Col. Muammar Gadhafi has ruled Libya with an iron fist for more than four decades. Inspired by the pro-democracy wave in the Middle East, protests broke out in several Libyan cities in February 2011. In an attempt to silence the protesters, Gadhafi’s force fired upon innocent civilians. The Arab League immediately issued a statement that Gadhafi’s government had lost its legitimacy and committed serious crimes against the Libyan people. According to the latest figures from the International Organization of Migration and the United Nations High Commissioner for Refugees, around 400,000 people have left Libya since the start of the unrest and some 13,000 people remain stranded at the borders with Egypt and Tunisia.
The U.N. Security Council passed Resolution 1970 requesting assets freeze and travel ban on Gadhafi, certain family members and his senior advisors. On March 17, 2011, Resolution 1973 imposed a no-fly zone over Libya and authorizing the use of foreign military forces to protect civilians. However, Gadhafi refused to comply with any of the Resolutions, creating a serious crisis in the region. The international community has called on Gadhafi to desist from further violence, recognize Libyan people’s demand for democratic change, resign his position and permits a peaceful transition to democracy governed by respect for human and civil rights.
Legal Concerns
Gadhafi has infringed various LOAC in the following aspects: threatening regional and international peace and security, violating international humanitarian law, human rights law and refugee law, and breaching the principles of proportionality and discrimination in an internal armed conflict.
Threat to Peace and Security
The Arab Peace and Security Council has condemned Gadhafi’s attacks on protesters. Since its establishment, the Arab League’s primary mission is to coordinate and cooperate with international and regional organizations to reinforce peace, security and stability in the Arab region. In Misurata, the third largest city in Libya, civilian death toll had increased drastically because of repeatedly attacks by Gadhafi’s loyalist forces. The Peace and Security Council of the African Union expresses deep concern at the prevailing situation in Libya, which poses a serious threat to peace and security in that country, as well as to the safety and dignity of Libyans and of the migrant workers living in Libya.
Gadhafi’s illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Despite condemnation from the international community, Gadhafi refused to give up his authoritarian government, transit to a democracy regime or negotiate with the rebels. He had also intensified attacks on the rebellion in civilian populated areas. Several towns have been under siege for the last seven weeks, leading to a growing humanitarian concern. According to the Charter of the United Nations, the U.N. shall take effective collective measures for the prevention and removal of threats to the peace. The Security Council has determined that the situation in Libya constituted a threat to international peace and security, and demanded the immediate establishment of a ceasefire and a complete end to violence.
Human Rights
Gadhafi’s forces reportedly deploy unlawful tactics included strafing of protesters and shelling, bombing, and other violence deliberately targeting civilians. The Geneva Conventions and their Additional Protocols, which Libya has signed and ratified, regulate the conduct of armed conflict and prevent attacks on protected persons. UN Resolution 1738 reaffirms resolutions 1265 (1999), 1296 (2000) and 1674 (2006) on the protection of civilians in armed conflict. Both Gadhafi’s royalist and rebel forces have obligations to do their utmost to prevent violations of international humanitarian law against civilians, including journalists, media professionals and associated personnel.
According to the U.N. Office for the Coordination of Humanitarian Affairs, the ongoing conflict has driven thousands of additional refugees across Libya’s borders and access to food has become a major concern. On March 3, 2011, the African Commission on Human and Peoples’ Rights instituted proceedings against Libya in front of the African Court for serious violations of the African Charter. Two weeks later, UN Resolution 1973 has also condemned Gadhafi’s gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions. Gadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection.
Use of Force
Gadhafi’s force also violated the proportional and discriminative rules of armed conflict. Rebels are outgunned and civilian objectives are not distinguished from military targets. Human Rights Watch said that indiscriminate rocket and mortar attacks Gadhafi’s force fired on residential neighborhoods were responsible for most of the civilian deaths recorded by hospital morgues. Forces loyal to Gadhafi continue to attack on besieged towns and vowing to crush the rebellion. They have fired into residential neighborhoods with heavy weapons, including cluster bombs. Although Libya is not a signature state to Convention on Cluster Munitions or Convention on Certain Conventional Weapons, basic principles of international humanitarian law and customary law still apply, which restricts the use of weapons causing excessive injuries or have indiscriminate effects on people.
