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What law is applicable to the situation in Libya?

That is an open-ended question which I got recently. Well, given the grave situation in Libya with its many facets, such a question calls for a somewhat long response; even if time as a variable remains relative. And speaking about time, before getting to the question itself, the response of the international community to the crisis in Libya probably has set a new world record (but I stand to be corrected on this one). Since the Security Council acting under Chapter VII of the UN Charter determined that the situation in Libya was a threat to international peace and security, established a no-fly zone, and authorized member States to use force to protect civilians and civilian populated areas under threat of attack (using the phrase ‘to take all necessary measures…short of occupation’), the UN Charter’s law on the use of force is applicable (see Resolutions 1970 and 1973). International humanitarian law applicable in a situation of non-international armed conflict, and more specifically common Article 3, Additional Protocol II (AP II) and customary international humanitarian law is applicable between Kaddafi’s forces and the opposition forces. Curiously enough, Libya has ratified a number of IHL instruments, including the Convention of the OAU for the Elimination of Mercenarism in Africa (Libreville, 3 July 1977) and the International Convention against the Recruitment, Use, Financing and Training of Mercenaries (4 December 1989). That, however, does not deter Kaddafi from using African mercenaries. Not that the warrying parties might care much about the part of the law of armed conflict on the protection of civilians, despite the repeated calls to respect it on the part of international and regional organizations, but they might get to hear from the ICC Prosecutor at some point in the near future what they should have done so.

 

What law governs the interaction between the governments participating in the enforcement of the no-fly zone and protection of the civilian population and Kaddafi’s forces? For the time they were simply enforcing the no-fly zone imposed on Libya through Resolution 1973 that was more of a policing duty on behalf of the international community (paras. 6-12). That would be the case also for countries involved in enforcing the arms embargo under the same resolution (paras. 13-16). But since the air attacks on the military targets have been numerous, carried out over several days, targeting a considerable number of military objectives (as opposed to a few strikes) obviously international humanitarian law applies between Libya and the countries who have taken military action against Libya in enforcing Security Council Resolution 1973. Kaddafi has claimed that he is at war with these countries. That is one of the few declarations of war made in the recent past. In the case of the enforcement of the no-fly zone, the law of armed conflict on air operations is applicable. The other question which seems to be largely deflected or on which there seem to be differing positions is whether the intervening countries (and now NATO, since the latter has taken over operational command from the US) are there to provide air cover for advancing opposition troops as they take on Kaddafi’s forces, or their mission is purely designed to protect civilians?

 

Notably, the Security Council has made use of the responsibility to protect principle in its two resolutions on Libya. First the Security Council recalled the duty of Libya’s authorities to protect their own population and subsequently it authorized the UN member States to take all necessary measures to protect civilians and civilian populated areas under threat of attack. This is a clear case of the application for the first time of paragraph 139 of the 2005 World Summit Outcome Document which states in its relevant part that ‘we [international community of States] are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter,  including Chapter VII, on a case-by-case  basis and in cooperation with relevant  regional organizations as appropriate,  should peaceful means be inadequate and  national authorities are manifestly failing to protect their populations from  genocide, war crimes, ethnic cleansing and crimes against humanity.’

 

The question for many remains ‘what’s next’? A cease-fire and negotiations? Or a continuation of the armed conflict until the ousting of Kaddafi?

 

One Comment

  1. Mihai Martoiu Ticu Mihai Martoiu Ticu 29 March 2011

    ==Kaddafi has claimed that he is at war with these countries. That is one of the few declarations of war made in the recent past.==
    If Gaddafi attacks the foreign troops, would that be legal? Would it be legal if Gaddafi invades one of the participating states, for instance Italy? Would it be legal if he attacks certain military complexes in those states? For instance, what happens if he blows up the Pentagon building, or the French factory making military jets? And is targeting Gaddafi legal? If yes, would it also be legal if Gaddafi would target the participating governments? For instance, if the coalition forces bomb his tent, could he blow up the White House legally?

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