Memoire Online - The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

THE PROSPECT OF INTERNATIONAL INTERVENTION LEGITIMACY: CASE STUDY OF 2011 LIBYAN ARMED CONFLICT

Thesis Submitted in Partial Fulfillment of the Requirements of
MASTER'S DEGREE IN PUBLIC INTERNATIONAL LAW

DECLARATION

I, the undersigned, hereby declare that the research work done on the topic entitled: «The Prospect of International Intervention Legitimacy: Case Study of 2011 Libyan Armed Conflict », is written and submitted under the guidance of Dr. MURANGIRA B. Thierry, Senior Lecturer in Kigali Independent University (ULK).

The findings and conclusions drawn in this thesis are based on the data and other relevant information collected during the period of the research study for the award of Master's Degree in Public International Law from Kigali Independent University.

I further, declare that the thesis submitted on the research study is the original work and I have not copied anything from any report of this nature while preparing this thesis. The material obtained from other sources has been duly acknowledged in the thesis. Neither the work nor any part thereof is published in any journal or anywhere else and has nor formed the award of any degree, diploma, associateship, fellowship, titles in this or any other University or institution of higher learning.

CERTIFICATE

It is certified that the work incorporated in this thesis, titled: «The Prospect of International Intervention Legitimacy: Case Study of 2011 Libyan Armed Conflict» submitted in partial fulfillment of the requirements for the Master's Degree in Public International Law, Kigali Independent University, was carried out by Mr. ILIMUBUHANGA Jean Dieu (the research candidate) under my guidance and my supervision.

Place : KIGALI

Date :

Dr. Thierry B. MURANGIRA

(Supervisor)

DEDICATED

ACKNOWLEDGEMENT

This thesis owes a gratitude for its existence to many people who somehow contributed either by an inspiration, advice, or a support on the path to its finalization.

First of all my gratitude praising goes to the `God Almighty' I am most grateful and put forward my praise and sincere gratitude for giving me strength and spirit to complete my work successfully.

I express my gratitude to my supervisor Dr. Thierry B. MURANGIRA who scrutinized and commented on individual chapters to turn them into a valuable contribution to the existing academic literature.

My deepest gratitude belongs to my family whose support and belief in me have made all my up-to-date studies and this entire accomplishment possible.

I am forever indebted to my mother for her enduring patience, love and affection. A special word of thanks goes to my brothers, sisters, aunt and my in laws for their unstinted supports, constant encouragements and prayers.

While listing the people who deserve being acknowledged, I cannot omit the role of administrative and all lecturers of Kigali Independent University, who much helped me in the difficult moments of the Master's study and gave me a feeling that each single research fellow actually matters to them.

QUOTE

«The impossibility of gaining Security Council authorization for the intervention indicated a disturbing tension between two core values of international legal system; respect for state sovereignty and commitment to peaceful relations among nations and on the other hand protection of basic human rights»

ABBREVIATIONS AND ACRONYMS

CHAPTER ONE: GENERAL INTRODUCTION

1.1. Short Introduction

The principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in its article 2, paragraph 4 (the prohibition of the use of force), as well as in other important texts, including those on self-determination, right to sovereignty, territorial integrity and political independence. The concept includes the inviolability of the territory of the State, including territory under the effective control and possession of a State.^1(*)

As a corollary of such a notion of States sovereignty integrity, the principle of non-intervention in domestic affairs is developed in parallel with it to preserve the State's jealousy to protect its sovereignty.^2(*) Those principles sometimes are violated for different reasons.^3(*) Even if the notion of international intervention exists, there are strong and valid arguments both supporting and condemning the international intervention as a legitimate action, reflecting thus a tension between two moral perspectives.^4(*) On one hand, it is argued that the respect of the ban on use of force in the international relations for the virtue of preserving peace and stability is an imperative and should make international intervention not only illegal but also illegitimate, on the other hand, it is argued that guaranteeing international justice and protection of human rights provide interveners with the legitimate right to intervene for the humanitarian purposes outside their own territory; it is a significant tool of a moral pressure on the countries to react to the human rights violations abroad.^5(*) The international intervention should be studied and understood with all debates and controversies that are raised on. In fact, international intervention is controversial both when it happens and when it does not.

Based on challenges and gaps faced by the practice of international intervention, this study is capable to generate a comprehensive experimental evaluation of international intervention, contributing thus with a new perspective on this controversial issue. If the international intervention as a concept was accepted to be legitimate, it would have a power to challenge its presumed illegality.^6(*)

The findings of this study discover that it is possible to improve the humanitarian situation in the targeted State by waging a military intervention for humanitarian purposes,^7(*) it would serve as an empirically supported illustration of an existing gap between legitimacy and legality of international intervention, and it would provide an argument for claiming that the legal framework should catch up. If the results of this study, however, suggest that the military interventions though intended to be humanitarian tend to make the humanitarian suffering even worse, it would be an indication that the moral arguments calling for the legalization of the right of international intervention are blind toward the actual negative effects of such interventions on the target state and that the legal obstacle to such interventionism makes sense and should be legitimately kept.

Briefly stating the case of Libya as the main concern of the research, from February 15, 2011 civilians in Libya gathered for peaceful protests against the regime of Colonel Muammar Qaddafi, calling for democratic reform and respect for human rights.^8(*) The opposition group established the Interim Transitional National Council and enjoyed quick success in the beginning of the demonstrations. However, Qaddafi and his security forces responded by opening fire on crowds of peaceful demonstrators, and the situations in Libya rapidly turned into mass revolt. The victims of those firing were civilians who took part in events or delivered their testimony to the international media, activists or Foreign journalists and Egyptian and Tunisian citizens who have been arrested and mass expulsions because of their alleged links with the popular uprising.^9(*)

There are numerous uses of force against the popular revolt civilians into armed conflict after only a few days and extends several Libyan towns. On 27 February 2011, the opposition created the National Transitional Council in Benghazi, which present as the sole representative of the Libya.

The situation in Libya and the use of force against civilians are not left without the international reaction. And many international organizations have condemned the «mass violations of human rights and international humanitarian law "^10(*) and worried about this situation. On February 26, the Security Council voted for Resolution 1970 (2011), which allows referral to the International Criminal Court and the establishment of enforcement against the Libyan government.^11(*) This is the first resolution of this body for the revolt in Libya.^12(*)

On March 10, the African Union is taking a resolution at the 265^th meeting of the
Council for Peace and Security, including creating the ad hoc high-level African Union on Libya. Two days later, the Council of the League of Arab States requests the Security Council to establish non-fly zone.

Regardless of the international condemnations, Qaddafi continued the brutal crackdown and called on his supporters to attack the demonstrators.^13(*) The Security Council led to the adoption resolution 1973 determining that the situation in Libya continued to `constitute a threat to international peace and security' and called for an immediate `cease-fire and a complete end to violence and all attacks against, and abuses of civilians'.^14(*) The Council further authorized member nations to take «all necessary measures» to protect civilians. At the following, this authorization, the military coalition undertakes its first strikes against Libya.^15(*)

Before reviewing the course of the conflict, it is useful to recall the context in which the vote was resolution 1973 (2011) which was a solution for the cease fire and complete end of abuses against civilians. This allows the use of force by Member States or regional organizations to enforce compliance area to fly and to protect civilians. In this regard, the Security Council "to declare deeply concerned by the deteriorating situation, the escalation of violence and the heavy civilian casualties, condemn the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and executions summary".^16(*)

It is therefore appropriate to keep in mind this item to analyze more precisely the authorization is made by the Security Council. The researcher can now recall the course of the conflict in Libya, from the intervention of the international coalition.

The practice of international army in Libya had been contrary with its mission of enforcing compliance area to fly and protecting Libyan civilians when we refer to the article 51 regarding the use of force. Instead, the international intervention of NATO in Libya had deviated from its mission by helping the rebels against the government troops, but was blind to the human rights violations being committed by both Libyan sides.

1.2. Statement of Problem

International law is such a broad research topic which can entail state building, diplomatic relations, humanitarian intervention and human rights protection.

The exercise of international intervention can potentially conflict with states' sovereignty. In Public International Law, all states are governed by general principles such as:

In the present case study of Libyan, such principles have not been respected basing on the position coming out of the realist tradition of state sovereignty and noninterference which differ automatically from the position of those who claim that there is an established customary right of international intervention regardless of existence or absence of authorization, which is based on the commitment of the UN Charter to protect human rights globally.^18(*)

The international intervention remains legally controversial even after being authorized by the UN Security Council, since using force for the humanitarian purposes does not qualify as fulfilling any of the accepted exceptions to the ban on the use of force.

The concept of international intervention in Libya is still problematic due to some interest of intervene forces. Its controversial nature is reflected already by the fact that it is attempting to bridge two instinctively incompatible words: `for the humanitarian purpose' and `military intervention'.^19(*) Nevertheless, this concept has already become established in the field of research and in the minds of general public and it appears to be too late to try rejecting it^20(*) seeing the argumentation of consequentialist ethics which states that no matter how well intentioned international intervention can easily produce more problems than it solves, resulting in a negative humanitarian outcome.^21(*)

Intervention could, for example, provoke a violent resistance by the Government of the target country; may provoke a violent reaction of the government in the neighboring state; alternatively, it may also prolong or intensify the conflict by injecting the new weapons and men power into the conflict zone or by increasing the prospects and willingness to fight of the conflict party in those support the intervention was carried.^22(*)

The researcher bears in mind that it is impossible to evaluate precisely in advance whether some interventions can succeed or not, since there are simply too many unknown and unpredictable factors outside the control of the intervener.

International intervention is easily associated with the concrete images of humanitarian suffering and imposed military violence, which evoke in each individual strong opinions and emotional reactions to the question of its justice or injustice. This highly normative nature of international intervention complicates the scholarly debate about the concept and keeps the international society short of any consensus on the most basic questions of its definition, legality or legitimacy.^23(*)

The legitimacy of international intervention in general can be resumed to be controversial for reasons opposing it like: the first objection follows the realist way of thinking by claiming that the establishment of such a right would endanger international peace and stability that could unleash an uncontrollable anarchy.^24(*) Second criticism of the Humanitarian Military Intervention (HMI) concept questions the real motivations of the interveners and the related abuses of the right of international intervention mainly for the national interests. Next critical argument suggests that establishment of the right of international intervention could be extremely prone to the potential abuses for the sake of power politics of those countries, which have the sufficient financial and military means to actually conduct such endeavors.^25(*)

Another argument is one of the pluralists who argue that there is no common universal agreement on the political, social and cultural values; and stress that each society cherishes different religious, ethnic, and civilization habits. As a result of that, it is very subjective to evaluate certain policies as being oppressive toward the human rights and thus as being a viable reason for a breach of some state's sovereignty.^26(*)

Another opposing argumentation is one of consequentialist ethics. It states that no matter how well intentioned international intervention can easily produce more problems than it solves, resulting in a negative humanitarian outcome. For instance, the mandate established from 1973 Resolution, was the protection of civilians but the bombing of targets in accustomed areas of Tripoli is aware of protecting civilians for example on 31 May 2011 the NATO strikes have left up to 718 civilians dead in Libya.

The last opposing argument is one of the interventions for humanitarian reasons but invoking military personnel which complicates and endangers work of the non-military humanitarian workers stationed in the conflict zones.

Only after concluding whether such a concept is or is not legitimate, it is possible to confront its assessed legitimacy with its existing legal status, and to call for a potential revision of law in case of a discovered non-compliance of the legal interpretation with the carried out legitimacy judgment.

1.3. Research Questions

To address the mentioned challenges and gaps, this study attempts to formulate answers to the following questions:

1. Does the concept of Libyan international intervention by NATO in 2011 comply and evaluated on the basis of theoretical frameworks of 1973 UN resolution in practice based on principle of «Just War» ethics and consequentiality ethics?

2. If the legitimacy and the legality of international intervention in Libya were in doubt by deviation from mission set out in UNSC 1973 resolution, wasn't it propelled by geostrategic and economical motive?

1.4. Hypothesis

Construction of hypothesis has an important consideration in the formulation of research problem. A hypothesis is a tentative supposition or provisional guess which seems to explain the position under observation. An hypothesis is also intelligent guess, a supposition, inference, provisional statement or tentative generalization as to the existence of some fact, condition or relationship relative to some phenomenon which serves to explain already known facts in a given area of research and to guide the search for new truth on the basis of empirical evidence.^27(*)

1. International intervention in Libya by NATO in 2011 does not comply with the 1973 UNSC Resolution.

2. International Intervention in Libya by NATO in 2011 was for political purpose, which led to the negative humanitarian outcomes.

1.5. Research Objectives

- Analyze what are the lawful mechanisms of implementing UN Resolutions and the international intervention for not to result into failure.

- Show the weaknesses of mechanisms of insuring neutral and fair humanitarian intervetnion during a mandate of implementation of UN resolutions;

- Formulate suggestions that will help the international community in the establishment and enrichment of rules guiding the international intervention and their applicability.

1.6. Significance of this Study

This research is a vital tool for potential end users. Since the creation of the UN, it has been adopting Resolutions but the ways they are put in practice differ from the content of those resolutions and indeed failure should occur. The case of Libya and Rwanda is the typical reference. Worse still, if such a failure occurs, the international community does not react consequently to eradicate it.

In this context as a supporter of the realization of human rights, this study will enlighten the academicians and researchers how sometimes the international intervention violated the guideline provided by its authorizations, for the lawmakers and actors of justice this research will enlighten them how the UNSC resolution should be interpreted accordingly to the balancing the international intervention and human rights protection issues. For the international community and UN this research will help them to know how norms on the protection of civilians look good on paper but are worthless in practice. For the policymakers this research will help them to estimate and work towards a reasonable prospect of success in terms of International Intervention.

1.7. Research Methodology

Choosing an appropriate research methodology is an essential part of any research study. In order to achieve the aim and objectives of this research and answers to the research questions, this research has pursued doctrinal method.

The method used in doing this present research is Doctrinal research methodology which is concerned with the formulation of legal `doctrines through the analysis of legal rules. A researcher has mainly been to study works by academic scholars, works written in different times and in various countries, and therefore represents a variety of views and perspectives, in order to get a general view of the topic. A large part of the preparatory work consisted of finding and choosing the «right» articles and books in order to get a full and comprehensive view of the question. The research is therefore concerned with the discovery and development of legal doctrines for publication in textbooks or journal articles and its research questions take the form of asking `what is the law'. The literature chosen covers the subject in a satisfactory way. The vast majority of the material used was written directly or indirectly as contributions to the since a long time ongoing international discourse on the subject.

1.8. Scope of Study

This study is delimitated at three levels as within a fixed period of time, domain, and space. In domain this topic is limited in Public International Law especially in human right and international humanitarian law. In space it deals with the Libyan international intervention. Finally in time, it analyzes the prospect of International intervention legitimacy, the case of Libyan conflict 2011.

During this point, some key concepts are defined. A researcher defines the concept of International intervention, State sovereignty, war or conflict.

According to the Jennifer M. Welsh, Humanitarian intervention is defined as the use of force by one country or sovereign state in the internal or external affairs of another. In most cases, intervention is considered to be an unlawful act but some interventions may be considered lawful."^28(*) This definition may be too narrow as it precludes non-military forms of intervention such as humanitarian aid and international sanctions. On this broader understanding, "Humanitarian intervention should be understood to encompass non-forcible methods, namely intervention undertaken without military force to alleviate mass human suffering within sovereign borders».

The term State sovereignty in international law is define as nonphysical juridical entity of the international legal system that is represented by one centralized government that has supreme independent authority over a geographic area. International law defines sovereign states as having a permanent population, defined territory, one government, and the capacity to enter into relations with other sovereign states.^29(*) This definition implies that a State is neither dependent on nor subject to any other power nor state.

The term war or armed conflict is define as contested incompatibility which concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state.^30(*)

1.10. The Structure of the Research

This work is divided into five chapters. The introductory chapter fixes the context, the aims, goals and the expectations in undertaking a work of this magnitude. This chapter presents with general introduction of the study, it will discuss the background of the study, the problem statement, the research objectives, the research question, the hypothesis and finally the significance of the study.

The second chapter entitles literature review, it focuses on humanitarian intervention, some key concepts such as armed conflict, sovereignty, etc. are defined and reconsidered the principles of public international law, especially the principle of humanitarian intervention and the principle of sovereignty of States, interference and the principle of non-intervention and at the end discussed the use of force in international relations and humanitarian intervention.

The third chapter focuses on the critical analysis of the NATO humanitarian intervention in Libya. In this chapter, a researcher analyzes the foundations of the intervention, the absence of indisputable legal basis and in fine, exceptions to the principle of non-intervention. In this regard, a researcher examined the doctrine of humanitarian intervention to the rules of current international law. Based on the principle of sovereignty, a researcher noticed that the provisions of the Charter of the United Nations and the interpretation given by the doctrinal tend to legitimize an armed humanitarian intervention.

The 4^th chapter presents the matter of suggesting in some ways to address the issue of military interventions that all overpass their expected objectives. The fifth chapter and last of this work presents the conclusion of work, testifying of hypothesis and it is concluded by suggestions and recommendations.

CHAPTER TWO: HISTORICAL BACKGROUND OF HUMANITARIAN INTERVENTION UNDER INTERNATIONAL LAW

2.1. Introduction

This second chapter devoted to the literature review lays the basis for understanding the body of this study on various concepts such as humanitarian intervention and the questioning of principles of the public international law. In this respect, for this study analysis, will be developed the concepts of war and its typology, sovereignty, jus ad bellum and jus in bello and three principles interesting the topic such as the sovereignty of States , the principle of nonintervention and finally, the principle of the prohibition of the use of force.

2.2 War or Armed Conflict

Armed conflicts are as old as humanity. There have always been customary practices in war situations, but it is only in the last 150 years that States established international rules conceived to limit the effects of armed conflict for humanitarian reasons. The Geneva Conventions and the Hague Conventions are the main examples of international standards attempting to regulate the conduct of wars. These rules, usually called "international humanitarian law", are also known as the law of war or law of armed conflicts.^31(*)

Wars or armed conflicts are diversified depending upon the manner they are conducted and even belligerents. How is the term 'armed conflict' defined in international humanitarian law? International humanitarian law distinguishes two types of armed conflict: the international armed conflict between two States or more, and the non-international armed conflict between the Government forces and non-governmental armed groups, or groups between them.^32(*) International humanitarian law treaties also make a distinction between the non-international armed conflicts within the meaning of article 3 common to the Geneva Conventions of 1949, and who falls within the definition contained in article 1 of additional Protocol II.

2.2.1. International Armed Conflict (IAC)

Article 2 common to the Geneva Conventions of 1949 provides that apart from the provisions which shall enter into force from the time of peace, this Convention shall apply in the event of declared war or any other armed arising between two conflict or more of the High Contracting Parties, even if the State of war is not recognized by one of them. The Convention shall apply in all cases of occupation of all or part of the territory of a high contracting party, even if this occupation meets with no armed resistance. According to this provision, international armed conflicts are those that take place between "High Contracting Parties", i.e. between States. The relevant rules of IHL may be applicable even in the absence of hostilities. In addition, no formal war declaration or recognition of the situation is necessary. The existence of an IAC, and thereby the possibility of applying international humanitarian law to the situation, in fact depends on what happens on the field. These are facts that are decisive. For example, it is possible to have an IAC, even if one of the belligerents does not recognize the Government of the adverse part.^33(*)

The commentary to the Geneva Conventions of 1949 confirms that any dispute arising between two States and provoking the intervention of members of the armed forces is an armed conflict, the meaning of article 2, even if one of the Parties challenged the State of belligerency. The duration of the conflict or the more or less deadly nature of its effects play no role.^34(*)

Additional Protocol I covers no regular armed conflicts between States, it expands the definition of the IAC in armed conflicts in which peoples are fighting against colonial domination, foreign occupation or racist regimes by making use of their right to self-determination (wars of national liberation).^35(*)

2.2.2. Non-International Armed Conflicts (NIAC)

To understand what is a NIAC in international humanitarian law, should be consulted two main legal sources: common article 3 to the Geneva Conventions (GC) of 1949 and article 1 of additional Protocol II. Common article 3 to the GC applies in case of armed conflict with no international character and arising in the territory of one of the High Contracting Parties. Also included are the armed conflicts involving one or more non-governmental armed groups. Depending on the situation, hostilities may oppose Government armed forces and non-governmental armed groups or between such groups.

To distinguish between an armed conflict within the meaning of article 3 common, other forms of violence less serious, such as civil strife and internal tensions, riots or acts of banditry, the situation must reach a certain level of confrontation. Usually, it is recognized that the lower limit in the art.1, par.2 PA II, which excludes internal tensions and civil strife of the definition of the NIAC, applies also to the article 3 of common Geneva Conventions. In this regard, two criteria are commonly used^36(*):

? First, hostilities must attain a minimum level of intensity. This may be the case, e.g. when hostilities have a collective character or when the Government is forced to resort to military force against insurgents, rather than the simple forces of police.

