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

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(*)

3.3.3. The Individual or Collective Self-Defense

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.

3.4. The Critical Analysis of International Intervention in Libya in 2011

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.

* ¹⁹⁸ Calhoun L., op. cit., p.121.

* ¹⁹⁹ ILC, Draft of Articles on the States Responsibility http://www.un.org/law/ile/reports/1996/chap 3.htm, accessed on 23 may 2014 at 14h30'.

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

* ²⁰¹ Article 2 paragraph 4 of UN Charter.

* ²⁰² Brown, C., op. cit., p. 73.

* ²⁰³ Ibid.

* ²⁰⁴ Calhoun, L., op. cit., p. 84.

* ²⁰⁵ Article 29 of draft of ICL.

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

* ²⁰⁷ Article 51 of UN Charter.

* 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.

* ²¹⁰ Article 2 and article 51 of UN Charter.

* 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.

* ²¹³ Ibid.

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

* ²¹⁵ BROWN C., op. cit., p. 81.

* 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.

* ²¹⁸ Penketh, op. cit., p. 83.

* ²¹⁹ Idem, p. 84.