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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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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-

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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

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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

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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

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(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

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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

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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

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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.,

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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

on 23 June 2012,

http://mmu.academia.edu/LawrenceEmeka/Papers/577779/The_Libya_Humanitarian_Intervention_Is_it_Lawful

_in_International_Law), p. 2 38

Karin Von Hippel, “The Non-Intervention Norm Prevails: An Analysis of The Western Sahara”, in The

Journal of Modern African Studies, Vol. 33, No. 1 (1995), pp. 67 – 81; see also Ahmad M. Ajaj, “Humanitarian

Intervention: Second Reading of the Charter of the United Nations”, in Arab Law Quarterly, Vol. 7, No. 4

(1993), pp. 215 – 236; Ramses Amer, “The United Nations‟ Reactions to Foreign Military Interventions”, in

Journal of Peace Research, Vol. 31, No. 4 (1994), pp. 425 – 444; Bikhu Parekh, “Rethinking Humanitarian

Intervention”, in International Political Science Review, Vol. 18, No. 1 (1997), pp. 49 – 69 39

A. Hall, Treatise on International Law, (Oxford: The Clarendon Press, 1924), p. 302 40

Michael Wood, “The Principle of Non-intervention in Contemporary International Law - Non-interference In

a State‟s Affairs Used to be A Rule of International Law: Is it Still?” Speech Delivered at Chatham House

International Law Discussion Group on 28 February 2007

13

Nicaragua (Merits) Case,41

the I.C.J. held that the provision of material and military support

by the USA to contra rebels seeking to overthrow the government of Nicaragua amounted to

unlawful intervention.

Non-intervention in the internal affairs of sovereign states is a fundamental doctrine of

international law42

which is closely linked to the security of states and the peace and stability

of the international order43

. The doctrine means that states have no right unilaterally to

interfere by force, the threat of force, or other coercive means in the internal affairs of other

states. Foreign governments also “cannot seek to expand influence by a direct appeal to

citizens of another country by occupation or by using home territory as a base for opposing

another regime”44

. The doctrine of non-intervention has been described as a “no trespassing

sign protecting the exclusive territorial domain of states”45

, and implies that states should

41

I.C.J. Reports, 1986, p. 14 at para. 242. 42

The proscription of unilateral intervention in UN member states is fairly settled in international law. See

article 2(4) and article 2 (7) of the UN Charter 1945; UNGA Res. 2131 (XX) 1965; UNGA Res. 2625 (XXV)

1970; the Corfu Channel Case (UK v. Albania), I.C.J. Reports 1949; Nicaragua v. United States of America,

I.C.J. Reports 1986, p. 14; Democratic Republic of Congo v Uganda (ICJ judgment, delivered on 19/12/05). The

International Commission on Intervention and State Sovereignty (ICISS) affirmed the importance of state

sovereignty when it suggested that it could be overridden only in exceptionally serious circumstances, see Adam

Roberts, Intervention: One Step Forward in the Search for the Impossible”, in The International Journal of

Human Rights, Vol. 7, No. 3, ( 2003), p. 143. 43

See Herman Kraft, “The Principle of Non-Intervention: Evolution and Challenges for the Asia Pacific

Region”, in David Dickens and Guy-Wilson Roberts (eds.), Non-Intervention and State Sovereignty in Asia

Pacific, (Wellington: Centre for Strategic Studies Wellington, 2000), pp. 23 – 41; see also Anthony Smith,

“Intervention and East Timor: A New Zealand Perspective”, in David Dickens and Guy-Wilson Roberts (eds.),

Non-Intervention and State Sovereignty in Asia Pacific, (Wellington: Centre for Strategic Studies Wellington,

2000), pp. 75 – 85; Nicholas Tsagouras, “Humanitarian Intervention After Kosovo and Legal Discourse: Self-

Deception or Self-Consciousness?” in Leiden Journal of International Law, Vol. 13, (2000), p. 11 – 32: 15; Joel

V. Valenton, “Re-examining the Principle of Non-Intervention in the Region: A Philippine Perspective”, in

David Dickens and Guy-Wilson Roberts (eds.), Non-Intervention and State Sovereignty in Asia Pacific,

(Wellington: Centre for Strategic Studies Wellington, 2000), pp. 97 – 103: 98 44

John Funston, “ASEAN and the Principles of Non-Intervention: Practice and Prospects”, in David Dickens

and Guy-Wilson Roberts (eds.), Non-Intervention and State Sovereignty in Asia Pacific, (Wellington: Centre for

Strategic Studies Wellington, 2000),pp. 9 – 22: 9 45

Mohammed Ayoob, “Humanitarian Intervention and State Sovereignty”, in The International Journal of

Human Rights, Vol. 6, No. 1, (2002), p. 81 – 102: 83

14

attempt to influence one another through diplomatic means of armed or coercive

intervention46

.

Although intervention in the affairs of states is normally forbidden in international law, the

international community may undertake collective intervention in a sovereign state on

humanitarian grounds. Collective interventions are those undertaken by the international

community under the auspices of the United Nations. Humanitarian intervention has been

defined as the use of force in order to protect the people of another state from treatment

which is so arbitrary and persistently abusive as to exceed the limits of authority within

which a sovereign is presumed to act with reason and justice47

. It has been defined as:

“a short-term use of force to exclusively re-establish respect for human rights,

without affecting the political independence or the territorial integrity of the state

in whose territory the abuse of basic human rights is carried out on such a

massive scale or to an extent which shocks the conscience of mankind”48

State practice, scholarly and international opinion largely converge on the point that where

the government of a state commits acts of cruelty and persecution against its own people in

such a way as “to shock the conscience of mankind,” the international community will be

46

K. J. Holsti, International Politics: A Framework for Analysis, (Englewood Cliffs: Prentice Hall International,

1988), p. 81 47

Stowell, “Intervention in International Law”, (1921), pp. 51 - 53 cited in L. C. Green, “Enforcement of

Humanitarian International Humanitarian Law and Threats to National Sovereignty”, in Journal of Conflict and

Security Law, Vol. 8, No. 1, (2003), pp. 101 - 131 48

Ahmad M. Ajaj, “Humanitarian Intervention: Second Reading of the Charter of the United Nations”, op. cit.,

p. 217

15

entitled to undertake a collective intervention in order to provide relief to the suffering

people49

. As Maogoto contends,

“Current consensus indicates that a state‟s violation of its citizens‟ most basic

rights may permit intervention into its affairs. Indeed international law today

recognises, as a matter of practice, the legitimacy of collective forcible

humanitarian intervention … for the purpose of remedying serious human rights

violations”50

Where a government commits acts of cruelty as above indicated, that government is deemed

to have lost its sovereign protection against non-intervention and the country‟s inhabitants are

entitled to external assistance. As Grotius remarked centuries ago, rulers who provoke their

countries‟ citizens to despair and resistance by unprecedented cruelties have abandoned all

the laws of nature, have lost the rights of independent sovereigns, and can no longer claim the

privilege of the law of nations51

. Similarly, Teson observed that,

“a major purpose of states and governments is to protect and secure human rights,

that is, rights that all persons have by virtue of personhood alone. Governments

and others in power who seriously violate those rights undermine the one reason

49

See Lassa Oppenheim, International Law: A Treatise, (London: Longmans, Green and Company, 1955), p.