? Second, non-governmental groups involved in the conflict should be considered as "parties to the conflict", meaning that they must dispose of organized armed forces. For example this means that these forces should be subject to a certain structure of command and should have the ability to conduct sustainable military operations.^37(*)

To conclude this distinction, there are international armed conflict whenever there is use of armed force between two or more States while a non-international armed conflict is a prolonged armed confrontation between Government armed forces and the forces of one or more armed groups, or such groups between them, and which occurs in the territory of a State (party to the Geneva Conventions). This armed confrontation must attain a minimum level of intensity and the parties involved in the conflict must demonstrate a minimum of organization.^38(*)

2.3. Sovereignty in International Norms

Sovereignty means the exclusive right to exercise political authority (legislative, judicial, and/or executive) over a geographical area or a group of people living in the community. The concept emerged with that State, in the middle ages. The sovereign is therefore initially an identified person (the representative of the State, the King) then more and more the person detaches to become a theoretical concept independent and timeless. Sovereignty is in State principle, but today there is a concept of sovereignty that stands out more in addition to the States.

2.3.1. Sovereignty Characterizations under International Law

According to the French writer BODIN, sovereignty stands for a pillar to the analysis of the State: "sovereignty is an absolute and perpetual republican power ... that is the greatest power to control".^39(*) Absolute and perpetual, sovereignty is above all because it "is limited in power or in charge at some time".^40(*) After the works of Bodin, a conceptual uncertainty will remain around this notion. In German, the literal translation, Souveränität is thus a false friend: only the term Staatsgewalt allows a suitable translation. In England, the Sovereignty refers only to an absolutist exercise of power, closer ultimately imperium or the summa potestas.^41(*)

Today defined in law is as stated by Louis Le Fur at the end of the 19th century: "sovereignty is the quality of the State not to be required or determined than by his own will, within the limits of the higher principle of law, in accordance with the collective goal he is called to realize". Definition retains therefore two criteria^42(*):

· On one hand, the sovereign State is that according to his own will, it is the corollary of the right to self-determination (right of peoples to self-determination).

· On the other hand, this desire can occur only within the rules of law. Nowadays, it should complement this definition by another limitation on the sovereignty of States: the activity of international organizations, mainly those that exist for the inter-State coordination.

An American political scientist, Stephen Krasner, limits the dimensions of sovereignty questions of authority and control. However, this position remains questionable. The concept of terra nullius can be used for the acquisition of sovereignty over a territory without a master.^43(*)

2.3.2 Relationship between Sovereignty and Competence

According to the classical definition of German constitutional law which is very often referred to, sovereignty is the 'competence competence' (the «Kompetenz-Kompetenz" of the German Constitutionalist Georg Jellinek), that is one who decides what competent people for such or such material is the sovereign.^44(*) The sovereign can therefore delegate or transfer skills, unless this affects its sovereignty, as long as it retains the possibility of resuming these abilities.^45(*)

In French constitutional law, the Constitutional Council distinguished transfers of competence by the French State to the European communities from the transfers of sovereignty. The first are allowed: they consist of a transfer that is reversible, while the latter are unconstitutional, because final. However, many critics of the Union consider this difference as of only semantic in nature, since even if it is possible that the France sort of Union and finds its full powers, it is highly unlikely.^46(*)

But the sovereign delegates not all his exercise. With the emergence, under the effect of political liberalism, of the theory of a minimalist interventionist State, the powers in the State were restricted to what is called its regalia functions, i.e. the minimum of all sovereign powers, which cannot be the subject of any delegation. However, by the theory of the welfare State, developed in reaction against the minimalist State, other competences, social order, are parts of the exercise of sovereignty.

2.3.2.1 Typology of Sovereignties

According to Jean-Fabien Spitz in John Locke and the foundations of modern freedom (2001), introduction of the concept of sovereignty in political philosophy at the beginning of the modern era seems to have resulted in a final move of the relevant issues: it is more whether a power is fair (which amounts to make the existence of the power on its character), but to know who owns the power of order and how that power was conferred. ^47(*)

However, this typology based on people who have sovereignty and the manner in which it was conferred to them shows its limits today, since it causes confusion. Modern typologies are therefore based on the forms of sovereignty. For instance in classical typology, there is confusion of the sovereignty of divine right of Kings and Royal sovereignty.

2.3.2.1.1 Sovereignty of Divine Law

In theocratic regimes, sovereignty belongs to God's representative. There were attempts of theocracy in the 13^th century, when Popes tried to impose their will on the Kings. The very example on that can be disputes between Philippe le Bel and Boniface VIII thereon.

2.3.2.1.2 Royal Sovereignty

In a monarchy, sovereignty belongs to the King. In this type of regime, the people keep a power of expression. There arises a certain confusion of royal and divine sovereignties. Most monarchical regimes are in reality of divine law and therefore Kings and popes were monarchs. One contrasts rather spiritual power (direction of believers) and temporal (secular) power. The Pope possessed two powers, the first on the Church (community of believers) while the second was limited to his lands. The King exercised that temporal power over his subjects.^48(*)

2.3.2.1.3 Popular Sovereignty and National Sovereignty

Popular sovereignty was defended by "radical" revolutionaries, including by some prominent philosophers of the enlightenment with first place J.J. Rousseau in his book «Social contract» Every citizen has a share of sovereignty and this translates traditionally a direct democracy scheme, with universal suffrage, since no one may be deprived of part of the sovereignty which is conferred on every citizen.^49(*)

Popular sovereignty is based on the people, i.e. the set of current citizens of a country (so it's a real set, taking into account the living, unlike national sovereignty). It cannot express directly, it is physically impossible. That is why the people will resort to representatives (politicians), who will get an imperative mandate: these elected officials will be required to do exactly what they were elected for: they will have to run what told them their voters, in fact, they have an obligation to act for the good of their constituents (and not for the common interest) as in the case of national sovereignty, and if they do not, they can then be removed, the will of the people being untouchable and inviolable.^50(*)

The people cannot make laws contrary to its interests, laws are necessarily fair: it is the principle of rule of law.

On other hand, national sovereignty is a concept developed by Sieyès. According to this view, sovereignty belongs to the nation, an abstract and indivisible entity. This set is fictional because it is not limited only to present citizens, but includes the citizens of the past and the future; It is greater than (individuals) are composing. National sovereignty translates a representative system, since the Nation can govern directly, being fictional: there are thus use proxies, holding a representative mandate, representatives. They work in the interest of the Nation and each represents the fully (and not their only voters). The Nation being fictitious, there may be control over them; to avoid that they abuse their power, it must implement the balances (separation of powers at the horizontal level (for functions), federalism in the vertical level (by levels of territories).^51(*)

National sovereignty is also in the sense of a census suffrage, even if it is not fundamentally opposed to universal suffrage. In fact, even by vote all the citizens of a country, only a tiny part of the Nation could vote. There can be limit of voters number, focusing on those considered to be the most capable (ability to read and write, understand political life, have the time and the necessary independence, wealth, etc).^52(*)

2.4 Jus Ad Bellum and Jus In Bello

Under international law, there are two distinct ways of looking at war, «the reasons you fight and how you fight». In theory, it is possible to break all the rules while fighting a just war or to be engaged in an unjust war while adhering to the laws of armed conflict. For this reason, the two branches of law are completely independent of one to another.

2.4.1. Jus Ad Bellum

Etymologically originating from Latin jus: law; ad: to; bellum: war, Jus (or ius) ad bellum is the title given to the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just.^53(*) The principal modern legal source of jus ad bellum derives from the Charter of the United Nations, which declares in Article 2: «All members shall refrain in their international relations from the threat or the 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»; and in Article 51: «Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations».^54(*)

2.4.2. Jus in Bello

Etymologically originating from Latin jus: law; in: during; bellum: war, Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. So a party engaged in a war that could easily be defined as unjust (for example, Iraq's aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of the war, as would the side committed to righting the initial injustice.^55(*) This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for conduct of hostilities. Other principal documents include the four Geneva Conventions of 1949, which protect war victims, the sick and wounded (First); the shipwrecked (Second); prisoners of war (Third); and civilians in the hands of an adverse party and, to a limited extent, all civilians in the territories of the countries in conflict (Fourth) and the Additional Protocols of 1977, which define key terms such as combatants, contain detailed provisions to protect noncombatants, medical transports, and civil defense, and prohibit practices such as indiscriminate attack.^56(*)

There is no agreement on what to call jus in bello in everyday language. The International Committee of the Red Cross (ICRC) and many scholars, preferring to stress the positive, call it international humanitarian law (IHL) to emphasize their goal of mitigating the excesses of war and protecting civilians and other noncombatants. But military thinkers, backed by other scholars, emphasize that the laws of war are drawn directly from the customs and practices of war itself, and are intended to serve State armies. They commonly use the more traditional rubric, the laws and customs of armed conflict or more simply, the laws of war.^57(*)

2.5. Principles Governing International Intervention

International law contains various rules on which are based armed interventions in targeted territories. Through the following lines, a researcher will deal with humanitarian interference and sovereig nty.

2.5.1. Humanitarian Intervention and Principle of Sovereignty of States

The principle of State sovereignty is a principle on what are based the relations between Member States of the United Nations since the end of World War II, and affirmed by the Charter of the United Nations.

Sovereignty means in addition that a State which has violated human rights cannot be brought to justice only when it accepts or accepted the jurisdiction of a judge. With the exception of some regional mechanisms (European Court of human rights, Intermediate Court of human rights, for example), so it is extremely difficult to obtain the conviction of a State for violation of Human Rights by an International Court. And even if you got it, nothing guarantees the enforcement of the judgment; sovereignty is inconsistent with the existence of a kind of "international police" at the global level.^58(*) But the State sovereignty today seems to be limited by humanitarian intervention.

2.5.1.1. Humanitarian Intervention

The idea of humanitarian intervention appeared during the war of BIAFRA (1967-1970). The conflict caused a terrible famine, widely covered by Western media but totally ignored by the heads of States and Governments on behalf of neutrality and non-interference. This situation has resulted in the creation of NGOs as Médecins sans Frontières, which defended the idea that certain healthy situations can justify extraordinary delivery cause of the sovereignty of States. The concept has been theorized by the ends of 1980 by the law professor Mario BETTATI and the politician Bernard KOUCHNER.^59(*)

This notion of interference can lead to the confusion and interfere with the principle of the sovereign equality of States. So to understand this intermediary notion of interference, it fits to clarify first its definition and secondly, to specify its content.

The defenders of humanitarian intervention justify it primarily not of an ethic of emergency: "we can't let people die". It has its basis in the Universal Declaration of Human Rights (UNDHR) of 1948. For them, "interference is therefore legitimate that when it is motivated by a massive violation of human rights and it is framed by a supranational body, typically the United Nations Security Council".^60(*)

For Mario BETTATI, intervention means, in international law, interference without title of a State or an international organization in cases that reveal the exclusive jurisdiction of a third State".^61(*) It should, therefore, retain within the scope or the umbrella of the right of humanitarian intervention as the cross-border actions of Governments or public international bodies, excluding NGOs insofar, as their name shows, they are non-governmental.

A researcher does note also that the right of intervention as defined by its creators is, for them, a duty that became matter of international law. However opponents of the concept see it as "a duty which just reveals that a neo-colonialism which seems inappropriate, illegal so that no credits no validity is recognized with the right of intervention".^62(*)

2.5.1.1.1. Content of Humanitarian Intervention under International Law

Humanitarian intervention is a concept apparently discussed and challenged since its origin, in 1987, with the advent of cross-border organizations (Médecins du monde, Médecins sans Frontières, Reporters without borders, etc.).^63(*) The right of intervention includes ethical, political and legal content. It is both "right of", «right to», and even «duty», according to the coast where lies, moral man, doubly, consider it necessary to take action and feels right to act, or well on the side of the victim who is entitled to expect a help. The right of intervention sounds as both a duty and a right. It is right for the intervener; and it is right and duty both for the intervener.

Humanitarian intervention remains a concept prohibited in international law as being not consecrated by a rule of law or the Charter of the United Nations. But that notion seems advanced today with the powerful States actions for the broad interpretations of the resolutions of the UN Security Council while claiming preserved international peace and human rights. Thus, for example the Charter, in its article 42 provides: "If 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 international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. This action may include demonstrations, blockade measures and other operations by air, naval or land of members of United Nations forces. This is what is commonly called "United Nations peacekeeping operation".^64(*)

Even if the Charter doesn't authorize the United Nations to intervene in affairs that essentially fall within the national jurisdiction of a State, "it recognizes them the right of application of coercive measures under Chapter VII".^65(*)

In addition, this study should note that humanitarian intervention is a political right to which are reserved assessment and determination of ethical standards that would justify interference. The policy of the intervening State determines also the opportunity, the nature, degree and duration of the interference.

On the other hand, OLIVIER RUSSBACH even thinks that interference is an attempt to swindling, "misuse of humanitarian law" created since Henry Dunant with Red Cross and confirmed by the Charter of the United Nations, the Hague convention and the Geneva conventions (1949) and their additional protocols(1977).^66(*) It is said to be "one right to the uncertain basis, inaccurate content and variable geometry". It was thought capable of justifying any sort of intervention, even aggressive and secretly loaded of desire for hegemony, intensification of exploitation and re-colonization of poor countries.^67(*)

It is on behalf of a moral conscience supposed to be universal and, in particular, on behalf of the moral of the human rights that the right to intervene is affirmed with insistence^68(*). The French Bernard KOUCHNER and Mario BETTATI, early proponent of this 'new' right, based on a 'morality of extreme urgency facing the inhumanity and the barbarity of the end of the 20th century'. The right of intervention is therefore always already, as observed BETTATI, a component of humanitarian law. Any other kind of interference is unfounded, unlawful, a pure and simple assault. Based on the "morality of extreme urgency; the right of intervention gives an ability to reply to the «misfortunes of others», a right to act in favor of others, and without their consent if necessary. It is based on aspiration whose legitimacy prohibits the conscience to refuse providing assistance to anyone who is in real danger of death and indignity".^69(*)

Even if the concept of humanitarian assistance is recognized to States since December 1988, some believe that it should remain in the sphere of strictly moral values. This notion is totally contrary to the basis of international law which states that a State is bound by a rule of law unless he accepted in ratifying a treaty or adhering to a pre-existing rule. In practice, actions of humanitarian intervention are always implemented by national contingents; fact that may involve two quite different situations; the 'right' of interference and the 'duty' interference.^70(*)

For Jean-François REVEL, meanwhile, the right of intervention is the recognition of the right of one or more nations to violate the sovereignty of another State, granted by a supranational authority. In practice, on behalf of the humanitarian intervention, it is not uncommon that the mandate be provided retroactively: thus the intervention of France in Ivory Coast is made initially without UN mandate.^71(*)

However, the duty of interference is an obligation which is made to all States to provide assistance at the request of the supranational authority. It is clear that it is this concept which is closest to the original concept of humanitarian intervention. It is also widely rejected by States members of the United Nations who see it as an unacceptable challenge to their prerogatives.^72(*)Despite the noble ideas of the concept, which prioritizes among values democracy and respect for human rights it has from its origin aroused questions and criticisms.

As matter of fact, the mission of interference is sometimes contrary to the fundamental objectives of the United Nations (peacekeeping), in any case always conflicted with article 2§7 of the Charter of the United Nations. For many jurists, the creation of this concept has no reason to be. Indeed, the Charter of the United Nations already contains numerous provisions to that effect, in particular, in chapters VI and VII. It was not matter of creating a new right, but the implementation of a right already simply existing.^73(*)

More fundamental than this legal problem, humanitarian intervention suffers from a number of contradictions that are mainly due to the confusion deliberately maintained between right and duty to intervene. It is indeed difficult, under these conditions, to separate the humanitarian motives of political ends and to ensure a total disinterest of the powers involved.^74(*)

Although the declaration of human rights is qualified as universal, it was strongly influenced by the works of Western philosophers of the age of enlightenment and more generally by the Judeo-Christian morality. The interference has always been an action from the Northern countries facing the countries of the South. It is thus unthinkable that Rwandan troops will one day be responsible for peacekeeping mission of peace in Northern Ireland or that Lebanese will operate in the USA.^75(*)

Actually, powerful countries have little risk to be target of an action of interference. For example populations of Somalia are probably as much in danger today than the Ukraine were in a few years, but Russia being infinitely more powerful on the international level than Serbia, it is unlikely that international action to take place there.

In the West also, humanitarian intervention has opponents. For them, it looks like the colonialism of the 19^th century; spreading the values of liberal democracy and whereas other cultures as negligible. It is accused of eventful character: tending to appear in hot action, to give good conscience to Western viewers and neglecting the conflicts forgotten by the media or some them chronic as proves it the crisis around the American intervention in Iraq, the delicate balance between the suppression of the former executioners and respect for the sovereign equality of nations remains so to find.^76(*)

However, the researcher has to emphasize with serenity that international law does not allow a State to intervene in internal affairs of another, even under the pretext of humanitarian intervention. This practice should be rejected under the principle of sovereignty of States.

2.5.1.2 The Principle of Sovereignty of States under International Law

The principle of sovereignty is set forth in the relations between States. This sovereignty implies both the exclusivity of the jurisdiction over the national territory, the possibility of delegating to regional communities as well as the full independence of the State towards foreign power or other persons with a foreign attachment. However, this principle has some limitations or exceptions.

2.5.1.2.1. Application of the Principle

The States rely on the principle of sovereignty to deny any outside interference and subtract any particular problem from the intervention of other States. This principle is constantly reaffirmed and the rights it grants to the State are jealously claimed and particularly enshrined in the constitutive instruments of international organizations.^77(*)

Thus, for example, article 2 §7 of the Charter of the United Nations enshrines the notion of "reserved domain" or "national jurisdiction" of the article 2§7 states : "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. This text therefore recognizes the scope of responsibility of a State in which only the State can intervene and in doing so, both enshrines the principle of the sovereignty of the State and of non-interference in the internal affairs. This text therefore recognizes the scope of responsibility of State in which only the State can intervene and doing so, both enshrine the principle of sovereignty of the State and of-interference in internal affairs.^78(*)

The problem which arises in this connection is to know who is responsible for determining if a matter falls within the domain of the State, because any State may, on the basis of article 2 §7, prevent any international initiative to resolve a conflict and completely cripple the international organization, on the pretext of rejecting the interference in its internal affairs. This is what occurs particularly at the UN, which can thus be reduced to its impotence because the use by States of the principle of sovereignty is not exempted from arbitrary or abuse.^79(*)

Another example is the Charter of the African Union (AU) which refers expressly to the principle of the sovereignty of the States: article 3 "solemnly" proclaims the principle of respect for sovereignty and territorial integrity of each State and what is closely related «it's an inalienable right to independent existence".^80(*) There too, the principle of the sovereignty of States is linked in the same text, to "non-interference in internal affairs».

2.5.1.2.2 Internal Sovereignty

According to S. DREYFUS, "at the internal level, the State is master in itself (...)»^81(*) but being his own master at home should not induce States to exercise an arbitrary power. But all depends on the internal structures of the State, because limits to its power and brakes to the arbitrariness of its action are linked to the political regime and cannot be determined by the rules of internal law.^82(*)

Furthermore, it should be noted that the State has tasks that aim at the maintenance of order indoors. In the broad sense, it is, of course, matter of public order that fit within the mandate of the Government. It is also matter of justice which belongs to all courts established in the country. But these are there minimum tasks and objectives which call, actually, other interventions of the State provided it is easy fix limit of their action.^83(*)

In any case, it should certainly be regarded as an integral part of the functions of sovereignty those relating to administration, the enactment of laws, the monopoly of the public force, money, army, etc.

2.5.1.2.3. External Sovereignty

The existence of a sovereign power within the State implies the absence of any other power able to interfere in the internal affairs, or to dictate its behavior in the conduct of external relations. In the exercise of external sovereignty, the State must maintain relations with the outside world and must also defend its territory against external aggression.^84(*) As far as foreign policy is concerned, States are free to conduct their external policy; they are sovereign to choose partners with which they will maintain relations and cooperation. In this context, the State must endeavour to maintain good relations with foreign countries and international agencies on behalf of its own interests.

In addition, the major objective of national defence is the maintenance of the independence of the State within the precise limits and in freedom, to ensure peace and security. However, the body responsible for this task is the armed forces of a State which must be able to handle external aggression that violates the sovereignty of a State.

2.5.1.2.4. Limits and Exceptions to the Principle of Sovereignty

The principle of the sovereignty which the States claim as sacrosanct value sometimes has certain limitations in its exercise. This joins the well known principle in International law whereby "nothing is absolute in international relations".^85(*)

An example is linked to very ancient customary rules borrowed from the law of the sea regulating of what is called the right of "innocent passage" in territorial waters. Although this maritime area adjacent to the coast is subject to the sovereign authority of the coastal State, it can prohibit the passage of some foreign ships both that this passage is "harmless" and therefore does no infringement to its security. Another example relates to the agreement of the State concerned: when a State agrees to submit to the jurisdiction of an International Court, the ICJ and arbitral jurisdiction, it undertakes, in advance, to comply with the decision of an authority external to itself and on which it has no control. It therefore agrees to limit for a given case, the scope of its sovereignty.^86(*)

Membership of a State to an international organization also implies a limitation of sovereignty, expressly accepted in a treaty. It is the same for regional and sub-regional organizations (European Union, African Union, East African Community, SADEC, etc).

Ultimately, the principle of sovereignty, being enshrined by all the constitutions of the world which grant the State multiple missions that are defined for its durability, characterizes a power which admits no other above him. It is therefore linked with the principle of non-intervention or the principle of non-interference in the internal affairs of another State. Notwithstanding, it is possible that when a Government violates human rights or allows their violation, a unilateral armed intervention would be allowed. It is the duty or at least the right of humanitarian intervention.^87(*)

2.5.2. Interference and Non-Interference Principle

To understand the principle of non-intervention, it is firstly important to define it, then to briefly develop its content and finally end with its limitations.

