fly zone over Libya in accordance with UN Resolution 1973 since mid-March ,scores of civilians in Libya have been killed and injured during attacks by the military alliance although NATO claims that all the targets are “military in nature.”
1. Attack near Brega hit tanks and killed at least 13 rebel fighters
2. Air strike killed Muammar Gaddafi son , Saif al-Arab and three grandsons
3. Aair strike hits major Libyan oil field
4. Air strike killed 11 Muslim clerics
5. Air strike killed Libyan Rebels
6. Warplanes bombed Libyan naval vessels in three ports
An attack on Gaddafi's , spawning severe criticism that the military alliance is exceeding provisions of the UN resolution by attacking civilian targets.
Airstrikes on Libya have weakened the ability of Libyan ruler Muammar Gaddafi's government to attack revolutionaries.
NATO has adopted a more aggressive approach to air strikes in Libya, after two months of attacks on Muammar Gaddafi's government have failed to prompt the defiant leader to resign.
NATO , do not respect the UN Security Council
Russian Foreign Ministry slammed NATO for its air strikes on Libya, calling for the deployment of international peacekeeping forces to end the violence in the North African country.
“The actions of the coalition do not respect the UN Security Council Resolution No. 1973”, which authorized the enforcement of a no-fly zone to protect civilians.
Russia believed NATO's aerial attacks killed civilians and destroyed Libya's infrastructure.
The Russian official called for resolving the crisis in Libya through diplomatic and political channels “with the help of the peacekeeping potential of the UN and the African Union.”all decisions concerning the situation in Libya should be taken by the UN Security Council.
Russian President Dmitry Medvedev said , any military intervention in Libya may trigger a war. The president reiterated Russia's stance against any escalation in the violence.
In the midst of rapid developments at the diplomatic and military level concerning the Gaddafi regime, it is important to remember that Libya is no stranger to UN sanctions or bombing by NATO member state warplanes.
On 15 April 1986, in purported retaliation for alleged involvement of the Libyan regime in terrorist attacks, US planes dropped bombs on Libyan territory.
From 1993 to 2003, Libya was subjected to UN Security Council (UNSC) resolution-based economic sanctions as a result of alleged involvement in the destruction of Pan Am Flight 103 (the Lockerbie bombing).
The UN Sanctions, (specifically UNSC Res. 748 (31/3/1992) and UNSC Res. 883 (11/11/1993)), were lifted when Libya paid compensation to the families of victims, and also agreed to transfer two Libyan nationals to be tried (one of whom was subsequently convicted) at The Hague for involvement in the bombing.
Since early 2011, what appears to have begun as an expression of dissent and dissatisfaction with the Gaddafi regime has developed, from around the middle of February, into an internal armed conflict.
This has led (for the time being at least) to the de facto division of Libya into an eastern (oil-rich) sector which is controlled by opposition forces, while Gaddafi remains strong in Tripoli and the western part of Libya.
Events in Libya are raising important questions about the justification for the use of armed force by NATO members against Libyan state forces.
Nearly 3,000 sorties have been flown over Libya by NATO aircraft since March, and more than a third of the military assets of the Gaddafi regime are said to have been destroyed. In considering whether this was lawful, one needs to ask the following questions:
What is the legal basis for Chapter VII UN Security Council resolutions (UNSCR)?
What is the key content and legal effect of the measures adopted by the UN Security Council (principally, UNSCRs 1970 and 1973)?
What is the legal basis for the announcement on 19 April that a small number of UK and French ‘non-combat’ troops will be sent to Libya to assist the opposition groups?
Use of force and UN sanctions
More than 190 states are signatories to the UN Charter, and as such they have all agreed to adhere to its principles.
Moreover, UN Security Council resolutions promulgated pursuant to Chapter VII of the UN Charter are binding on all UN member states.
There are three core principles with regard to the use of force by or against a state:
The starting point is one of non-intervention in the domestic affairs, territorial integrity or political independence of a state (articles 2(4) and 2(7));
A state (and those states seeking to assist in this regard) may use force to respond to an imminent or actual armed attack by way of self-defence/collective self-defence (article 51);
The UN Security Council acting pursuant to Chapter VII of the UN Charter may, by majority vote (so long as none of the permanent members exercises a veto), authorise the use of measures falling short of the use of force (article 41), and if the Security Council considers article 41 measures are, or would be, inadequate, it may authorise such ‘measures’ (which include the use of force) ‘as may be necessary to maintain or restore international peace and security’ (article 42).
The ‘gateway’ for Chapter VII is a determination by the UN Security Council that there is ‘any threat to the peace, breach of the peace...’ which enables measures to be taken pursuant to articles 41 and 42 ‘to maintain or restore international peace and security’.
It is apparent from this wording that the UN Security Council is endowed with a power to make determinations of fact (which in practice are unlikely to be susceptible to judicial review before the International Court of Justice), which in turn may trigger resolutions authorising the use of force, and be otherwise binding on all UN member states.
The wording of article 39 would suggest that what constitutes a ‘threat to the peace, breach of the peace’ must impact upon ‘international peace and security’.
In the context of Libya, all recent events have taken place within Libyan territory and, essentially, involve an armed insurrection by the Libyan people.
It is the alleged gross violation of the human rights of the Libyan people which the UNSC considered engaged article 39 of the UN Charter.
Publicly available estimates indicate that around 300,000 people have fled Libya since early February, and 2,000 to 8,000 had been either injured or killed by mid-April.
The so-called doctrine of ‘humanitarian intervention’ is considered by many commentators to provide the legal justification for economic and military measures against a state that abuses human rights of persons within its territory.
