Peace Keeping and Human Rights in the Libyan Contex

Theme 8: Libya Peacekeeping and Human Rights

Fall Semester 2013

Professor Dr. Eibe Riedel, LL.B. (London), A.K.C.

Felicity Mashuro

1430893

Felicity Mashuro Theme8: Libya

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Table of Contents

1.0 Abstract ......................................................................................... 3

2.0 Introduction ................................................................................... 4

3.0 Factual Analysis .............................................................................. 4

4.0 United Nations Resolution 1970 ........................................................... 6

5.0 United Nations Resolution 1973 ........................................................... 7

6.0 Responsibility to Protect .................................................................... 8 6.1 Arguments for Illegality ................................................................ 10 6.2 Arguments for Legality ................................................................. 12

7.0 The Intervention in Libya ................................................................. 15

8.0 Conclusion ................................................................................... 18

9.0 Reference List ............................................................................... 19

Felicity Mashuro Theme 8: Libya

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“In international law there are only a few issues as complicated as those concerning the

legality of interventions” T. J. Lawrence:

1.0 Abstract The Libyan intervention is a very important moment in assessing the applicability, credibility

and evolution of the relationship between peacekeeping and human rights under the

Responsibility to Protect principle. This paper will firstly discuss the unique national history

that led to a series of unprecedented events in Libya so as to create a vivid picture of what led

to the United Nations’ first mandate allowing the use of all necessary force in the protection

of civilians. It will then discuss Resolution 1970 and Resolution 1973, focusing on their

implementation and consequences. Furthermore, the legality of the Security Council’s use of

force both generally and in application to the Libyan intervention will be debated in terms of

international law to conclude that the use of force’s legality depends on how one approach

and constructs current international law. The purpose of this paper is to explore arguments

supporting legality as well illegality of the use of force, to reach a conclusion on what that

means for the future of the interpretation of international law. The paper then concludes,

purporting that the Libyan intervention and the Security Council’s decision to allow the use of

force was, in fact, illegal because it violated Chapter VII of the UN Charter. Though the

Libyan intervention was a first step in the exercise of the Responsibility to Protect principle, it

is not a successful one for it shows the existence of a double standard in its application, as

well as the doctrine’s vulnerability to misuse.


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Peacekeeping and Human Rights: Libya Context

2.0 Introduction

As Qadhafi spoke of his hatred towards the rebels and his intentions to eradicate them all, the

international community was oblivious to importance of this moment in the course of

international law. Qadhafi’s words were eerily similar to those heard in Rwanda back in 1994

and the nation was on the brink of a civil war. The international community responded

promptly firstly with Resolution 1970, then Resolution 1973. The second was an

unprecedented course of action, with the United Nations (UN) sanctioning the “use of all

necessary force” to protect Libyan civilians (Responsibility to Protect (R2P)). The Libyan

intervention is a very important moment in assessing the applicability and credibility of the

R2P principle. To do that, this paper will discuss the principle, its legality and legitimacy in

Libya as well as what the intervention means for the future of humanitarian intervention and

R2P.

3.0 Factual Analysis

In February 2011, mass demonstrations on the streets began, with demonstrators demanding

democratic reform and the ousting of Qadhafi’s regime.1 However, the culmination of issues

that led to the revolution in Libya is complex. To better understand these developments within

the borders of Libya, a context of the broader human rights issues, such as economic

disparities, continuous human rights violations and sectarian violence is needed.2

Inspired by a wave of successful revolutions in Egypt and Tunisia, Libya’s marginalised

groups rose up and brought their rebellion to the streets and on February 22nd, Colonel

Muammar Qadhafi declared to his supporters, “come out of your homes, attack [the

1 Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya A/HRC/17/44. 2 UK Border Agency. Libya Country of Information Report (7 March 2012). Retrieved from http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/coi/libya/.


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opposition] in their dens.”3 This rebellion against the status quo had been brewing for years

fueled by the repression of rights and a multitude of human rights abuses; a dangerous

concoction that saw to the break down of the rule of law.

