International Enforcement in Non-International Armed Conflict: Searching for Synergy among Legal Regimes in the Case of Libya

• Author: John Cerone
• Position: Professor ofLaw and Director, Center for International Law & Policy, New England Law, Boston
• Pages: 369-395

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International Enforcement in Non-

International Armed Conflict: Searching for

Synergy among Legal Regimes in the

Case of Libya

John Cerone*

In mid-February 201 1, in the wake of popular uprisings in Tunisia and Egypt,

members of the Libyan public began protesting against the decades-old regime

of Libyan leader Muammar Gaddafi. The situation rapidly escalated as the govern-

ment sought to forcibly suppress the demonstrations. By earfy March the situation

had deteriorated into an armed conflict.

Anumber of international organizations responded to the crisis in Libya as it

evolved. They utilized avariety of different tools, ranging from official statements

and press communiques to the adoption of sanctions and other legal measures. On

March 19, 2011, acoalition of States initiated abombing campaign in Libya. The

United Nations Security Council authorized this enforcement action in response

to reports of serious violations of international human rights law and the interna-

tional law of armed conflict committed in Libya by persons acting on behalf of the

Gaddafi regime.

*Professor ofLaw and Director, Center for International Law &Policy, New England Law |Boston.

International Enforcement in NIAC: The Case ofLibya

This article provides an overview of applicable rules of international law

through different phases of the situation in Libya and sketches out various modes of

enforcement action employed by international organizations to respond to the crisis,

analyzing several of the controversial legal issues that arise in that context. The article

concludes with an analysis of the unresolved legal issues implicated by the evolving

situation in Libya and by the international community's responses to it.

Applicable Law

Non-intervention

One of the foundational principles of the international legal order, and acorollary

to the equally fundamental principle of the sovereign equality of States, the principle

of non-intervention requires all States to refrain from interfering in the internal af-

fairs of other States, or, in the words of the UN Charter, in "matters which are es-

sentially within the domestic jurisdiction" of other States. 1While the scope of this

principle was traditionally understood to preclude international regulation of the

way in which aState treated its own people, that understanding has evolved consid-

erably since, at the latest, the advent of the UN Charter system.

In light of the human rights provisions of the UN Charter and the practice of

Charter bodies, it is now generally accepted that serious human rights abuses, even

if committed purely within aState (i.e., not involving aliens, foreign territory or

any other material interests ofother States), are no longer regarded as internal mat-

ters shielded by the principle of non-intervention. Most States are also parties to

specific human rights treaties, further internationalizing the issue of how they treat

their own people and correspondingly diminishing the scope of the principle of non-

intervention. Nonetheless, mere political wrangling, even if it involves the failure to

meet international expectations of good governance, remains apurely internal mat-

ter so long as it does not entail violations of international legal obligations.

The Use of Force//«s ad Bellum

Another fundamental rule of international law is the prohibition on the use of

force. Article 2(4) of the UN Charter provides that "[a]11 Members shall refrain in

their international relations from the threat or use of force against the territorial in-

tegrity or political independence of any State, or in any other manner inconsistent

with the Purposes of the United Nations." The two established exceptions to this

prohibition are valid exercises of the right of self-defense and enforcement action

taken in accordance with UN Security Council authorization.2These international

rules on the use of force apply only between States. Thus, the prohibition on the use

of force does not apply internally to aState. 3

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