YR3_Paper_Legality of the use of force in Lybia under International Law

Legality of the use of force in
Libya under International Law
Matthew Chijioke Oliobi
Mentor: Ms. Diane Turner
3 February 2012

09080708 Legality of the use of force in Libya Oliobi Matthew Chijioke
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I. Contents
II. ABSTRACT ..................................................................................................................... 4
III. INTRODUCTION ........................................................................................................... 4
IV. EVOLUTION OF THE GENERAL PROHIBITION ON THE USE OF FORCE... 7
A. Brief historical development of the ban on the use of force: ............................................. 7
B. The Formation and Purpose of the United Nations............................................................ 8
V. ANALYSIS RESOLUTION 1973: UNSC POWERS AND PROCEDURES........... 10
A. Violations of the primary purposes and principles of the United Nations:................... 13
B. Violations of Charter provisions on UNSC voting procedure:........................................ 14
VI. RELEVANT RULES OF INTERNATIONAL LAW ON THE USE OF FORCE:... 15
A. General prohibition of the threat or use of force: ............................................................ 15
B. The principle of non- intervention in the internal affairs of states:................................ 17
C. Humanitarian Intervention and Responsibility to Protect:............................................. 18
VII. CONCLUDING REMARKS........................................................................................ 23
VIII. BIBLIOGRAPHY ..................................................................................................... 26
A. Books ..................................................................................................................................... 26
B. Table of Articles & Journals ............................................................................................... 26

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C. Table of Cases....................................................................................................................... 27
D. Table of Treaties................................................................................................................... 27
E. Table of Websites................................................................................................................. 28

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Legality of the use of force in Libya
under international law
II. Abstract
The international legal order as guided by the Charter of the United Nations recognizes
that the Security Council can authorize the use of force if there is a threat to or a breach of
international peace and security or an act of aggression. Since the end of the Cold War, the
Council under the guise of humanitarian interventions has extended the definition of a threat
to or a breach of international peace and security to encompass not only international
conflicts but also internal conflicts for instance as in Yugoslavia, Somalia, Liberia, Rwanda
and now in Libya.
Humanitarian intervention refers to the threat or use of force by a State or States against
another State for the purposes of preventing or stopping the latter State from committing
extensive and grave violations of humanitarian law and human rights law. Its use in the
enforcement and maintenance of international peace and security has so far evoked
controversy within the international community.
III. Introduction

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Under international law, the use of military force or threat of use of force is only lawful
if and only to the extent that it comes under an accepted derogation to the general rule of
prohibition as stipulated in Article 2(4) of the Charter of the United Nations hereinafter
referred to as the UN Charter.1
The paper emphasizes the fact that International law outlaws
the threat or use of lethal force by one sovereign state against another, with two clear
exceptions namely; the United Nations Security Council may authorize states to use force,
and states have an inherent right to defend themselves against unlawful use of force and to aid
other victims of aggression seeking help in collective self-defense. I argue that such uses of
lethal force must however be in consonance with the principles and purpose of the United
Nations (the UN).
In order to maintain international peace and security, the obvious intentions of the
framers and founders of the United Nations Charter were to replace the pre- charter regime of
incessant recourse to warfare by states with a new regime that abhors the threat or use of force
in the settlement of international disputes between states. Hence, at the formation of the UN in
1945, one of the prominent provisions in the charter was the general prohibition on the threat
or use of force by states in the settlement of their disputes as embodied in Article 2(4) UN
charter. States were enjoined to settle their disputes by peaceful means and not resort to acts
force that may endanger international peace and security. The Charter system also established
the United Nations Security Council (UNSC) and mandated it with the primary function of
maintaining the international peace and security.2
Nonetheless, in the discharge of its
functions, the UNSC is required to ―act in accordance with the Purposes and Principles of the
United Nations‖3
and to ensure that measures aimed at pacific resolution of a conflict are
1 Charter of the United Nations; In force since October 24, 1945
2 Article 24 (1) Charter of the United Nations
3 Article 24 (2) Charter of the United Nation

