LAW MANTRATHINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

Nature of International Law With
Applicability in the Contemporary World
Discussing Two Scenarios from Post Cold War

Introduction
There is no agreed definition of international law and it is easier to describe the role of
international law and the tasks it performs than to rely on a literal meaning
1
. The international
legal regime can be described as consisting of a body of laws, rules and legal principles that are
based on custom
2
, treaties
3
or legislation and define, control, constrain or affect the rights and
duties of states in their relations with each other, but sometimes they are not easy to isolate or
identify as one or the other. Although states are still central to the international law regime
there is no doubt that for some purposes at least, some international organizations
4
are now
subjects of international law. Individuals too have been granted subject status for some
purposes. It was traditionally thought that because international law governed the relations
between states it did not affect their domestic arrangements because each state was said to be

1
A set of rules generally regarded and accepted as binding in relations between states and nations or the
body of rules generally recognized by civilized nations as governing their conduct towards each other and
towards each other's subjects.
2
Customary international laws are those aspects of international law that derive from custom. Along with
general principles of law and treaties, custom is considered by the International Court of Justice, jurists,
the United Nations, and its member states to be among the primary sources of international law.
3
A treaty is an express agreement under international law entered into by actors in international law,
namely sovereign states and international organizations. A treaty may also be known as an (international)
agreement, protocol, covenant, convention or exchange of letters, among other terms. Regardless of
terminology, all of these forms of agreements are, under international law, equally considered treaties and
the rules are the same.

4
United Nations, The International Labour Organization and the World Bank.


sovereign and this suggested that internally a state could behave as it wished. This has been
theoretically rejected, and if this was ever true in practice, it certainly requires modification
now. In particular, the development of human rights law places obligations upon state
governments to conform to international norms in their domestic governance.
International law is needed in order to ensure a stable and orderly international society. It is in
every states interest to abide by the rules of international law, for they lay down orderly and
predictable principles for the conduct of international relations and international commerce. To
explain it in the contemporary world there are number of examples
5
that can be relate and it is
vital that the allocation of the scarce resources of the high seas and ocean floor is achieved
smoothly and equitably and it is only through rules of international law binding on all states
that this can be achieved. Thus, a major reason why international law works is that it provides a
stable and authoritative regime for the conduct of international relations and the regulation of
global issues in an increasingly interdependent world
6
. The decade of international law
7
has
come and gone and the international community has entered the 21st century. At the start of the
1990s, the end of the cold war brought uncertainty but actually heralded a new era of
cooperation among the five permanent members of the Security Council and a consequential
increase in the influence of the United Nations
8
. The present decade is unlikely to witness such

5
When Saddam Hussein ordered the invasion of Kuwait in 1990 he did not announce that he intended to
flout or, worse still, ignore international law. Rather he attempted, perhaps not terribly convincingly, to
defend his actions as being consistent with international law. Thus he not only suggested that the invasion
was legitimate self defence but he also referred to historic Iraqi claims over the territory of Kuwait. Very
much the same was true of the US invasion of Panama to capture General Noriega. Even the claim by
China that both Tibet and Taiwan are integral components of the Chinese territory is couched in terms
calculated to appeal to international law.
6
More recently the intervention by NATO in the territory of the former Republic of Yugoslavia was
defended as being consistent with international law; while it is argued at least by Israel and the United
States that Israels activities in Palestine are not necessarily a breach. Most recently of course has been the
bitter legal debate concerning the intervention of the US coalition in Iraq. Quite remarkably the debate
over the legality of the intervention has been absolutely central to the debate over intervention itself.
There are those, both teachers of international law and politicians, who argued forcefully that the matter
should have been finally resolved by its persuasively argued illegitimacy. This debate was very important
in the 2005 general election in the UK too
7
GA Resolution 45/90
8
Under the Charter of the United Nations, the Security Council may take enforcement action against a state
when it poses a threat to the peace, or has committed an act of aggression or breach of the peace - Art. 39


