Armed Conflict(s) in Libya
Press reports indicate that the situation in Libya has changed, and continues to change, rapidly and significantly. In addition to fighting between pro-government forces and anti-government dissidents, a few days ago foreign states commenced military action under the authority of Security Council Resolution 1973 (2011). In that resolution, which was decided under Chapter VII, the Security Council “[a]uthorizes [UN] Member States (…) 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”.
Jus ad bellum vs. jus in bello
At the outset, it is important to stress that international humanitarian law (IHL) applies equally to all sides of an armed conflict, regardless of the lawfulness of the resort to force by either side. This is due to the separation of the jus ad bellum (the law governing the resort to force) and the jus in bello (the law applicable to situations of armed conflict). As (now Judge) Christopher Greenwood writes, "The principle that international humanitarian law applies equally to both sides of a conflict irrespective of the reasons for resort to force or its legality is one of the best established principles of the jus in bello." Accordingly, once an armed conflict exists, all parties to the conflict must comply with the relevant provisions of IHL.
Key principles
As reflected in customary law, IHL requires all parties to an armed conflict at a minimum to adhere to the principles of distinction, proportionality, and military necessity, among others.
Regarding humanitarian access, in its study on customary IHL the International Committee of the Red Cross stated that in all armed conflicts there is a rule requiring that "[t]he parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control." The authors explained that, in their view, "[i]f it is established that a civilian population is threatened with starvation and a humanitarian organization which provides relief on an impartial and non-discriminatory basis is able to remedy the situation, a party is obliged to give consent" to humanitarian relief actions.
Qualifying the armed conflict(s) in Libya
The question arises as to whether the situation in Libya amounts to a non-international armed conflict or an international armed conflict—or, perhaps, to multiple ongoing armed conflicts.
In an earlier blog post, I outlined factors that certain international bodies have used to determine whether a non-international armed conflict exists. Generally speaking, those bodies have assessed the extent of hostilities and the organization of the parties. The ICRC's president has characterized the hostilities between the pro-government forces and the anti-government dissidents in Libya as a civil war to which IHL provisions pertaining to non-international armed conflict apply. It bears emphasis that in Resolution 1973, the Security Council "[d]emands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians".
A resort to force—including the use of air and missile warfare—between two or more states gives rise to an international armed conflict between those states. In the situation in Libya, foreign forces have reportedly limited their force to the use of air and missile warfare. Recently, the Program on Humanitarian Policy and Conflict Research at Harvard University published the HPCR Manual on International Law Applicable to Air and Missile Warfare, as well as the Commentary on the HPCR Manual.
A separate, but related, question arises regarding whether an intervention by foreign forces on behalf of a non-state armed group fighting the host state’s armed forces "internationalizes" an already-existing non-international armed conflict. If so, the "new" conflict would in principle be governed by the provisions applicable to international armed conflicts. According to judgments of the International Criminal Tribunal for the former Yugoslavia and opinions of the International Court of Justice, determining how to qualify a situation where foreign states intervene on behalf of a non-state armed group fighting the host state's armed forces depends largely on the nature of the relationship and the extent of control between the intervening state(s) and the non-state armed group. A mere rhetorical pronouncement by the armed group would not by itself create a sufficient nexus between the armed group and the intervening state(s) so as to "internationalize" the already-existing non-international armed conflict.
Live Web Seminar
On April 5, 2011, the Program on Humanitarian Policy and Conflict Research at Harvard University will host a free Live Web Seminar on “The Crisis in Libya: The International Response.” Materials regarding the qualification of armed conflict and the situation in Libya are available at the International Humanitarian Law Research Initiative Portal.
Updated March 24, 2011.
