By Ryszard Piotrowicz*
The unrest in Libya in February and March 2011 that led the United Nations to authorise the use of force by other states against the country has offered some insights into how international law may be used by the international community to address situations in which human rights are suppressed by the use of extreme violence by the authorities against their own citizens.
On 17 March 2011, in reaction to the violence perpetrated by the Libyan regime not only against its opponents within the country but also the civilian population generally, the Security Council of the United Nations adopted Resolution 1973 (2011). This resolution is signiﬁcant because it permitted the use of force against Libya. That is not new. The Security Council authorised the use of force against Iraq following its invasion of Kuwait in 1990. Depending on how one sees it, it may also have authorised the use of force against Iraq in 2003. However, the controversy surrounding the invasion of Iraq demonstrated how signiﬁcant such action is and why a clear mandate is so important: the use of force is almost always unlawful; it entails an attack on a sovereign and independent state. The situation in Libya, and the international response, involves issues relating not only to legality of the use of force but also to the legality of the way that force has been used.
The resolution was an attempt by the United Nations to address the humanitarian tragedy unfolding in Libya; it did not take sides between the government and rebel forces. Nevertheless, it was intended primarily to inﬂuence the behaviour of the Libyan government because it was the government that engaged openly in sustained and serious military attacks on the civilian population.
The United Nations was strongly criticised for its failure to act in time to try to prevent the mass violence perpetrated against civilian populations in Rwanda and Kosovo in the 1990s. That experience may well have played a role in the (relatively) speedy adoption of Resolution 1973. Yet the idea of authorising international action against one state – whatever the human suffering taking place – remains for some highly problematic. The Security Council adopted the resolution with ﬁve of its 15 members abstaining, including two permanent members, Russia and China.
The Security Council had already addressed the situation in Libya earlier in the year. In its Resolution 1970 (2011), adopted on 26 February 2011, the Council voted unanimously on several measures that clearly reﬂected the gravity of the situation. First, the preamble referred to the condemnation by the Arab League, the African Union and the Organization of the Islamic Conference of “serious violations of human rights and international humanitarian law” being committed in Libya. The reference to international humanitarian law shows that, in the view of the Security Council, the level of violence was already high and sustained enough to go beyond that associated with sporadic unrest (which would be a matter of civil unrest involving public order and human rights issues) and that accordingly a non-international armed conﬂict, or civil war, was taking place in the country. This is signiﬁcant because both sides in the conﬂict (although it is clear that the government was using much more force than the opposition) became bound to apply the law on protection of the victims of armed conﬂict – principally common Art 3 of the 1949 Geneva Conventions for the protection of the victims of armed conﬂict, Protocol II to these conventions, adopted in 1977 (Libya ratiﬁed it in 1978), as well as applicable customary international law. Most importantly, this would include the obligations not to attack civilians and civilian objects and to use only proportionate levels of force.
That the Libyan government had already breached these obligations, most notably with regard to the protection of the civilian population, was recognised in the statement, also in the preamble, that “the widespread and systematic attacks currently taking place … against the civilian population may amount to crimes against humanity”. Accordingly, the Security Council decided to refer the situation to the Prosecutor of the International Criminal Court (ICC): par 4. The ICC has jurisdiction over only the most serious offences against human rights, namely genocide, war crimes and crimes against humanity. Whilst Resolution 1970 does not refer to war crimes, those responsible for the violence may indeed have committed such offences, so long as they happened after the violence had reached a level sufficient to signify that an armed conﬂict was taking place, since war crimes can only take place during armed conﬂicts. The reference in the resolution to international humanitarian law – the law regulating the conduct of armed conﬂicts – shows that, some time between the beginning of the civil unrest and the adoption of the resolution on 26 February, that threshold was crossed.
Resolution 1970 authorised other measures, including an arms embargo on Libya, a travel ban on senior ﬁgures in the Libyan regime (as well as members of the family of Muammar Qadhaﬁ), a freeze on Libyan assets on the territory of other states and the establishment of a Sanctions Committee to monitor these measures. The resolution was adopted under Ch VII of the United Nations Charter – action with respect to threats to the peace, breaches of the peace and acts of aggression. It is binding upon all member states.