The Human Rights Committee report in 20114 raised serious concerns about a gamut of

human rights concerns in Libya. It reported enforced disappearances, extrajudicial killings

and arbitrary executions. Moreover, the Commission noted the systematic use of torture as

well as cruel, inhumane or degrading treatment or punishment.5 It was also found that

freedom of association and freedom of speech had largely been retrenched, prohibiting the

establishment of political parties and political meetings.6

It was this meek backdrop of a disintegrated rule of law, which inexorably led to demand for

democracy by Libya’s people and the events that eventually led to UN intervention. The first

mass protests in Benghazi were sparked by the abduction and murder of a well-known lawyer

and human rights activists Fathi Terbil. This inspired further protests in Al-Bayda, Al-Quba,

Darnah, Tobruk, and Benghazi. Initially the government forces used teargas and batons but

then later opened fire with live ammunition on protestors. 7

These extreme measures further inspired a stronger revolutionary movement, with protestors

taking more offensive action, attacking government buildings and taking over key premises.

By February 20, the media was reporting that Libyan authorities were using fighter jets and

live ammunition against unarmed protestors in Tripoli, with active fighting occurring in

3 The Economist. 399.8734. (May 21, 2011): 67-68. 4 Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya A/HRC/17/44. 5 Concluding observations of the Human Rights Committee, Libyan Arab Jamahiriya CCPR’C/LBY/CO/4, para 14. 6 Law No. 71/1972, art 2 and 3. 7 Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya A/HRC/17/44.


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scattered parts of the country.8 It was then on February 22 that Colonel Muammar Qadhafi

announced on Libya National Television that he would lead “millions to purge Libya, inch by

inch, house by house, household by household, alley by alley, and individual by individual

until I purify this land [of cockroaches (rebels)].”9 The Qadhafi regime was declaring war on

the uprising, threatening them with extinction. The number of protesters continued to climb to

the thousands and the Qadhafi forces continued to overpower the rebellion. 10 The

international community responded with Resolutions 1970 and 1973.

4.0 United Nations Resolution 1970

As Qadhafi’s words were heard all around the word, the international community was faced

with an imminent threat of large-scale civilian casualties. His message was clear. It was then

that the Human Rights Council declared a fact-finding mission on February 25 to analyze the

events unfolding in Libya. A collaboration of regional organisations and UN bodies moved

with unprecedented expediency. The beginnings of the first application of R2P were in

motion. Initially, a series of condemnatory statements were issued to Libya from the Security

Council of the League of Arab States, the Secretary General of the Organisation of Islamic

Cooperation and the Peace and Security Council of the African Union for Libya to enter talks

to arrange a ceasefire and come to a solution.11 The Security Council adopted Resolution S-

15/1, which called for Libya to meet its international obligations in the responsibility to

8 BBC News, “Libya protests: Gaddafi embattled by opposition gains”, 24 February 2011, available from http://www.bbc.co.uk/news/world/africa-12564104. 9 Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya A/HRC/17/44. 10 Zifcak, S. (2012) The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2. 11 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2.


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protect its population and also called for Libya’s expulsion from the Security Council.12 The

condemnation continued, with the Arab League suspending Libya’s membership.13

The international community’s stance on Libya was clear, and so the Security Council

reached a unanimous decision to pass Resolution 1970. 14 The resolution “condemned

widespread and systematic attacks on civilians and demanded an end to state violence.”15 It

also chastised Libya’s continuous human rights violations and demanded an immediate end to

hostilities, safe passage for humanitarian and medical workers, an arms embargo, a travel ban

on Libyan administration and a freeze on overseas assets.16 The resolution also called for

review of Libya’s progress within 120 days. The Libyan government responded on March 2,

denying all allegations and requesting confirmation of all claims stated in the resolution.

However, the killings and tortures continued and on March 17, Resolution 1973 was passed.

