The Applicability of International Humanitarian Law to the Conflict in Libya

in International Community Law Review
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Abstract

The purpose of this article is to examine the applicability of international humanitarian law to the 2011 conflict in Libya in its consecutive phases. We argue that the situation in Libya rose to the level of non-international armed conflict between the government forces and insurgents united by the National Transitional Council by the end of February 2011. The military intervention by a multi-state coalition acting under the Security Council mandate since March 2011 occasioned an international armed conflict between Libya and the intervening States. We consider and reject the arguments in favour of conflict convergence caused by the increased collaboration between the rebels and NATO forces. Similarly, we refute the propositions that the Gaddafi government’s gradual loss of power brought about conflict de-internationalisation. Finally, we conclude that both parallel conflicts in Libya terminated at the end of October 2011. The article aspires to shed light on the controversial issues relating to conflict qualification in general and to serve as a basis for the assessment of the scope of responsibility of the actors in the Libyan conflict in particular.

The Applicability of International Humanitarian Law to the Conflict in Libya

in International Community Law Review

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References

11)

See e.g. Ian Black“Libya’s Day of Rage Met by Bullets and Loyalists”The Guardian (17 February 2011) <www.guardian.co.uk/world/2011/feb/17/libya-day-of-rage-unrest> accessed 29 July 2012; see also International Commission of Inquiry March 2012 Report supra note 8 Annex I para. 77 (clashes occurred in Misrata Al Zawiya and central Tripoli and provoked a particularly violent reaction by the government forces in Tripoli).

25)

ICSFFM Reportsupra note 12 para. 48; International Commission of Inquiry January 2012 Report supra note 9 paras. 28 55.

36)

Kareem Fahim and David D. Kirkpatrick“Libyan Rebels Repel Qaddafi’s Forces Near Tripoli”New York Times (24 February 2011) <www.nytimes.com/2011/02/25/world/africa/25libya.html?pagewanted=all> accessed 29 July 2012.

41)

ICSFFM Reportsupra note 12 para. 46; International Commission of Inquiry March 2012 Report supra note 8 Annex I para. 65.

44)

But see ICSFFM Reportsupra note 12 para. 62 (“[By 10 March 2011 the date considered as the first day of the NIAC] the NTC and an associated Military Council had been established and had issued press releases and communiqués”).

49)

See e.g. Pejićsupra note 4 p. 88; John B. Bellinger and William J. Haynes “A US Government Response to the International Committee of the Red Cross Study on Customary International Humanitarian Law” 89 International Review of the Red Cross (2007) p. 448.

52)

Alexander Dziadosz“Benghazi, Cradle of Revolt, Condemns Gaddafi”The Star (23 February 2011) <http://thestar.com.my/news/story.asp?file=/2011/2/24/worldupdates/2011-02-23T222628Z_01_NOOTR_RTRMDNC_0_-550982-4&sec=Worldupdates> accessed 29 July 2012.

53)

See e.g.“Gaddafi Loses More Libyan Cities”Al Jazeera (24 February 2011) (regarding Tobruk and Misrata) <www.aljazeera.com/news/africa/2011/02/2011223125256699145.html> accessed 29 July 2012; Kareem Fahim and David D. Kirkpatrick “Libyan Rebels Repel Qaddafi’s Forces Near Tripoli” New York Times (24 February 2011) <www.nytimes.com/2011/02/25/world/africa/25libya.html?pagewanted=all> accessed 29 July 2012 (regarding Misrata Zuwarah and Sabratha); International Commission of Inquiry January 2012 Report supra note 9 para. 55 (regarding Tobruk Misrata and Shahat).

57)

UN SC Res. 1970 (2011) para. 1.

59)

UN SC Res. 1973 (2011) paras. 4 6.

