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

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par Jean de Dieu ILIMUBUHANGA
Kigali Independent University - Master degree in public international law 2014
  

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3.4.2. Violation of Jus in Bell Principle in regard of Libyan Intervention

During the Libyan war, the some international public law considered as jus cogens227(*) were violated by NATO attack.228(*) For instance, the 2011 NATO intervention in Libya all four Geneva Convention and its AP were not respect at all.229(*) The following are violation of humanitarian law caused by NATO intervention230(*):

· on 14 may NATO air strike hit a large number of people gathered for Friday prayers in the eastern city of Brega leaving 11 religious leaders dead and 50 others wounded,

· on 24 may NATO air strikes in Tripoli kill 19 civilians and wound 150, 31 may Libya claims that NATO strikes have left up to 718 civilians dead,

· 19 june NATO air strikes hit a residential house in Tripoli and killing seven civilians,

· on 20 june NATO airstrike in Sorman, near Tripoli, killed fifteen civilians,

· on 25 June NATO strikes on Brega hit a bakery and a restaurant and killing 15 civilians and wounding 20 persons,

· on 28 June NATO airstrike on the town of Tawergha, 300 km kills eight civilians,

· on 25 July NATO airstrike on a medical clinic in Zliten kills 11 civilians,

· On 20 july NATO attacks Libyan state TV Al-Jamahiriya and three journalists were killed,

· On 9 august 85 civilians were killed in a NATO airstrike in Majer, a village near Zliten. NATO air strikes killed 354 civilians and wounded 700 others,

· While 89 other civilians are missing in Tripoli in 10 august.

The different report further accused the coalition of "crimes against humanity". The law of armed conflict known as International Humanitarian Law (IHL) provides Means of Warfare of conduct of war, it refers to the tools of war, i.e. to weapons, while "Methods of Warfare" refer to the tactics and strategy applied in military operations to weaken or vanquish the adversary.231(*) In general, International Humanitarian Law originates in a desire to regulate the behavior of States engaged in armed conflict.

As General Limitations on Means and Method warfare, the right of belligerants to adopt means of injuring the enemy is not unlimited as follows:232(*)

ï Prohibition against causing superfluous injury or unnecessary suffering to combatants. (Article 35 (2) Additional Protocol I)

ï Whatever accepted means and methods used, there is an obligation to distinguish at all times between civilians and combatants / civilian objects and military objectives (Article 48 of 1st Additional Protocol).

ï Unnecessary signifies that the suffering caused by a particular means of warfare is not justified by its military utility, either such utility is entirely lacking or at best negligible, or because in weighing utility against suffering the scale dips to the latter side (suffering).233(*)

ï Military Objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (Article 52 (2) of the 1st Additional Protocol).

ï It is very necessary to distinguish the military object by civil object and distinguish the combatant and non combatant. 234(*)

The launching of an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited (AP I, art. 51(5)(b), 57(2)(b), ICRC Customary Rule 14) and constituted the war crimes as provided by article 8 of ICC.235(*)The NATO had used the weapons of mass destroy, this means are prohibited.

In international armed conflict, combatants are entitled to directly participate in hostilities. In other words, they are permitted to commit lawful acts of war intended to achieve a military goal in the most effective way. The principle of distinction, however, requires that such acts of war be directed only against enemy combatants and military objectives, while preventing unnecessary and excessive damage to civilians. Means and methods of warfare with the potential to cause widespread, long-term and severe damage to the environment are prohibited as they threaten the health and survival of the civilian population. Thus IHL prohibits indiscriminate attacks and provides for the principle of proportionality, which dictates that the so called "incidental loss" of civilian life and/or property should not be excessive in relation to the concrete and direct military advantage anticipated. 236(*)

3.4.3. Humanitarian Intervention as Excuse of Political Benefit

As the Cold War ended, many foreign policy analysts predicted that the United States would return to isolationism. During the 1990s, the United States continued to play the leading role in global affairs, maintaining military bases around the world and regularly intervening with military force.237(*) Politically from the 1990s the word was dominated by US political in the regard the deployment of military forces as a routine part of international relations. The Libya is one of case study of American politics where the America Authority want to take the relay of western military expenditures in its particular object to protect Africa continent from the alternatives offered by the China. The Libyan attack by USA was the political of securing the Israel therefore Israel had needed the Arab States agreeing to refuse solidarity with Palestinians.