312; Edwin Montefiore Borchard, The Diplomatic Protection of Citizens Abroad, (New York, Banks Law

Publishing Company, 1915), p. 114; MichaelWalzer, Just and Unjust Wars: A Moral Argument With Historical

Illustrations, (New York: Basic Books, 1977), p. 101, 107 50

Jackson N. Maogoto, “Westphalian Sovereignty in the Shadow of International Justice? A Fresh Coat of Paint

for a Tainted Concept” in Trudy Jakobsen, Charles Sampford, and Ramesh Thakur (eds.), Re-envisioning

Sovereignty: The End of Westphalia?, (Aldershot: Ashgate Publishing Limited, 2008), p. 220 51

See 51

Lawrence E. Modeme, “The Libya Humanitarian Intervention: Is It Lawful in International Law”, op.

cit., p. 4

16

that justifies their political power, and thus should not be protected by

international law”52

.

The recognised cruelties that shock the conscience of mankind and which therefore warrant

collective humanitarian intervention are genocide, ethnic cleansing, and crimes against

humanity53

Humanitarian intervention in Libya would be justified if that country‟s

government were committing any of these crimes prior to the intervention. Whether this was

the case or not will be considered in the subsequent sections of this paper.

International Community Initial Reaction to the Libyan Crisis

Revisiting the Libyan crisis, from the early stages of the conflict, the violent reaction of the

Gaddafi regime against protesters and insurgents was harshly criticized by the international

community. In February 2011, the UN Secretary General, Ban Ki-moon expressed his

outrage in the in the light of press accounts that reported that the Libyan authorities had

ordered the shooting of protesters from war planes and helicopters. Indeed a press release

from the Secretary General Office dated 22 February 201154

read inter alia, “Such attacks

against civilians, if confirmed, would constitute a serious violation of international

humanitarian law and would be condemned by the Secretary-General in the strongest terms”.

He also referred to “allegations of indiscriminate killings, arbitrary arrests, shooting of

peaceful demonstrators, the detention and torture of the opposition and the use of foreign

52

Fernando Teson, “The Liberal Case for Humanitarian Intervention”, in J. L. Holzgrefe and Robert O.

Keohane (eds.), Humanitarian Intervention: Ethical, Legal and Political Dilemmas, (Cambridge: Cambridge

University Press, 2003), pp. 93 – 129: 93 53

See International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect,

(Ottawa: International Development Research Centre, 2001), p.32; see also World Summit Outcome (Final

Document) (2005) available at

http://www.un.org/summit2005/. 54

See UN Press Release, Secretary General, Outraged Secretary General Calls for Immediate End to Violence

in Libya of 22 February 2011

17

mercenaries,” based on reports that he found to be “credible and consistent”55

. The UN

Security Council issued a press release in which its members expressed grave concerns at the

situation in Libya, condemned the violence and use of force against civilians, and deplored

the repression of peaceful demonstrators.

In the same month, the UN High Commissioner for Human Rights condemned the excessive

use of lethal force against peaceful protesters and expressed her concern in the light of reports

to the effect that arbitrary killings, arrests and detentions, as well as torture and enforced

disappearances. Other human rights experts joined in, raising their concern that the use of

lethal force against peaceful protesters violated human rights56

. The reported use of machine

guns, snipers and military planes against demonstrators resulted in the High Commissioner

for Human Rights to demand an immediate cessation of grave human rights violations and

called for an independent international investigation. Other human rights experts warned that

the reported violations could amount to crimes against humanity and called to what they

termed as a “massacre”57

. On 25th

February 2011, the UN Human Rights Council strongly

condemned “gross and systemic human rights violations committed in Libya, including

indiscriminate armed attacks against civilians, extrajudicial killings, arbitrary arrests,

detention and torture of peaceful demonstrators, some of which may also amount to crimes

against humanity”58

. It established an independent international commission of inquiry to

55

See UN Press Release, “Secretary General Tells Security Council Time to Consider Concrete Action in Libya,

As Loss of Time Means More Loss of Lives, 25 February 2011 56

See Press Release, UN High Commissioner for Human Rights, “Bahrain/Libya: UN Experts Urge Authorities

to Guarantee Right to Protest Without Fear of Being Injured or Killed”, 18 February 2011. 57

See Press Release, UN High Commissioner for Human Rights, Libya: “Stop the Massacre” – Un Experts, (22

February 2011) 58

See Human Rights Council Resolution S-15/1, Report of the Human Rights Council, 15th

Special Session, (

25th

February 2011)

18

investigate the alleged human rights violations and recommended to the Human Rights

Council. The UN General Assembly did so on 1 March 201159

.

The international community also echoed its concern through regional organizations. The

Council of the European Union condemned repression against demonstrators in Libya and

deplored the violence and death of civilians. The Council of the League of Arab States held

an emergency meeting and decided to suspend Libya‟s membership. On the same day, the

General Secretariat of the Organization of the Islamic Conference condemned the excessive

use of force against civilians in Libya and called the on-going coercion and oppression a

“humanitarian catastrophe”60

. The Committee of Permanent Representatives to Organization

of the Islamic Conference endorsed this statement. The Peace and Security Council of the

African Union also strongly condemned the “indiscriminate and excessive use of force and

lethal weapons against peaceful protesters, in violation of human rights and international

Humanitarian Law”61

. Furthermore, the Council called the aspirations of the Libyan people

for democracy and political reform “legitimate”62

. The African Commission on Human and

People‟s Rights condemned the violence and use of force against civilians and suppression of

peaceful demonstrators, and called on the Libyan government to immediately end the

violence and to ensure the respect for human rights in Libya63

. Others, including the Gulf

Cooperation Council and the Foreign Minister of Luxembourg, went as far as to call the

action of the Gaddafi regime “genocide” against its own people.

59

See General Assembly Resolution 65/265, (1 March 2011) 60

See Press Release, Organization of the Islamic Conference, OIC General Secretariat Condemns Strongly the

Excessive Use of Force against Civilians in the Libyan Jamahiriya, (22 February 2011) 61

See African Union Peace and Security Council, Declaration PSC/PR/COMM – CCLXI, (23 February 2011),

p. 2 62

See African Union Peace and Security Council, Declaration PSC/PR/COMM - CCLXI, (23 February 2011),

p. 5 63

See Press Release, African Union, African Commission, Statement on the Human Rights Situation in North

Africa, (25 February 2011)

19

These reports that highlighted massive human rights violations triggered discussions among

the members of the UN Security Council, which eventually led to the adoption of the Security

Council 1970 on 26th

February 201164

. In the preambular paragraphs of the resolution, the

Security Council referred to the statements and condemnations made by other organs of the

United Nations as well as regional organizations. Elaborating on the alleged human rights

violations, the Security Council expressed its concern at the situation in Libya and

condemned the violence and use of force before it deplored more specifically the gross and

systematic violation of human rights and “the incitement of hostility and violence against the

civilian population made from the highest level of the Libyan government”65

. In assessing the

situation, it continued to stipulate that “widespread and systematic attacks currently taking

place in the Libyan Jamahiriya against civilian population may amount to crimes against

humanity”66

.

