1 The NATO Gambit In Libya: Was The UN Resolution 1973 Legal or Illegal in International Law? By Lawrence Wesley Mwagwabi Abstract The NATO intervention in Libya on the basis of United Nations Security Council Resolution 1973 raises very critical questions with regard to the legality and legitimacy of military intervention in a state that was perceived to be ready to decimate its own population and quell pro-democracy calls. The implementation of UN Security Council resolution 1973 was crafted to implement the responsibility to protect and to implement international humanitarian law. The result was forceful regime change in Libya. While the resolution is in accordance with the generally accepted practice of the Security Council, its scope and limits are not entirely clear. As a result, controversial debates about the legality and the legitimacy of the military intervention in Libya are raging on long after the Gaddafi regime fell. Beyond the case of Libya, resolution 1973 and the surrounding debates therefore raise the general question on intervention in circumstances related to responsibility to protect civilians against a belligerent regime in addition to the legality, legitimacy, and feasibility of forceful regime change under a mandate of the Security Council and its implications for the international system of collective security. Key Words Military intervention, responsibility to protect, international law, Security Council, international humanitarian law. Introduction The military intervention by NATO in Libya on the basis of the United Security Council Resolution 1973 has been a matter of great debate in international relations and international law discourse particularly with regard to the legality and legitimacy of forceful regime change. A closer analysis of the UN Security Council Resolution 1973 reveals considerably broad scope of the authorization which could - with certain restrictions – also be regarded as a legal basis for regime change in Libya. In the light of the rather weak legal manacles on the Security Council‟s competences under the Charter of the United Nations. However, the authorization is problematic from a policy stand point and with regards to its legitimacy. The
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1
The NATO Gambit In Libya: Was The UN Resolution 1973 Legal or Illegal in
International Law?
By
Lawrence Wesley Mwagwabi
Abstract
The NATO intervention in Libya on the basis of United Nations Security Council Resolution
1973 raises very critical questions with regard to the legality and legitimacy of military
intervention in a state that was perceived to be ready to decimate its own population and quell
pro-democracy calls. The implementation of UN Security Council resolution 1973 was
crafted to implement the responsibility to protect and to implement international
humanitarian law. The result was forceful regime change in Libya. While the resolution is in
accordance with the generally accepted practice of the Security Council, its scope and limits
are not entirely clear. As a result, controversial debates about the legality and the legitimacy
of the military intervention in Libya are raging on long after the Gaddafi regime fell. Beyond
the case of Libya, resolution 1973 and the surrounding debates therefore raise the general
question on intervention in circumstances related to responsibility to protect civilians against
a belligerent regime in addition to the legality, legitimacy, and feasibility of forceful regime
change under a mandate of the Security Council and its implications for the international
system of collective security.
Key Words
Military intervention, responsibility to protect, international law, Security Council,
international humanitarian law.
Introduction
The military intervention by NATO in Libya on the basis of the United Security Council
Resolution 1973 has been a matter of great debate in international relations and international
law discourse particularly with regard to the legality and legitimacy of forceful regime
change. A closer analysis of the UN Security Council Resolution 1973 reveals considerably
broad scope of the authorization which could - with certain restrictions – also be regarded as
a legal basis for regime change in Libya. In the light of the rather weak legal manacles on the
Security Council‟s competences under the Charter of the United Nations. However, the
authorization is problematic from a policy stand point and with regards to its legitimacy. The
2
UN Security Council 1973 and surrounding debates therefore raise the general issue of the
legality, legitimacy and feasibility of forceful regime change under the mandate o the
Security Council and its implications for the international system of collective security.
Muammar Gaddafi came into power in Libya through a military coup d’état in 1969 and ran
an authoritarian and repressive regime. Massive and systematic human rights violations were
constantly reported and the entanglement of the Gaddafi regime in numerous incidents of
international terrorism is beyond question. Libya‟s involvement in terrorist activities has been
a constant item on the agenda of the United Nations Security Council on the grounds for
collective sanctions. So for instance, UN Security Council Resolution 731, adopted
unanimously on 21 January 1992 condemned acts of terrorism. The Security Council
expressed its concern over the results of investigations into the destruction of Pan Am Flight
103 over Lockerbie, Scotland, and UTA Flight 772 over Chad and Niger which implicated
officials from the Government of Libya. The Security Council condemned the fact that Libya
had not accepted responsibility for the incidents, and urged it to provide a full and effective
response to the requests from the investigations with regards to the two aircraft so as to
contribute to the elimination of international terrorism. It also urged Member States to
encourage the Libyan government to respond. Therefore, the resolution implied that Libya
extradite its two accused nationals, Abdelbaset al-Megrahi and Lamin Khalifah Fhimah.
