“Legal controversies pertaining to the use of force of the UNSC mandate in Libya”

University of Amsterdam Public International Law July 20th 2012 By Alexander Lipen Blessed_vortex@yahoo.com Supervisor: Dr. Jean d’Aspermont

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“LEGAL CONTROVERSIES PERTAINING TO THE USE OF FORCE OF THE UNSC MANDATE IN LIBYA” ........... 1 INTRODUCTION........................................................................................................................................ 1 IUS AD BELLUM ........................................................................................................................................ 2 ISSUES PERTAINING TO THE USE OF THE MANDATE .......................................................................................... 4 ARMS SUPPLY TO THE REBELS. .................................................................................................................. 13 IUS IN BELLO .......................................................................................................................................... 18 CIVILIANS OR COMBATANTS? ..................................................................................................................... 18 BOMBING CIVIL TARGETS.......................................................................................................................... 23 QUESTION OF INTENTIONALLY TARGETING THE HEAD OF STATE (MUAMMAR GADDAFI) .......................................... 27 CONCLUSION: CRITICAL REMARKS ......................................................................................................... 32 REFERENCE LIST ..................................................................................................................................... 36

Introduction The tragedy of the African continent will remain inscribed in human history. For centuries Europe colonized enslaved and exploited the African resources. Even more dramatic are the blood-soaked battles for colonial independence in the 20th century. Perhaps this is the reason why the European use of force in Libya in the 21st century might leave some with an awkward feeling. Does the West truly have a right to intervene, after all that has been done previously? Or does Europe have a duty to intervene after all that has been done to show the “correct ways of liberal democracy”?2 On March 19th 2011, a number of NATO countries engaged in a military intervention against Libya as “Operation Odyssey Dawn”. Claims were made that the event was the most successful mission of the NATO alliance in history. 3 In accordance with the representatives, the intervention was a necessity to protect human rights, civil lives and democratic development of the country. In the same time, during the intervention, a number of leading scholars and countries criticized the controversy, pertaining to the legal issues of the use of force. These have risen during the execution of the UN SC mandate. As the war wages on, both on the ground and on the internet 4, legal scholars of opposite ideologies find themselves caught up in a battle of their own. The disagreement amongst scholars lies within the interpretation of the UNSC mandate’ permission towards the use of force versus the conformity with the meaning, set forth in the vague terminology. Specifically, did the actions by foreign states exceed the given mandate and do we have to control the respect of the limits of the mandate? Once again we may see, that the international law is not always clear: E.g. the practice on recognition, the principle of non-intervention in Civil wars, may provide diverging results
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Mansell W., Meteyard B., Thompson A., “A critical introduction to law” chapter 10, p. 152 “Legitimation, Sovereignty and Globalization”: “To readers of The End of History and the Last man, these notions will be familiar. The (sophisticated) argument here, with which we disagree, is that liberal democracy and market oriented economic order are progressively becoming the only viable option for modern societies. The disagreement arises over the content both of “liberal democracy” and the inevitability of market oriented economic order.”Cavendish Publishing LTD 1999 3 NY Times, NATO’s Success in Libya. October 30, 2011 4 Arquilla J., Ronfeldt D., “Cyberwar is Coming!: Comparative Strategy”, p. 141–165. Taylor & Francis Inc. 1993

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within practice and theory. It is crucial to acknowledge that the way we cope with the circumstances in Libya, is the way in which international law might reflect our future. The basic premise of independent international law with coherent inter-state equality is that law may not be misused for the interests of the more powerful5. Par in parem non habet imperium. With the case of Libya I tend to analyze whether this remains the case, or are some states “more equal then others”? In casu, we consider an internal conflict. A civil war waged between a part of the population and the governmental forces. Yet the international community found a need to intervene in this internal matter, whilst legally justifying the act.6

In My thesis I shall analyze the legal issues pertaining to the use of force of the UNSC mandate and the legal controversies resulting consequently.

Ius Ad Bellum As the classical theory on the use of force goes, there ought to be three basic, philosophical principles behind justification for war.7 1.A just cause 2. carried out by a proper authority 3. and the final objective must always be peace. However, as time passed, it became clear that the use of force could only be regulated via the sanctioning of an international judiciary body- the UN system. In order to prevent the excessive use of force, the international community created a general prohibition of the unilateral use of force, based in art. 2(4) UN charter. Which meant that states were allowed to use force only in self-defense or after direct permission by the UN SC. 8

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Malcolm Shaw, “International Law” Cambridge University Press 2003, p. 1161 UN SC Resolution 1973 (2011) 7 Mohammad Taghi Karoubi, “Just or Unjust war?: international law and the use of armed force by states at the turn of the 20th century” Ashgate Publishing LTD, 2004 p.50: Dating to the Roman Ius ad Bellum and the revival in the forming of the Western statehood. 8 Ibid, p. 150, “The un Charter’s position on the just war question is that it is permissible for states, regardless of their domestic power structures, to go to war, if and only if they are victims of the threat of use of force against their territorial integrity or political independence and only such time the UNSC acts to restrain the aggressor.”

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The 20th century ius ad bellum would strongly be dominated by the view that a resort to the use of force should severely be limited by the prohibition set forth in art 2(4). 9

More representative is the principle of non-intervention in civil wars, which had dominated the greater part of the 20th century.10 Agreed upon in numerous international and regional treaties11, it marked state sovereignty as a cornerstone for international relations. The consideration of the principle had been the argument that intervention within an internal conflict, with the assistance toward any party, may in fact be more within the interests of the foreign states then within the interests of a nation. Nonetheless, towards the end of the 20th century and the end of the cold war, as the ideological bipolarity dissolved, numerous new issues appeared, where the prohibition of the use of force underwent metamorphosis towards vagueness. Subjects as “Humanitarian intervention”12, “Pro democratic intervention”13 and “Self-determination” introduced new challenges to the international legal community. These subjects do not have solid ramifications within the doctrine of the international law. Subsequently, in the “prohibition on the use of force against the Federal Republic of Yugoslavia” a first attempt was made to envisage certainty towards the use of force via a judiciary body. Although the ICJ obliged all members of the UN to uphold the rules of the Charter, it deemed itself incompetent for the fact of lacking jurisdiction in the matter.14 Ultimately, at the turn of the 20th century, lacking Judiciary body and unified approach, different states appeared to have chosen private, diverging approaches to the interpretation of the limitations on the use of force. As state practice deviated, we may in fact speak of the reality that the prohibition on the use of force is being diluted by new

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Christine Gray “International Law and the Use of force” Oxford University Press 2004: chapter 7, p. 195251 “The UN and the use of force” 10 Maziar Jamnejad & Michael Wood, “The Principle of Non-intervention”, Leiden Journal of International Law, 22(2009), pp. 345-381 11 Exemplary are: Treaty of Wiesbaden 1975 on “Non-Intervention in civil wars”, Title 1 of the Treaty on European union, art. 4 of the constitutive Act of the African Union, and other. 12 Ibid 9, chapter 2, p. 29-58: “the prohibition of the use of force” 13 ibid 9, chapter 3, p. 59-94: “Invitation and intervention: Civil wars and the use of force” 14 Ernest K. Bankas, “The state Immunity controversy in International law” chapter 9.7.1., p. 274 “The legality of the use of force before the ICJ” Springer Berlin 2005

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limitations. 15 These new limitations, in exemplum “use of force out of necessity” are vague by themselves, creating even greater vagueness towards the understanding of the initial term. Diverging approaches may have created a consequent anarchy towards the understanding of the use of force amongst different scholars. It seems that some have even acclaimed that the removal of the prohibition of the use of force might lead to the most effective results towards peace and order.16 Yet, recent developments within international law, more specifically state practice in the period of the former 20 years, does show a trend and perhaps a new emerging norm.17 The international community has shown greater lenience towards permissive action, when liberal, democratic values and human rights are at stake. Often, insurgent groups and governments, which had shown support for liberal values, had been granted greater preference. As often, the intervening states are themselves based on liberal-democratic values; many have assumed that liberal-democracy might create the greatest niche for the development of human rights and democratic governance. 18 Such practical “spread of democracy”, may have caused a controversy with the Institute of International law, e.g. the norms of sovereignty, codified in the treaties of non-Intervention. The developments of the Libyan case may help us to analyze the recent issues and trends pertaining this controversy. Issues Pertaining To The Use Of The Mandate Following one month of civil unrests in Libya, the intervention began after the resolution 1973, was adopted on march 17, 2011 by the UN SC. What were the conditions set within the resolution, which would or would not provide a possibility for the use of force? The core elements were:19