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taken before resort is had to enforcement measure under article 42 of the UN Charter4
. This
requirement thus underlines that the objects and purpose of the rule consist of profoundly
altering the practice that existed prior to 1945 by bringing about a stricter prohibition of the
use of force.5
This paper examines the legality of the use of force in Libya under international law as
authorized by the United Nations Security Council via Resolution 19736
. It will explore
whether international law allows a state and or states to use military force to compel another
state to meet its obligations under international law or as in the case of Libya, to protect
civilian lives in a situation of internal conflict. The paper is divided into two parts. The first
part chronicles evolution of the general prohibition on the use of force under international
law, the formation and purpose of the United Nations as well as the functions, powers and
procedures of the UNSC.
The second part will analyze relevant rules of international law on the use of force
namely; the general prohibition on the threat or use of force, the principles of sovereignty and
non-intervention in the internal affairs of states as well as the status of the doctrine of
humanitarian intervention on which the security council based the authorization to use force
in Libya. Lastly, the principle of Responsibility to Protect as established by the United
Nations General Assembly in 2005 and whether its application were justified in the Libyan
intervention will be highlighted. Where applicable previous cases concerning the use of force
in international relations under UNSC resolutions are incorporated.
4
Article 41 Charter of the United Nations
5
B. Simma, 'NATO, The UN and the use of force; Legal Aspects', EJIL 10 (1999) 1, at 2-3
6
UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970

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The principles of sovereignty and non-intervention serve to emphasize why
contemporary international law outlaws the threat or use of lethal force by one sovereign state
against another, with two clear exceptions namely; the UN Security Council may authorize
states to use force, and states have an inherent right of self-defense against unlawful use of
force and to aid other victims of aggression seeking help in collective self defense. I argue
that such lethal use of force must however be in consonance with the principles and purpose
of the United Nations.
IV. Evolution of the general prohibition on the use of force
A. Brief historical development of the ban on the use of force:
Since the advent of modern states, there have always been efforts to determine the
conditions under which war may be waged between states and once started, how states should
conduct themselves during the war. According to Basak Cali, ―theorists ranging from Victoria
(1557) to Gentili (1598); from Suarez (1610) to Grotius (1625) and from Pufendorf (1688) to
Vattel (1758) have at various times contributed to the tradition that sets out moral limits to
waging war. Hence international law on the use of force can be described as a long-standing
effort to develop prescriptive norms on the use of deadly force by states which are capable of
guiding states conduct‖.7
7
Basak Cali, International Law For International Relations, (Oxford University Press, New York, 2010)p.214

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Notably, modern efforts towards the ban on the use of force can be traced to the
Kellogg-Briand Pact of Paris in 1928.8
In it, the parties which included the most powerful
nations in the world renounced war as an instrument of national policy and international
relations. However, the Kellogg-Briand Pact was unsuccessful in restraining state behaviour
since it failed to stop the commencement of World War II which ironically involved most of
the parties to the pact. Nonetheless, it did lay the normative framework for the United Nations
Charter which today forms the bedrock of the international legal order on the subject.
B. The Formation and Purpose of the United Nations
The United Nations (UN) is the successor of the defunct League of Nations which
commanded the affairs of nations between the periods 1919 to the advent of the Second
World War. Following the failure of the League of Nations to prevent the Second World War,
the United Nations was founded in 1945 to stop wars between nation states and to be a centre
for international dialogue. Thus, at the end of the Second World War, 51 countries desirous to
prevent and mitigate the re-occurrence of another world war, convened in San Francisco
under the auspices of the United Nations Conference on International Organization. Their
mission as stated in the preamble of United Nations Charter (UNC) included the need ―to save
succeeding generations from the scourge of war, which twice in our lifetime which has
brought untold sorrow to mankind.‖9
At the conclusion of the conference on 26 June 1945,
the Charter of the United Nations was signed and it came into force on 24 October 1945. One
of its outstanding provisions is the outright ban on the threat or use of force in Article 2(4)
UN Charter. Hence, contemporary international law on the use of force by states is governed
by the Charter system. The Charter therefore is a multilateral treaty establishing or restating
8
Kellogg-Briand Pact; Pact renouncing war, drafted by American secretary of state Frank Kellogg and French foreign minister Aristide
Briand-Signed in Paris by nine countries on 27 August 1928, and later by a further 56, it had no provision for disciplining aggressors and was
soon defunct.
9
Preamble; Charter of the United Nations