The principle of non-intervention means the prohibition against any State, as a corollary of the principle of sovereign equality, to interfere in the internal or external affairs falling within the exclusive jurisdiction of another State.^88(*) In this sense, it stands for "non-interference". This principle involves the right of a State to conduct its affairs without external interference, although not few examples of violations of the principle as the ICJ had the opportunity to say: "Between independent States, respect for the territorial sovereignty is an essential basis of international relations".^89(*)

International law also requires respect for the political integrity. It is not difficult to find many expressions of 'opinio juris' on the existence of the principle of non-intervention in international customary law.^90(*)It is appropriate, furthermore, to note in the same context that the "concept of the exclusivity of the jurisdiction of the State has as consequence the prohibition of other States to intervene in matters that fall within the domain of the State. However, if the principle of non-intervention or non-interference is unquestionably granted by the positive law, its precise contours are not less uncertain.^91(*)

However, in a more narrow sense, non-intervention means, for a subject of law, the respect for the principle prohibiting ignorance of territorial integrity of another State or using force or similar means.^92(*)

2.5.2.1 Content of the Principle Non Interference

If the principle of non-intervention is deeply rooted in positive law, its scope remains uncertain both in what concerns subject only to the terms of the prohibited intervention. Regarding the object, note that the attempt is permanent for the States to appeal to the principle of nonintervention in the systematic way if necessary, giving him a very broad: "manipulation, diplomatic of the theory of the reserved area promotes a return to the initial design of the domain reserved by nature and its unilateral and exclusive definition by each State".^93(*) In its ruling on military activities (Nicaragua versus USA), the ICJ, without claiming to give a general definition of the principle of non-intervention, however provide important details on its constituent elements. General formulations accepted this principle prohibits any State or group State to intervene directly or in the interior or exterior of another business State indirectly.^94(*)

The terms of prohibited intervention could be justified by the passage from the judgment of the ICJ (case Nicaragua versus USA) 1986 which highlights the fundamental character of the prohibited intervention it has an element of coercion. As a result in particular that mere verbal criticism or offers of negotiations does not fall into this category. On the other hand, if there is no doubt that armed intervention is prohibited under contemporary international law, the threshold of the stress inherent in relationships between unequal end entity, tolerable, remains undecided.^95(*) In the same case, the Court ruled that: 'the support provided by the USA, until the end of September 1984, in military and paramilitary activities in Nicaragua, in the form of financial, military training, supplies of weapons, intelligence and logistical support constitutes a violation undoubtedly of the principle of non-intervention'.^96(*)

The question also arises of knowing if, even when there is presence of intervention in general rule prohibited, it can be legitimized in certain situations.

2.5.2.1.1. Limitations to the Principle of Non-Intervention

To the question of whether exceptions to the principles of non-interference can be considered; the affirmative answer can be brought but extremely narrowly. It seems to insist on that, given the natural tendency of the States to justify their interventions by different arguments. Referring to the customary international law, the International Court of Justice, in the Nicaragua case against United States, concluded that: "contemporary international law provides no general right of intervention of this kind in favor of the existing opposition party operating in another State».^97(*) International intervention is concerned with the intrusion motivated by allegedly illegitimate reasons such as qualifying as non democratic the State on whose territory on what the intervention takes place, they are not lawfully justified.

In practice, two reasons were traditionally advanced to justify the intervention and interference of a State on the territory and in the internal affairs of another State. One concerns the so-called 'unsolicited intervention'.^98(*)

2.5.3. The Use of Force in International Relations and Humanitarian Intervention

For the first time in history, the Covenant of the League of Nations reduced the rights of States, until there fully discretionary, of resorting to war to resolve their differences. The combination of articles 12, 13 and 15 of the Covenant created a complicated system of "war moratorium" which, in the event of violations, could be accompanied by economic or military sanctions (Art 16).^99(*) In a nutshell, this system made illicit any recourse to war in the event of disputes which are not related on the reserved domain of a State and during its consideration either by the Permanent Court of Justice, either by arbitrators or even by the League Council, the prior recourse to one of the three procedural stages being mandatory.

The famous convention Briand-Kellogg of August 26, 1928 went much further to the extent where it placed the war "outlaw". Article 1 condemned the use of the war for the settlement of international disputes, and abandoned it as an instrument of national policy in their mutual relations.^100(*) This Covenant, even if it suffered many violations that it is known, would be accepted by all States and provide a basis for the provisions of the Charter of the United Nations in the matter.

It is in this context, the proponents of the doctrine of humanitarian intervention rely on an interpretation of 2§4 of the Charter of the United Nations, which prohibits the use of force against territorial integrity or independence of any State, or in any other manner which does not comply with the purpose of the United Nations, but support that the rule of the prohibition of the use of force does not concern humanitarian interventions. According the interpretation of article 2§4 of the Charter, some use of force are permitted. If a researcher reason in this way, the remedies which are not directed against the territorial integrity or political independence of a State "or are not «any other manner inconsistent with the purpose of United Nation are authorized.^101(*) As a result, armed actions to put an end to violations of human rights would be legitimate, since the protection of these rights is one of the goals of the United Nations.

2.5.3.1 The Doctrinal View in the Favor of Humanitarian

The authors in favor of humanitarian intervention admit its implementation subject to certain conditions. In no case they equate the intervention to a discretionary competence to intervene militarily as soon as they consider that human rights are threatened or even violated in another State. The conditions mentioned by the authors of the doctrine of humanitarian intervention, include the criterion of the purpose of the armed action. According to them, it is the humanitarian goal which legitimate armed intervention.

Charles Rousseau, in his Manual of Public International Law, generally defines the intervention of humanity as the action brought by a State against a foreign Government, "with the goal of stopping the treatment contrary to the laws of humanity applies to its own nationals".^102(*) In the same spirit Abiew considers that humanitarian intervention must fill the essential condition of the exclusive pursuit of the humanitarian interest by a state pretending to be the protector.^103(*)

Antoine Rougier on his side makes the legality of an intervention of humanity to the circumstance that the intervening State is relatively disinterested. For him the intervention of humanity is by disinterested definition. He considered that: "intervention ceases to be selfless when the intervener has an interest to go beyond the limits where should be extended his action».^104(*)

These criteria for the humanitarian purpose of the armed action was mentioned by all the authors in favor of humanitarian intervention but it is far from being the only one to be highlighted. The authors of this doctrinal trend consider, first, that human rights must have been seriously violated in the State the army intervention. This condition has already been formulated by Ali Tarik, one of the adepts of the concept of intervention of humanity. Ali Tarik legitimized the right to intervene when a Government violated the rights of humanity by injustice and cruelty excesses that deeply hurt our morals and our civilization.^105(*)

In 1934, Georges Scelle thought about interventions of humanity in the Turkish Empire that that the legitimacy of these actions is explained by the need to maintain international order, facing the explosion of religious fanaticism.^106(*)

Thus were legitimate interventions against any Government which violates the right of humanity by excesses of injustice and cruelty against certain classes of subject defiance of the law of civilization at that time. On this basis relied the intervention of France, an agent of power in 1860 in Syria, to save massacred minority. Georges Scelle goes further and does not hesitate to recognize the legitimacy of military intervention undertaken by the Government to ensure compliance of a certain numbers of fundamental rules of international law, such as respect for the human person, his life of its freedoms, its property.^107(*)

This condition of serious violation of human rights has been taken by all proponents of humanitarian intervention. For example, Pérez-Vera speaks especially revolting crime of extreme cruelty and that governmental complicity leaves unpunished, or the massacres chocking the consciousness of humanity. Other criteria were still mentioned by the doctrine. ROUGIER for example, claimed that the State author of the intervention of humanity could act jointly with other States.^108(*) Rolin-Jacquemyns goes further in his reasoning and admit the intervention only if it is exercised by an international organization. In contrast, other authors justify a right of humanitarian armed intervention to any State, whether individually or collectively.^109(*) In this regard, Bernard Kouchner takes a contradictory position where he states on one hand that the interference cannot be carried out by a unique State, but must be collective and, on the other hand, he describes as licit the military operations unilaterally conducted without the consent of the Security Council such as operation "provide comfort" which took place in April 1991 in the Iraqi Kurdistan. Teson considers that an essential condition of a humanitarian intervention is that victims of violations of human rights demand and accept the foreign invasion. In the end, Verwey insists in general on the conditions of necessity and proportionality^110(*).

In terms of definition of humanitarian intervention and without wondering about the basis of the doctrine, a researcher can express some reservations. In general, its content remains unclear. Humanitarian law aims at legitimizing an armed intervention to help a population that needs to be rescued, even if the 'host' countries should oppose. The concept of humanitarian intervention has historically attempted to justify the use of the international force under the United Nations to protect endangered populations inside their own borders. States have since centuries tempted to justify their interventions in the internal affairs of other States by grounds such as the defence of human rights, the defence of minorities, expatriation of theirs nationals or other patterns of humanity.^111(*)

Seen thus, that the content of this doctrinal trend is not only inaccurate but it leaves especially, the door open to all kinds of abuses. It is unclear how a State commit to military action with all the risks that this action would consist of (potential loss in human and equipment), in a disinterested purpose. Authors like Pérez-Vera and Rougier are entirely of the same opinion taking it as a requirement for the exclusive pursuit of the strictly humanitarian interest.^112(*)

Other authors are aware that States involved in pursuit of objectives other than the protection of human rights at the same time trying to develop a certain hierarchy and some criteria to release predominant humanitarian grounds. Teson was the first to develop a hierarchy to identify predominant humanitarian grounds. For Teson, a military intervention must be undertaken within a truly humanitarian goal to be justified. He recognizes that the problem of making certain standards to measure the humanitarian reasons for armed intervention. First, he considers that the intervening State should limit its armed action to it i.e to stop the violation of human rights by the Government. Then, he stresses that although there are jointly the non-humanitarian reasons, they must in no case reduce the main objective of the intervention which is to stop the violation of human rights. Finally, Teson concluded that any military intervention must be inspired by purely humanitarian grounds in order to protect human rights.^113(*)

The same author also arises a series of questions in order to determine as objectively as possible if the humanitarian aim of the armed intervention in question is really important. He proposes to ask the question whether the intervening State is designed to dominate the targeted State or it is for truly humanitarian reasons.^114(*)

It seems, then, obvious that it is extremely difficult to implement a 'real' humanitarian intervention in a specific case. The questions that arise are various and numerous. In particular, how can we determine if the intervening State seeks to dominate the target State? At what moment should move to evaluate the effective restoration of human rights? It is not really easy to answer these questions and thus precisely define the criteria for the humanitarian purpose of humanitarian intervention.^115(*)

The criterion of the seriousness of violations of human rights which is unanimously mentioned by the doctrine in favor of humanitarian intervention, poses exactly the same kind of problems. Indeed, how can understand a particularly revolting crime and what kind of act likely to violate the laws of humanity? One may wonder if there are not considerations close to natural law which can lead us to a particularly dangerous situation more especially as some authors admit military intervention as soon as there is an imminent danger but no violation was found.^116(*)

As it has already seen that in almost all carried out military intervention on humanitarian considerations were far from being the only ones to motivate them. Furthermore, it should be noted that other worst violations of human rights have been often committed what with no reaction from the so called defenders of human rights. On the other hand, do not forget that even when they were decided «those humanitarian» interventions have often caused more victims than that they were supposed to avoid. It is understandable that the assessment of the importance of violation of human rights is essentially based on criteria of legitimacy which varies according to the members of the international community.^117(*)

2.5.3.2 The Other Factors of Determining the Humanitarian Intervention

If a research examines now other factors to determining the humanitarian character of armed intervention, a research will realize that they give place to controversies. Teson posed as a prerequisite of the legitimacy of armed intervention, the will of the oppressed of the target State. But, how and when can we estimate that this population wishes a foreign invasion. Thus, it is a duty for the intervening power itself to assess and determine the will of a population. Actually, establishment of conditions for implementation of humanitarian intervention, as well as their doctrinal appreciation by the favorable doctrine, seems leading to a great dilemma. Indeed, a researcher realizes that when those conditions are very flexible, they give place abuses and when they are strict, nothing is done to face the humanitarian risks.^118(*)

On one hand, some authors esteem that those requisites are often strict. For instance, Verwey, having considered specific and diversified cases concluded that none of them meets the requirements of humanitarian intervention mainly due to lack of disinterestedness of the interfering States.^119(*)

On the other hand, other authors believe that conditions of legitimacy of humanitarian intervention are very flexible. Teson, for example, considers that the armed invasion of Grenada by the United States in 1983 was justified by humanitarian considerations. Teson goes even further in his reasoning and said that the criteria of the massive violation of human rights would be filled not only for current violations, but also in the hypothesis of the imminence of a violation. For instance, the humanitarian invasions carried out during the last decades, a researcher realizes that the implementation of conditions raised by the doctrine favoring humanitarian intervention lead the majority of analysts to agree with it as well it is judged as abusive. ^120(*)

To sum up, the States stakeholders of international intervention are the only ones to judge the appropriateness of their action, they will do so according to their interest.^121(*) Those different views of authors led us to the next chapter of critical analysis of the international intervention in Libya by NATO.

CHAPTER THREE: CRITICAL ANALYSIS OF THE INTERVENTION OF NATO IN LIBYA

3.1. Introduction

Humanitarian action, implying the right to assistance is recognized and enshrined in International Humanitarian Law (IHL) and is legally founded on the Geneva Conventions of 1949 and their Additional Protocols of 1977. It is a form of cooperation which calls for the need to help victims of armed conflicts and natural and industrial disasters. To relieve all the misery and suffering of people, it prioritizes human being as a subject, thus despising the untouchable principle of sovereignty and non-interference which governs relations between States and yet proclaimed by the resolutions of the UN General Assembly and Security Council. The sovereignty may be supplied and remodeled when humanitarian issues are involved.

Today humanitarian intervention is characterized by different motivations hide before the human intervention. On one hand, it has the words right, duty, obligation and, on the other hand, assistance, intervention, interference which can be combined into an album of expressions to which must be added the epithet of «humanitarian» ; right to assistance, intervention or humanitarian intervention, need assistance, intervention, or humanitarian intervention, etc.^122(*) In this chapter, a researcher intends to analyze critically the legal grounds of intervention in Libya by NATO in 2011, but also the exceptions to the principle of non-intervention.

3.2. Legal Basis of Analysis of International Intervention in Libya of 2011

Throughout this section, a researcher esteems suitable to conduct an analysis of the doctrinal basis and assess the lack of appropriate and suitable legal grounds.

3.2.1. The International Moral and Human Solidarity Doctrine

Proponents of the doctrine of the right of intervention base their legal arguments on the review of the contemporary practice of armed intervention. Since the Second World War, it witnessed a rich practice of armed intervention. But the fact of such a practice does not prove that the principle of non-use of force or supplied. Itself, this practice is not sufficient to establish a custom. In this respect the ICJ, in the case of military and paramilitary activities in the Nicaragua and against this country, considers that to infer the existence of a customary rule, it will be sufficient if States comply their conduct to its requirements in general.^123(*)

Then for Court, the practice can be taken into account only when it sanctions an agreement concluded by States which would constitute an «opinio juris»^124(*) reflecting the existence of a customary rule. But the doctrine in favor of the right to armed intervention raises special cases of armed interventions in order to support their argument. The problem that arises is to examine the said any precedents by trying to isolate political considerations from the real legal positions. This is seems less obvious when stakeholders States hide behind humanitarian grounds to justify a unilateral armed intervention. One of the previous mentioned by humanitarian doctrine supported the right of armed intervention is the intervention of Tanzania in Uganda in 1979.

For authors whose position favors the right of humanitarian intervention, the intervention in question supports the doctrine of intervention of humanity since the justification of States involved is to fight a tyrannical regime that violates human rights. In this regard, a Teson claim that it is the most clears and convincing precedent for the right of unilateral armed intervention for humanitarian reasons.^125(*) But this intervention of Tanzania in Uganda cannot be justified by humanitarian considerations according to the following reasons^126(*):

· Firstly, Tanzanian troops entered in Ugandan territory for allegation the self-defence. In fact, it was right because few weeks before Ugandan troops had entered and occupied part of the Tanzanian territory. Therefore it realizes that the precedent asserted by the doctrine bases unduly the humanitarian consideration even if the Tanzanian Government had been endorsed by several States.

· Another precedent, evoked by the doctrine, is the Indian intervention in Bangladesh that led in 1971. This action has been presented as an intervention to put an end to the massacres of the Bengali population by Pakistani forces. There again, the official justification by the India was self-defence, since, according to New Delhi, Pakistan had previously bombed villages on Indian Territory. Humanitarian considerations in the case had served to convince other States politically and not as a legal basis.

It should mention, as an additional example, the intervention of the United States in Grenada in 1983. In this case, US officials focused on the humanitarian motivations. However, the US has really based their interference on other arguments unrelated to the concept of humanitarian intervention. According to the Americans, the intervention was justified by the call of the Governor General of Grenada, giving authorization to the regional organization of the Caribbean for the protection of American citizens on the island. Finally, it should be noted that this intervention has been the subject of wide international condemnation and was disapproved in 1983 by resolution 38/7 of the General Assembly.^127(*)

On the other hand, the war of Libya heavily abused the humanitarian law. The Protection of civilians remained an abstract notion prejudicing the Libyans turned into victims of bombings, racism and xenophobia, into militiamen armed by the foreign countries or by the State, into internally displaced persons fleeing battles. A phenomenon of flight from the Libyan territory of hundreds of thousands of foreign workers in the worst conditions of precariousness is added in a quasi indifference of the Western States and the impotence of the neighboring States^128(*).

NATO's operations whose the strike force was formed by the French army, its air force and its special services, did not observe humanitarian law at all, regardless of a few reactions of Alain Juppé when he was told of the Libyan civilian victims of the bombing of the OTAN.^129(*)

The Report of assessment mission with the Libyan belligerents (Paris, may 2011) prepared by a delegation of experts, on which media have deliberately ignored, has found that the Libyan revolution is not a peaceful revolt, that the civilians, on 17 February, were armed and that they attacked Benghazi military and civil buildings: in Libya, there was not large peaceful demonstrations which were repressed by force.

The first observation which imperatively prevails is the deafening silence of the internationalists similarly as those who mortgaged the scientific nature of their judgments for Iraq, the Kosovo, the Afghanistan or Ivory Coast, etc.^130(*) The prevailing doctrine in the internationalists remains: most recent manuals reveal no concern, although they avoid their academic opinions to non-fructuous examples.

For many of them, the outstanding professors of international law were ultra-ciceronian: summum jus, summa injuria.^131(*) For Cicero, in fact, a zealous law brings the worst injustices. Aligned behind the majority of political staff in the West, the lawyers consider international law when it overly limits the messianic even militarized of the United States, France, Great Britain, becomes destructive of the civilization values which it embodies. The ideology, they formally object for themselves, is omnipresent in their analyses: legitimacy takes precedence over the law, which seems, for lawyers, surprisingly absurd.^132(*)

In reality, they implicitly admit that Western States regulate themselves in the interest of the common good. There is no disregard of legality among those defend highly of rule of law: for these lawyers, the Western powers are placed above an inadequate legalism on behalf of the superior «mission» they have to perform without hindrance. Given the impropriety that there is to question the foreign policy of the United States and their anti-multilateralism conception, it is not to condemn the French authorities when they justify (basing on the "Bettato-Kouchnerism" that succeeded in the western society) their interference to the detriment of the sovereignty of the small and medium States on behalf of human rights.^133(*)

President Sarkozy pushed very far the «Bettatism», in 2010-2011, when he extended the scope of the interference in the electoral disputes: France made itself, alongside the United States and the United Nations, considers constitutional judge in lieu of competent Ivoirian authority till using ultimately armed force to change the regime in Abidjan, including an attempt of assassination of president Laurent Gbagbo^134(*).

· it helped to dedicate the notion of democratic revolution among causes legitimizing the abuse of international legality and,

· it restored the old conception that distinguished until mid-20^th century subjects of international law and those ineligible for the same law, thus creating the conditions for a new Western imperial hegemony.

However, a distance may separate the dominant legal thought and official political positions tending to disappear, international law textbooks and academic journals remains a long quiet river, in the image of internet pages documentarily dedicated on it.^135(*)

Prominent authors are dedicated to technical European Union issues, as a "planet" more politically serious, while others, however eminent, and noted "the resistance of sovereignties against the progress of international law."^136(*) With recent events, and especially from the moment when Western troops are involved in Africa, some authors tend to talk about the challenge to the prohibition of humanitarian intervention. Thus, Bernard Kouchner said that the right of intervention, as a return of moral, found among the Kurds North of the Iraq its first official application.^137(*)

In no case can claim that it would be lawful for a State to slaughter its own people under the pretext that anything that happens within the borders is of its internal affairs. Many jurists have strongly criticized the traditional conception of international law favoring the right to intervention that is supported authors. All States have formally recognized that they had to respect fundamental rights of Human Rights such as the right to life, the physical integrity or the prohibition of genocide against their own nationals and therefore on their own territory. If 'Sovereignly' they decided to commit, therefore 'sovereignly' they should respect their obligations.^138(*)

In case of massive violation, there could be implemented retaliatory measures or reprisals on political, diplomatic, economic and financial levels. For example, an embargo is possible, even outside intervention United Nations, against a State or a group infringing the most basic rights of the population.