a fundamental realignment, but the challenges facing international law are no less pressing.
It is indisputable that there are significant and crucial distinctions between international law
and domestic law
9
. In international law there is of course no supreme legislature which can
promulgate binding international laws - no international law-making body and no equivalent of
a domestic legislature
10
and no international court before which states in breach of international
law may consistently be forced to appear. There is an International Court of J ustice but this
concerns itself only with disputes between parties who have standing before the Court and only
states do have standing if the Court is to make an authoritative ruling rather than giving an
advisory opinion. The Court has no role in punishing states in breach of their international law
obligations. Its role is to resolve disputes between states, and without use of sanctions.
Although some states have accepted the compulsory jurisdiction of the International Court of
J ustice this will only be effective in disputes between states where all parties to the dispute
have accepted that compulsory jurisdiction. More frequently the Court will have jurisdiction
only where the parties to the dispute consent to the jurisdiction of the Court for a particular
dispute. Thus here too the emphasis remains upon consent. The international legal regime is

and Chapter VII - UN Charter; Enforcement action is authorised by resolution of the Council and may
comprise military action, as with the use of force by the UN in Korea in 1950, against Iraq in 1990/91 and
as authorised against Indonesia over East Timor in 1999/2000 or economic sanctions, as with the trading
restrictions and embargoes against South Africa in 1977 and Serbia/Montenegro in 1992; or other similar
measures, be they diplomatic, political or social, such as the mandatory severance of air links with Libya
as a result of the Lockerbie incident. In 1992 and April 1993 and the partial embargo imposed on North
Korea by SC Res. 1718 (2006) following the latters nuclear test. The Security Council may even act
against non-state entities, as with SC Res. 1390 (2002) imposing financial and economic sanctions
against the Al-Qaida organisation and the Taliban.
9
Unlike a domestic legal system where an individual who breaches the law must suffer the consequences,
a breach of this type of international law by an official of a state means that the whole state community
will have to suffer the consequences of the breach of an international obligation. However, Cassese
cautions that enforcement of these community rights in still rare in international law, although one could
take issue with this opinion by pointing to the rise in international criminal tribunals holding individuals
to account for violations of these community obligations
10
The impact of events in Iraq and The Sudan may well cause many states to ponder weaknesses and it
remains to be seen whether the result is a general willingness to violate the law more often or a desire to
do something about the structural enforcement weaknesses of the system. Again, the absence of a central
organisation responsible for law creation may be a disadvantage when there is a need to develop a
comprehensive and general body of rules, as with the law concerning protection of the international
environment. The customary law-making process may be too slow when new rules are needed quickly or
circumstances change rapidly, as in the area of international communications. The absence of a
compulsory court structure means that some disputes may persist for decades to the detriment of all
concerned, Argentina and the UK over the Falkland Islands, India and Pakistan over Jammu-Kashmir.


overwhelmingly, but not exclusively, one which Public international law requires the consent
of those whom it would govern. International law can, by and large, be created only by consent
it can rarely coerce those state subjects who would not be bound. It is this that leads
Casseses opinion suggests that the international law regime is best understood as a horizontal
system of organization rather than vertical. By this he means that whereas in domestic law,
laws are passed down to the subjects from the law making body, in international law it is the
parties themselves who make the law for themselves according to the analysis
11
.
To move further in the discussion, regarding the first scenario to address about the legal
implications in the light of the Casseses given statement regarding the crimes took place in the
Kosovo conflict and about the declaration of Kosovo state. The term Kosovo War or Kosovo
conflict was two sequential, and at times parallel armed conflicts in Kosovo province, then part
of Yugoslavia Republic of Serbia; from early 1998-1999, there was an armed conflict initiated
by the ethnic Albanian, Kosovo Liberation Army (KLA) who sought independence against
the Serbian police and Yugoslavia Military. From March 24, 1999 to J une 11, 1999
12
, NATO
launched an air campaign on FR Yugoslavia, while the KLA continued battles with Yugoslavia
forces, amidst a massive population displacement estimated to be close to 1 million people.
NATO countries promoted the war in Kosovo as the first humanitarian war
13
based on short-
term military reports and casualty reports that were later criticized as highly inaccurate
14
. It
was the center of news headlines for months, and gained a massive amount of coverage and
attention from the international community and media. The NATO bombing and surrounding

