| by Ruwantissa Abeyratne
(October 22, Montreal, Sri Lanka Guardian) No one would doubt that, without the intervention of NATO airpower, the Qadhafi regime and Qadhafi himself would not have fallen. Muammar Qadhafi was killed on 20 October 2011 after being captured by the Libyan fighters he once scorned as “rats,” cornered and shot in the head after they overran his last bastion of resistance in his hometown of Sirte.
|FILE PHOTO: Libya’s leader Qaddafi listens to Venezuelan President Chavez during the plenary session at the Africa-South America Summit on Margarita Island (Carlos Garcia Rawlins/Courtesy Reuters).|
During the “Arab Spring” of 2011, the Libyan military, its equipment and personnel who were launching military attacks on protesting civilians came under heavy attack from NATO as a consequence of United Nations Security Council Resolution 1973. This Resolution, which was adopted on 17 March 2011, demanded an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Qadhafi regime and its supporters.
Adopting Resolution 1973 by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory — requesting them to immediately inform the Secretary-General of such measures.
Recognizing the important role of the League of Arab States in the maintenance of international peace and security in the region, , the Council asked the League’s member States to cooperate with other Member States in implementing the no-fly zone.
The Council stressed the need to intensify efforts to find a solution to the crisis that responded to the legitimate demands of the Libyan people, noting actions being taken on the diplomatic front in that regard. It further demanded that Libyan authorities comply with their obligations under international law and take all measures to protect civilians and meet their basic needs and to ensure the rapid and unimpeded passage of humanitarian assistance.
Resolution 1973 specifically authorised Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures,, to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requested the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred, which measured would be immediately reported to the Security Council.
This resulted in concerted air attacks by NATO forces on military installations and ground forces attacking civilians, weakening the military forces of the Qadhafi regime.
The Resolution decided further that the ban imposed would not apply to flights whose sole purpose was humanitarian, such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals from the Libyan Arab Jamahiriya, nor would it apply to flights which are deemed necessary by States acting under the authorization to be for the benefit of the Libyan people, and that these flights shall be coordinated with any mechanism
Member States, acting nationally or through regional organizations or arrangements, were called upon to provide assistance, including any necessary overflight approvals. Furthermore the Resolution decided that all States would deny permission to any aircraft registered in the Libyan Arab Jamahiriya or owned or operated by Libyan nationals or companies to take off from, land in or overfly their territory unless the particular flight had been approved in advance by the Committee, or in the case of an emergency landing.
All States were required to deny permission to any aircraft to take off from, land in or overfly their territory, if they had information that provided reasonable grounds to believe that the aircraft contained items the supply, sale, transfer, or export of which was prohibited by the provisions of the Resolution, including the provision of armed mercenary personnel, except in the case of an emergency landing.
The significant elements of this Resolution lie in the ban imposed on all flights over Libyan airspace (except for humanitarian flights) and protection of civilians whereby States were authorized to take all necessary measures to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requested the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council. The phrase “all necessary measures” extended much flexibility for States to employ air power to strike the Libyan military, stopping short of foreign occupation of Libya.
Following the adoption of the text, Secretary-General Ban Ki-moon welcomed the Council’s “decisive” action. “While it cannot, by itself, end the violence and the repression, it is a vital step — a clear expression of the will of a united community of nations,” he said.
He expressed hope that the message that “gross violations of basic human rights will not be tolerated and that those responsible for grave crimes will be held accountable” would be “heard and heeded” by the Libyan regime and that it would bring hope and relief to those still at risk. He looked for similar action from the General Assembly and the international community as a whole, and warned that even bolder steps might be necessary.
In their explanations of vote, Council members welcomed the unanimity of the action and expressed solidarity with the people of Libya, hoping that their “swift and decisive” intervention would help bring them relief. Many expressed hope that the resolution was a strong step in affirming the responsibility of States to protect their people as well as the legitimate role of the Council to step in when they failed to meet that responsibility.
Resolution 1973 followed Resolution 1970 on tough measures on the Libyan Regime in response to its crackdown on protesters.
Deploring what it called “the gross and systematic violation of human rights” in strife-torn Libya, the Security Council this evening demanded an end to the violence and decided to refer the situation to the International Criminal Court while imposing an arms embargo on the country and a travel ban and assets freeze on the family of Muammar Al-Qadhafi and certain Government officials.
Unanimously adopting resolution 1970 (2011) under Article 41 of the Charter’s Chapter VII, the Council authorized all Member States to seize and dispose of military-related materiel banned by the text. It called on all Member States to facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance in Libya and expressed its readiness to consider taking additional appropriate measures as necessary to achieve that.
Jurists will argue on the legitimacy of this international move by the member States of the United Nations which are generally guided by the United Nations Charter, Article 2.4 provides that All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. As a counter argument is the compelling need to protect persons who are attacked by a regime to quell a peaceful protest.
Arguably, an analogy to the incursion into Libyan airspace by NATO aircraft would be the United States (and allies) military offensives on Afghanistan and Iraq, both of which, in terms of Article 51of the United Nations Charter (which required UN Security Council approval for intervention in the affairs of a State in self defence) were seemingly carried out outside the parameters of the United Nations Charter and prompted some jurists to allege breaches of sovereignty in both instances. State Sovereignty is about control over a society. However, it is also about responsibility and answerability.
United Nations General Assembly Resolution 3314 of 1974 provides some examples of aggression, among which is invasion or attack by armed forces of a State. One of the fundamental rules of humanitarian law in the context of armed conflicts was prepared by the International Committee of the Red Cross in 1978 requires parties to a conflict to distinguish at all times between the civilian population and combatants in order to spare civilian population and property. It goes on to say that neither the civilian population as such nor civilian persons shall be the object of attack. The 1981 Conventional Weapons Convention prohibits the use of mines, booby traps and other similar devices and incendiary weapons directed against the civilian population or used indiscriminately and the first Protocol of 1977 imposes very detailed target restraints with a view to protecting civilians.
These were the principles, as enforced by NATO airpower, and supported by anti Qadhafi forces, which brought down Muammar Qadhafi.