Stefan Talmon is Professor of Public International Law at the University of Oxford.
A wind of change is currently sweeping through North Africa and the Middle East. While the transformation in Tunisia and Egypt has, at least so far, occurred peacefully the popular uprising in Libya, according to some media reports, has already claimed more than 1,000 lives. There were reports that the Libyan Air Force was ordered to bomb anti-government protesters in the city of Benghazi and the capital Tripoli. On 23 February 2011, UN Secretary-General Ban Ki-moon condemned Libyan President Muammar Al-Qadhafi’s actions against protesters as possible crimes against humanity. Others have gone further, referring to the events unfolding in Libya as ‘genocide’. Ibrahim Dabbashi, Libya’s deputy envoy to the United Nations, told the BBC that the crackdown on protesters in his country was ‘a real genocide.’ The Secretary-General of the Gulf Cooperation Council (GCC) Abdurrahman bin Hamad al-Attiyah said in a statement that the Libyan people are being subject to ‘an act of genocide.’ A view shared by the Foreign Minister of Luxembourg, Jean Asselborn, who commented on Qadhafi’s TV address to the nation, in which he said that he was going to fight to the last bullet: ‘He started genocide against his own nation.’
French President Nicholas Sarkozy and others have called for a NATO-imposed no-fly zone to be enforced over Libya to ‘prevent the use of that country’s warplanes against [its] population’. Such a measure could also prevent mercenaries, weapons and other supplies from reaching Qadhafi and his security forces. Others, including the British Government, are however, concerned that Russia and China could veto a no-fly zone at the United Nations Security Council.
Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action byNATO or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.
Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?