Furthermore, the situation in Libya must be viewed in wider context of the uprising in North
Africa and the Arabic world that culminated in revolutionary regime overthrows in Tunisia
and Egypt, on one hand, and violent protests and conflicts in numerous other countries.
In Libya, the protests started in January and February 2011 and were met by violent
resistance by the Gaddafi regime. At this early stage, the media and several non-
3
governmental organizations reported that the government used tanks, machine guns and
snipers against protesters and even flew bombing raids. The Libyan regime started hiring
mercenaries to fight against the opposition forces. The media continued to report violence
against protesters and civilians, including execution of unarmed civilians. David Kirkpatrick
in article entitled, “In Libya Capital, Long Bread Lines and Barricades”, in the New York
Times dated 26 February 20111, aptly captured the situation observed on the ground by
stating that, “.... witnesses described snipers and antiaircraft guns firing at unarmed civilians.
Many said security forces had been removing the dead and wounded from streets and
hospitals, apparently in an effort to hide the mounting toll”. Libyan government officials and
ambassadors resigned out of protest against the violent regime, and some members of the
army refused to attack civilians and even defected to the rebel forces.
In March 2011, the opposition forces – consisting of civilians and former members of the
Gaddafi regime and the armed forces that had defected – began to organize themselves. They
formed the National Transitional Council, which almost immediately claimed to be the
legitimate representative organ of the Libyan people. On 10th
March 2011, France recognized
the National Transitional Council as the legitimate government of Libya. The following day,
the European Council issued a declaration condemning the violence against Libya and
recognizing the National Transitional Council as a “political interlocutor”2
The opposition in Libya gained control of Benghazi and Gaddafi‟s troops flew air attacks on
them. Following the opposition‟s initial military gains, fights between the regime and the
1 David Kirkpatrick in article entitled, “In Libya Capital, Long Bread Lines and Barricades”, in the New York
Times,( 26 February 2011) 2 See European Council Declaration number 7/1/11 of 11 March 2011, p. 8
4
rebel continued. Attacks were met with counterattacks, and both sides struggled for control of
the country.
“Responsibility to Protect”
Genocides of the 20th
Century occurring all over the world: ranging from Armenia, to the
Holocaust in Euro, to Cambodia, to the former Yugoslavia, to Rwanda, to Darfur – have been
a major impetus to calls for more effective legal and non-legal mechanisms to prevent and or
halt atrocities through various forms of humanitarian intervention, including military and
non-military3. This is important both to stop the immediate atrocities
4 occurring, but also to
prevent the on-going systemic consequences from failing to prevent such atrocities (such as
those still apparent in the Democratic Republic of Congo stemming from the failure to
intervene to prevent the Rwandan genocide. Pitts notes that the International Criminal Court
and special tribunals established in the wake of the Rwanda, Cambodia, Sierra Leone and the
former Yugoslavia therefore, humanitarian intervention is considered by many to be a way to
uphold the rule of law within the international system and making major contribution to
addressing enforceability gap that has long plagued international law5.
It should be noted here that it has sometimes been argued that intervention in order to protect
lives of persons situated within a particular state and not necessarily nationals of an
3 See Alex J. Bellamy, “Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian
Intervention After Iraq”, in Ethics and International Affairs, Vol. 19, No. 31 (2005); see also Nigel S. Rodney
and Basak Cali, “Kosovo Revisited: Humanitarian Intervention on Fault Lines of International Law”, in Human
Rights Law Revisions, Vol. 7 No. 275 (2007) 4 The most significant and gross violations of international human rights widely recognized to raise issues of
humanitarian intervention and the responsibility to protect are genocide, war crimes, crimes against humanity
and ethnic cleansing – all these are referred to as “atrocities”. 5 See Chip Pitts, “The International Law and Policy regarding the Use of Force, Humanitarian Intervention and
the Responsibility to Protect”, Paper presented at Doshisha University, Kyoto, Japan on 28 June 2011
5
intervening state is permissible in strictly defined situations6. This has some support in pre-
Charter law and it may very well have been the case that in the 19th
Century such intervention
was accepted under international law7. The International Court of Justice in Armed Activities
on Territory of Congo proclaimed that Article 2 (4) is a cornerstone of the United Nations
Charter8. States and analysts generally agree that the prohibition is not only a treaty
obligation but also customary law and ius cogens9, but there is no comparable agreement on
the exact scope of the prohibition10
.
