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Ius Ad Bellum - “Legal controversies pertaining to the use of force of the UNSC mandate in Libya”

IndexIus Ad Bellum

As the classical theory on the use of force goes, there ought to be three basic, philosophical principles behind justification for war. [7] 1.A just cause 2. carried out by a proper authority 3. and the final objective must always be peace. However, as time passed, it became clear that the use of force could only be regulated via the sanctioning of an international judiciary body- the UN system. In order to prevent the excessive use of force, the international community created a general prohibition of the unilateral use of force, based in art. 2(4) UN charter. Which meant that states were allowed to use force only in self-defense or after direct permission by the UN SC. [8]
The 20th century ius ad bellum would strongly be dominated by the view that a resort to the use of force should severely be limited by the prohibition set forth in art 2(4). [9]

More representative is the principle of non-intervention in civil wars, which had dominated the greater part of the 20th century. [10] Agreed upon in numerous international and regional treaties [11], it marked state sovereignty as a cornerstone for international relations. The consideration of the principle had been the argument that intervention within an internal conflict, with the assistance toward any party, may in fact be more within the interests of the foreign states then within the interests of a nation.

Nonetheless, towards the end of the 20th century and the end of the cold war, as the ideological bipolarity dissolved, numerous new issues appeared, where the prohibition of the use of force underwent metamorphosis towards vagueness. Subjects as “Humanitarian intervention” [12], “Pro democratic intervention” [13] and “Self-determination” introduced new challenges to the international legal community. These subjects do not have solid ramifications within the doctrine of the international law. Subsequently, in the “prohibition on the use of force against the Federal Republic of Yugoslavia” a first attempt was made to envisage certainty towards the use of force via a judiciary body. Although the ICJ obliged all members of the UN to uphold the rules of the Charter, it deemed itself incompetent for the fact of lacking jurisdiction in the matter. [14]
Ultimately, at the turn of the 20th century, lacking Judiciary body and unified approach, different states appeared to have chosen private, diverging approaches to the interpretation of the limitations on the use of force. As state practice deviated, we may in fact speak of the reality that the prohibition on the use of force is being diluted by new limitations. [15] These new limitations, in exemplum “use of force out of necessity” are vague by themselves, creating even greater vagueness towards the understanding of the initial term. Diverging approaches may have created a consequent anarchy towards the understanding of the use of force amongst different scholars. It seems that some have even acclaimed that the removal of the prohibition of the use of force might lead to the most effective results towards peace and order. [16]
Yet, recent developments within international law, more specifically state practice in the period of the former 20 years, does show a trend and perhaps a new emerging norm. [17] The international community has shown greater lenience towards permissive action, when liberal, democratic values and human rights are at stake. Often, insurgent groups and governments, which had shown support for liberal values, had been granted greater preference. As often, the intervening states are themselves based on liberal-democratic values; many have assumed that liberal-democracy might create the greatest niche for the development of human rights and democratic governance. [18] Such practical “spread of democracy”, may have caused a controversy with the Institute of International law, e.g. the norms of sovereignty, codified in the treaties of non-Intervention. The developments of the Libyan case may help us to analyze the recent issues and trends pertaining this controversy.
Index

Issues Pertaining To The Use Of The Mandate

Following one month of civil unrests in Libya, the intervention began after the resolution 1973, was adopted on march 17, 2011 by the UN SC.
What were the conditions set within the resolution, which would or would not provide a possibility for the use of force?
The core elements were: [19]

  1. (par 4) “…To take all necessary measures to protect civilians and civilian populated areas under threat of attack by the Libyan Jamahiriya, while excluding foreign occupation force of any form..”
  2. (par 6) ban on all flights in the airspace of the Libyan Jamahiriya in order to help protect civilians. (No fly zone), (par 8) To take all necessary measures to enforce compliance with the ban on flights.
  3. (par 13) “to ensure strict implementation of the arms embargo” par. 13-16
  4. (Financial asset freeze) par. 19-21

By all accounts, the main written purpose of the resolution was to end violence towards peaceful civil population. The end to this purpose lied in the enforcement of a no fly zone, arms embargo, government-asset freeze and “all necessary means” to prevent civil casualties. [20] Exempli gratia, in accordance to some NGO’s, the targeting of civilians was being pursued indiscriminately. [21]
At the time of an ongoing civil war, a “no fly zone” might reduce civil casualties due to large inaccuracy of air force bombings. Consequently, the main purpose of the mandate, as stated earlier, is to stop violence and facilitate dialogue between the warring parties towards a peaceful resolution of the crisis: “With the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution” [22]
What requires special attention is that apparently the mandate does not provide certain privileges to aid one of the parties within the Libyan civil war. Inasmuch as, the external states may at no time choose sides in the war in addition to the fact that no foreign military armies may participate in the hostilities, directly on the ground.

