Did NATO Violate International Law in Libya? Will the ICC Investigate?

by Julian Ku

The legality of NATO’s action in Libya seems to me fairly straightforward. I understand that there are some quibbles about whether NATO exceeded its mandate under the UN Security Council Resolutions.  But I don’t think there is a very strong case, as a question of jus ad bellum. Then again, the hard left (in the form of Dennis Kucinich) and, more seriously, various African notables plainly disagree.

A COALITION of 200 prominent African scholars, professionals and politicians — including Thabo Mbeki and former government ministers Ronnie Kasrils and Alec Erwin — yesterday accused western nations and the International Criminal Court of “subverting international law” in Libya…..

“Increasingly, we have seen how the UN, especially the Security Council, has been misused to militarise policy, legalise military action and effect regime change,” said University of Johannesburg professor Chris Landsberg. He was speaking at a press briefing in Johannesburg to communicate the group’s open letter to the international community.

“It’s unprecedented for the UN Security Council to outsource military intervention to Nato.”

Prof Landsberg challenged the International Criminal Court to investigate Nato for “violating international law”.

I think the ICC probably does have some very small and thin basis for opening an investigation into NATA, but I don’t think it will. Nor should it.

http://opiniojuris.org/2011/08/25/did-nato-violate-international-law-in-libya-will-the-icc-investigate/

6 Responses

  1. Response…
    First issue: are there limits to S.C. authority [yes, under U.N. arts. 24(2), 25, etc.]
    Second, can S.C. delegate responsibility to NATO [why not?]
    Third, can regime change arguably fit within the authorization to protect civilians from attacks and threats of attacks [why not?  I recall a speech by Qaddafi's daughter to the effect that if you are not loyal and with us you are our enemy and deserve to die -- this amidst attacks on civilians that the ICC should investigate]
    Fourth, “legalize military action”? [why, yes, of course]

  2. I don’t think the ICC, even though specifically tasked to do so in s/res/1970, should break the law in order to enforce it. It could use the credibility which actually demonstrating integrity confers.

  3. I think the jus ad bellum is far too important to describe concerns with its compliance as ‘quibbles’. When the activity in question involves dropping high explosive on people, I think it is fair to ask whether NATO conducted its campaign in strict compliance with the UNSCR or not.

    The problem is that what is a very important point can get lost in confused argument. The UNSC often calls on alliances or coalitions of the willing. And ‘NATO’ would not be investigated by the ICC but rather individuals of NATO member States.

  4. I think this is a perfect situation for a Goldstone Commission report to be done. 

    If NATO is in violation so be it.  If rebels are in violation so be it.  If Gadhafi’s people are in violation so be it.  Need to gather the facts first.

    I saw yesterday pictures of persons with their hands tied who had been killed (rebels allege Gadhafi’s people did it, but the reporters said they were black Africans who resembled Gadhafi’s mercenaries).  A pretty obvious war crime by someone.

    I saw yesterday persons who said they had been tortured by Gadhafi’s forces. A pretty obvious war crime.

    As to Thabo Mbeki who I met many years ago, the whole North Africa/Sub-Saharan Africa thing is  being played out in this war in ways that us non-Africans (or as a Libero-American born of Americans in Liberia – you non-Africans  (I am trying a bit of humor)) may not understand all the implications.

    Best,
    Ben

  5. You will do well to read the views contained in http://www.thepeoplesvoice.org/TPV3/Voices.php/2011/08/26/nato-s-libya-war-a-nuremberg-level-crime-1 which states:

