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II. INTERNATIONAL MEASURES FOR THE PROTECTION OF CIVILIANS IN LIBYA AND CÔTE D'IVOIRE

Published online by Cambridge University Press:  11 August 2011

Christian Henderson
Christian Henderson
Affiliation:
Senior Lecturer in Law, Oxford Brookes University.
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Extract

The interpretation of United Nations Security Council (UNSC) resolutions adopted under Chapter VII of the UN Charter has been the elephant in the room, or more accurately the chamber of the Council, since the bitter divisions over the ‘revival argument’ and the invasion of Iraq in 2003.1 Although there has been some evidence of an increase in the specificity of UNSC resolutions in an effort to avoid the same difficulties reoccurring,2 the margin of appreciation provided to States in interpreting the mandates provided to them has recently come into focus again.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 60 , Issue 3 , July 2011 , pp. 767 - 778
Copyright
Copyright © 2011 British Institute of International and Comparative Law

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References

1 For more on this see M. Weller, Iraq and the Use of Force in International Law (OUP, Oxford, 2010), 132–188; C. Henderson, The Persistent Advocate and the Use of Force: The Impact of the United States upon the Jus ad Bellum in the Post-Cold War Era (Ashgate, Farnham, 2010) 63–95.

2 In connection with North Korea, the UNSC specifically stated to be acting under art 41 of the UN Charter in UNSCR 1718 (2006), preamble, whilst in connection with Iran the UNSC specifically stated to be acting under art 40 of the UN Charter in UNSCR 1696 (2006), preamble.

3 UNSCR 1973 (2011), paras 6–2. France, the UK, Lebanon, the US, South Africa, Bosnia-Herzegovina, Colombia, Portugal, Nigeria and Gabon all voted in favour, while China, Russia, Brazil, India and Germany abstained.

4 ibid para 4. The resolution also reaffirmed and extended various measures adopted in UNSCR 1970 (2011), such as the arms embargo (paras 13–16) and the asset freezes (paras 19–21).

5 UNSCR 1975 (2011), para 6.

6 ibid paras 1–4.

7 ibid para 6. The authorisation recalled was that which was originally granted to the UN Operation in Côte d'Ivoire (UNOCI) and the French forces operating within the country in UNSCR 1528 (2004), paras 6 and 16 respectively.

8 The notion made its first appearance in The Report of the International Commission on Intervention and State Sovereignty: The Responsibility to Protect, December 2001, available at http:www.iciss.ca/report-en.asp, but was subsequently accepted by States in the 2005 UN World Summit Outcome document, UNGAR A/60/L.1, 15 September 2005.

9 Darfur is an example, if one were needed, of a failure to fully implement this notion.

10 See UNSCR 1973 (2011), preamble, and UNSCR 1975 (2011), preamble, respectively.

11 The UK Attorney-General, Dominic Grieve, advised the UK Cabinet that UN resolutions provided a ‘clear and unequivocal’ legal basis for deployment of UK forces and military assets. The full advice was not published on the basis that that was consistent with past practice. See P Wintour and O Bowcott, ‘Libya: The Legal Case for Deployment’, The Guardian (London England 21 March 2011) available at http://www.guardian.co.uk/world/2011/mar/21/libya-arab-and-middle-east-protests. On 21 March 2011 the UK's participation in the forcible measures in Libya under UNSCR was overwhelmingly supported by the UK Parliament which voted by 557 to 13 in favor. See http://www.parliament.uk/business/news/2011/march/debate-on-military-action-in-libya/.

12 This issue is particularly pertinent in light of the increasing intensity of the strikes in Libya. See BBC News, ‘Cameron and Obama “Turn Up Heat on Libya” ’, 25 May 2011, available at http://www.bbc.co.uk/news/uk-13548050. On the notions of necessity and proportionality in international law governing the use of force see, in general, J Gardam, Necessity, Proportionality and the Use of Force by States (CUP, Cambridge, 2004).

13 UNSCR 1970 (2011), para 9.

14 See, for example, UNSCR 1807 (2008), para. 1 concerning the situation in the Democratic Republic of Congo.

15 The embargo was subsequently reaffirmed, and in some respects strengthened, in UNSCR 1973 (2011), paras 13–16.

16 UNSCR 1973 (2011), para 4 (second emphasis added).

17 Indeed, an arms embargo was imposed on Iraq in UNSCR 661 (1990), para 3(c) but this did not impact upon the coalition states' ability to import weapons into the State for their own use under the authorisation to use ‘all necessary means’ to evict Iraq from Kuwait in UNSCR 678 (1990), para 2.

