Photo: UN Photo/Devra Berkowitz
Since self-titled Colonel Muammar Qaddafi came to power in Libya in a coup d’état in 1969, the country has had an uneven record of conflict and co-operation with the international community. In 1972 the United States accused Qaddafi of sponsoring terrorism and withdrew its Ambassador from Tripoli. After an attack on the US Embassy in December 1979, allegedly by a state-supported mob, most of the Embassy staff were withdrawn and Libya was designated officially as a state sponsor of terrorism. Incidents between the US and Libyan jets, exchanging fire in the Gulf of Sidra in December 1981, led the US Government to prohibit imports of Libyan crude oil and to strengthen the control on US goods exported to Libya. In March 1984 the US stopped supplies to the Ras Lanuf petrochemical complex while in April 1985 all bilateral trade financing was prohibited. In January 1986 the US adopted additional economic sanctions, banning direct import and export, commercial contracts and travel-related activities, as well as freezing the Libyan Government’s assets in the US. Later that year, in April, Libya exploded a bomb in a nightclub in Berlin, killing two American soldiers. The US responded with an aerial bombing of Tripoli, killing civilians, including Qaddafi’s adopted 15-month old daughter. On 20 November 1986, the attack was condemned in United Nations General Assembly resolution A/41/38.
Libya’s relationship with the West took a turn for the worse when on 21 December 1988, Pan Am Flight 103 exploded over the Scottish town of Lockerbie, killing 270 people. The investigation found that Libyan officials were involved in the bombing. Some observers have argued that this action represents Qaddafi’s retaliation for the 1986 bombing of Tripoli. In December 1991 the US, UK and France filed official UN documents (S/23306 – S/23317) and requested the following from Libya: accept official responsibility for the bombing; disclose all information and allow full access to all witnesses, documents, and other evidence; and, pay compensations to the victims. Libya first denied involvement and refused to hand over the suspects. After the European Community threatened to impose sanctions, Libya announced that the accused were taken into custody and that the matter would be investigated under the 1971 Montreal Convention on Suppression of Unlawful Acts Against the Safety of Civilian Aviation.
On 21 January 1992, the UN Security Council (SC) adopted Resolution 731 urging Libya to immediately provide a full and effective response to the extradition requests and to contribute to the elimination of international terrorism. Libya declined and referred to the Montreal Convention and to its own Constitution, which disallows extradition of nationals in the absence of an extradition treaty. Subsequently on 3 March 1992, Libya approached the International Court of Justice (ICJ), claiming violations of its rights under the Montreal Convention, and requesting provisional measures of protection (under Art. 41 of the ICJ Statute). This created a precedent since never before had the ICJ engaged in what can be called a “judicial review” — that is, a deliberation on the legality of SC decisions.
However, the US and the UK did not wait for the ICJ’s opinion. Rather, on 31 March 1992, they pushed the SC to determine Libya’s failure to comply with the extradition requests and other provisions in SCR 731, and to adopt SCR 748, imposing the following sanctions: (1) an aviation ban on all flights to and from Libya and closing of Libyan Airlines offices; (2) an arms embargo; (3) reduction of diplomatic personnel; and, (4) a travel ban abroad for certain Libyan officials.
In June 1992 Libya proposed that the suspects be tried in a neutral court, monitored by either the Arab League or the UN. The US and the UK regarded this as buying time and adopted SCR 883 expanding the sanctions with: (1) an asset freeze on Libyan government funds abroad; (2) a ban on imports of oil-transporting equipment; and, (3) further reduction of diplomatic personnel. Interestingly, an oil embargo was never imposed given that some states were heavily dependent upon Libyan oil. The sanctions had a narrow goal to bring the two Libyan suspects to trial, and a broader goal to deter Libya from future terrorist acts. The UK was also seeking to limit Libya’s support for the Irish Republican Army (IRA). It was the politics of combating terrorism globally, rather than the demand for justice for the Lockerbie victims that led the US and the UK into enhancing the sanctions regime. Libya’s offer to cooperate with a trial of the suspects in a neutral country was ignored. SCR 883 was probably the highest point of confrontation and it was not unlikely that the hidden agenda of the resolution was to see Qaddafi removed from power.
Libya’s relationship with the West began to change in 1994 when the country offered to disclose its relationship with the IRA and extradite the Lockerbie suspects to The Hague. The US and the UK, however, were still not prepared to make concessions and insisted on bringing the suspects to one of their jurisdictions.