Without overtly determining the existence of a threat to the peace under Article 39 of the

United Nations Charter, which states, “the Security Council shall determine the existence of

any threat to the peace, breach of the peace, or act of aggression and shall make

recommendations, or decide what measures shall be taken in accordance with Articles 41 and

42, to maintain or restore international peace and security”67

, the Security Council concluded

that it had authority to act under Chapter VII of the UN Charter and took measures under

Article 41. More specifically, under paragraph 4 of the UN Security Council Resolution

1973, “authorizes Member States that have notified the Secretary-General , acting nationally

or through regional organizations or arrangements, and acting in cooperation with the

Secretary-General, to take all necessary arrangements notwithstanding paragraph 9 of

64

See UN Security Council Resolution 1970, U. N. Doc. S/RES/1970, (26 February 2011) 65

Ibid., 66

ibid., 67

See Charter of the United Nations and Statute of the International Court of Justice, Article 39, (1945), p. 9

20

resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack

in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation

force of any form on any part of the Libyan territory, and requests the Member States

concerned to inform the Secretary-General immediately of the measures they take pursuant to

the authorization conferred by this paragraph which shall be immediately reported to the

Security Council”. The Resolution demanded an immediate end to the violence and called on

the Libyan government to respect its obligations under human rights law and international

humanitarian law68

. In addition, it referred the situation in Libya to the International Criminal

Court69

, and imposed sanctions on the Gaddafi regime, including an arms embargo, a travel

ban and an asset freeze.

Adoption of UN Security Council 1973

The threat of sanctions and the imminent threat of criminal prosecution through the

International Criminal Court did not lead to an end of the violence in Libya. In fact, the

deterioration of the humanitarian situation and the increase in violence immediately resulted

in demands for further action by the international community. Early March 2011, the

opposition forces had brought numerous cities, strategically important sites and oil

infrastructure under their control. The Gaddafi regime responded by increasing

counterattacks and captured parts under rebel control. The regime continued to use military

airplanes and reports continued to describe indiscriminate air strikes against the civilian

population as well as heavy artillery fire. In view of these attacks, calls for the establishment

of a no-fly zone over Libya became stronger. France and the United Kingdom made initial

proposals, and the United States Senate adopted a resolution in which it urged the Security

68

See paragraph 3 of UN Security Council Resolution 1973 69

See preambular sections of the UN Security Council Resolution 1973

21

Council to impose a no-fly zone. On 8th

March 2011, the Secretary General of the

Organization of Islamic Conference also called for a no-fly zone over Libya. Other regional

organizations continued to voice their concerns. On 1st March 2011, the African Commission

on Human and People‟s Rights again condemned the human rights violations in Libya and

called on “the responsibility of the African Union, and the Peace and Security Council of the

African Union, and the International Community to take all necessary political and legal

measures for the protection of the Libyan population and for the establishment of genuine

democratic governance in the State Party”70

.

On 10 March 2011, the African Union Peace and Security Council of African Union

reiterated its condemnation of the loss of life in Libya and the legitimacy of the Libyan

people‟s struggle while at the same time expressing its opposition to any form of foreign

military intervention71

. It also established an ad hoc High Level Committee on Libya72

. On

12 March 2011, the Council of the League of Arab States adopted Resolution 7360, in which

it referred to the crimes and violations committed by the Libyan authorities against the

Libyan people. More specifically, the resolution referred to the use of military aircraft,

cannons and heavy weaponry against the population73

. While the resolution rejected all forms

of foreign intervention, it called on the Security Council to impose a no-fly zone in order to

protect the civilian population. Two days prior to the adoption of the resolution, the European

Parliament, referring to the concept of “Responsibility to Protect”, also stressed the need to

70

See African Union, African Commission on Human Rights and People‟s Rights, Resolution on the Human

Rights Situation in the Great Socialist Peoples‟ Libyan Arab Jamahiriya, AHPR/RES. 181, (1 March 2011) 71

See African Union Peace and Security Council, Decision PSC/PR/COMM.2 (CCLXV), (10 March 2011), pp.

3 - 6 72

Ibid., pp. 8 - 9 73

See Permanent Observer of the League of Arab States to the United Nations, Letter from the Permanent

Observer of the League of Arab States to the President of the Security Council, U.N. Doc. S/2011/137, (14

March 2011).

22

protect the civilian population, which could include a no-fly zone established by the Security

Council74

.

With the Libyan troops closing in on Benghazi, a city held by the opposition and location of

the headquarters of the National Transitional Council, Mustafa Abdul-Jalil, the head of the

National Transitional Council, called upon the international community to impose a no-fly

zone75

. He warned that if Gaddafi recaptured the city, it would result in the death of half a

million people76

. In a speech to the nation, Gaddafi himself announced imminent attack on

Benghazi and said that he would show “no mercy” to those who did not surrender77

. In this

regard of preceding human rights violations, NGOs also expressed their concern with respect

to the fate of the opposition forces and of civilians in Benghazi should Gaddafi recapture the

city78

.

It was against this backdrop that the Security Council adopted Resolution 1973 on 17th

March

201179

. In the preambular paragraphs, the Security Council elaborated on the deteriorating

humanitarian situation in Libya and expressed concern at the continuous, gross and

systematic human rights violations, in particular the attacks against the civilian population,

which could amount to crimes against humanity80

. It explicitly determined that the situation

in Libya continued to constitute a threat to international peace and security and that it acted

under Chapter VII of the UN Charter81

. The Security Council demanded an immediate

74

See Resolution on the Southern Neighbourhood and Libya in Particular, European Parliament, Doc. (P7_TA-

PROV 2011-0095) para. 10 (10 March 2011). 75

“Rebel Leader Calls for „Immediate Action‟ on No-fly Zone, CNN Online, (10 Mach 2011) 76

See C. McGreal, “Gadhafi‟s Army Will Kill Half A Million, Warn Libyan Rebels,” in Guardian, (12 March

2011) 77

D. Stanglin, “Gadhafi Vows to Attack Benghazi and Show „No Mercy‟,” in USA TODAY, (17 March 2011) 78

See Press Release, Human Rights Watch, “Libya: Benghazi Civilians Face Grave Risk,” (17 March 2011) 79

See Security Council Resolution 1973 (17 March 2011) 80

Ibid., 81

Ibid.,

23

ceasefire as well as an end on attacks against civilians82

and it authorized member states “to

take all necessary measures” in order to “protect civilians and civilian populated areas under

threat of attack” in Libya while “excluding a foreign occupation force of any form on any

part of the Libyan territory”83

. In addition, it established a no-fly zone, banning all flights in

Libyan airspace in order to help protect civilians and authorized member states “to take

necessary measures to enforce compliance”84

. Resolution 1973 was adopted by a vote of ten

in favour, none against and five abstentions: permanent members China and the Russian

Federation, plus non-permanent members Brazil, Germany and India85

.

Military Intervention

After the resolution was adopted, the Libyan government declared a ceasefire, which it

quickly violated by commencing an attack on Benghazi86

. On 19 March 2011, a coalition of

Western states began a military intervention in Libya by launching missiles against Libyan

air defence systems and flying air strikes against military units outside of Benghazi. Within

days, coalition forces declared that Libyan air defence and air force had been destroyed87

.