However, it is difficult to reconcile to Article 2 (4) of the United Nations Organization that
states, “All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations”11
, unless one either adopts a
rather artificial definition of „territorial integrity‟ criterion in order to permit temporary
violations or posits the establishment of the right customary law12
. Practice has also been in
general unfavourable to the concept, (that is, responsibility to protect) primarily because it
might be used to justify interventions by more forceful states into territories of weaker
states13
. Indeed, Gray notes that the debate on Article 2(4) of the United Nations Charter is a
subject of fundamental disagreement and she goes on to point out that the most basic
disagreement concerns the significance of the last part of Article 2 (4)14
. Additionally, this
controversy came to the fore in the use of force by North Atlantic Treaty Organization
6 Malcolm N. Shaw, International Law, 6
th Edition, (Cambridge: Cambridge University Press, 2008), p. 1155
7 See H. Ganji, International Protection of Human Rights, (New York: N. J. Wheeler, 1962), Chapter 1; see also
Malcolm N. Shaw, International Law, 6th
Edition, op. cit., p. 1155 8 ICJ Reports (2005) 168 at para 148, 45 ILM (2006) 271
9 Christine Gray, International Law and the Use of Force, (Oxford: Oxford University Press, 2008), p. 30
10 Ibid., p. 30
11 See Charter of the United Nations and Statute of the International Court of Justice, Article 2 (4); see also I.
Brownlie, “Humanitarian Intervention”, in John Moore (ed.), Law and Civil War in the Modern World,
(Baltimore: John Hopkins University Press, 1974), p. 217 12
Malcolm N. Shaw, International Law, 6th
Edition, op. cit., p. 1156 13
Ibid., p. 1156 14
Christine Gray, International Law and the Use of Force, op. cit., pp. 30 - 31
6
(NATO) in Kosovo in 1999. States and commentators alike expressed their fundamental
disagreements about the legality of this intervention in terms of Article 2(4). Some have
claimed that a new right to humanitarian intervention was emerging while others suggest that
NATO action was blatant breach of the UN Charter. Indeed, similar arguments could be
posited by NATO interventions in Libya.
Gray15
argues that this current debate is a “reincarnation of earlier disagreements on the
interpretation of Article 2 (4)”. According to Gray, scholars have disagreed as to whether
Article 2 (4) reflected existing customary international law or whether it was in 1945 a
radical departure from previous customary law, to be narrowly interpreted. The controversy
as pointed out earlier centred on the second part of Article 2(4): should the words „against the
territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations‟ be construed as a strict prohibition on all use of
force against another state, or did they allow the use of force provided that the aim as not to
overthrow the government or seize the territory of the state and provided that the action was
consistent with the purposes of the United Nations?16
Many United States commentators
argued that during the Cold War the interpretation of Article 2 (4) depended on the effective
functioning of the United Nations collective security system, and therefore that the inability
of the Security Council to act because of the veto of five permanent members meant Article
2(4) should be read to allow the use of force for further „world public order‟ or the principles
and purposes of the UN17
.
15
Ibid., p. 31 16
See D. W. Bowett, Self-Defence in International Law, (New York: Praeger, 1958), p. 152; see also I.
Brownlie, International Law and the Use of Force by States, (Oxford: Clarendon Press, 1963) 17
Christine Gray, International Law and the Use of Force, op. cit., p. 31
7
For years, this doctrinal disagreement was of limited practical significance in that states
themselves rarely made any attempt to interpret Article 2(4) in this narrow view; they did not
in fact claim that their use of force was justified because it did not aim to seize the territory or
overthrow the government of another state or because the UN system was not working18
.
They did not rely on a narrow interpretation o Article 2(4) in order to claim a legal right to
use force for humanitarian intervention or to overthrow governments in the name of
democracy or some other political system19
. The argument of the United Kingdom in the
Corfu Channel case remained a relatively isolated example; it claimed that its use of force
intervention in Albanian waters to recover evidence that might indicate who was responsible
for the destruction of two British warships by mines did not violate Article 2(4) because its
action did not threaten the territorial integrity or political independence of Albania. The
famous rejection of this argument by the International Court of Justice has been interpreted
fundamentally divergent ways, either as a complete rejection of narrow interpretation of
Article 2(4) or as a more limited rejection of the UK claim on the particular facts20
. The Court
said it “can only regard the alleged right of intervention as a manifestation of a policy of
force such as has in the past given rise to most serious abuses such as cannot find a place in
international law. It is still less admissible in the particular form it would take – it would be
reserved for most powerful states”21
.