5.0 United Nations Resolution 1973

The passing of Resolution 1973 represents a turning point in both the R2P concept and

international law on a broader spectrum. Many UN Resolutions have come before it, but

Resolution 1973, is the first example of the UN putting forward R2P as a basis for military

intervention.17 The resolution further deplored and condemned the human rights violations of

the Libya authorities, authorised a no-fly zone and ordered strict implementation of an arms

embargo, but more importantly it sanctioned the taking of “all necessary measures to protect

12 Resolution S-15/1, UN Doc A/HR/RES/S-15/1, para 2 and 14. 13 Williams, P. D. (2011). Briefing: The Road to humanitarian War in Libya. Global Responsibility to Protect 248, 251. 14 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2. 15 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2. 16 Williams, P. D. (2011). Briefing: The Road to humanitarian War in Libya. Global Responsibility to Protect 248, 251. 17 Domestici-Met, M.J. (2011). Protecting Libya on Behalf of the International Community. Goettingen Journal of International Law 3(3), 861-889 at 864.


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civilians and civilian populated areas under threat”.18 This call to action precluded occupying

forces on the ground, a clause that could have materialized from suspicions about the United

States’ intentions. The resolution passed, with 5 abstentions from Brazil, India, Russia, China

and Germany.19 Those who voted in favour declared the resolution to be solely based on

humanitarian considerations.20

“[Parties were] convinced that the purpose of the new resolution was essentially

humanitarian and was conducive to bringing about conditions that would lead to the

protection of civilians under attack from a regime that had lost all legitimacy”.21

Nestor Osorio, Columbian Representative

Following adoption of the resolution, bombings of Libyan government positions by NATO

forces began and the United States subsequently disarmed Libya’s integrated air defence

systems. The United States also provided intelligence information monitoring Qadhafi forces

to France and Britain, who subsequently attacked the targets with air force fighters.22 The

fighting continued, and a coalition of 14 NATO countries and 4 partner nations were

operating naval and aerial forces against Libya.23

6.0 Responsibility to Protect

The UN responses to the events in Libya were not a reaction to an imminent threat to

international peace and security, but rather a need to protect the human rights of a civilian

18 Resolution 1973 (2011). 19 Williams, I. (2011). Resolution 1973: Responsibility to Protect, Not Humanitarian Intervention in Libya. The Washington Report on Middle East Affairs 30(4) 44-45. 20 Modeme, L. E. 21 See Security Council statement of 17/03/11 accompanying Res. 1973, available on http://www.un.org/News/Press/docs/2011/sc10200.doc.htm#Resolution. 22 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2. 23 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2.


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population. This is incidentally the first requirement of the R2P doctrine, a doctrine that has

developed from the principle of humanitarian intervention. Despite the Security Council

having recently put it into practice in 2011, contention remains as to both its legality and

legitimacy.24 The doctrine’s development can be traced back to a variety of pivotal moments

in history such as the genocide in Rwanda, Darfur as well as the massacres in Srebrenica and

Kosovo. To this day, these events are viewed as dire illustrations of the consequences of the

international community’s failure to act.

Humanitarian intervention can be defined as the forcible intervention in the sphere of

sovereignty to bring an end to massive assaults on human rights.25 To understand and make a

case for its legality, two conflicting points of law must be understood. Firstly, it is generally

accepted that all the High Contracting parties (sovereign states) have an international

obligation to respect human rights. This has been widely recognised by the International

Court of Justice as an erga omnes as well as in in both international and regional human rights

conventions and treaties.26 Secondly, the UN Charter provides that all member states must

refrain from the use, or threat of, force against another sovereign state. The power to then use

force is allowable only by the Security Council as outlined in articles 24, 19 and 42, which

establish the Security Council’s obligation to maintain international peace and security.27 It is

clear, that humanitarian intervention contradicts the UN Charter however, there are those who

argue for its legality and cite state practice and international norms as evidence. In case of

Libya, a gross violation of human rights was present and so the Security Council took action.

However, the question beckons, was the humanitarian intervention legal or legitimate?

24 Modeme, L. E. (2013) The Libya Humanitarian intervention: is it lawful in international law. 25 Francioni, F. and Bakker, C. (2013) Responsibility to Protect, Humanitarian Intervention and Human Rights: Lessons from Libya to Mali. Trasworld Working Paper ISSN 2281-5252. 26 Francioni, F. and Bakker, C. (2013) Responsibility to Protect, Humanitarian Intervention and Human Rights: Lessons from Libya to Mali. Trasworld Working Paper ISSN 2281-5252. 27 Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313.


