The threat of US aggression against Syria remains imminent. It is highly propitious to go back again to the legal assessment of NATO and the United Nations leadership actions at the time of operation against Libya.
The armed conflict in Libya and the following intervention of NATO in March-October 2011 against the Great Socialist People's Libyan Arab Jamahiriya, the same way as the armed conflict in Syria, made move to the fore a string of important legal aspects related to the very essence of contemporary international law…
Among the issues to be touched upon are the legal substantiation for adoption of United Nations Security Council’s resolution N1973 and the following implications, the legal justification and consequences of referring Libya to the International Criminal Court and the legal justification for rendering aid to the so-called “opposition” during the armed conflict. Let’s have a closer look at these matters.
1. Legal justification for adopting United Nations Security Council’s resolutions N1970 and N1973
Normally it is the legal implications of United Nations Security Council resolutions that are analyzed. But it’s worth to have a look at the justification for the resolutions’ adoption. The cases when United Nations Security Council goes beyond its authority while taking important decisions are more frequent (for example, the resolutions on establishing international criminal tribunals on former Yugoslavia, Rwanda and the special tribunal for Lebanon).The Council grossly exceeded its authority adopting the resolutions 1970 and 1973.
First.Looking at the actual substantiation for taking the measures envisioned by the United Nations Security Council’s resolution 1970, it becomes clear that there was no actual justification for taking decisions on the basis of chapter VII of the United Nations Charter at the moment of adopting the document. On February 22 and 25, 2011 two United Nations Security Council’s sessions took place under a rather undistinguished name “Peace and Security in Africa.”
At the first session UN Under Secretary–General for Political Affairs Lynn Pascoe (USA) told the Council about “violence and indiscriminate use of force” (the meeting was open, the official report contained no concrete information on the issue. What Pescoe was talking about became known only a week after when US UN Secretary General Ban Ki-Moon made it public). At the second session Libyan representative Shalgam said, “What is taking place in the Libyan Arab Jamahiriya is indeed very dangerous. On 15 February, a group of peaceful civilians protested, calling for the release of a lawyer named Tarbel who was representing the families of 2,000 prisoners who were killed in the Abu Salim prison in 1996. This group faced gunfire aimed at their heads and chests, as if the soldiers who opened fire did not know that human beings have heads, hearts and legs, or that there are other parts than can be shot at, that there are such things as tear gas bombs or roadblocks that can contain demonstrations”. He also said that at the moment the words Muammar Al-Qaddafi and his sons were telling Libyans, “Either I rule you or I kill you”. The final words of his report were, “Please, United Nations, save Libya. No to bloodshed. No to the killing of innocents. We want a swift, decisive and courageous resolution.” At the very same session UN Secretary General Ban KI-Moon said there over a thousand people killed. Unlike the previous cases, this time there was no whatsoever proof produced for the world community. Moreover, there were attempts to use media for presenting the “proof”, something that gave rise to serious suspicions it was fake, or, in other words, an outright falsification.
On March 25 (just before the resolution 1970 was adopted) the Russian Ministry of Foreign Affairs reported that, according to estimates, the death toll resulting from the clashes between the opposition and forces loyal to the government was around 1 – 2 thousand. It gives rise to the question: if that’s what the estimates showed, then how come the United Nations Security Council could take a resolute decision in favor of one side? The difference between a one thousand and two thousand is the same as in the case of zero and a thousand. The Ministry of Foreign Affairs’ statement formally allows for such difference. Then it becomes unclear who exactly died? Was it the “opposition” or those who were loyal to the government? If it were the citizens loyal to the government then why the Security Council did not protect them?
There are questions related to the sources of information, including the ones used by the Russian Ministry of Foreign Affairs. For instance, it reported on February 22 that according to witnesses, public processions on the streets were subject to air attacks (please note, only some processions, not attacks by armed gangs going on a rampage). The question pops up why it mentioned some “witnesses” but not the Russian embassy in Tripoli as a source? It’s natural to suggest that the embassy inevitably did provide such information. The supposition was confirmed by the fact that the Russian ambassador was soon removed from his post just before the vote on the United Nations Security Council resolution N1973 took place.
