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Home Archive for category "Libya" (Page 4)

The ICC Prosecutor Requests an Arrest Warrant for Gaddafi: Immunity Issues and Questions about the Start of the Libyan Armed Conflict

Published on May 23, 2011        Author: 

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. Read the rest of this entry…

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The UN/French Use of Force in Abidjan: Uncertainties Regarding the Scope of UN Authorizations

Published on April 9, 2011        Author: 

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. Read the rest of this entry…

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Does SC Resolution 1973 Permit Coalition Military Support for the Libyan Rebels?

Published on March 31, 2011        Author: 

In his post of yesterday, Marko notes the debate surrounding whether the Coalition now taking military action in Libya can arm the rebels fighting in that country. This question is perhaps part of a broader question of whether the coalition can provide other military aid to the rebels, for example, by providing close air support for rebel advances into towns under the control of Col Gaddafi’s forces. As Marko notes, while the US and UK  have both denied that they have made a decision to provide arms to the rebels (see here and here), they have both argued that providing arms to the rebels would not be a breach of the arms embargo imposed by Security Council Resolution 1970. In fact media reports today indicate that President Obama has authorised covert aid to the rebels. Likewise, though there have been denials of direct support from the air for rebel operations on the ground, the media reported that rebel advances on towns like Ajdabiya (and others) was only made possible because of coalition attacks against Libya military forces defending those towns. So, is this direct support for the rebels lawful? When I was asked about the legality of providing arms to the rebels at the start of this week I was of the view that this would be contrary to the arms embargo. Having thought about it a bit more, I have changed my mind about the legality question. Politically, I don’t think it ought to be done unless we know who these people are and what their aims are. The approach that my enemy’s enemy is my friend doesn’t always turn out for the best. We need only think of the experience of arming the Afghan mujahadeen in the 1980s to know that caution is required. But others know far more than I do about whether it is a wise thing to do politically and militarily. As far as law is concerned, such assistance is not, in my view, excluded by the relevant Security Council resolutions. However, the assistance that can be given is also limited by the mandate that Security Council Resolution 1973 confers. The assistance must be directed, solely, at protection of civilians and civilian populated areas.

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Can the Allies Lawfully Arm the Libyan Rebels?

Published on March 30, 2011        Author: 

My friend Claus Kress yesterday brought to my attention a most pertinent legal issue: In Resolution 1970, the UN Security Council imposed an arms embargo on Lybia. The embargo was reaffirmed and strengthened in op. paras. 13-16 of Resolution 1973. The embargo appears to be comprehensive; no explicit exception is made for the possible distribution of arms to the rebels. However, both President Obama and Prime Minister Cameron have deliberately left open the possibility of supplying arms to the rebels, even though they have not done so for now. What then is the legal argument in support of supplying the rebels with armaments? Yesterday Secretary Clinton remarked that “It is our interpretation that [UN Security Council resolution] 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” She was echoed today by the PM in Parliament, who said that “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.” This position was confirmed by the UK foreign secretary.

This argument raises serious questions of interpretation and of the deliberate ambiguity in the drafting of UNSC resolutions. On the one hand, there are specific provisions imposing an arms embargo without exceptions. On the other, a broad phrase such as ‘all necessary measures’ is taken as overriding the embargo, thus allowing foreign powers to favour one of the parties to the armed conflict. I am not saying that this argument is necessarily wrong, but its correctness is also far from obvious. It is of course tantamount to saying that the provision of arms to organized armed groups can be a method of protecting civilians or civilian populated areas; it also has the Council taking sides in a conflict, without saying so explicitly. I am not aware of similar arguments being made so forcefully by states with regard to UNSC arms embargos – though of course recall the embargo imposed on Bosnia, and the Bosnian argument that it was void as it disabled the Bosnian Muslims to defend themselves from genocide, in conflict with a norm of jus cogens.

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More Thoughts on the Scope of UNSCR 1973

Published on March 28, 2011        Author: 

Chimène Keitner is Associate Professor of Law at the UC Hastings College of the Law.

The American Society of International Law’s 105th Annual Meeting just wrapped up in Washington, DC. As one of the meeting’s co-chairs, I am tremendously grateful to the speakers for their thoughful and timely remarks. I also appreciate the editors’ invitation to contribute some of my thoughts on the evolving situation in Libya to this forum.