Resolution 1973 was therefore adopted in a context: the situation had been referred to the ICC, sanctions had been imposed and the ﬁghting had been qualiﬁed as a civil war, therefore making international humanitarian law applicable. But by 16 March the government forces were making signiﬁcant progress in putting down the rebellion, and were close to Benghazi, the centre of opposition to the government. Serious attacks on civilian targets were increasing and threats of extreme violence and revenge were being made against the government’s opponents, including by Colonel Qadhaﬁ himself. Resolution 1970 was simply ignored by the Libyan government.
Resolution 1973 was therefore the next step in the response of the United Nations; an escalation too because it permitted limited use of force. Par 4 provides that the Security Council:
“[a]uthorizes 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 measures, notwithstanding paragraph 9 of 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 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” [emphasis added]
Much of this paragraph referred to the formal conditions attached to giving effect to the resolution, ie, notiﬁcation to the Secretary-General and reporting to the Security Council. The use of force was justiﬁed by the phrase “all necessary measures”. This is almost the same as the phrase (“all necessary means”) used to authorise the use of force against Iraq following its invasion of Kuwait in 1990. However the use of force against Libya was limited by two conditions:
- the purpose of any action was “to protect civilians and civilian populated areas under threat of attack”;
- explicitly excluded was “a foreign occupation force of any form on any part of Libyan territory”.
These conditions clearly restricted the scope of the mandate; less clear is by how much. It should not be forgotten that ﬁve states, including Russia and China (both of which could have vetoed the resolution), abstained. This was not a unanimous vote for an attack on Libya, although there was no vote against.
The ﬁrst condition refers to the purpose of the action, to protect civilians and civilian populated areas under threat of attack. This was essentially a limited measure aimed at protecting civilians from attack; there is nothing about what happens afterwards should the resolution help to achieve this objective. Regime change was not as such mandated. However this limited objective raises further questions. Even assuming that some states were prepared to commit the resources required to protect the civilian population from attack, for how long would it go on? This could not be known when the resolution was adopted. At some stage in any conﬂict, the ﬁghting ceases, but in the absence of a political settlement it may always start again. It is unclear whether the mandate would justify renewed use of force to protect civilians. One of the problems regarding the invasion of Iraq in 2003 was that the invading states sought to rely on earlier resolutions concerning Iraq, while states opposed to the invasion maintained that the earlier resolutions had lapsed as far as the use of force was concerned. That said, there was no time limit on the mandate. Furthermore the resolution was clear that the Security Council would keep the situation under continuous review: par 28. That paragraph foresaw the possibility to review the measures imposed by the resolution but also to strengthen, suspend or lift these measures, depending upon the level of compliance by the Libyan authorities. This suggests that, in the absence of a contrary decision by the Security Council, the mandate to use force could subsist as long as necessary to protect the civilian population.
Another ambiguity, not at ﬁrst perhaps evident, was just how far could enforcement measures go in protecting civilians? The immediate need was obvious. However, while the resolution did not justify regime change as such, it could nevertheless have been used as the legal basis for other actions, so long as their principal purpose was to protect civilians. The text mentions the protection of civilians and civilian populated areas “under threat of attack”. It did not say that the threat had to be immediate or imminent (although that may have been what was intended). The threat of attack could also have been less immediate, so long as it was real. Given the public threats of violence and revenge made by Qadhaﬁ against his opponents as well as the actual violence perpetrated against the civilian population, it is arguable, based on the evidence of these acts, that other measures involving force were justiﬁed “to enforce compliance with the ban on ﬂights” (par 8), that being the principal measure approved in the resolution.
