What Are the Best Legal Arguments For and Against Military Intervention in Libya?

by Kenneth Anderson

Question to OJ readers.  Suppose that you were the chief legal advisor to the US DOS, or to the UK foreign minister, or to NATO, or some country or coalition in which there is active discussion about armed intervention on humanitarian grounds in Libya, for the express purpose of preventing attacks upon the civilian population.  What would you regard as the best legal arguments available today that would legally permit intervention as well as the arguments against, ie, arguments that would legally preclude it?  Under intervention here, let us include both a no-fly zone enforced militarily as well as any intervention on the ground that goes beyond simply rescue of one’s own nationals. 

Another way to frame this is to ask what the application, if any, of R2P might be – what is its status as a legal position today, and also whether there are other legal grounds apart from R2P as currently discussed on which to base intervention.

http://opiniojuris.org/2011/03/02/what-are-the-best-legal-arguments-for-and-against-military-intervention-in-libya/

17 Responses

  1. Argument Against: The UNSC is already seised of the matter. Further, recent UNSC action indicates that it is capable of acting (eg, no arbitrary use of the veto power, no political impasse).

  2. Response…
    Two items in today’s news: Sec. Gates stated that for the U.S. to create a no fly zone the U.S. would have to be attacked [i.e., this would trigger the right of the U.S. to use military force in self-defense under UN art. 51].  Next, two U.S. airmen were killed and others wounded today in an attack on a U.S. military bus in Germany [any Libyan involvement???].
    Another possibility: use of UN Charter art. 52 “regional action” [as opposed to “enforcement action” that must be authorized by the UN SC] while the SC is veto deadlocked regarding effective protections of persons from crimes against humanity. Relevant regional organizations could be the OAU or the Arba League [politics involved here??].  Why would NATO be the relevant regional organization, as some say?  Regional action in Kosovo was permissible under UN art. 52 — see 35 Cornell Int’l L.J. 533, 545-47 (2002).  How about collective self-defense at the request of a new regime in parts of Libya and/or self-determination assistance?  See id. at 547-48.

  3. Response…
    of course, I meant “Arab” League — can’t always type correctly

  4. Response…

    See resolution 688 (1991) and following no-fly zone over Iraq to protect Kurds and Southern Iraq against Saddam Hussein, because of ensuing humanitarian situation. Perhaps no firm legal basis, but considered legitimate with some legal backing.

  5. Response…
    Yes, that was an implied authorization for the no fly zone from the S.C. Res. authorizations to use force and relevant subsequent practice — which assumes that a S.C. res. authorizing the use of force will be forthcomng.  At times, UK, France, and US participated in the no fly zone process. But if the S.C. cannot agree to use of force, perhaps regional organizations can.

  6. Well, it looks like we normalized diplomatic relations with Libya several years ago, so we can’t use the excuse of a continuing state of hostilities…

    …what’s the prevent the United States from recognizing some rebel faction as the legitimate government, inking a mutual defense pact, and sending weapons or soldiers directly to the country pursuant of that?

  7. Interestingly, the ICC referral in Saturday’s Security Council resolution has a carve-out for nationals of ICC non-member states participating in operations in Libya, but only those operations “established or authorized by the Council.”  I may be reading tea leaves, but to me it suggests that the U.S. is not seriously contemplating any kind of unilateral intervention.

  8. It seems like the SC is on top of things, and as the above commentators mention an intervention seems unlikely.

    However, as food for though, imagine that the SC did not react to the situation. And that the insurgents in Libya requested the US to intervene, either by air strikes or through an invasion (there has been rumors floating around that the rebel council has requested the former). Consider also the fact that the insurgents are subjects of international law, capable of having rights and obligations under inter alia art. 3 of the Geneva Conventions.

    Couldn’t it then be possible to argue that, although the doctrine of humanitarian intervention probably has not aquired customary law status, the combination of that “doctrine” and the fact that the insurgents are subjects of international law with effective control over large areas of the territory together form a legal basis for intervention?

    I have not had time to developed this train of though any further, but I guess something along these lines would be arguable. Have anyone else though similar thoughts?

  9. Response…
    Pierre: that’s my point about collective self-defense and self-determination assistance, which would be coupled with recognition of the pro-democracy group as a belligerent (like the Confederate States of American during our Civil War, but this would mean that we were at war with the govt. of Libya when the fighting starts) or as the lawful govt. of Libya.  Then they would have to request our (and others) assistance, given the decision of the ICJ in Nicaragua v. U.S.  We recognized that the Endara govt. was the lawful govt. of Panama when Noriega lost the election and stayed on, and even attacked some U.S. military personnel.  We had consent from Pres. Endara as he went in with the 82nd airborne.  The U.S. claimed 5 reasons for use of force, one of which was self-defense because of the armed attack on a military person or two.
    Do we have an insurgency now in Libya? semblance of a govt. in the pro-democracy group, control of territory, population base, fielding military units in “hostilities”?  ICTY in Tadic would lower to threshold to that involving “protracted armed violence” by organized armed groups.  If so, common article 3 of the Geneva Conventions and the customary international law reflected therein, and certain others laws of war, pertain.  All of the customary laws of war would apply upon recognition of the “insurgents” as belligerents, or as the lawful government of Libya.  Bangladesh went through these stages, especially with support by the Indian Army and creation of the new state of Bangladesh.  See Paust & Blaustein, 11 Vand. J. Transnat’l L.1 (1978).
    Crimes against humanity can occur during times of relative peace.  War crimes may be a possibility as well for ICC prosecution, now that the matter has been referred to the ICC by the U.N. S.C.

