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

4.2.1.1. Legality versus Legitimacy

One of the most difficult decisions faced by states is what to do when a State is perpetrating gross human rights violations against its own peoples causing a humanitarian catastrophe to unfold but the United Nations Security Council has failed to authorize military intervention through the collective security framework, thus prohibiting lawful military intervention.^264(*) This considers whether a state or coalition of states can or should intervene in such circumstances despite the fact that any military action taken against the offending state would be technically unlawful under current international law.

4.2.1.2. Pre-Emptive Self Defence

When self-defense is a well established principle of international law, the issue of pre-emptive self defence is less certain. The concept of self defence as legal right has no meaning unless there is corresponding general duty to refrain from the use of force. This general ban was achieved in some measure under Kellogg Briand Pact and taken further to UN Charter. According the article 51 of UN Charter, nothing precludes self defence measures if an armed attack occurs until the SC has taken measures and once self defence measures are taken by a state they must be reported immediately to the SC pre-emptive or anticipatory self defence. This means is used in the following circumstances:^265(*)

· In response to end directed against an ongoing armed attack against State territory, for example by Kuwait against Iraq in 1990;

· Anticipation of an armed attack or threat to the State's security, so that a State may strike first, with force, to neutralise an immediate but potentional threat to its security, e.g. as alleged by Israel as justification for its strike against Iraq nuclear reactor in 1981;

· In response to an attack (threatened or actual) against State interests, such territory, nationals, property and rights guaranteed under international law, if any of these attributes of State are threatened, then the State may use force to protect them. e.g. by Israel against Uganda (Entebbe raid road)^266(*) in 1977 and the invasions of Afghanistan and Iraq by USA to counter the terrorist threat;

The researcher noted that the preventive action in foreign territory is justified only in case of «an instant and overwhelming necessity for self-defence, leaving no choice of means and no moment of deliberation.

4.2.2. Objectives and Consequences of Military Intervention

This section concerns the objectives and consequences of military intervention. After considering the role of military intervention in protecting human rights and preventing genocide, it highlights the importance of protecting civilians during military intervention. In addition this part examines the possible negative consequences for the intervening state.

4.2.2.1. Objectives of a Military Intervention

The aim of the human protection operation is to enforce compliance with human rights and the rule of law as quickly and as comprehensively as possible, but it is not the defeat of a state; this must properly be reflected in the application of force, with limitations on the application of force having to be accepted, together with some incrementalism and gradualism tailored to the objective to protect^267(*);

· the conduct of the operation must guarantee maximum protection of all elements of the civilian population;

· strict adherence to international humanitarian law must be ensured and force protection for the intervening force must never have priority over the resolve to accomplish the mission;

· and there must be maximum coordination between military and civilian authorities and organizations.

* ²⁶⁴ The United Nation`s efforts to respond to the crisis in Rwanda were halting, confused, and ineffective. The UN peacekeeping forces have been already in Rwanda since 1993 under the name of the UN Assistance for Rwanda (UNAMIR) in order to monitor the application of the Arusha Accords. Within hours of the crash of the President's plane, the UNAMIR's Commander General; Romeo Dallaire, has contacted the UN's headquarter asking for help to deal with the erupting situation. But there was no immediate response to these concerns. The only response to Dallaire's concerns came from the UN Department of Peacekeeping Operations (UNDPKO) which answered his urgent request for help to properly address the situation that: Nobody in New York was interested in that. The UNAMIR was unable to prevent the spreading violence as the states contributing to the peacekeeping started to withdraw their soldiers in fear of them being wounded or hurt. The UNAMIR's strength has dropped from 2,539 on April 6, to 1,705 as Belgian soldiers were pulled out by their government. Since Belgian soldiers constituted fully one third of the mission, Dallaire described the withdrawal as a terrible blow to the mission. Not only the UNAMIR suffered from the withdrawal, upon the spread of violence of Rwanda, on April 21, 1994, the Security Council passed Resolution 912 to reduce the UNAMIR's troops to 270. The first reasons behind UN's decision to take such an action was the impression that the office of Boutros Boutros-Ghali gave towards the violent events which seemed distant and cold; the thing that has supported the disinterest of the member states to expand UNAMIR. The second was the lack of willingness among states to contribute with troops in the UN peacekeeping forces. The third reason was that the UNAMIR's mandate to monitor the Arusha Accords was ending and no state was interested in renewing the mandate because of the increasing violence stressing the obligation of the Security Council to protect the lives of its peacekeepers. Arthur Jay Klinghoffer, The International Dimension of Genocide in Rwanda, (New York: New York University Press, 1998), p.6.

* ²⁶⁵ Ibid.

* ²⁶⁶ The Israelis attacked the Ugandan airport on the justification that their citizens were endangered. Terrorists had boarded the plane at Entebbe, two days after the hijacking, the terrorists released 47 passengers who were not Jewish or Israeli citizens these witnesses recounted that the hostages were being guarded by Ugandan forces who were assisting the hijackers. U.S. backed Israel. Hijacking Convention both Israel and Uganda were signatories and thus, Uganda had an obligation to resist/not cooperate with the hijackers, etc.

* ²⁶⁷ Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, ICISS, December 2001, p. 66.