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

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,

· if there is the reason is legitimate, e.g: authorization of UNSCR,

· if it is ultimately,

· If it is depending on the character commensurate means and

· 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.

* 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.

* ¹⁴⁸ Roth, K., op. cit., p. 64.

* ¹⁴⁹ TESON F, op. cit., p 32.

* ¹⁵⁰ UNSCR 1973.

* 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.

* ¹⁵⁵ Teson, op. cit., p. 82.

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

* ¹⁵⁷ Idem, p. 38.

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

* ¹⁵⁹ Report of the 2004 United Nations Organization. Available on http://www.nato.int/docu/pr/2004/p99-040.htm.Accessed, on 24/7/2014.

* ¹⁶⁰ R.CHARVIN, op. cit., 111-112.