18 See Henderson (n 1) 42–51.

19 See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (1986) ICJ Rep 14.

20 The importance of discerning the views of the UNSC member States in interpreting resolutions of the UNSC was recently noted by the International Court of Justice in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), 22 July 2010, para 94, available at http://www.icj-cij.org/docket/files/141/15987.pdf. See also Henderson (n 1) 22–25.

21 See UN Doc S/PV.6498 (17 March 2011).

22 For example, US Secretary of State Clinton, in an unequivocal statement, asserted that ‘[i]t is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya’. See BBC News, ‘Libya: Obama Does Not Rule Out Arming Rebel Forces’, 30 March 2011, available at http://www.bbc.co.uk/news/world-africa-12902450. In this respect it is perhaps of some significance that the use of the word ‘notwithstanding’, or in other words ‘in spite of’, was an amendment of the US during the drafting of the resolution. See BBC News, ‘Libya: Coalition Divided on Arming Rebels’, 29 March 2011, available at http://www.bbc.co.uk/news/world-africa-12900706. The UK Prime Minister David Cameron took a similar position. See BBC News, ‘UK Takes Steps to Expel Five Libyan Diplomats’, 30 March 2011, available at http://www.bbc.co.uk/news/uk-12908241.

23 Russia's Foreign Minister Sergei Lavrov stated that the international coalition did not have the right to arm the anti-Gadaffi opposition and condemned the intervention by the coalition in what is essentially a civil war as not being sanctioned by the UNSC. See BBC News, ‘Libya: Council Divided on Arming Rebels’, 29 March 2011, available at http://www.bbc.co.uk/news/world-africa-12900706. The NATO Secretary-General, Anders Fogh Rasmussen, was also clear when he said ‘[w]e are not in Libya to arm people. We are in Libya to protect civilians against attacks’. See Sky News, ‘Confusion Reigns Over Arming Libyan Rebels’, 31 March 2011, http://news.sky.com/skynews/Home/World-News/Libya-Confusion-Reigns-Over-Whether-Libyan-Rebels-Should-Be-Given-Arms-By-Coalition/Article/201103415963069?f=rss.

24 For a discussion of this notion in connection with UNSCR 1441 (2002) and the ‘revival argument’ regarding the legality of the use of force against Iraq in 2003 see, generally, Byers, M, ‘Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’ (2004) 10 Global Governance 165Google Scholar.

25 There were reports from Benghazi suggesting that opposition forces were already beginning to receive arms shipments by the 18 April 2011. See BBC News, ‘Libya: A New Phase in the Conflict?’, 18 April 2011, available at http://www.bbc.co.uk/news/uk-13112559. At the third meeting of the international Contact Group on Libya in Abu Dhabi on 9 June 2011, Western and Arab governments pledged more than £800 million in support to the Libyan opposition group, the Transitional National Council. See X. Rice, I. Black, and I Traynor, ‘£800m Channelled to Libyan Rebels as Alliance Moves to Hasten Fall of Gaddafi’, The Guardian, 10 June 2011, 19. For more on the Contact Group see infra n. 55.

26 UNSCR 1973 (2011), para 4.

27 This was principally the UK, France and Italy. See BBC News, ‘MPs’ Concern Over Mission Creep Grow', 20 April 2011, available at http://www.bbc.co.uk/news/uk-politics-13142441 and BBC News, Libya: ‘France and Italy to Send Officers to Aid Rebels’, 20 April 2011, available at http://www.bbc.co.uk/news/world-africa-13143988. There were reports that CIA and British Special Forces had been in Libya long before this announcement. See BBC News, ‘Obama Authorises Covert Aid to Libyan Rebels- Reports’, 31 March 2011, available at http://www.bbc.co.uk/news/world-us-canada-12915401. The arms embargo in UNSCR 1970 (2011) also specifically precluded ‘technical assistance, training, financial or other assistance, related to military activities’. See UNSCR 1970 (2011), para 9.

28 UK Prime Minister David Cameron claimed that UNSCR 1973 (2011) permitted ‘assisting the rebels with non-lethal equipment’. See BBC News, ‘Cameron: Libya UN Resolution Makes Mission “Difficult” ’, 17 April 2011, available at http://www.bbc.co.uk/news/uk-politics-13107834. US officials told the Associated Press that the Obama administration had decided to give the rebels $25m in ‘non-lethal assistance’ after assessing their capabilities and intentions. See BBC News, ‘Libya: France and Italy to Send Officers to Aid Rebels’, 20 April 2011, available at http://www.bbc.co.uk/news/world-africa-13143988. Para 9 of UNSCR 1973 (2011), in setting out the arms embargo, and in making a distinction between offensive and defensive equipment, decided that the embargo was not to apply to ‘non-lethal military equipment intended solely for humanitarian or protective use’. UNSCR 1970 (2011), para 9(a).