63)

GC IV Commentarysupra note 15 p. 20; see also Čelebići Appeal Judgement supra note 19 para. 184 (juxtaposing IACs and NIACs insofar as the requirement of intensity and duration is concerned); but see Christopher Greenwood “Scope of Application of Humanitarian Law” in D. Fleck (ed.) The Handbook of International Humanitarian Law (2nd ed. 2008) p. 48 and Gary D. Solis The Law of Armed Conflict: International Humanitarian Law in War (2010) p. 151 (both arguing for a more restrictive view); see also United Kingdom Declaration on Signature of the 1977 Geneva Protocols para. (a) (contending that the term “armed conflict” used in Additional Protocol I implies a level of intensity equal or greater to that required for the application of Protocol II).

66)

See e.g. Tamás Hoffmann“Squaring the Circle? – International Humanitarian Law and Transnational Armed Conflicts”Hague Academy of International Law (2010) p. 11 and the references cited therein.

67)

See e.g. Johnstonsupra note 46 p. 101 (“it is . . . likely impossible in the heat of the battle to determine an enemy fighter’s origin allegiance and the legal regime to which he is subject”).

74)

ICRC Experts Report 1971supra note 73 paras. 303–304; ICRC Experts Report 1972 supra note 73 Vol. I para. 2.347.

77)

See e.g. Peter Walker“No Apology from Nato for Air Strike on Libyan Rebel Tanks”The Guardian (8 April 2011) <http://www.guardian.co.uk/world/2011/apr/08/nato-no-apology-libya-air-strike> accessed 29 July 2012 (complete lack of mutual information about the basics of operational tactics and methods of warfare: “ ‘It would appear that two of our strikes yesterday may have resulted in [rebel] deaths’ he told reporters in Naples where the operation is based. ‘I am not apologising. The situation on the ground was and remains extremely fluid and until yesterday we did not have information that [rebel] forces are using tanks.’ ”); Statement of the NATO Secretary General dated 13 May 2011 <http://www.nato.int/cps/en/natolive/opinions_74038.htm> accessed 29 July 2012 (“The NATO mandate does not give us any authority to decide on sides at a NATO level. The operational activities that are being carried out as I’ve said are to protect the civilian population. Any relationship with pro- or anti-Qadhafi forces is beyond this forum for myself at this stage.”).

79)

Michael Lewis“How Should the Conflict in Libya be Categorized?”Opinio Juris (30 March 2011) <http://opiniojuris.org/2011/03/30/how-should-the-conflict-in-libya-be-categorized> accessed 29 July 2012; see also Johnston supra note 46 p. 104 (arguing that NATO does not become a party to the conflict).

80)

Bruno Waterfield“Libya: British Military Advisers Set up ‘Joint Operations Centre’ in Benghazi” The Telegraph (18 May 2011) <www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8521977/Libya-British-military-advisers-set-up-joint-operations-centre-in-Benghazi.html> accessed 29 July 2012.

82)

Lewissupra note 79. Lewis erroneously ascribes this argument to Justice Stevens who however only mentioned it in his opinion before holding that “the merits of this argument” need not be decided on because Common Article 3 applied to the US-Al Qaeda conflict irrespective of whether or not the conflict parties were signatories of the Conventions. See Hamdan v. Rumsfeld 548 US 557 628–629 (2006).

83)

Johnstonsupra note 46 p. 104.

92)

Walkersupra note 77.

93)

ICSFFM Reportsupra note 12 para. 56.

96)

Waterfieldsupra note 80.

100)

See e.g. Johnstonsupra note 46 pp. 97–102 (with regard to Libya); Theodor Meron “Classification of Armed Conflict in the former Yugoslavia: Nicaragua’s Fallout” 92 American Journal of International Law (1998) p. 238 (with regard to Yugoslavia); Theodor Meron “The Hague Tribunal: Working to Clarify International Humanitarian Law” 13 American University International Law Review (1998) p. 1515 (in general with respect to conflicts “where practically all the fighting is done by a foreign power alongside the rebels but where the rebels maintain their independence from the intervening country” emphasis added).

112)

Del Marsupra note 111 p. 112. Although Del Mar does not expressly extend her argument to conflict qualification she considers the fulfilment of the requirement of belonging to a conflict party as a conditio sine qua non for bringing a non-State armed group under the purview of the law of IAC thus effectively internationalising the conflict between such group and the State it is fighting.

