With ground forces in Libya, violations of Resolution 1973 abound

When Resolution 1973 was adopted by the UN Security Council, it was pitched to the public as the “establishment of a no-fly zone.” The Security Council’s press release on March 17 began,

Demanding 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.

Initially, it appeared that Muammar Gaddafi was complying with the resolution’s first demand, “the immediate establishment of a ceasefire and a complete end to violence and all attacks against civilians,” as he instantly declared a ceasefire following the vote.

Gaddafi’s son, Saif al-Islam, further promised that government troops would not try to enter the rebel stronghold of Benghazi, backing away from earlier threats, Agence France-Presse reported.

The United States, however, called the ceasefire announcement insufficient, demanding that the regime immediately pull all of its forces out of eastern Libya, which apparently Gaddafi failed to do in time.

The next day, the bombing began. In announcing the attacks, President Obama said,

Today I authorized the armed forces of the United States to begin a limited military action in Libya in support of an international effort to protect Libyan civilians. That action has now begun.

In this effort, the United States is acting with a broad coalition that is committed to enforcing United Nations Security Council Resolution 1973, which calls for the protection of the Libyan people. …

Even yesterday, the international community offered Muammar Gaddafi the opportunity to pursue an immediate cease-fire, one that stopped the violence against civilians and the advances of Gaddafi’s forces. But despite the hollow words of his government, he has ignored that opportunity. His attacks on his own people have continued. His forces have been on the move. And the danger faced by the people of Libya has grown.

The Arab League, which had tentatively lent support to Resolution 1973, promptly objected to the bombing campaign. “What is happening in Libya differs from the aim of imposing a no-fly zone, and what we want is the protection of civilians and not the bombardment of more civilians,” said Arab League Secretary General Amr Moussa on March 20.

Despite the narrow limitations placed on the U.S. and NATO forces by the Security Council to enforce a no-fly zone in order to protect civilians, the Western powers soon made it clear that their objective was not simply to protect civilians, but to aid the rebels in the their efforts to overthrow Muammar Gaddafi.

As the L.A. Times reported on March 24, leaders of the rebel opposition were making regular contacts with allied military officials to help commanders identify targets for the U.S.-led air assault.

“There is communication between the Provisional National Council and UN assembled forces, and we work on letting them know what areas need to be bombarded,” rebel spokesman Ahmed Khalifa said.

Less than a month later, President Obama and his French and British counterparts made public their objective of regime change, which was specifically not authorized by Resolution 1973. In a  joint op-ed published last week, Obama, David Cameron and Nicolas Sarkozy wrote:

So long as Gaddafi is in power, Nato and its coalition partners must maintain their operations so that civilians remain protected and the pressure on the regime builds. Then a genuine transition from dictatorship to an inclusive constitutional process can really begin, led by a new generation of leaders. For that transition to succeed, Colonel Gaddafi must go, and go for good.

It now appears that the Western powers are stretching Resolution 1973 even further, by sending in ground forces to the beleaguered North African nation. Despite Resolution 1973’s explicit prohibition of “a foreign occupation force of any form on any part of Libyan territory,” Britain said Tuesday that it will send about a dozen senior soldiers to Libya to help organize the country’s haphazard rebel forces, joining British diplomats already cooperating with rebel leaders.

“They will advise the National Transitional Council on how to improve their military organizational structures, communications and logistics, including how best to distribute humanitarian aid and deliver medical assistance,” British Foreign Secretary William Hague said.

The U.S., for its part, has said that it will not be sending ground troops to Libya, but that it supports the decision to do so by European allies.

“The President, obviously, was aware of this decision and supports it, and believes it will help the opposition,” White House Press Secretary Jay Carney said. “But it does not at all change the President’s policy on no boots on the ground for American troops.”

While claiming to exclude the possibility of “boots on the ground,” it has been clear for weeks that the U.S. at least has “shoes on the ground.” As the New York Times reported on March 30, “small groups of C.I.A. operatives have been working in Libya for several weeks as part of a shadow force of Westerners that the Obama administration hopes can help bleed Colonel Qaddafi’s military.”

British Prime Minister David Cameron is insisting that the UK’s decision to send “advisers” to Libya do not exceed the limits set by Resolution 1973.

“What we’ve said is there is no question of an invasion or an occupation, this is not about Britain putting boots on the ground, this is not what we are about here,” he said.

Cameron claimed that international forces in Libya would not exceed the terms set by the resolution, which specifically prohibits a foreign occupation force.

“It is because we have said we are not going to invade, we are not going to occupy (that) this is more difficult in many ways because we can’t fully determine the outcome with what we have available,” Cameron said. “But we are very clear that we must stick to the terms of the UN Security Council Resolution, we must keep the support of the Arab world.”

The UK and the U.S. – with its CIA advisers already in Libya – seem to be parsing words very carefully regarding how an “occupation” is defined. Under international law, a territory is considered occupied when it is placed under the authority of a foreign power.

Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

The International Committee of the Red Cross cites common Article 2 of the four Geneva Conventions, which apply to any territory occupied during international hostilities.

The ICRC, which is considered the world’s foremost authority on the Geneva Conventions, says,

The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.

The question of “control” calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC’s Commentary to the Fourth Geneva Convention (1958).

An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.

Regardless of whether one accepts the more narrow view of how an occupation is defined or the broader view embraced by the ICRC, the decision to send ground forces into Libya – even as advisers – appears to violate the letter and the spirit of Resolution 1973, which excludes “a foreign occupation force of any form on any part of Libyan territory.”

As the Libyan intervention enters its second month, the violations of its “authorization” abound. This renders the U.S. and NATO actions unlawful under the UN Charter, which prohibits “the threat or use of force against the territorial integrity or political independence of any state.”

While Resolution 1973 “Demands that the Libyan authorities comply with their obligations under international law,” it seems that this compliance is not required of the self-appointed enforcers of international law.

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Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

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