Aggression Against Libya: Examining the Past – Looking Towards the Future


By Alexander Mezyaev
Libya 360°

Part I

The threat of US aggression against Syria remains imminent. It is highly propitious to go back again to the legal assessment of NATO and the United Nations leadership actions at the time of operation against Libya.

The armed conflict in Libya and the following intervention of NATO in March-October 2011 against the Great Socialist People’s Libyan Arab Jamahiriya, the same way as the armed conflict in Syria, made move to the fore a string of important legal aspects related to the very essence of contemporary international law…

Among the issues to be touched upon are the legal substantiation for adoption of United Nations Security Council’s resolution N1973 and the following implications, the legal justification and consequences of referring Libya to the International Criminal Court and the  legal justification for rendering aid to the so-called “opposition” during the armed conflict. Let’s have a closer look at these matters.

1. Legal justification for adopting United Nations Security Council’s resolutions N1970 and N1973   

Normally it is the legal implications of United Nations Security Council resolutions that are analyzed. But it’s worth to have a look at the justification for the resolutions’ adoption. The cases when United Nations Security Council goes beyond its authority while taking important decisions are more frequent (for example, the resolutions on establishing international criminal tribunals on former Yugoslavia, Rwanda and  the special tribunal for Lebanon).The Council grossly exceeded its authority adopting the resolutions 1970 and 1973.

First.

Looking at the actual substantiation for taking the measures envisioned by the United Nations Security Council’s resolution 1970, it becomes clear that there was no actual justification for taking decisions on the basis of chapter VII of the United Nations Charter at the moment of adopting the document. On February 22 and 25, 2011 two United Nations Security Council’s sessions took place under a rather undistinguished name “Peace and Security in Africa.”

 At the first session UN Under SecretaryGeneral for Political Affairs Lynn Pascoe (USA) told the Council about “violence and indiscriminate use of force” (the meeting was open, the official report contained no concrete information on the issue. What Pescoe was talking about became known only a week after when US UN Secretary General Ban Ki-Moon made it public).  At the second session Libyan representative Shalgam said, “What is taking place in the Libyan Arab Jamahiriya is indeed very dangerous. On 15 February, a group of peaceful civilians protested, calling for the release of a lawyer named Tarbel who was representing the families of 2,000 prisoners who were killed in the Abu Salim prison in 1996. This group faced gunfire aimed at their heads and chests, as if the soldiers who opened fire did not know that human beings have heads, hearts and legs, or that there are other parts than can be shot at, that there are such things as tear gas bombs or roadblocks that can contain demonstrations”.He also said that at the moment the words Muammar Al-Qaddafi and his sons were telling Libyans, “Either I rule you or I kill you”. The final words of his report were, “Please, United Nations, save Libya. No to bloodshed. No to the killing of innocents. We want a swift, decisive and courageous resolution.”  At the very same session UN Secretary General Ban KI-Moon said there over a thousand people killed.  Unlike the previous cases, this time there was no whatsoever proof produced for the world community.  Moreover, there were attempts to use media for presenting the “proof”, something that gave rise to serious suspicions it was fake, or, in other words, an outright falsification.

On March 25 (just before the resolution 1970 was adopted) the Russian Ministry of Foreign Affairs reported that, according to estimates, the death toll resulting from the clashes between the opposition and forces loyal to the government was around 1 – 2 thousand.  It gives rise to the question: if that’s what the estimates showed, then how come the United Nations Security Council could take a resolute decision in favor of one side? The difference between a one thousand and two thousand is the same as in the case of zero and a thousand. The Ministry of Foreign Affairs’ statement formally allows for such difference. Then it becomes unclear who exactly died? Was it the “opposition” or those who were loyal to the government? If it were the citizens loyal to the government then why the Security Council did not protect them?

There are questions related to the sources of information, including the ones used by the Russian Ministry of Foreign Affairs.  For instance, it reported on February 22 that according to witnesses, public processions on the streets  were subject to air attacks  (please note, only some processions, not attacks by armed gangs going on a rampage). The question pops up why it mentioned some “witnesses” but  not the Russian embassy in Tripoli as a source? It’s natural to suggest that the embassy inevitably did provide such information. The supposition was confirmed by the fact that the Russian ambassador was soon removed from his post just before the vote on the United Nations Security Council resolution N1973 took place.