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Jean d’Aspermont, “Mapping the concepts behind the contemporary liberalization of the use of force in international law”, University of Pennsylvania Journal of International Law, 31(4) 2010, p. 101-159 16 ibid. p. 55: “The impact of the demise of prohibition of the use of force would bring about a fundamental overhaul of the essence of the UN System” 17 Roderic Alley, “Internal Conflict and the International Community, Wars Without End?” ch. 2,6,7, Ashgate Publishing 2004 18 Anne-Marie Gardner, “Democratic Governance and Non-State Actors”, Palgrave Mc.Millan publishing 2011 19 UN SC Resolution 1973 (2011)

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1. (par 4) “…To take all necessary measures to protect civilians and civilian populated areas under threat of attack by the Libyan Jamahiriya, while excluding foreign occupation force of any form..” 2. (par 6) ban on all flights in the airspace of the Libyan Jamahiriya in order to help protect civilians. (No fly zone), (par 8) To take all necessary measures to enforce compliance with the ban on flights. 3. (par 13) “to ensure strict implementation of the arms embargo” par. 13-16 4. (Financial asset freeze) par. 19-21

By all accounts, the main written purpose of the resolution was to end violence towards peaceful civil population. The end to this purpose lied in the enforcement of a no fly zone, arms embargo, government-asset freeze and “all necessary means” to prevent civil casualties. 20 Exempli gratia, in accordance to some NGO’s, the targeting of civilians was being pursued indiscriminately. 21 At the time of an ongoing civil war, a “no fly zone” might reduce civil casualties due to large inaccuracy of air force bombings. Consequently, the main purpose of the mandate, as stated earlier, is to stop violence and facilitate dialogue between the warring parties towards a peaceful resolution of the crisis: “With the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution”22 What requires special attention is that apparently the mandate does not provide certain privileges to aid one of the parties within the Libyan civil war. Inasmuch as, the external states may at no time choose sides in the war in addition to the fact that no foreign military armies may participate in the hostilities, directly on the ground.

Abstract purpose versus the practical execution: Perhaps a considerable dispute
between the international scholars concerning resolution 1973 is whether the vague,

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Jennifer Welsh: “Civilian Protection in Libya: Putting Coercion and Controversy back into RToP” Journal Ethics and International Affairs, 2011, p. 1-8 21 UN News Centre, “Secretary-General calls on Security Council to consider immediate steps to stop killings in Libya”, U.N. Press Release February 25, 2011 22 Ibid 15

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abstract formulation had been consistent with the practical execution of the mandate.23 It is formulated in resolution 1973 that the purpose is: facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution. This purpose is to be achieved by the mechanisms, set in par 4-13. Namely: the arms embargo, the imposition of the no fly zone and the undertaking of all necessary means to protect the civil population. But to what extent may these terms be stretched towards the meaning that the drafting parties had in mind? It is of no question that all members of the SC wished for a quick end of violence in the region.24 It is further no question that all members aspired for a cease-fire and an internal dialogue between the hostile parties. The main debatable question is that the permanent members may have had different expectations towards the enforced means. Permanent members Russia and China having the right of Veto explicitly abstained from the use of Veto, giving green light to the mandate.25 However in case of Russia, an explicit demand had been that a military operation was to be avoided and time for cease-fire and political negotiation should’ve been be given. The main concern was that a military operation would cause even more casualties and therefore would be in contradiction with the purpose. China additionally argued that a military intervention might not lead to an expected result, taking examples from past military interventions (Iraq, Afghanistan etc). Simply said, there were no guarantees that a forceful intrusion would lead to peace. In accordance to China, the doctrine of a states sovereignty and territorial integrity ought to be respected, even in case of Libya. When the military operations, coordinated by NATO, seemingly turned into an overt mission to overthrow the Jamahiriya government and to aid the rebellion26, Russia and China expressed grave disagreement with the ongoing operation. It had been stated that the reason why they agreed to the resolution, was that the drafting states (France and UK)
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M-J. Domestici-Met, “Protecting Libya on behalf of the International Community” Gottingen Law journal 3 (2) 2011 24 Ben Barry, “Libya’s Lessons”, Journal Survival Global Politics and Strategy, International Institute for Strategic Studies, 53(5) October-November 2011 p. 5-14 25 Jennifer Welsh, “What a difference a year makes” Canadian International Council, Oxford Institute for Ethics, Law and Armed Conflict, February 14, 2012 26 Daalder I.H., Stavridis J.G., “Nato’s victory in Libya the right way to run an intervention”, Journal Foreign Affairs, 91 (2) March-April, 2012

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created expectations that the measures taken would not be aimed at choosing sides within the civil war. The purpose was to create a level playing field for all parties within the conflict and persuade all parties to seek settlement by peaceful means. The “coalition of the willing”, however, argued that the terminology used in resolution 1973 had been used in past precedent- Iraq and that international law was abundantly clear what expectations were to be foreseen, when terminology “all necessary means” and “No fly zone” were used.27 Consequently, by agreeing to the vague terminology, the drafting states ought to have foreseen an abundant practical execution, including affluent military incursion. Remembering previous state practice, we may recall the interventions in Kosovo, Bosnia, Iraq and Rwanda, noting that in cases of risk of human and humanitarian violations and in cases of danger of violence towards surrounding regions, interventions had occurred with support to pro-democratic forces.28 An example of the legalization of such practice, we may find in the Iraqi resolutions. Thereupon, It might be useful to remember, how the interpretation of the terminology “all necessary means” and “no fly zone” in Libya traces its origins to the Use of force against Iraq.29 Considering which argument the allied forces had used in the formulation of the previous resolutions, in example 1441, 687 and 670 to achieve permission, we may discover the conditions being a base for the used terminology. 30

Comparison with the Iraqi case. The policy on the Libyan intervention may find its
roots in the recent history of other interventions. 31 The most prominent one is the case of Iraq, where for the first time an employment of unilateral use of force had been executed against a state, whilst using the terminology of a “no fly zone” and “all necessary means” in order to achieve a certain result. Therefore, researching the origins of the formulation

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Crass C.D., “Memorandum opinion for the attorney general: Authority to use military force in Libya”, Opinions of the office of legal counsel, April 1, 2011 28 Roderic Alley, “Internal Conflict and the International Community, Wars Without End?” ch. 2,6,7, Ashgate Publishing 2004 29 Fischer D., Biggar N., “Was Iraq an unjust war? A debate on the Iraq war and reflections on Libya”, International Affairs Journal, 87 (3), May 2011, p. 687-707 30 US Congressional Research Service, CRS Issue brief of congress, Iraq: Weapons Threat, Compliance, Sanctions, and U.S. Policy, December 10, 2002 31 Ibid 23

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and the use of these legal tools may bring us closer to the understanding of the current situation. As some state, the interpretation of the Iraqi terminology might have opened a Pandora’s box within the international legal order. As it seems, recently all necessary means might have been viewed as short hand for authorization of the use of force towards a certain goal. The Libyan scenario might have been comparative.32 What caused the broad interpretation of the used terminology? The answer lies in the tricky trail of the “Desert Fox”33 towards “Iraqi Freedom”.34

Origins of 1441 vs the purpose of the mandate. In 2003 the US-UK-led coalition
forces invaded Iraq arguing that the conditions of the previous UN Security council resolutions 1441, 67835, 68736 (and other) were breached, thus permitting a forceful subjugation of a sovereign state. In accordance with the coalition’ statement, the breach consisted of grave human rights violations against Iraqi citizens, support of international terrorists and the continuation of the WMD programs, posing a possible threat to the peace and security of the international community. The debate on the legality of the Iraqi use of force is centered around the question- Were the coalition forces allowed to interpret the conditions set in the previous, 10 year old resolutions as affirmative for military invasion in 2003? As the US leadership officially stated that its foreign policy was to bring about the governmental change in Iraq, other permanent members of the SC, explicitly expressed that the resolution 144137 did not include permission to overthrow the Iraqi government. 38 Let us analyze the resolution’ formulation: Recalling its resolution 678… to use all necessary means to uphold and implement its resolution 660 … to restore international peace and security in the area.

