Meanwhile, back in Yemen....

("So which bit of 'I'm still in charge' don't you get?")

2011: what a year for the UN Security Council. First with the passage of UNSCR 1970 and UNSCR 1973, the UN - with the support of the Arab League - authorised sanctions and then the use of force in Libya. Then the stop-and-start element came in with Russia and China vetoing a draft S/2011/612  over (extremely limited) action against Syria, and the moment was less optimistic. However, with the unanimous passage of UNSCR 2014 on 21 October on Yemen, and the direct support to the Gulf Cooperation Council (GCC) initiative that OP4 describes as:

"... inclusive, orderly, and Yemeni-led process of political transition, notes the signing of the Gulf Cooperation Council initiative by some opposition parties and the General People’s Congress, calls on all parties in Yemen to commit themselves to implementation of a political settlement based upon this initiative..."

The rest of UNSCR 2014 is full of sensible stuff about pushing along an implementation of the proposed settlement with President Saleh, but I was very taken with the not-quite-Chapter VII language of PP18:

"Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations, and emphasizing the threats to regional security and stability posed by the deterioration of the situation in Yemen in the absence of a lasting political settlement,"

The UNSC etc etc...

So let's watch it. If Saleh doesn't accept the GCC proposals - which is not uncontroversial given then the GCC has included an immunity clause -  then the UNSC has said that they'll return to it. It will be very interesting to see how the next phase in Yemen develops.

Three-and-a-half down....

 

(No risk of running out of red paint.....)

Back in January, I put up a tongue-in-cheek post on the Arab world's dictators, taking the chance to laugh at the cults-of-personality that have blighted the governance of the region since decolonisation in the 1950s. All good clean fun, provided that you don't have to live in any of the more-or-less authoritarian states they ran (badly).

I certainly never expected to be recording the final defeat of Gaddaffi's forces in Sirte at the same time as Tunisia is preparing for its first-ever democratic elections - with an astonishing and inspiring 11,000 candidates running for 218 seats - this Sunday. Hence, we are witnessing a zone of democratic opportunity running from Tunisia to Egypt - absolutely excellent news. Moreover, given the UN vote due today, it seems impossible that Ali Abdullah Saleh will be able to revert to running Yemen in the same manner as he has since 1978, bringing the winds of change to Yemen. And Syria? Well, I'd be a seller of shares in Asad Inc., were they publicly traded.

The legal bit
But the process of revolutions matters, and in Libya there was clearly an International Armed Conflict (IAC) between NATO and Gaddaffi's forces, sanctioned by UNSCR 1973, and a Non-International Armed Conflict (NIAC) between the National Transitional Council and the Gaddaffi regime; the ruling law was clearly some flavour of LOAC in places where conflict was actually taking place.

(Gaddaffi's last redoubt)

In the last 24 hours, it has also become clear that Gaddaffi was alive - though injured - at the time of his capture, and that he was subsequently shot dead, apparently in cold blood. Let's be clear - killing Gaddaffi was the execution of a presumptive PoW (presumptive in that Gaddaffi would have had PoW rights until an a GC III Article 5 Tribunal - which doesn't appear to have been held - decided that he did or didn't qualify), which itself is a War Crime contrary to Article 8(2)(b)(vi) of the International Criminal Court's Rome Statute.

As Elham Saudi of Lawyers for Justice in Libya (LFJL) pointed out on the UK's Channel Four news last night, it would have been much better for him to have faced trial, both from notions of justice and for the victims to have their day in court. What is interesting now is how the new Libyan authorities choose to deal with these important legal issues - as the Rome Statute makes clear, crimes committed by both sides of an armed conflict need addressing.

Gareth Evans on R2P: Is Syria next?