There are serious questions to the United Nations Fact-Finding Mission to Libya which was created upon the decision of United Nations Secretary General.   

The Mission never started to do its job because on the day of its estimated arrival in Tripoli NATO aviation started to bomb Libya. Then what was the Mission created for?  The circumstances under which the Mission was established give rise to serious allegations the purpose was to make believe there was any fact finding at all. The appointment of Canadian judge Phillip Kirsch as a member of the mission was a flagrant violation of the principle of impartiality, because he represented a NATO member-state. How could he be considered to be impartial at the time NATO was preparing and then launching the aggression against Libya?

Thus, it all leads to the conclusion that neither international community, nor the Russian Federation had any hard evidence justifying the measures to be taken according to the resolution N1970. At least no proof was produced. The adoption of resolutions N1970 and N1973 and transferring Libya to International Criminal Court against the background of established facts and outright unwillingness to conduct real fact finding activities (big companies were involved in producing mass video fakes) give ground to doubt the legality of resolutions and their content.  The very reluctance to establish facts has fundamental significance for tackling all other issues.

Second:

To what extent was it justified to qualify the situation in Libya using the term “armed conflict”?  The United Nations Security Council’s resolution N 1970 demanded that Libyan authorities “comply with their obligations under international humanitarian law”. It means the UN Security Council decided a priori that the Libyan situation at the time was an “armed conflict.” Was it legally justified? No, there was nothing produced for justification. The absence of real information gives ground to interpretation of all sorts. For instance, there was ground to conjecture that from legal point of view there was no “armed conflict” in Libya before the start of NATO aggression.

Before March 2011 there had been an armed insurgency – a pure criminal offense to be dealt with on the basis of internal, not international, law and it was to be stopped by national authorities without any interference from outside.

It must be admitted that Russia’s vote for the United Nations Security Council resolution N 1970 was a serious mistake. One of the reasons for saying so is the fact that it may have legal repercussions for the situation in the Russia’s North Caucasus. Besides, the stance undermines the right of sovereign states to conduct counter-terrorist operations according to their national laws by transferring the situations into the category of’ ”armed conflicts” – that is into the sphere of international law! There is the risk that the national law would be eroded; there will nowhere to apply it while tackling the vital issues of individual states.

Third.

Is there any legal justification for the United Nations Security Council’s decision to apply the norms not envisioned by UN Charter? The resolution N 1973 declared the establishment of so-called “no-fly” zone over Libya.  Is there any legal justification for that? The document says nothing about it. It’s clear why. The matter is the UN Charter contains no provisions related to the establishment of “no-fly zones” in the airspace of a UN member-state.

Not a single time (considering the cases of establishing ad hoc tribunals for former Yugoslavia, Rwanda and Lebanon) we have emphasized there was a catch in the United Nations Security Council resolutions “adopted to be implemented on the basis of chapter VII of UN  Charter”.

Coercive measures, especially of such scope and importance, cannot be implemented on the basis of a chapter of the UN Charter. They can be applied on the basis of a concrete article and a clause of an article. We cannot see it either in the cases of ad hoc tribunals or “deny access” areas. Why? Is it an exception or oversight?  We don’t think so. Simply the United Nations Security Council has nothing to refer to. No such articles exist. It’s the Council’s own invention. It has no relation to international law.

It means the measures envisioned strictly violate the principle of UN member-state self-sovereignty because airspace is the individual state’s sovereign territory.

Thus, the clause of the United Nations Security Council’s resolution N 1973 violates article 2 of UN Charter (the principle of member-state’s sovereignty; ban on using force against territorial integrity and political independence) as well as the norms of international air law on the use of air space. Paragraph 6 of the United Nations resolution N 1973 banned all flights in the Libyan air space.  Paragraph 7 allowed all the states the use of necessary means to enforce the ban.  That is the United Nations Security Council gave permission to hit Libyan aircraft in their own national air space. Paragraph 17 of the resolution looks no less ambiguous; it banned the UN members from giving Libyan aircraft permission to land on their territories.  It contradicted a range of international agreements related to the use of air space. A member state was obliged to refuse the landing of a Libyan aircraft even if it was in distress, no matter if it had enough fuel to fly back or not.