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the rights and duties of member or signatory states and is also the basic constitutional
instrument of the organization.10
The purposes of the organization as provided in Article 1 of the Charter is to maintain
international peace and security; to develop friendly relations among nations based on equal
rights and self determination; and to achieve international co-operation in solving economic,
social, cultural and humanitarian problems.11
Subsequently, Article 2 enumerates the
principles to govern the organization and its members. As earlier mentioned, one of the
outstanding rules which in turn underlines the basis for the formation of the United Nations is
the provision of Article 2(4) which enjoined all Members to refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the purposes of the
United Nations.12
Accordingly, from the wordings of the Charter provision in Article 2(4), one can
determine that the United Nations presently consisting of 193 member states, attempts to
ensure that states settle their disputes peacefully and that states do not resort to force against
each other in the settlement of their disputes. This intention informed the general prohibition
on the threat or use of force against the territorial integrity or political independence of any
state. Therefore, the rules governing the resort to force form a central element within
10
Philippe Sands Q.C. & Pierre Klein, Bowett's Law of International Institutions, (6th edn. Sweet & Maxwell, London 2009) p.22
11
Article 1 Charter of the United Nations (Adopted 26 June 1945, entered into force on 24 October 1945).
12
Article 2 (4) Charter of the United Nations

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international law and together with the principles such as territorial sovereignty and the
independence and equality of states provide the framework for international order.13
V. Analysis Resolution 1973: UNSC powers and procedures.
The Security Council is one of the principal organs of the UN. It is entrusted under
Chapter VII with the power to supervise and enforce international peace and security. Chapter
VII of the Charter constitutes the heart of the global collective security system. Its provisions
empowers the UNSC, after having determined that a threat to the peace, breach of the peace,
or act of aggression has occurred, may if necessary take military enforcement actions
involving the use of armed forces of Member States. Thus the Security Council is endowed
with a wide discretion in the application of Chapter VII measures. Nonetheless, the
International Court of Justice (ICJ) observed that '[T]his is not to say that the Security Council
can act free of all legal controls.
Accordingly, under Article 39, ''[T]he Security Council shall determine the existence of
any threat to the peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance with Articles 41 and
42 of the Charter, to maintain or restore international peace and security.''14
This means that
the UNSC is required to first consider peaceful measures under Article 41 before resorting to
enforcement measures under Article 42 of the Charter. In fact, nothing in the Charter
precludes the UNSC from adopting peaceful means, in accordance with Chapters VI and VIII
of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and
13
I. Brownlie, International Law and the Use of Force by States, (Oxford, 1963) p. ; Malcolm N. Shaw, International Law (6th edn.
University Press, Cambridge 2008)p. 1118
14

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crimes against humanity. The words 'shall' coupled with the 'and' in between Articles 41 and
42 UN Charter signify that the UNSC is required to explore pacific measure under Article 41
UN Charter before adopting enforcement measures as a last resort. Undoubtedly, the framers
intention is to restrict the use of force only to when it is absolutely necessary. For this reason,
they established the steps as outlined in Articles 41, 42, and 47 of the Charter.
The text of Article 41 provides that the Security Council ―may decide what measures
not involving the use of armed force are to be employed to give effect to its decisions‖. This
was not done. In fact the adopted Resolution 1970 was not given time to make any impact
before the adoption of Resolution 1973 authorizing the use of force in Libya. Resolution
1973 was adopted just a few days after the adoption of Resolution 1970 which raises the
question as to whether any peaceful effort towards the resolution of the conflict were ever
intended or made before resorting to article 42 measures.
Under article 42, the UNSC is endowed with the power to adopt enforcement measures
where it ―considers that measures provided for in Article 41 would be inadequate or have
proved to be inadequate‖. Based on this power, and relying on humanitarian reasons, the
Security Council on Thursday 17 March 2011 adopted Resolution 1973 which authorized
Member States to ―take all necessary measures to enforce compliance with the ban on
flights.‖ Notably, in paragraph 6 of the resolution, the Council ―decides to establish a ban on
all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians‖.
However, the operative part of Resolution 1973 lies in paragraph 8 where it Authorizes
Member States that have notified the Secretary-General and the Secretary-General of the
League of Arab States, acting nationally or through regional organizations or arrangements,
―to take all necessary measures to enforce compliance with the ban on flights imposed by
paragraph 6 above, as necessary, and requests the States concerned in cooperation with the

