As the conflict in Libya appears to be drawing to a close, more allegations are surfacing that war crimes have been committed, and fears have been expressed that reprisals may occur.  The allegations made against the Qadhafi forces of torture and wilful killing (see here and here) are grave, but a Human Rights Watch report that alleges that Libyan dissident forces have unjustifiably damaged property, beaten individuals, and looted hospitals, homes and shops, is also disconcerting. 

These allegations are at odds with the declared policy of the Libyan National Transitional Council (NTC) which, on March 24 stated, in relation to the treatment of detainees and prisoners, that “its policies strictly adhere to the ‘Geneva Convention relative to the Treatment of Prisoners of War’ as well as with the ethical and moral values of the Libyan society”.  This statement continued:

“1.        Any Libyan caught whether they be military personnel or citizens recruited to cause sabotage and spread chaos, should not be titled as ‘Prisoner’ but as a Libyan brother (or sister) who has been deceived.

2.         All prisoners and detainees will be provided with food, water and necessary medical assistance and will be treated humanely, without the use of aggression in any form. The NTC will vow to punish those who violate this code and will allow local and international human rights organizations to freely visit and talk to the detainees and prisoners at any time.”

Further, on May 19 the NTC launched a frontline manual on the fundamental rules of armed conflict (see here for the Manual). This has been distributed in various forms, including sending extracts as text messages on mobile phones.  This manual was intended to demonstrate its commitment to do its best to ensure that its forces would adhere to the principles of international humanitarian law, and thus minimize harm to the Libyan people.  In its press release no.21 (which is not on its website), the NTC stated:

 “We recognise that many of those men and women who have taken up arms in opposition to the Qadhafi regime are not combatants who have been formerly trained in the laws of armed conflict. As such, these guidelines were requested in order to help instruct them, as rapidly as possible, in the fundamental rules which they must respect, in particular those relating to the humane treatment of detainees and to targeting in an armed conflict.”

Shortly after the outbreak of conflict in Libya, some expatriate lawyers established a group, Lawyers for Justice in Libya (LFJL) which has the aim of promoting human rights in Libya and, in particular, investigating and documenting possible crimes against humanity committed by the Qadhafi regime since 15 February 2011, and also human rights abuses committed since that regime came to power 42 years ago.

As the group organising Libyan dissident forces, the NTC did not want to “act like Qadhafi and his forces”, it asked LFJL to advise on the applicable rules of the law of armed conflict.  Through personal contacts, LFJL assembled a small group based in the School of Oriental and African Studies, University of London, to draw up basic guidelines for use in the field. We were asked to focus on two areas: guidelines for the detention of captured Qadhafi forces, and guidelines on targeting. Our brief was to provide concise guidance which would set out basic legal standards with the aim of advising how the dissident forces could avoid breaching the law of armed conflict or, for that matter, expose themselves to liability under international criminal law.

Accordingly, these guidelines have two functions: to set out basic standards of behaviour, but also to provide standards of accountability. (more…)

Earlier this week, the UK Foreign Secretary, William Hague announced that the UK now recognises the Libyan National Transitional Council (the rebels fighting Colonel Gaddafi’s forces) as the sole governmental authority in Libya. This was an implementation of the decision reached in the context of the Libya Contact Group meeting which I spoke about last week (see here). As part of the UK’s decision, the UK has expelled those Libyan diplomats in the UK appointed by Gaddafi and has invited the Libyan NTC to appoint a new diplomatic envoy to the UK. As indicated in my previous post, one of the consequences of the recognition decision (and perhaps one of the drivers of the decision) is that the UK is willing to release some Libyan assets in the UK for use by the NTC. In particular, the UK is unfreezing £91 million belonging to a Libyan oil company which is controlled by the NTC. However, the vast majority of the Libyan State’s assets in the UK remain frozen.

In response to all of this the Libyan Deputy Foreign Minister (by which I mean the Gaddafi govt’s Deputy Foreign Minister) declared that these moves by the UK are illegal and that Libya will sue the UK in the International Court of Justice and in British domestic courts. Libya has been involved in quite a few cases before the ICJ – recall the maritime delimitation cases with Tunisia and with Malta in the 1980s, the Lockerbie cases against the UK and the US in the 1990s - so it is perhaps no surprise to hear that they are considering another suit at the ICJ. But are there jurisdictional grounds for such a suit and what exactly might such a claim involve? (more…)

The government of Colonel Gaddafi has recently issued a decree abolishing all charges in Libya’s ports in an interesting attempt to avoid the effect of sanctions imposed by the United Nations Security Council. The Security Council by Resolution 1970 and 1973 has imposed targetted sanctions on certain Libyan individuals and entities (including travel bans and asset freezes). In particular, under, para. 19 of SC Res 1973 the Council decided that:

that all States shall ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any individuals or entities within their territories, to or for the benefit of the Libyan authorities, as designated by the Committee, or individuals or entities acting on their behalf or at their direction, or entities owned or controlled by them . . .