Actually the aircraft were to be destroyed.

Part II

The problematic feature of resolutions N1970 and N1973 was the total violation of Libyans civil rights. No matter that both resolutions were allegedly devoted to the protection of the civilian population, they were made the main target in the most diabolical way. Both documents recognized only rebels as “civilians.” At the same time it was evident that the population predominantly remained faithful to the government.

The very language used in the resolutions proves that the United Nations Security Council didn’t see this part of population as Libyan “people” at all. For instance, paragraph 2 of the resolution 1973 stated that it, “Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people.” The UN Security Council did not even recall the people’s right for security and protection from the armed insurgency. There was no one in the principal body of the United Nations responsible for maintaining peace and security (article 24 of UN Charter), who would stand up to defend the rights of the largest part of Libyan population!

If someone asked the question what the resolutions N 1970 and N 1973 did to protect the rights of the Libyan citizens, the answer would be – nothing! The documents made the government of Libya destitute of legal right to protect the majority of its own civilian population. That is the texts of resolutions were directly violating the rights of those they were allegedly destined to protect.

It is worth noting that from point of view of international law, the hazy wording of the resolution N 1973 contained no justification for rendering support to the so called insurgents. Arming rebels was not mentioned. The most problematic wording about taking “all measures” was related to the rights of civilians. [1]

2. Legal foundation for Libya’s referral to International Criminal Court by United Nations Security Council

At present two cases have been referred by United Nations Security Council to International Criminal Court: Sudan (2005, Darfur) and Libya. The both cases evoke great doubts related to the legitimacy of the acts. The United Nations Charter says nothing about the right of the United Nations Security Council to refer cases to International Criminal Court. It is mentioned in another legal act – the Statute of International Criminal Court. But this document does not apply to the states which are not parties to the Statute. In reality the situation looks even worse – it is absurd! Just look what we’ve got here: the states which are not parties to the international treaty (the Statute of International Criminal Court) have referred to the International Criminal Court the state which is also a non-party to it (Libya)! The flagrant violation of international law is here for all to see.

Besides, there is an issue of legal justifications of the activities of the Council itself: where are they are defined? What are the criteria? What is the real state of things in the case? What facts have been considered by the Council? Why have they not been made public? Or the BBC reports are considered to be as such?

Thus, the Security Council activities are not based on the UN Charter, but on the international treaty that some UNSC members are not parties to, as well as the very state which has been referred to the International Criminal Court. The United Nations Security Council has exceeded its authority. Only the resolutions adopted on the basis of the authority of the United Nations Security Council defined by UN Charter are subject to implementation. That is the resolutions in question must not be observed by United Nations member-states.

It applies to the obligation of “all” states to cooperate with the International Criminal Court on Libya. Especially the states which are non-parties to the International Criminal Court’s Statute. Or those which are parties but abide by their own stance on the non-party states.

It should be noted, that the International Court itself initiated pre-trial investigation under Judge Cuno Tarfusser (Italy). Libya has been Italy’s colony in the past. The homeland of the Judge was the main actor in the ranks of those who launched an intervention against Libya in 2011. In this case the ICC president breached the principle of impartiality. It was an ill-intentioned, brazen act of violation on his part.

3. Outside aid to rebels goes against international law

As the events unfold after the intervention, it has become convincingly clear that such terms as “opposition” and “rebels” are not applicable in the case of Libya. Still we’ll use these very terms because they are present in international legal acts in the strictest form. If rendering aid to rebels is proven to be illegal, then the illegality of assistance to other armed groups is proven too.

We should start with the basic acts that that establish the standards of international law for the humanitarian treatment of war.