The war between the Libyan government and the opposition continued, with both sides

struggling for control and experiencing military gains and losses. Alongside these battles, the

military attacks by coalition forces continued, and NATO took over the command of the

military operation in Libya as NATO forces continued to carry out attacks against Gaddafi‟s

82

Ibid., paragraph 1 83

Ibid., paragraph 4 84

Ibid., paragraph 6, 8 85

See Press Release, Security Council Approves „No-fly Zone‟ Over Libya, Authorizing „All Necessary

Measures‟ to Protect Civilians, UN Press Release SC/10200 (17 March 2011) 86

See “Gaddafi Forces Encroaching on Benghazi, Al Jazeera, (19 March 2011); See also I. Pannell, “Libya:

Gaddafi Forces Attacking Rebel Held Benghazi,” in BBC News, (19 March 2011). 87

“Libyan Air Force „No Longer Exists‟, in Al Jazeera, (23 March 2011)

24

command center in Tripoli88

, which was destroyed on 21 April 201189

. Four days later,

NATO destroyed a military building near Tripoli that was also used by Gaddafi90

. On 30th

April 2011, NATO bombed another building in Tripoli, killing one of Gaddafi‟s sons and

three of his grandchildren. The media reported that Gaddafi himself was present but had

survived the attack91

. NATO officials claimed that the building was a command and control

center and therefore a legitimate target. However, they emphasized that neither Gaddafi nor

any other individuals would be specific targets of NATO attacks92

.

During the period of March to October 2011, NATO conducted numerous military attacks

against Libya. In August 2011, the rebels gained control of Tripoli. The National Transitional

Council was increasingly recognized by the international community and on 16 September

2011, the UN General Assembly decided that the representatives of the Transitional Council

would, for the following year, represent Libya in the General Assembly93

. That same day, the

Security Council passed Resolution 2009, thereby easing sanctions on Libya94

and

established a United Nations Support Mission in Libya (UNSMIL)95

in order to support the

country‟s political and economic transition. Subsequently, on 20 October 2011, the insurgents

gained control over Sirte, Gaddafi‟s hometown and the last major city under the regime‟

control. During the fight for Sirte, Gaddafi was killed96

. Three days later, the National

88

“NATO Missiles Strike Tripoli, Sirte: Libyan TV”, Reuters, (19 April 2011) 89

See A. Little, “Libya: Missile Strike Destroys Gaddafi „Command Center‟”, in BBC, (21 March 2011) 90

H. Sherwood, “Gaddafi Compound Hit in NATO Attack”, in Guardian, (25 April 2011) 91

K. Fahim and D. Kirkpatrick, “Qaddafi is Said to Survive NATO Airstrike That Kills Son”, in New York

Times, (30 April 2011) 92

Ibid., 93

Press Release, General Assembly, After Much Wrangling, General Assembly Seats National Transitional

Council of Libya as Country‟s Representatives for Sixty Sixth Session, UN Press Release GA/11137, (16

September 2011) 94

Security Council Resolution 2009, U. N. Doc. S/RES/2009, (16 September 2011), pp. 13 - 19 95

Ibid., p. 12 96

See K. Fahim, A. Shadid and R. Gladstone, “Violent End to an Era as Qaddafi Dies in Libya”, in New York

Times, (20 October 2011)

25

Transitional Council declared the liberation of Libya97

. On 27 October 2011, the Security

Council passed Resolution 2016, thereby terminating the authorization to use force and

ending the no-fly zone over Libya on 31 October 201198

.

Various political actors reacted in different ways to the military intervention. On one hand,

there were those who welcomed the intervention and expressed their support; on the other

hand, there were those who have criticized the military intervention as an illegitimate

interference with the civil war. Others, particularly representatives of the opposition forces,

complained that the military intervention did not go far enough!

The Organization of the Islamic Conference largely supported the intervention. In a

communiqué issued by the Ministerial Executive Committee of the Organization of the

Islamic Conference, it welcomed Security Council Resolution 197399

. The Secretary General

of the Organization of the Islamic Conference, however, called for maximum restraint in the

ongoing military operation100

. He later argued for the need for a political solution, while at

the same time expressing continuous support for the Security Council Resolutions 1970 and

1973101

. In subsequent statements, he repeatedly emphasized the need for a political solution

and called on all parties involved in the military conflict to exercise maximum restraint102

.

97

See “Libya‟s New Rulers Declare Country Liberated”, in BBC News, (23 October 2011) 98

See Security Council Resolution 2016, UN Doc. S/RES/2016, (27 October 2011), pp. 5 - 6 99

Press Release, Organization of the Islamic Conference, Final Communiqué Issued by the Emergency Open

Ended Ministerial Meeting of the OIC Committee on the Alarming Developments in Libyan Jamahiriya (10

March 2011), (Accessed on 9 June 2012 http://www.oic-oic.og/topic_detail.asp?t_id=5057) 100

Press Release, Organization of the Islamic Conference, Address by H. E. Prof. Ekmeleddin Ihsanoglu,

Secretary General of the Organization of the Islamic Conference (29 March 2011), (Accessed on 9 June 2012,

http://www.oci-oci.org/topic_detail.asp?t_id=5115) 101

Press Release, Organization of the Islamic Conference, Ihsanoglu Addresses the Third Meeting of the

International Contact Group on Libya (8 June 2011), (Accessed on 9 June 2012, http://www.oic-

oic.org/topic_detail.asp?t_id=5417) 102

Press Release, Organization of the Islamic Conference, Ihsanoglu: Political Solution to the Libyan Crisis is

the Only Way to Bring Lasting Peace to Libya (7 May 2011), (Accessed on 9 June 2012, http://www.oic-

oic.org/topic_detail.asp?t_id=5279)

26

Following the commencement of the military intervention, the African Union High Level

Committee expressed its general support for Resolution 1973, but it also raised concerns

regarding military intervention and declared the need for a peaceful solution within an

African Framework103

. Political actors of the African Union said they were actively working

towards a ceasefire between the conflicting parties in Libya104

. At the same time, the African

Court on Human and People‟s Rights issued its first binding ruling against the state, ordering

Libya to “immediately refrain from any action that would result in loss of life or violation of

physical integrity of persons” and stating that failure to do so could constitute a breach of

human rights obligations105

. The African Court referred to numerous complaints involving

violent suppression of demonstrators and excessive use of heavy weapons and machine guns

against the population.

The position of the Arab League was ambivalent106

. While it called for the establishment of a

no-fly zone in the first place, Amr Moussa, the Secretary General of the Arab League, said on

20 March 2011, that the military intervention had already gone too far107

. Two days later,

however, he reiterated the League‟s general support for Resolution 1973 and for the no-fly

zone108

. The next day, he emphasized that the sole goal of Resolution 1973 was protection of

civilians and that it proposed neither support for the rebels nor regime change in Libya109

.

103

Press Release, African Union, Communiqué: Meeting of the AU High Level Ad Hoc Committee on Libya

(19 March 2011), (Accessed on 9 June 2012, http://tinyurl.com/442kltf) 104

See, Aaron Maasho, “African Union Chief Asks for Dialogue on Libya,” in Reuters Africa, (25 March 2011) 105

See Anna Dolidze, “African Court on Human and People‟s Rights: Response to the Situation in Libya”, in

American Society International Law, (26 July 2011) 106

See Mehrdad Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, in

Virginia Journal of International Law, Vol. 52, No. 2 (September 2011), pp. 355 – 403: 381 107

Michael Slackman, “Dislike for Qaddafi Gives Arabs a Point for Unity”, New York Times, (21 March 2011);

See also Edward Cody, “Arab League Condemns Broad Western Bombing Campaign in Libya”, in Washington

Post 108

Martin Chulov, “Arab League to Reiterate Backing For Libya No-fly Zone”, in Guardian, (22 March 2011) 109

“The Goal in Libya Is Not Regime Change” in New York Times, (23 March 2011)

27

Latin American states have been strongly divided over the issue of the resolution. While a

large number of states - led by Bolivia, Venezuela and Cuba - strongly condemned the

military intervention110

, others such as Mexico and Columbia, the latter having voted in

favour of the Resolution 1973 in the Security Council, expressed their support111

.