Clearly, this provision was not intended to impose a comprehensive trade ban with Libya as it does not expressly prevent the export of goods to Libyan territory in general (nor importation from Libyan territory in general). The provision is intended to prevent transfers of funds or assets to the Libyan authorities (meaning the government of Colonel Gaddafi).  However, if exporters to Libya (or those wishing to export from Libya) are required to pay charges to the Libyan government when their vessels and goods are at a Libyan port, they will be caught by this provision as they will then be making funds available to the Libyan authorities. So some smart lawyer must have told the Libyan government that in order to avoid what will in effect be a comprehensive ban on trade with Gaddafi controlled Libya they need to avoid the port charges.

On June 16, I wrote a post asking “Which Entity is the Government of Libya and Why does it Matter?” In that post, I explained that what appeared to be recognition by a number of States of the Libyan “rebel” National Transitional Council (NTC) as the government of Libya was not necessarily so (see also the ASIL Insight published on the very same day as my post by my colleague Stefan Talmon). Matters have now changed quite dramatically. A month later (on July 15), a group of 32 States (including the United States and the United Kingdom) at the Libya Contact Group meeting in Turkey issued a statement in which they declared that:

The Contact Group reaffirmed that the Qaddafi regime no longer has any legitimate authority in Libya and that Qaddafi and certain members of his family must go. Henceforth and until an interim authority is in place, participants agreed to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya.

This is clear recognition, by members of the Contact Group, of the NTC as the government of Libya. 

As noted in my previous post, such formal recognition is contrary to the stated policy of many of these countries that they do not recognise governments. In reality, States always have to decide which entity they consider to be the government of other States. However, the policy of not recognizing governments meant that some countries would not make formal statements announcing the recognition decisions they had made. This statement by the contact group not only exposes the lack of reality in the policy of not recognizing but even goes against the practice of not making formal statements regarding recognition.

One of the main consequences of this joint act of recognition is that it may permit the NTC to lay claim to foriegn assets of Libya. Many of those assets are currently frozen under sanctions imposed by the US and the European Union. However, even, if the executive branch in those countries reverses those  freezes (see report here at Bloomberg Businessweek), there may well be litigation in domestic courts raising the question of who is entitled to control those resources (the NTC or the Gaddafi authorities). (more…)

Dr Gleider I. Hernández  is lecturer in law at the University of Durham; Thomas R. Liefländer is a PhD candidate at the University of Cologne.

The recent events rapidly unfolding in Libya have raised a number of important questions for international lawyers. Among them, the precise delineation of the scope of Security Council authorisation to use force has given rise to intense discussions on this blog (see here, here, and here). To recall, the Security Council authorised the use of “all necessary means” in order to protect civilians and civilian-populated areas as regards the situation in Libya (in Security Council Resolution 1973). The discussion on this blog centred primarily on exactly how narrowly the relevant authorisations are to be construed, focussing in particular on how direct the relation must be between any given action and the protection of civilians or civilian-populated areas.

Against this background, we intend to use the Libya situation to analyse a different question, namely, the possible legal consequences of exceeding the scope of Security Council authorisation. We approach the issue from two related, but nevertheless distinct, angles. First, we consider whether, given Security Council authorisation to use “all necessary means” in Libya, it is still possible that international military actions exceed the scope of that authorisation, thus triggering Libya’s right to self-defence. This issue of overstepping authorisation takes on renewed urgency in the light of NATO’s admission that it has killed civilians in certain air raids (most notably the air raid of 22 June 2011, reported in the Guardian, where NATO was bombing checkpoints that were not military installations—see infra for further discussion) and France’s controversial decision to supply the Libyan rebels with arms (see this Guardian article, as well as Dapo Akande’s recent post).