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Ibid 23 Desert Fox and Iraqi Freedom being the operational names of the military interventions in Iraq. 34 Ibid 23, as described history of human rights violations and non compliance with international requirements 35 UN SC Resolution 678 (1990) 36 UN SC Resolution 687 (1991) 37 UN SC Resolution 1441 (2002) 38 BBC News: Middle East, France Threatens rival Iraq draft, October 26, 2002

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Further recalling resolution 687 … imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area,

Fundamentally, the abstract purpose of the resolution 1441 was to force Iraq to comply with the weapons embargo and its territorial integrity by upholding a no fly zone and all necessary means39 to endorse peace in the region. The purpose was peace, not an overthrow of government or the ability to target Iraqi army. The purpose of the primary resolution 687 towards which 1441 referred, was to cease the invasion of Kuwait (initially endorsed by the allied governments). 40 The controversy rising from this is that these resolutions were promptly taken in the early nineties. The conditions of which, were aimed at ending the gulf war. To what extent may those be used 13 years later, to begin a full-scale invasion and government overthrow?41 Thereupon the matter of debate might be the fact that the resolutions in the early nineties and resolution, drafted 10 years later, were aimed at different purposes. It is logical to assume that 687 and 678 allowed for greater military intervention, as Iraq was considered “aggressor” in an international conflict at the time 42. It is however less logical to refer to the means of achieving the purpose: the ending of aggression and at the same time follow a severely different objective- demilitarization and democratization.

A fundamental detail is that Iraq would receive a final opportunity to comply with its disarmament obligations under previous resolutions. The resolution did not have the term “all necessary means” within its formulation. However “remained seized on the matter” of the previous resolutions, reiterating, UN SC 678, endowing a passage “to use all necessary means” in case of material breach by Iraq. Thus an old term, permitting the use of force in case of Iraqi international aggression, had been used for the purpose of an intervention within Iraqi internal affairs.
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Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012, p. 368 40 UN SC Resolution 678 (1990 41 Christine Gray “International Law and the Use of force”, Oxford University Press, 2004,“Operation Iraqi Freedom”, p. 271 42 Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012

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The second Issue is aimed at the drafters’ purpose of the final resolution 1441. This may be considered of utter importance for the matter in casu. As the drafting of this resolution and the subsequent reactions of member states reflect the legal attitudes of a few months before the invasion. 43 As stated by an 8-week negotiation with SC member states Russia and France, in case of further material breach by Iraq, supplementary resolutions would be needed for military action. Russia and France explicitly denounced the possibility of military invasion, which could be based on resolution 1441. Additionally, Syrian representatives, who voted in favor of the resolution, were granted specific guarantee by the British diplomats that the resolution did not contain any automaticity for the use of force against Iraq. One might say that the drafters created an expectation of peaceful resolve.

This is perhaps the key element of the Iraqi case: Resolutions ought to be given clear, exact framework and conditions. Lack of clarity and uncertain conditions might lead to disorder and a lack of democratic legitimacy.

There exists a popular opinio iuris, that the war might have been illegal. For example, UN secretary General Kofi Annan proclaimed the war to be illegal because the conditions of the UN charter were not met. 44 As Mr. Annan declared earlier, the invasion was illegal due to the fact that it was not sanctioned explicitly by the UN SC 45. According to Mr. Annan, permission for invasion would require a new resolution. As it seems, the expectation of the international community, that is the implicit meaning

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Mohammad Taghi Karoubi, “Just or Unjust war?: international law and the use of armed force by states at the turn of the 20th century”, Ashgate Publishing LTD, 2004, par. 5.4 Unilateral use of force by the US and UK against Iraq, p. 198 44 BBC News, Middle East, Iraq war Illegal, Says Annan, September 16, 2004 45 The Guardian, World News, The Iraq war was illegal and breached UN charter, says Annan, September 16, 2004

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of the resolution, required additional steps by the international community in order to permit the use of force.46

As we may conclude, the legitimitative argumentation for the use of force in Libya had been found in the state practice of former resolutions. In the Iraqi resolution the practical execution, the use of force to overthrow a government diverted from the abstract purpose of the drafting states, which was disarmament and civil safety.

As analized above, both the formulation as the draft process of the resolution implicitly denied the possibility of active participation. The event has not been protested or renounced by the International Court of Justice. Therefore we may witness that the incident based upon certain terminology, created a precedent of legality47 until another case or judiciary body will deny such occasion. 48 Ergo sum, we may expect wide interpretation of the terminology of the mandate. It seems that the use of new terminology: the establishment of a “No fly zone” and use of “all necessary means” contributed greatly for the use of force in Libya. All necessary measures, is now an ambiguous legal term, which due to its precedent use, may allow automaticity towards the use of force against states. Controversially, the automaticity for the use of force had been implicitly was denied by the drafting states. This knowledge has now been long burrowed in the sands of time and memory.

Such attitude, as some scholars argue, does create an abstract, vague goal without any checks and balances of the execution.49 Some have claimed that the “coalition of the

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Mohammad Taghi Karoubi, “Just or Unjust war?: international law and the use of armed force by states at the turn of the 20th century”, Ashgate Publishing LTD, 2004, par. 5.4 Unilateral use of force by the US and UK against Iraq p.205 47 Roozbeh Rudy B. Baker, “Customary International Law in the 21st Century: Old Challenges and New Debates”, European Journal of International Law, 21 (1), 2010 p. 173-204 48 Analogous may be the example of the drug tolerance policy in the Netherlands- as soft drugs are prohibited by law, the usage is not being prosecuted, creating a legal loophole for the usage of the (prohibited) soft drugs. Henk Jan Van Vliet, “The uneasy decriminalization: The perspective on Dutch drug policy”, Hofstra Law Review, 18 (3) 1990, 717-750 49 Curtis Doebbler: “The use of force against Libya: another illegal use of force”, JURIST – Forum, March 20, 2011

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willing” has received a delegation of unlimited authority towards a vague, Illyrian Call for democracy.

According to a number of legal scholars, the mandate for the unilateral use of force may now be executed towards the so-called new “democratic intervention”. We may witness an occurring trend within the recent State practice. 50 Results of numerous intervention cases have shown that the international community prefers to provide some sort of support for groups or governments, that value liberal democracy. The international law and numerous ICJ rulings 51 explicitly disapprove of such action. Yet lately, the democratization of non-democratic states has not been brought up as a justification. Such “democratic intervention”, however, sparks controversy between law and practice. As there may be no clear evidence that liberal democracy is in fact the most progressive and peaceful system. If to analyze the situation in the region, the opposing rebels can hardly be seen as ideological warriors for liberal democracy. Most are followers of an Islamic fundamental ideology, often less democratic then the semi-secular Jamahiriya government.

This brings us to the second argument of the coalition of the willing: The intervention in Libya is of a humanitarian character, aimed at the protection of civilians.
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So far, the

general idea has been that humanitarian intervention is not permitted for intervening states as an independent new tool53. It may only serve as an argument in the permissive use of force, granted solemnly by the UN charter.54 This brings us back to our primary issue- which practical actions are allowed to the UN’ mandate executioner, in order to not overstretch the ambiguous terminology? An important factor would be proportionality- to protect civilians without over committing to

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Anne-Marie Gardner, “Democratic Governance and Non-State Actors”, Palgrave Mc.Millan publishing 2011 51 ex. Nicaragua case, ibid 64 52 Matilda Arvidsson, Dr Diana Amnéus and Prof. Gregor Noll, “Instant analysis of the situation in Libya”, Online lecture, University of Stokholm, March 30, 2011 53 Pablo Arrocha, “The Never Ending Dilemma: Is the Unilateral Use of Force by States Legal in the Context of Humanitarian Intervention?” Anuario Mexicano de Derecho International, 11(2011) pp. 11-44 54 Maziar Jamnejad & Michael Wood, “The Principle of Non-intervention”, Leiden Journal of International Law, 22(2009), pp. 345-381

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other internal affairs. It has been stated that a humanitarian intervention does not necessarily bring about the misuse of this tool in the interests of the intervening state. 55 An ambiguity as this may even serve as a deterring factor for non-democratic states. Yet, not much proof had been provided, except in legal theoretical cases, that a broad interpretation of the term would lead to beneficiary results. I might say that as long as such wide ambiguity exists, states ought to interpret it narrowly, instead of expansively, in order to protect the basic idea of current statehoodsovereignty. If we lose sovereignty, then we risk returning to the 19 th century imperialism where the size of the cannon dictated justice. Arms Supply To The Rebels56. A controversial legal issue pertaining the question of the mandate’s boundaries concerns the supply of arms and military instructors by NATO to the insurgents of the NTC. As the mandate is based on resolution 1973, which is meant to reaffirm and enforce resolution 1970; a full-scale arms embargo had been imposed on Libya (para 13-16). By all accounts, supplying the rebels with arms and admitting to it 57, the executioners of the mandate voluntarily violated the arms embargo and thus overstepped the boundaries set forth by the mandate.