Statements by China and Russia, the two permanent members of the Security Council who

abstained in the vote on Resolution 1973, were largely critical. The Chinese Foreign Ministry

expressed “serious reservations” about the military intervention, while Chinese newspapers

more strongly condemned the operation112

. The Russian position was also ambivalent. While

Russia abstained in the vote for Resolution 1973, Prime Minister Vladimir Putin harshly

criticized the military intervention, shortly after it began, as a Western “crusade”, a comment

that President Dmitry Medvedev later called “unacceptable”113

.

Shortly after the intervention started, the intervening states more openly acknowledged that

regime change was, in fact, the final objective of the military operation. In an open letter

dated 15 April 2011, United States President Barack Obama, French President Nicholas

Sarkozy and United Kingdom Prime Minister David Cameron, while emphasizing that their

duty and mandate under Resolution 1973 was not to remove Gaddafi by force, held that “it is

impossible to imagine a future for Libya with Gaddafi in power” and that it is “unthinkable

that someone who has tried to massacre his own people can play a part in their future

government”114

. The Group of Eight met at a summit in France on 26 and 27 May 2011 and

110

“Latin America Condemns US/UN Invasion of Libya”, in Coto Report,(22 March 2011) 111

“Latin American Leaders React to Libya Conflict”, in Americas Quarterly, (23 March 2011) 112

Chris Buckley, “China Intensifies Condemnation of Libya Air Strikes”, in Reuters,(21 March 2011) 113

“Putin Downplays Alleged Tiff with Medvedev Over Libya” in International Business Times, (22 March

2011), (Accessed on 9 June 2011,http://www.ibtimes.com/articles/125670/20110322/libya-russia.htm) 114

Barack Obama, David Cameron and Nicolas Sarkozy, Editorial, “Libya‟s Pathway to Peace”, in International

Herald Tribune, (15 April 2001), (accessed on 10 June 2012, http://www.voltairenet.org/Op-ed-on-Libya-by-

Barack-Obama)

28

issued a final communiqué that, in surprising clear terms, emphasized that regime change was

the ultimate goal of the international community‟s efforts in Libya: “Gaddafi and the Libyan

government have failed to fulfil their responsibility to protect the Libyan population and have

lost all legitimacy. He has no future in a free, democratic Libya. He must go”115

. Russia also

supported this statement116

.

Analysis – Interpreting Security Council Resolution 1973

1. Scope of the Authorization

There has been a lot of debate over the Security Council Resolution 1973 which has mainly

focused on a set of limitations to the authorization117

. These include the exclusion of ground

forces and the illegitimacy of regime change under the resolution.

In the Resolution 1973, the Security Council authorized member states “to take all necessary

means” for the protection of civilians and civilian populated areas. Resolution 1973 has

employed the term the Security Council constantly uses to authorize the use of force under

Chapter VII of the United Nations Charter118

. The authorization includes only limited

restrictions and requires member states that want to act on the basis of the authorization to

notify the Secretary-General, who shall report to the Security Council119

. Furthermore,

member states are required to cooperate with the Secretary-General120

. With regard to the

admissible measures, the resolution explicitly excludes deployment of “a foreign occupation

115

Patrick Wintour and Kim Willsher, “G8 Summit: Gaddafi Isolated as Russia Joins Demand for Libyan

Leader to Go”, in Guardian, (27 May 2011), (Accessed on 10 June 2012,

http://www.guardian.co.uk/world/2011/may/27/g8-gaddafi-libya-russia) 116

Ibid., 117

Mehrdad Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p.

383 118

Christian Henderson, “International Measures for the Protection of Civilians in Libya and Cote d‟Ivoire”, in

International and Comparative Law Quarterly, (2011), pp 767 - 778 119

UN Security Council Resolution 1973 paragraph 4, p. 3 120

Ibid., p. 3

29

force of any form on any part of Libyan territory”121

. Apart from these limitations, the

resolution does not specify the particular objective of the authorization or the expiry of the

same: it is not limited with regard to time, not does it stipulate that when a certain goal is

achieved – so for instance, a ceasefire between the government and the opposition forces –

the authorization will cease to apply122

. With regard to the legitimate objectives of the use of

force, the Council authorized all necessary measures not only to enforce compliance with the

no-fly zone123

, but also to protect civilians and civilian populated areas under threat of

attack124

. Military measures under Resolution 1973 are therefore allowed beyond the scope of

the implementation of the no-fly zone. In respect to the general consensus that the Libyan

regime committed illegal violence against civilians, the authorization of the use of force to

protect civilians is considerable broad and includes military action against the regime

whenever there is a threat that regime attacks civilians or civilian-populated areas.

Accordingly, the authorization was valid and applicable as long as there was a threat to

civilians and civilian populated areas.

2. All Necessary Measures

The authorization encompasses all measures that are necessary. Payandeh125

notes that in

legal doctrine, necessary can have different meanings. A measure may not go beyond what is

strictly necessary in order to achieve a certain goal. If milder means are available to pursue

the objective the same way, the authority has to resort to this milder means. According to this

understanding of “necessary”, the scope of the Security Council authorization would be

severely restricted. The intervening states would have to show that every action they take is

121

Ibid., p. 3 122

Mehrdad Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p.

384 123

UN Security Council Resolution 1973 paragraph 8, p. 3 124

Ibid., paragraph 4, p. 3 125

Mehrdad Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p.

384

30

essential with regard to the objective they are pursuing, namely protection of civilians and

civilian-populated areas.

This is, however, not the way the Security Council‟s use of the phrase “all necessary

measures” has been understood in the past126

. The expression has rather been a cipher for

authorization to use military force. In fact, in the context of the use of military force, an

understanding of “necessary” as strict as the least restrictive means test of constitutional

rights doctrine is unusual and incongruous127

. International law is deeply concerned with

avoiding use of force and provides rather strict rules for this purpose. But once use of force is

admissible (meaning allowable) – on the grounds of Article 51 of the UN Charter or on the

basis of a Security Council resolution – international humanitarian law or jus in bello

provides less strict rules concerning the use of force. Under international humanitarian law,

no least-restrictive means test applies. The laws of war instead deem targets, instruments and

measures of warfare illegal, while generally allowing destruction and killing military targets.

Against this background, “necessary” as used in Resolution 1973 means that the use of force

may not be excessive and that it must bear a relation to the objectives of the resolution. it is

not required that each single act is strictly necessary to avoid violations of human rights in the

sense that no alternative, less intrusive means is available.

3 Regime Change Question

The most controversial question surrounding the military intervention is whether intervening

states were allowed to actively pursue regime change in Libya. This question has been

vehemently answered in the negative by numerous political actors and commentators. For

126

See Dapo Akande, “What Does UN Security Council Resolution 1973 Permit?”, in European Journal of

International Law, Talk! (23 March 2011), (accessed on 10 June 2012, http://www.ejiltalk.org/what-does-un-

security-council-resolution-1973-permit/) 127

Mehrdad Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p.

385

31

instance, Amr Moussa, the Secretary General of the Arab League, pointed out that the

Security Council authorized only protection of civilians and not regime change128

. Others

emphasized that the Security Council never approved a military mission to overthrow the

Libyan government129

. A look at Resolution 1973 seems to support this view because regime

change is not explicitly mentioned in the text.

