Tuesday, May 3, 2011

What does UN Security Council Resolution 1973 permit?

بسم الله الر حمن الر حيم

I spent much of yesterday conducting interviews with the media about the situation in Libya. One of the questions I was repeatedly asked concerned the scope of the UN Security Council Resolution 1973 which authorises the use of force in Libya.  

How far does the resolution permit the coalition now acting in Libya to go?

What are the objectives of the coalition military action?

Does it permit the targeting of Colonel Gaddafi? The objectives set out by the resolution seem to me to broader than what is commonly thought. Para. 4 which authorises the use of all necessary means (short of an occupation force) is not just about protecting civilians but also, importantly, about protecting civilian populated areas under threat of attack. In other words, that paragraph authorises the use of force to prevent attacks on towns and cities, whether those attacks are directed at civilians or even at what would be legitimate military targets. 

My reading of the resolution is that it is really be about stopping Gaddafi’s forces from winning the civil war in Libya. So the resolution seems to be more than what the advocates of the responsibility to protect doctrine would suggest.

This is not just about stopping international crimes it is about the restoration of peace, something closer to the original design of the Council (except that it is an internal conflict, which was not in the original design).

What sort of peace though?

On the question of targetting Gaddafi, there appears to be a division of opinion among senior politicians and the senior General in the UK.

The British Prime Minister David Cameron and the UK’s Chief of Defence Staff, General Sir David Richards have indicated that targeting Gaddifi personally was not allowed but the Defence Secretary and the Foreign Secretary have not ruled this out (see here). 

In my view, para. 4 of Res 1973 does not prohibit the targeting of Gaddafi and authorises it where this is deemed necessary to protect civilians and civilian populated areas. This view is also shared by other international lawyers interviewed for this Guardian article:     click here 

The reported deaths in a Nato air strike of a son of Muammar Gaddafi and three of his grandchildren has moved the battle for control of Libya on to a new plane. Mobs have sacked the British and Italian embassies in Tripoli, Britain has expelled Libya's ambassador in London, and Russian criticism of the coalition has intensified. Yet this should not come as a surprise. UN Security Council Resolution 1973 authorised "all necessary measures", a phrase allowing broad interpretation.

The current escalating crisis in Libya has raised several international legal issues, namely the imposition of sanctions and most recently the implementation of the United Nations-mandated ‘no-fly zone’ over Libyan territory.  However, a further legal question has arisen over the last couple of days. On Monday morning, the epicentre of Muammar Gaddafi’s compound in Tripoli lay in ruins as coalition forces continued their mission to weaken the Libyan leader’s military strength. This has given rise to what is probably the most controversial legal issue of the crisis: is Colonel Gaddafi a legitimate military target in the implementation of the no-fly zone? This debate circulates around the interpretation of the U.N. Security Council’s Resolution 1973 (UNSCR 1973) passed on March 17, 2011.

Firstly, enforcement action can be authorised by the Security Council under Chapter VII of the UN Charter to maintain or restore international peace and security. This is an exception to the prohibition of the threat or use of force in article 2(4) of the charter.  The main issue surrounding the Security Council’s resolution is the scope of force and legitimate targets allied forces can use in protecting civilians and enforcing the no-fly zone.
The UN Security Council Resolution 1973 authorises member states to take all necessary measures to protect civilians under threat of attack in the country … while excluding a foreign occupation force of any form on any part of Libyan territory”.

The resolution also allows member states to carry out inspections aimed at the enforcement of an arms embargo and the enforcement of a ban on flights. Regime change is not an aim specified in any of the 29 points of the UN text.

The controversial debate on the scope of military action revolves around the key phrase “all necessary measures”. This broadly drawn phrase seems to put Muammar Gaddafi and the higher echelons of his military command at personal risk.