Yet, was it so simple? As further remarks by the coalition diplomats were made, the interpretation of mandate 1973 gave permission for the supply of arms. This interpretation found ground in the argument that par 4 (1973) amended the arms embargo and provided possibility of arms supply in certain cases set forth in the paragraph.58 However this amendment was not made explicitly, even more an explicit provision imposing an arms embargo had been made previously (resolution 1970). The

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Ryan Goodman, “Humanitarian Intervention and Pretexts for War”, American Journal of International Law, vol. 100, (01)2006 56 The Guardian, World News, NATO Reviews Libya campaign after france admits arming rebels, June 29, 2011 BBC News, Africa: French arming of Libya's rebels strategic, June 29, 2011 57 Macleans.ca, news, France admits arming Libyan rebels, June 29, 2011 58 Dapo Akande, Does SC Resolution 1973 Permit Coalition Military Support for the Libyan Rebels?, Blog of the European Journal of International Law, March 31, 2011

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exception had been correlated from the vague terminology of the mandate. It appears questionable, whether the international community had such an exception in mind. 59 The controversy derives from the terminology in par. 4: “to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” Grammatical interpretation of “notwithstanding” could mean an exception, “in spite of” the overall rule. A certain “lex specialis” which might provide maneuverability to exception. The coalition forces have used an expansive approach60 to the interpretation of this paragraph. As it had been stated, the clause provided an exception to the arms embargo allowing arming the insurgents if this was needed to “protect civilians and civil populated areas”. Furthermore, this clause might have been purposefully adopted, to provide a backdoor to the arms embargo. By agreeing to it, states ought to have expected the consequent execution of the mandate. Such legal attitude, however allows for even greater contradictions. Prima facie, the letter of the text creates a full-scale embargo. During the draft the states did not explicitly discuss this subject, thus one may expect that it ought not to be meant as an “exception”. The attitude of the abstaining states with the power of veto, a priori shows that they have ruled out such possibilities in the past and could not have agreed to the interpretation, as done by the UK and US diplomats. As the Iraqi case has shown, unilateral interpretation of the mandate is not permissible, thus a restrictive, as opposed to expansive approach ought to be chosen. For these grounds, it may seem that by choosing expansive approach, the coalition forces might have violated the expectations of the international community and overstepped the mandate. In addition, arming insurgent armies for “self defense” might be considered very irrational from a practical point of view towards peace purpose. Weapons, one day used
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Sky News, World News, Confusion reigns over arming Libyan rebels, March 31, 2011 The US and UK allies used an expansive approach to the interpretation of the resolution, versus Russia and China, demanding a restrictive one. Fischer D., Biggar N., “Was Iraq an unjust war? A debate on the Iraq war and reflections on Libya”, International Affairs Journal, 87 (3), May 2011, p. 687-707

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for protection, may be used the next day for assault. An important issue to note is that without the supplied arms, the smaller insurgent army would’ve suffered defeat and would not be able to make military advances. 61 How does unilateral arming of minority groups conform with international democratic principles?

Purpose of an arms embargo. The primary consideration of an arms embargo is that it
is a “smart sanction”, targeting primarily the military and political elite, whilst having lesser humanitarian effect on the civil population. 62 Determinately one may notice that the arms embargo is a complete, territorial arms embargo, precluding any arms transfer to the territory of Libya. The common state practice of UNSCR arms embargos is that these count for all groups, otherwise specific groups ought to be named as was the example in SC Res 1807, para. 1 on Congo. By not having named any fractions specifically, the arms embargo ought to address all parties of the conflict. As we may see from state practice and from existing opinio iuris 63, arms embargoes are with the specific purpose of ending aggressive activities and forcing a dialogue, while dealing the least damage to civil population. The purpose of “dialogue” had as well explicitly been stated in resolution 1973. As happened in the past, arms embargoes have always been interpreted excessively, with the least possibility for any form of interpretation of exception. Such could have been the purpose for Libya; supply of arms and training personnel might escalate the situation into further civil war and destabilization of the region. 64 Increasing levels of military expertise and arms quantities could cause longer escalation and bloodier results of the conflict and possible “export of trained, armed force” to other countries in the region. In the light of such possibilities, it is difficult to understand how arming the rebels would be justifiable with the “use of all necessary means to protect civil population”.
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Ben Barry, “Libya’s Lessons”, Journal Survival: Global Politics and Strategy, International Institute for Strategic Studies, 53(5) October-November 2011 p. 5-14 62 Fruchart D., Holtom P., Wezeman S.T., “United Nations Arms Embargoes: Their Impact on Arms Flows and Target Behaviour” SIPRI, Uppssala Universitet, 2007 63 Hin Yan Liu, “Mercenaries in Libya: Ramifications of the Treatment of ‘Armed Mercenary Personnel’ under the Arms Embargo for Private Military Company Contractors”, Journal of Conflict Security Law, 16 (2) 2011, p. 293-319 64 Ibid p.317

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Consequences of arms embargo violation. Although the U.N. Arms embargoes are
binding on states, in practice not many consequences may occur towards the violating states, as there are yet no definite mechanisms to repair the violations. 65 The international community ought to research further possibilities of development of international law in the articles of State Responsibility. 66 Furthermore, secondary sanctions may be imposed on violating states.67 As was done with Liberia after it violated arms embargo to Sierra Leone.68

In both supplying arms as supporting the insurgent advance with skill, we may take a closer look at the argumentation in the Nicaragua case 69. Some pro-coalition jurists have stated that, based on the Nicaragua case, a state having permission for military action may arm rebel fractions as well. I consider this to be a pseudo-logical misinterpretation of the case. As the case made clear, supporting non-state groups with arms and other assistance is not permitted if a state does not have explicit permission from the UN mandate. This does not automatically mean that if a state has permission for vague military action, it may immediately arm/assist non-state groups. Such logical fallacy is a demonstration how a legitimate purpose can be twisted into opposite. In accordance with the Nicaragua case, material assistance of armed insurgency may be considered as “Support” of a violent overthrow of the regime of another state. 70

This brings us to the question of recognition. Some coalition forces recognized the NTC government as a representative of the Libyan people, whilst the previous, Jamahiriya
65 66

UNHCR report, Weapons and War Crimes: The complicity of arms suppliers, January 26, 2004, p.5 E.g.: The International Law Commission, in its Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001, concluded that: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” 67 Ibid 51 68 Liberia became subject of a travel embargo, timber embargo, diamond embargo and advanced arms embargo. 69 ICJ, Nicaragua v. United States of America, Judgement of 27 june 1986 70 Maziar Jamnejad & Michael Wood, “The Principle of Non-intervention”, Leiden Journal of International Law, 22(2009), pp. 345-381

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government as illegitimate. Consequently an argument had been precluded that support had been granted to a legitimate government.71 Such an argumentation however is controversial. The current rules of recognition are more or less based on support by the majority of international community. The recognition of the NTC had been based on the support of twelve states. This may hardly been accepted as a form of international recognition. Even more, if the recognized insurgents were granted belligerent rights, then the boundary of the UN SC mandate, the arms embargo, would apply to them as well. In the commentaries to the State Responsibility articles, we may read that a state commits an internationally wrongful act, if it supplies arms to a state or insurgent group. We may note that it may be hard to find international judiciary justification in the possibility of arming fractions of an (internal conflict) rebellion.

Thus a legal controversy has risen, now that the Allied Forces might have violated the arms embargo.

The explicit purpose was not to assist the insurgency but to promote peace within the region. Consequently there was no such purpose provided explicitly by the mandate. Whereas the US government was held to repair injuries for supporting rebel groups against a legitimate government of Nicaragua, we may consider the ruling of the ICJ exemplary for the spirit of international law: by supporting/arming opposition insurgents, a state may find itself: In breach of its obligations under customary international law not to use force against another State: "not to intervene in its affairs", "not to violate its sovereignty" … Once again, it seems that the mandates’ executioners exceeded the purpose by supplying arms, whilst acting against a prohibition.

