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

2.2.2. Non-International Armed Conflicts (NIAC)

To understand what is a NIAC in international humanitarian law, should be consulted two main legal sources: common article 3 to the Geneva Conventions (GC) of 1949 and article 1 of additional Protocol II. Common article 3 to the GC applies in case of armed conflict with no international character and arising in the territory of one of the High Contracting Parties. Also included are the armed conflicts involving one or more non-governmental armed groups. Depending on the situation, hostilities may oppose Government armed forces and non-governmental armed groups or between such groups.

To distinguish between an armed conflict within the meaning of article 3 common, other forms of violence less serious, such as civil strife and internal tensions, riots or acts of banditry, the situation must reach a certain level of confrontation. Usually, it is recognized that the lower limit in the art.1, par.2 PA II, which excludes internal tensions and civil strife of the definition of the NIAC, applies also to the article 3 of common Geneva Conventions. In this regard, two criteria are commonly used^36(*):

? First, hostilities must attain a minimum level of intensity. This may be the case, e.g. when hostilities have a collective character or when the Government is forced to resort to military force against insurgents, rather than the simple forces of police.

? Second, non-governmental groups involved in the conflict should be considered as "parties to the conflict", meaning that they must dispose of organized armed forces. For example this means that these forces should be subject to a certain structure of command and should have the ability to conduct sustainable military operations.^37(*)

To conclude this distinction, there are international armed conflict whenever there is use of armed force between two or more States while a non-international armed conflict is a prolonged armed confrontation between Government armed forces and the forces of one or more armed groups, or such groups between them, and which occurs in the territory of a State (party to the Geneva Conventions). This armed confrontation must attain a minimum level of intensity and the parties involved in the conflict must demonstrate a minimum of organization.^38(*)

2.3. Sovereignty in International Norms

Sovereignty means the exclusive right to exercise political authority (legislative, judicial, and/or executive) over a geographical area or a group of people living in the community. The concept emerged with that State, in the middle ages. The sovereign is therefore initially an identified person (the representative of the State, the King) then more and more the person detaches to become a theoretical concept independent and timeless. Sovereignty is in State principle, but today there is a concept of sovereignty that stands out more in addition to the States.

2.3.1. Sovereignty Characterizations under International Law

According to the French writer BODIN, sovereignty stands for a pillar to the analysis of the State: "sovereignty is an absolute and perpetual republican power ... that is the greatest power to control".^39(*) Absolute and perpetual, sovereignty is above all because it "is limited in power or in charge at some time".^40(*) After the works of Bodin, a conceptual uncertainty will remain around this notion. In German, the literal translation, Souveränität is thus a false friend: only the term Staatsgewalt allows a suitable translation. In England, the Sovereignty refers only to an absolutist exercise of power, closer ultimately imperium or the summa potestas.^41(*)

Today defined in law is as stated by Louis Le Fur at the end of the 19th century: "sovereignty is the quality of the State not to be required or determined than by his own will, within the limits of the higher principle of law, in accordance with the collective goal he is called to realize". Definition retains therefore two criteria^42(*):

· On one hand, the sovereign State is that according to his own will, it is the corollary of the right to self-determination (right of peoples to self-determination).

· On the other hand, this desire can occur only within the rules of law. Nowadays, it should complement this definition by another limitation on the sovereignty of States: the activity of international organizations, mainly those that exist for the inter-State coordination.

An American political scientist, Stephen Krasner, limits the dimensions of sovereignty questions of authority and control. However, this position remains questionable. The concept of terra nullius can be used for the acquisition of sovereignty over a territory without a master.^43(*)

* ³⁶ D. Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, RCADI, Vol. 163, 1979-II, p. 147.

* ³⁷ Idem.

* ³⁸ H.P. Gasser, International Humanitarian Law: an Introduction, in: Humanity for All: the International Red Cross and Red Crescent Movement, H. Haug (éd.), Paul Haupt Publishers, Berne, 1993, p. 555.

* ³⁹ Bodin, J., On Sovereignty: Four Chapters From Six Books of the Commonwealth, Cambridge, UK: Cambridge University Press, 1992, p. 81.

* ⁴⁰ Hinsley, F. H., Sovereignty, second edition, Cambridge, UK: Cambridge University Press, 1986, p. 45.

* ⁴¹ Ibid.

* ⁴² Idem, p. 24.

* ⁴³Stephen Krasner, Sovereignty: Organized Hypocrisy, Princeton, NJ: Princeton University Press, 1999, p.64.