On the other hand, there are indications that the Security Council mandate did not

categorically rule out possibility of regime change in Libya on the basis of Resolution 1973.

First, while the Security Council focused on the protection of human rights, it did not ignore

the democratic dimension of the conflict. Resolution 1970 called for steps “to fulfill the

legitimate demands of the population”130

. In Resolution 1973, the Security Council

emphasized that a solution to the crisis must respond to the legitimate demands of the Libyan

people131

. While this issue is open to debate. It is highly doubtful; whether the legitimate

demands of the population could have been fulfilled with Gaddafi still in power. Even if the

Security Council was well aware that the overthrow of Gaddafi was at least a possible

outcome of the conflict, though, there mere reference to the legitimate demands of the

population alone is, of course, an insufficient basis on which to conclude that the resolution

was a legal entitlement for forceful regime change. Regardless, Resolution 1973 does not

indicate that authorization to use force has to be regarded within the overall context of the

conflict, which was not only about human rights violations, but also the realization of

political rights of the Libyan people.

128

“The Goal in Libya Is Not Regime Change” in New York Times, (23 March 2011), op. cit., 129

Robert Naiman, “Surprise War for Regime Change in Libya is the Wrong Path”, in Foreign Policy in Focus,

(4 April 2011), (Accessed on 10 June 2012,

http://www.fpif.org/articles/surprise_war_for_regime_change_in_libya_is_the_wrong_path) 130

UN Security Council Resolution 1970 131

UN Security Council Resolution 1973

32

Secondly, while the Security Council did not explicitly authorize the use of force with a view

of to overthrow the Gaddafi regime, it took a number of other measures directed against the

regime. In Resolution 1970, the other measures directed against the regime, it took a number

of other measures directed against the regime. In Resolution 1970, the Council decided on a

travel ban and asset freeze specifically aimed at Gaddafi, his family, and other high ranking

officials of the regime. In Resolution 1970, the Council decided on a travel ban and asset

freeze specifically aimed at Gaddafi, his family and other high-ranking officials of the

regime. While the Security Council referred the situation in Libya as a whole to the

International Criminal Court, the referral primarily affects members of the Libyan regime, as

the resolution explicitly refers to the violence against the civilian population made from the

highest level Libyan government132

. In Resolution 1973, the Security Council expanded the

scope of financial sanctions to all financial assets owned and controlled, directly or indirectly

by the Libyan authorities133

. While the objective of these sanctions was primarily to force the

Libyan government to end the attacks on civilian population, they also supported the struggle

of the Libyan opposition against the regime.

This leads to the third and most important argument against the assumption that Resolution

1973 categorically excluded regime change through intervention states. This argument is

based on the distinction between means and goals in Security Council authorization134

. While

the Resolution 1973 specifies the goal of the authorization – that is, the protection of civilians

and civilian populated areas – it does not elaborate on the admissible means that may be

employed in order to implement and achieve this goal. This distinction allows for the

argument that while regime change may not have been a legitimate goal to be pursued on the

132

UN Security Council 1970, 132, p. 2, preamble 133

UN Security Council Resolution 1973, note 4 134

Mehrdad Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p.

388

33

basis of Resolution 1973, it may have been the legitimate means to pursue the objective of

the Security Council mandate, namely the protection of civilians. This argument is supported

by the fact that, as the conflict in Libya continued, it became more and more clear that safety

of the civilians and of the opposition could not be guaranteed as long as Gaddafi was in

power. The calls of the departure of Gaddafi had grown more pronounced since the beginning

of the conflict. While ceasefire and political dialogue could have been achieved, regime

change was not strictly necessary for the protection of civilian population. When it turned out

that such a dialogue and all other peaceful means to settle the dispute were futile, this

evaluation changed, and states began to consider regime change a necessary prerequisite for

the protection of civilians and civilian populated areas in Libya.

While regime change might not have been a legitimate goal in itself, the distinction between

means and ends suggests that it might constitute a legitimate consequence of measures that

were carried out for the protection of civilians. Measures that were employed in order to keep

the Gaddafi regime from attacking the civilian population at the same time contributed to the

actions of the opposition against the regime. Therefore, a strict distinction between the

objective of human rights protection and measures that might lead to regime change cannot

be upheld. Every attack against Gaddafi‟s armed forces weakened the regime and

strengthened the opposition.

Consequently, an intermediary approach to the question of regime change under Resolution

1973 is required. One the one hand, forceful regime change is a far-reaching measure that

impinges seriously on pivotal paradigms of international law such as sovereignty, the

prohibition of intervention, and international law‟s general neutrality of forceful regime

change should not be easily be presumed, and authorizations of the Security Council to use

force should not be interpreted extensively. On the other hand, the Security Council

34

deliberately authorized military measures knowing that this action was primarily aimed at

Gaddafi‟s regime and would contribute to the opposition movement. Measures necessary for

the protection of civilians and civilian protected areas might at the same time have promoted

regime change in Libya. In view of the Libyan air strikes against civilians, the destruction of

the Libyan air force and air defense systems was necessary to protect human rights, but at the

same time it significantly weakened Gaddafi‟s regime. Thus, measures were encompassed by

Resolution 1973 as long as they were necessary, even though they might have promoted

regime change in Libya. The mere fact that the intervening states were at the same time also

contributing to the overthrow of Gaddafi or even acting with the political intention of

achieving this goal does not render their attacks illegal135

. For the evaluation of the legality of

a certain act under international law, the intention of the acting state is irrelevant. So for

instance, the Nicaragua case, the International Court of Justice held that it was not necessary

to examine whether the United States intended to overthrow the government of Nicaragua.

The Court evaluated the US intervention on the basis of the objective facts136

.

Measures that cannot convincingly be understood as necessary for the protection of civilians

or civilian protected areas, on the other hand, were impermissible under the Security Council

resolution. Attacks on military facilities were therefore generally encompassed by Resolution

1973, as were attacks on political institutions that were directly responsible for and involved

with Libyan attacks on civilians. It would, for instance, be hard to justify attacks on the

ministry of education, unless it could be proven that this institution was somehow involved in

supporting the attacks.

135

Ibid., p. 389 136

See Military and Paramilitary Activities in and against Nicaragua (Nicaragua versus United States), 1986 ICJ

Report, 14,(27 June 1986) note 33

35

In summary, Resolution 1973 constitutes an unexpected broad authorization for the use of

force in Libya. The mandate does not allude to a time limit, not is it substantially restrained.

With regard to admissible measures, only occupation forces are explicitly excluded, which

means that the deployment of ground troops was generally allowed as long as they did not

seize effective control over parts of the Libyan territory. And while the authorization was a

humanitarian mandate and is not explicitly aimed at regime change, the wide objective of the

resolution – the protection of civilians and civilian populated areas – allowed for military

measures that facilitated and advanced the overthrowing of the Gaddafi regime.

Was The UN Security Council Resolution 1973 and Military Intervention Legal?

It would be important to assess whether the authorization of Security Council though the

Resolution 1973 is legal under international law or transgresses the incompetence of the

Security Council as an ultra vires act.

1 Legal Limits to Security Council Resolution

The legal limits of the Security Council action are a subject of debate137

. The debate takes

place on two different levels, dealing on one hand with legal restraints place on the Security

Council by the UN Charter and with those placed on the Security Council by international

law beyond the Charter, on the other. On the first level, there is a far-reaching consensus that

the rules of the Charter constitute legal limits to the powers of the Security Council138

. The

debate, however, surrounds the questions of how concrete those legal limits are and how far

they restrain the Security Council.