Abstract purpose versus the practical execution: Perhaps a considerable dispute between the international scholars concerning resolution 1973 is whether the vague, abstract formulation had been consistent with the practical execution of the mandate. [23] It is formulated in resolution 1973 that the purpose is: facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution. This purpose is to be achieved by the mechanisms, set in par 4-13. Namely: the arms embargo, the imposition of the no fly zone and the undertaking of all necessary means to protect the civil population. But to what extent may these terms be stretched towards the meaning that the drafting parties had in mind?
It is of no question that all members of the SC wished for a quick end of violence in the region. [24] It is further no question that all members aspired for a cease-fire and an internal dialogue between the hostile parties. The main debatable question is that the permanent members may have had different expectations towards the enforced means. Permanent members Russia and China having the right of Veto explicitly abstained from the use of Veto, giving green light to the mandate. [25] However in case of Russia, an explicit demand had been that a military operation was to be avoided and time for cease-fire and political negotiation should’ve been be given. The main concern was that a military operation would cause even more casualties and therefore would be in contradiction with the purpose.
China additionally argued that a military intervention might not lead to an expected result, taking examples from past military interventions (Iraq, Afghanistan etc). Simply said, there were no guarantees that a forceful intrusion would lead to peace. In accordance to China, the doctrine of a states sovereignty and territorial integrity ought to be respected, even in case of Libya.
When the military operations, coordinated by NATO, seemingly turned into an overt mission to overthrow the Jamahiriya government and to aid the rebellion [26], Russia and China expressed grave disagreement with the ongoing operation. It had been stated that the reason why they agreed to the resolution, was that the drafting states (France and UK) created expectations that the measures taken would not be aimed at choosing sides within the civil war. The purpose was to create a level playing field for all parties within the conflict and persuade all parties to seek settlement by peaceful means.
The “coalition of the willing”, however, argued that the terminology used in resolution 1973 had been used in past precedent - Iraq and that international law was abundantly clear what expectations were to be foreseen, when terminology “all necessary means” and “No fly zone” were used. [27] Consequently, by agreeing to the vague terminology, the drafting states ought to have foreseen an abundant practical execution, including affluent military incursion.
Remembering previous state practice, we may recall the interventions in Kosovo, Bosnia, Iraq and Rwanda, noting that in cases of risk of human and humanitarian violations and in cases of danger of violence towards surrounding regions, interventions had occurred with support to pro-democratic forces. [28] An example of the legalization of such practice, we may find in the Iraqi resolutions.
Thereupon, It might be useful to remember, how the interpretation of the terminology “all necessary means” and “no fly zone” in Libya traces its origins to the Use of force against Iraq. [29] Considering which argument the allied forces had used in the formulation of the previous resolutions, in example 1441, 687 and 670 to achieve permission, we may discover the conditions being a base for the used terminology. [30]

Comparison with the Iraqi case. The policy on the Libyan intervention may find its roots in the recent history of other interventions. [31] The most prominent one is the case of Iraq, where for the first time an employment of unilateral use of force had been executed against a state, whilst using the terminology of a “no fly zone” and “all necessary means” in order to achieve a certain result. Therefore, researching the origins of the formulation and the use of these legal tools may bring us closer to the understanding of the current situation. As some state, the interpretation of the Iraqi terminology might have opened a Pandora’s box within the international legal order.
As it seems, recently all necessary means might have been viewed as short hand for authorization of the use of force towards a certain goal. The Libyan scenario might have been comparative. [33] What caused the broad interpretation of the used terminology? The answer lies in the tricky trail of the “Desert Fox” towards “Iraqi Freedom”. [34]