The U.N. Security Council Resolution 1970 demanded member states to prevent direct or indirect supply of arms and related materiel of all types to the Libyan government, and to inspect vessels on the high seas suspected of violating the arms embargo. In order to help protect civilians, U.N. Resolution 1973 imposed a no-fly zone on Libyan military aviation; American and European flights effectively destroyed Gadhafi’s air force in two days. Yet despite the no-fly zone operation to protect civilians, the fighting continues with painful costs for both Libyan nationals and migrant workers who have been unable to flee.
Future Actions
Although NATO has taken over the air campaign authorized by the U.N. Security Council, the U.S. continues to play a big role in imposing Resolution 1970 and 1973. Potential actions such as humanitarian assistance in providing food, shelter and sanitation, and ground force intervention to ensure proportionality and protect civilians may be considered.
Humanitarian Assistance
As fighting continues to rage in Libya, the situation on the ground was extremely worrying with daily accounts of deaths and growing humanitarian needs. Gadhafi has no sympathy toward his own people, therefore, assistance of foreign and international actors is critical to ensure humanitarian needs are met.
On one hand, the U.N. General Assembly has stated that humanitarian assistance must be provided with the principles of humanity, neutrality and impartiality. It has also recognized that the sovereignty, territorial integrity and national unity of states must be fully respected in accordance with the Charter of the United Nations. Humanitarian assistance, if any, should only be provided with the consent of the affected country and carried out by the U.N. under the strict conditions outlined above and only for the sole purpose of ameliorating a potential humanitarian disaster.
On the other hand, foreign actors are both legally and morally responsible for a state that is devastated by war. The Human Rights Committee has also stated the obligation for Libya to allow access to international humanitarian relief when national efforts are insufficient to avoid loss of life. Resolution 1970 called upon member states to facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in Libya. Within the body of human rights law, two binding instruments make direct reference to disaster assistance – states shall take all appropriate measures to ensure that refugee children and persons with disabilities receive appropriate protection and humanitarian assistance.
Military Intervention
The U.S. Senate passed by unanimous consent Senate Resolution 85, which strongly condemned the gross and systematic violations of human rights in Libya. The rebels embarked on a large-scale withdrawal from strategically located cities and are facing the possibility of being outnumbered in what increasingly looked like a mismatched civil war. With the lives of many Libyans at stake, pressure is building for the U.S. to lead a military intervention to support the rebels and topple Gadhafi. Tactics that can be deployed involve the use of signal-jamming aircraft in international airspace to muddle Libyan government communications with military units, placement of small special operations teams to assist the rebels, or air drop weapons and supplies to Libyan rebels.
Non-intervention in the internal affairs of sovereign states is a basic norm of international law – outsiders should always respect a country’s sovereignty and territorial integrity. AU Peace and Security Council has reaffirmed its strong commitment to the respect of the unity and territorial integrity of Libya, as well as its rejection of any foreign military intervention. U.N. Member States have the obligation to comply with the principles of the Charter regarding the right to self-determination, by virtue of which all peoples can freely determine, without external interference, to determine their political status and to pursue their economic, social and cultural development. Any military assistance shall be made upon the request and with the consent of specific sovereign state.
The concept of sovereignty, however, does not apply equally to every state. Gadhafi’s government has lost its legitimacy and has no effective control of the majority territory of Libya. In this case, military intervention will help to restore order and peace in the country. The United Nations High Level Panel on Threats, Challenges and Changes endorsed the norm that there is a collective international responsibility to protect civilians from the effects of war and human rights abuses. The urgency of humanitarian efforts takes priority over the inherent right of state sovereignty. When action is deemed morally urgent by a majority of states – even an action involving the use of force – it is likely to shape a legal justification to match. Intervention carried by the U.S. military might be justifiable when it is necessary to maintain the balance of power and justice in a country wherein a threat of massacre exists.
Conclusion
Despite international calls for an immediate ceasefire and a political solution to the conflict, the unrest in Libya is not expected to come to an end soon. Gadhafi’s government has violated multiple international laws of armed conflict and war crimes may have been committed as well. When considering the pros and cons of future actions, international law principles on sovereignty and self-determination are among the priorities; state government’s consent on any actions carried out by a foreign state or the U.N. shall prevail. However, serious human rights violations are occurring in Libya, wherein humanitarian assistance and military intervention are justifiable in order to prevent unnecessary suffering of innocent civilians and combatants, meet the urgent needs of Libyan people, and restore peace and democracy.