Similarly, there were indications that Israel also took a narrow interpretation of Article 2(4)
over the Entebbe incident in 1976; when hijackers diverted an aircraft for Tel Aviv to
18
Ibid., pp. 31 - 32 19
Ibid., p. 32 20
Ibid., p. 32 21
ICJ Reports (1949) 4 at 34; see also P. Hilpold, “Humanitarian Intervention: Is There A Need for Legal
Reappraisal”, in European Journal of International Law, Vol. 12, No. 3 (2001), pp. 437 – 467: 437; see also
Dino Kritsiotis, “Reappraising Policy Objections to Humanitarian Intervention”, in Michigan Journal of
International Law, Vol. 19, (1998), pp. 1005 – 1050: 1005; see also R. Goodman, “Humanitarian Intervention
and Pretexts for War”, in American Journal of International Law, Vol. 100, No. 1 (2006), pp. 107 – 141: 107 ;
see also Christine Gray, International Law and the Use of Force, op. cit., p. 32
8
Uganda, Israeli forces mounted a successful rescue mission in Uganda. The main argument of
Israel in the Security Council was expressly based on self-defence of its nationals, but it also
put forward an interpretation of Article 2(4) by the writer O‟Connell as allowing the limited
use of force when UN machinery was in effective22
. This line was not taken up by other states
in the Security Council debate, except perhaps by the United States in its passing reference to
the breach of Uganda‟s sovereignty as only temporary23
. The Israeli argument on Article
2(4) was expressly rejected by Sweden; it said, “The Charter dos not authorize any exception
to this rule except for the right of self-defence and enforcement measures undertaken by the
Council under Chapter VII of the Charter. This is no coincidence or oversight. Any formal
exceptions permitting the use of force or of military intervention in order to achieve certain
aims, however laudable, would be bound to be abused, especially by the big and strong, and
pose a threat especially to the small and weak”24
. Thus, an overwhelming majority of states
speaking in the debate regarded Israeli‟s action as a breach of Article 2(4). Those who did not
expressly defend the legality of its action in terms of a narrow interpretation of Article 2
(4)25
.
More significantly, when the United States justified its invasion of Grenada in 1983, it
suggested in the United Nations Security Council that Article 2(4) should not be viewed in
isolation; “prohibitions against the use of force in the Charter are contextual, not absolute.
They provide justification for the use of force in pursuit of other values also inscribed in the
Charter, such values as freedom, democracy, peace”26
. But earlier in the debate the United
States had relied on the right to protect its nationals in danger and on an invitation by the
22
UN Security Council 1942nd
Meeting (1976), paragraph 102; 1976 United Nations Year Book, p. 315; see also 23
UN Security Council 1941st Meeting (1976), paragraph 92
24 UN Security Council 1940
th Meeting (1976), paragraph 121
25 Christine Gray, International Law and the Use of Force, op. cit., p.33
26 UN Security Council 2491
st Meeting (1983), paragraph 121
9
Governor-General of Grenada to justify its action. Thus, in Entebbe and Grenada incidents
the narrow interpretation of Article 2(4) as less than absolute prohibition of the use of force
was not crucial to the state using force: the United States and Israel also put forward other
arguments to justify their actions, and the interpretation of Article 2(4) played only a
subsidiary and not a decisive role in determining the legality of the intervention. The question
of interpretation of Article 2(4) plays a more decisive role in the debate over humanitarian
intervention.
