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Talking about a resolution – is intervention in Libya justified?

Professor Craig Barker

As hostilities continue in Libya, the world is waiting to see whether international intervention will help to resolve the conflict - and wondering what, exactly, a no-fly zone can hope to achieve.

Aside from the military challenges that lie ahead, the decision by UN member states to step into the Libyan crisis raises legal, moral and political issues - especially as action by the UN allies in Libya heralds a different approach by the international community to recent uprisings in Egypt, Tunisia, Bahrain, Saudi Arabia, Yemen and Syria.

Will Libyan leader Muammar Gaddafi prevail, or will victory go to the relatively ill-equipped and inexperienced so-called rebels? Some commentators predict a stalemate that could draw allied resources into a long, bloody and damaging war akin to those of Iraq and Afghanistan.

And what are the implications for other Arab states currently dealing with social unrest and popular uprisings? Why are UN allies responding militarily to the Libyan crisis but not to Saudi occupation in Bahrain?

Here, University of Sussex international law expert Professor Craig Barker, who is also head of the Sussex Law School, unravels some of the legal and political complexities of the Libyan crisis and its place in the so-called "Arab Spring" of popular uprisings.

How does the allies' decision to intervene in the affairs of Libya through military action differ from when the US, the UK and allies went into Iraq?

The key and crucial difference, from a legal perspective, is authorisation by the United Nations Security Council (UNSC).

At the end of the First Gulf War in 1991, which resulted in the liberation of Kuwait, the UNSC used its power to impose political and military restrictions on Iraq. Through Resolution 687, the UNSC was able to impose a no-fly zone around Iraq, together with some significant disarmament obligations, including the obligation to permit and assist weapons inspections. 

Saddam Hussein's regime repeatedly breached these obligations, which resulted in attacks by coalition forces in 1993 and again in 1998. However, the matter came to a head in 2002 when the UNSC passed Resolution 1441, which permitted Saddam one final opportunity to comply.

Most international lawyers agree that Resolution 1441 did not permit further military action against Iraq, which would have required another resolution authorising "all necessary means" to be used against Iraq.

France, Russia and China, as permanent members of the UNSC, made it clear that they would veto such a resolution, being three of the five permanent members able to use a veto to block a resolution.

The US and the UK (the remaining two permanent members of the UNSC), together with a coalition of like-minded states, decided not to push for a second resolution and undertook military action on the basis of the continuing breach of Resolution 687 and the authority to use force that had been given in the earlier Resolution 678 of November 1990.

The current situation in Libya differs in that the UNSC has explicitly authorised the use of "all necessary measures" to impose a no-fly zone and to protect civilians from the threat of attack. This is a very wide-ranging resolution that, at the very least, permits attacks on Libyan forces lined up against civilians and civilian targets.

In terms of legality, the UN Charter was drafted in 1945 to allow for collective security against threats to the peace, breaches of the peace and acts of aggression. While humanitarian intervention is not mentioned in the UN Charter, and may indeed not have been envisaged in 1945, it is clear that where there is a vote of at least 9 to 5 in the UNSC in favour of military action, and where the resolution is not vetoed by one of the permanent members, then such action is legal.

Thus, the general legality of the current action against Libya is not in doubt. It is worth noting at this stage that the Charter originally envisaged the creation of a UN standing army, but this has never materialized. It is generally accepted that in the absence of such an army, the UNSC can authorise member states working with it to undertake such military action.

It is also worth noting that Resolution 1973 specifically excludes the occupation of Libya by coalition forces.

What exactly does a no-fly zone entail? Does it include the right to attack Gaddafi forces on the ground?

A no-fly zone entails control by coalition land, sea and air forces of the Libyan airspace, particularly in relation to military aircraft.

The creation and enforcement of a no-fly zone, if it is to be effective, envisages the destruction of Libyan based anti-aircraft weaponry and other ordinance, including Libyan military aircraft.

However, Resolution 1973 goes well beyond merely the creation of a no-fly zone. By including the obligation to protect civilians from the threat of attack, the resolution authorises attacks on anything that threatens civilians on the ground. This might include military vehicles and weaponry but might also be extended to a range of targets, including supply lines, command centres, oil supply depots and military compounds. In theory it could be extended even further.

Does the UN resolution cover the alleged attacks on Gaddafi's compound?

This is where the precise wording of Resolution 1973 is open to some interpretation. On the one hand, it can be argued that Gaddafi himself is a threat to the security of civilians and should be the subject of direct attack. However, since regime change is excluded from the resolution, and by all of the major players, it is not surprising that the coalition forces are denying that they are targeting Gaddafi directly.

In relation to the attack on Gadaffi's compound in the Libyan capital, Tripoli, this has been justified as being directed against a command and control structure in the compound. If this is correct, then there is an arguable case for attacking the compound.