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6.1 Arguments for Illegality

The illegality of humanitarian intervention stems from the doctrine of non-

intervention. The doctrine prohibits intervention in the internal affairs of sovereign

states; something, which Modeme argues, is closely linked to the security of states

and international order.28 He asserts that it is important that states attempt to influence

each other through diplomatic means rather than through armed or coercive means.29

In addition to the customary law of non-intervention, the UN Charter’s near

constitutional status and universal adoption makes a strong case for the illegality of

humanitarian intervention for peacekeeping purposes in Article 2(4) as discussed

above. Hurd argues that nothing in the charter sanctions the use of humanitarian

intervention.30 Brownlie agrees, stating that humanitarian intervention was no longer

legally feasible after the UN charter of 1945.31 The Swedish government’s statements

in the incident of Israeli Entebbe in 1976 further substantiate this position:

“The Charter does not authorise any exception to this rule except for the

right self-defence and enforcement measures undertaken by the Council

under Chapter VII. Any formal exceptions permitting the use of force or

military intervention in order to achieve certain aims, however, laudable,

would be bound to be abused.”32

It may be argued that the Charter makes references to human rights and fundamental

rights,33 which could be seen as endorsing some form of humanitarian intervention for

peacekeeping purposes. However, Hurd argues that they are mentioned in the

28 Modeme, L. E. (2013) The Libya Humanitarian intervention: is it lawful in international law. 29 Holsti, in Modeme 30 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313. 31 Brownlie, I. (2002). International Law and the Use of Force by States’ Revisted. Chinese Journal of International law 1(1), pp 1-19. 32 Swedish representatitve at the UN Security Council, cited in Gray, International law and the Use of Force, pp 32-33. 33 UN Charter (1945), Preamble.


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preamble, and therefore arise in a non-binding context. He suggests that they do not

attach to any legal commitments and so do not make for the creation of a right to

armed intervention.34 From a literal reading of the UN Charter, military intervention

in the absence of an attack is derogation from the legal instrument.

Other supporters for the legality for peacekeeping missions to preserve human rights

source the power to intervene from a number of international treaties. For example,

the Genocide Convention (1948) states that contracting parties undertake to prevent

and punish genocide, whether in peacetime or wartime.35 Some interpret this to

include humanitarian intervention. Nevertheless, Hurd argues for a conservative and

narrow interpretation of the instrument, stating that States are bound to the measures

described within the convention.36

The treaties establishing the Organization of American States and African Union can

also be read as allowing peacekeeping missions to preserve human rights. For

example, the Constitution of the African Union incorporates a clause creating the

right of the Union to intervene in a Member State pursuant to a decision of in respect

of grave circumstances, namely: war crimes, genocide and crimes against humanity.37

Notwithstanding the legitimacy of these treaties, Article 103 of the UN Charter,

states:

“In the event of a conflict between the obligations of the Members of the

United Nations under the present Charter and their obligations under any

34 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313. 35 The Genocide Convention (1948), Art 1. 36 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313. 37 Constitution Act of the African Union 2011, Art 4(h).


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other international agreement, their obligations under the present Charter

shall prevail.” 38

Hurd,39 Boon,40 and Burchill,41 all agree the UN Charter arrogates to itself the status

of constitutional law in international relations and nullifies any contradictory law,

including treaties that create powers of humanitarian intervention.

6.2 Arguments for Legality

To the contrary, there are some views that infer that humanitarian intervention is legal

under certain circumstances. There are three distinct arguments for legality. The first

asserts that Article 2(4) has lost its force due to repeated violation by states. The

second states that the doctrine of non-intervention has become obsolete in the face of

progress towards humanism. The third argues that sovereignty is conditional upon a

state fulfilling its obligations to its people, and once they fall below the expected

standard, they are stripped of their sovereignty and non-intervention principle would

no longer apply.

