The main specific feature of the resolutions N1970 and N1973 was total violation of the Libyans civil rights. No matter the both resolutions were allegedly devoted to the protection of civilian population, it was made the main target in the most cynical way Actually the both documents recognized only rebels as “civilians.” At the same time it was evident that the population predominantly remained faithful to the government.
The very language used in the resolutions proves that the United Nations Security Council didn’t see this part of population as Libyan “people” at all. For instance, paragraph 2 of the resolution 1973 stated that it, “Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people.” The UN Security Council did not even recall the people’s right for security and protection from the armed insurgency. There was no one in the principal body of the United Nations responsible for maintaining peace and security (article 24 of UN Charter), who would stand up to defend the rights of the largest part of Libyan population!
If someone asked the question what the resolutions N 1970 and N 1973 did to protect the rights of the Libyan citizens, the answer would be – nothing! The documents made the government of Libya destitute of legal right to protect the majority of its own civilian population. That is the texts of resolutions were directly violating the rights of those they were allegedly destined to protect.
It is worth to note that from point of view of international law, the hazy wording of the resolution N 1973 contained no justification for rendering support to the so called insurgents. Arming rebels was not mentioned. The most problematic wording about taking “all measures” was related to the rights of civilians. [1]
2. Legal foundation for Libya’s referral to International Criminal Court by United Nations Security Council
At present two cases have been referred by United Nations Security Council to International Criminal Court: Sudan (2005, Darfur) and Libya. The both cases evoke great doubts related to the legitimacy of the acts. The United Nations Charter says nothing about the right of the United Nations Security Council to refer cases to International Criminal Court. It is mentioned in another legal act – the Statute of International Criminal Court. But this document does not apply to the states which are not parties to the Statute. In reality the situation looks even worse – it is absurd! Just look what we’ve got here: the states which are not parties to the international treaty (the Statute of International Criminal Court) have referred to the International Criminal Court the state which is also a non-party to it (Libya)! The flagrant violation of international law is here for all to see.
Besides, there is an issue of legal justifications of the activities of the Council itself: where are they are defined? What are the criteria? What is the real state of things in the case? What facts have been considered by the Council? Why have they not been made public? Or the BBC reports are considered to be as such?
Thus, the Security Council activities are not based on the UN Charter, but on the international treaty that some UNSC members are not parties to, as well as the very state which has been referred to the International Criminal Court. The United Nations Security Council has exceeded its authority. Only the resolutions adopted on the basis of the authority of the United Nations Security Council defined by UN Charter are subject to implementation. That is the resolutions in question must not be observed by United Nations member-states.
It applies to the obligation of “all” states to cooperate with the International Criminal Court on Libya. Especially the states which are non-parties to the International Criminal Court’s Statute. Or those which are parties but abide by their own stance on the non-party states.
It should be noted, that the International Court itself initiated pre-trial investigation under Judge Cuno Tarfusser (Italy). Libya has been Italy’s colony in the past. The homeland of the Judge was the main actor in the ranks of those who launched an intervention against Libya in 2011. In this case the ICC president breached the principle of impartiality. It was an ill-intentioned, brazen act of violation on his part.
3.Outside aid to rebels goes against international law
As the events unfold after the intervention, it has become convincingly clear that such terms as “opposition” and “rebels” are not applicable in the case of Libya. Still we’ll use these very terms because they are present in international legal acts in the strictest form. If rendering aid to rebels is proven to be illegal, then the illegality of assistance to other armed groups is proven too.