Origins of 1441 vs the purpose of the mandate. In 2003 the US-UK-led coalition forces invaded Iraq arguing that the conditions of the previous UN Security council resolutions 1441, 678 [35], 687 [36] (and other) were breached, thus permitting a forceful subjugation of a sovereign state. In accordance with the coalition’ statement, the breach consisted of grave human rights violations against Iraqi citizens, support of international terrorists and the continuation of the WMD programs, posing a possible threat to the peace and security of the international community.
The debate on the legality of the Iraqi use of force is centered around the question- Were the coalition forces allowed to interpret the conditions set in the previous, 10 year old resolutions as affirmative for military invasion in 2003?
As the US leadership officially stated that its foreign policy was to bring about the governmental change in Iraq, other permanent members of the SC, explicitly expressed that the resolution 1441 [37] did not include permission to overthrow the Iraqi government. [38]
Let us analyze the resolution’ formulation:

Recalling its resolution 678… to use all necessary means to uphold and implement its resolution 660 … to restore international peace and security in the area.
Further recalling resolution 687 … imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area,

Fundamentally, the abstract purpose of the resolution 1441 was to force Iraq to comply with the weapons embargo and its territorial integrity by upholding a no fly zone and all necessary means [39] to endorse peace in the region. The purpose was peace, not an overthrow of government or the ability to target Iraqi army. The purpose of the primary resolution 687 towards which 1441 referred, was to cease the invasion of Kuwait (initially endorsed by the allied governments). [40]
The controversy rising from this is that these resolutions were promptly taken in the early nineties. The conditions of which, were aimed at ending the gulf war. To what extent may those be used 13 years later, to begin a full-scale invasion and government overthrow? [41]
Thereupon the matter of debate might be the fact that the resolutions in the early nineties and resolution, drafted 10 years later, were aimed at different purposes.
It is logical to assume that 687 and 678 allowed for greater military intervention, as Iraq was considered “aggressor” in an international conflict at the time [42]. It is however less logical to refer to the means of achieving the purpose: the ending of aggression and at the same time follow a severely different objective- demilitarization and democratization.

A fundamental detail is that Iraq would receive a final opportunity to comply with its disarmament obligations under previous resolutions. The resolution did not have the term “all necessary means” within its formulation. However “remained seized on the matter” of the previous resolutions, reiterating, UN SC 678, endowing a passage “to use all necessary means” in case of material breach by Iraq. Thus an old term, permitting the use of force in case of Iraqi international aggression, had been used for the purpose of an intervention within Iraqi internal affairs.

The second Issue is aimed at the drafters’ purpose of the final resolution 1441. This may be considered of utter importance for the matter in casu. As the drafting of this resolution and the subsequent reactions of member states reflect the legal attitudes of a few months before the invasion. [43]
As stated by an 8-week negotiation with SC member states Russia and France, in case of further material breach by Iraq, supplementary resolutions would be needed for military action. Russia and France explicitly denounced the possibility of military invasion, which could be based on resolution 1441.
Additionally, Syrian representatives, who voted in favor of the resolution, were granted specific guarantee by the British diplomats that the resolution did not contain any automaticity for the use of force against Iraq. One might say that the drafters created an expectation of peaceful resolve.

This is perhaps the key element of the Iraqi case: Resolutions ought to be given clear, exact framework and conditions. Lack of clarity and uncertain conditions might lead to disorder and a lack of democratic legitimacy.

There exists a popular opinio iuris, that the war might have been illegal. For example, UN secretary General Kofi Annan proclaimed the war to be illegal because the conditions of the UN charter were not met. [44] As Mr. Annan declared earlier, the invasion was illegal due to the fact that it was not sanctioned explicitly by the UN SC [45]. According to Mr. Annan, permission for invasion would require a new resolution.
As it seems, the expectation of the international community, that is the implicit meaning of the resolution, required additional steps by the international community in order to permit the use of force. [46]

As we may conclude, the legitimitative argumentation for the use of force in Libya had been found in the state practice of former resolutions. In the Iraqi resolution the practical execution, the use of force to overthrow a government diverted from the abstract purpose of the drafting states, which was disarmament and civil safety.

As analized above, both the formulation as the draft process of the resolution implicitly denied the possibility of active participation. The event has not been protested or renounced by the International Court of Justice. Therefore we may witness that the incident based upon certain terminology, created a precedent of legality [47] until another case or judiciary body will deny such occasion. [48]
Ergo sum, we may expect wide interpretation of the terminology of the mandate. It seems that the use of new terminology: the establishment of a “No fly zone” and use of “all necessary means” contributed greatly for the use of force in Libya.
All necessary measures, is now an ambiguous legal term, which due to its precedent use, may allow automaticity towards the use of force against states. Controversially, the automaticity for the use of force had been implicitly was denied by the drafting states. This knowledge has now been long burrowed in the sands of time and memory.