71

Stefan Talmon, “Recognition of the Libyan National Transitional Council”, ASIL Insight, 15(2011)

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Ius In Bello

Besides the controversies regarding the Ius ad bellum, there are numerous controversies pertaining the acceptability of conduct, during the execution of the given mandate. The execution of the mandate has multiple debatable topics, distinguishing the edge between civilians and combatants, those who ought to be defended or targeted, assisting advancing rebel armies with air support, choosing sides in a civil war and finally targeting the head of a hostile state. Let us analyze the controversy.

Civilians or Combatants? An important issue in our research plays the interpretation of civilians vs (legal) combatants in international law. The international law forbids targeting civilians in an armed conflict; even more this has been one of basic justifications for the exceptional use of force in the mandate. Yet in a civil war, the boundaries between civilians and combatants are not always clear, as civilians take up to arms and military often fights for civil causes. In order to understand to which means the mandate stretches, we require having a clear distinction between civilians and combatants. This will allow us to answer a question: Has the mandate been executed in accordance with the legal framework, norms and customs of the International Law?

When does a civilian become an armed combatant, bound by the norms and privileges of international law? If an armed civilian is killed in battle, does this constitute an IHL violation?72 The law has not always been clear on the matter. As different states disagreed to precise definition in the past, due to their private political agendas, lately there have been some general agreements73 on the criteria of “combatant”, taking direct part in the hostilities. 74

72

ICRC, Interpretive Guidance of the notion of direct participation in hostilities under IHL, 31 December 2008 73 Ibid, page 50

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What does this teach us about Libya? When researching the scope of the mandate, where the main purpose is the protection of civilians, we ought to keep the distinction in mind between civilians and combatants. This way we will have a clear understanding whether humanitarian violations were made against civilians, and which individuals should or should have not have been assisted.

A civilian in a non-international armed conflict is a person, neither a member of armed forces of any party or any organized armed groups with a “continuous combat function”. A combatant, is the opposite, either a member of armed forces. Or a member of an organized armed group. An organized armed group is not part of any governmental forces and usually consists of armed (ex-civilians), the purpose is to take arms and directly participate in hostilities, having a “continuous combat function”. Participation in hostilities as a “combatant”, requires certain distinction as a group, organization and communication, possible effective control of a territory and hierarchy of command. Direct participation in hostilities is defined by 3 criteria 75: 1. the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). Lately we have witnessed the concept of “farmer by day, warrior by night”. There is no
74

Emily Crawford, “The treatment of Combatants and insurgents under the law of armed conflict”, Oxford Scholarship online, May 2010 75 Ibid 60, page 50

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definite agreement about which category such person is part of. Many anty-terrorist laws might even create greater vagueness. The common consensus so far is that the person becomes a combatant, during his hostile actions and resumes his position as a civilian, after having returned to his daily routine.

The argument that has been made is that combatant fractions often took stand in civilian populated areas, Benghazi being the largest. Therefore, the only way of protecting the civilians, was by targeting the governmental troops.76 A claim had even been made that if Gaddafi would not be stopped, a population of 500000 people of Benghazi would’ve been murdered. I find such claim inconsistent, as previous practice had shown, that Gaddafi forces did not commit genocide in other cities they had liberated- Zawiya, Misurata, Adjabiya where the total population is larger then that of Benghazi. The fractions of insurgent rebels in Libya fulfilled the status of “combatants” towards all named elements.77 They were armed, organized, trained by British, French, US and Quatari Special Forces. They participated actively with the direct goal of overthrowing the Jamahiriya government. Even more, they were recognized by numerous countries as the fighting force of an alternative government- the National Transitional Council. For this reason, the combatants themselves can hardly be seen as civilians in accordance with IHL. Ergo, the combatant groups, having lost their civil status, do not fall under the protection of the mandate. They do however, receive belligerent status and all rights, consequent to IHL. Even more so, the combatants themselves might have violated the laws of war by attacking civilians, disregarding immunity of protected persons, breaching dignity and committing ethnic cleansing. Supporting Rebels, notorious for murder, rape and ethnic cleansing78 79 may in some accounts call for moral and legal controversy. 80

76

Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012, p. 379 77 M-J. Domestici-Met, “Protecting Libya on behalf of the International Community” Gottingen Law journal 3 (2) 2011 p. 24 78 Veterans Today, Going Rogue: NATO’s War crimes in Libya, June 7, 2011 79 The New American, NATO Rebels accused of war crimes in Libya, August 19, 2011 80 ibid p.25

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Choosing sides in a civil war. During the operation, continuous cases of close air
support to the advancing rebel armies have occurred. In some cases, as the media reported81 advance would not have been possible without air support. The coalition forces thus actively took part in supporting of one fraction in a civil war. One may questionhow lawful is the support of advancing insurgents in such case? Once again we are to interpret 1973: assistance is only provided for the sole purpose of protection of civilians and civilian populated areas. If to consider par 4 as an explicit exemption to the overall arms embargo, we may follow the line of thought provided by the US/UK diplomats: To take all necessary measures to protect civil population. This would mean that close air support to the insurgency might be legitimate as an absolute necessity for the protection of civil lives. Consequently, any form of assistance might only be acceptable if it adheres to the purpose of the mandate. Any other goals, not implicated by the mandate ought not to be pursued. The principles of the IHL do not apply to the coalition forces in full, as the mandated is not part of the hostilities in a civil war. The coalition solemnly owns a supportive role with the objective of civil protection. By all accounts, assisting the advance of the insurgent troops can hardly be considered “protection of civil population”. The purpose in casu is the destruction of the defending Libyan government forces. By no means can this be seen as protective toward civilians. Some might argue that overthrowing the Jamahiriya government would constitute for definite protection of civilians, however in accordance with international practice, such argument is too far stretched.82 First of all, it must prove that no alternative solution is possible; Secondly civilians in the regions under the rule of Jamahiriya must be in grave, persistent danger. No such proof had been provided. Even more, civilians in the western part of Libya, supporting Gaddafi enjoyed safety and stability. Assisting the rebels to overthrow a government could result in a violation of the mandate. Possible, argumentation might be used that only by overthrowing the Gaddafi government; the civil population would be safe. However in order for such argument to
81 82

NY Times, Africa, Air strikes clear way for Libyan rebels’ first major advance, March 26, 2011 Dapo Akande, What does the UNSC resolution 1973 permit? Dapo Akande, Does SC Resolution 1973 Permit Coalition Military Support for the Libyan Rebels?, Blog of the European Journal of International Law, March 31, 2011

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hold ground, no other alternatives must exist to achieve the peaceful purpose of the mandate.83 This however is not the case, since a stalemate, division of the country, or creation of buffer zones are alternative solutions. An alternative approach might be to research the argumentation of “upholding the no fly zone by all necessary means”. The no fly zone stretches towards specific actions which might threaten airspace, including the bombing of anty aircraft positions (Iraq) but not upholding a “no drive zone” (destroying vehicle columns) or any other possibility of ground to ground warfare.

Choosing sides in an ongoing civil war may seem as a politicized, controversial decision. Neither the mandate, nor the Rule of Law explicitly permitted support to an insurgent army. Nor have the rules on diplomatic recognition been clear and uniform 84. This due to the fact that not enough research had been done, no ground finding missions by the UN were made in order to assess the scale of the situation. It was unknown, in what numbers the rebels were and what part of the total population they represented. The coalition somehow decided that aiding insurgency would prove more beneficiary in the long term, instead of aiding a legitimate government. To this day, it remains unclear how aiding different, divided fractions of the rebellion would prove more useful to the main goalachieving civil safety. Furthermore, actively supporting rebellion in their advance would logically mean an increase and active participation in the violence, instead of attempting to dampen it. Directly choosing sides with one of the parties in a civil war may contradict the implicit purpose of the mandate85 and create another controversial issue. A fortiori, providing close air support to advancing insurgent army might go beyond the tasks set forth by the mandate.