  10. Arguing against, I would cite the ICJ in the Nicaragua case:

    “In any event, while the United Staes might form its own appraisal of the situation as to respect for human rights in Nicaragua [Lybia], the use of force could not be the appropriate method to monitor or ensure such respect”

  11. There are reports that US, UK, French, and Egyptian forces (special forces no doubt) are already in Libya helping the rebels.  See the Pakistani Observer for the first three and the Daily Mirror for the second.  I think this is tacit recognition with consent of the Libyan rebels which, if the presence is not too significant up to an SC authorization, might possibly be seen as proportional and necessary.

    Too significant would be too much.

    Best,
    Ben

  12. It simply indicates that since the starting of international system there is no respect regarding sovereignty. While intervening Libya one should keep in mind the future of their own. Nonetheless, world wide consensus can be generated against any state but question arises who will decide the just, ICC? ICJ? Those who wait for signal from big 5?

  13. The best way to proceed is through the UN Security Council, whereby the Council can determine there is a threat to international peace and security and authorize enforcement measures under Chapter VII.  Humanitarian intervention as a legal justification for using force against the territorial integrity or political independence of another State is not generally recognized under customary international law (although it may be legitimate and supported by political opinion).  We’ve seen this situation before in Iraq (first Gulf War), Kosovo and others.  Libya is in contravention of numerous international legal obligations and the situation certainly threatens international peace and security as that term has been understood by the UN, which gives the Council plenty of ammunition to authorize whatever action it can agree upon.  Only in the event that a consensus on action in the Council has failed to have been reached should the US (or anyone else) seek to rely on the shakier ground of humanitarian intervention.

  14. The key question is whether the humanitarian exception to Art 2(4) exists or not. I think that it does, bolstered by the R2P language in the 2005 world summit, and therefore suggest that the humanitarian imperative to save people from their own government means that it is legal to use force against the Gaddafi regime. An extended argument on my blog: slightly-random-musings.blogspot.com/2011/02/am-i-my-brothers-keeper.html

    Cheers

    Toby

  15. Using the R2P framework, the best course of action for intervention would be by the Security Council’s adoption of an Article 42 follow-up resolution to its 26 February resolution under Article 41. Essentially, if the present sanctions, asset freezes and travel bans do not prove enough to stop Gaddafi (likely that they will not), a resolution taken under Article 42 can authorize land, sea and air forces that “may be necessary to maintain or restore international peace and security.”

    Of course the Security Council must interpret the activities in Libya as posing a threat to international peace and security, but given the context of R2P and the framework embraced by the UNGA to stop the atrocity crimes, this would not be a great stretch of imagination to say they would do so. Therefore, together, an Art 42 resolution framed within the R2P context/discussion provides ample justification for a multilateral intervention if Gaddafi keeps up his current activities. Gareth Evans (co-chair of ICISS report on R2P) offers clarification in a more general context here: http://www.gevans.org/speeches/speech244.html

  16. The only really good argument for military intervention of any kind, including the establishment of a no-fly-zone, would be U.N. Security Council authorization for collective security operations under Art. 42 of the Charter.

    Absent a U.N. Security Council resolution authorizing “all necessary means,” there are no good arguments. Even if the regime’s conduct escalates to that comprising wide scale crimes against humanity, humanitarian intervention as an exception to the general prohibition on the use of armed force against the political independence and territorial integrity of a state is not yet established. Some argue that it is an emerging norm of customary international law, but it is certainly not established yet, as the widespread response to the NATO strikes against Kosovo reflect. The development of R2P may assist in developing the principle, but it is simply not there yet. Of course, the worse the crimes against humanity or war crimes become, the more unlikely it would be that the Security Council could resist the pressure to authorize intervention.

    As for the suggestion that the U.S. or NATO could form some kind of alliance with the rebels and then rely on some notion of collective self-defense, that is entirely untenable. The customary international law with respect to intervention on the side of insurgents, or interfering with either side in the event that a true civil war with rights of belligerency recognized for both sides, is pretty clear (there is a legal distinction between insurgencies and civil wars in the jus ad bellum regime). The I.C.J. has repeatedly held, inNicaragua and in Congo v. Uganda most prominently, that intervention in support of insurgents constitutes an unlawful use of force against the state in which the insurgency is being mounted. In the event of a full-scale civil war, in which the belligerency of the rebel forces is recognized, then the laws of neutrality are triggered, and any interference is unlawful.

    It is worth noting, given that a couple of people above reference Panama, that the U.S. did not in its legal justifications for Panama assert that it was intervening on behalf of the Estrada forces (and his “request” for assistance was highly dubious in any event). The formal legal justification, as in Grenada, was the defense of American nationals – a reason that is not generally accepted in international law as a basis for the exercise of self-defense or otherwise using armed force against a state. Most international law works on the subject suggest that both the Grenada and Panama invasions were unlawful uses of force (see for example Christine Grey,International Law and the Use of Force).

    I posted a brief article for a broader lay audience on the issue a couple of days ago on The Huffington Post [trying to include a link here keeps snagging the site spam filters]. I would suggest that unless there is a humanitarian crisis of fairly extreme proportions (in which case U.N. authority is more likely in any event), intervention without U.N. authority would be quite counter-productive in addition to being unlawful.

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