Secondly, we will offer some brief thoughts on whether the leaders of the States acting under Security Council authorisation may be committing the crime of aggression, as defined for the purposes of the Rome Statute of the ICC, by overstepping their mandate. The second question is, of course, entirely hypothetical, considering that the ICC’s jurisdiction over the crime of aggression cannot be activated before 2017, and that the existence of such a crime under customary international law is in any event doubtful. Nevertheless, we believe this line of enquiry to be important, as a device to highlight the grave consequences that may result from an overly broad reading of a Security Council authorisation. (more…)

France has admitted supplying weapons to rebels in Libya fighting against Colonel’s Gaddafi’s forces. According to Channel 4 News in the UK:

A senior French diplomatic source who wished to remain nameless told Channel 4 News that the weapon drop “was an operational decision taken at the time to help civilians who were in in imminent danger. A group of civilians were about to be massacred so we took the decision to provide self-defensive weapons to protect those civilian populations under threat.”

“It was entirely justifiable legally, resolution 1970 and 1973 were followed to the letter and it can be assured that there will be no diplomatic crisis despite what the African Union and Russia may say,” the diplomat said.

“France will not rule out more weapon drops in the future as we will take every decision on a case by case basis,” he added. (see also France 24)

It has also been reported that Russian Foreign Minister Sergei Lavrov has stated that

“If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya].”

The battle lines are clearly joined on this issue. Marko and I discussed this issue back in March (see here for my post and here for Marko’s) with comments from readers. My own view remains that SC Res 1973 which “Authorizes Member States . . .  to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya” (emphasis added) explicitly and also structurally creates an exception to the arms embargo in SC Res 1970. However, as I stated at the time, it is only lawful to provide arms to the rebels if that is for the purpose of defending civilians or civilian protected areas. It is unlawful to provide arms for aims that go beyond defence of civilians and civilian protected areas.  This is the position taken by the UK Foreign Office and restatedin relation to this incident (see here). (more…)

On Monday, the International Criminal Court’s Pre-Trial Chamber I issued a decision acceding to the ICC Prosecutor’s request for an arrest warrant for Libyan leader Muammur Gaddafi, his son Saif Al Islam Gaddafi and head of the Libyan military intelligence Abdullah Al Sanusi (see previous post on the request). The situation in Libya was referred to the ICC by the UN Security Council under Security Council resolution 1970. The three persons who were the  subject of this request were alleged by the Prosecutor to be responsible for crimes against humanity within the jurisdiction of the ICC Statute. As was widely expected, the Pre-Trial Chamber has issued warrants of arrest for all 3 accused persons. In its decision, which was based on Article 58 of the ICC Statute, the Chamber found that there are “reasonable grounds to believe” that all three are responsible for murder and persecution as crimes against humanity under Articles 7(1)(a) & 7(1)(h) of the Statute. Contrary to the request of the Prosecutor that the request for surrender should be directed solely to Libya, the Chamber decided that the request for surrender should be addressed to

“to the competent Libyan authorities in accordance with rule 176(2) of the Rules and to (i) all States Parties to the Statute; (ii) all of Libya’s neighboring States; and to (iii) the United Nations Security Council members that are not States Parties to the Statute;”

One pleasing point to note is that the Pre-Trial Chamber has dealt with this request pretty quickly. The Prosecutor’s request was made on May 16 (see previous post) and a decision has been made within 6 weeks. This contrasts very favourably with the 8 months that it took for the ICC to make an initial decision on the arrest warrant for Sudanese President Omar Al Bashir. Given that these proceedings are ex parte (i.e without defence representation) and the Chamber appears to rely almost exclusively on material submitted by the Prosecution there is no reason for a delay in the decision.

(more…)

 In the past couple of days, Germany and Canada have joined the group of countries that have declared that they consider the National Transitional Council (NTC) in to be the “legitimate representative” of the Libyan people. But what exactly does this mean? According to the BBC, the group of countries extending this recognition includes France, the UK, Italy, Spain, Germany, the UAE, Qatar, Jordan, Gambia, Senegal and Australia. Russia and the United States have had meetings with the NTC and have also made similar declarations about the illegitimacy of the Gaddafi regime and about the legitimacy of the NTC (see previous post by Stefan Talmon on the US position in March). What are the legal implications, if any, of these statements by different countries? One key question with all of these developments is whether they mean that the countries extending this form of recognition consider the NTC as the government of Libya. Secondly, if they do regard them as the government of Libya what are the international law implications of such recognition?

In a previous post, my colleague Stefan Talmon explained that declarations that the Gaddafi regime is illegitimate does not mean that that regime is not (and is not considered to be) the government of Libya as a matter of international law (and in the domestic law of other countries). What about the reverse? Do declarations about the legitimacy of the NTC mean this entity is (or is considered to be) the government of Libya as a matter of law? I think the answer is that Stefan’s point also works in reverse. Declarations about the legitimacy of the NTC are primarily intended to be political and to have effect at that political level. They are not necessarily intended to be statements with legal effect. But the emphasis here is on necessarily. To the extent that what one is dealing with is the question whether the NTC is recognised as the government of Libya, what we are dealing with here is a question of intention. What do the countries extending this form of recognition intend? Do they intend to recognise the NTC as the government of Libya? In addition to these questions of recognition, there is also the question whether under international law recognition matters. Or to put it differently, is the question of which entity is the government determined or affected by who is recognised by others as the government of Libya?

