Nato’s recent air strikes on Colonel Muammar Gaddafi’s Tripoli compound raise the question of the legality of targeting the Libyan leader personally. On Sunday, the British defence secretary, Liam Fox, said that an assassination of Gaddafi was “potentially a possibility” — a claim that the United Nations has since contradicted. So what does resolution 1973 actually say on the matter?
By the resolution, the UN Security Council authorised enforcement action under chapter VII of the UN charter after determining that the situation in Libya continued to constitute a threat to international peace and security. In paragraphs four and eight respectively, the resolution authorises “all necessary measures” (ie military action) to protect civilians and civilian populated areas under threat of attack and to enforce compliance with the no-fly zone.
As exceptions to the fundamental prohibition of the threat or use of force in international relations in Article 2(4) of the charter, which is a principle of jus cogens — a peremptory or absolute rule of general international law, those paragraphs of resolution 1973 must be interpreted narrowly. This is important in terms of the resolution’s scope. The chief of the defence staff was correct when he said, on March 21, that the resolution does not allow the targeting of Gaddafi.
Later that day, British Prime Minister David Cameron told MPs that the resolution’s scope was limited, that it “explicitly does not provide legal authority for action to bring about Gaddafi’s removal from power by military means”. If Cameron meant that implicitly it does provide such authority, he contradicted himself: regime change is hardly consistent with limited scope.
Neither was it mentioned in the British government’s note on the legal basis for the deployment of UK forces and military assets to Libya. The fact that the only thing expressly excluded by the resolution is “a foreign occupation force of any form on any part of Libyan territory” does not broaden its scope to include regime change. The “what is not expressly excluded is impliedly permitted” argument will not work here.
Difficult to justify
Some people contend that Gaddafi may have to be killed in order to protect civilians, but that would be very difficult to justify under international law, especially as the resolution’s preamble recalls that the situation in Libya has been referred to the prosecutor of the international criminal court and stresses that those responsible for, or complicit in, attacks against the civilian population must be held to account. It is important for the legality and legitimacy of the military action, and for the efforts to find what the resolution calls “a peaceful and sustainable solution” to the Libyan crisis, that Gaddafi’s day of reckoning should come through due process in a court of law.
Recent events have not enlarged the scope of resolution 1973. Only the Security Council, which remains “actively seized of the matter”, can do that. In paragraph 28 of the resolution, the Security Council: “reaffirms its intention to keep the actions of the Libyan authorities under continuous review and underlines its readiness to review at any time the measures imposed by this resolution and resolution 1970 (2011) [ICC referral, arms embargo, etc], including by strengthening, suspending or lifting those measures, as appropriate, based on compliance by the Libyan authorities with this resolution and resolution 1970 (2011).”
Under the UN charter, the Security Council has primary responsibility for the maintenance of international peace and security, and UN member states have agreed to accept and carry out its decisions in accordance with the charter. For the sake of the rule of law, which, as the late Lord Bingham observed, requires compliance by the state with its obligations in international law, the UN’s authority must be respected.
Resolution 1973 was adopted with events in Iraq in mind. Its limited scope is a clear message — especially to Arab countries — that this is not like Iraq. The legal and political implications of non-compliance would be far-reaching. In particular, the assassination of Gaddafi by the Western coalition on the basis of the resolution would be unlikely to help “maintain or restore international peace and security”, which is what the Security Council’s powers under chapter VII of the charter are for. – guardian.co.uk