In an empirical study of Article 2(4) compliance, Thomas Franck concluded, “ the

prohibition against the use of force in relations between states has been eroded

beyond recognition.”42 Michael Glennon, arrived at the same conclusion, finding that

38 Fassbender, B. Rediscovering a Forgotten Constitution: Notes on the Place of the UN Charter in the International Legal Order, in Dunoff J. L. and Trachtman, J. P. (2009) Ruling the World? Constitutionalism, International Law and Global Governance. Cambridge University Press. 39 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313. 40 Boon, K. E. (2010) Regime Conflicts and the UN Security Council: Applying the Law of Responsibility, George Washington International Law Review 42(2). 41 Burchill, R. (2010). Regional Arrangements as an Expression of Diversity in the International System. Paper presented at the American Society of International Law workshop on international organizations, Washington DC. 42 Franck, T. M. (1970) “Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States,” American Journal of International Law 64 pp. 810.


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“the upshot is that the Charter’s use-of-force regime has all but collapsed.”43 The

conceptual assertion is that a law fails as law if it is continuously violated in domestic

and international legal systems. This is known as desuetude, and in international law

is endorsed in the Vienna Convention on the Law of Treaties (1969). From this

directive, Frank and Glennon believe that Article 2(4) is subsequently erased by the

history of violation, which would make humanitarian intervention legal, as there is no

longer a doctrine of non-intervention to violate. Glennon cites the United States’

unrestrained interventions in Afghanistan, Iraq and other places following September

11, attacks.44 The NATO intervention in Kosovo can also be cited here, as it was also

illegal.45 However, the viability of this argument is highly questionable, as the

majority of states uphold the doctrine of non-intervention. Furthermore, no state has

yet used this argument to justify its use of force.46

On the other side of desuetude, is the argument for humanitarian intervention as

norms-into-law. This position maintains that the progressive development of

international law now accepts humanitarian intervention as legal. Unlike desuetude, it

does not dismiss Article 2(4) on the basis of continual violation, rather it argues that

the scope of Article 2(4) has widened as more and more states justify humanitarian

intervention for peacekeeping purposes. Hurd argues this constructive non-

compliance is signaling a shift in the international community’s attitude towards

accepting intervention as means of protecting human rights.47 There is an emergence

of humanitarian intervention with moral humanism as its flagship. Believed to have

43 Glennon, M. (2002). “The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter,” Harvard Journal of Law and Public Policy 25 pp. 539-558. 44 Glennon, M. (2002). “The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter,” Harvard Journal of Law and Public Policy 25 pp. 539-558. 45 Zajadlo, J. (2005). Legality and Legitimization of Humanitarian Intervention: New Challenges in the Age of the War on Terrorism. The American Behavioral Scientist; 48 (6), pp 635. 46 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313. 47 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313.


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been first initiated by Kofi Annan in 1998, “state frontiers . . . should no longer be

seen as watertight protection for war criminals and mass murderers.”48 This sentiment

later transpired into the increasingly favoured principle of Responsibility to Protect,

which has been implemented in various degrees in Darfur (Resolution 1706), Somalia

(Resolution 1814) and now Libya (1973).49

The third view contemplates contingent sovereignty, implying that statehood is

contingent on acceptable government behaviour. So when a government fails to abide

by certain standards, their sovereignty is stripped, thereby nullifying any claims to

non-intervention. Meaning, the particular government has lost all protections of

sovereignty and any external intervention would no longer be a transgression, nor be

deemed a use of force.50 Modeme corroborates this position, stating that in a situation

where a government commits acts of cruelty, they are deemed to have lost their

sovereign protection and their citizens are subsequently entitled to external

assistance.51 This notion dates back as early as 1992, when the UN Secretary General

said, “the time of absolute and exclusive sovereignty, however, has passed; its theory

was never matched by reality.”52 This philosophy has been built on and cited to

support a movement towards Responsibility to Protect:

“Even the strongest supporters of state sovereignty will admit today that no

state holds unlimited power to do what it wants to its own people. It is now

commonly acknowledged that sovereignty implies a dual responsibility…In

48 Kofi Annan, cited in Weiss and Thakur, Global Governance and the UN, p. 318). 49 Alex J. Bellamy, (2010). “The Responsibility to Protect—Five Years On,” Ethics & International Affairs 24(2) pp. 143-169. 50 Hurd, I. (2011). Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. Ethics & International Affairs 25(3), pp 293-313. 51 Modeme, L. E. (2013) The Libya Humanitarian intervention: is it lawful in international law. 52 UN General Assembly, “An Agenda for Peace,” Report of the Secretary-General, A/47/277, June 17, 1992.