Has there been a Reversal of the Policy of Not Recognising Governments?

One of interesting things here is that many of the countries declaring the NTC as the legitimate representative of the Libyan people are countries that have a policy of not recognizing governments. (more…)

Last Monday, the ICC Prosecutor requested that an International Criminal Court (ICC) Pre-Trial Chamber issue warrants for the arrest of Libyan leader Muammar Gaddafi, his eldest son Saif Al-Islam Gaddafi and Abdullah Al‐Senussi who is head of military intelligence in Libya (and Gaddafi’ brother in law). All three are accused by the Prosecutor of commiting crimes against humanity in Libya. Libya is not a party to the ICC statute  and the situation in Libya was referred to the ICC by the United Nations Security Council in Resolution 1970 .

There are a few interesting thing to note about the request. First of all, there are, of course, similarities with the Bashir arrest warrant. But there are also differences. In both cases the head of State of a non-party to the Rome Statute is subject to an arrest warrant after a Security Council referral. As we have noted on this blog in many previous posts (search for ‘Bashir’ on the right), the fact that a head of State is indicted raises issues of the immunity. The issue is not straight forward but I have argued that the effect of the Security Council referral is that Sudan (now read Libya) is to be treated as bound by the Rome Statute with the effect that Article 27 which removes international law immunities for parties has the same effect for that State. However, I have also criticised the Judges of the ICC for not addressing the immunity question. In the Gaddafi case, at least at this stage, the international law immunity issue does not yet arise, or at least does not arise in the same way. (more…)

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

In this post I analyse the legal basis for the current use of force by the UN and France in Côte d’Ivoire, examining how that use of force impacts the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law. In particular, I want to discuss the scope of the authorizations by the UN Security Council to use force, comparing the situation in Côte d’Ivoire with the on-going situation in Libya. The similarity between the two cases is more obvious than has been observed, as in both cases the UN has authorized the use of force in order to protect civilians, and in both cases those authorised by the Security Council to use force have directed that force against one side in an ongoing civil war, including targeting buildings belonging to the leader of that side who claims to be head of State (Col. Gaddafi & Laurent Gbagbo, see here and here). In both cases, questions have arisen as to the scope of the mandate and to whether recent uses of force overstep that mandate (see here with regard to Côte d’Ivoire).

I. The History of the Conflict in Côte d’Ivoire

Côte d’Ivoire has been in a state of turmoil since an attempted coup led to the country being split into southern areas, controlled by the government, and northern areas, controlled by rebels, in 2002. At the time, France used force in Côte d’Ivoire, allegedly to protect its nationals in the country, but was accused by both the government and the insurgents as taking sides (BBC). An eventual cease-fire in 2003 proved to be fragile, with the rebels refusing to disarm, and the French intervening in response to government attacks on French troops stationed in Côte d’Ivoire in 2004. ECOWAS, AU, and UN efforts facilitated an agreement between the factions, and elections were scheduled to take place in 2005 (see SCRs 1464 [2003] and 1479 [2003]). These kept being postponed due to the precarious security, but were finally held in November 2010.

Ouattara, Gbagbo’s rival, won the very close election, the results of which were certified by the UN (see SCR 1765 [2007] para 6), and accepted by the EU, the AU, ECOWAS, and most States that cared to form an opinion (with the notable exception of Angola and Lebanon). However, Gbagbo refused to accept defeat (see for further background Jean d’Aspremont’s excellent post). In the aftermath of the election, both leaders were inaugurated in separate ceremonies, and claimed to be the President of Côte d’Ivoire. Since there seemed to be no forthcoming solution in the impasse, the AU gave Gbagbo an ultimatum, inviting him to hand over power to Ouattara by 24 March, while the EU, the US, and ECOWAS imposed sanctions on Côte d’Ivoire, a move welcomed by the UN Security Council (see SCR 1962 [2010] preamble). When the ultimatum expired with Gbagbo still refusing to leave, pro-Ouattara forces marched from their strongholds in the north towards Abidjan to seize power by force. They are now in Abidjan, having taken over most of the rest of the country, and are laying siege to the Presidential compound, where Gbagbo has taken refuge. (more…)