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League of Arab States to coordinate closely with the Secretary General on the measures they
are taking to implement this ban, including by establishing an appropriate mechanism for
implementing the provisions of paragraphs 6 and 7.‖15
It is evident that the use of the term "all necessary measures" clearly is the gateway to
the use of force which having been consummated, necessitated the question as to its legality
under international law. As observed by Philippe Sands and Pierre Klein, ―the formula all
necessary means has been used by the council in a number of resolutions, and is well accepted
as amounting to an authorization to use force against the state upon which the coercive
measures are imposed.‖16
Accordingly, it is generally accepted that a Security Council authorization granted under
Chapter VII establishes a sufficient basis for the legality of the use of armed force. However,
such an authorization must be seen to be consistent with provisions of the Charter especially
with regards to voting requirements in the Security Council under article 27(3) which
required an affirmative vote of nine members including the concurring votes of the permanent
members, article 24(2) which requires it to act in accordance with the Purposes and Principles
of the United Nations and to make a determination of the existence of any threat to the peace,
breach of the peace, or act of aggression under Article 39 of the Charter. In the Libyan
situation, it is doubtful whether such a determination was adequately made especially since
Resolution 1970 incorporating peaceful measure was not given time to have effect. Moreover,
the situation in Libya at the time amounted to a civil war rather than a civil protest as the
protesters quickly took up arms and announced a Transitional National Council (TNC)
15
Security Council approves no-fly zone over Libya, authorizing all necessary measures to protect civilians, by votes of 10 in favour with 5
abstentions (17 March 2011) Press Release SC/10/200 <http://www.un.org/News/Press/docs/2011/sc10200.doc.htm> accessed 29/12/2011
16
Philippe Sands Q.C. & Pierre Klein, (eds) Bowett's Law of International Institutions, (6th edn. Sweet & Maxwell, London. 2009)pp. 45

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thereby constituting a rebel group within the Libyan territory. Therefore nothing under
international law precludes the Libya authorities to fight back a rebellion against it.
Additionally, in adopting the resolution authorizing the use of force, the Council failed
to dully abide by certain Charter provisions incumbent upon it. For instance, Article 24(1)
stipulates the functions and powers of the Security Council, it states: ―[I]n order to ensure
prompt and effective action by the United Nations, its Members confer on the Security
Council primary responsibility for the maintenance of international peace and security, and
agree that in carrying out its duties under this responsibility the Security Council acts on their
behalf‖. In this regard, I reiterate that Article 24(2) requires that the Council shall act in
accordance with the principles and purpose of the UN. Some of these principles and purposes
underlined the resolve to save succeeding generations from the scourge of war as espoused in
the preamble and the obligation in article 2(3) that ―(A)ll Members shall settle their
international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered‖. These provisions were not duly observed by the
Security Council in authorizing the use of force in Libya.
A. Violations of the primary purposes and principles of the United
Nations:
In the discharge of its duties under the Charter, the Security Council (SC) should interpret the
Charter terms in good faith in accordance with the ordinary meaning and in the light of its
object and purpose.
Article 31(1) of the Vienna Convention on the Law of Treaties provides that ''[a] treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose''.

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The primary purpose and principles of the United Nations is clearly stated in the
preamble of the Charter. It includes also those stipulated in articles 2(3) and 2(4) which
requires all Members to ―settle their international disputes by peaceful means‖ and that all
Members ―shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state‖ respectively. The Security
Council is an organ of the UN and is therefore bound to pursue the purposes of the
organization as envisaged in its preamble.
Apparently, Resolution 1973 authorizing the use of force did not require the parties to
the conflict to settle their dispute peacefully. Moreover, Resolution 1970 which included
measure not requiring the use of force was not giving enough time for any meaningful attempt
at a peaceful solution of the conflict to be made since Resolution 1973 was adopted just a few
days after the adoption of resolution 197017.
This obviously is in violation Charter provisions
with regards to pacific measures under Chapter VI18
and a violation of the primary purpose
and principles of the United Nations.
B. Violations of Charter provisions on UNSC voting procedure:
When adopting enforcement measures under Chapter VII, the Charter system requires
that certain criteria be met in order for the authorization to use force to be legitimate, if not,
the Security Council and the states taking such measures acts in violations of the Charter and
therefore international law. These includes that the Security Council under its procedures
must have adopted the resolution in accordance with Charter provisions especially as it
concerns its voting procedure under article 27(3) which provides that ―[D]ecisions of the
17
UNSC Res 1970 ( 26 February 2011) UN Doc S/RES/1970
18
Article 33 United Nations Charter

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Security Council on all other matters shall be made by an affirmative vote of nine members
including the concurring votes of the permanent members‖.
This means that at least a majority of nine members must cast an affirmative vote to
adopt a resolution and these must include the concurring votes of the five permanent
members. In Resolution 1973 that adopted the use of force against Libya, 10 members voted
for, none against and five abstained indicating a division in a no consensus within the
Council19
. Among the five abstaining members were two permanent members namely; Russia
and China. Instructively, only three of the five permanent members concurred with the
resolution. This means that a priori, the resolution did not comply with Charter provisions.
Nevertheless, UN practice has shown that when a permanent member abstains, a resolution
may still be passed20
and that was the case in the adoption of the resolution 1973. The
implication is that contrary to the requirement of a concurring vote of the five permanent
members the resolution was passed thereby violating the Charter provision.
VI. Relevant rules of international law on the use of force:
A. General prohibition of the threat or use of force:
Article 2(4) of the United Nations Charter provides: ―All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or
19
Liam Mclaughlin , Why we shouldn‘t intervene in Libya NewStatesman <http://www.newstatesman.com/blogs/the-
staggers/2011/03/resolution-china-germany> last accessed 27/12/2011
20
BBC News World (online), UN Security Council – Profile <http://www.bbc.co.uk/news/world-11712448> last accessed 27/12/2011

