How Should the Conflict in Libya Be Categorized?

by Michael W. Lewis

The UN Security Council’s approval of the no-fly zone over Libya serves to answer the thorniest jus ad bellum questions, but there are also jus in bello questions that need to be answered. Most importantly, what kind of conflict is this?

Before the UN became involved, the conflict was clearly a conflict “not of an international character” (NIAC) between the Libyan government and rebel forces within Libya. That conflict was governed by common article 3 of the Geneva Conventions and Additional Protocol II. Did the UN’s entry into the conflict change this into an international armed conflict (IAC) subject to all of the provisions of the Geneva Conventions and Additional Protocol I (for ratifying nations which include Libya, France, Italy and the UK)? The language of common article 2 of the Geneva Conventions speaks of an armed conflict between “two or more of the High Contracting parties”. Who is employing force in Libya, the UN, NATO or the coalition nations individually? If the answer is the UN or NATO, neither of those groups are “High Contracting parties” to the Geneva Conventions. It should be recalled that Justice Stevens in Hamdan determined that the conflict between the US and al Qaeda was not an IAC because one of the parties to the conflict was not a party to the Geneva Conventions. The same reasoning might be applied here. It is only if the conflict is viewed as being between the allied nations of the US, the UK, France, Italy, etc. and Libya that this conflict would clearly be considered an IAC.

Does the fact that the United States has gone to great lengths to make it clear that NATO is in charge of the operation lend weight to viewing this conflict as NATO v. Libya? On the other hand, does the French recognition of the Libyan rebel forces as the legitimate government of Libya favor viewing the conflict as France (and its allies) v. Libya?

One reason why the characterization of the conflict matters is the concept of the combatants’ privilege. This privilege allows members of national armed forces to avoid criminal liability for the harm they do, as long as their actions comport with the laws of war. Without this privilege participants in an armed conflict could be subject to criminal liability for assault, murder, arson, etc. resulting from any use of a weapon. If this is an international armed conflict then the privilege applies to members of national armed forces (Libya, France, the US, etc.) involved in the conflict. If this conflict is a NIAC then combatant status, and the privilege that flows from it, is not clearly developed. AP II contains no mention of “combatants”. It assumes that the domestic law of the state in which the conflict is taking place will regulate the conduct of the conflict.

If this is a NIAC are the allied forces entitled to the combatants’ privilege? The common sense answer to this question must be yes, that US and French armed forces are not incurring potential criminal liability for conducting strikes that comport with the laws of war under the authorization of the UN. However it is less than clear what the source of that privilege might be. Is there a privilege associated with being part of a UN authorized force, even in a NIAC, and is the scope of that privilege the same as the combatants’ privilege found in IAC’s? Or is the need to find a combatants’ privilege for the UN authorized force another independent and compelling reason to classify the conflict as an IAC in the first place?

I don’t believe that IHL currently provides definitive answers to these questions, and the status of the rebel forces complicates matters even further. My own proposed solution, which will be the subject of another post, is that the conflict be treated as a NIAC but that the status of all parties to the conflict, not only the UN forces and the Libyan army, but that of the rebels as well, be more clearly and symmetrically articulated.

http://opiniojuris.org/2011/03/30/how-should-the-conflict-in-libya-be-categorized/

14 Responses

  1. 4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, 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, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council;

    IAC due to it being member states who acted pursuant to the authorization given and commence the armed conflict trigger.  Allies are co-belligerents.  Rebels went from NIAC to IAC with the addition of states.

    Best,
    Ben

  2. I agree with Ben.  Res. 1970 does not create a peacekeeping force, nor does it even obligate states to use force against Libya.  It simply authorizes the use of such force, leaving the decision to use force to states themselves.  I thus fail to see how a conflict involving Libya and numerous states fighting on behalf of a rebel group does not internationalize the NIAC that previously existed. The argument to the contrary seems to conflate the jus ad bellum and the jus in bello — the fact of Security Council authorization may legitimize the use of force against Libya, but it does not suspend the basic rules of IHL, which deem a conflict between two “High Contracting Parties” an IAC.

  3. “If this is a NIAC are the allied forces entitled to the combatants’ privilege? The common sense answer to this question must be yes, that US and French armed forces are not incurring potential criminal liability for conducting strikes that comport with the laws of war under the authorization of the UN.”

    I don’t think this is common sense at all.  If the conflict is, in fact, a NIAC, Libya is free to prosecute any U.S. or French soldier fighting on behalf of the rebels for murder; there is no combatant’s privilege in NIAC, no matter who is involved in the fighting.  Conversely, if a Libyan soldier falls into the hands of the rebels, he can be prosecuted by the U.S., France, or conceivably even by the rebels themselves for murder; the absence of combatant’s privilege is symmetric in NIAC.  Neither scenario, however, makes much sense — a strong indication that the conflict should be considered an IAC, not a NIAC.

