It is the UNSC which confers legality to the use of force and it is clearly what it did for the Libyan case. The Council used the Chapter VII of the UN Charter, leading to the adoption of the Resolution 1973/2011. In the case of Libya, the use of force was supported by the arguments that the international community have to intervene to protect the civilians on a humanitarian ground. However, not all Sates that have put forward this principle to justify the use of force in other member states have received the approval of the UNSC. The intervention of Tanzania in Uganda [1979]; India’s use of force in Pakistan [1971]; the end up of the Polpot regime by Vietnamese forces in Cambodia [1978] and the intervention of NATO in Serbia were all categorized as illegal, regardless of the humanitarian ground justifying their actions. The Security Council debated on the issue of legality of the use of force in the case brought by Yugoslavia before the International Court of Justice (ICJ) against NATO states. ”Those who support the doctrine of humanitarian intervention often rely on the examples cited above. But most of the States involved in these military actions preferred to rely on the right to self-defence to justify their acts.
The role of the UNSC
Article 2 (4) stipulates that Member States should not use of force “against the territorial integrity or political independence of other Member States or any manor inconsistent with the UN.” As cited above, the UNSC have the right to allow the use of force unless this action should fall in the scope of Chapter VII of the Charter for the safeguarding of international peace and security. However this action must not be in conflict with Article 2(7) which forbids the intervention in domestic affairs and jurisdiction of a State. The Danish Institute of International Affairs (DIIA) gives a clear analysis of this issue: “It was hardly the intention of the framers of the Charter that internal conflicts and human right violations should be regarded as a threat to international peace.” The Independent International Commission of Kosovo stated in one of its report that Charter does not “explicitly give the UNSC the power in cases of violations of human rights.” “The UN Charter does not contain any provision concerning a collective humanitarian intervention. However, it is generally assumed that the UNSC may sanction, and have sanction, such actions. Some recent examples of humanitarian interventions, under the auspice of the UNSC, include Somalia and Bosnia in 1992; and Rwanda in 1994.”
Does the situation in Libya constitute a threat to the international peace and security or a threat to the neighbours’ states which would justify an international intervention with the right to the use of force? There is no such indication and no data that could make the UNSC thinks that Libya has the intention to threaten its neighbours. Situation such as Libya should have been handled by the Human Right Council (HRC). This institution is the best to determine whether the need for humanitarian intervention has been reached and sends its recommendations to the UN General Assembly to decide whether, or not, a collective intervention of humanitarian grounds is needed. It is the role of the HRC to ensure that human rights are respected by the Members States towards their citizens. This would give more legitimacy to an international intervention rather than the decision of UNSC and the game of vetoes that permanent members used to play. Hence this will reflect the true will of the international community as in the UNGA, all the Member States have equal power to vote and express their opinions on the matter. The World Summit Outcome of 2005 stated that a collective action would be legitimate 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 UN Charter.
The World Summit outcome draws a framework in which circumstances a collective intervention would be legitimate. The decision of the UNSC concerning the Libya issue demonstrates that use of force on humanitarian ground is permissible. Hence legitimating and conferring legality to the use of force in Libya to protect civilians. But allowing such interventions could create an abuse in claims of rights to use of force against another Member State. In Libya, the purpose of the intervention was to protect civilians, but in the meantime, NATO forces bombarded military facilities of the Gaddafi regime, was this strategy to protect civilians or strategic strikes to weaken the forces of the regime? What about civilians who have taken weapon to fight the military, should they be protected by the intervention forces? All these questions are subject to much debate. Has the intervention breached the territorial sovereignty of Libya by interfering into a domestic conflicts which could be describes as a civil war? The answer is yes. And according to the Friendly Relations Declaration of 1970 “every state has the duty to refrain from organizing, instigating, and assisting in acts of civil strife in another State. In the case Nicaragua v United States of America, the United States were accused to have violated international laws by providing weapons and training in and against Nicaragua. Hence, international law does not allow a State to take side in an internal conflict of another State.
It is the flexibility of the application of Chapter VII of the UN Charter that has allowed use of force under humanitarian ground to be permissible in public international law. It the flexibility of the phrase “…all necessary means” used in many of the resolutions adopted by the UNSC that intended to cover the use of force. It was after the authorisation of the UNSC that the use of force was used in Korea, even if the constitutional basis was even unclear. The behaviour of the UN has also been unclear in 1994 during the civil war in Rwanda, where UN troops were deployed to protect the civilians from massacre. In this conflict the only terms that was clear was the distinction between “peacemakers” and “peacekeepers.” Richard Heaps, consultant for the Ford Foundation, wrote in the New York Times that the Clinton’s administration “was firmly opposed to an international intervention” in Rwanda. The United States also insisted to limit the number of UN troops in Rwanda. In 1994 the UNSC approved the use of force in the Balkans to save the population who slaughtered in an ethnic conflict opposing Muslims to Christians. Scott Peterson, author specialist in the Rwanda and Sudanese conflicts, compared the actions of the United States in Africa to those in Bosnia. “It is like Africans does not deserve the same justice as the Europeans.”
The use of force to protect population in States non respecting the human rights is subject to much confusion. In Libya the United States co-sponsored the Resolution 1973/2011 in order to protect Libyans whose fundamental human rights were being breached by the regime of Gaddafi. The UNSC gave its authorisation. The international politics of the permanent members of the UNSC is quite incomprehensible; France and Britain who armed the military regime of Gaddafi for several decades were also co-sponsored of the Resolution. The United States who supported the Indonesian regime during the invasion of the East Timor by the regime of Suharto (hundred thousands were killed during this conflict) is now anxious about the humanitarian situation in Libya. In 1996, the Peace Nobel Prize Winner, Jose Ramos Horta, described in his speech how he learned that his brothers and sisters have been killed by American weapons sold to the Suharto regime by the United States.
In my opinion and to conclude, it is clear that the use of force is permissible under humanitarian grounds. It is also clear that this right is subject to the interest of the permanent members who use this right to protect their own interest. When their interests are not in danger, they rather used their vetoes power or abstained to vote. History and past conflicts have proven that some countries, where human rights are in constant danger (China, North Korea, Yemen…) are not helped by the international community. The super powers that have control over the UNSC will never jeopardize their economic and political interest for the sake of human rights. In Libya, many political observers describe the intervention in Libya “as prevention measure towards the advances of China in Africa that has taken place in the last years. The West is trying to protect its backyard. France and the UK for example have been saying long before the resolution that regime change is the issue. They are not going to change their mind all of a sudden. They want to take control over Libya.” History has often proven that those who pretend to use force on humanitarian ground have always acted in their own interests. Even Adolph Hitler uses this argument to justify the invasion of Czechoslovakia “to protect the life and liberty of that country’s German population.”
Article 2 (4) Chapter 1 of the Charter of the United Nations
Article 51 of the Charter of the United Nations
Chapter VII of the Charter of the United Nations
Legality of the use of force (Yugoslavia v Belgium) provisional measures, Orders of 2 June 1999, ICJ Reports p124.
International Law- Malcolm D. Evans p.595
Danish Institute of International Affairs (DIIA) 2000: 196
The Libya Humanitarian Intervention: Is it Lawful in International Law by Dr Lawrence Modeme Chapter 3
Created by the UN General Assembly on 15th March 2006
Nicaragua v United States of America, Merits judgements ICJ Reports 1986
International Law- Malcolm D. Evans p.608
Me Against My Brother: At War in Somalia, Sudan and Rwanda (2001)