3.2.2. The Ideology of Human Rights behind the Libyan Intervention of 2011

The ideology of Human Right is relatively old concern of customary international law. The international politics in the legality of the Libyan intervention is by evaluating the conditions in which the Libyan intervention was legitimized by the approval of UN Security Council Resolution (UNSCR) 1973 and its analysis made so far by the voting and sanctioning of the resolution that allowed NATO's intervention.

3.3.2.1. Conditions for the Legitimization of the Libyan Intervention

In the UN debates leading up to Resolution 1973, states wanted to avoid the possibility of the intervention being perceived as an imposition of Western powers (the United States and its European allies), which was precisely what Gaddafi argued the intervention was when faced with its possibility.^139(*) Thus, the resolution 1973 to be legally, they needed a rule that allowed them to intervene in this case, a resolution passed by the UNSC on the basis of Chapter VII of the UN Charter. The states that chose to constrain their actions until the adoption of UNSCR 1973 exposed how international norms are increasingly influential in the consideration of state action. During adaptation of 1973 UNSCR, NATO member states have acted on moral grounds, using justifications such as humanitarian intervention as the sole basis for intervention, they chose instead to garner legal legitimacy to justify their interests.

Concerned on how 1973 UNSCR was voting and sanctioning, it noted that the Resolution 1973 was passed with ten votes in favor and five abstentions and its main contents were^140(*):

· Denunciation of the flagrant and systematic violation of human rights, humanitarian law and refugee law, asking for an immediate cease-fire;

· Authorization of the use of force under Chapter VII of the UN Charter, as to ensure a no-fly zone and protect civilian population;

· Authorization to States to take "all necessary measures" without any set out of rules, condition and limitation to be respect in doing so.

The choice of abstention Countries, rather than an exercise of their right to veto, showed that they were probably more concerned with avoiding a direct confrontation with Libya than with rejecting the measures laid down in the resolution. For instance states voted or abstained according to their political interests in Libya, but once the international community felt the need to intervene, it do.

As General principles, the international interventions were justified in the event of violation of the most basic human laws where categories of individuals or even entire populations, saw their existence threatened in a given country. Therefore, for example, in 1860, France intervenes militarily to Lebanon to protect the Maronite Christians. Similarly in 1964, Belgium had to mount a military operation in Stanleyville (Kisangani-DRC) four years after accession of its former colony, DRC, to independence when that city was threatened by thousands of Congolese rebels. ^141(*) In such situations, it was advanced by some and the luck of attention that there exists a right, even a duty to intervene legitimizing the use of force to stop these violations of human rights. However, it is recognized that the recent practice of the United Nations in recent years is moving in this orientation, without may be forecasting all the dangers it implies.^142(*)

Subsequently, the Security Council should indeed allow all Member States agreeing to cooperate to use "all necessary means" to ensure humanitarian relief in Bosnia Herzegovina (see Resolution 770 of 13 August 1992) and then to Somalia (see Resolution 794 of December 3, 1992).

These recent developments thus suggest the generalization of the practice of multilateral humanitarian interventions. Leaving aside these marginal and very exceptional human rights protection types, that protection is now organized, probably unevenly, on two levels, universal and regional.^143(*) However, the legal basis for humanitarian intervention remains unclear.

In winding up, a researcher can say that whenever States were required to take a decision on the principle of non-use of armed force laid down in article 2 § 4 of the Charter of the United Nations, they argued that this provision prohibits in a general manner the use of force in international relations.

3.2.2.2. Lack of Indisputable Legal Basis in Regard of Libyan Intervention

In this paragraph, the researcher intend to review the content of article 2 § 4 of the Charter of the United Nations and the resolutions of the General Assembly and the Security Council of United Nations.

3.2.2.2.1. Analysis of Article 2§4 in regard Libyan Intervention

Article 2§4 of the Charter of the United Nations provides that: 'the members of the Organization 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'.^144(*)

It is indisputable that this provision does not explicitly prohibit any use of force in international relations. Under article 2§4, the use of force is not prohibited, but only when it is directed against the territorial integrity, political independence of the target State or where it is inconsistent with the purposes of the United Nations. It is these two conditions that will be considered successively^145(*):

· If the criteria for the definition of the right of interference, it mentioned previously, are filled it could say that humanitarian intervention is permitted to the extent where it is without prejudice to the territorial integrity of a State, with the consent of the latter, occurs against its territorial integrity.

· The trans-boundary armed actions without acquisition of territory have often been described as violations of territorial sovereignty. Such was the case in the case of military and paramilitary activities in the Nicaragua and against this country^146(*), where the ICJ talked only of violations of Nicaraguan air and maritime spaces.

Even less obvious is whether a humanitarian intervention is conducted against the independence policy of the Libyan State. On the one hand, some authors believe that this cannot be the case because the action has not aimed at a form of domination. On the other hand, none should ignore that the purpose of the intervention is to solve a problem, essentially, internal policy, to protect a part of the population against another.^147(*)

Indeed, the intervention carried out against the State Government intends to restrict its powers and if necessary to overthrow him. Consequently, armed intervention applies to the political power of the invaded State and it would be difficult to argue that the political independence of the target State is not reached.^148(*)

The interpretation of the last sentence of article 2§4 of the Charter, which prohibits all use of force which took place in international relations in any manner not complying with the purposes of the Nations also poses many problems.

The intervention of NATO in Libya has defied the foundations of the international legal system. It raised many legal issues about its legality under existing international law. It is an armed operation of an organization (alliance of defense), of course with the permission of the Security Council of the United Nations, but in a sovereign State. From this intervention, two issues come to the agenda, the sovereignty of the State that is the target of intervention and the rights of third parties who do not participate in combat but who are the victims.^149(*)

Talking of the legality of the intervention, article 4 of the 1973 Resolution authorizes the States which have notified the Secretary-General to "take all necessary measures" to protect the civilian population in Libya.^150(*) This does not exclude attacks which have as goal the overthrow of Gaddafi if they were also intended to protect civilians. But the additional aim of overthrowing the regime should not be continued with independent means.

However, at the beginning of the operation the NATO bombarded towns such as Sirte or Bani-Walid even after the fall of Tripoli. NATO has supported the rebels with result that thousands of civilians have been killed. Thus, the purpose legalized to protect the civilian population has been sacrificed, unequivocally by the other purpose, not legalized, to overthrow the regime. For evidence, the reports on Sirte after the bombing, British newspapers speak of the hometown of Qaddafi bombed into smithereens. A resident of the city is cited. "They bombard us; women and children are killed or agonizing".^151(*)

The military support for weeks in such attacks has clearly exceeded the authorization of the use of force. This support was therefore contrary to existing international law. The issue that interests this study is the possibility for the Security Council to authorize such interventions. The standard that is often mentioned is called "the responsibility to protect"^152(*). It is not a mandatory standard of international law but an ethical principle in progressive evolution. As such, it establishes a positive duty to ensure the safety and protection. Such duties differ from negative duties or prohibitions, insofar as they are not defined in terms of their content. These duties can be filled in different ways. Which of these will be appropriate, authorized or required? It depends on specific circumstances of each case, factual possibilities those to whom are the duty, as well as their legal limits.

Therefore, the principle of responsibility to protect can resolve the question of the legality of the war only by reference to the circumstances. Alone, it cannot do so. This is not primarily a matter of positive international law, but rather a question of fundamental legal principles. The violent and legal solutions to conflicts are mutually exclusive. This is the reason why straight starts with a fundamental prohibition of the use of force.^153(*) Clearly, there will be exceptions to this prohibition in principle. But these exceptions should be legal, too. They must themselves helped to ensure the basic principle of any right, that of the prohibition of violence. These exceptions cannot perform this function if they are unrestricted permissions of resort to the force; they can only do that if they are defined with accuracy in order to prevent the illegal third force.

For the State as a guarantor of equality of the rights of all, these coercive measures must of course be varied. But for the subjects of law, who are equal before the law, they exist only as emergency measures. International law consists of the treaties and practices between States as a subject of law which are equal in terms of membership and sovereignty. As is the case between the subjects of law within a State (individuals) authorizations to use force may be based only as exceptional rights. A general right to war is conceptually excluded; it is a contradiction in terms. These rules devolve also upon the United Nations Security Council. This criterion, which raises limitations and that is conceptually well founded, is also valid, and imperatively, when it comes to know what limits the Security Council is obliged to respect when acting in accordance with article 42 of the Charter of the United Nations. It is not matter of knowing the practice of the Council but just the standard: even if the Security Council lowers permanently the level required for the authorization of the use of force between two equal members, and even if States agreed such a practice at best, there is according to John Rawls, "a modus Vivendi»^154(*), a stable balance of powers which remains only provisional.^155(*)

The use of force for humanitarian purposes in the context of the responsibility to protect needs legality in two fundamental perspectives in comparison with the sovereignty of the targeted State and with regard to persons threatened by violence. The Sovereignty is self-determination. It is the right to form and to defend itself against external attacks. As a right of self-defense, sovereignty is the legal existence of a State. It is therefore a condition of its legal relationship with any other States; a condition of their equality as subjects of law.^156(*)

But State sovereignty, in contrast to the autonomy of the individuals, is not an end in itself. It derives from the legitimization of the State by its citizens. Only a State that is legitimate, at least for the most part, can rightly assert its sovereignty even against other States. It is in this context that it becomes possible to define more clearly the material basis of an authorization to intervene: the criterion would be a massive violation of international law by a State against its own citizens. A State that would commit such crimes against its own people no longer fulfils the fundamental task which only can legitimize it as a binding legal system. It loses its legitimacy and thus its sovereignty, including outward. Examples are the Nazi Germany or Rwanda under the regime of Hutu. These States can no longer assert their authority and sovereignty against intervention initiated by other States whose purpose is to grant emergency aid. Such crimes represent a threat to international security because they are a violation of the universal standard which legitimate States.^157(*)

Thus, if a State which is illegitimate under international law, the other States have no duty to respect its sovereignty. On the other hand their legal and ethical duties to the entire population of that State remain unchanged, even towards those who oppose the intervention. The use of force for the protection of each must find its limit somewhere in the costs in terms of lives and suffering of others, especially if they do not participate in the fighting. In the law of war, moreover, there are many unsolved problems, especially those of the justification of the "collateral victims".^158(*)

To conclude this section, a few comments are given the resort to military force can eventually be legitimate if it based on the following criteria:

· if there is seriousness of the threat is real, e.g: mass violation of Human Rights,

· according to the balance of the consequences. i.e. if the action will be more beneficial than inaction .^159(*)

If researcher look at the situation in Libya before the intervention, it is clear that at most the second criterion has been fulfilled, just that of the legitimate reason. However, a researcher believes that the other criteria have been violated without exception. A researcher was far from genocide or crimes against humanity under article 7 of the Statute of the International Criminal Court. It is appropriate to balancing of the consequences of Libyan international intervention: according to the rebels, 50,000 people were killed since the start of the uprising against Gaddafi. The Secretary-General of NATO, André Fogh Rasmussen, said that the operation in Libya was the most successful NATO operation^160(*). It just can't help but believe that this assertion is pure cynicism.

3.2.2.2.2. The Discrepancy of UN Charter in Regard of Libyan Intervention

The authors supporting the right to humanitarian intervention emphasized that one of the goals of the United Nations is the protection of human rights. These authors refer to paragraph 2 of the preamble to the Charter of the United Nations which provides: "We the peoples of the United Nations resolved to reaffirm our faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small"^161(*). It is in this spirit that Teson^162(*) reminds that the use of force for humanitarian purposes, not only does not contradict the purpose of the United Nations, but on the contrary it supports one of its essential goals which is the protection of human rights. As such, it would be wrong to say that humanitarian intervention is prohibited by article 2§4 of the Charter of the United Nations.

On the other side, a researcher opposes to this reasoning of proponents of the right of humanitarian intervention, another goal of the United Nations that is the maintenance of peace and security international, provided for in chapters VI and VII of the Charter. Even the first paragraph of the preamble to the Charter contradicts the interpretation made by the doctrinal trend of a right of humanitarian intervention. More specifically, the first paragraph of the preamble of the Charter of the United Nations provides: "We the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime, has brought untold sorrow to mankind".^163(*)

Finally, Michel Virally note that even if military action is intended to protect human rights, is undoubtedly contrary to the his goal. According to the same author, any policy promoting the use of force is contrary to the objectives and the goals of the United Nations.^164(*)

3.2.2.2.2.1 The Rights of Interference under the Different Doctrinal View

On the contrary, authors supporting the right of interference doctrine claim that the purpose of the United Nations to keep the peace can be either violated, or satisfied. In other words, there is a kind of hierarchy between the different goals of the United Nations and therefore a military intervention to protect human rights would not be contrary to the purpose of the United Nations to keep the peace. If, now, it peruses the corollary to the prohibition of the use of force which is the obligation to peacefully resolve disputes (article 2§3 of the Charter), it will be realized that there is nothing in article 2§4, which can affirm that an action may violate a United Nations goal. Proponents of the doctrine of the right of humanitarian intervention are based only on the text of article 2§4 to support their thesis. However, the text of the third paragraph of the same article provides: "the members of the Organization settle their international disputes by peaceful means», so that international as well as justice are not endangered peace and security.

Thus, under the terms of article 2§3 a reaction of a State member of the United Nations, even to massive violations of human rights, must be carried out peacefully without endangering peace, security and justice. Furthermore, article 33 of the Charter enumerates the peaceful means of settlement of the disputes thus complementing article 2§4. Here again, the Charter does not provides any exception of humanitarian armed intervention. Therefore, a researcher can say that the Charter expressly prohibits any unilateral armed intervention, insofar as it threatens international peace and security.

Even if a researcher accepts the thesis of the doctrine of the right of humanitarian intervention, according to which there is a hierarchy between the objectives of the United Nations, a researcher could but admit the precedence of the peace-keeping on the protection of human rights. As it has already seen, the first paragraph of the preamble of the Charter establishes as a primary goal the peacekeeping. In the same spirit, chapter I, entitled "Goals and principles", indicates in article 1§ 1 as the first goal of the United Nations to maintain international peace and security. Moreover, the preamble^165(*) of the Charter specifies the means used by the Organization to achieve its goals. By reading the UN preamble, it is important to note that the Charter gives certain superiority proper to means used in favor of maintaining the peace (resort to the negotiation, inquiry, mediation, conciliation, arbitration, and judicial settlement, recourse to the agencies or regional arrangements, or other peaceful means of their choice as states on UN Charter article 33). In addition, no reference is made to military means to impose the respect for human rights. In the preamble, there is only one reference on the resort to the international institutions.

It remains to consider the last argument of the doctrine of the right of humanitarian intervention. Other authors supporting this doctrinal trend highlight the argument according to which humanitarian armed intervention respects itself the objective of maintaining the peace. They consider that only humanitarian armed intervention, by putting an end to massive violations of human rights, prevents a historic development that would lead to a threat or breach of the peace by the dictatorial country that is targeted^166(*).

This argument is doubly criticized in terms of the facts, as well as on the legal context:

· Firstly, in terms of fact, there isn't a broad interpretation of the concept of the maintenance of peace in relation with human rights. In addition, historically there are many examples of dictatorial regimes that did not cause a breach of the peace in international relations.^167(*)

· On the other hand, in legal terms, the Charter considers the peacekeeping as crucial concern. It is unclear how the Charter could legitimize a real breach of the peace on the basis of a hypothetical and possible break.

Indeed, it is noted that the main purpose of the United Nations is peace-keeping and article 2§4, invoked by the doctrine in favor of the right of humanitarian intervention, refer to this purpose. The provisions of article 2 § 4 of the Charter prohibits all use of force, even motivated by humanitarian conditions.

To assess the readiness of States, the researcher assesses that initially the resolutions of the General Assembly of United Nations, as well as regional agreements on collective security and treaties for the protection of human rights. Then, the researcher also elucidates some cases of intervention raised by the doctrine to find out if they are really the precedents or grounds legitimizing humanitarian interventions.

3.2.2.2.2.2. The Different View of UNSC Resolution in Regard of International Intervention

Among the many resolutions of the General Assembly of the United Nations governing the principle of non-use of force, three of them seem particularly constructive. This is inter alia:

· resolution 2625 (XXV) of 24 October 1970 on friendly relations and cooperation of States^168(*),

· Resolution 3314 (XXIV) of 14 December 1974 on aggression and of Resolution 37/10 of 15 november 1982 on the peaceful settlement of disputes.

· Resolution 2625 (XXV) ^169(*)enounces in its principles that: "Any State has the duty to refrain from resorting to the threat or the use of force to violate existing borders of another State... or to violate the international boundary lines".

Thus, these Resolution dismisses the argument of the doctrinal trend, whereby humanitarian armed intervention is permitted at the moment it does not aim a territorial appropriation. In this way, the resolution prohibits not only any violation of territorial integrity, as well as any violation of territorial sovereignty.

On the other hand, the text of resolution prohibits any resort to armed or unarmed force for any reason whatsoever. Therefore, even the use of force for humanitarian reasons is prohibited. Finally, the same text provides that States should settle their disputes using peaceful means, excluding any use of force. A researcher then understand that even the massive violation of human rights constitutes a dispute which must be settled by peaceful means and in no case by military intervention.

Resolution 3314 (XXIV) 91 of 14 December 1974 specifies in its article 1 the definition of aggression as use of armed force against the sovereignty, territorial integrity or political independence of another State.^170(*)Then, in its article 3, the resolution performs an exhaustive enumeration of acts of aggression. The researcher remarks therefore that the definition given by the resolution is extremely accurate without any reference to the circumstances of humanitarian armed intervention.

In addition, article 5 of the same text states that any considerations, whether political, economic or military, cannot justify an aggression. The researcher therefore apprehends that no humanitarian considerations could justify armed intervention.^171(*)

The Resolution 37/10 of 15 November 1982 reaffirms the general prohibition of use of force by stating that States have the obligation to settle international disputes "exclusively" by peaceful means. These resolutions of the General Assembly of the United Nations are not the only instruments that interpret article 2§4 of the Charter prohibiting any use of armed force even for humanitarian reasons. The researcher will see further that also regional conventions take the similar position.^172(*)

3.2.2.2.2.3. The Principle of No Use of Force under Regional Instrument

The Charter of the OAS^173(*) in its article 21 prohibits the use of force, except in self-defence in accordance with the treaties in force. Except then, self-defence, any recourse to the use of force is prohibited. Similarly, the Charter of the OAS, in its article 27, prohibited expressly any use of force against the integrity, the inevitability of the territory or against the sovereignty and political independence of an American State as acts of aggression.

Similarly, the Constitutive Act of the AU erected in its objectives, the defense of the sovereignty, territorial integrity and independence of the Member States. A researcher sees then, that States, through different legal instruments protecting human rights, don't allow, directly or indirectly, the use of force to enforce these rights. On the contrary, treaties relating to the protection of human rights submit any unilateral reaction to a series of conditions. Those treaties provide mechanisms of conflicts settlement that States must use. These treaties have foreseen, also a series of peaceful countermeasures subject to certain conditions. In this respect, these treaty texts not only prohibit the use of armed force, but at the same time they provide all necessary mechanisms to better protection of human rights.^174(*)

In addition, any use of force to enforce human rights would be contrary to the conventions in question.

Even in the case of retaliation, States have voted clearly for the absolute prohibition of armed reprisals. Firstly, article 2 § 4 of the Charter of the United Nations provide no exception with regard to the humanitarian cause of the intervening State. On the other hand, the Resolution 2625 (XXV) sets out the duty of States to refrain from acts of reprisal involving the use of force. This prohibition of armed reprisals is confirmed by resolution 36/103 of the General Assembly which stressed "the duty of a State to refrain from resorting to any armed intervention or any act of military intervention... including acts of reprisal involving the use of force".^175(*)

Firstly, resolutions such as Resolution 2625 (XXV) and resolution 33 14 (XXIV) on the definition of aggression, reject any opportunity to discuss humanitarian motivations to skip the principle of prohibition provided by article 2§4 of the Charter. Conventional practice, either regional or universal, confirms this point of view.

On the other hand, the practice of international relations proves that humanitarian considerations, mentioned by intervening States are far from constituting a legal basis. As researcher has seen, the justifications for those States do not demonstrate a clear legal position in favor of the right of humanitarian intervention. On the contrary, in most cases the armed interventions are explained by political considerations.

3.2.2.2.2.4. The Prohibition of Use of Force under Jurisprudential Provision

Finally, it is essential to recall that the ICJ, in its ruling on the case of the "Corfu channels"^176(*), condemned the United Kingdom for violation of the rule of non-use of force emphasizing the importance of it in international relations. Similarly, the ICJ ruled in general on the possible existence of a practice favorable to the right of intervention of humanity in the case of military and paramilitary activities in the Nicaragua and against this country^177(*). In this case, the Court considers that the United States did not justify their conduct by taking argument of a new right to intervention or a new exception to the principle prohibiting the use of force. The Court in the same case goes further, since it examines the humanitarian reasons cited by the United States. The Court considers that force is not the appropriate method to verify and ensure compliance with human rights and concludes that the grounds from the preservation of human rights in the Nicaragua cannot legally justify armed intervention by the United States.^178(*)

It is conclude this analysis by referring to the jurisprudence of the ICJ, which in its Consultative Advisory relating to certain expenses of the United Nations^179(*) states that it is necessary to grant primacy to international peace and security since the other objectives of the organization can be achieved only if peace and security are ensured.