29 See Section III.B below.

30 P Swami, ‘Libyan Rebel Commander Admits His Fighters Have al-Qaida Links’, The Telegraph, (London England 25 March 2011) available at http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8407047/Libyan-rebel-commander-admits-his-fighters-have-al-Qaeda-links.html.

31 D. Akande, ‘Does SC Resolution 1973 Permit Coalition Military Support for the Libyan Rebels’, EJIL Talk!, 31 March 2011, available at http://www.ejiltalk.org/does-sc-resolution-1973-permit-coalition-military-support-for-the-libyan-rebels/.

32 UNSCR 1975 (2011), paras 1–4.

33 Tzanakopoulos, A, ‘The UN/French Use of Force in Abidjan: Uncertainties Regarding the Scope of UN Authorizations’, EJIL Talk!, 9 April 2011Google Scholar, available at http://www.ejiltalk.org/the-un-use-of-force-in-abidjan/.

34 Whilst these are not traditional armed conflicts as they are specifically mandated by the UNSC as opposed to taking place between two or more States (and are thus framed and restricted by the particular aims of this organ of the UN), the rules of the jus in bello nonetheless apply to the conduct of NATO forces operating in Libya and UNOCI/French forces operating in Côte d'Ivoire. See UN Secretary-General's Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN Doc. ST/SGB/1999/13, 6 August 1999. See also C Greenwood, ‘Scope of Application of Humanitarian Law’, in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn, OUP, Oxford, 2008), 208, 51.

35 S Oeter, ‘Methods and Means of Combat’, in Fleck ibid 441, 175.

36 ibid 442, 177.

37 In connection with Libya see, for example, BBC News, ‘Libya: Missile Strike Destroys Gaddafi “Command Centre” ’, 21 March 2011, available at http://www.bbc.co.uk/news/world-africa-12801812; BBC News, ‘Libya Crisis: NATO Strike Hits Gaddafi Compound’, 25 April 2011, available at http://www.bbc.co.uk/news/world-africa-13184594. In connection with Côte d'Ivoire see, for example, ‘Situation critique à Abidjan, Laurent Gbagbo se terre toujours’, Le Monde, 7 April 2011, available at http://www.lemonde.fr/afrique/article/2011/04/07/abidjan-la-france-frappe-des-objectifs-militaires-a-la-residence-de-gbagbo_1504070_3212.html#xtor=AL-32280270.

38 BBC News, ‘NATO Strike “Kills Saif al-Arab Gaddafi”, Libya Says’, 1 May 2011, available at http://www.bbc.co.uk/news/world-africa-13251570.

39 Art 52(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

40 Arts 48 and 51(5)(b), Additional Protocol I, ibid.

41 BBC News, ‘Gbagbo Held After Assault on Residence’, 11 April 2011, available at http://www.bbc.co.uk/news/world-africa-13039825.

42 The UK Attorney-General's advice on the deployment of UK forces and military assets was silent on the issue as to whether Gaddafi could be directly targeted in order to protect civilians. See (n 11).

43 Ambiguity in the mandate on this point led to debate not just between the coalition members but also between individuals within the coalition States themselves. In the UK, for example, the Defence Secretary, Dr Liam Fox, and the Foreign Secretary, William Hague, were clear early on that this was something that was not to be ruled out, whilst the Prime Minister, David Cameron, and the Chief of Defence Staff, General Sir David Richards, stated that the targeting of Gaddafi was not permitted under the mandate. See BBC News, ‘Libya: Removing Gaddafi Not Allowed, says David Cameron’, 21 March 2011, available at http://www.bbc.co.uk/news/uk-politics-12802749.

44 Akande (n 31). Various other international lawyers, such as Philippe Sands, Malcolm Shaw, and Ryszard Piotrowicz, appear to share this view. See P Wintour and O Bowcott, Libya: The Legal Case for Deployment, The Guardian, 21 March 2011, available at http://www.guardian.co.uk/world/2011/mar/21/libya-arab-and-middle-east-protests.

45 Article 51, Additional Protocol I, (n 39). Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (CUP, Cambridge, 2010) 107.

46 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, (Geneva 2009), available at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf, 52. Indeed, the Interpretive Guidance is narrow in speaking not of participation in an armed conflict, but of participation in hostilities.