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political independence of any state, or in any other manner inconsistent with the Purposes of
the United Nations‖. Thus the international system as embodied in the Charter sought to
checkmate the aggressive use of force by states which hitherto held sway in deciding to
restrain from aggression.
This article is considered to be a jus cogens principle, or peremptory norm, of
international law meaning that no state has the right to depart from the rule prohibiting the use
of force. The international Court of Justice in the Nicaragua case noted that Articles 2(4) and
51 of the UN Charter had passed into customary international law, and referred to Article 2(4)
as jus cogens21
. It is generally accepted that a rule that has become jus cogens is clearly
expressive of moral consensus.
However, the ban on the use of force under Article 2(4) is not an absolute ban. Under
the Charter regime, the threat or use of force is only permissible if it is taken under stipulated
exceptions to the general rule of prohibition namely; in self defence as provided in Article 51
of the Charter and by the authorization of the UN Security Council acting under Chapter VII
of the Charter and 2(7) respectively.
Clearly, what concerns this paper in this regard is the provision of Article 2(7) whereby
the UNSC can legitimize the use of force acting under Chapter VII. Article 2(7) provides:
‖[N]othing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
21
Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment,
I.C.J Reports, 1986, pp 14

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Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter Vll‖'.22
B. The principle of non- intervention in the internal affairs of states:
The principle of non- intervention in the internal affairs of states is a customary
international law principle based upon the notion of respect for the territorial sovereignty of
states.23
These twin principles ensure the independence of Member States, and goes to
reaffirm the assertion as noted by Malcolm N. Shaw that the UN is based upon the sovereign
equality of states and the principles of fulfillment in good faith of the obligations contained in
the Charter, including the peaceful settlement of disputes and the prohibition of the use of
force.24
Therefore, under article 2(7) of the Charter, the UN, its members and indeed any of its
organs ''shall not intervene in matters which are essentially within the domestic jurisdiction of
any state except where enforcement measure are applied under Chapter VII of the Charter by
the UN Security Council. Notably, the UNSC is empowered under Chapter VII to adopt
enforcement measures after it has ―determined the existence of any threat to the peace, breach
of the peace, or act of aggression‖'.
22
Article 2(7) UN Charter
23
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, I.C.J. Reports 1949, pp 4
24
Malcolm N. Shaw, International Law (6th edn. University Press, Cambridge 2008)p.1205

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However, as noted by Philippe Sands Q.C. & Pierre Klein, it is with disputes ―likely to
endanger international peace and security‖ that the Security Council is concerned and not all
disputes. In this context, the Libyan conflict was purely an internal conflict which showed no
potential cross border effect. Moreover, the wordings of the second paragraph whereby the
UNSC asserted that it was responding ―to the legitimate demands of the Libyan people‖' and
leading to ―'the political reforms necessary to find a peaceful and sustainable solution‖
indicates that the Security Council was in effect dictating the political outcome of the conflict
even though it emphasized that the mandate of the resolution does not include a regime
change. Evidently, by given military support to the rebels or what came to be known as the
Transitional National Council (TNC), the Council was on all intent and purposes supporting a
regime change in Libya. Notably, the International Court of Justice has had occasion to give
its opinion of the issue of intervention in the internal affairs of states. Notably, in the
Nicaragua case, the International Court of Justice declared ―that the principle of non-
intervention prohibits a state to intervene, directly or indirectly, with or without armed force,
in support of an internal opposition in another state and that acts which breach the principle of
non-intervention will also, if they directly or indirectly involve the use force, constitute a
breach of the principle of the non-use of force in international relations‖.25
C. Humanitarian Intervention and Responsibility to Protect:
According to J. L. Holzgrefe humanitarian intervention is ―the threat or use of force
across state borders by a state (or group of states) aimed at preventing or ending widespread
25
Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment,
I.C.J Reports, 1986. Pp.14, 108 and 109-10