Finally in 1998 the US and the UK agreed to hold the Lockerbie trial in The Hague under Scottish law. SCR 1192 (August 1998) suspended the sanctions upon the delivery of the suspects to The Hague, which happened on 5 April 1999. However, the US insisted that Libya pay full compensation to the victims before lifting the sanctions. Libya agreed to pay, but only after the court pronounced the guilt of the suspects. On 31 January 2001, the trial convicted one of the suspects, Abdelbaset Mohamed Ali Al-Megrahi, but found insufficient evidence to convict the second suspect Laheem Fhima. SCR 748 sanctions were finally lifted in September 2003, after Libya fulfilled all remaining requirements: renunciation of terrorism, acceptance of responsibility for the actions of its officials, and payment of compensation. In August 2009 Al-Megrahi, the convicted Lockerbie bomber, after serving 8 out of 27 years in Greenock, Scotland, was released by the Scottish Interior Minister McAskill on compassionate grounds. He was diagnosed with terminal prostate cancer and a team of doctors at that time opined that he had three months to live. Al-Megrahi returned to Tripoli, officially greeted by Qaddafi’s son Saif. Relatives of the Lockerbie victims protested the release, as did US President Barack Obama. Al-Megrahi is still alive in Libya, although he is often under intensive medical care.
In mid-February 2011, following popular revolts in the neighboring countries of Tunisia and Egypt, the Libyan people started peaceful protests against the Qaddafi regime. As a response, the regime engaged heavy military force against protesters, causing hundreds of civilian casualties within only a few days. Various regional international organizations including the Arab League, the African Union and the Organization of the Islamic Conference (OIC) condemned the regime for using military force, including aircraft, to attack demonstrators. At the UN, Secretary General Ban Ki-moon phoned Qaddafi urging him to exercise restraint and impose a ceasefire. So too did the UN High Commissioner for Human Rights, Navi Pillay. The Human Rights Council also condemned Libya’s use of force against civilians while the UN General Assembly expelled Libya from its membership in the Human Rights Council.
On 26 February 2011, the SC put its overwhelming power behind the protection of the Libyan people from the murderous regime. SCR 1970, adopted through an unanimous 15-0 vote, condemned the use of force against civilians, deplored the gross systematic violations of human rights, and expressed deep concerns at the deaths of civilians and the incitement to hostility by the Libyan government. The resolution considered that the widespread and systematic attacks against the civilian population may amount to crimes against humanity and, accordingly, recalled the Libyan authorities‘ responsibility to protect its population. SCR 1970, acting under Chapter VII of the UN Charter, sent a strong and clear message that the world body is determined to act swiftly and use all its powers to restore international peace and security, in this case threatened by Libya, and to save the life of civilians at risk. This fast and determined decision of the SC – a body often accused of being obsolete – represents a triumph of the concept Responsibility to Protect (R2P), an emerging norm adopted at the 2005 World Summit.
SCR 1970, in its substantive parts, demands an immediate end of violence, urges Libyan authorities to act with utmost restraint, respect human rights, ensure safety of all foreign nationals, allow safe passage of humanitarian and medical supplies, and lift media restrictions. But more than just the usual pledges of concern at human rights abuses, the resolution also imposed the following practical actions:
(1) Referral of the situation to the International Criminal Court (ICC). This is an impressive move allowing investigation and prosecution of crimes against humanity in an ICC non-member state. This is the second time, after Sudan (in relation to Darfur), when the SC has made use of this option under Article 12 of the Rome Statute for the ICC.
(2) Arms embargo. This is, usually, the first Chapter VII enforcement measure upon determination of a threat to the peace. The embargo is strengthened with a call upon States to inspect all cargo, that may – upon reasonable ground to believe – contain prohibited items.
(3) Travel ban. A innovative measure or “smart sanction” targeted at designated government officials, to avoid negative humanitarian effects on the rest of the population. Annex I of the Resolution lists 16 Libyan officials against whom the ban applies, among them Qaddafi himself, his family members, military leaders, involved in violence.
(4) Asset freeze. Another “smart sanction” aimed at designated individuals. Annex II of the Resolution lists 6 people: Qaddafi, four of his sons and his daughter.
On 17 March 2011, the Security Council adopted a new resolution SCR 1973, this time with a 10-0 vote and five abstentions by Brazil, China, Germany, India and the Russian Federation. This vote was much more problematic; among the abstentions were two permanent members and three strong candidates for permanent membership. The five abstaining countries voiced their preference to seek a peaceful solution, even though to begin with, SCR 1973 maintains all peaceful efforts in Paragraphs 1, 2 and 3. In addition, it would be good to see the abstaining countries engaging actively and not just talking about peaceful efforts such as diplomacy, mediation, etc.
Some of the abstaining countries said the resolution does not make clear by whom the measures will be implemented and what the limits of engagement are. In fact, the text of the resolution addresses both queries: it authorizes “any state, notifying and in co-operation with the SG, to undertake all necessary measures”, thereby giving the resolution sharper teeth. The limits of engagement also exist in Paragraph 4, which excludes a foreign occupation force forming on any part of Libyan territory – a clear limit of engagement. The Lebanese delegation stated, when supporting the resolution, that no inch of Libyan territory will be occupied. The No Fly Zone (Paragraph 5) also has clear limitations since it does not apply to flights delivering medical supplies and other humanitarian assistance, food, humanitarian personnel and evacuating foreign nationals. The objective of the resolution is clearly to protect civilians, not to change the regime – another limit of engagement.