11
the relationship of domestic and international law lies in the fact that international law has to take into
account the socio-political structure of States, particularly with the presence of bodies of state authority
competent to express the will of the State in its relations with other states and other actors in international
relations, as well as with the presence of social relations within the domestic jurisdiction of any state, and
usually not subject to international legal regulation. International law refers to such cases to the rules of
national law.
12
http://www.nato.int/kosovo/all-frce.htm
13
http://www.nytimes.com/packages/html/world/20071209_KOSOVO_FEATURE/
14
http://www.thedailybeast.com/newsweek/2000/05/14/the-kosovo-cover-up.html


events have remained controversial though
15
.
There are some identical war crimes which have taken place apart from the declaration of the
Kosovo and it is significant that those war crimes too have an important role in the
International law as a land mark case law. Regarding Serbian war crimes The International
Criminal Tribunal for the former Yugoslavia charged President Miloevi with crimes against
humanity, violating the laws or customs of war, grave breaches of the Geneva Conventions and
genocide for his role during the wars in Croatia, Bosnia, and Kosovo
16
. But after his death
17
it
was proved that he was not guilty
18
was an important decision in international law. Kosovo
Liberation Army war crimes; The ICTY also leveled indictments against KLA members
19

NATO war crimes
20
, The Serbian government and a number of international pressure groups
claimed that NATO had carried out war crimes during the conflict
21
, notably the bombing but

15
The Daily Beast, The Kosovo Cover Up, 2000, http://www.bbc.co.uk/iplayer/console/p007z15k
16
Before the end of the bombing, Yugoslav President Slobodan Miloevi, along with Milan Milutinovi, Nikola
ainovi, Dragoljub Ojdani and Vlajko Stojiljkovi were charged by the International Criminal Tribunal for the
Former Yugoslavia (ICTY) with crimes against humanity including murder, forcible transfer, deportation, and
"persecution on political, racial or religious grounds". Further indictments were leveled in October 2003 against
former armed forces chief of staff Neboja Pavkovi, former army corps commander Vladimir Lazarevi, former
police official Vlastimir orevi, and the current head of Serbia's public security, Sreten Luki. All were indicted
for crimes against humanity and violations of the laws or customs of war.
17
Miloevi was found dead in his cell on 11 March 2006, in the UN war crimes tribunal's detention center,
located in the Scheveningen section of The Hague, Netherlands. Autopsies soon established that Miloevi had
died of a heart attack. He had been suffering from heart problems and high blood pressure. Many suspicions
were voiced to the effect that the heart attack had been caused or made possible deliberately by the ICTY.
18
Socialist Unity, Milosevic officially not guilty, 2007, http://www.socialistunity.com/?p=291
Ruling of the UN International Court of Justice in The Hague that the Serbian state was not directly responsible
for any genocide in Bosnia has a very clear implication. Had President Slobodan Milosevic not died in custody he
would have been acquitted, and found not guilty of the charges brought against him. Milosevic may have been
guilty of many things. But he was not a war criminal. The Yugoslavia state was broken up over a period of years
because that suited the interests of the western powers. Serbia stood against that disintegration and also sought to
defend parts of its planned economy. That is why there has been a propaganda war to paint the Serbs as the
villains.
19
Fatmir Limaj, Haradin Bala, Isak Musliu, and Agim Murtezi for crimes against humanity. They were arrested on
February 17 and 18, 2003. Charges were soon dropped against Agim Murtezi as a case of mistaken identity,
whereas Fatmir Limaj was acquitted of all charges on November 30, 2005 and released. The charges were in
relation to the prison camp run by the defendants at Lapusnik between May and July 1998.
20
International Criminal Tribunal for the former Yugoslavia, http://www.icty.org/
21
Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against
the Federal Republic of Yugoslavia -
It should be noted that the use of the terms target or attack in the below does not mean that in every case the
site in question was deliberately struck by NATO. The terms are convenient shorthand for incidents in which it is
alleged that particular locations were damaged in the course of the bombing campaign. The key incidents and


