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Public International Law LAWS3009 Aneesa Ravat

1. TOPIC TWO Discuss the international law principles of the use of force with regard to the intervention by the United Nations (UN) and the North Atlantic Treaty Organization (NATO) in Libya. In your assignment, be sure to engage the legal principles and arguments relating to the use of force. Historical Context Muammar al- Qaddafi seized control of the Libyan government on the 1 September 1969 in a military coup deposing King Idrs.1 Qaddafi was named commander in chief of the armed forces and chairman of Libya's new governing body, the Revolutionary Command Council.2 Qaddafis involvement with major terrorist groups and Arab extremists resulted in the breakdown of diplomatic relations between the West and Libya which ultimately resulted in the 1986 bombings of several Libyan sites by US warplanes.3 Sanctions according to Security Council Resolutions 731,4 7485 and 8836 were placed against Libya by the UN after the purported involvement in the Lockerbie attacks, the sanctions was an attempt to eliminate international terrorism and uphold international peace. The impact of the sanctions placed on Libya resulted in Qaddafi handing over the alleged perpetrators to international authorities as well as ceasing its unconventional weapons program.7 Sanctions against Libya were lifted in 2003.8 After this period Qaddafi can be said to have improved international relations and had rejoined the global community and was elected as the chairman of the AU.9 Currently diplomatic relations between the UN and Qaddafi have deteriorated substantially following the popular uprising in Benghazi as well the diminishing of international support as most member states call for the Libyan leader to step down. This essay aims to establish the legal principles behind the use of force and plans to discuss the mandate given to NATO by the UN and whether this mandate was exceeded by NATO
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<http://www.biography.com/articles/Muammar-al-Qaddafi-39014?part=0> Ibid 3 Ibid 4 UN Security Council, Resolution 731 (1992) Adopted by the Security Council at its 3033rd meeting, on 21 January 1992, 21 January 1992, S/RES/731 (1992), available at: http://www.unhcr.org 5 UN Security Council, Resolution 748 (1992) Adopted by the Security Council at its 30363rd meeting, on 21 January 1992, 21 January 1992, S/RES/748 (1992), available at: http://www.unhcr.org 6 UN Security Council, Resolution 883 (1993) Adopted by the Security Council at its 3312th meeting, on 11 November 1993, 11 November 1993, S/RES/883 (1993), available at: http://www.unhcr.org/refworld/docid/3b00f1617.html 7 <http://www.biography.com/articles/Muammar-al-Qaddafi-39014?part=0> 8 ibid 9 ibid

Introduction setting out applicable international law principles The United Nations (UN) role as a peace keeping body and the use of force The UN was envisaged to save succeeding generations from the scourge of war10 and its Charter formed the foundation of its main aim of maintaining peace and security.11 The Security Council is charged with the responsibility of achieving this aim and therefore has the power under Chapters VI, VII, and VIII to adopt a range of methods. Armed conflict between states and between the state and its peoples threatens the UNs aim of peace and so the UN created laws addressing this. The law of war or the law of armed conflict is governed by the Geneva Conventions and its two additional protocols12 and the UN is bound by the standards set out in these conventions13 Armed conflict can be divided into jus ad bellum(the law towards war) and jus in bello(the law in war).14As a general rule the use of force is prohibited under Article 2(4)15 but where there is a threat to peace Article 3916 empowers the Security Council to decide on what measures can be taken to restore peace and these measures can include the use of force. The UN Charter does not have a definition for peacekeeping operations but instead rests it on the ideal set out in Article 1 which is: to maintain international peace and security and to that end to take effective collective measures for the prevention and removal of threats to peace17 Where a state deploys armed forces to attack large numbers of its own citizens then two possible consequences could occur firstly the victims could use force to defend themselves or secondly an armed humanitarian intervention can be initiated which is intervention on behalf of the victims where a mandate would be given to attack the defense force of a rogue regime. Armed Humanitarian intervention can be said to be an advancement of human rights where peaceful means have proved to be futile however special consideration should be made to ensure that the use of force be used as the