Such attitude, as some scholars argue, does create an abstract, vague goal without any checks and balances of the execution. [49] Some have claimed that the “coalition of the willing” has received a delegation of unlimited authority towards a vague, Illyrian Call for democracy.

According to a number of legal scholars, the mandate for the unilateral use of force may now be executed towards the so-called new “democratic intervention”.
We may witness an occurring trend within the recent State practice. [50] Results of numerous intervention cases have shown that the international community prefers to provide some sort of support for groups or governments, that value liberal democracy. The international law and numerous ICJ rulings [51] explicitly disapprove of such action. Yet lately, the democratization of non-democratic states has not been brought up as a justification. Such “democratic intervention”, however, sparks controversy between law and practice. As there may be no clear evidence that liberal democracy is in fact the most progressive and peaceful system.
If to analyze the situation in the region, the opposing rebels can hardly be seen as ideological warriors for liberal democracy. Most are followers of an Islamic fundamental ideology, often less democratic then the semi-secular Jamahiriya government.

This brings us to the second argument of the coalition of the willing: The intervention in Libya is of a humanitarian character, aimed at the protection of civilians. [52] So far, the general idea has been that humanitarian intervention is not permitted for intervening states as an independent new tool [53]. It may only serve as an argument in the permissive use of force, granted solemnly by the UN charter. [54]
This brings us back to our primary issue- which practical actions are allowed to the UN’ mandate executioner, in order to not overstretch the ambiguous terminology? An important factor would be proportionality- to protect civilians without over committing to other internal affairs. It has been stated that a humanitarian intervention does not necessarily bring about the misuse of this tool in the interests of the intervening state. [55] An ambiguity as this may even serve as a deterring factor for non-democratic states. Yet, not much proof had been provided, except in legal theoretical cases, that a broad interpretation of the term would lead to beneficiary results.
I might say that as long as such wide ambiguity exists, states ought to interpret it narrowly, instead of expansively, in order to protect the basic idea of current statehood- sovereignty. If we lose sovereignty, then we risk returning to the 19th century imperialism where the size of the cannon dictated justice.
Index

Arms Supply To The Rebels [56]

A controversial legal issue pertaining the question of the mandate’s boundaries concerns the supply of arms and military instructors by NATO to the insurgents of the NTC.
As the mandate is based on resolution 1973, which is meant to reaffirm and enforce resolution 1970; a full-scale arms embargo had been imposed on Libya (para 13-16). By all accounts, supplying the rebels with arms and admitting to it [57], the executioners of the mandate voluntarily violated the arms embargo and thus overstepped the boundaries set forth by the mandate.

Yet, was it so simple? As further remarks by the coalition diplomats were made, the interpretation of mandate 1973 gave permission for the supply of arms.
This interpretation found ground in the argument that par 4 (1973) amended the arms embargo and provided possibility of arms supply in certain cases set forth in the paragraph. [58] However this amendment was not made explicitly, even more an explicit provision imposing an arms embargo had been made previously (resolution 1970). The exception had been correlated from the vague terminology of the mandate. It appears questionable, whether the international community had such an exception in mind. [59]

The controversy derives from the terminology in par. 4: “to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya
Grammatical interpretation of “notwithstanding” could mean an exception, “in spite of” the overall rule. A certain “lex specialis” which might provide maneuverability to exception.
The coalition forces have used an expansive approach [60] to the interpretation of this paragraph. As it had been stated, the clause provided an exception to the arms embargo allowing arming the insurgents if this was needed to “protect civilians and civil populated areas”. Furthermore, this clause might have been purposefully adopted, to provide a backdoor to the arms embargo. By agreeing to it, states ought to have expected the consequent execution of the mandate.
Such legal attitude, however allows for even greater contradictions. Prima facie, the letter of the text creates a full-scale embargo. During the draft the states did not explicitly discuss this subject, thus one may expect that it ought not to be meant as an “exception”. The attitude of the abstaining states with the power of veto, a priori shows that they have ruled out such possibilities in the past and could not have agreed to the interpretation, as done by the UK and US diplomats.
As the Iraqi case has shown, unilateral interpretation of the mandate is not permissible, thus a restrictive, as opposed to expansive approach ought to be chosen.
For these grounds, it may seem that by choosing expansive approach, the coalition forces might have violated the expectations of the international community and overstepped the mandate.
In addition, arming insurgent armies for “self defense” might be considered very irrational from a practical point of view towards peace purpose. Weapons, one day used for protection, may be used the next day for assault.
An important issue to note is that without the supplied arms, the smaller insurgent army would’ve suffered defeat and would not be able to make military advances. [61] How does unilateral arming of minority groups conform with international democratic principles?