did not press charges, citing a lack of mandate.
For more than ten years prior to the request for an advisory opinion the situation in Kosovo had
been subjected by the Security Council, in the exercise of its responsibility for the maintenance
of international peace and security. The Council first took action specifically relating to the
situation in Kosovo on 31 March 1998 when it adopted resolution 1160 (1998)
22
. And there
were many other resolutions which were adopted too
23
. The General Assembly has also
adopted resolutions relating to the situation in Kosovo. Prior to the adoption by the Security
Council of resolution 1244 (1999), the General Assembly adopted five resolutions on the
situation of human rights in Kosovo
24
. However, the broader situation in Kosovo was not part
of the agenda of the General Assembly at the time of the declaration of independence and it

target categories were: a. the attack on a civilian passenger train at the Grdelica Gorge 12/4/99 10 or more
civilians killed, 15 or more injured, b. the attack on the Djakovica Convoy 14/4/99 70-75 civilians killed, 100
or more injured, c. the attack on Surdulica, - 27/4/99 11 civilians killed, 100 or more injured, d. the attack on
Cuprija 8/4/99 1 civilian killed, 5 injured, e. the attack on the Cigota Medical Institute 8/4/99 3 civilians
killed, f. the attack on Hotels Baciste and Putnik 13/4/99 1 civilian killed, g. the attacks on the Pancevo
Petrochemical Complex and Fertilizer Company 15/4/99 and 18/4/99 no reported civilian casualties, h. the
attack on the Nis Tobbaco Factory 18/4/99 no reported civilian casualties, i. the attack on the Djakovica
Refugee Camp 21/4/99 5 civilians killed, 16-19 injured, j. the attack on a bus at Lu`ane 1/5/99 39 civilians
killed, k. the attack on a bus at Pec 3/5/99 17 civilians killed, 44 injured, l. the attack at Korisa village
13/5/99 48-87 civilians killed, m. the attack on the Belgrade TV and Radio Station 23/4/99 16 civilians
killed, n. the attack on the Chinese Embassy in Belgrade 7/5/99 3 civilians killed, 15 injured, o. attack on Nis
City Centre and Hospital 7/5/99 13 civilians killed, 60 injured, p. attack on Istok Prison 21/5/99 at least 19
civilians killed, q. attack on Belgrade Hospital 20/5/99 3 civilians killed, several injured, r. attack on Surdulica
Sanatorium 30/5/99 23 killed, many injured, s. attack on journalists convoy Prizren-Brezovica Road 31/5/99
1 civilian killed 3 injured t. attack on Belgrade Heating Plant 4/4/99, - 1 killed, u. attacks on Trade and
Industry Targets.
22
That was followed by resolutions 1199 (1998), 1203 (1998) and 1239 (1999). On 10 June 1999, the Council
adopted resolution 1244 (1999), which authorized the creation of an international military presence,
subsequently known as KFOR and an international civil presence - the United Nations Interim Administration
Mission in Kosovo, UNMIK and laid down a framework for the administration of Kosovo.
23
International Court of Justice, Year 2010, 22
nd
July, General list No. 141, Accordance with International Law of
the Unilateral Declaration of Independence in respect of Kosovo; solution 1367 (2001), the Security Council
decided to terminate the prohibitions on the sale or supply of arms established by paragraph 8 of resolution
1160 (1998). The Security Council has received periodic reports from the Secretary-General on the activities of
UNMIK. The dossier submitted to the Court by the Secretary-General records that the Security Council met to
consider the situation in Kosovo on 29 occasions between 2000 and the end of 2008. Although the declaration of
independence which is the subject of the present request was discussed by the Security Council, the Council
took no action in respect of it (Security Council, provisional verbatim record, 18 February 2008, 3 p.m.
(S/PV.5839); Security Council, provisional verbatim record, 11 March 2008, 3 p.m. (S/PV.5850)
24
Resolutions 49/204, 50/190, 51/111, 52/139 and 53/164. Following resolution 1244 (1999), the General
Assembly adopted one further resolution on the situation of human rights in Kosovo (resolution 54/183 of 17
December 1999) and 15 resolutions concerning the financing of UNMIK (resolutions 53/241, 54/245A, 54/245B,
55/227A, 55/227B, 55/295, 57/326, 58/305, 59/286A, 59/286B, 60/275, 61/285, 62/262, 63/295 and 64/279)