  4. NIAC has never been fully symmetric regarding the combatant’s privilege.  The idea that a state’s armed forces lack any privilege in NIAC is relatively new.  From the time of Grotius, those engaged in NIAC on behalf of a sovereign were understood to wage war on public authority, and to be entitled to a combatant’s privilege or equivalent (although perhaps with its source in domestic law).  Of course, this is complicated by the fact that NIACs were traditionally understood to be internal and primarily regulated by domestic law.

    In my view, there is a definitive answer in IHL to the conflict status, and clear rules regarding the rebel force.  Given the existence of an IAC, the status of Libyan rebel forces is a GPW/Additional Protocol I question (the latter because Libya is a party to AP I).

    “If the conflict is, in fact, a NIAC, Libya is free to prosecute any U.S. or French soldier fighting on behalf of the rebels for murder; there is no combatant’s privilege in NIAC, no matter who is involved in the fighting.  Conversely, if a Libyan soldier falls into the hands of the rebels, he can be prosecuted by the U.S., France, or conceivably even by the rebels themselves for murder; the absence of combatant’s privilege is symmetric in NIAC.”

    The question of whether a combatant’s privilege or its equivalent can exist outside a state’s borders in NIAC is an interesting one indeed.  It is made even more interesting when, unlike Libya, the state on whose territory an attack occurs consents to the use of force.  I think Kevin’s brief thoughts here may be too simplified.  Are U.S. forces in Afghanistan entitled to an immunity in the potential NIAC with al Qaeda and/or the Taliban because the Afghan government consents to their presence?  Or, does immunity attach because of the existence of a NIAC to which the U.S. is a party?  I know what I think but am interested in the thoughts of others.

  5. I also meant to say that I believe an IAC exists for the reasons articulated by Ben and Kevin.  I don’t find Lewis’s musings germane to that fundamental question.


  6. I agree with John Dehn refuting the idea that IHL does not provide answers to the qualification of the current conflict in Libya, however, I come to a slightly different conclusion. IHL foresees that the qualification of an armed conflict can vary within the same country or situation, and this seems to be the case here, where we have both a NIAC and an IAC at the same time – governing different types of relationships.
    At the current moment (and with the limited information available), I would qualify the situation as follows. First, as the blog mentions, there is a NIAC between the government of Libya and the rebel forces. The relationship between the rebels and the Libyan government is therefore governed by Common Article 3, customary humanitarian law pertaining to NIAC as well as the domestic law of Libya, and potentially AP II if the rebels have some territorial control. The non-existing combatant privilege in NIAC implies that whether or not a certain individual can lawfully be attacked depends on whether he or she is directly participating in that conflict. This question cannot be answered in the abstract, but must be assessed case by case.
    Second, there is at the same time an international armed conflict in the relationship between the international forces and the government forces of Libya. This relationship is governed by the full Geneva Conventions, AP I (between Libya and the other ratifying nations), as well as customary humanitarian law pertaining to IAC. Here, the combatant privilege is available for both the Libyan soldiers and the soldiers of the French, the US, etc. 

    This dual qualification could of course change anytime and depends of an assessment of the facts on the ground, particularly the relationship between the international forces and the rebels. It is crucial to assess whether the international forces can be considered to act on behalf of the Libyan rebels. This would render the conflict international in its entirety, and the relationship between all parties to the conflict would be governed by the full Geneva Conventions, customary humanitarian law pertaining to IAC (and AP I between those states that have ratified it, including Libya). But as long as the rebels and the international forces conduct their activities as separate actors with no control over each other, there seem to be both a NIAC and an IAC going on in parallel.

  7. I absolutely concur with Evelyne on the potential for for separate conflicts with separate classifications.  Whether the rebels now fall under AP I certainly depends upon the relationship of their hostilities to those of states acting pursuant to the UN Security Council Resolution.  It is possible to view it as Evelyne does, and possible to view it differently given the facts on the ground.  And perhaps, because the UN authorization does not mention supporting the rebels directly, we should separate the conflicts as she suggests.  I think there is a strong argument there.

    “But as long as the rebels and the international forces conduct their activities as separate actors with no control over each other, there seem to be both a NIAC and an IAC going on in parallel.”

    I am not sure the issue is really “control” or whether it is coordination of effort in the conduct of hostilities against a common enemy.  I tend toward the latter.  Nevertheless, the issues surrounding conflict status are certainly clearer than the original post suggests.