3.3. Exceptions to the Principle of Non-Intervention

The rule of the intervention of the use of force provided in article 2§4 of the Charter of the United Nations excludes any armed intervention. However, this does not mean that any resort to armed force was prohibited in international relations. Per se, the general principle is the prohibition of the use of force, can envisage situations where the use of force will be exceptionally considered as lawful. For instance includes^180(*):

· the international security and peace-keeping operations ordered by the Security Council of the United Nations,

· the consent of the State, the individual or collective self-defense in case of strictly humanitarian and

3.3.1. Operations Based on the UNSC Resolutions

The United Nations uses Chapter VII in the event of risk of armed conflict which involves the violations of human rights seen as threat to peace.

3.3.1.1 Risk of Armed Conflict

Regardless of the principle of article 2, paragraph 7, devoting non-intervention by the United Nations in the internal affairs of a State, the Security Council no longer hesitate to interfere in the internal affairs of States, significantly complicating the work of the United Nations. The top of the complexity of an internal conflict is indeed the former Yugoslavia, where a series of tangled conflicts have ended up having a dual dimension: non international armed conflicts (NIAC) and inter-States armed conflict (IAC), within the meaning of the Conventions of Geneva of 1949 and their additional protocols of 1977. It remains that the motivation of the interventions of the United Nations, in case of threats to peace within a State, may be the violation of the human rights, the serious violation of humanitarian law or violation of democracy.

The maintenance of internal peace has led the United Nations to intervene on humanitarian grounds, in different contexts such as Somalia, Rwanda^181(*) and the former Yugoslavia, where serious violations of humanitarian law had occurred.

3.3.1.2 Violations of Human Rights as a Threat to the Peace and Security

The Security Council may also qualify the massive violations of human rights as "threat against international peace and the security ", and then authorize armed intervention (article 42 of UN charter). It has done that several times. Most of the operations presented as achievements carried out thanks to the right of humanitarian intervention are therefore, if one looks more closely, as applications of existing legal mechanisms. It is therefore completely wrong to claim that the traditional international law is incompatible with effective protection of human rights. Actually, the problem is often less legal that political, insofar as it is not new legal rules that will improve the situation, but a better use of the existing rules.^182(*)

The human rights are subject of a progressive internationalization. The Security Council acknowledged that a massive violation of human rights could now found its jurisdiction on the basis of Chapter 7 of UN Charter. In the resolution 688 (199), the Security Council has admitted that: the repression of the Iraqi civilian population in many parts of the Iraq, has led to a massive flow of refugees at international borders and to , through these frontiers, border violations that threaten the peace and international security in the region.^183(*)

In other words, the massive violation of human rights creates the crime against humanity. Therefore, the violation of human rights becomes an act of international scope. The behavior of a State towards a part of its population is no longer an internal affair, although that resolution 688 refers to article 2, paragraph 7 of the Charter: «no provision of this Charter authorizes the United Nations to intervene in matters which are essentially within the jurisdiction of a State, nor does it require the members to submit cases of this kind to a procedure under the terms of the present Charter»^184(*); however, this principle does not affect the application of coercive measures provided for in Chapter VII.

Multiple violations of the rights of man and of peoples in the former Yugoslavia have also led the Security Council to condemn them. In resolution 770 (1992), it urges the Member States to intervene to facilitate the delivery of relief to the victims of the conflict in Bosnia-Herzegovina and requires humanitarian access to the internment camps in the region.^185(*)

During the tragedy of Kosovo, in resolution 1199 (1998) the UNSC targeted "information on multiplication of violations of human rights and international humanitarian law, and (...) the need to ensure respect of the rights of all inhabitants of Kosovo».^186(*)

Based on this principle, the Security Council devoted another: that of «access to victims in respect of neutrality and impartiality». Therefore, the United Nations allow States to access to the victims, using their armed forces if need be to provide them with direct assistance, to protect civilian populations or restore a minimum of security so that they live in normal conditions of life. Despite the textual consecration of a right of intervention for humanitarian purposes, the Security Council did not use its coercive powers in Iraqi Kurdistan because the United Nations had concluded a memorandum of understanding with the Iraq on April 18, 1991, to obtain his consent. In the case of Kosovo, on the other hand, NATO is the only master in the field to the detriment of the United Nations, provided that is subtly invoked the principle of access to victims in such crises characterized by serious violations of humanitarian law.^187(*)

3.3.1.2.1 The Mechanisms of Collective Security

The mechanisms of collective security established by the UN Charter are the most notable exception from the principle of prohibition of the use of force. Under the terms of article 42 of the Charter of the United Nations, "the Security Council has the Faculty of law to undertake, through the air, naval and ground forces any action it deems necessary for the maintenance or restoration of peace and security international'».^188(*) Note that the Charter recognizes to the Security Council an open choice to appreciate the opportunity and the implementation of armed actions. The Security Council has a discretionary power with regard to the assessment of the existence or not of a threat to international peace and security.

If, in the opinion of the Security Council, there is a threat to international peace and security, the State affected by the armed action will not be able to raise the principle of non-intervention under article 2§4 of the Charter. The armed action decided by the Security Council will be then justified by article 42, even though it concerns business falling within the reserved area of a Member State. Thus, simple internal troubles or civil war, in which intervenes no violation of international law, could provide an opportunity for the Security Council to take military action, provided that he describes the situation as threat to international peace or security that is the case of Libyan 2011 international intervention. It matters little then weather the situation involves businesses which fall in the jurisdiction of a Member State, when the Council has faculty to qualify of threat against peace or not.

Thus, the Council, in the context of the Libyan crisis, described the situation in case of threat to international peace and security and coercive measures were consequently taken, even if this area falls within the Libyan Affairs. Thus, the Security Council, in this case, based its jurisdiction on the risks of breach of the peace.

De facto, the Security Council, from being a tool of conciliation and peace-keeping, becomes an instrument of war. The collective statement of Sarkozy, Obama and Cameron of April 15, 2011 seems very significant: «it is not matter of ousting Gaddafi by force», but "as long as Qadhafi remains in power, NATO... must maintain its operations».^189(*)

The use of armed force and the intensive bombing of cities and channels of communication have only a single purpose: support the resistance of the CNT of Benghazi and liquidate the Gaddafi regime, with the promise of counterpart oil at the end of the conflict.^190(*)

The freedom of action of the Council on collective security is therefore almost without limit. Only the theory of abuse of right or the arbitrary application contrary to the spirit of the Charter may limit the Council in its action. But for the moment, there is no precedent even if the Council was strongly criticized for the manner in which the resolutions concerning Libya were enacted. It may be noted firstly that these resolutions assume a contradictory nature^191(*):

· "They refer to sovereignty and non-interference both by «allowing» States members of the United Nations to take the «necessary measures" for the protection of civilians, everything excluding the deployment of a force of foreign occupation in any form whatsoever and on any part of Libyan territory, being understood that the only flights allowed over the territory are humanitarian; so are the NATO planes also humanitarian.

· Secondly, these resolutions stating everything and their opposite (the United Nations) which never put in place an army or international police provided for in the Charter, create the conditions for a NATO intervention whose official statements and objectives evolve very quickly from the 'protective' dimension to the destructive dimension of the Tripoli regime.

This power almost without limit of the Council could be seen as a genuine right of interference. The mechanism of the collective security could still be described as a duty to intervene, insofar as the Security Council has the responsibility under the Charter article 24 dealing with peace-keeping.^192(*)

More specifically, the researcher may be recalled that human rights are no longer part of private reserve of States and that, if the Security Council considers it appropriate, it may decide that their massive violation constitutes a threat to international peace and security. It then does apprehend that mechanisms of collective security are strictly regulated by the Charter of the United Nations and appoint the Security Council as the only holder of the right of interference.

3.3.1.2.2 The Right of Humanitarian Intervention

The right of intervention, could be say, exists only for the benefit of a unilateral organism and not for the benefit of States acting individually. By conferring the right to intervene exclusively to the Council, the Charter excludes the States from an individual action. Therefore, the defense of universal values as fundamental human rights still reserved to a universal organization which is the United Nations.^193(*)

It is also important to recall that the supporters of the doctrine of the right of humanitarian intervention consider that collective armed intervention has its justification on UN Charter and may take place where there are mass violations of humanitarian law. On the other hand, other authors considered that the defense of rights also important as well as those human rights could be made only by a community of States. The Charter of the United Nations provides a suitable solution for serious violations of human rights carried out within a State by allowing the Security Council to intervene and put an end to them. However, the passivity of the Security Council has been often questioned despite the large number of technical means it detains.^194(*)

In practice, this disproportion between the existing technical means and the absence of their use by the Council will exist regardless of the proposed collective security method. In addition, it has already shown that precedents where States unilaterally claimed humanitarian interests rarely corresponded to a need to intervene militarily to defend human rights.^195(*)

Indeed, article 43 of the Charter, which provides that the Member States undertake at the disposal of the Council their armed forces, has never been applied. Actually, United Nations don't possess any armed force that could be set up to conduct military operations. Until now, whenever the Council decides to intervene militarily, it performs a kind of delegation of the exercise of its right, allowing its members to act in his name.

In this regard, the Security Council by its resolution 1973 March 17, 2011, authorized the Member States "to take all necessary measures to protect the population and civilian areas under threat of attack in Libyan Arab Jamahiriya (...) »^196(*). In this case, the Security Council has decided to use force and resorted to the technique of the delegation of the exercise of its right.

It should be noted that this technique is not a delegation of the right to act militarily itself. Only the Council can take a decision and the action of the Member States is strictly limited to the terms hereof. In the context of the operations under the resolutions, the own responsibility of the Member States may be instituted. The Member States are not free to act according to their interests, but they have an obligation to put at the disposal of the Commission necessary means to achieve its objectives provided for in the Charter. The discretion to conduct military action is therefore to the Security Council. In addition, other interventions may take place with the consent of the Victim State.^197(*)

3.3.2. Operations Based on the Consent of the State: Intervention Sought or Accepted

With regard to the consent of the Victim State, it was already noted that some armed interventions have been justified by a call upon the authorities of the State on whose territory the operation took place. It is possible that armed intervention intends to protect a part of the population affected by the violations by armed groups that are beyond the control of the Government in place. But this armed intervention cannot be legitimate if the central power of the State on whose territory the operation didn't seek foreign military assistance.198(*)

A part of the doctrine considers that this consent legitimates the armed intervention, since the use of force in this case is not directed against the political independence or territorial integrity of a State or any other manner inconsistent with the purposes of the United Nations (art2§4).The International Law Commission (ILC) in article 29 of its draft^199(*) refers to all cases where, in the absence of consent, there would be unlawful acts. The Commission generally considers the hypothesis where a State consents that another State commits a fact that, without this consent, would represent a breach of an international obligation vis-a-vis the first State.^200(*)

Traditionally, each state was free to allow another to use force in any form on its own territory. Explicit consent a State may authorize the use of force on its territory whenever, being the object of an armed attack, it resorts to individual self-defence and in addition authorizes a third State to assist in `collective self-defence. State practice makes extensive use of the 'consent exception' even though this does not conform to int'l law. A number of States believe that consent legitimizes the use of force, because it precludes violation of Article 2 paragraph 4 of Charter (territorial integrity and political independence of state). States often claim that their military intervention into another state's territory was valid because the other state consented.^201(*) For example, the Panama Canal versus US government, interpreted Panama Canal Treaty to allow US to unilaterally intervene if Panama Canal was closed or its operation was impeded. Panama signed treaty with that condition, then president said Panama would never accept US intervention unless explicitly authorized by Panamanian government, US ignored and said that they would follow what was in the treaty. US invasion and occupation of Panama in 1989 was not lawful, either on grounds of consent from Panama (they didn't), to safeguard lives of US citizens, to help restore democracy, or to bring Noriega to justice. ^202(*)

Hence, the consent given on international intervention based on the consent of the State are characterized by the following three scenario^203(*):

· Consent to the use of force was given by a State on whose territory an organized movement was not fighting the government; here the use of force is legitimate.

· Substantial body of population supported the insurrection, and the insurgents have not been aided externally, then use of force by third states could be against principle of self-determination and non-interference, in this case the use of force illegitimate.

· If rebels receive military aid from third States, then use of force (by another third party) at request of state, in this case the use of force is legitimate.

It is very important to note that that consent must be freely given (not through duress, coercion, etc.), the consent must be real means that not just apparent, the consent must be given by the lawful government or its representative, the consent may not be given to a blanket authorization for the future means that it must be related to specific event and lastly the consent may not legitimize the use of force against the territorial integrity or political independence of consenting state (would be contrary to UNCHR article 2 paragraph 4 and the consent cannot run counter to other principles of jus cogens (for exemple, if force were authorized in order to deny/limit right of peoples to self-determination or if force used atrocities to put down rebellion or prevent secession).^204(*)

Such is the case of a use of force. Moreover, the Commission based its codification on the practice of the consents to military intervention. It is article 29 of the draft that governs the scope of such consents. Another exception to the principle of non-intervention is self-defense.^205(*)

Explicitly, article 51 of the Charter of the United Nations recognizes, a "natural right to self-defense, individual and collective, where a member of the United Nations is the object of an armed attack». This right is qualified as "natural law", which rules out the restrictive interpretations based on the logic of collective security. The ICJ held that the term implied the existence of a customary law of legitimate defense.^206(*) It is a right that can be implemented collectively as well as individually, which is reassuring small States which can only rely for their safety under traditional conditions, on a classical alliance.

Under the terms of article 51, only armed aggression justifies the use of force on the basis of self-defense. As a rule, the assumptions of self-defense are quite excluded from what is called humanitarian armed intervention. A humanitarian intervention is by definition carried out on behalf of the defense of human rights and not to react against inter-States aggression.^207(*)

Some authors believe military intervention carried out by a State to protect its own nationals on the territory of a foreign State, could be justified by self-defense, to the extent that human rights violations would be treated as an assault. In this respect, United States have justified their intervention in Dominican Republic in 1965 or in Grenada in 1983.^208(*) These interventions were then carried to protect the nationals of the State involved, something that cannot be considered a humanitarian motivation. The sole purpose of these operations was to defend individuals because of their ties to a State.

A final argument of the doctrinal trend is that the reference to the "natural law" of legitimate defense contained in article 51 of the Charter could override the condition of prior act of aggression. According to these authors, this expression would return to customary law which, unlike the Charter, would legitimize an armed reaction to an act which doesn't constitute an aggression, especially engaging a humanitarian operation for the protection of its nationals.^209(*) This argument of the doctrine in favor of the right of humanitarian intervention is doubly criticized:

· First, it is unclear how it could allege the lack of customary prohibition to circumvent a conventional ban. Article 2 §4 prohibits the use of force not justified by the terms of article 51.^210(*)

· Then, custom prevailing currently does not legitimate armed defense against the use of force that does not constitute an act of aggression. It is thus that the ICJ, in its ruling on the case of military and paramilitary activities in the Nicaragua and against this country, states that this right may be exercised only if the State concerned was the victim of an armed aggression.^211(*)

Lastly, the exception of self-defense cannot be retained in the case of humanitarian interventions. The violation of human rights is not related to an act constituting aggression.

Thus, another exception to the principle of non-intervention may be a strictly humanitarian and non-discriminatory intervention.

3.3.4. A Strictly Humanitarian and non-Discriminatory Intervention

In some cases of humanitarian interventions, the intervening State justifies that action by declaring its willingness to help a population in distress. That position is supported by a large part of the doctrine in favor of the right of humanitarian intervention raising the concept of moral of extreme emergency.^212(*)

Thus, the State or group of States that claim to bring relief to populations of a third State should do so within the ICRC and therefore determine application of international humanitarian law, which implies existence of an armed conflict. In such circumstance, the interference is considered as such only if it takes the form of an armed intervention. When this is the case, there is undoubtedly a situation for the application of the Geneva conventions and, if the States concerned are parties to one and to the other instrument, their additional Protocol I.^213(*)

It should be noted, indeed, that even on basis of UN resolutions, the use of armed force to impose relief cannot find its basis in international humanitarian law, the duty of enforcing this law excluding the use of force. Indeed, this is not to implement international humanitarian law but to use force to stop a serious and massive violation of this law (IHL). Of course, as in the field of human rights, this is not excluded by the system of the Charter insofar as it can see in these violations a threat against international peace and security.

Thereby human rights are subject to a progressive internationalization. The Security Council recognizes that only massive violations of human rights could found its jurisdiction on the basis of Chapter VII.

On the other hand, the ICJ considered, on the case of paramilitary and military activities in Nicaragua against this country (ICJ 26/11/1984 Nicaragua v. United States), that a strictly humanitarian aid could not be considered an unlawful intervention as soon as it has been exercised without discrimination.^214(*) In the same sense, the Institute of International Law stated, on September 14th 1989, an offer of food and health aid by a State, a group of States, an international organization or a humanitarian organization such as the ICRC cannot be regarded as unlawful interference in the internal affairs of a State and that States should arbitrarily refuse such an offer of humanitarian relief.

In other words, the massive violations of human rights constitute facts qualified as crime against humanity which becomes an international concern and calls upon the world to urgently intervene.^215(*)

In the context of the Libyan case, the researcher believe that stakeholders (NATO) did not respect the principle of non-discriminatory action because they only helped the CNT to overthrow Gaddafi's regime and not the civilian population, whereas a military aid given to one party to the conflict cannot be considered to be strictly humanitarian.

The Libyan civil war (Libyan revolution) was an armed conflict in the North African State of Libya, fought between forces loyal to Colonel Muammar Gadhafi and those trying to end his government.^216(*)

On 21 February 2011 the Libyan opposition called on the UN to impose a no-fly zone on all Tripoli to cut off all supplies of arms and mercenaries to the regime and on 19 March 2011 the military intervention in Libya on the basis of United Nations Security Council Resolution 1973 began. That same day, military operations began, with US forces and one British submarine firing cruise missiles, the French Air Force, United States Air Force and British Royal Air Force undertaking ground actions across Libya and a naval blockade was established by the Royal Navy.^217(*) The effort was initially largely led by the United States. NATO took control of the arms embargo on 23 March, named Operation Unified Protector and an attempt to unify the military command of the air campaign first failed over objections by the French, German, and Turkish governments.^218(*) On 24 March, NATO agreed to take control of the no-fly zone, while command of targeting ground units remains with coalition forces.^219(*) Fighting in Libya ended in late October following the death of Muammar Gaddafi, and NATO stated it would end operations over Libya on 31 October 2011. Those annotations led the researcher to analyze critical how and in which way the law of war was violated.

3.4.1. Violation of Jus Ad Bellum Principle in the Regard of Libyan Intervention

The principle of «jus ad bellum» as it has been defined in second chapter it means the reasons why you fight.^220(*) Based on international intervention in Libya by NATO, its reactions to the 2011 military intervention in Libya in Libya in 2011 were divers. Opponents against the 2011 military intervention in Libya have made allegations of violating the limits imposed upon the intervention by UN Security Council Resolution 1973. At the end of May 2011, Western troops were captured on film in Libya, despite Resolution 1973 specifically forbidding "a foreign occupation force of any form on any part of Libyan Territory".^221(*) Based on 1973 UN Security Council Resolution, NATO was accused of being responsible for the deaths of far more civilians than if it had not intervened according to those opposed to the intervention, this deviation was not respect the article 2 and article 51 of UN Charter on which stresses that no use of force against political independence of any State except in some circumstances.

As research observation, the Libyan intervention by NATO had some critics; the Western Intervention was motive by political hidden, resources hidden and economical hidden before than democratic reasons and humanitarian reasons. Gaddafi's Libya was known to possess vast resources, particularly in the form of oil reserves and financial capital. This intervention is qualified "colonial crusade...capable of unleashing a full scale war", a sentiment that was echoed by Russian Prime Minister Vladimir Putin.^222(*)

However, those in favor of that intervention saw that the military intervention in Libya is as an example of the Responsibility to Protect Policy adopted by the UN at the 2005 World Summit. According to Gareth Evans, "The international military intervention in Libya is not about bombing for democracy or Muammar Gadhafi's head, legally, morally, politically, and militarily it has only one justification: protecting the country's people".^223(*)

The Responsibility to Protect was not implicated in the uprisings in Tunisia and Egypt because they were primarily considered an internal matter with no significant repercussions for the region, the need for appropriate international engagement has been more broadly discussed in relation to the situation in Libya were there was an international implication. These were the refugee spill over and the oil production, beside the human rights violations in Libya were immensely and much worse than in neighbor states. It is of monumental importance that the international community goes beyond condemnations urging the Libyan regime to halt the atrocities and lives up to its commitment of readiness to take «timely and decisive action».^224(*) In applying the Responsibility to Protect norm in the case of Libya the international community first used diplomatic efforts, economic sanctions, and travel ban and arms embargo. As it became obvious that these tools failed to halt the threat of mass atrocities the Security Council considered more robust measures, and adopted a mandate for a no-fly zone.^225(*)

A research personal opinion is that there is a glaring double standard in play. If Libya, then why not Rwanda? The answer is obvious of course; it is a question of alliances, political, economical and military reasons. The debate among Member States around the situation in Libya was not about whether to act to protect civilians for mass atrocities but how to best protect the Libyan population. That is why Member States prioritized the protection of civilians from mass crimes reflects a historic embrace of the Responsibility to protect norm after establishment of the norm at the 2005 World Summit. «We must help governments understand that the Responsibility to Protect norm seeks to protect civilians from genocide, war crimes, crimes against humanity and ethnic cleansing with a range of measures, of which military intervention is a last resort».^226(*) In the same time, a researcher remind that Member States must not to undermine the Responsibility to Protect norm by confusing civilian protection with other motives such as regime change or resource control.