47 UNSCR 1970 (2011), Annex I (emphasis added).

48 A 50(1), Additional Protocol I, (n 39) and ICRC, Interpretive Guidance, (n 46) 20.

49 K Ipsen, ‘Combatants and Non-Combatants’, in Fleck (ed.), (n 34) 314, 99; Akende, D, ‘Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 ICLQ 180Google Scholar, 186.

50 As Phillippe Sands noted, ‘The authorisation of “all necessary measures” is broad and appears to allow the targeting of Gaddafi and others who act to put civilians “under threat of attack”, words that go beyond the need to establish a connection with actual attacks.’ P. Sands, ‘UN's Libya Resolution is Better Late Than Never’, The Guardian, (London England 18 March 2011) available at http://www.guardian.co.uk/law/2011/mar/18/libya-un-resolution-1973.

51 Whilst Article 2(7) of the UN Charter (1945) prohibits the intervention of the UN in the domestic affairs of States, this is not applicable to ‘enforcement measures’ adopted under Chapter VII of the Charter. Resolutions authorising the use of ‘all necessary means’ are normally adopted under Chapter VII thereby permitting the UNSC to intervene in such situations if it determines that there is a ‘threat to the peace, breach of the peace or act of aggression’ under Article 39.

52 See BBC News, ‘Gbagbo Held After Assault on Residence’, 11 April 2011, available at http://www.bbc.co.uk/news/world-africa-13039825. See also BBC News, ‘Did UN Forces Takes Sides in Ivory Coast?’, 7 April 2011, available at http://www.bbc.co.uk/news/world-africa-13004462.

53 The Russian Foreign Minister, Sergei Lavrov, did question, however, the legality of the air strikes by UNOCI and France. See BBC News, ‘Did UN Forces Takes Sides in Ivory Coast?, ibid.

54 B Obama, D Cameron, and N Sarkozy, ‘Libya's Pathway to Peace’, New York Times, (New York, New York 14 April 2011) available at http://www.nytimes.com/2011/04/15/opinion/15iht-edlibya15.html.

55 BBC News, ‘Libya: Gaddafi Must Step Down, Says “Contact Group” ’, 14 April 2011, available at http://www.bbc.co.uk/news/world-africa-13058694. The Contact Group on Libya was announced by UK Foreign Secretary William Hague after the London Conference on Libya on 29 March 2011 and includes European powers, the US, allies from the Middle East and a number of international organisations. The aims of the Contact Group are to provide leadership and overall political direction to the international effort in Libya in close coordination with the UN, AU, Arab League, OIC, and EU; provide a forum for coordinating the international response on Libya; and provide a focal point in the international community for contact with the Libyan parties. See http://www.fco.gov.uk/en/news/latest-news/?view=News&id=575592482.

56 See (n 54).

57 BBC News, ‘Gaddafi Says He Wont be Forced From His Country’, 30 April 2011, available at http://www.bbc.co.uk/news/world-africa-13246540. The African Union attempted to broker a ceasefire between Colonel Gaddafi and the opposition group, the Transitional National Council. Whilst this was accepted by Gaddafi it was rejected by the Transitional National Council as it did not provide plans for Gaddafi to step down. See BBC News, ‘Libya: Benghazi Rebels Reject African Union Truce Plan’, 11 April 2011, available at http://www.bbc.co.uk/news/world-africa-13249923. A subsequent effort to negotiate an ‘exit strategy’ for Gaddafi by South African President Jacob Zuma also failed. See Aljazeera, ‘Zuma to Offer Gaddafi “Exit Strategy” ’, 25 May 2011, available at http://english.aljazeera.net/news/africa/2011/05/20115259220999993.html.

58 See Weller (n 1) 200.

59 In a detailed ‘Options Paper’ for UK policy on Iraq, produced by the Overseas and Defence Secretariat of the Cabinet Office on 8 March 2002, it was clearly stated that ‘regime change has no basis in international law’. See Overseas and Defence Secretariat, Cabinet Office, 8 March 2002, Summary Page, para. 28, available at http://downingstreetmemo.com/.

60 See Section II above.

61 ‘Options Paper’ (n 59) para 11. See also Weller (n 1) 197.

62 See (n 30).

63 See, generally, Simma, B, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 EJIL1CrossRefGoogle Scholar; C Gray, ‘The Legality of NATO's Military Action in Kosovo: Is There a Right of Humanitarian Intervention’ in W Tieva and S Yee (eds), International Law in the Post-Cold War World (Routledge, London, 2000) 240.

64 BBC News, ‘Libya: UK and French No-Fly Zone Plan Gathers Pace’, 8 March 2011, available at http://www.bbc.co.uk/news/world-africa-12672640.