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

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(*).

The Libyan crisis went even beyond:

· 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.

* ¹²² TESON, op. cit., p.142.

* ¹²³ NICARAGUA V USA case. Available on http://www.icj.org/caseofnicaguaversususa/pdf accessed on 21/7/2014.

* 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.

* ¹²⁶ Ibid.

* 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).

* ¹³² CICERO H., op. cit., pp.51 - 52.

* ¹³³ Ibid.

* 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.

* ¹³⁸ Ibid.