We should start with the basic acts that that establish the standards of international law for the humanitarian treatment of war. First, it’s the Geneva Conventions which comprise four treaties, and three additional protocols, including article I of additional protocol of 1977. The states are under obligation to comply with the Conventions under any circumstances, as well as make others do so. Thus, the United States and other NATO members, who render aid to rebels in different countries, must make comply with the acts mentions above not only the government of Libya or Syria, for instance, but other parties to the conflict as well. I emphasize – it is not a right, it is an obligation. It should be taken into account here, that this norm of Geneva Conventions is a reflection of common international humanitarian law; the corresponding international agreements do not apply to participation of a state or an actor in a conflict. [2] The United States of America has already been found guilty of violating the norms of international law by offering assistance to rebels. The verdict was handed down by the United Nations International Court in 1986 in the notorious case of Nicaragua versus the United States. For instance, the instructions given by US advisers to Nicaraguan contras went against the international humanitarian
law. [3 In Libya the so-called rebels committed mass crimes and atrocities. These findings are confirmed by the UN Independent Commissionof Inquiryon Libya.The Commission report states that rebels committed crimes and civilians were killed as a result of NATO bombings.[4] The assistance rendered to the rebels involved in such activities is to incur legal responsibility. [5]
Everything that we saw in Libya is being repeated in Syria. The report by the Independent International Commission of Inquiry on the Syrian Arab Republic adduces testimony to gross violations of international humanitarian law by the rebels, no matter the report tries to vindicate their actions [6]. It refers to documented instances of killings, lynch law trials and other gross violations of human rights committed by the militants of the so called Free Syrian Army. “The commission highlights the fact that FSA members, including local commanders that have command responsibility, may incur criminal responsibility under international law”.[7]
The use of chemical weapons by rebels proves the fact that they are guilty of mass atrocities punishable by international law. The United States and other states which provide assistance to them are to be held accountable for these activities in accordance with international law…
Endnotes:
[1] For instance: Olivier Corten and Vaios Koutroulisy. The Illegality of Military Support to Rebels in the Libyan War: Aspects of jus contra bellum and jus in bello // Journal of Conflict & Security Law. 2013. № . 1. Р.5-32.
[2] This provision was formulated by UN International Court in the case of Nicaragua versus the United States of America in 1986.
[3] Case Concerning Military And Paramilitary Activities In And Against Nicaragua (Nicaragua V. United States Of America).Merits. Judgment Of 27 June 1986 // UN International Court official website:: http://www.icj-cij.org/docket/files/70/6503.pdf.
[4] Report of the International Commission of Inquiry on Libya. UN document: A/HRC/19/68, March 8 2012 // Official UN website: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A.HRC.19.68.pdf.
[5] Olivier Corten and Vaios Koutroulisy. The Illegality of Military Support to Rebels in the Libyan War: Aspects of jus contra bellum and jus in bello // Journal of Conflict & Security Law. 2013. № . 1. Р.19-28.
[6] For instance, according to the Commission, in late January 2012 in Karm Al Zeitun, FSA members and others lynched a man suspected of working with the State security forces and paraded his body on a pickup truck through the streets…In Homs, FSA members were found to have tortured and executed suspected Shabbiha members in retaliation for abuses committed by Shabbiha or plain clothed security officials posing as them. Some armed civilians in Homs, including armed civilians belonging to the FSA, sought to exact blood revenge for abuses by killing family members of security personnel or Shabbiha. The FSA leadership in Homs and also the local coordination committee denounced such collective reprisals and tried to contain them (italics by author). The very wording of the following piece of report highlights the degree of the inquiry commission’s “independence.” It goes as follows, “Credible reports indicated that members of FSA groups in other locations had tortured or summarily executed captured members of the armed forces or security forces. In mid-November 2011, members of the FSA near Talbiseh tortured a member of Military Intelligence during an interrogation. The captured man was beaten, whipped with a cable and threatened with a knife. In late November 2011, a FSA group from Rf Dimashq captured, tortured and killed a member of the security forces.” This piece proves that the goal pursued by commission was to display its impartiality by admitting the rebels did commit crimes, but at the same time, the criminal activities are vindicated by constantly stressing that the criminal activities are committed solely against the government security forces and army to take revenge for the acts of atrocity they had commutes before.
[7] The Report of the independent international commission of inquiry on the Syrian Arab Republic; UN Document:A/HRC/19/69 February 22, 2012 // UN official website: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/106/13/PDF/G1210613.pdf?OpenElement