In a December 2001 report entitled The Responsibility to Protect, the International
Commission on Intervention and State Sovereignty (ICISS) formally articulated a concept
now referred to as the "responsibility to protect"27
. The report responded to repeated pleas by
then Secretary-General Kofi Annan to create unity around the fundamental principles of
humanitarian intervention. Kofi Annan posed the following question: "If humanitarian
intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a
Rwanda, to a Srebrenica--to gross and systematic violations of human rights that affect every
precept of our common humanity?"28
Subsequently, in December 2004, the UN's High-Level Panel's Report on Threats,
Challenges, and Change stated that "there is a growing acceptance that while sovereign
Governments have the primary responsibility to protect their own citizens from such
catastrophes, when they are unable or unwilling to do so that responsibility should be taken
27
International Commission on Intervention and State Sovereignty, The Responsibility to Protect, (Canada,
2001), available at <www.iciss.ca/ pdf/Commission-Report-pdf>. 28
Ibid.,
10
up by the wider international community--with its spanning a continuum involving
prevention, response to violence, if necessary, and rebuilding."29
The General Assembly incorporated responsibility to protect in Resolution 60/1, 2005 World
Summit Outcome Document. This resolution articulates the responsibility of individual states
to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against
humanity30
. The document also recognizes a corresponding responsibility of the international
community:
“The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful
means in accordance with Chapters VI and VIII of the Charter, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. In this context, we are prepared to take collective action, in a timely
and decisive manner, through the Security Council ... on a case-by-case basis in
accordance with the Charter and in cooperation with relevant regional
organizations as appropriate, should peaceful means be inadequate"31
.
Referring to responsibility to protect in Resolution 1674, which it adopted on 28 April 2006
and which addresses the protection of civilians in armed conflict, the UNSC reaffirmed the
Outcome Document's provisions "regarding the responsibility to protect populations from
genocide, war crimes, ethnic cleansing, and crimes against humanity"32
. However, the UNSC
29
“A More Secure World Our Shared Responsibility”, Report of the High-Level Panel on Threats, Challenges,
and Change, UN Dec. A/59/565 at 56-57, para. 210 (2004), <www.un.org/secureworld/report.pdf> 30
World Summit Outcome, GA Res 60/1, para. 138 (24 October 2005). 31
United Nations Security Council Resolution 1674, P 4, UN Doc. S/RES/1674 (28 April 2006) 32
Ibid.,
11
did not explicitly endorse a broad authority to intervene in the event of a recognized
humanitarian crisis.
Nonetheless, responsibility to protect purports to recognize the authority and obligation of the
international community to intervene if just humanitarian cause exists. It states that "the core
tenant of the [responsibility to protect] is that sovereignty entails responsibility. Each state
has a responsibility to protect its citizens; if a state is unable or unwilling to carry out that
function, the state abrogates its sovereignty, at which point both the right and the
responsibility to remedy the situation falls on the international community"33
.
It should be noted that neither the United Nations General Assembly nor the United Nations
Security Council resolutions have created new international law or amended the United
Nations Charter, but responsibility to protect is a significant step in that direction. The
resolutions have only conveyed the current sense as to what proper practice should be in the
future34
. This paper will analyze these competing principles and how they bear on the legality
of humanitarian intervention and more so use of the military to this end.
Humanitarian Intervention
Armed humanitarian intervention is the use of military force by a nation or nations to stop or
prevent widespread, systematic human-rights abuses within the sovereign territory of another
nation35
. An example is the action NATO took to stop ethnic cleansing in Kosovo. In this
33
See, for example, Yoram Dinstein, War, Aggression and Self Defense, 4th Ed. (Cambridge: Cambridge
University Press, 2005), pp. 71-72 34
Daniel Rice, “Armed Humanitarian Intervention and International Law: A Primer for Military Professionals”
(accessed on 23 June 2012, http://www.gistprobono.org/sitebuildercontent/sitebuilderfiles/ihlmil.doc/) 35
Ibid.,
12
context, military force refers to operations involving direct attacks against persons and places.
It does not refer to other military operations, such as providing humanitarian aid,
peacekeeping, or stability and support operations that might result in the need to use force
after units peacefully arrive with the consent of the host nation or parties to a conflict36
.
Modeme notes that intervention by states in the territory of a sovereign state is generally
proscribed in international law by the doctrine of non-intervention37
. Intervention has been
defined as “a coercive tactic used to manipulate a country into taking a certain path that
would not otherwise be chosen”, and “consists of military involvement or the encouragement
of the use of force by an outside power in a domestic conflict”38
. Intervention therefore
occurs:
“when a state interferes in the relations of other states without the consent of one
or both of them, or when it interferes in the domestic affairs of another state
irrespective of the will of the latter for the purpose of maintaining or altering the
actual condition of things within it”39
Intervention may also be by means other than armed force, including making payments to
political parties or supporting rebel or opposition forces in another country40
. In the
36
Ibid., 37
Lawrence E. Modeme, “The Libya Humanitarian Intervention: Is It Lawful in International Law”, (accessed