Purpose of an arms embargo. The primary consideration of an arms embargo is that it is a “smart sanction”, targeting primarily the military and political elite, whilst having lesser humanitarian effect on the civil population. [62]
Determinately one may notice that the arms embargo is a complete, territorial arms embargo, precluding any arms transfer to the territory of Libya. The common state practice of UNSCR arms embargos is that these count for all groups, otherwise specific groups ought to be named as was the example in SC Res 1807, para. 1 on Congo. By not having named any fractions specifically, the arms embargo ought to address all parties of the conflict.
As we may see from state practice and from existing opinio iuris [63], arms embargoes are with the specific purpose of ending aggressive activities and forcing a dialogue, while dealing the least damage to civil population. The purpose of “dialogue” had as well explicitly been stated in resolution 1973. As happened in the past, arms embargoes have always been interpreted excessively, with the least possibility for any form of interpretation of exception. Such could have been the purpose for Libya; supply of arms and training personnel might escalate the situation into further civil war and destabilization of the region. [64] Increasing levels of military expertise and arms quantities could cause longer escalation and bloodier results of the conflict and possible “export of trained, armed force” to other countries in the region. In the light of such possibilities, it is difficult to understand how arming the rebels would be justifiable with the “use of all necessary means to protect civil population”.

Consequences of arms embargo violation. Although the U.N. Arms embargoes are binding on states, in practice not many consequences may occur towards the violating states, as there are yet no definite mechanisms to repair the violations. [65] The international community ought to research further possibilities of development of international law in the articles of State Responsibility. [66] Furthermore, secondary sanctions may be imposed on violating states. [67] As was done with Liberia after it violated arms embargo to Sierra Leone. [68]

In both supplying arms as supporting the insurgent advance with skill, we may take a closer look at the argumentation in the Nicaragua case [69].
Some pro-coalition jurists have stated that, based on the Nicaragua case, a state having permission for military action may arm rebel fractions as well. I consider this to be a pseudo-logical misinterpretation of the case. As the case made clear, supporting non-state groups with arms and other assistance is not permitted if a state does not have explicit permission from the UN mandate.
This does not automatically mean that if a state has permission for vague military action, it may immediately arm/assist non-state groups. Such logical fallacy is a demonstration how a legitimate purpose can be twisted into opposite.
In accordance with the Nicaragua case, material assistance of armed insurgency may be considered as “Support” of a violent overthrow of the regime of another state. [70]

This brings us to the question of recognition. Some coalition forces recognized the NTC government as a representative of the Libyan people, whilst the previous, Jamahiriya government as illegitimate. Consequently an argument had been precluded that support had been granted to a legitimate government. [71] Such an argumentation however is controversial. The current rules of recognition are more or less based on support by the majority of international community. The recognition of the NTC had been based on the support of twelve states. This may hardly been accepted as a form of international recognition. Even more, if the recognized insurgents were granted belligerent rights, then the boundary of the UN SC mandate, the arms embargo, would apply to them as well.
In the commentaries to the State Responsibility articles, we may read that a state commits an internationally wrongful act, if it supplies arms to a state or insurgent group. We may note that it may be hard to find international judiciary justification in the possibility of arming fractions of an (internal conflict) rebellion.

Thus a legal controversy has risen, now that the Allied Forces might have violated the arms embargo.

The explicit purpose was not to assist the insurgency but to promote peace within the region. Consequently there was no such purpose provided explicitly by the mandate. Whereas the US government was held to repair injuries for supporting rebel groups against a legitimate government of Nicaragua, we may consider the ruling of the ICJ exemplary for the spirit of international law:
by supporting/arming opposition insurgents, a state may find itself:
In breach of its obligations under customary international law not to use force against another State:
"not to intervene in its affairs",
"not to violate its sovereignty"

Once again, it seems that the mandates’ executioners exceeded the purpose by supplying arms, whilst acting against a prohibition.

Index





[7] Mohammad Taghi Karoubi, “Just or Unjust war?: international law and the use of armed force by states at the turn of the 20th century” Ashgate Publishing LTD, 2004 p.50: Dating to the Roman Ius ad Bellum and the revival in the forming of the Western statehood.