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international human rights covenants, in UN practice, and in state practice

itself, sovereignty is now understood as embracing this dual responsibility.”53

It is these developments that showcase the significant shift in the collective response

of the international community; an evolution in process of international law, where

the formal breach of the doctrine of non-intervention for humanitarian purposes has

become legitimized. How then, do the legal principles apply in the Libya

intervention?

7.0 The Intervention in Libya

To a large degree, the international community has accepted the humanitarian intervention

sanctioned by the Security Council’s Resolution 1973 allowing the use of force as some

evidence of acceptance of R2P. However, the legality and legitimacy of this intervention has

been largely debated, and a number of academics are rather cautious to view Libya as a

pivotal moment in the development of R2P. Depending on one’s interpretation of

international law, the intervention could be either legal or illegal. However, there is a strong

argument that the Libyan peacekeeping mission to protect human rights was neither legal nor

legitimate. Firstly, it was not legal under Chapter VII of the UN Charter from which the

Security Council draws its powers and secondly, given the illegality of the mission, it follows

that intervention was carried out for means other than protecting the civilian population.

Fore mostly, though it may be argued that the Libyan intervention was legal because the

Security Council sanctioned it, it is important to note that humanitarian intervention can only

be exercised intra vires by the Security Council if there is a situation that gives rise to an

53 Evans, G. and Sahnoun, M. (2002) “The Responsibility to Protect,” Foreign Affairs 81(6), pp 99-100 at 102.


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aggression or a breach of, or threat to international peace and security.54 The UN Charter

clearly states that the function of the Security Council is to maintain international peace and

security and therefore it can take collective measures to prevent, remove and suppress acts

that maybe a threat to, or a breach to the peace.55 On this basis, it is arguable that the Libyan

intervention was not legal because the Security Council exercised its powers ultra vires for

the Libya situation did not constitute a threat to, or a breach of international peace and

security nor was it an act of aggression as envisaged in the UN Charter. Modeme believes that

the violations of human rights in Libya did not endanger international peace and security.

Rather it was an issue for the Human Rights Council and the General Assembly.56

Furthermore, it is difficult to conclude that the intervention was legal on the basis of

desuetude because there are only a few isolated instances, mainly by the Unites States.

Similarly, norms-into-law is not legally viable as it is rarely put into practice. Though support

for the doctrine of R2P is growing, it has not been applied consistently and therefore cannot

be norms-into-law.57 There are some who cite Libya as an example of R2P in action, however,

Franconi and Baker purport that the Libyan crises combined a number of exceptional factors

that may never be replicated in any other situation.58 Firstly, there was an imminent and

unequivocal threat made by Qadhafi himself against civilians. Secondly, the situations

escalated from initiation of violence to a civil war rapidly, leaving very little time for

deliberation within the Security Council. Thirdly, regional organisations such as the League

of Arab States, the African Union and the Gulf Cooperation Council played a very important

role in precluding Russia and China from vetoing the Resolution.59

54 UN Charter, Article 39. 55 UN Charter Article 1(1), 24(1). 56 Modeme, L. E. (2013) The Libya Humanitarian intervention: is it lawful in international law. 57 Modeme, L. E. (2013) The Libya Humanitarian intervention: is it lawful in international law. 58 Francioni, F. and Bakker, C. (2013) Responsibility to Protect, Humanitarian Intervention and Human Rights: Lessons from Libya to Mali. Trasworld Working Paper ISSN 2281-5252. 59 Francioni, F. and Bakker, C. (2013) Responsibility to Protect, Humanitarian Intervention and Human Rights: Lessons from Libya to Mali. Trasworld Working Paper ISSN 2281-5252.


