"The Situation in Libya: some international legal issues"

 The Situation in Libya: some international legal issues  

by Alexander Mezyaev 

speech at IDC, 8 December 2011

Today we are discussing the main event of current international politics. The “situation in Libya”, as it referred to in the official agenda of the United Nations Security Council, is a matter of concern for every country in the world.

Let me remind you of one very interesting fact. At the beginning of the last session of the United Nations General Assembly (65th session),  the Libyan government proposed some items for the agenda.  Among these were:

-        "an enquiry into the wars which have broken out since the creation of the UN";

-        "an enquiry into the assassinations committed since the creation of the UN".

         One of the actions Libya proposed was:[1] and

-        "to set up a committee of enquiry to establish the motives for the assassination of heads of state and government and to suggest punishments for those responsible"

-        "to examine the possibility of defining an effective international mechanism, during the 66th session, for determining the causes and consequences of the wars which have broken out since the creation of the UN and to ensure that those responsible for them do not go unpunished."[2]

         It is very interesting to note that these proposals were rejected and that these items were been included in the official agenda of UN. We must conclude that world leaders do not want to know what was the reason for various wars and assassinations of heads of state.

         By the same token, we are now witnessing no proper attempts to investigate the assassination of Muammar Gaddafi himself. The only exception was the Russian Minister for Foreign Affairs, who spoke of the need for an international inquiry into the circumstances of the killing of the Libyan leader. Under these circumstances, the only international body which is actually obliged to conduct such an inquiry is the International Criminal Court, to which the "situation in Libya" was referred by the UN Security Council in March. But ICC is also silent.

         The situation in Libya has raised several very important questions of international law. I would like to name some of them:

1.     the legal basis for the adoption of UN Security Council Resolutions 1970 and 1973;

2.     the right of the Security Council to refer a situation in a state which is not a State Party to the ICC Statute to the ICC;

3.     the legality of an arrest warrant issued against a head of State from a State which is not a State Party to the ICC Statute;

4.     the issue of the evidentiary threshold required for ICC indictments and for their confirmation by ICC judges.  (This problem arises also with other international bodies like the UN Commission on Human Rights and its Committee of Enquiry.)

         There are also some other issues, such as the non-recognition of a legitimate government by the UN institutions, including the Security Council; the problem of the distinction between riots and internal armed conflict; the problem of financial robbery committed against a State; the problem of the legality of the so-called no-fly-zones; and the legitimacy of the so-called international bodies for Libya.

         Let us consider some of these problems.

         The adoption of resolutions 1970 and 1973 constituted grave violations of international law and contained numerous other defects.  Let me analyse just two of these violations.

         1)      The legality of the referral of the situation in Libya to the ICC and the legality of the arrest warrant issued against three Libyan leaders. To date, the UN Security Council has referred two situations to the ICC: the situation in the Sudan and the situation in Libya. However, the legal basis for such referrals raises a number of serious issues concerning their legitimacy.

         In the UN Charter, which dates from 1945, there is no reference to any right for the Security Council to refer cases to the International Criminal Court, created in 1998. This a right is given to the Security Council by another international instrument, the Statute of the International Criminal Court.  However, States which are not parties to the Rome Statute are not concerned by this argument.  This results in the absurd situation in which States which are not State Parties to the ICC statute (the USA, Russia, China) refer the situation in another State which is not a Party to the ICC Statute (Libya) to the ICC !  This represents not only a violation of the UN Charter but also the complete destruction of the very essence of international law. It is a well-known principle of international law that States are concerned only the treaties they have signed.

         In addition, there is the question of gaps in the legal basis for the activities of the Security Council in such referrals. This legal basis is not regulated at all. What are the criteria for such referrals? What is the factual side of things? What facts were considered by the Security Council? Why were these facts not made public?

         It is evident, therefore, that the UN Security Council exceeded its authority in these referrals. Execution is compulsory only of those Resolutions which are adopted under the authority of the Security Council such as it is directly prescribed by the UN Charter. Thus, the UN member states should not comply with this provision of Resolution 1973. There is no duty of «all states to cooperate» with the ICC on the situation in Libya, especially not non-State Parties to the ICC Statute.

         2)      The legality of the ICC's behaviour after after the assassination of Muammar Gaddafi.

         The most unreasonable aspect of the ICC's behaviour after the assassination of Muammar Gaddafi is its silence in the case Prosecutor v. M.Gaddafi. This silence is so unreasonable that it raises question about the ability of the ICC to act according the law. At first sight, the termination of the proceedings against the deceased man may seem perfectly correct. But the accused did not die of natural causes. He was assassinated, brutally and defiantly. The termination of the proceedings in these circumstances is legally wrong. An investigation of this assassination is warranted. There are several legal bases for it, including proceedings for contempt. So the ICC should conduct a proper investigation of the assassination of one of its own accused in the context of the already confirmed indictment and of proceedings which have already started.

         The initiation of contempt proceedings is by no means precluded by the termination of the main case. The example of the Florence Hartmann case at ICTY (in the context of the terminated case of Slobodan Milosevic) is a good precedent.