83

Christine Gray “International Law and the Use of force” Oxford University Press 2004, p. 135 “Necessity and Proportionality” 84 Stefan Talmon, “Recognition of the Libyan National Transitional Council”, ASIL Insight, 15(2011) 85 Hin Yan Liu, “Mercenaries in Libya: Ramifications of the Treatment of ‘Armed Mercenary Personnel’ under the Arms Embargo for Private Military Company Contractors”, Journal of Conflict Security Law, 16 (2) 2011, p. 293-319

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Bombing Civil Targets

Controversy of targeting civil objectives. Although we live in a time of precision
strikes, laser guided missiles and surgical operations, numerous important civil targets have been struck during the use of force against Libya. Even by ignoring the questions above, we may find new violations of international law. 86 It is understandable that a sniper may hide in a civil house, a military unit may find shelter in a civil area or an armed person may shield himself among a group of civilians: The question remains, to what extent, an air strike on a civil target is permitted? This may even more be the case, when the distinction between civilians and armed troops is blurry due to the fact of civil war. As it is clear that an operation, with the purpose of saving civil lives, is morally compromised when it takes away lives. Such moral dilemma shows why at later stages, the Arab League, changed its attitude towards the no-fly zone in Libya.87 In accordance to international humanitarian law, during military operations, a certain level of civil casualties is acceptable, if principles of distinction and proportionality are taken into account.88 The so called “collateral damage” may be justified if it would prevent a systematic attack on civilians or civilian populated areas, e.g. “Choosing the lesser of two evils”. In the case of Libya, especially during air support to the advancing rebels, there were no purposeful attacks on the civilians by the governmental forces, defending pro-Gaddafi areas. Thus one can hardly claim that civilians in the area were under direct threat of genocide. Based on his findings in the Iraq invasion, Louis Mareno-Ocampo set up the principles of collateral damage in humanitarian law 89:

86

Serena Sharma, “Is operation Odyssey Dawn” a “just intervention?”, assessing the relationship between cause and conduct”, Oxford Institute for Ethics, Law and Armed Conflict, March 25, 2011 87 The Guardian, Libya: Shifting Sands, 21 March 2011 88 Yoram Dinstein, “The Conduct of Hostilities under the Law of International Armed Conflict”, Cambridge University Press 2004 pp. 82-125 89 Louis Moreno Ocampo, ICC Findings of Iraq-Related communications, Principles of Collateral Damage in international law, Februari 9, 2006

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Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Article 8(2)(b)(iv) criminalizes: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions, but restricts the criminal prohibition to cases that are "clearly" excessive. The application of Article 8(2)(b)(iv) requires, inter alia, an assessment of: (a) the anticipated civilian damage or injury; (b) the anticipated military advantage; (c) and whether (a) was "clearly excessive" in relation to (b).

As we see, the principles of proportionality and necessity stand in a dialectic relationship towards the Use of Force in a conflict. Further analysis of possible excessive use of force might be required per case in order to decide if the execution exceeded the mandate. Let us analyze some of the most prominent civil targets: 1. Air strike on the water supply system. 90 91 Water in the desert is more valuable then gold. Therefore it is questionable how attacking a crucial water installation, supplying millions of civilians with water, may justify any military advantage. In the best case such an attack would represent a Pyrrhic Victory.
90 91

Associated Press, Rebels say Gadhafi must face trial as Tripoli hit, July 23, 2011 Newser.com, NATO bombs Libyan water pipe: Humanitarian disaster, July 23, 2011

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2. Bombing of universitites. 3.Bombing of Hospital, food storages92 and mosques.93 4. Destruction of other civil targets94: Television stations, schools, legal institutions, civil residences. 5.Use of controversial weaponry: Casset bombs 95 and phosphorous shells. 6. Destruction of the city of Sirte.96 97 In accordance with the IHL, the nature, purpose, use and location of the objective ought to be used for military means, during the strike. Although many humanitarian violations cannot be proven simply due to the lack of UN reporters on the ground and denial by the coalition, some results are evident. Numerous cities like Sirte and Bani walid have been largely or completely destroyed by the advancing forces. Justification of proportionality or distinction can hardly be seen in a city where every building had been targeted. As when it comes to “military advantage”, this neither can be explained as Sirte had fallen after the capital, Tripoli and the majority of Libya was declared “liberated”. Therefore one may consider the participation in the besieging and bombing of Sirte, as a possible violation of international (humanitarian) law. Not only the purpose of the mandate might have been violated, but human morale in general. 98 As the destruction of a whole city is hardly proportionate or distinctive 99.

What should be done in cases where the humanitarian purpose requires certain (partial) violations of the humanitarian laws? The simplest solution is to look at the purpose and the tool as a whole. Basically: Does the violation outweigh the benefits? In this case, and perhaps in the case of Libya as a whole, it is hard to say.

92 93

CNN, NATO Bombing Hospital and food storage buildings in Zliten, July 23, 2011 Telesur: OTAN bombardeó mezquita y otros edificios en Zliten, August 5, 2011 94 International Action Center, Videos of NATO bombing damage in Libya: NATO war crimes in Libya, http://www.iacenter.org/africa/libya-videos081611// August 16, 2011 95 Cluster/cassette bomb used in Libya: http://www.youtube.com/watch?v=tl7aYr6Mxmk 96 BBC News, Africa, Libya “bitter ironies” of Sirte destruction, March 6, 2012 97 wsws.org, Sirte destroyed by NTC-NATO offensive in Libya, October 18, 2011 98 Daniele Archibugi and Mariano Croce “Legality and legitimacy of exporting democracy” Legality and Legitimacy in World Politics, Oxford University Press, Oxford, 2011 99 Yoram Dinstein, “The Conduct of Hostilities under the Law of International Armed Conflict”, Cambridge University Press 2004

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We may find some answers in the ICISS report on the responsibility to protect. 100 The principles in contradiction, allowing a humanitarian intervention, are clear:

1. The operation must be aimed at a precisely defined political objective and a clear, unambiguous mandate with matching resources and rules of engagement. 2. the aim of the human protection operation is to enforce compliance with human rights and the rule of law as quickly and as comprehensively as possible, but it is not the defeat of a state; this must properly be reflected in the application of force, 3. the conduct of the operation must guarantee maximum protection of all elements of the civillian population. 4. Strict adherence to international humanitarian law must be ensured.

In the case of the mandate 1973, neither the political objective was defined, nor the mandate was unambiguous. The formulation, as we may recall, was aimed at “peace and protection of civilians” how and by which necessary means? Which conduct would, or would not be allowed? Much remained ambiguously. By all accounts, besieging cities for weeks, fighting soldiers loyal to a recognized government, might constitute a violation of the principle of military necessity. 101 Furthermore, when the coalition forces actively participated in removing a government, it is possible that they neglected to uphold the principle of protection to all civilians. Often supporting untrustworthy fractions or allowing hostile tribes to control unfriendly territories. 102 As it seems, the violations pile up and we can say clearly that adherence to international humanitarian law has not been ensured.

In war, sometimes humanitarian law may be violated, human factor and mistakes may
100 101

ICISS Report, The responsibility to protect, December 2001, p. 66-67 Tom Gjelten “Siege” in Anthony Dworkin, “Crimes of War: 2.0 What the public should know” WW. Norton & Co Inc. p 384-386. 102 A lasting impression of double standard, M-J. Domestici-Met, “Protecting Libya on behalf of the International Community” Gottingen Law journal 3 (2) 2011

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occur at any time. But in such situation, the violations occurred systematically and constantly. 103 Prevention and reaction are mutually exclusive terms where bombing civil targets excludes the possibility of preventing civil losses. Even more, the coalition forces had multiple possibilities to prevent further escalation, when they noticed the gravity of the situation. Such omission may envisage another controversy.