114)

ICRC Experts Report 1972supra note 73 p. 51 para. 301(1).

118)

See also ICRC Experts Report 1972supra note 73 paras. 301–302 (expressing a similar view in relation to situations of direct military intervention).

121)

Maher Chmaytelli and Peter S. Green“Libya Rebels, NATO Don’t Have Joint Operations, Official Says”Bloomberg (16 April 2011) <http://www.bloomberg.com/news/2011-04-16/libya-rebels-nato-don-t-have-joint-operations-official-says.html> accessed 29 July 2012 (confirmation by the rebels and denial by NATO); Waterfield supra note 80 (confirmation by the UK).

124)

Accord ICSFFM Reportsupra note 12 para. 63 (concluding that the conflict was of a mixed nature for its whole duration).

127)

Dinsteinsupra note 75 pp. 25–28 (adding two exceptions namely wars of national liberation under Art. 1(4) AP I and conflicts in which the insurgents are recognized as belligerents by the government).

131)

See e.g. Willssupra note 130 p. 194 (claiming that this view is shared by the majority of commentators) Milanović and Hadži-Vidanović supra note 2 p. 23 note 147 (calling it “a strong majority view”); Johnston supra note 46 p. 107.

138)

See e.g. Anthony Shadid“Libyan Forces Rout Rebels as West’s Effort for No-Flight Zone Stalls”New York Times (16 March 2011) <www.nytimes.com/2011/03/16/world/africa/16libya.html> accessed 29 July 2012.

139)

See e.g. Wrightsupra note 3 p. 236 (“When Tripoli fell to rebel forces . . . the uprising had clearly succeeded”).

140)

Cf. Kareem Fahim and Rich Gladstone“Libya Rebels Fight Loyalists, and Put Bounty on Qaddafi”New York Times (24 August 2011) <www.nytimes.com/2011/08/25/world/africa/25libya.html> accessed 29 July 2012 (Gaddafi called his retreat from Tripoli a “tactical manoeuvre” and Russian president Medvedev still considered there to have been “two powers” in the country emphasising Gaddafi’s “influence and military potential”).

141)

See e.g. Griff Witte“Taliban Establishes Elaborate Shadow Government in Afghanistan”The Washington Post (8 December 2009) <www.washingtonpost.com/wp-dyn/content/article/2009/12/07/AR2009120704127.html> accessed 29 July 2012 (a shadow government run by the Taliban had a significant portion of Afghanistan under control).

143)

Cf. Schindlersupra note 18 p. 129 (noting that humanitarian conventions should not be made subject to political considerations).

147)

See e.g. Dinsteinsupra note 75 p. 29; see further references in note 131 supra. The classification of the fighting between the US and al-Qaeada was more controversial. While some scholars considered it an IAC (see e.g. Dinstein ibid. pp. 56–57) the US Supreme Court considered Common Article 3 to be the legal framework applicable to the conflict. Hamdan v. Rumsfeld 548 US 557 625–632 (2006). It is however beyond the scope of this article to address the issue of classification of transnational armed conflicts or of the ‘war on terror’ in depth. For further discussion see Hoffmann supra note 66.

148)

Cf. Wills e.g.supra note 130 p. 176 (arguing that the international community’s acceptance of the legitimacy of a government is not “a sound basis on which to base critical judgments that have the effect of depriving the population of a state of the protections of the Geneva Conventions in the midst of an on-going war”).

156)

Johnstonsupra note 46 p. 108.

164)

Richard Norton-Taylor“NATO Ends Military Operations in Libya”The Guardian (31 October 2011). <www.guardian.co.uk/world/2011/oct/31/nato-ends-libya-rasmussen> accessed 29 July 2012; NATO “ ‘We answered the call’ – the end of Operation Unified Protector” (31 October 2011) <www.nato.int/cps/en/natolive/news_80435.htm> accessed 29 July 2012.