One of the abstaining members reiterated its previous call for an immediate cease-fire, which could have saved many lives. However, it is doubtful whether an earlier resolution calling for a ceasefire would have changed much. In fact, the UN and regional organizations had previously made several calls for a ceasefire, but all to no avail. In fact, signs of restraint and announcement of a ceasefire came from Qaddafi exactly after SCR 1973 was adopted. Another member abstaining from SCR 1973 expressed concern about unintended consequences including the possibility of large loss of life, protracted conflict and the spreading of hostilities in the wider region. One may confidently say that a large loss of life would have happened if there was no SCR 1973.
SCR 1973, in contrast with SCR 1970, already talks in the language of a civil war, or “non-international armed conflict” (a legal term used in the Geneva Conventions). SCR 1973 addresses the “parties to armed conflict” – no longer just the Government, but also the rebels – asking them to “take all feasible steps to ensure the protection of civilians”. This is an important evolution since SCR 1970 referred not only to peaceful demonstrations repressed by the government, but also to riots and demonstrations in peacetime which are not covered by international humanitarian law (IHL). Only human rights laws apply in times of peace. If the situation is determined, as SCR 1973 does, to be a non-international armed conflicts, then the additional jurisdiction of the laws and customs of war comes to life, thereby adding an additional demand for compliance.
SCR 1973 repeats SCR 1970’s reference that attacks against civilians may amount to crimes against humanity, but it does not explicitly mention R2P, at least in the same way as SCR 1970 affords a separate paragraph for R2P. States may have different interpretations of the concept of R2P by disagreeing about the circumstances in which it is applicable and what type of obligations it involves. However, states cannot defy their clear legal obligations arising from IHL, a major one being the protection of civilians in armed conflict. Accordingly, in its preamble, SCR 1973 attempts to build international consensus for what follows in its substantive part – a no-fly zone and authorization to use “all necessary measures”. It refers to the latest communiques of the OIC and the African Union and most importantly to the Arab League’s call to impose a no-fly zone and safe areas to protect people. The consideration that the situation in Libya is now a civil war and not just some peacetime riots, and the fact that a no-fly zone was requested by the Arab League, effectively prepares the ground for the internationalization of the armed conflict and adds stronger legitimacy to the SC decision to authorize military measures.
The substantive part of SCR 1973, in the same way as SCR 1970, commences with an appeal for a cease-fire and peaceful solution through dialogue. It demands Libya comply with its obligations under international law, take all measures to protect civilians and ensure rapid and unimpeded passage of humanitarian assistance. Then Paragraphs 4 and 5 under the sub-title ”Protection of civilians” contains authorization of the use of force through use of the well-known language “to take all necessary measures”. This same language has been used by the SC when authorizing the liberation of Kuwait from Iraq in SCR 678 (1990). The difference here is that the SC now authorizes use of force within the territory of a single state, while excluding a foreign occupation of any form on any part of Libyan territory. This timely and decisive action in a situation when a state has manifestly failed to protected its population represents a triumph of the third pillar of R2P.
The rest of SCR 1973 strengthens measures already adopted with SCR 1970. Para 13 – enforcement of the arms embargo – interestingly adds a third authorization to use force, complementing the previous two in Paragraphs 4 and 5. After calling upon all flagged state vessels and aircraft to co-operate with the inspections of the arms embargo, the SC also authorizes Member States “to use all necessary measures commensurate with the specific circumstances to carry out such inspections”. Similar precedents can be found in the history of SC enforcement of sanctions in Southern Rhodesia in 1966 (SCR 221), Iraq-Kuwait in 1990 (SCR 665) and others. This additional limited authorization of use of force in SCR 1973 does not, curiously, target Libya only. It can apply against any other state (including its vessels and aircraft) that may violate the arms embargo.
Another new measure imposed with SCR 1973 is a ban on flights where states shall deny permission to Libyan aircraft to take off from, land in, or fly over their territory. Finally, the two Annexes in SCR 1973 identify individuals, to whom the travel ban and the asset freeze will apply from the two original lists of designations in SCR 1970.
Fighting the Colonel with sanctions and military force continues. Even though the SC acted in a fast and responsible manner through resolution 1973 in particular, it is still to be seen whether the objectives of the resolutions will be achieved soon. There will no doubt be further military and political developments and more SC resolutions. Qaddafi may cement his power and stay in charge for a long time. Or he can be removed by the people‘s revolution.
One debatable issue remains whether the authorization of the use of force in SCR 1973 can lead to Qaddafi’s removal from power. Qaddafi is clearly a target of the travel ban and of the asset freeze, but would an air strike, killing him, exceed the terms of SCR 1973? If all necessary measures short of occupation can be used to protect civilians (as in Paragraph 4), can one of these measures be to removal of a Colonel, in this case responsible for mass atrocities against civilians?
One can argue, that if Qaddafi is killed in combat or by an air strike, this a la guerre comme a la guerre would not be against the spirit of SCR 1973, even if no such letter exists in the text. Qaddafi could be a military target, but certainly the operation needs to take proper care of reducing collateral damage on civilians, including members of the Qaddafi family. This has not been the case to date given that the air strike on 30 April 2011, killed Qaddafi’s youngest son and his three grandchildren. The West’s fight with the colonel continues.