Question of Intentionally Targeting the Head Of State (Muammar Gaddafi) This brings us back to the question of how far the scope of the mandate stretches. Does the resolution permit targeting Colonel Gaddafi, his family or other members of the government?104 Does it permit targeting governmental buildings like the ministry of economics? Such questions, although crucial, are not new. During the Iraq and Yugoslavia invasions, targeting of the state’s leaders or governmental buildings, occurred multiple times105. Yet if Yugoslavia turned into an anarchic all versus all blood fest, and Iraqi operation was specifically aimed against the (at the time accused of terrorism) leadership, Libyan mandate did not have specific provisions against the Libyan Government.106 Even more, the coalition officials reaffirmed that colonel Gaddafi is not a legitimate target. Such an action “might potentionally violate the peremptory norms of international law.”107 Besides, Gaddafi is a head of state, protected by art 8 of the Rome statute against “assassination”. 108 Just as any other civilian. However, as it seems, Gaddafi was considered a direct target several times during the invasion: 1. On the first hours of “Odyssey dawn”, the military complex Bab Al-Aziza in the center

103

Jennifer Welsh: “Civilian Protection in Libya: Putting Coercion and Controversy back into RToP” Journal Ethics and International Affairs, 2011, 104 The Guardian, Is Gaddafi a legitimate target?, April 27, 2011 105 Alvin W. Keller Jr. “Targeting the Head of State During the Gulf War Conflict: A Legal Analysis”, Naval War College, May 18, 1992 106 BBC News, Africa, Libya: Removing Gaddafi is not allowed, says David Cameron, March 21, 2011 107 Philippe Sands, “Unilateralism” values and international law” European Journal of International Law, 11 (2), 2000, p. 291-302 The Guardian, Philippe Sands, UN’s resolution 1973 is better late then never, March 18, 2011 108 Huffington Post, Gaddafi dead: Family may file war crimes complaint, 26 october, 2011

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of Tripoli, known as the whereabouts of Gaddafi, had been bombed several times. 109 This compound, being a strategic center, would be targeted many times more, during the war. 2. On may 1st 2011, Gaddafi’s youngest son and 3 grandchildren were killed by an air strike on their private house. Gaddafi and his wife were in the house at the time, but survived the strike. 110 3. On 8th of June 2011, NATO forces bombed Gaddafi’s private retreat, his “tent” in a rural preserve outside Tripoli. 111 4. On 24th august 2011 a bounty of 1 million pounds had been placed on the head of Muammar Gaddafi “dead or alive”112, with SAS operatives aiding in the “hunt for Gaddafi”. 5. On October 20, 2011, Gaddafi convoy was targeted and bombed while retreating from Sirte113, as the column was fleeing and as numerous intelligence sources suggest that NATO operatives knew of Gaddafi being transported by the column 114. Furthermore, after being captured, the head of state faced brutal torture and execution, after having surrendered. In our case we are analyzing the attempts of assassination during the mandate, excluding the previous 7 assassination attempts before the war. After the beginning of the operation, NATO officials changed their view 115. Gaddafi did become a legitimate target in accordance with the officials.
116

As some prominent scholars of International law state117, Gaddafi may be considered a legitimate target118, due to the wide formulation of 1973. This is allowed if this is a “necessary measure” in order to protect civilians. As the mandate fails to clarify the extent to which force might be used to protect civilians, targeting government officials
109 110

BBC News, Africa, Gaddafi compound hit in NATO attack, 25 April, 2011 Bloomberg Businessweek, Quaddafi’s son, three grandchildren killed in NATO strikes, May 1, 2011 111 Los Angeles Times, Apparent NATO bombing of Kadafi rural retreat raises questions, June 8, 2011 112 The Telegraph, Libya: £1 million bounty for Col Gaddafi - dead or alive, August 24, 2011 113 The Telegraph, Gaddafi's final hours: Nato and the SAS helped rebels drive hunted leader into endgame in a desert drain, October 22, 2011 114 The Telegraph, Col Gaddafi killed: convoy bombed by drone flown by pilot in Las Vegas, October 20, 2011 115 The Cable, Foreign policy news. Top US Admiral admits, we are trying to kill Quaddafi, june 24, 2011 116 CNN, NATO official: Gadhafi a legitimate target, June 9, 2011 117 Philippe Sands, Malcolm Shaw, Ryszard Piotrowicz, as Quoted in “What does the UN SC Permit?” by Dapo Alkande, Eljitalk Legal Blog March 23, 2011 118 Kenneth Anderson, “Can the coalition lawfully target Gaddafi?” Legal Blog Opinio Iuris, March 23, 2011

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may be acceptable if the goal of civil protection is met. IHL does not de iure deny the targeting of heads of states or governmental buildings. 119 In accordance to Malcolw Shaw, military structures with senior officials could be targeted; if these actively participate in the coordination of warfare against civilians. As a side note, a clear distinction ought to be made, blowing up a finance ministry in Tripoli, would not be considered legitimate. As we recall the wide formulation of the mandate, “to take all necessary measures to protect civilians and civil populated areas under threat of attack.”, some scholars might argue that targeting Gaddafi, who might be coordinating military forces, would be considered legit towards “protection” of civilians. If it can be proven that by attacking Gaddafi, an attack (or multiple attacks) on civil targets can be stopped, then these attacks could be considered legit. 120 On several occasions, Gaddafi made public appearance, requesting his nation to “fight the invaders to the death”. This could be considered as an instigation towards violence. Thus, targeting Gaddafi in war may seem as an acceptable act. Yet, this IHL right applies only to the members of the conflict. It is hence questionable weather a peacekeeping mission, permitting protection of civilians, marks the participants as party in war. 121 In order to achieve legitimization, one ought to find a connection between the act and the goal of the mandate- protection of civilians. Such connection is not evident immediately. Killing Gaddafi does not guarantee cease of violence, even more, as precedent cases have shown (Iraq, Iran, Afghanistan, Yugoslavia etc..), the execution of a head of state usually leads to more violence and anarchy. Besides, killing Gaddafi, within the Libyan governmental system122, might not cripple the Libyan military command. Additionally, targeting a head of state in his children’s personal residence, may fail to constitute protection of civilians. Therefore, going after a head of state may not seem to fall within the goal “all necessary means to protect civilians”. Targeting private residence does not really constitute any
119

Yoram Dinstein, “The Conduct of Hostilities under the Law of International Armed Conflict”, Cambridge University Press 2004 p. 99 120 MAJ Matthew J. Machon, “Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror”, Report for the School of Advanced military Studies, May 25, 2006 121 Ibid 117 122 Reuters, Africa, Turkish PM urges Gaddafi to step down, end bloodshed, March 20, 2011

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possible “destruction of a command and control facility” 123 unless direct command would have been operated from there. An interesting act had been made by the British government on 27 februari 2011, “Derecognizing Gaddafi as a head of State”, an argument might be made that in such a situation Gaddafi would lose his diplomatic immunity. 124 The main problem with this attitude is that this is an internal, British Rule of Law, not reflecting the realistic acceptance of Gaddafi leadership by the International Rule. What seems to be the most controversial is the fact that many internationally respected scholars, advocates of justice and impartiality, somehow decided, “Gaddafi has to die by all necessary means”. 125 Possibly blinded by personal will towards democracy, more then towards justice. Often ignoring crucial evidence, whilst cherry-picking126 the desired one.127 Placing an advertisement “wanted dead or alive” without a fair court, means condemning a man to death, without any process. 128 Finally, after having surrendered, Gaddafi ought to have been given a POW status, with rights against torture and presentation to a fair trial. Instead, he received a controversial execution in the most brutally possible, humiliating way. 129 Such an approach may go against principles of democratic society and might constitute a war crime. 130 Historically it has been widely acceptable not to assassinate heads of states directly. This way, hostile leaders would have the possibility to come together and discuss terms for conflict resolution or reduction of violence with least suffering for their subordinates. A leader’s immunity and respectability has always been a necessary measure, not only to reiterate a state’s sovereignty, but to allow for peaceful and structured negotiations in a
123 124

Joshua E. Keating, “Is it legal to kill Quaddafi?” Foreign Policy blog, June 10, 2011 Stefan Talmon, “De-recognition of col. Gaddafi” International and Comparative Law Quarterly, 60 (3) July 2011, p. 759 - 767 125 Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012, p. 368” p.36 Excluding Regime change? 126 The Guardian, Amnesty finds widespread use of torture by Libyan militias, February 16, 2012 127 The Independent, Africa, Amnesty questions claim that Gaddafi ordered rape as weapon of war, June 24, 2011 128 Accordingly, human rights NGOs are already calling for an investigation into the circumstances of Gadhafi’s death. See, “Investigate Deaths of Gaddafi and Son”, Human Rights Watch, October 22, 2011 129 It is, however, a different question whether the killing of Gadhafi on October 20 was in accordance with international law. Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012, p. 368” p.37 Excluding Regime change? 130 Roozbeh Rudy B. Baker, “Customary International Law in the 21st Century: Old Challenges and New Debates”, European Journal of International Law, 21 (1), 2010 p. 173-204

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chaotic world. If leaders were to allow each other to target, assassinate each other at any time, for the fact of being hostile, diplomacy would not be possible. In such way it might not seem to be illegal for North Korea to execute the prime minister of Japan, for “assisting terrorist south”, or for the Serbian state to shoot down Obama’s airplane for “threatening the territorial integrity of Serbia in Kosovo”.