  8. Kindly forgive any missteps in my initial post.  I have at least provoked discussion which was the goal and it has clarified for me the questions I was trying to ask.  1) Does the determination of whether a UN force can be involved in a NIAC rest solely on which side it joins?  If the UN was supporting Libya against the rebels would that remain purely a NIAC?  If so, would whatever “privilege” the UN and government forces enjoy depend upon the privilege that Libyan domestic law gave to its own forces or is there another possible source of privilege?  Or as Kevin suggests could the UN forces be subject to trial for murder if captured by the rebels?  2) If the UN joins the rebels does that elevate the entire conflict to an IAC as Evelyne (and I believe Ben) suggest?  If so, may the rebels obtain the combatants’ privilege if they meet the organizational and IHL enforcement requirements of AP I?  Lastly, Kevin suggests that the rebels might be able to try Libyan soldiers that they capture for murder, etc.  How could they do that in a way that satisfies the “regularly constituted courts” requirement of common article 3?  Would that depend upon the courts in rebel controlled territory remaining open, as opposed to trials conducted by new courts created by the rebels?

  9. Response…
    It is the fact that warfare is an international armed conflct that triggers application of all of the customary laws of war, regardless of any technical language in common article 2 of the GCs with respect to the reach of treaty law as such.  Importantly, all of the 1949 GCs reflect customary int’l law, so the technicalities re: common art. 2 triggers do not really matter.  Whenver a state aids an insurgent against a recog. govt., traditional view has been that the conflict is inernationalized.  Yes, this has clearly happened once U.S. missiles were fired into Libya to hit govt. targets.  Since one govt. has recognized the rebel National Council as the lawful govt. of Libya, there is another reason to support the conclusion that an int’l armed conflict is occurring. 
    Importantly, whenever U.S. military units engage in hostilites in another country (e.g., even on the side of a govt. against insurgents) we should recognize that this has internationalize the armed conflict, that it is, indeed, international.  Why?  So that U.S. milt. personnel (and those of any other state) have “combatant” status and “combatant immunity” for lawful acts of warfare as well as pow status — which would not pertain during an insurgency or armed conflict not of an international character.  I have been pushing for greater recog. of this point in some of my writings.  Time for DOD to get on board.

  10. The question caused discussions in the past and is still intellectually stimulating. Since the Article 1(4) of Additional Protocol 1 to the Geneva Conventions (http://www2.ohchr.org/english/law/protocol1.htm) included non-international conflicts within the scope of arm-struggles governed by IHL, and Article 1(1) of Additional Protocol 2 (http://www2.ohchr.org/english/law/protocol2.htm) also applies to internal conflicts, dichotomy between NIAC and IAC is far from strict as James G. Stewart described it in his “Towards a single definition of armed conflict in international humanitarian law: A critique of internationalized armed conflict” (http://www.icrc.org/eng/assets/files/other/irrc_850_stewart.pdf). But still there are some aspects of IHL to which the dichotomy is relevant, e.g. mentioned concept of combatants’ privilege and also concept of grave breaches which prescribes a responsibility to investigate those offences and to prosecute or extradite offenders as Lindsay Moir argues in “Grave Breaches and Internal Armed Conflicts”. But the discussion is more academic than practical one, because qualification of matters is posterior to gathering of factual data in order to apply the relevant rules of IHL which allows to qualify a conflict in accordance to NIAC or IAC.
    Depending on the existence of organized armed groups and their engagement in fighting of some intensity, IHL applies to only some internal disturbances and also not all inter-state fighting (see http://www.ila-hq.org/download.cfm/docid/0C19D883-3312-4731-92C4A18A55147597).
    It should also be pointed out why UN is not the party of Geneva Conventions: “United Nations does not wage war. Where enforcement action is required, it has consistently been entrusted to coalitions of willing States, with the authorization of the Security Council, acting under Chapter VII of the Charter.” (http://www.un.org/peace/reports/peace_operations/docs/a_55_305.pdf). And so that application of Chapter VII becomes more widespread to internal conflicts since the end of the Cold War (UN SC Res. 794 in the case of Somalia, UN SC Res. 940 in the case of Haiti) wishful thinking about non-applicability of IHL to the present case like to The Gulf of Sidra Incident of 1981 is or may prove to be a naive pacifism.

  11. Response…
    Yet, the U.N. forces are bound by relevant laws of war and human rights law.  See, e.g., http://ssrn.com/abstract=1710744
    And, of course, nationals of parties to relevant treaties remain bound no matter what hat they wear.

  12. In my view, the most expedient way of viewing things is to distinguish between the domestic actors and the international ones. Here, we have two governments claiming sovereignity over the same country. It is clear that for both governments, the domestic enemy is acting criminally, committing high treason and associated crimes. They are unlikely to extend combatant privilege to the domestic enemies.

    However, for international actors, combatant privilege is preferable. So, the international forces should extend the combatant privilege to any goverment fighters they capture. Then, such persons could be repatriated to their home country, but to the rebel forces, which may take any action the domestic Libyan law deems necessary.

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