How Should the Conflict in Libya Be Categorized?
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.