137

M. Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p. 391 138

See Jochen Frowein and Nico Krisch, “Introduction to Chapter VII”, in the Charter of the United Nations: A

Commentary, supra note 8, at 701, 710; see also Michael Reisman, “The Constitutional Crisis in the United

Nations”, in Journal of International Law, Vol. 87, No. 83 (1993), pp. 83 – 100 for a more sceptical view.

36

Numerous particularities of the Charter system lead to weak normative boundaries for

Security Council action. First, the relevant norms in Chapter VII are open textured139

and

open to interpretation. The threshold for the Security Council action according to Article 39

is the determination of the Security Council that a threat of peace exists140

. While the

founders of the Charter formulated the provision against the historical background of the

classical inter-state wars, the text is open enough to allow for more extensive

interpretations141

. The drafters did not clearly define the term “threat to peace”, but

intentionally decided to “leave to the Council the entire decision as to what constitutes a

threat to the peace, a breach of the peace, or an act of aggression”142

.

Second, the competences of the Security Council are formulated in a goal-oriented way with

a focus on the maintenance of international peace and security, allowing strongly functional

interpretation143

. Commentators therefore rarely pay much attention to the text of the Charter

provisions, but rather highlight a specific reading is most appropriate to provide the Security

Council with the necessary instruments in order for it to live up to its responsibility and

ensure peace and security144

.

139

H. L. A. Hart (1961), “The Concept of Law”, in Michael Reisman, “The Constitutional Crisis in the United

Nations”, op. cit., p. 93 140

See Charter of the United Nations and Statute of the International Court of Justice, Article 39, that states

“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of

aggression and shall make recommendations, or decide what measures shall be taken in accordance with Article

41 and 42, and to maintain or restore international peace and security”. 141

See Michael Reisman, “The Constitutional Crisis in the United Nations”, op. cit., 93, Reisman suggests that

“a „threat to peace‟ is, and was obviously designed to be, subjectively determined”. 142

United Nations Conference on International Organization, 25 April – 26 June, 1945, Report of the

Rapporteur of Committee 3 to Commission III, U.N. Doc 881, III/3/46, reprinted in 12 U. N. C.I.O. Docs.

502,505 (1945) 143

See United Nations Article 42 which allows the Security Council to take actions “as may be necessary to

maintain or restore international peace and security”. 144

M. Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p. 392

37

Third, this mode of interpretation is consistent with the tendency to interpret the Charter not

in the strict text-bound way, but rather in a dynamic evolutionary way145

, which is oftentimes

based on the constitutional character of the Charter146

. In interpreting the Charter, the

subsequent practice of states as well as of the United Nations organs is taken into

consideration147

, an interpretive approach that is incorporated in the Vienna Convention on

the Law of Treaties148

.

Fourth, although the legal rules of the Charter are meant to limit the competences of the

specific UN organs, there is no general procedure for determining the legality of an act by a

UN organ within then UN system. Confronted with this reality, the International Court of

Justice held that “each organ must, in the first place at least, determine its own

jurisdiction”149

. The ICJ recognizes that each organ of the United Nations has certain level of

interpretive autonomy with regards to its competences. It is therefore widely recognized that

the Security Council enjoys rather broad discretion when it determines measures under

Chapter VII, and in particular with regard to the determination whether a threat to the peace

exists according to Article 39150

. Nevertheless, the provisions of Chapter VII constitute legal

boundaries for the Security Council action and resolutions that transcend these boundaries are

ultra vires and illegal151

.

2. Requirements of Article 39 of the UN Charter

145

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I. C. J. 16, 31 (June 21) 146

See Brun-Byrde, “International Democratic Constitutionalism”, in R. St. John McDonald and D. J. Johnson

(eds.), Towards Constitutionalism, Issues in the Legal. Ordering of the World Community, (Leiden: Martinus

Nijhoff, 2005); see also Eric Rosand, “The Security Council as „Global Legislator‟: Ultra Vires or Ultra

Innovative?”, in 28 Fordham International Law Journal, (2005), pp. 542 - 570 147

See Bardo Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective,

(Leiden: Martinus Nijhoff Publishers, 1998), pp. 136 – 137 148

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U. N. T. S. 331, Article 31, paragraph 3 149

Certain Expenses of the United Nations, Advisory Opinion, 1962 I. C. J. 151, 168 (20 July 1960) 150

International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, 2 October 1995, Decision in

Prosecutor v. Tadic, in 35 International Legal Materials, Vol. 32 No. 42 (1996) 151

M. Payandeh, “The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p. 393

38

In analyzing the legality of Resolution 1973, the first question to address is whether the

Security Council was entitled to determine the existence of a threat to peace under Article 39.

The situation in Libya certainly did not constitute an international threat in the way the

founders of the Charter had envisioned it. Indeed, the Security Council declined to point out

any specific trans-boundary effects of the situation in Libya. However, Resolution 1973 is in

accordance with the generally settled and accepted practice of the Security Council to

characterize massive human rights violations and atrocities against the civilian population as

a threat to the peace, which justify action under Chapter VII152

Some argue that violations of human rights law by Libya have not been proven yet, and that

the attacks of the Libyan regime against insurgents cannot be easily qualified as violations of

international law153

. For instance, Modeme argues that unless a breach of, or threat to,

international peace and security is indicated (in that a conflict involves, or is likely to involve,

at least two countries), or unless there is an act of aggression by one state against another, any

use of force against a member state under the authority of the Security Council would be a

breach of the UN Charter and therefore unlawful154

. In addition, Herir notes that “the Council

powers are exercised in response to breaches of the peace and acts of acts of aggression, and

thus „the powers of the council are designed primarily to preserve the peace rather than to

enforce the law, although these can coincide‟”155

. Based on these two arguments, once can

then conclude that internal conflicts and human rights abuses within a state cannot trigger the

responsibility of the Security Council and accordingly may not order military interventions in

respect of those.

152

See Simon Chesterman, “Leading from Behind: The Responsibility to Protect, The Obama Doctrine and

Humanitarian Intervention after Libya”, in Ethics & International Affairs, Vol. 25, No. 3 (2011), pp. 279-285 153

See Philip L. Merkel, “Party and Constitution making: An Examination of Selected Roll calls from New

York Constitutional Convention of 1846” Graduate Seminar Paper, University of Virginia, May 1983, p.32 154

Lawrence E. Modeme, “The Libya Humanitarian Intervention: Is It Lawful in International Law”, p. 6 155

Aidan Herir, Humanitarian Intervention: An Introduction, (Basingtoke: Palgrave Macmillan, 2010), p. 135;

see also M. Dixon, Textbook on International Law, (Oxford: Oxford University Press, 2007), p. 7

39

Those who argue that human rights violations have not been proven further suggest that

Article 2 (4) of the Charter requires all member states of the UN to refrain “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 UN”. The UN Security Council, unless

action is warranted under Chapter VII (for the maintenance of international peace and

security), is forbidden by article 2(7) of the Charter from intervening in matters that are

“essentially within the domestic jurisdiction of any state”.

Modeme submits that the situation in Libya does not constitute a threat to, or breach of,

international peace and security and does not amount to aggression as envisaged by the

Charter156

. Thus, the violent suppression of demonstrations, protests, armed rebellion or

insurgency is a domestic matter that has little implication on international peace and security.