3.4.2. Violation of Jus in Bell Principle in regard of Libyan Intervention

During the Libyan war, the some international public law considered as jus cogens^227(*) were violated by NATO attack.^228(*) For instance, the 2011 NATO intervention in Libya all four Geneva Convention and its AP were not respect at all.^229(*) The following are violation of humanitarian law caused by NATO intervention^230(*):

· on 14 may NATO air strike hit a large number of people gathered for Friday prayers in the eastern city of Brega leaving 11 religious leaders dead and 50 others wounded,

· on 24 may NATO air strikes in Tripoli kill 19 civilians and wound 150, 31 may Libya claims that NATO strikes have left up to 718 civilians dead,

· 19 june NATO air strikes hit a residential house in Tripoli and killing seven civilians,

· on 25 June NATO strikes on Brega hit a bakery and a restaurant and killing 15 civilians and wounding 20 persons,

· on 28 June NATO airstrike on the town of Tawergha, 300 km kills eight civilians,

· On 20 july NATO attacks Libyan state TV Al-Jamahiriya and three journalists were killed,

· On 9 august 85 civilians were killed in a NATO airstrike in Majer, a village near Zliten. NATO air strikes killed 354 civilians and wounded 700 others,

The different report further accused the coalition of "crimes against humanity". The law of armed conflict known as International Humanitarian Law (IHL) provides Means of Warfare of conduct of war, it refers to the tools of war, i.e. to weapons, while "Methods of Warfare" refer to the tactics and strategy applied in military operations to weaken or vanquish the adversary.^231(*) In general, International Humanitarian Law originates in a desire to regulate the behavior of States engaged in armed conflict.

As General Limitations on Means and Method warfare, the right of belligerants to adopt means of injuring the enemy is not unlimited as follows:^232(*)

ï Prohibition against causing superfluous injury or unnecessary suffering to combatants. (Article 35 (2) Additional Protocol I)

ï Whatever accepted means and methods used, there is an obligation to distinguish at all times between civilians and combatants / civilian objects and military objectives (Article 48 of 1^st Additional Protocol).

ï Unnecessary signifies that the suffering caused by a particular means of warfare is not justified by its military utility, either such utility is entirely lacking or at best negligible, or because in weighing utility against suffering the scale dips to the latter side (suffering).^233(*)

ï Military Objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (Article 52 (2) of the 1^st Additional Protocol).

ï It is very necessary to distinguish the military object by civil object and distinguish the combatant and non combatant. ^234(*)

The launching of an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited (AP I, art. 51(5)(b), 57(2)(b), ICRC Customary Rule 14) and constituted the war crimes as provided by article 8 of ICC.^235(*)The NATO had used the weapons of mass destroy, this means are prohibited.

In international armed conflict, combatants are entitled to directly participate in hostilities. In other words, they are permitted to commit lawful acts of war intended to achieve a military goal in the most effective way. The principle of distinction, however, requires that such acts of war be directed only against enemy combatants and military objectives, while preventing unnecessary and excessive damage to civilians. Means and methods of warfare with the potential to cause widespread, long-term and severe damage to the environment are prohibited as they threaten the health and survival of the civilian population. Thus IHL prohibits indiscriminate attacks and provides for the principle of proportionality, which dictates that the so called "incidental loss" of civilian life and/or property should not be excessive in relation to the concrete and direct military advantage anticipated. ^236(*)

As the Cold War ended, many foreign policy analysts predicted that the United States would return to isolationism. During the 1990s, the United States continued to play the leading role in global affairs, maintaining military bases around the world and regularly intervening with military force.^237(*) Politically from the 1990s the word was dominated by US political in the regard the deployment of military forces as a routine part of international relations. The Libya is one of case study of American politics where the America Authority want to take the relay of western military expenditures in its particular object to protect Africa continent from the alternatives offered by the China. The Libyan attack by USA was the political of securing the Israel therefore Israel had needed the Arab States agreeing to refuse solidarity with Palestinians.

Other element hidden before the NATO intervention in Libya were to change the regime in Libya by protecting the French interest in Africa with breaking Libya becoming the alternate financial of continent. The influence of Gaddafi and financial resources he detained competed strongly with those of France.

A less tangible political cost of these political motive interventions has been their corrosive effect on the authority of international organizations such as the UN. In regard to Kosovo, the threat that China and Russia would veto a resolution to intervene in the UN Security Council forced proponents of intervention to insist that the mission did not require UN authorization.^238(*) A few years later, however, many of these one-time advocates found themselves arguing against U.S. intervention in Iraq, at least in part on the grounds that Washington had failed to obtain UN approval. Having ignored the UN when it came to Kosovo and Iraq, it will be more difficult for the United States to condemn the use of force by other states that fail to obtain UN approval.

The United States' humanitarian interventions have won the country few new friends and worsened its relations with several powerful nations. The United States' long-term security depends on good relations with China and Russia, perhaps more than any other countries, but U.S. sponsored interventions have led to increasing distrust between Washington and these Nations. Both countries face serious secessionist threats and strongly opposed U.S. intervention in Bosnia and Kosovo out of fear of setting an unwelcome precedent.^239(*)

Proponents of humanitarian intervention may object that the calculus laid out here understates its effectiveness by neglecting the other U.S. interests that these military missions serve. Even the most ardent advocates of intervention in such places as Kosovo, Sudan, or Libya, however, usually concede that the United States' safety was never directly threatened by the crises there.

In winding up of this third chapter of this study, the researcher note that the rule prohibiting the use of force, as well as its exceptions does not authorize the exercise of unilateral armed intervention even for humanitarian reasons. Nevertheless, the possibility of humanitarian intervention exists but it exclusively belongs to the Security Council and which unfortunately don't possess a permanent armed force, the reason why it is often obliged to delegate this ability.

CHAPTER FOUR: MECHANISMS TO INSURE NEUTRAL AND FAIR HUMANITARIAN INTERVENTION

In international law, the principle of nonintervention, for example the right of every Sovereignty State to conduct its affairs without external interference is a universally applicable customary principle. Following a counter-interpretation which is extensive and not a legal concept, the international stage often appears today as a world of multifaceted interference. If the concept of interference is often used well beyond its legal dimension in the field of humanitarian action, it also gave rise to theoretical construction that assert itself as right in contradiction with the customary principle of non intervention.

The present chapter deals with the some mechanism to insure neutral and fair humanitarian intervention in the future generation.

4.1. Effective Enforcement of Equality Principle to end up Geostrategic Motives in Humanitarian Interventions

The history of international interventions testifies that superpowers have often decided to intervene in a given area when some «untold» interest is implied. Libya is a great oil-bearing country; Rwanda is not, to take a small illustration. In the case of Libya there were a hidden agenda of superpower countries to exploit oil.

4.1.1. The Hidden Geostrategic

NATO backed the rebels and as result thousands of civilians have been killed. Thus the purpose legalized to protect the civilian population has been sacrificed, unequivocally, in favor of the purpose not legalized to overthrow the regime.

Reading the reports on Sirte after the bombing, it realizes that British newspapers talk of the hometown of Qaddafi bombed into smithereens. A resident of the city is cited: "they bombard us, women and children are dying". According to the Daily Telegraph, 28 September 2011 the rebels who fired on the city knew strong although they fought against civilians but they said that the inhabitants of the city had "chosen to die".^240(*)

Support for weeks in such attacks has clearly exceeded the authorization of the use of force. This support was therefore illegal under the international law into force. What seems interesting even more is the grounds on which based the Security Council to authorize such interventions.

The standard that is often mentioned is called 'responsibility to protect'. It is not a mandatory standard of international law but an ethical principle in progressive evolution.^241(*) As such, it establishes a positive duty to ensure the safety and protection. Such duties differ from negative duties or prohibitions, insofar as they are not defined in terms of their content. These duties can be filled in different ways. Which of these will be appropriate, authorized or required? It depends on specific circumstances of each case, factual possibilities of people upon whom the duty devolves, as well as their legal limits.

Therefore, the principle of "responsibility to protect" can solve the question of the legitimacy of the war only by reference to the circumstances. Alone, it cannot do so. This is not primarily a matter of positive international law, but rather a question of fundamental legal principles.^242(*)

Here is the starting point: the violent and legal solutions to conflicts are mutually exclusive, conceptually and normative. This is the reason why straight starts with a fundamental prohibition of the use of force.

Obviously, there are exceptions to this prohibition principle, as it is also the case in municipal law. But these exceptions should be legal, too. They must themselves help to ensure the basic principle of any legal system, that one consisting in the prohibition of violence. These exceptions cannot perform this function if they are unlimited permissions of use of force; they can only do that if they are defined with accuracy in order to prevent the illegal third force.^243(*)

For the State as a guarantor of equality of the rights of all, these coercive measures must of course be varied. But for the subjects of law, who are naturally equal, they exist only as emergency measures.

4.1.1.1. The Franco-British Expedition: The Affirmation of an Imperial Policy in State of Emergency

The Franco-British and other shipping in Libya is part of the imperial tradition of the major Western powers. President Sarkozy strives to create the illusion of a return to the "greatness" of the France and Europe. Nevertheless as the time of during the colonial times, oil, exceptional quality and easily extracted as well as Libyan gas, represent the essential challenge of the change of regime in Tripoli. French-Libyan, Italian-Libyan and American-Libyan recent agreements were deemed not sufficiently reliable. Paris and London more felt needing a new share as they did not get the best concessions.^244(*)

In addition, many Libyan projects in process planned to rise up the State participation in the oil sector from 30 to 51%; it was also envisaged to replace the Western firms by Chinese, Russian and Indian companies. After a stage of compromise, Tripoli was preparing to implement a new policy.^245(*)

Moreover, for long, the United States wanted European States to take the relay of Western military expenditures, in particular to 'protect' African continent from the alternatives offered by China and the emerging powers to each African State. The role played by France in Libya complies perfectly with the views of the United States. On the other hand, United States have the ambition to install in Libya, in the Gulf of Sirte, the unified command "Africom" currently based in Stuttgart and that all African countries have so far refused. The trusteeship of the Libya will allow the installation of this commandment, 42 years after the expulsion of the U.S. bases from Libya by the Kaddafi revolution in 1969.^246(*)

One of the objectives of NATO accompanying the operation of ending up the Kaddafi regime, but passed over in silence, is also the desire to secure Israel. Israel needs Arab States agreeing to refuse solidarity with the Palestinians, as was done with efficiency with the Mubarak's Egypt. The popular movements in Tunisia and Egypt show a dangerous instability. This uncertainty must be compensated by the disappearance of a Libyan regime radically anti-Zionist.

France was also particularly concerned by Kaddafi's attempts of uniting the Africans against western interests. The floating of the African Union during the Ivorian crisis showed that the African is crossed by contradictions and that French influence is reduced. The influence of Gaddafi and the financial resources he detained competed strongly with those of France. The removal of the Libyan leader (many French operations have been mounted since 1975 against him), is therefore considered as the way to protect French interests in Africa by breaking the Libya becoming the alternative financial of the continent.^247(*)

4.1.2. Enforcing the Equal Treatment

To legally reduce those geopolitical trends indirectly expected by military superpowers when they adopt an expedition to «save lives», among prerequisites sine qua non, the UN Security Council should better apply the principle of equal treatment granted by the provisions of articles 2 and 3 of the Charter of United Nations. According to these articles, on one hand the Purposes of the United Nations are:

b. to take effective collective measures for the prevention and removal of threats to the peace, and

c. for the suppression of acts of aggression or other breaches of the peace, and

d. to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

e. to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and

f. to take other appropriate measures to strengthen universal peace; to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and to be a centre for harmonizing the actions of nations in the attainment of these common ends.

On the other hand, the Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:

a. the Organization is based on the principle of the sovereign equality of all its Members;

b. all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter;

c. all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered;

d. 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;

e. all Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action;

f. the Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security;

g. and nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.248(*)

But this principle shall not prejudice the application of enforcement measures under Chapter VII.

4.1.2.1. Equality, a Constant in International Law

The principle of equality constitutes since 1648 with the Treaty of Westphalia up to date the fundamental principle of international relations. Practically, all the other principles are only consequences of the principle of equality. It is a constitutional principle in internal law. Article 16 of the constitution of Rwandan of June 4th 2003 for example provides: "All human beings are equal before the law. They shall enjoy, without any discrimination, equal protection of the law.»^249(*)

The principle of equality deducted also from the Charter of the U.N includes two components:

a. The first part concerns the States as a member of the international society and subject of international law: it is the principle of sovereign equality;

b. The second component concerns the human component of States i.e the peoples: it is the principle of the equal rights of peoples and their right to self-determination.

4.1.2.2 The Principle of Sovereign Equality

The principle of sovereign equality is just a combination of two principles: the principle of equality of States and the principle of the sovereignty of States. The first principle appears as the corollary of the second so that tightly that they are often confused. It is the framers of the Charter of the United Nations who contracted the two principles into one. Pursuant to article 2 paragraph 1 of the Charter: "the organization is based on the principle of the sovereign equality of all its members". Sovereignty is defined as "a supreme character which is not subject to any other".^250(*) Any State subject of international law is necessarily a sovereign State. It appears as the sole criteria on which is founded the sense of the State. In the internal order a State is considered as sovereign by referring to all the lower degrees of the scale of public persons and its subjects themselves.

The State monopolizes the power of coercion, detaining an exclusive right to the exercise of force corollary to the rule of law. In this regard, among the items that the Constitutional Court takes into account when it exercises the control on the constitutionality of the laws, sovereignty occupies a quite singular place especially as far as international treaties are concerned.

In France, the Constitutional Council provides in a decision that..."Respect for national sovereignty does not constitute an obstacle to the fact that.... France can conclude international commitments..." but it ritually specifies that all times... when international commitments to this end contain a clause contrary to the constitution or undermine the essential conditions for the exercise of national sovereignty the authorization to ratify requires a constitutional amendment.^251(*)

In international law, sovereignty takes other meanings. Also attributes granted by the sovereignty to any State at the internal level that allow it to exercise the powers that are inherent in it, internationally sovereignty focuses on independence. The arbitrator Max Huber, in his opinion in the case of the islands of Palmas, specifies that "sovereignty in the relations between States means independence" this independence is reflected by two indicators:^252(*)

· Internal independence is materialized by the freedom of choice of the political regime, economic or social regime immune from interference outside, a freedom to dispose of its own resources and wealth as confirmed by resolution No. 1803 (XVII) of the General Assembly of the United Nations in December 14, 1962.

· External independence, which manifests itself through the exercise of an autonomous foreign and sovereign policy. The refusal of any proposal of organic subordination to other subjects of international law States leads to the rejection of any idea of an international legislator vested with supreme authority.

The principle of sovereign equality is presented as the Foundation of international cooperation as it has been institutionalized by the Charter of the United Nations. It is included in all institutive charters of regional organizations. It is more implicit in the treaties creating so-called «integration» organizations. The initial meaning of the principle was greatly expanded under the influence of the socialist countries and countries of the third world. While in the interpretation advanced in 1945 the sovereignty aspect prevailed, today emphasis is placed on the equality aspect.

According to resolution 2625, it means that «all States.. . have rights and equal duties and are equal members of the international community, notwithstanding the differences of political social economic order or differences of another nature".^253(*) Given these considerations, a researcher can deduce that the principle of sovereign equality has at least two meanings:

10. A Political Meaning

In contrast to the subjects of domestic law who are constitutionally equal; besides, subjects of international law, i.e States, are sovereign and equal. No State can impose domination on another and no State can be engaged if he has not expressly consented to do so. In its advisory opinion, the ICJ says: "no rule of international law requires that the State have a defined structure and this is evidenced by the diversity of State structures that currently exist in the world". ^254(*)

With the end of the cold war and the disappearance of the satellite countries, sovereign equality is affirmed by a legitimacy conferred by the polls. The General Assembly of the United Nations adopted on 18 December 1990 resolution 45-150, entitled strengthening the effectiveness of the principle of periodic and honest election in which it declared: "Recalling that all States enjoy sovereign equality and that each State has the right to choose and freely develop its political, social, economic and cultural systems».

This trend has become clearer in the attitude adopted by the Security Council against Haiti following the putsch of September 1991, a trade embargo and the prohibition of any international assistance have decreed against it to compel the junta to power to abandon its attributes to the profits of a civilian Government.^255(*)

20. A Legal Meaning

According to the legal point of view, the principle of sovereign equality postulates that any difference in treatment must be made between States because of their wealth, the size of the territory, the importance of the population, military power or economic power. Vested with a legal personality, each State has the same rights and the same obligations as recognized by international law. Like in domestic law where legal equality means equality before the national norms, in international law, any State has the obligation to respect the rules of international law specifically the principles of international law widely disseminated and unanimously accepted in the constituent instruments of international organizations on universal or regional levels.

Consequently, the African Parliamentary Union in its resolution N^o. 08-31-R125 has clearly stated in article 1: "that by virtue of the principle of sovereign equality among all members of the Organization of the United Nations any abuse of the principles of international law is not only a violation of the sovereignty of a country, Member State of the African Union but also, as added in article 2 "^256(*), it is mandatory to respect the principles of international law with a view of the preservation of the sovereignty of countries.

4.1.2.3. The Principle of Equality of Peoples

The right to the sovereignty of States is now redefined and, at the same time, the sovereignty of the person has been enhanced by increased awareness of human rights. Starting citing the words of Kofi Annan, «we intend to underline the importance to the equality of peoples as a principle of international law».^257(*) However the path remains sprinkled with pitfalls because equality if it is real at the legislative level it is certainly not such in practice.

The equality of peoples and their right to self-determination is a fundamental principle of international law at least on the theoretical level. In 1789, the declaration of the rights of human beings and of the citizens consecrated in article 1 "people are born and remain free and equal in rights». Social distinctions can be based only on the common utility. Nevertheless, the principle as stated in the Charter of the United Nations is a principle of recent conception. Although its finds its origins in a principle of the 19^th century, the principle of nationality.

According to this principle every nation has the right to establish an independent State. This same principle generated in the aftermath of the Second World War the principle of the right of peoples to self-determination. Mentioned in article 2, paragraph 1 and article 55 of the Charter, this principle did not cease to raise the curiosity of researcher as questions continue to gravitate around it. Can grant the right to minorities in States newly independent, the right to dispose of themselves even calling the split on States to which they are attached?

Resolution 1514 of the General Assembly of the United Nations has been the basis of decolonization process which led since 1960 to the creation of many States, now members of the United Nations. It is supplemented in some aspects by resolution 1541 (XV) of the General Assembly. According to this resolution "all peoples have the right of self-determination and under that right they freely determine their political status and freely pursue their economic, social and cultural development».^258(*)

The General Assembly reaffirmed its position in a resolution No. 53/168 of December 10, 1998, "Recalling that the Charter of the United Nations again proclaim the faith of the peoples of the United Nations in fundamental human rights, in the dignity and worth of the human person in the equal rights of men and women and of nations large and small." The ICJ took the opportunity to refer to resolution 1514 (XV) of the General Assembly of 14 December 1960 applicable to all peoples and all the territories "that have not yet attained independence" the Court continued its analysis in his terms the Court must take into account the changes in the half century that followed and its interpretation cannot fail to take account of the progressive evolution the law benefitted from thanks to the Charter and custom of the United Nations."^259(*)

Although it is formulated and confirmed on several occasions, ambiguities constantly undermine this principle. The multiplicity of the proclamations of the right of peoples to self-determination^260(*) contrasts with the reality and face especially with the principle of territorial integrity. The General Assembly provides a first response in resolution 47/135 dated February 18, 1992 in affirming the right of persons belonging to minorities to enjoy their own culture, to profess and practice their own religion and use their own language, in private and in public, freely and without any interference.

A response nuanced because it does not bring the necessary clarification on the scope of the right of minorities to freely take advantage of their right to self-determination. The application of the principle of territorial integrity and respect for the borders inherited from colonization in Africa impede any attempt at self-determination of peoples.

After this presentation of the principle of quality of states before the international law, it seems crucial to underline that this sacrosanct principle remains virtual; states are really unequal and the treatment of a localized insecurity issue is often submitted to subjective considerations for example diplomatic relation, political reasons, economical and geopolitical parameters.

Those so called parameters are silenced but they are economic, political, hegemonic etc. and when they don't appear the problem is abandoned if not neglected. To address such an issue as researcher suggests that all human rights concerns should be taken into account for all regions especially when human lives are endangered. This should be inserted in the regulations of the UNSC and that any veto power should infringe this principle which be imperative and prevail on all others constituting the jus cogens. If this orientation was adopted, Rwandan genocide, Syrian crisis would have been handled without any reluctance.

4.2. Advocacy for New Rules Governing Humanitarian Action/ Intervention

Intervention: when, why and how? To avoid geopolitical implications of superpowers in humanitarian initiatives, some conditional criteria should rather be established as it is suggests through the following subsections. This section principally focuses on the use of military force for humanitarian purposes and the concept of pre-emptive self defence.