was therefore necessary in September 2008 to create a new agenda item for the consideration
of the proposal to request an opinion from the Court.
One of the main concerns were towards the lawfulness of declarations of independence under
general international law, against the background of which the question posed falls to be
considered, and Security Council resolution 1244 (1999) is to be understood and applied.
Advisory Opinion devoted to the identity of the authors of the declaration of independence, the
Court seeks to establish whether the declaration of independence of 17 February 2008 was an
act of the Assembly of Kosovo, one of the Provisional Institutions of Self-Government,
established under the Constitutional Framework, or whether those who adopted the declaration
were acting in a different capacity
25
. The Court then turns to the question, debated in the
proceedings, whether the authors of the declaration of independence acted in violation of
Security Council resolution 1244 (1999). After outlining the arguments submitted by the
participants in the proceedings on this point, the Court undertakes a careful reading of
resolution 1244 (1999) in order to determine whether that text prohibits the authors of the
declaration of 17 February 2008 from declaring independence from the Republic of Serbia. It is
very clear how the international law works as an important role after reading the dissenting
26


25
ICJ - No. 2010/25 - 22 July 2010 - Accordance with international law of the unilateral declaration of
independence in respect of Kosovo - Advisory Opinion - The Court finds that the declaration of independence of
Kosovo adopted on 17 February 2008 did not violate international law
26
Dissenting opinion of Judge Koroma - concludes that he cannot concur in the finding of the Court that the
declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law. In his
analysis, cites Article 2, paragraph 4, of the Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter
of the United Nations. Finally, refers to the finding made by the Supreme Court of Canada that international law
does not specifically grant component parts of sovereign States the legal right to secede unilaterally from their
parent State; Dissenting opinion of Judge Bennouna - The judge considers, firstly, that the Court should have
exercised its discretionary powers and declined to respond to the question put by the General Assembly. It is the
first time that the General Assembly has sought an advisory opinion on a question which was not, as such, on its
agenda, and that had fallen under the exclusive jurisdiction of the Security Council for at least ten years or so, in
particular since the latter decided to place the territory of Kosovo under international administration (resolution
1244 of 10 June 1999); Dissenting opinion of Judge Skotnikov - Should have used its discretion to refrain from
exercising its advisory jurisdiction in the rather peculiar circumstances of the present case. Never before has the
Court been confronted with a question posed by one organ of the United Nations, to which an answer is entirely
dependent on the interpretation of a decision taken by another United Nations organ. What makes this case


and the agreeing
27
judgments
28
.
Kosovo's declaration of independence from Serbia was enacted on Sunday, 17 February 2008
by the Assembly of Kosovo with a unanimous quorum
29
. All 11 representatives of the Serb
minority boycotted the proceedings
30
. International reaction was mixed, and the world
community continues to be divided on the issue of the international recognition of Kosovo. UN
General Assembly resolution adopted on 8 October 2008 backed the request of Serbia to seek
an advisory opinion from the International Court of J ustice on the legality of Kosovo's

even more anomalous is the fact that the latter is the Security Council, acting under Chapter VII of the United
Nations Charter. Indeed, in order to give an answer to the General Assembly, the Court has to make a
determination as to whether or not the Unilateral Declaration of Independence (UDI) is in breach of the rgime
established for Kosovo by the Security Council in its resolution 1244 (1999).
27
Declaration of Vice-President Tomka -Court should have exercised its discretion and declined answering the
request in order to protect the integrity of its judicial function and its nature as a judicial organ. The Vice-
President first considers that the Security Council is the body empowered to make a determination whether an
act adopted by the institutions of Kosovo, which has been put under a rgime of international territorial
administration, is or is not in conformity with the legal framework applicable to and governing that rgime;
Judge Simmaconsiders that, as the Advisory Opinion interprets the General Assemblys request to require only
an assessment of whether or not the Kosovo declaration of independence was adopted in violation of
international law, the Opinion not only ignores the plain wording of the request itself, which asks whether the
declaration of independence was in accordance with international law, but that it also excludes any
consideration of whether international law may specifically permit or even foresee an entitlement to declare
independence when certain conditions are met. He finds this approach disquieting in the light of the Courts
general conclusion that the declaration of independence did not violate international law; Separate opinion of
Judge Keith - Judge Keith in his separate opinion explains why he considers that the Court in its discretion should
have refused to answer the request for an Advisory Opinion put to it by the General Assembly. For good reason,
he says, the Statute of the Court recognizes that the Court has discretion whether to reply to a request. The
Court, in exercising that discretion considers both its character as a principal organ of the United Nations and its
character as a judicial body; Separate opinion of Judge Seplveda-Amor - In his separate opinion, Judge
Seplveda-Amor asserts that there are no compelling reasons for the Court to decline to exercise jurisdiction in
respect of the General Assemblys request. Moreover, in his view, the Court has a duty, by virtue of its
responsibilities in the maintenance of international peace and security under the United Nations Charter, to
exercise its advisory function in respect of legal questions relating to Chapter VII situations; Separate opinion of
Judge Yusuf - Although generally in agreement with the Courts Opinion, Judge Yusuf appends a separate
opinion in which he explains his serious reservations regarding, first, what he considers as the Courts restrictive
reading of the question posed by the General Assembly, and, secondly, the inclusion by the Court of the
Constitutional Framework established under the auspices of the United Nations Interim Administration Mission
in Kosovo (UNMIK) in the category of the applicable international legal instruments under which the accordance
of the declaration of independence with international law is assessed.
28
Summary 2010/2 - 22 July 2010 - Accordance with international law of the unilateral declaration of
Independence in respect of Kosovo - Summary of the Advisory Opinion
29
BBC News, Kosovo MPs Proclaim Independence, 2008, http://news.bbc.co.uk/2/hi/europe/7249034.stm
30
http://www.assembly-kosova.org/common/docs/proc/trrrrans_s_2008_02_17_al.pdf


unilaterally proclaimed independence
31
. The International Court of J ustice delivered its
advisory opinion on 22 J uly 2010 and concluded that the declaration of independence of
Kosovo did not violate any applicable rule of international law, because it was not issued by
the Assembly of Kosovo, Provisional Institutions of Self-Government, or any other official
body and thus the authors, who named themselves "representatives of the people of Kosovo"
were not bound by the Constitutional Framework (promulgated by UNMIK
32
) or by UNSCR
1244 that is addressed only to United Nations Member States and organs of the United
Nations
33
.
The later part of this discussion is about the death of Gaddafi. On 27
th
J une, three International
Criminal Court (ICC) judges issued an international arrest warrant
34
against Libiyan leader
Muammar Gaddafi citing him as a co-perpetrator in crimes against humanity, with his father
and Abdullah al-Senussi, the head of military intelligence. This decision gave the ICC judges a
key role in deciding where and how Gaddafi will be tried
35
. Although Libya is not a party to
the ICC statute, it is a United Nations (UN) member, and resolution 1970
36
explicitly provides
that the Libyan authorities shall co-operate fully with and provide any necessary assistance to

31
General Assembly GA/ 10764, Backing Request by Serbia, General Assembly Decides to Seek
International Court of Justice Ruling on Legality of Kosovos Independence,
http:/ / www.un.org/ News/ Press/ docs/ 2008/ ga10764.doc.htm