Other element hidden before the NATO intervention in Libya were to change the regime in Libya by protecting the French interest in Africa with breaking Libya becoming the alternate financial of continent. The influence of Gaddafi and financial resources he detained competed strongly with those of France.

A less tangible political cost of these political motive interventions has been their corrosive effect on the authority of international organizations such as the UN. In regard to Kosovo, the threat that China and Russia would veto a resolution to intervene in the UN Security Council forced proponents of intervention to insist that the mission did not require UN authorization.238(*) A few years later, however, many of these one-time advocates found themselves arguing against U.S. intervention in Iraq, at least in part on the grounds that Washington had failed to obtain UN approval. Having ignored the UN when it came to Kosovo and Iraq, it will be more difficult for the United States to condemn the use of force by other states that fail to obtain UN approval.

The United States' humanitarian interventions have won the country few new friends and worsened its relations with several powerful nations. The United States' long-term security depends on good relations with China and Russia, perhaps more than any other countries, but U.S. sponsored interventions have led to increasing distrust between Washington and these Nations. Both countries face serious secessionist threats and strongly opposed U.S. intervention in Bosnia and Kosovo out of fear of setting an unwelcome precedent.239(*)

Proponents of humanitarian intervention may object that the calculus laid out here understates its effectiveness by neglecting the other U.S. interests that these military missions serve. Even the most ardent advocates of intervention in such places as Kosovo, Sudan, or Libya, however, usually concede that the United States' safety was never directly threatened by the crises there.

In winding up of this third chapter of this study, the researcher note that the rule prohibiting the use of force, as well as its exceptions does not authorize the exercise of unilateral armed intervention even for humanitarian reasons. Nevertheless, the possibility of humanitarian intervention exists but it exclusively belongs to the Security Council and which unfortunately don't possess a permanent armed force, the reason why it is often obliged to delegate this ability.

* 227 "Latin meaning "Compelling Law", This "Higher Law" may not be violated by any country. For example, genocide or slave trade may be considered to go against jus cogens. Available on http://www.legal-explanations.com/definitions/jus-cogens.htm, accessed on 1/10/2014.

* 228Jus in bello, by contrast, is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. So a party engaged in a war that could easily be defined as unjust (for example, Iraq's aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of the war, as would the side committed to righting the initial injustice. This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for conduct of hostilities. Other principal documents include the four Geneva Conventions of 1949, which protect war victims, the sick and wounded (First); the shipwrecked (Second); prisoners of war (Third); and civilians in the hands of an adverse party and, to a limited extent, all civilians in the territories of the countries in conflict (Fourth) and the Additional Protocols of 1977, which define key terms such as combatants, contain detailed provisions to protect noncombatants, medical transports, and civil defense, and prohibit practices such as indiscriminate attack. at: http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/#sthash.YnxKj0el.dpuf, accessed on 12/09/2014.

* 229 Human Right Watch, Report on Libyan Situation in 2011, P23-24.

* 230 R.E. VanLandingham, `The Stars Aligned: The Legality, Legitimacy, and Legacy of 2011's Humanitarian Intervention in Libya', Valparaiso University Law Review, Vol. 46, 2012, pp. 859-892.

* 231 Segall Anna, Punishing Violations of International Humanitarian Law at National Level - A Guide for Common Law States, ICRC Geneva 2001, p.58.

* 232 (Article 35 (1) of Additional Protocol I : Resolution XXVIII of the 20th International Conference of the Red Cross and Red Crescent (Vienna 1965), Resolution 2444 of the United Nations General Assembly in 1968.).

* 233 Victims After the War - Humanitarian Action, Reparation and Justice, International Review of the Red Cross No 851 September 2003.

* 234 Ibid.

* 235 For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Willful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Willfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement;(viii) Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international

armed conflict, within the established framework of international law, namely, any of the following acts:(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) Declaring that no quarter will be given; (xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the

* 236 International Review of the Red Cross, 2006, No. 864 - Methods of warfare. Available at https://www.icrc.org/eng/resources/international-review/review-864-methods-warfare/index.jsp, accessed on 1/10/2014.

* 237 Ibid.

* 238 L. Moderne, `The Libya Humanitarian Intervention: Is It Lawful In International Law', 2011 (Moderne 2011); A.J. Kuperman, `A Model Humanitarian Intervention?: Reassessing NATO's Libya Campaign', International Security, 2013, Vol. 38(1), pp. 105-136. (Kuperman 2013); Lehmann 2012.

* 239 Ibid.

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