The real problem here is not so much the target of the attack but, rather, the location of the compound and the knowledge that it is populated by civilians and, therefore, the possibility of so-called "collateral damage" (death of civilians).

International humanitarian law (the law relating to the conduct of hostilities) requires that civilians are not the direct target of military attack. Where civilians are killed in attacks, it may be possible to justify this in terms of military necessity.

But this is a difficult concept to define and where there is knowledge of significant civilian presence at a target, then it would be sensible to be cautious. This may encourage Libya to use civilians as human shields. It is probably better to avoid such targets completely.

Could the imposition of a no-fly zone lead to a push for regime change in Libya?

Resolution 1973 specifically excludes occupation and, by implication, it also prohibits regime change. The stated objective of many of the coalition states is to support the Libyan rebels in their aim to remove Gaddafi from power. This would seem to be legitimate and legal, but the coalition forces themselves cannot bring about this regime change (as appears to have been the case in both Iraq and Afghanistan).

Could Gaddafi be held and tried by an international court, and what would be the grounds?

In Resolution 1970, the UNSC specifically called upon the International Criminal Court (ICC), based in The Hague, to begin investigating the conduct of the Libyan government in relation to the situation in Libya since 15 February 2011. This investigation began on 3 March and will look into the possible commission of crimes against humanity.

Crimes against humanity involve a range of offences, including murder; extermination; torture; rape; political, racial, or religious persecution and other inhumane acts where they are committed on a systematic and widespread basis and are sufficiently grave to be prosecuted before the ICC.

It is possible that Gaddafi could also be indicted by the Special Court for Sierra Leone (SCSL) - not in relation to the present conflict but for his alleged support for Charles Taylor, former President of Liberia whose own trial at the SCSL ended two weeks ago and for which a verdict is expected in the summer. This seems less likely in light of the current situation and the UNSC referral of the current conflict to the ICC.

Any prosecutions are likely to take a number of years and their commencement will depend on the apprehension of Gaddafi, and other accused persons, who will be entitled to the presumption of innocence in any trial proceedings.

Why hasn't the international community taken action against other violent repression of popular uprisings, such as the Saudi intervention in Bahrain or attacks on civilians in Yemen?

The line between politics and law in relation to the authorisation of the use of force is a thin one.

Given the geo-political nature of the UNSC, it is difficult to avoid the accusations of partiality and selective intervention. To this extent, one would hope that similar measures are put in place to deal with Bahrain and Yemen, not to mention Mayanmar and Zimbabwe, to give two recent examples of similar situations in which domestic opposition to incumbent governments have been brutally put down.

The question is whether the international community has the will to engage in more such interventions. The massacre in Yemen on 18 March should certainly have caused questions to be asked of all of the members of the UNSC and more widely.

With regard specifically to the Saudi intervention in Bahrain, in addition to the West's close links with Saudi Arabia (which would make intervention unlikely), it is certainly the case that the leaders of Bahrain invited the Saudi military to get involved. This is entirely permissible under international law. Given the role of the Gulf Cooperation Council, in which Saudi Arabia is the dominant player and which includes Bahrain in its membership, in bringing about Resolution 1973, it seems unlikely that a resolution will follow against Saudi Arabia or Bahrain.

Does the Arab League object on political or legal grounds when it protests about allies overstepping the mark in Libya?

The Arab League has found itself in a difficult position. It is seeking to argue that it was not in favour of the level of attacks currently taking place. However, given the breadth of Resolution 1973, it seems that the legal argument against such attacks is limited, at best. Nevertheless, the Arab League is specifically mentioned in Resolution 1973 and its position is politically important to the coalition states, who should be careful to ensure that the support of the Arab League remains in place in so far as that is possible.

What, if any, will be the legal repercussions of UN/allied action (so far) in Libya?

There will be no direct legal consequences for the attacks because they are authorised by Resolution 1973. However, the coalition forces remain bound by the rules of international humanitarian law, particularly in relation to the targeting of civilians. It is important for the coalition forces to continue to observe the law as much as is possible in relation to the ongoing attacks.

Could Gaddafi be curtailed by actions other than military ones - i.e. could sanctions, freezing bank assets and an arms embargo

The UN Charter envisages, in Article 41, the possibility of non-forcible measures being taken against a state that breaches the peace, threatens the peace or commits an act of aggression. Many of these measures have already been put in place against the Gaddafi regime, including an arms embargo imposed by resolution 1970 and asset-freezing measures imposed by Resolution 1973 itself.

However, these measures take time to work. Although these specific measures are targeted, other sanctions, for the most part, cause more harm to the civilian population of target countries, than to the governments of such countries. A combination of sanctions and military action is being used in the present situation. Ultimately, the view was taken that the threat to the civilian population, particularly in Benghazi, required immediate military action under the authority of the UN Charter.

Notes for Editors


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Last updated: Friday, 25 March 2011