There are serious questions to the United Nations Fact-Finding Mission to Libya which was created upon the decision of United Nations Secretary General. The Mission never started to do its job because on the day of its estimated arrival in Tripoli NATO aviation started to bomb Libya. Then what was the Mission created for? The circumstances under which the Mission was established give rise to serious allegations the purpose was to make believe there was any fact finding at all. The appointment of Canadian judge Phillip Kirsch as a member of the mission was a flagrant violation of the principle of impartiality, because he represented a NATO member-state. How could he be considered to be impartial at the time NATO was preparing and then launching the aggression against Libya?
Thus, it all leads to the conclusion that neither international community, nor the Russian Federation had any hard evidence justifying the measures to be taken according to the resolution N1970. At least no proof was produced. The adoption of resolutions N1970 and N1973 and transferring Libya to International Criminal Court against the background of established facts and outright unwillingness to conduct real fact finding activities (big companies were involved in producing mass video fakes) give ground to doubt the legality of resolutions and their content. The very reluctance to establish facts has fundamental significance for tackling all other issues.
Second,to what extent was it justified to qualify the situation in Libya using the term “armed conflict”? The United Nations Security Council’s resolution N 1970 demanded that Libyan authorities “comply with their obligations under international humanitarian law”. It means the UN Security Council decided a priori that the Libyan situation at the time was an “armed conflict.” Was it legally justified? No, there was nothing produced for justification. The absence of real information gives ground to interpretation of all sorts. For instance, there was ground to conjecture that from legal point of view there was no “armed conflict” in Libya before the start of NATO aggression. Before March 2011 there had been an armed insurgency – a pure criminal offence to be dealt with on the basis of internal, not international, law and it was to be stopped by national authorities without any interference from outside.
It must be admitted that Russia’s vote for the United Nations Security Council resolution N 1970 was a serious mistake. One of the reasons for saying so is the fact that it may have legal repercussions for the situation in the Russia’s North Caucasus. Besides, the stance undermines the right of sovereign states to conduct counter-terrorist operations according to their national laws by transferring the situations into the category of’ ”armed conflicts” – that is into the sphere of international law! There is the risk that the national law would be eroded; there will nowhere to apply it while tackling the vital issues of individual states.
Third. Is there any legal justification for the United Nations Security Council’s decision to apply the norms not envisioned by UN Charter? The resolution N 1973 declared the establishment of so-called “no-fly” zone over Libya. Is there any legal justification for that? The document says nothing about it. It’s clear why. The matter is the UN Charter contains no provisions related to the establishment of “no-fly zones” in the airspace of a UN member-state.
Not a single time (considering the cases of establishing ad hoc tribunals for former Yugoslavia, Ruanda and Lebanon) we have emphasized there was a catch in the United Nations Security Council resolutions “adopted to be implemented on the basis of chapter VII of UN Charter”.
Coercive measures, especially of such scope and importance, cannot be implemented on the basis of achapter of UN Charter. They can be applied on the basis of a concrete article and a clause of an article. We cannot see it neither in the cases of ad hoc tribunals nor “deny access” areas. Why? Is it an occasion? We don’t think so. Simply the United Nations Security Council has nothing to refer to. No such articles exist. It’s the Council’s own invention. It has no relation to international law. It means the measures envisioned strictly violate the principle of UN member-state self-sovereignty because airspace is the individual state’s sovereign territory. Thus, the clause of the United Nations Security Council’s resolution N 1973 violates article 2 of UN Charter (the principle of member-state’s sovereignty; ban on using force against territorial integrity and political independence) as well as the norms of international air law on the use of air space. Paragraph 6 of the United Nations resolution N 1973 banned all flights in the Libyan air space. Paragraph 7 allowed all the states the use of necessary means to enforce the ban. That is the United Nations Security Council gave permission to hit Libyan aircraft in their own national air space. Paragraph 17 of the resolution looks no less ambiguous; it banned the UN members from giving Libyan aircraft permission to land on their territories. It contradicted a range of international agreements related to the use of air space. A member state was obliged to refuse the landing of a Libyan aircraft even if it was in distress, no matter if it had enough fuel to fly back or not. Actually the aircraft were to be destroyed.