The lex scripta on the matter, is more accurate, in accordance with the: 1907 hague convention on the laws of war, it is forbidden outside of war: “To kill or wound treacherously individuals belonging to the hostile nation or army.” - US Executive Order 12333131 “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." Art 8 of the Rome statute132 and the fourth Geneva convention forbid: willful killing, torture, assassination, and inhumane treatment of individuals in a war, including heads of state. An exception is to be made towards a head of state, who is engaged in a war of aggression.133 That is a head who participates in an international war. It would be useless to shield such a head of state, if he willingly perpetuates aggression upon another state.

Thus we may conclude that the targeting heads of states implicitly, may spawn another controversy on the international arena. As the mandate explicitly takes economic and travel measures against Gaddafi, but does not allow for personal assassination. Even more an extradition to the ICC, alive is requested. All this may prove that the mandate’s purpose might not have been consistent with the execution, in this matter.

131 132

US Executive Order 12333, United States intelligence activities, chapter 3, 1981 Rome Statute of the International Criminal Court, 17 July 1998 part 2 133 Alvin W. Keller, Targeting the Head of State During Gulf War Conflict, paper for Faculty of Naval War College, May 18, 1992

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Conclusion: Critical Remarks

Following my analysis, an occasional reader might ask: what is to be done with possible violations of international law? If standards were breached or laws violated, could there be place for State responsibility or any forms of war crime tribunals? Unfortunately I cannot afford answering these questions. Each individual violation might require research, far overstretching the space of this thesis. In that sense, my research looks at primary rules applicable and not at the consequences of possible breaches of these primary rules. Yet the controversy remains within the fact that of the total amount of breaches being numerous and systematic. The reason that we need to realize the controversies is that we may find ways to improve our system. Without criticism of our mistakes, we may never start searching for reparation. Ignorance will cause the repetition of the same mistake over and over again.

Connecting the dots. Considering all the controversial factors we may draw a
conclusion of what ought to be done in future scenarios. 1. The use of ambiguous terms in any mandate’s terminology ought to be avoided. A ought to be described by exact, agreed upon terms with clear distinction of what is permitted and what is not. The term “all necessary means to protect civil population” provides for an interpretation, often beyond its original meaning. There is space to assume that some drafting states did not expect the mandate to be exercised in such a wide manner. As some have claimed later on, they expected a no fly zone and a ceasefire leading to dialogue. The assistance to insurgents and a government overthrow was unexpected. From now on it should be clear that abstract, vague formulations should not be used in mandates. If an exception to the non-permissibility of the use of force is granted, it

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should be defined exactly, to the slightest detail, where, when how and to what extent. Which groups are to be supported and how, which rules of engagement should be used.

2.A unified, standard approach towards principles of recognition and non-intervention ought to be agreed upon. In this matter, the intervening states will not be given the possibility to cherry-pick the desired standard. The absence of a clear, unified approach, is disorienting and lacks legitimacy. In Libya it was elusive whether some fractions were rebels or insurgents, civilians or belligerents. It was unclear which entity ruled Libya and which status both the Yamahiriya government as the insurgency possessed.

3. The execution of the mandate ought to be described into detail. It should be clear where the purpose of civil protection might be grounded and which fractions in the civil war should be assisted. It should be clear in advance which behavior might constitute violations of IHL, targeting the head of state, training missions and “special ops” troops on the ground. 4. An arms embargo should not be a subject of any form of “exceptions”. Neither grammatically, nor normatively. An arms embargo should be excessive and complete, without exceptions to different belligerent groups. This will reduce violence and chances of escalation of conflict to surrounding regions.

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5. The execution of the use of force ought to be undertaken by a centralized entity, under command and control of the UN. This will prevent individual states assisting desired minority fractions and will allow the most democratic solution.

6. Democratization of non-democratic states ought to be undertaken via peaceful means and resolutions. Progressive examples and trade agreements show greater results then missiles and bullets. Attempting to export democracy by forceful means is perhaps not a rational solution. Using international law for this purpose does not seem to provide better results. As the modern history has shown, none of the recent wars for democratization have given positive results. 134

7. Before engaging in the use of force, proof of human rights violations and intelligence sources ought to be researched by independent UN inspectors135. As numerous cases have shown, the western states are too trigger-happy, often invading without having allowed UN inspectors to do ground finding research. Later on we find out that the reports were forged, but then it is too late- the state is in anarchy and the civilians suffer more then ever.

8. A legal acceptance of non-democratic, non-liberal states should be given. Currently there is a possibility is that weaker states with “non liberal-democratic” government structure will seek for stronger ways of defending themselves against “imperialist invasions”. This may constitute to the increase of WMD and “nuclear terrorism” programs, being the only deterrent factors for self-determination.136

9. Clear diplomatic agreements ought to be made amongst the drafting states. Promises ought to be kept. The final result from the Libyan case is the loss of mutual trust between
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Daniele Archibugi and Mariano Croce “Legality and legitimacy of exporting democracy” Legality and Legitimacy in World Politics, Oxford University Press, Oxford, 2011 135 The Independent, Africa, Amnesty questions claim that Gaddafi ordered rape as weapon of war, June 24, 2011 136 Ben Barry, “Libya’s Lessons”, Journal Survival Global Politics and Strategy, International Institute for Strategic Studies, 53(5) October-November 2011

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states. In other cases, where prompt, necessary decisions might need to be taken, states will veto by default, fearing the alternative consequences instead of the original intent. This way, states will turn to private practices, either invading by their own need coalition, without UN permission, or by allowing grave violations, there where these truly happen. Such result would constitute against the basic purpose of the UN- to become a center of debate and peaceful conflict resolution. The world will be plunged into a new imperialist divide with a possible world war.

As the saying goes- all is fair in love and war. When war is waged, expect rules to be violated or at least bent. Therefore it is natural, that law may not always be clear on the matter of conflicts. Some scholars have proposed the introduction of the rules of non-democratic or humanitarian intervention137. Others have proposed removing the prohibition on the use of force at all or the removal of Veto within the UN SC. Libya is an important reflection to what may happen in the 21 st century, as the energy and resource supplies dwindle and international divide increases. 138 Therefore; unified approach to international law will provide clarity and hinder possibilities of misuse.

Gaddafi, being a controversial figure, did teach us a lesson of consistency; with all the proclaimed “stolen billions” with all the “hired mercenaries” he did not run. He stayed in his hometown and gave a hell of a final stand. Not many western democratic leaders would do this for their values. Consistency is what should be kept in mind. As the states claim “peaceful democratic values”, then such values ought to be fulfilled in a consistent matter. "Do you know right from wrong?" 139

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Ryan Goodman, “Humanitarian Intervention and Pretexts for War”, American Journal of International Law, vol. 100, (01)2006 138 The world is now embarking into the abyss of perpetual war and a period in which the contemplation of the use of nuclear weapons is being made. A stand must be made by individuals of good conscience and will. Mahdi Darius Nazemoraya, “War and the New World Order”, Global Research, August 29, 2007 139 Muammar Gaddafi’s final words.

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The Independent, Africa, Amnesty questions claim that Gaddafi ordered rape as weapon of war, June 24, 2011 The Guardian, Amnesty finds widespread use of torture by Libyan militias, February 16, 2012 The Guardian, Is Gaddafi a legitimate target?, April 27, 2011 The Guardian, Libya: Shifting Sands, 21 March 2011 The Guardian, Philippe Sands, UN’s resolution 1973 is better late then never, March 18, 2011 The Guardian, World News, NATO Reviews Libya campaign after france admits arming rebels, June 29, 2011 The Guardian, World News, The Iraq war was illegal and breached UN charter, says Annan, September 16, 2004 The New American, NATO Rebels accused of war crimes in Libya, August 19, 2011 The Telegraph, Col Gaddafi killed: convoy bombed by drone flown by pilot in Las Vegas, October 20, 2011 The Telegraph, Libya: £1 million bounty for Col Gaddafi - dead or alive, August 24, 2011 The Telegraph, Gaddafi's final hours: Nato and the SAS helped rebels drive hunted leader into endgame in a desert drain, October 22, 2011 UN News Centre, “Secretary-General calls on Security Council to consider immediate steps to stop killings in Libya”, U.N. Press Release February 25, 2011 Veterans Today, Going Rogue: NATO’s War crimes in Libya, June 7, 2011 wsws.org, Sirte destroyed by NTC-NATO offensive in Libya, October 18, 2011

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UN SC Resolution 687 (1991) UN SC Resolution 1441 (2002) UN SC Resolution 1973 (2011) US Executive Order 12333, United States intelligence activities, chapter 3, 1981

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