32
United Nations Interim Administration Mission in Kosovo
33
Accordance with the International law of the Unilateral declaration of independence in respect of Kosovo,
2010, http://www.nspm.rs/nspm-in-english/accordance-with-international-law-of-the-unilateral-declaration-of-
indepedence-in-respect-of-kosovo.html
34
Constitutes a test case for international justice and the idea of shared responsibility embraced by Heads of
State and Government at the 2005 World Summit Outcome in the framework of the Responsibility to Protect
(R2P) doctrine. http://www.sharesproject.nl/wp-content/uploads/2011/08/Nollkaemper-Jacobs-Shared-
Responsibility-in-International-Law-A-Concept-Paper.pdf
35
The first is to send Saif to the ICC for trial in The Hague. A second option is for the ICC and the new Libyan
government to reach agreement on an ICC trial in Libya. There is a third possibility, if Libyas government really
does want to try him in the country under its own law and procedure: under the principle of complementarily,
which may give national courts a first bite, the government may have to persuade the ICC judges it truly is able
to prosecute him under fair trial conditions for the international crimes for which the international arrest
warrant was issued. A fourth option is for the Libyan courts to try him first for some other alleged crimes that
are outside the jurisdiction of the ICC
36
In February 2011, the UN Security Council adopted a unanimous resolution (Resolution 1970). This resolution
marked the first incident in which the ICC was expressly recognized in Council practice as a core element of
preventing and adjudicating atrocities in line with the Right to Protect - R2P concept.


the court and the prosecutor. The concept of Right to Protect
37
has a major role to reflect with
regard to international law and this incident. The new Libyan government is therefore bound
by a legal framework: it cannot lawfully ignore the ICC judges and decide that Gaddafi will be
tried under local law. Unlike Iraq, where there was no international indictment of Saddam, the
decision on Gaddafi is not an exclusively Libyan affair.
The willful killing or summary execution of a prisoner of war who is no longer participating in
an armed conflict is a grave breach of the Third Geneva Convention on Prisoners of War of
1949, to which both France and the US are parties
38
in this situation. The Third Geneva
Convention applies mainly during international armed conflicts. The armed conflict in Libya,
however, had undoubtedly become international once NATO intervened
39
. It makes no
difference in this classification that the intervention was based on a UN Security Council
resolution
40
. Indeed, international humanitarian law
41
applies to any international armed

37
The R2P principle is based on the idea that domestic authorities maintain primary responsibility to protect
their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. It contains at the
same time a commitment to an international response in accordance with the United Nations Charter, should
peaceful means be inadequate and national authorities manifestly fail to live up to their responsibility. With the
decision authorizing the use of force to protect civilians and civilian populated areas under threat of attack and
the referral of the situation to the ICC under Chapter VII of the United Nations Charter, the protection against
atrocity crimes took a central place in the collective response to the Libyan conflict.
38
Although the facts are far from clear, most reports now seem to confirm that Muammar Gaddafi was killed
after his convoy was attacked by NATO planes, including aircraft from the US and France, and after he was
captured alive. If these facts are correct, they point to yet another serious violation of international law involving
the US
39
On 24
th
March, NATO ambassadors agreed that NATO will take command of the no-fly zone enforcement,
while other military operations remained the responsibility of the group of states previously involved, with NATO
expected to take control as early as 26
th
March. The decision was made after meetings of NATO members to
resolve disagreements over whether military operations in Libya should include attacks on ground forces. The
decision will create a two-level power structure overseeing military operations. In charge politically will be a
committee, led by NATO, which includes all states participating in enforcing the no-fly zone, while NATO alone
will be responsible for military action. Royal Canadian Air Force Lieutenant-General Charles Bouchard has been
appointed to command the NATO military mission. After the death of Muammar Gaddafi it was announced that
the NATO mission is going to end on 31
st
October 2011.
40
When the war began way back in March much of the debate was whether the UN Resolution 1973, which
authorized in paragraphs four and eight, all necessary measures to protect civilians in Libya, covered attacks on
Gaddafi and senior figures in the regime
41
Geneva Convention relative to the Treatment of Prisoners of War
http://www.ohchr.org/english/law/prisonerwar.htm ;Geneva Convention relative to the Protection of Civilian
Persons in Time of War http://www.ohchr.org/english/law/civilianpersons.htm ;
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) ; http://www.ohchr.org/english/law/protocol1.htm ;