One could argue that if killing Gaddafi became necessary in order to protect civilians, pursuant to a broad interpretation of the above phrase it would be lawful to target him. Anything and anyone that supports Libyan jets, airfields and anti-aircraft batteries including the military command structure, would be legitimate military targets. International Law Professor, Philippe Sands of the University College London seems to go a step further.

He seems to believe that the words of the broad phrase “all necessary means” go beyond the need to establish a connection with actual attacks. This would imply that the mere possibility of a significant contribution a physical structure or person can make to harm civilians is the requisite threshold to warrant an attack.  The resolution thus seems to allow a significant amount of latitude for participating states to decide what military action is possible and against whom.

Anthony Aust, a former legal adviser to the UK mission to the U.N. says the ambiguities of such loose phrasing may even have been intentional. He states that “sometimes these UN resolutions are [deliberately] not clear…They are ambiguous because it’s the only way to avoid a veto.” It is this ambiguity that seems to allow the targeting of Gaddafi himself by coalition forces in their attempt to protect Libyan citizens.
On the other hand, it is possible to take a more restrictive and narrow reading of the UNSCR 1973.

Prime Minister David Cameron told his Members of Parliament on March 21st that while he still wanted Col Gaddafi to go, the UN resolution was “limited in scope” and “explicitly does not provide legal authority for action to bring about Gaddafi’s removal from power by military means”.  Echoing the Prime Minister’s sentiments was U.S. Defence Secretary Robert Gates.  When asked about the possibility of trying to eliminate Gaddafi, Gates said it would be ‘unwise’ to set specific goals about targeting Gaddafi directly during attacks. ‘I think that it’s important that we operate within the mandate of the UN Security Council resolution. If we start adding additional objectives, then I think we create a problem in that respect. I also think that it is unwise to set as specific goals, things that you may or may not be able to achieve.’

The stance of these two statesmen is pursuant to a strict and limited interpretation of the U.N. resolution 1973. The resolution limits all allied military action to enforcing a no-fly zone and protecting civilians. Consequently, it is thus not a mission to topple Gaddafi.

To conclude, the UNSCR 1973 appears on its face to sanction attacks on Gaddafi and his military command. On the contrary, coalition heads of government such as the British Prime Minister are adamant that the U.N. resolution explicitly does not provide legal authority for action to bring about Gaddafi’s removal.  Overall it may be better to pursue a more narrow and restrictive reading of the Security Council’s resolution. UNSCR 1973 is an exception to article 2(4) on the UN Charter and should thus be interpreted narrowly, especially as the Charter prioritises the peaceful settlement of disputes. This is particularly important in terms of achieving UNSCR 1973’s objectives.

It's as if it's a habit they can't kick. Once again US, British and other Nato forces are bombarding an Arab country with cruise missiles and bunker-busting bombs. Both David Cameron and Barack Obama insist this is nothing like Iraq. There will be no occupation. The attack is solely to protect civilians.

But eight years after they launched their shock-and-awe devastation of Baghdad and less than a decade since they invaded Afghanistan, the same western forces are in action against yet another Muslim state, incinerating soldiers and tanks on the ground and killing civilians in the process.

Supported by a string of other Nato states, almost all of which have taken part in the Iraq and Afghanistan occupations, the US, Britain and France are clinging to an Arab fig leaf, in the shape of a Qatari airforce that has yet to arrive, to give some regional credibility to their intervention in Libya.

As in Iraq and Afghanistan, they insist humanitarian motives are crucial. And as in both previous interventions, the media are baying for the blood of a pantomime villain leader, while regime change is quickly starting to displace the stated mission. Only a western solipsism that regards it as normal to be routinely invading other people's countries in the name of human rights protects Nato governments from serious challenge.

But the campaign is already coming apart. At home, public opinion is turning against the onslaught: in the US, it's opposed by a margin of two-to-one; in Britain, 43% say they are against the action, compared with 35% in support – an unprecedented level of discontent for the first days of a British military campaign, including Iraq.