         3) No fly zones.

         Resolution 1973 declared a so-called "no-fly zone" over Libya. What are the legal grounds for such an action? Where in the UN Charter is the closure of the air space of a Member State allowed?  I have repeatedly criticised UN Security Council resolutions for saying that it is "acting under Chapter VII of the UN Charter" (in the context of the creation of ad hoc international criminal tribunals for the former Yugoslavia, Rwanda and Lebanon). Coercive measures, especially of this magnitude, cannot be applied on the basis of "Chapter VII" in general but only on the basis of specific articles of the Chapter, or even specific paragraphs of specific articles. We never see such precise references in the case of the resolutions which created the tribunals or in the case of the "no fly zones". Why not? Is this accidental? In our view, it is not a coincidence.  The Security Council simply cannot refer to anything precise. There are simply no such articles in Chapter VII which the Security Council could rely on. Thus, this measure clearly violates the principle of the sovereignty of UN member states, since airspace is part of the sovereign territory of the state. Thus, the provision of UNSC Resolution 1973 violates Article 2 of the UN Charter (the principle of sovereign equality of Member States, the prohibition of the use of force against the territorial integrity and political independence of States) and the norms of international treaties on international air law. Paragraph 6 of Resolution 1973 establishes a ban on air flights over the territory of Libya. Paragraph 7 allows all states to "take all necessary measures" to ensure the ban. That is, the UN Security Council "allows" anyone to shoot down Libyan planes over its own territory. Paragraph 17 of the Resolution appears nothing less than criminal, for it prohibits UN member states from allowing Libyan aircraft to land on their territory! How is this provision consistent with the objectives of a number of international treaties on international aviation? Now a state, in violation of these treaties, will be obliged to refuse to accept a plane from Libya, regardless, for instance, of whether it has enough fuel to fly back home or not!  In other words, the Resolution again instructs States to destroy aircraft.

***

The UN Secretary-General, Ban Ki-moon, said on 18 April that the so-called revolutions in North Africa were a model for changes in another countries. President Obama later repeated the same statement.  That means that our discussion today is not about the history of the ruined state of Libya, but about the future of other states and even of the whole world. If the same model is applied, for example, to Syria then that means that another sovereign state will be destroyed and thousands of people killed.

Let me draw your attention to the fact that most of the questions of international law which have been raised by the situation in Libya, and to which I referred at the beginning of my presentation, are also being posed in relation to Syria. First, the distinction between riots or internal terrorist acts, on the one hand, and the armed conflict on the other hand:  even an armed riot does not constitute an "armed conflict" as it is understood in international humanitarian law.  Where there is an armed riot, the government has full authority and even the duty to use force to reinstate security and to defend the rights of citizens who are not part of the riot. An armed conflict is a different situation which is governed by international humanitarian law (the laws of war).

As I am a lawyer, it is better for me to talk not about political or military actions (though they are also legitimate), but instead about purely legal actions. For example, in my opinion, Syria may use the available legal tools to defend its right to internal and external security.  It can appeal to the International Court of Justice or to the International Criminal Court.  The ICJ might rule against states following any course of action which might worsen the situation, although the independence of international courts is often exaggerated.  But if we look at the activity of some international tribunals we can see that their founders have made a great mistake.  They believed that the court's rulings would crush their enemies.  They were partially right: some very hard indictments and judgements were handed down against political and military leaders in Yugoslavia, Rwanda and other African states.  But the Defence of some of these figures was so strong that it demonstrated not only the innocence of the accused but also the dirty tricks played by the Prosecution including producing false witnesses and false indictments.  In such situations, one has to use the enemy's weapons and learn from his mistakes.  It would therefore be very useful for history if Syria had recourse to these courts in order to establish for the judicial record the truth about these so-called peaceful demonstrations and the so-called peaceful opposition.  If evidence is presented in court it will have a legal status and if the court in question rejects or ignores it, then this too will be evidence against the courts themselves.

For example, the events in Srebrenica will be judged not by the ICTY and its judgments of General Krstic or Mr. Krajisnik, but by history, because proof of the innocence of these and many other Serb leaders was in fact presented by the Defence but ignored or distorted by the court. In spite of this, the truth is to be found in the judicial record.

All the actions we have discussed today are actions which have a much larger goal than the destruction of any particular state. The goal is the destruction of the whole international system, and the whole of international law.

One could retort that we have witnessed aggressions and wars before, so what is new now? In my opinion the difference is very great. Before, all aggressions were committed against international law. Many wars were committed without even raising the matter before the UN, because the aggressors knew very well that their action would not be approved. Now, by contrast, we are witnessing criminal acts being consecrated by the UN and by those of its organs which are primarily responsible for the maintenance of peace and security. This shows that the main target is the United Nations as the only universal system that may be used against aggression and violence. Now we are witnessing a radical change in the essence of international law, from progressive international law to regressive, or even repressive, international law - just as it was in colonial times.

Publications      Research      News