The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

3.2.2.2.2.2. The Different View of UNSC Resolution in Regard of International Intervention

Among the many resolutions of the General Assembly of the United Nations governing the principle of non-use of force, three of them seem particularly constructive. This is inter alia:

· resolution 2625 (XXV) of 24 October 1970 on friendly relations and cooperation of States^168(*),

· Resolution 3314 (XXIV) of 14 December 1974 on aggression and of Resolution 37/10 of 15 november 1982 on the peaceful settlement of disputes.

· Resolution 2625 (XXV) ^169(*)enounces in its principles that: "Any State has the duty to refrain from resorting to the threat or the use of force to violate existing borders of another State... or to violate the international boundary lines".

Thus, these Resolution dismisses the argument of the doctrinal trend, whereby humanitarian armed intervention is permitted at the moment it does not aim a territorial appropriation. In this way, the resolution prohibits not only any violation of territorial integrity, as well as any violation of territorial sovereignty.

On the other hand, the text of resolution prohibits any resort to armed or unarmed force for any reason whatsoever. Therefore, even the use of force for humanitarian reasons is prohibited. Finally, the same text provides that States should settle their disputes using peaceful means, excluding any use of force. A researcher then understand that even the massive violation of human rights constitutes a dispute which must be settled by peaceful means and in no case by military intervention.

Resolution 3314 (XXIV) 91 of 14 December 1974 specifies in its article 1 the definition of aggression as use of armed force against the sovereignty, territorial integrity or political independence of another State.^170(*)Then, in its article 3, the resolution performs an exhaustive enumeration of acts of aggression. The researcher remarks therefore that the definition given by the resolution is extremely accurate without any reference to the circumstances of humanitarian armed intervention.

In addition, article 5 of the same text states that any considerations, whether political, economic or military, cannot justify an aggression. The researcher therefore apprehends that no humanitarian considerations could justify armed intervention.^171(*)

The Resolution 37/10 of 15 November 1982 reaffirms the general prohibition of use of force by stating that States have the obligation to settle international disputes "exclusively" by peaceful means. These resolutions of the General Assembly of the United Nations are not the only instruments that interpret article 2§4 of the Charter prohibiting any use of armed force even for humanitarian reasons. The researcher will see further that also regional conventions take the similar position.^172(*)

3.2.2.2.2.3. The Principle of No Use of Force under Regional Instrument

The Charter of the OAS^173(*) in its article 21 prohibits the use of force, except in self-defence in accordance with the treaties in force. Except then, self-defence, any recourse to the use of force is prohibited. Similarly, the Charter of the OAS, in its article 27, prohibited expressly any use of force against the integrity, the inevitability of the territory or against the sovereignty and political independence of an American State as acts of aggression.

Similarly, the Constitutive Act of the AU erected in its objectives, the defense of the sovereignty, territorial integrity and independence of the Member States. A researcher sees then, that States, through different legal instruments protecting human rights, don't allow, directly or indirectly, the use of force to enforce these rights. On the contrary, treaties relating to the protection of human rights submit any unilateral reaction to a series of conditions. Those treaties provide mechanisms of conflicts settlement that States must use. These treaties have foreseen, also a series of peaceful countermeasures subject to certain conditions. In this respect, these treaty texts not only prohibit the use of armed force, but at the same time they provide all necessary mechanisms to better protection of human rights.^174(*)

In addition, any use of force to enforce human rights would be contrary to the conventions in question.

Even in the case of retaliation, States have voted clearly for the absolute prohibition of armed reprisals. Firstly, article 2 § 4 of the Charter of the United Nations provide no exception with regard to the humanitarian cause of the intervening State. On the other hand, the Resolution 2625 (XXV) sets out the duty of States to refrain from acts of reprisal involving the use of force. This prohibition of armed reprisals is confirmed by resolution 36/103 of the General Assembly which stressed "the duty of a State to refrain from resorting to any armed intervention or any act of military intervention... including acts of reprisal involving the use of force".^175(*)

Firstly, resolutions such as Resolution 2625 (XXV) and resolution 33 14 (XXIV) on the definition of aggression, reject any opportunity to discuss humanitarian motivations to skip the principle of prohibition provided by article 2§4 of the Charter. Conventional practice, either regional or universal, confirms this point of view.

On the other hand, the practice of international relations proves that humanitarian considerations, mentioned by intervening States are far from constituting a legal basis. As researcher has seen, the justifications for those States do not demonstrate a clear legal position in favor of the right of humanitarian intervention. On the contrary, in most cases the armed interventions are explained by political considerations.

* ¹⁶⁸ United Nations Security Council, Resolution S/Res/1970 (2011) adopted on October 24, 2011. Available at: http://www.un.org/Docs/sc/unsc_resolutions11.htm accessed on 21/7/2014.

* ¹⁶⁹ United Nations General Assembly resolution 3314 (XXIV): Definition of Aggression, of 14 December 1974, in the Texts of public International Law, 2nd edition, ed. Dalloz, Paris, 2000, pp.237 - 240.

* ¹⁷⁰ United Nations Security Council, Resolution S/Res/1974 (2011) adopted on December 17, 1974. Available at: http://www.un.org/Docs/sc/unsc_resolutions11.htm, accessed on 4/7/2014.

* ¹⁷¹ Idem p.4.

* ¹⁷² United Nations Security Council, Resolution S/Res/37/10 (1982) adopted on November 15, 1982. Available at: http://www.un.org/Docs/sc/unsc_resolutions11.htm, accessed on 15/7/2014.

* ¹⁷³ The OAS Charter (Charter of Bogota-inter-American Treaty for the Peaceful Settlement of Disputes, said paw de Bogotá), signed on 30 April 1948 in Bogotá. Available at http://www.oas.org/juridico/english/charte.html, accessed on 24/7/2014.

* ¹⁷⁴ Bellamy, A. J., Whither the Responsibility to Protect? Humanitarian Intervention and the 2005, World Summit?, Ethics and International Affairs, 2006, 20(2): 143 - 170.

* ¹⁷⁵ Resolution 36/103 of the General Assembly of the United Nations: Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, of 9 December 1981, A/RES/36/103.