165)

GC IV Commentarysupra note 15 p. 62 (citing with some approval the opinion of the Rapporteur of Committee III that this threshold is to be understood as the moment “when the last shot has been fired”).

168)

Greenwoodsupra note 75 p. 72.

170)

Akandesupra note 111 p. 42; Greenwood supra note 75 pp. 71–72.

172)

See Akandesupra note 111 pp. 42–43.

178)

APs Commentarysupra note 54 p. 68 (noting that the general close of operations may occur after the cessation of active hostilities); but see e.g. Greenwood supra note 75 p. 72 (arguing that cessation of hostilities should be enough to terminate the armed conflict); Kolb and Hyde supra note 4 p. 102 (arguing that an “effective and final cessation of hostilities” terminates the applicability of IHL).

179)

GC III Commentarysupra note 159 pp. 546–547.

181)

See Jinkssupra note 177 pp. 7–8; see also Douglas Guilfoyle “The Mavi Marmara Incident and Blockade in Armed Conflict” 81 British Year Book of International Law (2011) p. 21 (questioning whether the level of violence between Israel and Hamas as it stood on 31 May 2010 could still be classified as an ongoing armed conflict).

184)

Cf. Dinsteinsupra note 133 p. 51 (using this language to argue that an IAC in Afghanistan does not end until the Taliban are defeated).

186)

See Kretzmersupra note 171 pp. 24–25.

193)

See ICG Reportsupra note 29 pp. i–ii; see also e.g. David D. Kirkpatrick “Offices of Premier Attacked in Libya” New York Times (8 May 2012) <www.nytimes.com/2012/05/09/world/africa/truckloads-of-libyan-militiamen-attack-prime-ministers-office-in-tripoli.html> accessed 29 July 2012; “Battle Between Rival Libyan Militias Kills at Least 22” New York Times (3 April 2012) <http://www.nytimes.com/2012/04/04/world/africa/clash-of-libyan-militias-kills-at-least-22.html> accessed 29 July 2012; “Libya timeline: How events unfolded after Gaddafi” Gulf News (12 June 2012) <http://gulfnews.com/news/region/libya/libya-timeline-how-events-unfolded-after-gaddafi-1.1034898> accessed 29 July 2012.

194)

See e.g.“Libya Recovery: Better than it Sounds”The Economist (28 January 2012) <www.economist.com/node/21543586> accessed 29 July 2012 (“[the new government forces] are strong enough to deal with a low-level insurgency if one were to spring up . . . Clashes are for the moment little more than unpleasant but isolated incidents.”); “The Uncalm South” The Economist (12 May 2012) <www.economist.com/node/21554576> accessed 29 July 2012 (reporting outbreaks of violence in some Libyan towns but no organised insurgency or widespread fighting).

195)

Accord ICSFFM Reportsupra note 12 para. 26 (claiming that NIAC ended with the capture of Sirte by opposition forces on 20 October 2011). New tribal clashes marked by the use of armed violence have erupted and are disturbing the stability of Libya at the time of writing. It is however beyond the scope of this article to evaluate these later developments. For more see e.g. “The Uncalm South” The Economist (12 May 2012) <www.economist.com/node/21554576> accessed 29 July 2012 (reporting outbreaks of violence in some Libyan towns but no organised insurgency or widespread fighting). According to recently adopted Libyan legislation Libya is currently in a state of war. George Grant “Constitutional Legality of Law 37 to be Debated in Open Court” Libya Herald (30 May 2012) <http://www.libyaherald.com/?p=8148> accessed 29 July 2012.

202)

APs Commentarysupra note 54 p. 1402 para. 4618.

203)

Henckaerts and Doswald-Becksupra note 71 Vol. 1 pp. 612–614.

205)

Libya Law 38 (2012) On Some Procedures for the Transitional Period. See Human Rights Watch “Libya: Amend New Special Procedures Law” (11 May 2012) <http://www.hrw.org/news/2012/05/11/libya-amend-new-special-procedures-law> accessed 29 July 2012.

206)

Henckaerts and Doswald-Becksupra note 71 Vol. 1 p. 607 Rule 158.

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