[8] Ibid, p. 150, “The un Charter’s position on the just war question is that it is permissible for states, regardless of their domestic power structures, to go to war, if and only if they are victims of the threat of use of force against their territorial integrity or political independence and only such time the UNSC acts to restrain the aggressor.”

[9] Christine Gray “International Law and the Use of force” Oxford University Press 2004: chapter 7, p. 195-251 “The UN and the use of force”

[10] Maziar Jamnejad & Michael Wood, “The Principle of Non-intervention”, Leiden Journal of International Law, 22(2009), pp. 345-381

[11] Exemplary are: Treaty of Wiesbaden 1975 on “Non-Intervention in civil wars”, Title 1 of the Treaty on European union, art. 4 of the constitutive Act of the African Union, and other.

[12] Ibid 9, chapter 2, p. 29-58: “the prohibition of the use of force”

[13] ibid 9, chapter 3, p. 59-94: “Invitation and intervention: Civil wars and the use of force”

[14] Ernest K. Bankas, “The state Immunity controversy in International law” chapter 9.7.1., p. 274 “The legality of the use of force before the ICJ” Springer Berlin 2005

[15] Jean d’Aspermont, “Mapping the concepts behind the contemporary liberalization of the use of force in international law”, University of Pennsylvania Journal of International Law, 31(4) 2010, p. 101-159

[16] ibid. p. 55: “The impact of the demise of prohibition of the use of force would bring about a fundamental overhaul of the essence of the UN System”

[17] Roderic Alley, “Internal Conflict and the International Community, Wars Without End?” ch. 2,6,7, Ashgate Publishing 2004

[18] Anne-Marie Gardner, “Democratic Governance and Non-State Actors”, Palgrave Mc.Millan publishing 2011

[19] UN SC Resolution 1973 (2011)

[20] Jennifer Welsh: “Civilian Protection in Libya: Putting Coercion and Controversy back into RToP” Journal Ethics and International Affairs, 2011, p. 1-8

[21] UN News Centre, “Secretary-General calls on Security Council to consider immediate steps to stop killings in Libya”, U.N. Press Release February 25, 2011

[22] Ibid 15

[23] M-J. Domestici-Met, “Protecting Libya on behalf of the International Community” Gottingen Law journal 3 (2) 2011

[24] Ben Barry, “Libya’s Lessons”, Journal Survival Global Politics and Strategy, International Institute for Strategic Studies, 53(5) October-November 2011 p. 5-14

[25] Jennifer Welsh, “What a difference a year makes” Canadian International Council, Oxford Institute for Ethics, Law and Armed Conflict, February 14, 2012

[26] Daalder I.H., Stavridis J.G., “Nato’s victory in Libya the right way to run an intervention”, Journal Foreign Affairs, 91 (2) March-April, 2012

[27] Crass C.D., “Memorandum opinion for the attorney general: Authority to use military force in Libya”, Opinions of the office of legal counsel, April 1, 2011

[28] Roderic Alley, “Internal Conflict and the International Community, Wars Without End?” ch. 2,6,7, Ashgate Publishing 2004

[29] Fischer D., Biggar N., “Was Iraq an unjust war? A debate on the Iraq war and reflections on Libya”, International Affairs Journal, 87 (3), May 2011, p. 687-707

[30] US Congressional Research Service, CRS Issue brief of congress, Iraq: Weapons Threat, Compliance, Sanctions, and U.S. Policy, December 10, 2002

[31] Ibid 23

[32] Ibid 23

[33] Desert Fox and Iraqi Freedom being the operational names of the military interventions in Iraq.

[34] Ibid 23, as described history of human rights violations and non compliance with international requirements

[35] UN SC Resolution 678 (1990)

[36] UN SC Resolution 687 (1991)

[37] UN SC Resolution 1441 (2002)

[38] BBC News: Middle East, France Threatens rival Iraq draft, October 26, 2002

[39] Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012, p. 368

[40] UN SC Resolution 678 (1990)

[41] Christine Gray “International Law and the Use of force”, Oxford University Press, 2004, “Operation Iraqi Freedom”, p. 271

[42] Mehrdad Payandeh “The United Nations regime change and military intervention in Libya”, Virginia Journal of International Law, 52 (2) January 2012