This doctrine has been riddled with controversy from its inception, with suggestions that it is used as a cloak for ‘regime change’, and is often only applied where strategic or economic considerations are significant.
UNSCRs 1970 and 1973
On 22 February, the UNSC issued a press statement calling for ‘an immediate end to the violence [in Libya] and... steps to address the legitimate demands of the population’.
Four days later, by way of a unanimous UNSC resolution (1970) which invoked Chapter VII/article 41 on the basis, among other things, of ‘gross and systematic violation of human rights’ and, noting that ‘widespread and systematic attacks currently taking place against the civilian population may amount to crimes against humanity’, the UNSC:
referred the situation in Libya since 15 February to the International Criminal Court;
imposed an arms embargo;
imposed a travel ban on 16 named individuals;
imposed an asset freeze on ‘all funds, other financial assets and economic resources which... are owned or controlled, directly or indirectly... (by six named persons [Gaddafi family])’; and
established a Sanctions Committee to monitor implementation of sanction measures.
In the face of: non-compliance with UNSCR 1970; several ceasefire declarations by the Gaddafi regime which were not honoured; and a continued threat of force against civilian populations, on 17 March a majority of the UNSC (five members abstaining, namely Brazil, Germany, India, Russia and China) invoked Chapter VII, reiterating the references to gross human rights abuses.
invoked article 42, authorising UN member states ‘to take all necessary measures... to protect civilians and civilian populated areas under threat of attack... while excluding a foreign occupation force of any form on any part of the Libyan territory’ (paragraph 4);
established a ban on all flights in the airspace of Libya ‘in order to help protect civilians’ and authorised UN member state enforcement of the ban (paragraphs 6 and 8); and
expanded the asset freeze to 13 persons and five entities (including the Libyan Investment Authority and Libyan National Oil Corporation), while empowering the Sanctions Committee to expand the list of designated entities and persons.
It is of considerable significance that UNSCR 1973 did not command the support of five major UN member states, including two permanent members.
It is also of significance that the three-prong approach – no-fly zone/aerial patrols/bombardment – coupled with the wide-ranging asset freeze, has not as yet yielded any apparent abatement of the situation on the ground for civilians, almost two months after violence erupted.
Many commentators recall the legal ambiguity underpinning the second Gulf War in March 2003, and ask, ‘who is planning for an outcome and what outcome?’.
Phrases such as ‘mission creep’ and ‘power vacuum’ are populating many observations on the present situation.
Indeed, the reality on the ground indicates that a war of attrition appears likely over coming weeks, unless the balance of power shifts militarily in a significant manner, or the Gaddafi regime capitulates.
On 15 April, leaders Obama, Cameron and Sarkozy saw fit to explain their collective position by way of a letter published in various newspapers.
They suggested that UNSCR 1973 had prevented a bloodbath in Benghazi.
They also stated that the ‘duty and... mandate under [Res. 1973] is to protect civilians... It is not to remove Gaddafi by force.
'But it is impossible to imagine a future for Libya with Gaddafi in power... It is unthinkable that someone who has tried to massacre his own people can play a part in their future government... Colonel Gaddafi must go, and go for good’.
The immediate response to this declaration was that it was manifesting an intention which went far beyond UNSCR 1973 (and certain commentators observed, confirmed the worst fears of some of the abstaining states).
Others contend that, in fact, the declaration is simply stating the obvious as to the present situation.
As such, it disavows any intent to remove Gaddafi.
It simply states he must go.
Whether there is in fact a more (or less) subtle message, whereby the declaration leaves open the possibility that ‘all necessary measures’ includes ‘all means’ to support the opposition forces to achieve a situation whereby Gaddafi feels compelled to leave, or is removed, is perhaps reflected in the announcement on 19 April that the UK would send military officers to Benghazi to ‘improve [the opposition] military organisational structures, communications and logistics’.
It would appear that France and Italy already have such advisers on the ground, or are soon to send them.
In terms of the UN Charter, UNSCR 1973 plainly overrides the restriction on interference in the internal affairs of a state (see Article 2(7)).
However, whether grounds for ‘humanitarian intervention’ can or should be characterised as a threat to, or breach of the peace, such as to justify measures to ‘maintain international peace and security’ is a vexed question.
Commentators have largely focused upon the perceived lack of consistency in the approach of the UNSC in determining whether Chapter VII has been engaged in specific situations all over the world, the political/economic/strategic considerations at play (ulterior motives), and the dangers of ‘humanitarian intervention’ being used as a tool for regime change.
Nevertheless, the fact remains that Chapter VII is drafted as it is, and the body empowered to make determinations of fact which engage Chapter VII (rightly or wrongly) is the UNSC.
Perhaps unsurprisingly, within a month of UNSCR 1973 being adopted, we are witnessing divisions emerging within the UNSC, and a growing perception in certain quarters that some states are using the resolution as cover to effect regime change, or (some have suggested) a de facto partition of Libya.
Time will tell whether the resolution has been deployed in good faith or, as commentators suggest with regard to some other UNSC resolutions, has been the subject of ‘creative interpretation’ to realise ulterior motives.
What is clear is that the UNSC is endowed with great powers which can and should be used consistently to address grave violations of human rights, where the evidence is clear and compelling.
Whether the UNSC can or will be able to act in such a manner will depend on its moral authority.
Libya is yet another crucial test in this regard.
Khawar Qureshi QC, a barrister at Serle Court Chambers, specialises in public, international and commercial law, and is a visiting professor at London University. He has acted for or against more than 50 states in commercial and international law matters