Last week, Dapo offered an assessment of the legality of targeting Muammar Gaddafi under the terms of U.N. Security Council Resolution 1973. I would like to reflect on another aspect of that resolution that came up in the comments on Dapo’s post, namely, what the resolution means when it authorizes member states to take all necessary measures “to protect civilians and civilian populated areas under threat of attack.” Dapo’s view of the resolution as a whole is that it “it is really be about stopping Gaddafi’s forces from winning the civil war in Libya.” I tend to agree with this assessment, which carries potentially momentous implications for a system that, as Dapo indicates, was not originally designed to deal with internal conflicts.

Much of the current debate has focused on whether or not the coalition in fact has the ultimate goal of regime change. It certainly could be said that some of the principals “doth protest too much” in disavowing such an aim. Although the Obama administration’s rhetoric of democracy promotion is more restrained than that of its predecessor, Robert Shrum recently opined in The Week that the situation in Libya represents precisely the convergence of American values and interests that warrants overthrowing Gaddafi, and that the current administration knows this. 

Presumably, under the Security Council resolution, the “civilian populated areas” that member states are authorized to protect may contain both civilians and those participating directly in hostilities against the government (i.e., rebel strongholds such as Benghazi). Whether the conflict in Libya is characterized as a civil war, a democratic uprising, or both, the tension between principles of external intervention and internal self-determination seems manifest.

This tension was even more evident during the U.S.-led invasion of Iraq, which is perhaps one reason that Resolution 1973 expressly excludes “a foreign occupation force of any form on any part of Libyan territory” from the ambit of authorized measures. I explore this tension at greater length in my book on The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation Building, and I deal explicitly with the U.S. invasion of Iraq in Chapter Six. One can only hope that the coalition’s current efforts in Libya will prove less counterproductive than the earlier intervention in Iraq.

As Hamas’s 2005 victory in Gaza shows, the outcomes of popular elections are not always in the perceived national security interest of the United States or its allies. At the same time, the support for dictators that characterized U.S. foreign policy during the Cold War is morally untenable and, at least in its overt forms, decreasingly politically feasible. When, as in Libya, the object of protecting civilians appears to require removing an intransigent leader, simply eliminating foreign military occupation from the toolbox will not avoid a quagmire.

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What does UN Security Council Resolution 1973 permit?

Published on March 23, 2011        Author: 

I spent much of yesterday conducting interviews with the media about the situation in Libya. One of the questions I was repeatedly asked concerned the scope of the UN Security Council Resolution 1973 which authorises the use of force in Libya.  How far does the resolution permit the coalition now acting in Libya to go? What are the objectives of the coalition military action? Does it permit the targeting of Colonel Gaddafi? The objectives set out by the resolution seem to me to broader than what is commonly thought. Para. 4 which authorises the use of all necessary means (short of an occupation force) is not just about protecting civilians but also, importantly, about protecting civilian populated areas under threat of attack. In other words, that paragraph authorises the use of force to prevent attacks on towns and cities, whether those attacks are directed at civilians or even at what would be legitimate military targets. My reading of the resolution is that it is really be about stopping Gaddafi’s forces from winning the civil war in Libya. So the resolution seems to be more than what the advocates of the responsibility to protect doctrine would suggest. This is not just about stopping international crimes it is about the restoration of peace, something closer to the original design of the Council (except that it is an internal conflict, which was not in the original design). What sort of peace though? Read the rest of this entry…

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Security Council Passes Resolution 1973, Authorizing Use of Force Against Libya

Published on March 18, 2011        Author: 

The full text of the resolution is available here. The key provision is op. para. 4:

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, 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, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council

Note that this does not merely authorize a no-fly zone; use of force is generally authorized for the purpose of protecting civilians and civilian populated areas, so long as there is no ‘foreign occupation force of any form.’ This us a very broad authorization; the formulation does not necessarily exclude a limited use of ground forces, so long as that force is not of such intensity and duration that it constitutes an occupation. Over at Lawfare, Bobby Chesney has more analysis. The intervention against Lybia is set to commence shortly.