Even gross violations of human rights and the commission of international crimes do not

endanger international peace and security unless they have an international dimension. In

Modeme‟s view, there was no indication that neighboring countries are threatened or likely to

be threatened by Libya; and there was no indication that neighboring countries are involved

or going to be involved in the conflict157

.

However, a contrary and a more progressive argument could also be presented. Certainly, a

state may defend itself against insurgents, but the Gaddafi regime‟s indiscriminate attacks

against unarmed protestors do not fall within the bounds of attacks on insurgents. Moreover,

the Security Council does not require proof of actual human rights violations. The

determination of whether the available information about indications of serious human rights

violations justify military measures falls within the discretion of the Security Council158

.

156

Lawrence E. Modeme, “The Libya Humanitarian Intervention: Is It Lawful in International Law”, p. 7 157

Ibid., p. 7 158

M. Payandeh, The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p. 394

40

Since the existence of massive human rights violations had been ascertained and deployed by

numerous organs of the United Nations, human rights, as well as the League of Arab States,

the Organization of the Islamic Conference, and the African Union, it is difficult to claim that

the Security Council reference to human rights violations is a mere pretext for the Western

states‟ regime change efforts in Libya for political, strategic or economic reasons.

3. Admissible Measures under Chapter VII of the UN Charter

Once the Security Council has determined the existence of a threat to peace and security, and

once it considers that measures not involving the use of force are adequate, it may take

enforcement action under Article 42. Article 42 under Chapter VII of the UN Charter requires

that “should the Security Council consider that measures provided for in Article 41 would be

inadequate or have proved to be inadequate, it may take such action by air, sea or land forces

as may be necessary to maintain or restore peace and security. Such action may include

demonstrations, blockade, and other operations by air, sea, or land forces of Members of the

United Nations”159

. As has been pointed out before, this provision encompasses the

entitlement to authorize member states to use military force. However, the question arises as

to whether there are limitations with regard to the objectives of a military intervention

authorized by the Security Council. The text of Resolution 1973 is focused on the human

rights situation in Libya; the human rights violations constitute the justifying grounds for the

authorization and their cessation is the goal of this authorization. As has already been

explained elsewhere in this article, the mandate under Resolution 1973 not only encompasses

measures to protect human rights, but also measures that might have led to or at least

promoted the overthrow of the Gaddafi regime. While regime change is not an explicit

ground for or goal of the authorization, the Security Council authorized the use of military

159

Article 42 of the Charter of the United Nations.

41

force that might have led to regime change and that even enabled the intervening states to

actively and openly pursue such a course.

Nevertheless, while regime change as such might not be an admissible measure for Security

Council to authorize, there is no reason why it should be barred from authorizing a military

intervention that could contribute to a change of government160

. The prohibition on

intervention in domestic matters, which is based in Article 2 (7) of the Charter, does not

apply to enforcement measures under Chapter VII. Once the threshold of Article 39 is passed,

the Security Council may order military measures against regime, even when such action

might result in an overthrow or at least facilitate regime change161

.

Conclusion

In examining the Libyan case, the Security Council‟s authorization and military intervention

have raised questions that touch on the very foundations of the international order and will be

raised again in the short or medium term, when the issue of military intervention for

humanitarian or pro-democratic reasons is brought again to the international community and

the Security Council in particular.

Indeed, Chesterman asserts and correctly so, that from an international law perspective, the

intervention in Libya is “interesting but not exactly groundbreaking”162

. And yet the

complications of implementing two similar resolutions of the early 1990s – in Somalia and

Srebrenica – suggest that problems have never been limited only to what the law allows, but

also to include what politics permits and what is militarily possible163

. This is in line with the

160

Christian Henderson, “International Measures for the Protection of Civilians in Libya and Cote d‟Ivoire”, op.

cit, p. 776 161

M. Payandeh, The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p. 394 162

Simon Chesterman, “Leading from Behind: The Responsibility to Protect, The Obama Doctrine and

Humanitarian Intervention after Libya”, op. cit., p. 239 163

Ibid., p. 240

42

“well established practice of Security Council to authorize the use of force by single states in

order to contain humanitarian catastrophes”164

.

Furthermore, Rice asserts that when one examines the Libyan case, armed humanitarian

interventions are particularly bound by serious constraints of “necessity” and

“proportionality”165

. “Necessity” requires that the armed intervention be necessary to stop or

prevent widespread, systematic murder or serious injury, including torture, rape and other

serious assaults. This necessity arises when one has exhausted all peaceful means of resolving

the situation. Internal conflict and other social or political conditions, in and of themselves,

do not create the legal or moral authority for an armed humanitarian intervention166

.

On the other hand, “proportionality” requires that the ends of the intervention be only those

necessary for achieving the humanitarian purpose. Using armed humanitarian intervention to

achieve specific national strategic objectives beyond the prevention of violent atrocities risks

operation‟s real and apparent legitimacy at the international and local levels167

. This view is

also shared by Modeme168

, Goodman169

, Rich170

and Chesterman171

.

If one goes beyond the case of Libya and look at the implications of UNSC Resolution 1973,

existing international law with regards to military aspects of humanitarian intervention and

the right to protect remains centered on the UN Charter‟s provisions pertaining to the use of

164

M. Payandeh, The United Nations, Military Intervention and Regime Change in Libya”, op. cit., p. 403 165

Daniel Rice, “Armed Humanitarian Intervention and International Law: A Primer for Military Professionals”,

op. cit., 166

Ibid., 167

Ibid., 168

See Lawrence E. Modeme, “The Libya Humanitarian Intervention: Is It Lawful in International Law”, op.

cit., pp. 22 – 23 169

See Ryan Goodman, “Humanitarian Intervention in the Pretext of War”, in American Journal of

International Law, Vol. 100, No. 107 (2006), p. 116 where he argues that legalizing unilateral humanitarian

intervention and “encouraging aggressively minded states to justify force as an exercise of humanitarian

intervention can facilitate conditions for peace” because humanitarian force is supposed less prone to escalation

and more prone to face-saving, negotiated settlements. 170

See Thomas Rich, Fiasco: The American Military Adventure in Iraq, (New York: Penguin, 2006) 171

See Simon Chesterman, “Leading from Behind: The Responsibility to Protect, The Obama Doctrine and

Humanitarian Intervention after Libya”, op. cit., pp. 246 - 7

43

force and in particular within the province of the UN Security Council. It is erroneous for one

to presume that humanitarian intervention and the right to protect are only about military

intervention. This view should strongly be strongly highlighted and refuted. Indeed,

international law scholars, UN officials and agencies emphasize the full range of actions that

includes non military coercive and non-coercive measures ranging from sanctions, arms

embargoes and international prosecution to diplomacy, mediation and so on available to the

international community to assist172

.

The limits as well as the powers implied in humanitarian intervention and under the right to

protect doctrine should also be more broadly understood, especially that: right to protect is

not a recipe of unilateral intervention; right to protect is currently limited to four categories of

genocide, crimes against humanity, war crimes and ethnic cleansing; and, right to protect is

properly subject to vital legitimacy criteria and precautionary principles as discussed in this

paper.

172

See Chip Pitts, “The International Law and Policy Regarding the Use of Force, Humanitarian Intervention

and Responsibility to Protect”, Paper Presented at Doshisha University in Kyoto Japan on 28 June 2011, p. 21

44

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