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and grave violations of the fundamental human rights of individuals other than its own
citizens, without the permission of the state within whose territory force is applied‖.26
Obviously, the UNSC adopted Resolution 1973 authorizing the use of force in Libya
based on humanitarian consideration. The current status of humanitarian intervention is at best
controversial within the international community because they contradict the principle of non-
intervention in the domestic affairs of other states. According to the conclusion of the
independent international commission on Kosovo, ―[A]t present, the Charter does not
explicitly give the UNSC the power to take measures in cases of violation of human rights.‖27
This situation has not changed since the report under reference was published. Sovereignty
allows states to arrange their internal issues independently. Therefore any interference in the
affairs of the sovereign state in the name of ‗humanitarianism‘ directly breaches the UN
Charter. Ian Brownlie, argues that 'humanitarian intervention, on the bases of all available
definitions, would be an instrument wide open to abuse a rule allowing humanitarian
intervention … is a general license to vigilantes and opportunists to resort to hegemonic
intervention'.28
The idea behind the attempt to entrench the doctrine of humanitarian intervention in the
international legal order is seen by some as stemming from the desire to attune the core
principles of sovereignty and non-intervention with states' responsibility to protect their
citizens against systematic violations of human rights. This is not new as states since 1945
generally accept as part of their responsibility, to safeguard human rights within their
jurisdictions. The new dimension is that since the 1990s, the UNSC has increasingly seen
26
J. L. Holzgrefe, ‗The Humanitarian Intervention Debate,‘ in J. L. Holzgrefe and Robert O. Keohane eds., Humanitarian Intervention:
Ethical, Legal, and Political Dilemmas (Cambridge University Press, New York, 2003), p.18
27
The Will and Authority of the Security Council After Iraq; Leiden Journal of International Law 17, No 4 (2004), 665-666; Independent
International Commission on Kosovo, Kosovo Report, (Oxford; Oxford University Press, 2000), 196
28
Ian Brownlie, in Oliver Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Conflict: A Re-conceptualization
(Polity Press, Cambridge, 1996), p. 64

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grave human rights violations in internal strife and even in civil wars. However, with the
exception of this Libyan case, the UNSC has previously not expressly given authorization to a
state or group of states acting severally of jointly to use force to end a perceived human rights
emergency. It has done so with the consent of the targeted state or where the state in question
had already collapsed such as in Liberia, Sierra Leone and Somalia.
The Libyan situation was quite different. Libya is a member of the UN and as such
merits the protection and support of the UN. The Libyan authorities never consented to the
intervention.
Granted that the Libyan forces may have applied brutal force in trying to quell the
rebellion against it and thereby may have committed human right violation, nonetheless, from
an international standpoint, the situation changed when the rebels took up arms. Thereafter,
the situation became a civil war, a purely internal affair which only the Libyan people can
decide its outcome. Nothing in international law prohibits the use of military or superior
weapons to fight rebels in a civil war, there were no breaches of international humanitarian
law of armed conflict for Gaddafi and his forces to target and kill rebels. Rebels are usually
not recognized belligerents. Moreover, according to M.N. Shaw, ―aid to rebels is contrary to
international law‖. The 1970 Declaration on Principles of International Law emphasized that:
―[n]o state shall organize, assist, foment, finance, incite or tolerate subversive terrorist or
armed activities directed towards the violent overthrow of the regime of another state, or
interfere in civil strife‖29
. Furthermore, ―[e]very state shall refrain from any action aimed at
the partial or total disruption of the national unity and territorial integrity of any other state or
country.‖30
29
Malcolm N. Shaw, International Law, (6th Edn. University Press, Cambridge 2008)p.1153
30
Malcolm N. Shaw, International Law, (6th Edn. University Press, Cambridge 2008)p.1153