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What Happens to the Gaddafis’ Fortune? Could Frozen Assets be used to Satisfy Claims for Reparation?

Published on March 11, 2011        Author: 

Dr Conor McCarthy is a visiting fellow, from April of this year, at the British Institute of International and Comparative Law. He is author of Reparations and Victim Support in the International Criminal Court, a monograph to be published by Cambridge University Press in early 2012.

The imposition of an assets freeze is now well established in the practice of the Security Council as part of the range of measures at its disposal to maintain or restore international peace and security. It was not surprising therefore that as part of the range of measures taken by the Security Council to address the current situation in Libya, an asset freeze was imposed on various individuals occupying senior positions in the Libyan government and in its security forces as well as on persons closely connected with the ruling regime. In line with previous resolutions in which an asset freeze has been imposed the range of assets frozen by Resolution 1970 (2011) is enormously broad. Paragraph 19 of the resolution requires member states of the United Nations to freeze “all financial assets and economic resources … owned or controlled, directly or indirectly…” by the individuals identified in Annex II of the resolution.

Given the seniority of the individuals in question and the power and influence which they appear to wield within Libya, many states have interpreted the scope of assets “owned or controlled” for the purposes of Resolution 1970 to include a vast swathe of the Libyan state’s assets held abroad. The UK government, for instance, is reported to have frozen around $2bn of assets held in the UK by the Libyan Investment Fund (see here and here). For its part, the United States has frozen around $30bn of assets, including those held by Libya’s sovereign wealth fund and the Central Bank of Libya. Assets owned or controlled by numerous other individuals and entities have also been frozen in the member states of the European Union pursuant to Council Regulation (EU) No 204/2011 adopted on 2 March 2011 (see here and here). Billions more are thought to have been frozen in other jurisdictions throughout the world.

With such an enormous body of wealth frozen in Europe, the United States and elsewhere, what is the position of individuals who have been injured in the violence, past and present, for which the Libyan state or individuals within its senior leadership are alleged to bear responsibility? Is it possible that any of the funds now frozen could be used to satisfy a claim for reparation in respect of such responsibility, assuming it could be established?

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The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law

Published on March 3, 2011        Author: 

Stefan Talmon is Professor of Public International Law at the University of Oxford.

The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’

Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference

‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’

While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.

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Filed under: EJIL Analysis, Government, Libya
 

Has the United Kingdom De-Recognized Colonel Qadhafi as Head of State of Libya?

Published on February 28, 2011        Author: 

On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Muammar Qadhafi and his family (see here and here). Earlier that day, the British Foreign Secretary, William Hague, told BBC1`s Andrew Marr Show:

‘[…] the people of Libya have risen up against Colonel Gaddafi. We have here a country descending in to civil war with atrocious scenes of killing of protestors and a Government actually making war on its own people so, of course, it is time for Colonel Gaddafi to go. That is the best hope for Libya and last night I signed a directive revoking his diplomatic immunity in the United Kingdom but also the diplomatic immunity of his sons, his family, his household so it`s very clear where we stand on, on his status as a head of state.’

William Hague`s statement seems to give the impression that the United Kingdom no longer recognizes Colonel Gadhafi as ‘head of State’, despite him still being listed as such on the Foreign and Commonwealth Office`s website ‘Country Profile: Libya’. This also seems to be confirmed by the fact that an operation by British special forces the night before which rescued some 150 oil workers from remote desert camps in Libya was carried out without the ‘official permission’ of the Qadhafi Government.

The revocation of personal immunity and, even more so, the withdrawal of recognition from a serving head of State who continues to control substantial parts of the foreign State`s territory would seem an unprecedented move in British State practice. Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation. Withdrawal of recognition takes place either by express notification or public statement, or implicitly through the recognition of a new de jure government. The British Government withdrew its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938, the Polish Government of Unity and National Defence on 5 July 1945, the Nationalist Government of China on 6 January 1950, and the Government of Democratic Kampuchea on 6 December 1979.

Rather than withdrawing head of State recognition from Colonel Qadhafi and depriving him of diplomatic or personal immunity in the United Kingdom, the Direction signed by Foreign Secretary William Hague has, in fact, a much more limited effect.

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Filed under: EJIL Analysis, Government, Libya