conflict, even an illegal one. If one of the domestic parties to a non-international armed conflict
becomes an ally of a foreign power and commences fighting against its own people as NATO-
led rebels, these rebels could be under enough control from foreign powers so as to make the
foreign powers responsible for their acts. It makes no difference how much one dislikes the
particular prisoner of war. The resulting obligation for all parties to this treaty is that they
investigate arrest and punish the perpetrators of such crimes.
The mere fact that Gaddafi's convoy was first attacked by foreign air power and then by ground
forces that, according to media reports, included foreign troops is quite telling evidence.
Moreover, if as it looks, Gaddafi was fleeing Sirte, it would appear that he was attacked not as
a threat to any civilians in Libya, the remit of the use of force provided by the UN Security
Council resolution, but either as part of an indiscriminate attack or one aimed at killing people
fleeing from an armed conflict. In either case, it would be a use of force against the political
independence and territorial integrity of Libya, especially given the fact that the NATO-led
rebels had expressly stated they do not form a new government of Libya. Such an attack, as
had been going on for months, constitutes the crime of aggression
42
. Such an attack, outside the
remit of the mandate of the UN Security Council, which itself is bound by international law,
also constitutes a serious violation of one of the most fundamental principles of international
law prohibiting the use of force.
International human rights law applies as well in this incident. This law applies during wartime
or peacetime. It imposes a higher standard than in an armed conflict, limiting lawful force to
what is absolutely necessary to achieve a lawful goal. In this case, the use of air power and

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Non-International Armed Conflicts (Protocol II) ; http://www.ohchr.org/english/law/protocol2.htm
42
Months of acts of aggression culminating in an extrajudicial execution sends a message to other countries, and
even non-state actors, who find the US or any of its NATO allies to be a foe is that one must kill or be killed. This
is the rule of the jungle, not of international law. Perhaps by his death, Muammar Gaddafi will ultimately haunt
his foes longer than he ever could in life.


then anti-aircraft guns on land-based persons a trademark of the NATO-led rebels
throughout the armed conflict would very likely constitute excessive force in violation of
the right to life. In any event, the summary execution of a prisoner would clearly violate the
right to life. If the rule of international law were respected, the offending states would be
required to return the situation to that which existed before their violation began, which is
impossible now that Gaddafi has been killed
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.
Policy-makers will rejoice that Gaddafi is dead as it vindicates the theory of quick and easy
liberal wars. Yet if he has been killed by bombs flown by Nato airplanes it finally removes the
illusion that this is a Libyan revolution. Even if he wasn't it is fairly clear that NATO
reconnaissance led the Libyan rebels to him. The purpose of going to war was to protect the
population of Libya. Was the killing of a deposed leader legitimate within that framework
seems quite possible for me. NATO troops were not the ultimate armed force to capture and
subsequently kill Gadaffi
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, but the rebel movement, with essential lethal backing from NATO.
Several African leaders, such as President J acob Zuma of South Africa, have voiced their
concerns that Gaddafi should not have been killed, but captured and tried at the International
Criminal Court (ICC)
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.
CONCLUSION
The above explained scenarios are significant because the International law is theoretically
horizontal, but when there is a VETO power existing in the Security Council and with

43
In killing Gaddafi, the US may have won short termbragging rights as victor in a minor battle against yet
another disabled foe, but in the long termthe US may have further damaged its global relationships and influence.
44
Libyas chief forensic pathologist confirmed in an autopsy that Gaddafi was killed by a single shot to the head.
A previous Legal Frontiers entry explored the question of whether Muammar Gadaffi was a legitimate military
target.
45
There indeed was a warrant of arrest against Gaddafi and those who found him should have
arrested him and handed him to the ICC. The South African President does make a valid point:
although many may be celebrating the demise of Gadaffi, it may have been a missed
opportunity for true justice and the exhibition of the rule of law in Libya, which would have set
a good precedent for other nations.


incidents which take place in the UN the horizontal system has been often disturbed specially
by incidents concerned with war. When it comes to exceptions like Referendum in a country
even if it is domestic law, it is people who make the law for themselves and it falls to the
category of horizontal method been different from the vertical system. Therefore it could be
said that the statements like Casseses is highly arguable in many views.


By:- Jayani De Silva
LL.B. (Hons) (Colombo)