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If anything, rather than being placed under enforcement measures, Libya as a member
of the UN, needed the support and solidarity of the international community in the face of
internal strife against it. Such should be the benefit of being a member of such an illustrious
organization. The inconsistency with which the UNSC has handled the Libyan situation in
comparison to a more grievous Syrian situation has heightened concerns that the UNSC may
have other ulterior motives other than humanitarian in authorizing the use of force in Libya.
Up to the time of concluding this paper grievous violations of human rights including killings
have continued in an 11-month-old uprising against Syrian President Basher al-Assad.31
Notably, after 11 months, the UNSC is yet to determine that the situation in Syria is capable
of endangering international peace and security but it needed just a few days to determine this
in the case of Libya.
This inconsistency in the interpretation or determination of what situation constitutes
humanitarian intervention has compounded its projection, soils the prospects of the
Responsibility to Protect and further heightened growing criticism of the UNSC in recent
years. As Simon Chesterman noted, ―the use of Chapter VII by the UNSC in the 1990's was
haphazard and the sanctioning of actions depended more upon a coincidence of national
interest than on procedural legality‖.32
Antonio Cassase concurred with this view when he
stated that ''the UNSC is eager to retain discretionary power in this matter and tends to avoid
explaining the nature of the link and reason for its actions. As a result its practice lacks
consistency and turns out to be selective.‖33
In this regard, two previous cases of
inconsistency comes to mind namely; the Rwandan genocide and the Kosovo atrocities. In
31
Syria - Protests (2011-) <http://topics.nytimes.com/top/news/international/countriesandterritories/syria/index.html > last accessed
27/12/2011
32
S. Chesterman, Just war or Just peace, (Oxford; Oxford University Press , 2001) Ch. 5, 165
33
Antonio Cassase, International Law, (Oxford: Oxford University Press, 2005 ),347

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22
Rwanda, the world community stood by and watched while hundreds of thousands of people
were slaughtered. Powerful states and notably the UNSC were unwilling to put their own
troops in harm's way. In the case of Kosovo, although the level of violence was inflicted on a
lower scale than the Tutsis in Rwanda, an effective albeit unlawful international intervention
came to the aid of Kosovar Albanians.
The desire to move beyond the stagnation of the doctrine of humanitarian intervention
led the then Secretary General of the UN Kofi Annan in a keynote address to the UNGA to
propose a shift in the principle of sovereignty with the notion of ―sovereignty as
responsibility‖. In the World Summit Outcome Document that followed this initiative, Heads
of State and Government at the UN High-level Plenary Meeting of the General Assembly in
September 2005, endorsed the principle of Responsibility to Protect34
.
The document's most outstanding text relating to our subject is in paragraph 139
whereby the Heads of State and Government agreed that; “[T]he international community,
through the United Nations, also has the responsibility to use appropriate diplomatic,
humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the
Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity. In this context, we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance with the Charter, including
Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations
as appropriate, should peaceful means be inadequate and national authorities manifestly fail to
34
Established by the UN General Assembly in 2005

Page
23
protect their populations from genocide, war crimes, ethnic cleansing and crimes against
humanity.‖35
It is interesting to note that even under the R2P, emphasis is placed on appropriate
peaceful measures and the use of force under Chapter VII as a last resort should peaceful
means be inadequate. In Libya, peaceful measures were not even explored before the
application of enforcement measures. Consequently the use of force in Libya as adopted apart
from violating the Charter provisions also made mockery of the R2P principle.
VII. Concluding remarks
In determining the legality of the use of military force in Libya as authorized by the
UNSC via Resolution 1973, I have in the foregoing paragraphs, analyzed the UN Charter
provision on the threat or use of force in addition to the relevant principles of non-
35
UNGA, ‗Outcome Document of the High-level Plenary Meeting of the General Assembly‘
(15 September 2005) 60th Session (2005) UN Doc A/60/150. para.139

Page
24
intervention and sovereignty. I have also analyzed the various Charter provisions in relation to
the function, powers and procedures of the UNSC in adopting Chapter VII measures. The
analysis of pre-Charter instrument indicated that they failed because they merely sought to
regulate wars unlike the Charter system which since 1945 explicitly prohibits the threat or use
of force by states in their international relation except on two grounds; self defense and
collective self defense as authorized by the UNSC acting under Chapter VII of the Charter.
Nothing in the Charter allows a state and or states to use military force to compel another state
to meet its obligations under international law to protect civilian lives in a situation of internal
conflict as in the case of Libya. The legal status of humanitarian intervention and the
Responsibility to Protect upon which the intervention in Libya was based is so far non
existence under the Charter system and is at best controversial and ambiguous within the
international community.
Currently the international community and legal order is entangled in a critical
controversy with regards to the status and future of the Charter prohibition on the use of force
in the settlement of international disputes. In recent years, especially since September 11
2001, new exceptions to the rule have emerged claimed by powerful states including, the
expansive interpretation of the right to self-defence to include the right to pre-emptive self
defence and the right to use force in the face of humanitarian emergencies under the evolving
doctrine of 'Responsibility to Protect' otherwise known as 'R2P'.
Considering that the doctrine of the R2P if stipulated and equitably put into practice
whenever the need arises has the potential of evolving into a peremptory norm thereby
creating a third exception to the general prohibition to the use of force under the Charter
regime. Therefore, there is the urgent need to clarify in certain terms, at least for the benefit of
legal certainty, rule of law and the stability of the international order, the circumstances under