[43] Mohammad Taghi Karoubi, “Just or Unjust war?: international law and the use of armed force by states at the turn of the 20th century”, Ashgate Publishing LTD, 2004, par. 5.4 Unilateral use of force by the US and UK against Iraq, p. 198

[44] BBC News, Middle East, Iraq war Illegal, Says Annan, September 16, 2004

[45] The Guardian, World News, The Iraq war was illegal and breached UN charter, says Annan, September 16, 2004

[46] Mohammad Taghi Karoubi, “Just or Unjust war?: international law and the use of armed force by states at the turn of the 20th century”, Ashgate Publishing LTD, 2004, par. 5.4 Unilateral use of force by the US and UK against Iraq p.205

[47] Roozbeh Rudy B. Baker, “Customary International Law in the 21st Century: Old Challenges and New Debates”, European Journal of International Law, 21 (1), 2010 p. 173-204

[48] Analogous may be the example of the drug tolerance policy in the Netherlands- as soft drugs are prohibited by law, the usage is not being prosecuted, creating a legal loophole for the usage of the (prohibited) soft drugs.
Henk Jan Van Vliet, “The uneasy decriminalization: The perspective on Dutch drug policy”, Hofstra Law Review, 18 (3) 1990, 717-750

[49] Curtis Doebbler: “The use of force against Libya: another illegal use of force”, JURIST – Forum, March 20, 2011

[50] Anne-Marie Gardner, “Democratic Governance and Non-State Actors”, Palgrave Mc.Millan publishing 2011

[51] ex. Nicaragua case, ibid 64

[52] Matilda Arvidsson, Dr Diana Amnéus and Prof. Gregor Noll, “Instant analysis of the situation in Libya”, Online lecture, University of Stokholm, March 30, 2011

[53] Pablo Arrocha, “The Never Ending Dilemma: Is the Unilateral Use of Force by States Legal in the Context of Humanitarian Intervention?” Anuario Mexicano de Derecho International, 11(2011) pp. 11-44

[54] Maziar Jamnejad & Michael Wood, “The Principle of Non-intervention”, Leiden Journal of International Law, 22(2009), pp. 345-381

[55] Ryan Goodman, “Humanitarian Intervention and Pretexts for War”, American Journal of International Law, vol. 100, (01)2006

[56] The Guardian, World News, NATO Reviews Libya campaign after france admits arming rebels, June 29, 2011
BBC News, Africa: French arming of Libya's rebels strategic, June 29, 2011

[57] Macleans.ca, news, France admits arming Libyan rebels, June 29, 2011

[58] Dapo Akande, Does SC Resolution 1973 Permit Coalition Military Support for the Libyan Rebels?, Blog of the European Journal of International Law, March 31, 2011

[59] Sky News, World News, Confusion reigns over arming Libyan rebels, March 31, 2011

[60] The US and UK allies used an expansive approach to the interpretation of the resolution, versus Russia and China, demanding a restrictive one.
Fischer D., Biggar N., “Was Iraq an unjust war? A debate on the Iraq war and reflections on Libya”, International Affairs Journal, 87 (3), May 2011, p. 687-707

[61] Ben Barry, “Libya’s Lessons”, Journal Survival: Global Politics and Strategy, International Institute for Strategic Studies, 53(5) October-November 2011 p. 5-14

[62] Fruchart D., Holtom P., Wezeman S.T., “United Nations Arms Embargoes: Their
Impact on Arms Flows and Target Behaviour” SIPRI, Uppssala Universitet, 2007

[63] Hin Yan Liu, “Mercenaries in Libya: Ramifications of the Treatment of ‘Armed Mercenary Personnel’ under the Arms Embargo for Private Military Company Contractors”, Journal of Conflict Security Law, 16 (2) 2011, p. 293-319

[64] Ibid p.317

[65] UNHCR report, Weapons and War Crimes: The complicity of arms suppliers, January 26, 2004, p.5

[66] E.g.: The International Law Commission, in its Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001, concluded that: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.”

[67] Ibid 51

[68] Liberia became subject of a travel embargo, timber embargo, diamond embargo and advanced arms embargo.

[69] ICJ, Nicaragua v. United States of America, Judgement of 27 june 1986

[70] Maziar Jamnejad & Michael Wood, “The Principle of Non-intervention”, Leiden Journal of International Law, 22(2009), pp. 345-381

[71] Stefan Talmon, “Recognition of the Libyan National Transitional Council”, ASIL Insight, 15(2011)

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