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Can Gaddafi invoke self-defence against NATO; have NATO leaders committed the crime of aggression?

Published on July 6, 2011        Author: 

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. Read the rest of this entry…

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