4.2.1. The Law of the Use of Force

The unilateral use of force against the territorial integrity or political independence of sovereign states is prohibited under international law subject to two exceptions. This section will provide a comprehensive overview of the international legal framework regulating the use of military force by sovereign states including an explanation of the role of the collective security system, the power of the United Nations Security Council to authorize military intervention and the inherent right of states to use force in self defence. This section will also highlight some of the flaws in the current system which will then be explored in more detail in the other sections of the paper.^261(*)

4.2.1.1. Humanitarian Intervention

Since the tragedies of Rwanda and Srebrenica and the NATO intervention in Kosovo in the 1990s, it has been widely discussed whether or not there should be a right of humanitarian intervention. This section will examine the legality of humanitarian intervention and draw upon the doctrine of the Responsibility to Protect to determine whether this position has changed. Syria will be used as a case study to illustrate when humanitarian intervention would be justified; the Syria case shows a textbook example of discrepancy between a written norm and application of the norm in practice. There is a discrepancy between purpose and impact.^262(*)

In Libya, a tyrant turned his guns on his own people. The UN Security Council invoked the Responsibility to Protect norm and endorsed international military intervention to save the Libyan people from an imminent massacre. In Syria, a tyrant has turned his guns on his own people. The UN Security Council is struggling to even formally condemn the actions that have left 1400 people dead, according to human rights groups, and led to some 4,000 Syrian refugees crossing the border into Turkey. Further, «in the case of Libya, the Arab League appealed to the UN Security Council to establish a no fly- zone over Libya. In the case of Syria, no such request has been done because of fear of regime change, of being the cause for civil war and regional instability». Russia and China believed that UN resolution 1973 on Libya has been stretched beyond its mandate in order to achieve a regime change and end Gadhafi's ruling. No such thing Russia and China wanted to happen in Syria.^263(*) Also in the case of Libya, the Libyan opposition cried out for help to the international community. The Syrian opposition, however, has not asked outside help in ending Assad's ruling.

Based on this short comparison of humanitarian intervention in the same situation of different countries (Syria and Libya) a researcher observes that the UN can be deadlocked on the decision whether or not to intervene when the situations calls for humanitarian intervention. The UN Security Council deadlock has to do with power politics and selfish interests of states who has right to veto in UN Security council. Some conflicts are so pressing that UN Security Council deadlock is a dead sentence for innocent civilians in the conflict area. Therefore, the international community, until the twenty-first century, was in need of a new measure or norm to address the problem of not being able to intervene when gross human rights atrocities are taking place.

4.2.1.1. Legality versus Legitimacy

One of the most difficult decisions faced by states is what to do when a State is perpetrating gross human rights violations against its own peoples causing a humanitarian catastrophe to unfold but the United Nations Security Council has failed to authorize military intervention through the collective security framework, thus prohibiting lawful military intervention.^264(*) This considers whether a state or coalition of states can or should intervene in such circumstances despite the fact that any military action taken against the offending state would be technically unlawful under current international law.

4.2.1.2. Pre-Emptive Self Defence

When self-defense is a well established principle of international law, the issue of pre-emptive self defence is less certain. The concept of self defence as legal right has no meaning unless there is corresponding general duty to refrain from the use of force. This general ban was achieved in some measure under Kellogg Briand Pact and taken further to UN Charter. According the article 51 of UN Charter, nothing precludes self defence measures if an armed attack occurs until the SC has taken measures and once self defence measures are taken by a state they must be reported immediately to the SC pre-emptive or anticipatory self defence. This means is used in the following circumstances:^265(*)

· In response to end directed against an ongoing armed attack against State territory, for example by Kuwait against Iraq in 1990;

· Anticipation of an armed attack or threat to the State's security, so that a State may strike first, with force, to neutralise an immediate but potentional threat to its security, e.g. as alleged by Israel as justification for its strike against Iraq nuclear reactor in 1981;

· In response to an attack (threatened or actual) against State interests, such territory, nationals, property and rights guaranteed under international law, if any of these attributes of State are threatened, then the State may use force to protect them. e.g. by Israel against Uganda (Entebbe raid road)^266(*) in 1977 and the invasions of Afghanistan and Iraq by USA to counter the terrorist threat;

The researcher noted that the preventive action in foreign territory is justified only in case of «an instant and overwhelming necessity for self-defence, leaving no choice of means and no moment of deliberation.

4.2.2. Objectives and Consequences of Military Intervention

This section concerns the objectives and consequences of military intervention. After considering the role of military intervention in protecting human rights and preventing genocide, it highlights the importance of protecting civilians during military intervention. In addition this part examines the possible negative consequences for the intervening state.

The aim of the human protection operation is to enforce compliance with human rights and the rule of law as quickly and as comprehensively as possible, but it is not the defeat of a state; this must properly be reflected in the application of force, with limitations on the application of force having to be accepted, together with some incrementalism and gradualism tailored to the objective to protect^267(*);

· the conduct of the operation must guarantee maximum protection of all elements of the civilian population;

· strict adherence to international humanitarian law must be ensured and force protection for the intervening force must never have priority over the resolve to accomplish the mission;

· and there must be maximum coordination between military and civilian authorities and organizations.

4.2.2.2. Consequences of a Military Intervention

Estimating a humanitarian outcome of military interventions on the local population is a complex problem whose results proved to be very much dependent on the adopted conceptualization of the humanitarian outcome. In spite of the fact that there has been a couple of studies attempting to quantify the broader effects of warfare on normal social dynamics and societal systems.^268(*)

There are many possible ways how to capture impact of military intervention on the humanitarian situation in the country. One possible extreme how to measure the humanitarian outcome would be by looking merely at the changes of mortality in the battle field or alternatively conflict duration, while completely ignoring the impact of the intervention on the civilian population. The second extreme would be an adoption of the Johan Galtung's approach that a mere cessation of violence without removing the roots of conflict is not a sufficiently positive outcome, claiming that a successful intervention should achieve a positive peace without presence of any indirect and structural violence.^269(*)

4.3. Occupation and Exit Strategies

It therefore gives a brief outline of the law on occupation, followed by an evaluation of the importance of exit strategies in military interventions. A researcher has also examined the elements of a sound exit or transitional strategy together with common obstacles which stand in the way of devising such a strategy.

Primo, following the horrors and devastation throught by the Second World War, the international community came together and agreed to prohibit the unilateral threat or use of force by states in order to create a world characterized by peaceful coexistence rather than aggression and conflict. This new world order was enshrined in the Charter of the United Nations ("the Charter"). It was signed by fifty states in San Francisco on 26 June 1945 and provided the basis for the international legal system regulating the use of force. The intervening states are signatories to the Charter and are thus bound by all of its provisions including the prohibition on the use of force.^270(*)

Secundo, the United Nations through the collective security system does however provide a means by which military force can be employed to address threats to international peace and security. This has not however always proved effective due to the highly politicized nature of the international system and this has resulted in military intervention being withheld in the face of humanitarian catastrophes or taken unlawfully outside of the international system, neither of which is an acceptable nor sustainable state of affairs.^271(*)

Tertio, it has become increasingly apparent in the post Cold War era that the international legal framework regulating the use of force between states, as codified within the Charter, is unable to respond effectively to modern threats to international peace and security including the widespread proliferation of increasingly sophisticated and deadly chemical, biological and nuclear weapons, large scale violations of human rights including crimes against humanity and genocide and the presence of well organized and armed non-state actors including terrorist groups and militias.^272(*) The The human rights discourse has gathered significant peace over the past years and it is now widely accepted by the international community that sovereign states have an obligation to protect their peoples from gross human rights violations and consequently to refrain from perpetrating such violations. The notion of state sovereignty has arguably shifted away from an absolutist conception where the state is the sole master of its internal affairs and towards one whereby the right to sovereign status, and the associated rights of non-interference, is predicated upon the effective undertaking of responsibilities expected of a state, as determined by the international community, including the protection of the fundamental human rights of its peoples.^273(*)

Quartos, Where a state fails to discharge its responsibilities the international community is required to react and take the necessary steps, which may ultimately include the use of military force, to prevent gross human rights violations occurring and to restore international peace and security. As a result there exists a clear tension between the prohibition on the use of force against states, the principle of non-interference in states internal affairs and the promotion and protection of human rights. This is a tension which has not been fully reconciled by the international community and this is reflected by the wide ranging disagreements about, and criticism of, the current state of international law in this area.^274(*)

Finally, in light of the foregoing it is clear that the decision about whether or not to take military intervention against another state, or a non-state actor, is a very difficult and complex one which includes a multitude of legal, political, financial, logistical and moral considerations for a state to weigh in the balance when formulating policies and making decisions about military intervention.^275(*)

As the researcher observation, when single states and coalitions of states seem to resort to the use of force primarily motivated by their own interests and not so much for the benefit of the international community and of the people that are affected by military intervention, any assessment of the intervention will always be ambivalent, regardless of the fact that the intervening states acted with the blessing of the UN Security Council and, therefore, under the banner of international legality.

It is very important to note that the humanitarian intervention should occur without United Nation Security Council authorization when it is at last resort. It is this Centre's opinion that the «Responsibility to Protect» doctrine could provide a foundation on which a legal right to intervene in states for humanitarian purposes could be developed and established in international law. Whilst, as has been discussed, the current conception of Responsibility to Protect does not provide scope for intervention out with the Charter, the researcher consider that it should do and that the intervening countries could take the lead in advancing a legal basis for intervention within the Responsibility to Protect framework.

CHAPTER FIVE: GENERAL CONCLUSION

International law, including human rights law, humanitarian law and international customary law is primarily applicable to states rather than to individuals. Consequently, these international rules generally become a source of domestic legal obligations for a state's officials and of domestic rights for that nation's citizens. In the beginning of writing this thesis of ending the post graduate study, the researcher was very skeptical about the legitimacy of international intervention in Libya by NATO in 2011 but at the end of this conclusion the researcher will let you know if the researcher is still skeptical or whether the case study has changed his opinion. The main research questions posed by researcher was: «Does the concept of Libyan international intervention by NATO in 2011 comply and evaluated on the basis of theoretical frameworks of 1973 UN resolution in practice based on principle of «Just War» ethics and consequentiality ethics? Wasn't it propelled by geostrategic and economic motives? As it has been said earlier, the researcher was very critical before studying the case and had two presumptions related to the research question.

In this conclusion the researcher discusses those presumptions and answer to the main research questions by testifying the hypothesis, the researcher summarizes the findings of precedent chapters and at the end of this chapter makes suggestions and recommendations so far.

5.1. Summary and Findings of the Precedent Chapters

The introductory chapter and chapter one fixed the context, aims, goals and the expectations a work of this magnitude. This Chapter presents the introduction general of the study by discussing the background and the significance of the study.

In the second chapter titled Historical Background on Humanitarian Intervention in International Law deals with literature review, the researcher focused on humanitarian intervention backgrounds. The researcher defined some key concepts such as armed conflict, sovereignty, etc. and reconsidered the principles of public international law, especially the principle of humanitarian intervention and the principle of sovereignty of States, interference and the principle of non-intervention and at the end discussed the use of force in international relations and humanitarian intervention.

The chapter three focused on the critical analysis of the humanitarian intervention by NATO in Libya. In this chapter, the researcher analyzed the foundations of the intervention, the absence of indisputable legal basis and in fine, exceptions to the principle of non-intervention. In this regard, the researcher analytically examined the doctrine of humanitarian intervention to the rules of current international law. Based on the principle of sovereignty, the researcher noticed that the provisions of the Charter of the United Nations and the interpretation given by the doctrinal tend to legitimize an armed humanitarian intervention. Admittedly, the UN Charter provides for exceptions, but in no event shall give right to a State to intervene unilaterally in the territory of another State. The only exception allowed is the use of force authorized by the Security Council of the United Nations in the context of collective security. According to the provisions of the Charter, only the Security Council can qualify a serious violation of human rights and allow armed intervention. Outside the United Nations system no use of force is authorized, and therefore, legal. Thus, the intervention of NATO in Libya is legitimate because based on the protection of endangered civilian population. This intervention was implemented to test the foundations of the international system. It occurred against the Government of a State in order to position its powers and if necessary to overthrow Qadaffi. Consequently, armed intervention applies to the political power of the Libyan State is not appropriate.

In addition, the researcher had the opportunity to see the authors support the right of humanitarian intervention to match its implementation of certain conditions. None of them considers this right of humanitarian armed intervention as a discretionary competence that there are violations of human rights in the territory of another State. A researcher saw also that despite all of the content and the definition of this right, it remains unclear and may be extremely hazardous because several motivations can be hidden behind an intervention that the researcher qualified misused humanitarian.

Furthermore, especially in the chapter four of this thesis, the researcher attempt to set out the mechanism to insure neutral and fair humanitarian intervention in the future generation where the researcher elaborated the following guidelines:

Primo, it can be seen from the researcher extensive consideration and analysis of the legal framework pertaining to military intervention; it should not be taken lightly and without a through consideration of the legal position, the benefits and drawbacks of intervention, operational capacity and planning issues. However, in pressing cases of humanitarian catastrophe, states need to be willing to intervene quickly and without undue hesitation. It is important when considering intervention that the intervening state gives due regard to the impact that this could have on the ground, versus the impact that not intervening would have.

Secundo, the international community when intervenes shall be bound by both the UN Charter and customary international law. Any uses of force taken out with the scope of these legal rules are prima facie illegal under international law. Due to these rigorous rules in international law on the use of force, there is little scope for application of humanitarian intervention legally at the present time. However, it is still seen as legitimate in several circumstances, such as egregious and systematic human rights violations.

Tertio, the researcher finds that humanitarian intervention should occur without United Nation Security Council authorization when it is at last resort. It is this Centre's opinion that the «Responsibility to Protect» doctrine could provide a foundation on which a legal right to intervene in states for humanitarian purposes could be developed and established in international law. Whilst, as has been discussed, the current conception of Responsibility to Protect does not provide scope for intervention out with the Charter, the researcher consider that it should do and that the intervening countries could take the lead in advancing a legal basis for intervention within the Responsibility to Protect framework.

Quartos, as well as intervening in the name of humanitarian intervention, states can also intervene in the pursuit of self-defence. The right of self-defence is not disputed in international law. As has been explored, pre-emptive self-defence is a more disputed right, but in appropriate circumstances namely, serious security threats, it could be seen to be a legitimate form of intervention. Intervening in pursuit of non-state actors following terrorist activity is becoming more and more accepted in international law, particularly following the accumulation of events doctrine.

Finally, it is important that when deciding to intervener States also gives considerable thought to the consequences that intervention could have, as well as exit strategies. Part of the Blair Doctrine^276(*) encapsulated the fact that states have to be prepared to go the long haul when intervening and shouldn't just consider the short-term implications. States suffer serious problems in the aftermath of any type of intervention and it is the responsibility of the intervening state to help rebuild. This is important for ensuring that the conflict does not reignite at a later date.

5.2. Test of Hypothesis

The above developments led the researcher to realize that the issue of the intervention of NATO in Libya has been subject of several controversies.

Indeed, some believe that the presence of NATO forces in Libya constituted a violation of the principle of sovereignty guaranteed by article 2 paragraph 1 of the Charter of U.N. Others on the other hand, support that this intervention was so worth in so far as the circumstances of the ground demanded. A researcher also focused on analysis of the international intervention in Libya by NATO if it has deviated from its mission by helping the rebel against the government troops and stress out it negative humanitarian outcomes. It is in this context the researcher developed the present research.

5.2.1. First Hypothesis: «International intervention in Libya by NATO of 2011 does not comply with the 1973 UN Security Council resolution»

As general acceptance, States are sovereign and any interference in the internal affairs of a State cannot be tolerated because this will be qualified as a violation of the principle of non-interference. However, during the 2005 World Summit, each Member States of U.N have taken the responsibility to protect their civilians from violations of human rights. It was the prerogative of each State to protect its populations from human rights violations. And if the later failed to protect them, the international community through the Security Council could therefore use all means, even coercive if necessary to maintain international peace and security. It is where the doctrine of the responsibility to protect stems came from.

Under article 2§4, the use of force is not prohibited, but only when it is directed against the territorial integrity, political independence of the target State or where it is inconsistent with the purposes of the United Nations.^277(*)Talking of the legality of the international intervention in Libya by NATO in 2011, the article 4 of the 1973 Resolution authorizes the States which have notified the Secretary-General to "take all necessary measures" to protect the civilian population in Libya.^278(*) This does not exclude attacks which have as goal the overthrow of Gaddafi if they were also intended to protect civilians.

Hence, the framed hypothesis «International intervention in Libya by NATO of 2011 does not comply with the UNSC resolution» has not been validated.

5.2.2. Second Hypothesis: «International intervention in Libya by NATO of 2011 was for political purpose which led to the negative humanitarian outcomes»

The international intervention in Libya by NATO reveals the weakness and shortcoming in the international legal system of collective security. This resort to use of force in Libya by NATO was primarily motivated by the NATO interest. Those tricking interest of NATO in Libya was based on geostrategic hidden, the Franco-British expenditure and American economical and Political will. The researcher noted that the intervention in Libya by NATO caused some violation of international law consider by it's as jus cogens. For instance, NATO has violated the different law providing the means and warfare of war which led to the negative humanitarian outcomes. As it has been seen in precedent chapters, the researcher pointed out that international intervention in Libya of 2011 was for different reasons (e.g. political reason, economical reasons etc.) and had the negative humanitarian outcome.

Hence the second hypothesis framed by a researcher «International intervention in Libya by NATO of 2011 was for political purpose which led to the negative humanitarian outcomes» has been validated.

5.3. Suggestions and Recommendation

To conclude, the purpose of war displayed initially, arising from the mandate established by the 1973 Resolution, was the protection of the civilian population but the bombing of targets in accustomed areas of Tripoli, away from protecting civilians, already killed a number who enter to NATO in the category of "collateral victims". Fact which represents a widely extensible reading of the 1973 Resolution, or even a violation of the framework of the resolution under international law and sufficiently the prerogatives conferred on the Security Council by the Charter, are more used to political and diplomatic purposes to the detriment of their true mission.

Due the abuse done by NATO where it resource to deviation of its mission «to take all necessary measures ....», the researcher has proposed the following recommendation.

5.3.1. Recommendation to the UN Security Council

As the scope of the authorization in Libya by UNSCR is unusually broad and making it difficult to determine the exact limits of the authorization. While the authorization and the military intervention are legal, an evaluation of the Security Council's action in Libya from a policy perspective and with regard to its legitimacy is more precarious, and the final assessment of the intervention will depend on a considerable degree on whether it will result in a stable and peaceful resolution of conflict.

Firstly, the researcher suggests to the Security Council that the Security Council Resolution should be clear in all of its dispositions or provisions and define the means and methods used by intervener organ or State.

Secondly, the researcher suggests to UN Security Council members that the resolution taken should be the broadest developed and should initiate the way the resolution should be put in action without confusion to the intervener.

Finally, the researcher suggests to UNSC members that all UN Security Council Resolution should comply with the UN Charter in all time and in all circumstance.

5.3.2. Recommendation to the UN Members and to the International Community

The UN member and all international community should respect the UN Charter and all resolution should be in conformity with it, any other considerations like political and economical parameter should be avoided.

5.3.3. Recommendation to the Intervener State or Organization

The intervention in Libya reveals general weaknesses and shortcomings in the international system of collective security, deficits that have the potential to significantly weaken the international community's enduring acceptance and support of the system. When single States and coalitions of states seem to resort to the use of force primarily motivated by their own interests and not so much for the benefit of the international community and of the people that are affected by military intervention that is why a researcher recommends:

· that any assessment of the intervention should be always be ambivalent, regardless of the fact that the intervening states acted with the blessing of the UN Security Council and, therefore, under the banner of international legality.

· The intervener should respect in all time the norms of IHL and other jus cogens norms.

· The practice of execution of UNSCR should be appropriate to balancing the consequences caused by the force to be used and right of human being as provided by declaration of Human Rights.

5.4. Contribution of this Dissertation in the Area of Research

The legal status of humanitarian intervention poses a profound challenge to the future of global order drawing on recent doctrinal studies, this research enlighten the academicians and researchers how sometimes the international intervention does not observed the guidelines provided by its authorizations. This study has explain well to the lawmaker and actors of justice how UNSC Resolution in area of international intervention would be interpret in lay balancing human rights issues. This research play a great role of knowing how estimate towards a reasonable prospect of good success of international intervention in the future.

The analysis presented in this study includes both a strong and a modest position. The strong position holds that legalizing international intervention should, on balance with the human rights, discourage aggressive wars by states hat use the pretext of humanitarianism. Therefore in area of research, this research will be a tool of strong and modest knowledge of how, when and why international intervention will be balancing with human rights protections and how the some general principles of international law will flexible on matters of mass violation of human rights protections.

5.5. Scope for Further Researcher

The International humanitarian intervention introduced in this dissertation provides a natural guide to future researchers. Hence, natural directions for future research include pushing existing domains deeper down in the international intervention practice, as well as introducing new domains. It is not yet completely clear how mechanisms should be evaluated. Thus, future research at these nodes will also involve developing a general theory for such evaluation of international intervention. It is very clear that the future researcher will deal with development of framework of international intervention especially authorized by UNSC, with the role of ICC in prosecution of crime committed during 2011 Libyan international intervention and the role of ICC in deterring future gross humanitarian rights violation.

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* ⁷⁶ Michael Byers and Simon Chesterman. "Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law." Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge: Cambridge University Press, 2003, p.51.

* ⁷⁷ Dorota Gierycz, "From Humanitarian Intervention to Responsibility to Protect." Criminal Justice Ethics 2010: pp. 110-128.

* ⁸⁵ Alex J. Bellamy, Libya and the Responsibility to Protect: The Exception and the Norm, 25 ETHICS & INT'L AFF. 263, 265 (2011), p. 182.

* ⁸⁷ Claes, J. (2011), `Libya and the Responsibility to Protect', Published: Center for Conflict Analysis and Prevention, on March 1, 2011, p.76.