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UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, available at: http://www.unhcr.org/refworld/docid/484559592.html 11 Ibid 12 Geneva Convention (1864), (1906), (1929) and (1949) 13 This is according to the Secretary Generals Bulletin on the observance by United Nations Forces of International Humanitarian Law 6 August 1999 (ST/ SGB/1999/13) 14 Orend, Brian, "War", The Stanford Encyclopedia of Philosophy, 2008, Edward N. Zalta 15 United Nations Charter 16 ibid 17 ibid

last resort. Armed humanitarian intervention can be said to be peace enforcement.18 Such peace enforcement does not require the consent of the host party as long as there is Security Council authorization. In order to pass a Security Council Resolution there has to be a minimum of nine votes concurring out of a possible fifteen with the provision that none of the five permanent members veto the decision.19 The Security Council in its resolution can provide a mandate to allow for peace enforcement where the use of force would otherwise have been prohibited20. Special consideration needs to be taken to ensure that the use of force is exacted in a precise, proportional and appropriate manner and that the minimum force necessary is used21 and the Mandate has to be clear and ascertainable. As long as the basic principles are met the mandate can be nuanced according to the facts and so therefore mandates will differ for the situations it is required for. Jus ad bellum is the principle that guides Article 222 as well as Chapter VII23 and can be used to elaborate on the concept of armed humanitarian intervention. UN mandate on the intervention in the Nation State of Libya In order to assess the NATO intervention into Libya there are 3 questions that need to be kept in mind. Firstly does the mandate comply with international law, secondly if the mandate does indeed comply with international law can it be argued beyond reasonable doubt that NATO should intervene bearing in mind that the mandate allowed for the use of force, and thirdly can it be said that NATO had implemented the mandate as instructed to by the 1973 resolution or had NATO exceeded its mandate? The popular uprising in February of this year resulted in the violent backlash against opponents of the Qaddafi regime by pro Qaddafi members. This backlash was cited as gross human rights violations and according to estimates approximately 300, 000 Libyan people have fled the country and 2,000 to 8,000

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UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, available at: http://www.unhcr.org/refworld/docid/484559592.html 19 G king International law and the use of force (2005) Strategy 20 K Peters International Law and the Use of force (2004) QUTLAWJJL 1, Queensland University of Technology Law and Justice Journal 185 21 UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, available at: http://www.unhcr.org/refworld/docid/484559592.html 22 United Nations Charter 23 Ibid

Libyan nationals have either been killed or injured.24 These facts have been construed to be a threat to peace as envisioned in article 39.25The UN as a peacekeeping body in an effort to curve human rights violations and the loss of civilian life adopted Resolution 1970.26 In summary the sanctions of this resolution are as follows; it referred the situation in Libya to the International Criminal Court, it also imposed an arms embargo on the country, as well as a travel ban on 16 named individuals of interest, and an asset freeze on 6 members of the Qaddafi family.27 The resolution can be said to be employing peaceful methods in an attempt to resolve conflict. However there was non-compliance of the resolution by Qaddafi and he failed to honor any ceasefire declarations.28 Due to the fact that certain member states felt that a harder stance needed to be taken in order to fulfill the aims of the UN, Resolution 1973 was passed. Resolution 197329 increases the severity of the sanctions placed on Libya by introducing a no- fly zone30 as well as an expanded asset freeze31, increased travel restrictions32 as well as an enforcement of the arms embargo.33 The most notable point taken from this resolution is under paragraph 4 under the heading of protection of civilians which allows for all necessary measures to be taken to meet its objective of protecting citizens which is an invocation of Article 4234 and allows for the use of force following the norm that there is a responsibility to protect(R2P)35. The UN mandates allowance of the use of force was met with both opposition as well as support from members attending the 6498th Meeting. Those in favor of the resolution provided the following justification:

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K Queresi Legal Grounds for intervention in libya (2011) The Law Gazette United Nations Charter 26 st UN Security Council, Resolution 1970 (2011) Adopted by the Security Council at its 6491 meeting, on 26 February 2011, 26 February 2011, S/RES/1970 (2011) available at: http://www.icc-cpi.int/NR/rdonlyres/2B57BBA207D9-4C35-B45E-EED275080E87/0/N1124558.pdf 27 K Queresi Legal Grounds for intervention in libya (2011) The Law Gazette 28 Ibid 29 th UN Security Council, Resolution 1973 (2011) Adopted by the Security Council at its 6498 meeting, on 17 March 2011, 17 March 2011, S/RES/1973 (2011) available at: http://www.un.org/News/Press?docs?2011?sc10200;doc.htm 30 ibid 31 ibid 32 ibid 33 ibid 34 Ibid and UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, available at: http://www.unhcr.org/refworld/docid/484559592.html 35 R Falk Preliminary Libyan Scorecard: Acting Beyond the UN mandate Citizen Pilgrimage available at: http://richardfalk.wordpress.com/2011/09/06/preliminary-libyan-scorecard-acting-beyond-the-un-mandate/

Mark Lyall Grant representing the United Kingdom states that the Libyan regime had lost legitimacy and had pledged members of NATO to act in support of the resolution.36 Nawaf Salam of Lebanon concurred with the United Kingdom that the Libyan regime lacked legitimacy and went to lengths to explain that the resolution was not a proposal for foreign occupation and the use of force was to act as a deterrent. Lebanon expressed full support for the countrys sovereignty37 Susan Rice of the United States stated that the resolutions main aim was to protect civilians and that Libyas future should be decided freely by the Libyan people.38 These sentiments were expressed similarly by Bosnia, Columbia, Portugal and South Africa.39 The following can be deduced from the above; firstly that the countries voting in favor of the resolution and ultimately the use of force. They have placed an important emphasis on the lack of legitimacy of the Qaddafi regime, secondly important emphasis was placed on the protection of human rights as well as the responsibility that UN member states have to limit civilian causalities and to provide humanitarian assistance. Also many of the countries who voted for the resolution had done so as the Resolution was seen as the answer to the Arab Leagues call for strong measure to stop the violence in Libya.40 However member states who had absented have agreed that there was a need to stop the violence in Libya but they were apprehensive on the use of force to achieve this. They have revealed flaws in the resolution: Peter Wittig representing Germany had stated that the risks involved were great and that the high likelihood of loss of life should not be underestimated. He had also illustrated the possibility that the implementation of this resolution could result in military conflict drawing over a wider region.41

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UN Security Council, Resolution 1973 (2011) Adopted by the Security Council at its 6498 meeting, on 17 March 2011, 17 March 2011, S/RES/1973 (2011) available at: http://www.un.org/News/Press?docs?2011?sc10200;doc.htm 37 Ibid 38 ibid 39 ibid 40 <http:www.guardian.co.uk/world/2011/mar/17/un-security-council- resolution> 41 th UN Security Council, Resolution 1973 (2011) Adopted by the Security Council at its 6498 meeting, on 17 March 2011, 17 March 2011, S/RES/1973 (2011) available at: http://www.un.org/News/Press?docs?2011?sc10200;doc.htm

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Manjeev Singh Puri of India has drawn attention to the fact that there is, on a whole little clear information and in particular there is a lack of certainty regarding who is going to enforce these measures.42 Marla Luzia Riberio Viotti of Brazil has stated that the Arab Leagues call for stronger measures extended so far as to encompass a no- fly zone but that the resolution contemplated measures that went beyond that call. Brazil holds that the use of force would not realize the objective of the immediate end to violence and the protection of citizens and that such a resolution would be causing more harm than good 43 Vitaly Churkin representing the Russian Federation has expressed that many questions posed to the Security Council has gone unanswered such as how would the resolution be enforce and by whom and what limits would be placed on the use of force. The Russian Federation also cautioned against unpredicted consequences and further destabilization.44 U. Joy Ogwu of Nigeria had expressed that essentially the resolution allowed for foreign occupation and that such foreign occupation would not ensure peace45 Li Baodong representing China who is the current Security Council President and who had notably absented from the vote stated that the crisis should be ended by utilizing peaceful means and that China would always be against the use of force. China also felt that questions posed were not answered but had not vetoed the decision due to requests by the Arab League and the AU46 It can be argued then that due to these flaws the resolution had failed to meet its peacekeeping aims of exacting out the use of force in a precise, proportional and appropriate manner 47 and the Mandate has to be clear and ascertainable. Furthermore considering the allegedly high civilian casualties48 that have been recorded it can be argued that NATO had failed to use minimal force. Arguably this would make the mandate unachievable and inconsistent with the UN charter and so therefore void. It can also be

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ibid ibid 44 ibid 45 ibid 46 ibid 47 Ibid and UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, available at: http://www.unhcr.org/refworld/docid/484559592.html 48 Conjecture since records of civilian deaths cannot to this date be verified

argued that the UN should always attempt to end conflict by utilizing peaceful methods such as continuing sanctions and overseeing peace talks. Another consideration that needs to be taken regarding this resolution is the fact that the use of force in another sovereign state overrides article 2(4) and 2(7) which states that countries can not intervene in the domestic affairs, territorial integrity or political independence of another state.49 The question then is what would take precedence; the sovereignty of the country or humanitarian intervention. The treaty of Westphalia50 upheld the right of sovereign states to act freely within their own borders and this is also upheld in the UN charter. It can be argued that if one were to purport the elimination of sovereign rule in favor of humanitarian intervention then it would open a causeway for states to involve itself in the sovereign matters of other states by using humanitarian intervention as a front for alterior motives or even merely to assert preconceived moral standards on non obliging states and this could prove disastrous for third world countries who would then have to conform to Western Ideals and norms51 A practical example that occurred in the past that could have bearing on the current situation in Libya is NATOs military intervention in Kosovo. NATOs intervention into Kosovo has been hailed as a success for bringing about humanitarian assistance to the people of Kosovo for the bold move of using military intervention as the tool to eliminate the threat of ethnic cleansing.52 It becomes important to note that NATO had acted without authorization by the Security Council53 and this could set a dangerous precedent because NATOs previous non adherence to the UN Security Council could mean that they could possibly not adhere to limitations of this resolution or exceed the bounds of the mandate. In a discussion on whether NATO has exceeded its mandate the following has been mentioned that the resolution has been argued to be a front to effect regime change.54 According to statements made by Obama, Cameron and Sarkozy in a published letter they said the following- Colonel Gaddafi must go and go for good- the following sentiments seem to be a push for regime change and as such it exceeds the mandate given by the resolution. 55 NATOs stance has also been criticized as being paternalistic and

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United Nations Charter Treaty of Westphalia (1948) 51 <http://www.economist.com/node/11376531/print> 52 J Solana NATOs success in Kosovo (1999) vol 76 No. 6 53 B Sharma NATO, the UN and the Use of force: Legal Aspects (1999) EJIL 10 54 K Queresi Legal Grounds for intervention in libya (2011) The Law Gazette 55 <http://www. gaurdian.co.uk/commentisfree/2011/mar/23/nothing-moral-nato-inervention>

condescending as it essentially allows for Western countries to police other nation states. 56It can also be argued that NATOs involvement in the intervention was in the efforts of keeping oil flows steady and not for the Libyan people57 which further exemplifies the fact that the mandate is not being achieved by NATO. NATO is also criticized for unilaterally expanding and shifting the mission to help the rebels and to proceed in efforts to dismantle the Qaddafi regime58 which is another instance of regime change. There also seems to be discourse as to who is charge of the intervention mission59 as well as a criticism that NATO is unable to meet the objectives of the mandate in so far that it is unable to limit civilian casualties or bring Qaddafis forces into submission and this argument is upheld by the 90 day extension period afforded to NATO to meet the mandate.60

In concluding whether the UN mandate was in accordance with International law it can be said that the use of force in the 1973 resolution overrode the UN Charter principle of sovereignty. The overriding of such a principle would have been acceptable if it could be argued that the use of force was ascertained with sufficient precision and that imperative questions on limitations of the use of force as well as how and when they should be implemented were answered. The resolution although having an ideal that purports the UN Charter, that of protecting civilian life, it does not distance itself from the issues underpinning the resolution as a front for regime change and natural resource control and the UN does not take measures to distance itself from these sentiments. Considering that intervention has not as yet resulted in any tangible success and that the intervention period needed to be extended by 90 days leads one to believe that in this instance the use of force would then not outweigh sovereignty merely on the basis that the possibility of success is low. Also taking into consideration that NATO has been said to have exceeded its mandate in the Kosovo region and now arguably in the Libyan crisis demonstrates that the use of force if it were to be implemented needs to have more stringent guidelines that should be followed in order for the mandate to be adhered to. Ultimately it can be said that peaceful means should at all times be implemented to resolve conflict over the use of force Bibliography
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R Falk Preliminary Libyan Scorecard: Acting Beyond the UN mandate Citizen Pilgrimage available at: http://richardfalk.wordpress.com/2011/09/06/preliminary-libyan-scorecard-acting-beyond-the-un-mandate/ 57 Ibid 58 ibid 59 R Falk Preliminary Libyan Scorecard: Acting Beyond the UN mandate Citizen Pilgrimage available at: http://richardfalk.wordpress.com/2011/09/06/preliminary-libyan-scorecard-acting-beyond-the-un-mandate/ 60 <http:www.nato.int/cps/en/natolive/topics_71652.htm>

Security Council Resolutions Websites: <http://www.biography.com/articles/Muammar-al-Qaddafi-39014?part=0> <http://www.economist.com/node/11376531/print> <http://www. gaurdian.co.uk/commentisfree/2011/mar/23/nothing-moral-nato-inervention> <http:www.nato.int/cps/en/natolive/topics_71652.htm> UN Security Council, Resolution 731 (1992) Adopted by the Security Council at its 3033rd meeting, on 21 January 1992, 21 January 1992, S/RES/731 (1992), available at: http://www.unhcr.org UN Security Council, Resolution 748 (1992) Adopted by the Security Council at its 30363rd meeting, on 21 January 1992, 21 January 1992, S/RES/748 (1992), available at: http://www.unhcr.org UN Security Council, Resolution 883 (1993) Adopted by the Security Council at its 3312th meeting, on 11 November 1993, 11 November 1993, S/RES/883 (1993), available at: http://www.unhcr.org/refworld/docid/3b00f1617.html UN Security Council, Resolution 1970 (2011) Adopted by the Security Council at its 6491st meeting, on 26 February 2011, 26 February 2011, S/RES/1970 (2011) available at: http://www.icccpi.int/NR/rdonlyres/2B57BBA2-07D9-4C35-B45E-EED275080E87/0/N1124558.pdf UN Security Council, Resolution 1973 (2011) Adopted by the Security Council at its 6498th meeting, on 17 March 2011, 17 March 2011, S/RES/1973 (2011) available at: http://www.un.org/News/Press?docs?2011?sc10200;doc.htm

Academic Articles: UN Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, March 2008, available at: http://www.unhcr.org/refworld/docid/484559592.html Orend, Brian, "War", The Stanford Encyclopedia of Philosophy, 2008, Edward N. Zalta G king International law and the use of force (2005) Strategy K Peters International Law and the Use of force (2004) QUTLAWJJL 1, Queensland University of Technology Law and Justice Journal 185 R Falk Preliminary Libyan Scorecard: Acting Beyond the UN mandate Citizen Pilgrimage available at: http://richardfalk.wordpress.com/2011/09/06/preliminary-libyan-scorecard-acting-beyond-theun-mandate/ J Solana NATOs success in Kosovo (1999) vol 76 No. 6 K Queresi Legal Grounds for intervention in Libya (2011) The Law Gazette B Sharma NATO, the UN and the Use of force: Legal Aspects (1999) EJIL 10

Geneva Convention (1864), (1906), (1929) and (1949) Secretary Generals Bulletin on the observance by United Nations Forces of International Humanitarian Law 6 August 1999 (ST/ SGB/1999/13) United Nations Charter Treaty of Westphalia (1948)