    Since then, America waged direct and proxy premeditated, aggressive wars worldwide, killing millions in East and Central Asia, North and other parts of Africa, the Middle East, and Europe, as well as Central and South America.
    Arguably they exceed the worst of Nazi and imperial Japanese crimes combined, including genocide, torture mass destruction of nonmilitary related sites, colonization, occupation, plunder and exploitation.
    Third Reich criminals were hanged for their crimes. America’s remained free to commit greater ones, notably today against Iraq, Afghanistan, Pakistan, Yemen, Somalia, Palestine, and the ongoing Libya atrocity – a scandalous “supreme international crime against peace,” demanding justice not forthcoming.
    In fact, US war criminals are considered hostis humani generis – enemies of mankind. War crimes are against the jus gentium – the law of nations. Established international law addressed them, including the UN Charter. It’s unequivocal explaining under what conditions violence and coercion (by one state against another) are justified.
    Article 2(3) and Article 33(1) require peaceful settlement of international disputes. Article 2(4) prohibits force or its threatened use. And Article 51 allows the “right of individual or collective self-defense if an armed attack occurs against a Member….until the Security Council has taken measures to maintain international peace and security.”
    In other words, justifiable self-defense is permissible. However, Charter Articles 2(3), 2(4), and 33 absolutely prohibit any unilateral threat or use of force not:
    – specifically allowed under Article 51;
    – authorized by the Security Council; or
    – permitted by the US Constitution only amendments ratified by three-fourths of the states can change.
    In addition, three General Assembly resolutions also prohibit non-consensual belligerent intervention, including:
    – the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty;
    – the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations; and
    – the 1974 Definition of Aggression.
    Moreover, various post-WW II Conventions, including the four Geneva ones and their Common Article 1 obligate all High Contracting Parties to “respect and ensure respect for the present Convention in all circumstances;” namely, to apply its principles universally, requiring High Contracting Parties “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.”
    At Nuremberg, the concepts of individual and command criminal responsibility were addressed, the Tribunal Principles holding that “(a)ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment….(c)rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit (them) can the provisions of international law be enforced.”
    The Rome Statute’s Article 25 of the International Criminal Court (ICC) codified this principle, affirming the culpability of persons committing crimes of war and against humanity.
    In addition, commanders and their superiors are specifically culpable if they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes, (and) failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecutions.”
    Moreover, Nuremberg established that immunity is null and void, including for heads of state, other top officials, and top commanders. Further, genocide, crimes of war and against humanity are so grave that statute of limitation provisions don’t apply.
    As a result, every living past and present US president, top and subordinate officials, and Pentagon commanders involved in war(s) should be prosecuted for their crimes before a special Nuremberg-type tribunal, holding them fully accountable.
    Genocide, other forms of mass murder, targeted and indiscriminate destruction, and other crimes of war and against humanity are too intolerable to go unpunished.
    Nonetheless, America and its conspiratorial allies commit them – today, horrifically against Libya, a small nonbelligerent country being terrorized, destroyed, and plundered lawlessly in the name of “liberation.”
    America is the lead offender, committing what its 1996 War Crimes Act calls “grave breaches,” defined as “willful killing, torture or inhuman treatment, including biological (or other illegal) experiments, willfully causing great suffering or serious injury to body or health.”
    As a result, Libya is an ongoing atrocity, a Nuremberg level crime, one of history’s greatest.
    Yet on August 22, Obama had the audacity to say America, its “allies and partners in the international community (are committed) to protect the people of Libya, and to support a peaceful transition to democracy.”
    In fact, unspeakable war crimes are being committed to “protect the people of Libya.” Included are civilians being terror bombed daily, to break their morale, cause panic, weaken their will to resist, and inflict mass casualties and punishment.
    However, Geneva and other international laws forbid the targeting of civilians. The Laws of War: Laws and Customs of War on Land (1907 Hague IV Convention) states:
    – Article 25: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”
    – Article 26: “The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.”
    Article 27: “In sieges and bombardments, all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.”
    The besieged should visibly indicate these buildings or places and notify an adversary beforehand. Given today’s intelligence and high-tech capabilities, belligerents can easily identify civilian and military targets.
    Fourth Geneva Convention protects civilians in time of war. It prohibits violence of any type against them and requires treatment for the sick and wounded.
    In September 1938, a League of Nations unanimous resolution prohibited the:
    “bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighborhood of the operations of land forces….In cases where (legitimate targets) are so situated, (aircraft) must abstain from bombardment” if this action indiscriminately affects civilians.
    Long ago Washington trashed international and constitutional laws, planning for Libya what’s ongoing in Iraq and Afghanistan – conquest, colonization, occupation, plunder and exploitation, excluding any form of democracy it reviles, including at home.

  6. This may be materially irrelevant a question, but topically it fits well with the discussion of legality/illegality of the political processes. The question is this: Since the National Transitional Council has been recognized as the legitimate government of Libya, does or does not this status imply the designated government is legally responsible for the disorder and atrocities around the country? There are numerous reports coming from the field pointing to crimes perpetrated by the “agents of new government” against civilians – such as murders, robberies, rapes, racist hate crimes (against blacks). Who gets the bill for all of those crimes? – now when Gaddafi is off the map of legal considerations.  Thank you.

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