* ⁸⁸ Christine Gray, The Use of Force and the International Legal Order, in INTERNATIONAL LAW 615, 623 Malcolm D. Evans ed., 3d ed. 2010, p. 46.

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* ⁹⁰ FRANCK M., «Recourse to Force State Action Against Threats and Armed Attack», Cambridge university Press, Cambridge, 2002, p. 132.

* ⁹¹ NGOYENQUOC DINH; PELLET, A DAILLER and P., Droit International Public, 1998, p. 424.

* ⁹⁴ SCHWEBEL, Intervention and self-defense in Modern International Law, R.C.A.D.I., 2002 II, p. 136.

* ⁹⁶ CIJ, Military and Paramilitary Activities in the Nicaragua and Against, judgment of June 17, 1986, Rec.1986, p. 108.

* ⁹⁸ Hilpold, Peter, 'Humanitarian Intervention: Is there a Need for a Legal Reappraisal?', European Journal of International Law, 12 (2002), pp. 437 - 467.

* ¹⁰¹ M., BETTATI, The Right of Intervention, R.G.D.I.P, volume 95, 1991, p. 649.

* ¹⁰² C.ROUSSEAU, Droit International Public, volume IV, Paris, Sirey, 1980, p. 49.

* ¹⁰³ Abiew, F. K., The Evolution of the Doctrine and Practice of Humanitarian Intervention, Kluwer Law International 1999, p. 39.

* ¹⁰⁴ Antoine Rougier, « La théorie de l'Intervention d'Humanité », RGDIP, 1910, pp. 486-526.

* ¹⁰⁵ Tariq Ali. Masters of the Universe? NATO's Balkan Crusade. New York: Verso, 2000, p. 79.

* ¹⁰⁶ G.SCELLE, Précis de Droit des Gens - Principes et Systématique, 2 vol. Paris 1932 et 1934 (rééd. Dalloz, 2010), p.51.

* ¹⁰⁹ G.Rolin-Jacquemyns, Note sur la Théorie du Droit d'Intervention, in Revue de Droit International et de Législation Comparée, 1876, pp. 673 - 68.

* 110 W.D.VERWEY, Humanitarian Intervention under International Law, Netherlands International Law Review Issue 03 / December 1985, pp. 357-418.

* ¹¹² E. Pérez-VERA, et alii., "The Protection of Humanity in International Law", R.B.D.I, 1969, p.417.

* ¹¹³ F.R.TESON Humanitarian intervention: An inquiry into low and morality, Dobbs ferry/New York, Transnational Publishers, 1988, pp. 119-120.

* ¹¹⁵ G.SCELLE, Précis de Droit des Gens - Principes et Systématique, 2 vol. Paris 1932 et 1934. (rééd. Dalloz, 2010),

* ¹²⁴ simply opinio juris ("an opinion of law") is the belief that an action was carried out because it was a legal obligation. This is in contrast to an action being the result of different cognitive reaction, or behaviors that were habitual to the individual. This term is frequently used in legal proceedings such as a defense for a case. Ibid.

* ¹²⁵ TESON, Humanitarian Intervention: Inquiry into Law and Morality, Dobbs ferry (New York), Transnational Publishers, 1988, pp.167 - 168.

* ¹²⁷ S.C. Res. 38/7of 1983, U.N. Doc.S/RES/392 (June 19, 1983). Available on https//:www.un.org, accessed on 7/9/2014.

* ¹²⁸ R.CHARVIN, The Intervention in Libya and the Violation of International Legality: a return to the nickname "International Morality" of the 19^th century, December, 2011, pp. 5 - 6.

* ¹²⁹ Gérard de la Pradelle, Des faiblesses du Droit Humanitaire. Etats Puissants et Mouvements de Résistance, sous la dir.D.Lagot, l'Harmattan, 2010, p. 33.

* ¹³⁰ The Professor Guilhaudis, for example, in his book on Contemporary International Relations, dares to entitle a paragraph "The Endless Violent Breakup of Yugoslavia, Despite the UN and NATO, 1987, p.730.

* ¹³¹summum jus summa injuria is a maxim which means `extreme justice is extreme injustice, Fulton v. Pontiac General Hospital, 160 Mich. App. 728, 734 (Mich. Ct. App. 1987).

* ¹³⁴ A procedure was opened in France against the French army for attempted murder of L. Gbagbo. The arrest of Ivorian president has indeed occurred by the collaboration of French and Ivorian forces, after an intense bombardment by the force of the Unicorn of the residence of Laurent Gbagbo.

* ¹³⁵ CHARVIN, The Doctrinal Caution against new International Reports in Mixtures, Touscoz, France Europe Editions, 2007, p.18.

* ¹³⁶ Milanovic 2012; Ambos 2010; C. Stahn, `Libya, the International Criminal Court and Complementarities, A Test for Shared Responsibility', JICJ, 2012, Vol. 10, pp. 325 - 349.

* ¹³⁷ B. KOUCHNER, Le Malheur des Autres, Paris, Editions Odile Jacob, 1991, pp. 229-230.

* ¹³⁹ Joel P. Trachtman, "Economic Analysis of International Law," Yale Journal of International Law, 2012, pp. 65-60.

* ¹⁴¹ Richard Falk. "Humanitarian Intervention: Elite and Critical Perspectives." Global Dialogue 2005, pp.45-47.

* ¹⁴³ Anne Orford. Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge: Cambridge University Press, 2003, p.122.

* ¹⁴⁴ United Nations, Institutional System, Archival Studies, N ° 3.02, la Documentation Française, Paris, 2001, p.3.

* ¹⁴⁵ Christine Gray, The Use of Force and the International Legal Order, in INTERNATIONAL LAW 615, 623 (Malcolm D. Evans ed., 3d ed. 2010, pp. 87-88.

* ¹⁴⁶ C.I.J, A.C. 27 June 1986, case concerning military and paramilitary activities in the Nicaragua and against, Rec. 1986, p. 14.

* ¹⁴⁷ Roth, K., The War in Iraq: Justified as Humanitarian Intervention, Kroc Institute Occasional Paper No. 25. The Joan B. Kroc Institute, Notre Dame, Ind, 2004, P.64.

* ¹⁵¹ First report of the Prosecutor of ICC to the UN Security Council, op. cit., p. 24.

* ¹⁵² P.MICHELETTI, Twenty Years of Just War, University Presses of Genoa, 2011, p.2.

* ¹⁵³ Kareem Fahim & David D. Kirkpatrick, Jubilant Rebels Control Much of Tripoli, N.Y. TIMES, 2011, p.32.

* ¹⁵⁴ Modus vivendi is a Latin phrase signifying an agreement between those whose opinions differ, such that they agree to disagree. Modus means mode, way (or method, manner). Vivendi means of living. Together, way of living, implies an accommodation between disputing parties to allow life to go on. It usually describes informal and temporary arrangements in political affairs. Ibid.

* ¹⁵⁶ Byman, D. and Waxman, M., `Kosovo and the Great Airpower Debate', International Security, vol. 24, n^o 4 (spring 2000), pp. 5 - 38.

* ¹⁵⁸ Dworkin, J., `What's so Special about Humanitarian Operations?', Comparative Strategy, vol. 13, no. 3 (July/Sep. 1994), pp. 391 - 99.

* ¹⁶¹ §8 of the preamble of the Charter of the United Nations, documents of studies, N ° 3.02, La documentation Française, Paris, 2001, p. 3.

* ¹⁶³ Preamble of UN Charter. Available on http//:www.un.org/un_charter.doc/pdf, accessed on 24/1/2014.

* ¹⁶⁴ M.VIRALLY, "Panorama du Droit International Contemporain", R.C.A.D.I, vol.183, 1983-V, P. 102.

* ¹⁶⁵ Article 33 of the Charter of the United Nations provides as a means of settlement of disputes "the path of negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, recourse to the agencies or regional arrangements, or other peaceful means of their choice.

* ¹⁶⁶ The preamble of UN Charter states that »we, the peoples of the United Nations, resolved... and these purposes has practice tolerance, a live together in peace with one another in a spirit of good neighborliness, a unite our forces to maintain peace and international security, a accept principles and establish mechanisms to ensure that he will not make use of the force of arms, except in the common interest a resort to international institutions to promote the economic and social advancement of all peoples». UN Charter, op. cit.

* ¹⁶⁷ Resolution 2625 (XXV) of the General Assembly of the United Nations: Declaration on principles of international law concerning friendly relations and cooperation among States, in accordance with the Charter of the United Nations, of 24 October 1970, in the texts of public law, 2nd edition, ed. Dalloz, Paris, 2000, pp32-41

* ¹⁶⁹ United Nations General Assembly resolution 3314 (XXIV): Definition of Aggression, of 14 December 1974, in the Texts of public International Law, 2nd edition, ed. Dalloz, Paris, 2000, pp.237 - 240.

* ¹⁷³ The OAS Charter (Charter of Bogota-inter-American Treaty for the Peaceful Settlement of Disputes, said paw de Bogotá), signed on 30 April 1948 in Bogotá. Available at http://www.oas.org/juridico/english/charte.html, accessed on 24/7/2014.

* ¹⁷⁴ Bellamy, A. J., Whither the Responsibility to Protect? Humanitarian Intervention and the 2005, World Summit?, Ethics and International Affairs, 2006, 20(2): 143 - 170.

* ¹⁷⁵ Resolution 36/103 of the General Assembly of the United Nations: Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, of 9 December 1981, A/RES/36/103.

* ¹⁷⁶ ICJ, bottom, 9 April 1949, case of the Carrefour channels, Rec.1949, p. 4.

* ¹⁷⁷ ICJ, A.C., June 27, 1986, case concerning US military and paramilitary activities in the Nicaragua, Rec.1986, P.14.

* ¹⁷⁹ ICJ,.A.C, 20 July 1962, case concerning certain expenses of the United Nations, Rec. 1962, p.151.

* ¹⁸⁰ Laurie CALHOUN, `Legitimate Authority and «Just War» in the Modern World', Peace and Change, 27(1), 2002, pp. 37 - 58.

* ¹⁸¹ During the 1994 Rwanda Genocide against Tutsi, UN did not intervene due to the economic and political motivation leaded the super power of Western Country.

* ¹⁸³ Nicholas Wheeler, Saving Strangers: Humanitarian Intervention in International Society, New York: Oxford University Press, 2000, p. 34.

* ¹⁸⁷ Daniele Archibugi, `Cosmopolitan Guidelines for Humanitarian Interventions', Alternatives 29(1), 2004, pp.19-21.

* ¹⁹⁰ Accordingly, in the cities of Tripoli, Syrte and Shebba no open opposition had not yet occurred causing severe repression of civilians: these cities were nevertheless intensely shelled.

* ¹⁹² Article 24 of UN Charter provides that: "...the members confer on the Council the primary responsibility for the maintenance of international security and peace and recognize in carrying its duties under this responsibility the Security Council acts in their name. ''

* ¹⁹³ Chris Brown, `Selective Humanitarianism', in Dean Chattejee and Don Scheid (eds), Ethics and Foreign Intervention (New York: Cambridge University Press, 2003, p. 83.

* ¹⁹⁵ David D. Laitin and James D. Fearon, `Neo Trusteeship and the Problem of Weak States',International Security 28(4), Spring 2004, pp.5-43.

* ¹⁹⁶ 1973 resolution by the Security Council of March 17, 2011, paragraph 4.

* ²⁰⁰ Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (New York: Routledge, 1993, p. 55.

* ²⁰⁶ ICJ, A.C., June 27, 1986, case "Military and Paramilitary in the Nicaragua and Against Him», Rec.1986, p. 94 and 102.

* ²⁰⁸ Mohammed Ayoob, `Humanitarian Intervention and International Society', The International Journal of Human Rights 6(1), Spring 2002, p. 84.

* ²⁰⁹ S. SCHWEBEL, Intervention and self-defence in modern International Law, R.C.A.D.I, 1972-II, vol.136, pp. 63-99.

* ²¹¹ ICJ 26/11/1984 Nicaragua against United States. Available at http//:www.icj-cij.org, accessed July 25^th, 2014

* ²¹² Cushman, T. (ed.), A Matter of Principle: Humanitarian Arguments for War in Iraq (Berkeley, CA: University of California Press), 2006, pp.71-73.

* ²¹⁴ ICJ 26/11/1984 Nicaragua against United States, §242. Available at http//:www.icj-cij.org , accessed July 25^th, 2014.

* ²¹⁶ Claes, J. (2011), `Libya and the Responsibility to Protect', Published: Center for Conflict Analysis and Prevention, on March 1, 2011, p. 67.

* ²¹⁷ Thakur, R., `The Responsibility to Protect- Norms, Laws and the Use of Force in International Politics-`, New York: Routledge, 2011, p. 23.

* ²²⁰ us (or ius) ad bellum is the title given to the branch of law that defines the legitimate reasons a state may engage in war and focuses on certain criteria that render a war just. The principal modern legal source of jus ad bellum derives from the Charter of the United Nations, which declares in Article 2: «All members shall refrain in their international relations from the threat or the 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»; and in Article 51: «Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.» - See more at: http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/#sthash.AGPgVVbL.dpuf.

* ²²¹ Hillstrom, D., `The Libyan No Fly Zone: Responsibility to Protect and International Law', Published March 21, 2011, p. 34.

* ²²³ Gieryez, D., From Humanitarian Intervention to Responsibility to Protect, Criminal Justice, Oxford: University Press, 2010, p. 56.

* ²²⁷ "Latin meaning "Compelling Law", This "Higher Law" may not be violated by any country. For example, genocide or slave trade may be considered to go against jus cogens. Available on http://www.legal-explanations.com/definitions/jus-cogens.htm, accessed on 1/10/2014.

* ²²⁸Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. So a party engaged in a war that could easily be defined as unjust (for example, Iraq's aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of the war, as would the side committed to righting the initial injustice. This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for conduct of hostilities. Other principal documents include the four Geneva Conventions of 1949, which protect war victims, the sick and wounded (First); the shipwrecked (Second); prisoners of war (Third); and civilians in the hands of an adverse party and, to a limited extent, all civilians in the territories of the countries in conflict (Fourth) and the Additional Protocols of 1977, which define key terms such as combatants, contain detailed provisions to protect noncombatants, medical transports, and civil defense, and prohibit practices such as indiscriminate attack. at: http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/#sthash.YnxKj0el.dpuf, accessed on 12/09/2014.

* ²³⁰ R.E. VanLandingham, `The Stars Aligned: The Legality, Legitimacy, and Legacy of 2011's Humanitarian Intervention in Libya', Valparaiso University Law Review, Vol. 46, 2012, pp. 859-892.

* ²³¹ Segall Anna, Punishing Violations of International Humanitarian Law at National Level - A Guide for Common Law States, ICRC Geneva 2001, p.58.

* ²³² (Article 35 (1) of Additional Protocol I : Resolution XXVIII of the 20^th International Conference of the Red Cross and Red Crescent (Vienna 1965), Resolution 2444 of the United Nations General Assembly in 1968.).

* ²³³ Victims After the War - Humanitarian Action, Reparation and Justice, International Review of the Red Cross N^o 851 September 2003.

* ²³⁵ For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Willful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Willfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement;(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international

armed conflict, within the established framework of international law, namely, any of the following acts:(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the

* 236 International Review of the Red Cross, 2006, No. 864 - Methods of warfare. Available at https://www.icrc.org/eng/resources/international-review/review-864-methods-warfare/index.jsp, accessed on 1/10/2014.

* ²³⁸ L. Moderne, `The Libya Humanitarian Intervention: Is It Lawful In International Law', 2011 (Moderne 2011); A.J. Kuperman, `A Model Humanitarian Intervention?: Reassessing NATO's Libya Campaign', International Security, 2013, Vol. 38(1), pp. 105-136. (Kuperman 2013); Lehmann 2012.

* ²⁴⁰ The new of Daily Telegraph, 28 September 2011. Available on http//: www.dailytelegraph.com , accessed on 2/9/2013.

* ²⁴¹ John M. Shalikashvili, Shape, Respond, Prepare Now. A Military Strategy for a New Era. National Military Strategy, 2011, pp.216 - 218.

* ²⁴³ Achcar G., La Nouvelle Guerre Froide : Le Monde Après le Kosovo, P.U.F., Paris, 2012, p. 67.

* ²⁴⁵ C. Portela, Humanitarian Intervention, NATO and the International Law. Can the Institution of Humanitarian Intervention justify Unauthorized Action?, Berlin Information Center for Transatlantic Security, Berlin, 2012, p. ii.

* ²⁴⁶ J. Foster, « Afghanistan, The TAPI Pipeline, and Energy Politics », Journal of Energy Security, 23 mars 2013.

* ²⁴⁷ David S. Yost, NATO Tansformed. The Alliance's New Roles in International Security, United States Institute of Peace, Washington DC, 1998, p. 189.

* 248 Articles 1 and 2 of the Charter of United Nations and ICJ Statute of 26 June 1998.

* ²⁴⁹ Constitution of the Republic of Rwanda of June 04^th 2003 in O.G N^o special of June 4^th 2003.

* ²⁵¹ NATO, The Alliance's Strategic Concept, NAC-S (99) 65. Washington DC, 23-24 avril 1999, points 29, 31, 41, 43, 47, 49, 53, 54 et 61.

* ²⁵⁶ African Parliamentary resolution No. 08-31-R125. Available on http//:www.au.org, accessed on 1/9/2014.

* ²⁵⁷ Speech of UN Secretary General during UN General Assembly, 1998. Available on http//:www.un.org , accessed on 1/9/2014.

* ²⁶⁰ Cases of Crimea and other Ukrainian provinces peopled by Russians who are now rebelling can be a significant illustration.

* ²⁶⁴ The United Nation`s efforts to respond to the crisis in Rwanda were halting, confused, and ineffective. The UN peacekeeping forces have been already in Rwanda since 1993 under the name of the UN Assistance for Rwanda (UNAMIR) in order to monitor the application of the Arusha Accords. Within hours of the crash of the President's plane, the UNAMIR's Commander General; Romeo Dallaire, has contacted the UN's headquarter asking for help to deal with the erupting situation. But there was no immediate response to these concerns. The only response to Dallaire's concerns came from the UN Department of Peacekeeping Operations (UNDPKO) which answered his urgent request for help to properly address the situation that: Nobody in New York was interested in that. The UNAMIR was unable to prevent the spreading violence as the states contributing to the peacekeeping started to withdraw their soldiers in fear of them being wounded or hurt. The UNAMIR's strength has dropped from 2,539 on April 6, to 1,705 as Belgian soldiers were pulled out by their government. Since Belgian soldiers constituted fully one third of the mission, Dallaire described the withdrawal as a terrible blow to the mission. Not only the UNAMIR suffered from the withdrawal, upon the spread of violence of Rwanda, on April 21, 1994, the Security Council passed Resolution 912 to reduce the UNAMIR's troops to 270. The first reasons behind UN's decision to take such an action was the impression that the office of Boutros Boutros-Ghali gave towards the violent events which seemed distant and cold; the thing that has supported the disinterest of the member states to expand UNAMIR. The second was the lack of willingness among states to contribute with troops in the UN peacekeeping forces. The third reason was that the UNAMIR's mandate to monitor the Arusha Accords was ending and no state was interested in renewing the mandate because of the increasing violence stressing the obligation of the Security Council to protect the lives of its peacekeepers. Arthur Jay Klinghoffer, The International Dimension of Genocide in Rwanda, (New York: New York University Press, 1998), p.6.

* ²⁶⁶ The Israelis attacked the Ugandan airport on the justification that their citizens were endangered. Terrorists had boarded the plane at Entebbe, two days after the hijacking, the terrorists released 47 passengers who were not Jewish or Israeli citizens these witnesses recounted that the hostages were being guarded by Ugandan forces who were assisting the hijackers. U.S. backed Israel. Hijacking Convention both Israel and Uganda were signatories and thus, Uganda had an obligation to resist/not cooperate with the hijackers, etc.

* ²⁶⁷ Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, ICISS, December 2001, p. 66.

* ²⁶⁹ Galtung R., The Necessity of Achieving a Positive Peace With the Absence of any Indirect or Structural Violence., Lonon, 2000, p. 72.

* ²⁷⁰ A. Cassese, `Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?' European Journal of International Law 23 at 25, 1999.

* ²⁷¹ Richard Caplan, Exit Strategies and State Building (Oxford University Press 2012): 3-16.

* ²⁷² A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, 2^nd December 2004, UN. Doc. A/59/565.

* ²⁷³ NATO Doc. AR 295 SA (1998), quoted in Simma NATO, The UN and the Use of Force: Legal Aspects EJIL 10 (1999), 1-22, 16

* ²⁷⁴ Honig, J.W. Avoiding War, Inviting Defeat: The Srebrenica Crisis, July 1995 (Journal of Contingencies and Crisis Management, vol 9 n^o 4 Dec 2001), 2001, pp. 200-210.

* ²⁷⁵ Thomas M. Franck, "Who Killed Article 2 (4)? Or: Changing Norms Governing the Use of Force by States", American Journal of International Law 64 (1970) 810 in Ian Hurd, "Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World", Ethics and International Affairs, 25 no. 3 (2011) pp 293-313

* ²⁷⁶ R. Rozoff, Thousand Deadly Threats: Third Millennium NATO,Western Businesses Collude On New Global Doctrine, 2 October 2009, p. 121.

* ²⁷⁷ Christine Gray, The Use of Force and the International Legal Order, in 615, 623 (Malcolm D. Evans ed., 3d ed. 2010, pp. 87-88.

The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict