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

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

· non-discriminatory action.

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.

* 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.

* ¹⁸² CALHOUN, L., op. cit., p. 64.

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

* ¹⁸⁴ Article 7 of UN Charter.

* ¹⁸⁵ United Nations Security Council, Resolution S/Res/770 (1992) adopted on 21 September 1992. Available on http://www.un.org/Docs/sc/unsc_resolution11.htm, accessed on 23/5/2014.

* ¹⁸⁶ United Nations Security Council, Resolution S/Res/1199 (1998) adopted on November 15, 1998, available at: http://www.un.org/Docs/sc/unsc_resolutions11.htm, accessed on 24/9/2014.

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

* ¹⁸⁸ Article 42 of UN Charter.

* ¹⁸⁹ DREYFUS, op. cit., p. 51.

* 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.

* ¹⁹¹ DREYFUS, op. cit., p. 82.

* 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. ''