Furthermore, the authorisation in par 4 of “all necessary measures” to protect civilians is limited only by the exclusion of a foreign occupation force. One of these measures is the establishment of a no ﬂy zone. However, the resolution did not stipulate that the no ﬂy zone could be the only action to protect civilians. There is clear room to argue that further measures, additional to the establishment and maintenance of the no ﬂy zone but excluding a foreign occupation force, were justiﬁed. This means that, from the moment the resolution came into force, the door was open to take action beyond the establishment of the no ﬂy zone. Such actions could have involved attacks on ground troops or military equipment if this was required to protect the civilian population. The resolution was much wider than at ﬁrst perhaps appreciated, principally because of the focus on the no ﬂy zone.
The second condition attaching to the use of force was that a foreign occupation force “of any form” on Libyan territory was excluded. This appeared to prohibit the use of ground forces against Libya, but did it exclude them altogether? “Occupation” is deﬁned in Art 42 of the Hague Regulations of the Laws and Customs of War on Land (1907) as follows:
“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
Not all military land operations will mean that the territory affected is “occupied”. Occupation requires the establishment of control over territory, to the extent that the occupying power is able to carry out the functions of an administration. It is quite feasible that military operations not leading to occupation of Libyan territory, such as patrols and commando raids, could take place; these were not prohibited by the Resolution 1973. Whether they were anticipated is another matter.
The method of force approved in the resolution was a no ﬂy zone, but it was not the only method permitted; it was simply one measure which was positively speciﬁed. Under par 6, the Security Council ordered “a ban on all ﬂights in the airspace of the Libyan Arab Jamahiriya in order to protect civilians”. Under par 8, the Council authorised:
“Member States that have notiﬁed the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on ﬂights imposed by paragraph 6.”
So, there were two authorisations of “all necessary measures”: the ﬁrst (under par 4) to protect civilians, so long as an occupation force was not used; the second to ensure compliance with the no ﬂy zone.
Excluded from the ﬂight ban were ﬂights “whose sole purpose” was humanitarian: par 7. Examples of humanitarian ﬂights listed were for delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, as well as the evacuation of foreign nationals from Libya. Also excluded from the ban (obviously) were ﬂights “authorised by paragraphs 4 to 8” – that is, ﬂights made by those states taking part in the enforcement action against Libya.
The above analysis suggests that the no ﬂy zone was the principal enforcement measure envisaged when Resolution 1973 was adopted. However, the mandate given could also be read to include other measures short of military occupation, so long as their purpose was the protection of the civilian population. Such measures could include the use of ground forces in operations to protect the civilian population, short of occupation of Libyan territory.
The resolution was silent on the issue of regime change, but clear on the need to protect the civilian population. An analogy can perhaps be drawn here with the administration of medical treatment to deal with pain in severely ill patients: the law is clear in most jurisdictions that treatment may not be given if the intention is to hasten the patient’s death. However, where the primary purpose is to alleviate pain, treatment may be given even where one of the effects is to hasten death. In the case of Libya, the resolution did not authorise force to change the regime; it did however authorise the use of force for other purposes – to protect the civilian population. In the exercise of such force one other consequence could have been the demise of the Qadhaﬁ regime and that would not have been in breach of the resolution.
Authorisation of the use of force was the most signiﬁcant element of resolution 1973 but there were other important features. The arms embargo imposed by Resolution 1970 was strengthened: pars 13-15, and states were reminded of their obligation to prevent the provision of mercenaries to Libya: par 16. Libyan-registered, owned or operated aircraft were banned from taking off from, landing in or overﬂying all states, as were any aircraft believed to be seeking to break the arms embargo: par 18. Further measures on the freezing of Libyan assets, as well as travel bans of senior Libyan personnel, were adopted. Finally, the establishment of a “Panel of Experts” was authorised to examine, monitor and promote compliance with the two resolutions.
It is rare for the Security Council to authorise the use of force. The humanitarian motive was in this case clear, yet the abstentions by ﬁve states demonstrate how contentious such a course of action may be. On the other hand these ﬁve countries proposed no serious alternatives to military action as a means to protect civilians. Russia, China, Germany, Brazil and India might have objected to the projection of western force into North Africa but in doing so they were willing to let more Libyans die in order to stand by their principles.
This section was published in the Australian Law Journal at (2011) 85 ALJ 204.
* Editor of the International Focus section.