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Wednesday, 23 March 2011

Law and Libya

Published on Halsbury's Law Exchange here.

At the time of writing, British aircraft and ships of the Royal Air Force and Royal Navy are engaged in enforcing a “no fly zone” over Libya pursuant to UN Resolution 1973. The resolution authorises “all necessary measures” to prevent a humanitarian disaster. By a lay definition, flying military jets into a sovereign territory and attacking its forces might also be called "war".

Either way, the governments of all the forces engaged in Libya have been at pains to stress that they are acting, and only will act, in accordance with Resolution 1973, and hence are abiding by international law.

There is no doubt that all participants will be eager to avoid repeating mistakes made in the US-led invasion of Iraq, and the legality of the actions in the eyes of the United Nations is one example. In the case of the United Kingdom, the decision to invade Iraq has been reviewed by the Chilcot Inquiry, whose final report is still awaited. Although the inquiry is not an international law tribunal, its findings on the Attorney-General’s advice will be considered authoritative. At this point it is fair to say that the UK Government’s position that the war was legal remains controversial.

If, however, one casts one's mind back to an earlier conflict of the most recent Labour Administration, one finds something rather striking with the Kosovo War of 1999. The United Nations charter authorises military action only in accordance with a Security Council resolution or in self-defence. No resolution was ever obtained with regard to the Kosovan conflict and NATO could not claim to have been acting in self defence.

The legality of the war was never subsequently ruled upon by an international tribunal such as the International Court of Justice. But it was studied in detail by the House of Commons Select Committee on Foreign Affairs, which can be considered to express the received view of the United Kingdom government on the point. The committee concluded that the war was of “dubious legality” under international law, although it went on to maintain that it was justified on moral grounds, in order to prevent a humanitarian disaster.

Such a claim can only be made because the aftermath of the war has been judged a success by the court of public opinion. If the result had been bloodshed on the scale of Iraq, then any good intentions or counter-scenario would have quickly been dismissed. Conversely, had Iraq somehow ended quickly with a stable, respected local government in place, no inquiry would have been called seven years later; instead the politicians responsible would have been feted as visionary international statesmen, as I argued in the New Law Journal last year (07 May 2010, Vol 160, Issue 7416), and international law issues have long been brushed aside.

Precisely the same factors apply to Libya. The intervention was prompted by fears of a bloodbath if Gaddafi’s forces had moved into rebel-held Benghazi. The authorising resolution is very broad in its terms – “all necessary measures” short of an occupying force. At least arguably, this does not even rule out the use of ground troops, provided that they withdraw in short order, or indeed if they are invited in by a putative sovereign authority (that is, rebel-held areas that purport to secede from Gaddafi’s regime). The question remains however as to whether the resolution permits – or even obliges – the international forces to intervene if rebel Libyan forces, emboldened to strike against Gaddafi’s depleted forces, start to inflict significant collateral damage in the form of civilian casualties.

From the perspective of international law, therefore, the intervention can be said to be legitimate as prosecuted to date. If the civil war is concluded swiftly and with few civilian casualties, the UN action will be acclaimed. If, however, it all goes wrong then the UN approval will be a flimsy defence for the reputation of the politicians responsible for involving British forces. It may be that civilian casualties will reach unacceptable levels, forcing an end to the campaign. Or a stalemate may ensue, but one or both sides will then inflict human rights abuses against anyone thought to have sided with their opponents. Or something no-one has yet thought of may occur. The only law that is prevalent in every war is the law of unforeseen consequences.

Arguably the greatest Western postwar general has been David Petraeus. Famously he turned to an embedded reporter at the start of the invasion of Iraq in 2003 (at the time Petraeus commanded the 101st Airborne Division) and precisely formulated the question which needs to be asked above all others by any politician or General contemplating military action: “Tell me how this ends.” This morning, according to both the Daily Telegraph and the Washington Post, the answer is not clear.

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