On the ground, the western attacks have failed to halt the fighting and killing, or force Colonel Gaddafi's forces into submission; Nato governments have been squabbling about who's in charge; and British ministers and generals have fallen out about whether the Libyan leader is a legitimate target.

Last week, Nato governments claimed the support of "the international community" on the back of the UN resolution and an appeal from the dictator-dominated Arab League. In fact, India, Russia, China, Brazil and Germany all refused to support the UN vote and have now criticised or denounced the bombing – as has the African Union and the Arab League itself.

As its secretary general, Amr Moussa, argued, the bombardment clearly went well beyond a no-fly zone from the outset. By attacking regime troops fighting rebel forces on the ground, the Nato governments are unequivocally intervening in a civil war, tilting the balance of forces in favour of the Benghazi-based insurrection.

Cameron insisted on Monday in the Commons that the air and sea attacks on Libya had prevented a "bloody massacre in Benghazi". The main evidence was Gaddafi's threat to show "no mercy" to rebel fighters who refused to lay down their arms and to hunt them down "house to house". In reality, for all the Libyan leader's brutality and Saddam Hussein-style rhetoric, he was scarcely in any position to carry out his threat.

Given that his ramshackle forces were unable to fully retake towns like Misurata or even Ajdabiya when the rebels were on the back foot, the idea that they would have been able to overrun an armed and hostile city of 700,000 people any time soon seems far-fetched.

But on the other side of the Arab world, in western-armed Bahrain, security forces are right now staging night raids on opposition activists, house by house, and scores have gone missing as the dynastic despots carry out a bloody crackdown on the democratic movement. And last Friday more than 50 peaceful demonstrators were shot dead on the streets of Sana'a by government forces in western-backed Yemen.
Far from imposing a no-fly zone to bring the embattled Yemeni regime to heel, US special forces are operating across the country in support of the government.

But then US, British and other Nato forces are themselves responsible for hundreds of thousands of dead in Iraq and Afghanistan. Last week more than 40 civilians were killed by a US drone attack in Pakistan, while over 60 died last month in one US air attack in Afghanistan.

The point isn't just that western intervention in Libya is grossly hypocritical. It's that such double standards are an integral part of a mechanism of global power and domination that stifles hopes of any credible international system of human rights protection.

A la carte humanitarian intervention, such as in Libya, is certainly not based on feasibility or the degree of suffering or repression, but on whether the regime carrying it out is a reliable ally or not. That's why the claim that Arab despots will be less keen to follow Gaddafi's repressive example as a result of the Nato intervention is entirely unfounded. States such as Saudi Arabia know very well they're not at the slightest risk of being targeted unless they're in danger of collapse.

There's also every chance that, as in Kosovo in 1999, the attack on Libya could actually increase repression and killing, while failing to resolve the underlying conflict. It's scarcely surprising that, outgunned by Gaddafi's forces, the Libyan rebel leadership should be grateful for foreign military support. But any Arab opposition movement that comes to power courtesy of Tornadoes and Tomahawks will be fatally compromised, as would the independence of the country itself.

For the western powers, knocked off balance by the revolutionary Arab tide, intervention in the Libyan conflict offers both the chance to put themselves on the "right side of history" and to secure their oil interests in a deeply uncertain environment.

Unless the Libyan autocrat is assassinated or his regime implodes, the prospect must now be of a bloody stalemate and a Kurdistan-style Nato protectorate in the east. There's little sympathy for Gaddafi in the Arab world, but already influential figures such as the Lebanese Hezbollah leader Hassan Nasrallah have denounced the intervention as a return to the "days of occupation, colonisation and partition".

The urgent alternative is now for countries such as Egypt and Turkey, with a far more legitimate interest in what goes on in Libya and links to all sides, to take the lead in seeking a genuine ceasefire, an end to outside interference and a negotiated political settlement. There is nothing moral about the Nato intervention in Libya – it is a threat to the entire region and its people.

beware @us-nato has licence to kill !

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