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House of Commons Library: Standard Note:Interpretation of Security Council Resolution 1973 on Libya

In Uncategorized on April 17, 2011 at 12:33 pm

The House of Commons Library’s International Affairs and Defence Section has recently published a Standard Note  (which is available online here) in a Q & A format that attempts to clarify some of the legal questions arising from UN Res. 1973.  Here are some of the interesting sections:

1 What does “all necessary measures” mean?
“All necessary measures” is clearly a broad authorisation.  Similar phrases in the past (such
as “all necessary means”) have in the past simply been code for the use of force.  However,
there are always limitations, both in the resolution itself and in general international law.
Every action taken under this authorisation is limited by the following aspects of the
resolution:
• It must be aimed at those who put civilians and civilian occupied areas under threat of
attack.
• It must not amount to a “foreign occupation force”.
• It must be “necessary”. This probably does not mean that it has to be “essential” or “the
only means possible”. The test is more likely to be that the use of force must be
proportionate to achieving the objective specified by the resolution. The difficulty here is
that judging this is very difficult for those who do not have military expertise or the
requisite information.
4 Can Libyan military assets be attacked if they are not attacking
civilians?
Libyan army units and Colonel Qaddafi’s compound in Tripoli were attacked by coalition
forces. Does that amounts to taking sides in the conflict and aiming for regime change? The
Security Council resolution does not authorise regime change.
The interpretation of the part of the resolution that authorises member states to act to protect
civilians is difficult and has already become controversial. The paragraph states that the
Security Council:
Authorizes Member States that have notified the Secretary-General, acting nationally
or through regional organizations or arrangements, and acting in cooperation with the
Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of
resolution 1970 (2011), 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, and requests the Member
States concerned to inform the Secretary-General immediately of the measures they
take pursuant to the authorization conferred by this paragraph which shall be
immediately reported to the Security Council.
To take “all necessary measures” to protect civilians under threat of attack is a very broad
provision and can be interpreted in a number of ways. It could be argued, for example, that it
is impossible to protect civilians without destroying military units that are travelling towards
civilian populated areas with intent to attack them.
If coalition forces waited until those military units had reached civilian populated areas and
had started to attack them, the argument is that it would have been too late to act because
civilians and their attackers would be intermingled and it would be impossible to attack
military forces loyal to Qaddafi from the air without causing further civilian deaths.
The coalition justification for attacking a building in the Qaddafi compound in Tripoli was that
it was a military command centre. The Qaddafi regime said that it was an administrative
building.Again, it could be argued that the most efficient way to protect civilians is to strike
at Libya’s command and control systems, reducing the Libyan military’s capacity to strike
civilian areas.
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