Page
25
which the principle of Responsibility to Protect could be triggered. This becomes imperative
if the international community intends to avoid capricious and arbitrary use and also the
controversy that has trailed its application as in the case of Libya. Laudable as its intention is,
humanitarian intervention cannot be a tool for the violation of established international norms
and principles. There is nothing humanitarian in bombing and killing human lives in order to
prevent or stop human right violations. The international community should move beyond
violence and warfare as a means of enforcing compliance with international norms. We
cannot have the right to life as a core human right and at the same time pursue a policy that
violates that right.
In conclusion, the use of force in Libya as authorized by the UNSC via Resolution 1973
was unlawful under international law as embodied in the Charter of the United Nations in so
far as the UNSC in adopting the resolution failed to comply with its voting requirements in
addition to the obligation to act in accordance with the purposes and principles of the UN. In
so doing, it violated the peremptory norm of non use force in the settlement of international
dispute, violated the sovereignty and territorial integrity of Libya, violated its own voting
requirement and above all, contravened the Purposes and Principles of the United Nations.

Page
26
VIII. Bibliography
A. Books
Brownlie, I. (1996). Humanitarian Intervention in Contemporary Conflict: A Re-
conceptualization. (O. R. Woodhouse, Ed.) Cambridge: Polity Press.
Brownlie, I. (1963). International Law and the Use of Force by States. Oxford: Oxford
University Press.
Cali, B. (2010). International Law For International Relations. New York: Oxford
University Press.
Cassase, A. (2005). International Law. Oxford: Oxford University Press.
Chesterman, S. (2001). Just war or Just peace. Oxford: Oxford University Press.
Holzgrefe, J. L. (2003). The Humanitarian Intervention Debate. (J. L. eds, Ed.) New
York: Cambridge University Press.
Philippe Sands Q.C & Pierre Klein, (2009). Bowett's Law of International Institutions
(6th Edition ed.). London: Sweet & Maxwell.
Malcolm N. Shaw, (2008). International Law (6th
Edition ed.). Cambridge: University
Press
B. Table of Articles & Journals
Simma B, NATO, ‗The UN and the use of force: Legal Aspects‘ EJIL 10 (1999) 1, at 2-3
Nigel D.W, ‗The Will and Authority of the Security Council after Iraq‘, Leiden Journal of
International Law 17, No 4 (2004), 665-666;

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27
Independent International Commission on Kosovo, ‗Kosovo Report‘, (Oxford; Oxford
University Press, 2000), 196
UNGA, ‗Outcome Document of the High-level Plenary Meeting of the General Assembly‘
(15 September 2005) 60th
Session (2005) UN Doc A/60/150. para.139
C. Table of Cases
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Judgment, I.C.J. Reports 1949, pp 4
Case concerning the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Judgment, I.C.J Reports, 1986, pp 14
Case concerning the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Judgment, ICJ Reports, 1986, pp 14, 108 and 109-
10
D. Table of Treaties
Article 2(7) UN Charter
Charter of the United Nations; In force since October 24, 1945
Article 24 (2) Charter of the United Nation
Kellogg-Briand Pact; Pact renouncing war, drafted by American secretary of state Frank
Kellogg and French foreign minister Aristide Briand-Signed in Paris by nine countries on 27

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28
August 1928, and later by a further 56, it had no provision for disciplining aggressors and was
soon defunct.
Preamble; Charter of the United Nations
Article 1 Charter of the United Nations (Adopted 26 June 1945, entered into force on 24
October 1945).
UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970
Article 33 United Nations Charter
UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 - Adopted by the Security Council
at its 6491st meeting, on 26 February 2011
E. Table of Websites
Security Council approves no-fly zone over Libya, authorizing all necessary measures to
protect civilians, by votes of 10 in favour with 5 abstentions (17 March 2011) Press Release
SC/10/200 <http://www.un.org/News/Press/docs/2011/sc10200.doc.htm> accessed 29/12/2011
Mclaughlin L, Why we shouldn‘t intervene in Libya NewStatesman
<http://www.newstatesman.com/blogs/the-staggers/2011/03/resolution-china-germany> last
accessed 27/12/2011
UN Security Council – Profile, BBC News World (online) <http://www.bbc.co.uk/news/world-
11712448> last accessed 27/12/2011
Syria — Protests (2011–)
<http://topics.nytimes.com/top/news/international/countriesandterritories/syria/index.html >
last accessed 27/12/2011

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