First, it is the Geneva Conventions which comprise four treaties, and three additional protocols, including article I of additional protocol of 1977. The states are under obligation to comply with the Conventions under any circumstances, as well as make others do so. Thus, the United States and other NATO members, who render aid to rebels in different countries, must make comply with the acts mentions above not only the government of Libya or Syria, for instance, but other parties to the conflict as well. I emphasize – it is not a right, it is an obligation. It should be taken into account here, that this norm of Geneva Conventions is a reflection of common international humanitarian law; the corresponding international agreements do not apply to participation of a state or an actor in a conflict. [2]

The United States of America has already been found guilty of violating the norms of international law by offering assistance to rebels. The verdict was handed down by the United Nations International Court in 1986 in the notorious case of Nicaragua versus the United States. For instance, the instructions given by US advisers to Nicaraguan contras went against the international humanitarian law. [3]

In Libya the so-called rebels committed mass crimes and atrocities. These findings are confirmed by the UN Independent Commission of Inquiry on Libya.The Commission report states that rebels committed crimes and civilians were killed as a result of NATO bombings.[4] The assistance rendered to the rebels involved in such activities is to incur legal responsibility. [5]

Everything that we saw in Libya is being repeated in Syria. The report by the Independent International Commission of Inquiry on the Syrian Arab Republic adduces testimony to gross violations of international humanitarian law by the rebels, no matter the report tries to vindicate their actions [6]. It refers to documented instances of killings, lynch law trials and other gross violations of human rights committed by the militants of the so called Free Syrian Army. “The commission highlights the fact that FSA members, including local commanders that have command responsibility, may incur criminal responsibility under international law”.[7]

The use of chemical weapons by rebels proves the fact that they are guilty of mass atrocities punishable by international law. The United States and other states which provide assistance to them are to be held accountable for these activities in accordance with international law…


Notes:

[1] For instance: Olivier Corten and Vaios Koutroulisy. The Illegality of Military Support to Rebels in the Libyan War: Aspects of jus contra bellum and jus in bello // Journal of Conflict & Security Law. 2013. № . 1. Р.5-32.
[2] This provision was formulated by UN International Court in the case of Nicaragua versus the United States of America in 1986.
[3] Case Concerning Military And Paramilitary Activities In And Against Nicaragua (Nicaragua V. United States Of America).Merits. Judgment Of 27 June 1986 // UN International Court official website:: http://www.icj-cij.org/docket/files/70/6503.pdf.
[4] Report of the International Commission of Inquiry on Libya. UN document: A/HRC/19/68, March 8 2012 // Official UN website: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.pdf.
[5] Olivier Corten and Vaios Koutroulisy. The Illegality of Military Support to Rebels in the Libyan War: Aspects of jus contra bellum and jus in bello // Journal of Conflict & Security Law. 2013. № . 1. Р.19-28.
[6] For instance, according to the Commission, in late January 2012 in Karm Al Zeitun, FSA members and others lynched a man suspected of working with the State security forces and paraded his body on a pickup truck through the streets…In Homs, FSA members were found to have tortured and executed suspected Shabbiha members in retaliation for abuses committed by Shabbiha or plain clothed security officials posing as them. Some armed civilians in Homs, including armed civilians belonging to the FSA, sought to exact blood revenge for abuses by killing family members of security personnel or Shabbiha. The FSA leadership in Homs and also the local coordination committee denounced such collective reprisals and tried to contain them (italics by author). The very wording of the following piece of report highlights the degree of the inquiry commission’s “independence.” It goes as follows, “Credible reports indicated that members of FSA groups in other locations had tortured or summarily executed captured members of the armed forces or security forces. In mid-November 2011, members of the FSA near Talbiseh tortured a member of Military Intelligence during an interrogation. The captured man was beaten, whipped with a cable and threatened with a knife. In late November 2011, a FSA group from Rf Dimashq captured, tortured and killed a member of the security forces.” This piece proves that the goal pursued by commission was to display its impartiality by admitting the rebels did commit crimes, but at the same time, the criminal activities are vindicated by constantly stressing that the criminal activities are committed solely against the government security forces and army to take revenge for the acts of atrocity they had commutes before.
[7] The Report of the independent international commission of inquiry on the Syrian Arab Republic; UN Document:A/HRC/19/69 February 22, 2012 // UN official website: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/106/13/PDF/G1210613.pdf?OpenElement


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