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It then follows, that the intervention in Libya is unlikely to have been legitimate either.

Humanitarian intervention has not always been an option, for example in the cases of Yemen,

Bahrain and Syria where the government forces have been no less forceful that Gadhafi’s

regime, maybe even worse.60 Unless the intervening forces found Libyan civilian lives to be

more important than those in the aforementioned nations, it is clear that there were other

motives driving the decision to intervene with the use of military force. Steifels argues that

France, Britain and the United States, were driven by their needs to protect their oil interests

and for the simple fact that they did not like Qadhafi. Aside from members of the Security

Council not wanting to repeat mistakes made in Rwanda, they used that reason to cloak their

less honorable reasons.61

Zifcak corroborates this view, stating that the intervention slowly shifted from civilian

protection to a mission to overthrow Qadhafi’s regime. He argues that the NATO forces took

the intervention beyond the terms stated in the Resolution.62 There is strong evidence showing

that NATO forces destroyed infrastructure, government buildings, the electricity grid and the

Qadhafi home compound. Furthermore, the USA also deployed unmanned predator drones,

bombing incapacitated Libyan authorities in locations where fighting had actually ceased.63

Russia condemned NATO’s actions, as a ‘disproportionate use of force.’ 64 NATO’s

motivations changed, Zifcak argues, when NATO forces came to the realisation that the rebel

movement was stronger than they anticipated. This need to assist the rebels was further

exacerbated when the rebel forces began to complain that NATO’s efforts were insufficient.65

In addition to NATO’s disproportional use of force, France also violated Resolution 1973 by

60 Modeme, L. E. (2013) The Libya Humanitarian intervention: is it lawful in international law. 61 Steifel, M. O’Brien. (2011). Hazardous Means: Libya & the Ambiguity of Humanitarian Intervention. Commonweal. June 1, pp 6. 62 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2. 63 Dembinski, M & Reinold, T. (2011). ‘Libya and the Future of the Responsibility to Protect – African and European Perspectives. PRIF-Report No. 107. 64 UN SCOR, 66th sess, 6528th mtg, UN Doc S/PV.6528 (4 May 2011) 9 (Vitaly Churkin). 65 Zifcak, S. (2012). The responsibility to protect after Libya and Syria. Melbourne Journal of International Law 13, p 2.


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arming the Libyan rebels. 66 France reasoned that the arms were just another form of

humanitarian aid to assist the civilian population. However, that argument fails because an

arms embargo was explicitly placed in Resolution 1973.

8.0 Conclusion

When the human rights situation began to deteriorate in Libya in February 2011, the UN was

presented with a perfect opportunity to exercises its powers under the heading of R2P.

Henceforth, the intervention in Libya represents a very important moment in the evolution of

international law. Some perceive it as an early building block for the doctrine of R2P; others

see it as an evolution of the humanitarian intervention principle. In any case, it is the first UN-

mandated use of military force in peacekeeping for the purposes of preserving human rights.

Debates continue over its legality and legitimacy. As argued above, arguments supporting its

legality are inherently weak, thereby revealing the missions illegitimacy. The intervention has

failed as a peacekeeping mission for human rights purposes. This is because it has seen

NATO forces exceed their Resolution 1973 mandate and France violating the resolution by

arming the rebels. The war and human rights violations continue today. So, it may appear that

the coalition’s cohesion was not the preservation of human rights for Libyan civilians rather

selfish interests and a hate for Qadhafi. The dynamics of this intervention reveal two

unsettling facts. Firstly, that a double standard exists in the execution of humanitarian

intervention; and secondly that the principle is extremely vulnerable to misuse. If anything,

the Libyan intervention is a vivid illustration that a great amount of work is need on the

notions of humanitarian intervention and the responsibility to protect.

66 Al Jazeera. 29 Jun 2011. France confirms arming Libya rebels. Available from <http://www.aljazeera.com/news/africa/2011/06/201162913557645830.html>.


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Peace Keeping and Human Rights in the Libyan Contex

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