(Gareth Evans QC AO)

Back at the beginning of the Libyan revolution, I asked "Am I my brother's keeper" in reference to the Responsibility to Protect, or R2P. So it was with some annoyance that I missed the lecture by Gareth Evans, the former Australian Foreign Minister, and later head of the International Crisis Group at Chatham House's International Law Programme on 6 Oct 11. Evans has been a major proponent of R2P in recent years, and under R2P, the international community undertakes to ensure that the failures of the 1990s in Rwanda, Srebenica and Kosovo are not repeated - a position that made it into Paragraph 139 of the 2005 World Summit Conclusions. Para 139 states in part:

"The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity."

As this blog has previous pointed out, Para 139 is a real drafting hodgepodge, betraying the lack of unanimity in the international community. Crucially, should R2P - and especially the use of force - be allowed outside the direct consent of the UNSC acting under Chapter VII's Article 42? 

The relationship between R2P and Chapter VII is critical, because at one end of the spectrum, R2P is no more than a rhetorical device, as the UNSC continues to control the use of force, even in time of humanitarian emergencies; if so, it is pointless. At the other end of the scale, R2P could be construed as bolstering (the pre-existing) right of humanitarian intervention outside of the UNSC in cases where the UNSC is unable or unwilling to act.  

(Them again....)

It is therefore with great interest that I read the transcript of Gareth Evans' 6 October speech. What's particularly striking is that Evans repeatedly ties R2P very narrowly to the UNSC rather than an expansive understanding tied to humanitarian intervention, and he then sets out a five criteria test for what he takes great care to describe as 

"... legitimacy - not the criteria of legality, that's clear; Security Council support - criteria of legitimacy"

These criteria are below; though lengthy, I think it is worth quoting Evans' five-fold test in full:

The first test is seriousness of risk. Is the threatened harm of such a kind, such a scale, as to at least prima facie justify the use of military force?
 
The second test is whether the primary purpose of the proposed military action is actually to halt or avert the threat in question, as distinct from being about oil or bananas or whatever. They can be secondary or tertiary considerations and they could be quite relevant in helping to mobilize otherwise sceptical domestic constituencies but the intention test has to be what’s the primary motivation genuinely – is it to help or avert harm?

The third test is last resort. Has every non-military option been, if not applied in practise because that can be possibly time consuming in some cases, but has it at least been explored and found wanting and unlikely to serve the purpose.
 
The fourth test is one of proportionality, of a scale, the duration, the intensity of a proposed military action and the minimum necessary to meet the threat in question.

And the final and often the toughest legitimacy test is balance of consequences. Will those at risk be better or worse off as a result of such military action being taken?
 

(Decent shooting in Bab al Azizya, with photo credit to Elham at LFJL)

In Evans' view the 2011 Libyan intervention met all five criteria, though in his view they may have gone too far in prosecuting the conflict - in that it went further than the abstaining States were probably expecting when they allowed the passage of UNSCR 1973 (it passed 10-0-5, with Brazil, China, Germany, India and Russia abstaining), which probably contributed to the Chinese and Russian vetoes of draft UNSCR S/2011/612 of 4 Oct 2011. S/2011/612 was defeated 9-2-4 (China and Russia vetoing, with Brazil, India, Lebanon and South Africa abstaining); in other words, if China and Russia had abstained, there was the bare minimum of 9 votes required for passage. 

So with the death toll in anti-Assad protests reportedly reaching 3,000, what is the position of R2P after a (very benign) draft UNSCR on Syria was vetoed by the UNSC? (And let's be very clear - the vetoed text is a million miles from authorising the use of force - and had been deliberately watered down to overcome Chinese and Russian objections, which suggests that sponsors were expecting that the concessions would be sufficient get this through, and as a result it isn't likely to do much for P5 relations on the UNSC.) 

I presumed that R2P had to add something to the existing framework, by explicitly recognising a right to intervene when circumstances on the ground demanded it. Simply, without it, R2P is meaningless, and there's no point in having it at all - so why put it in Para 139 of the 2005 World Summit text? It is this element that is so confusing (and potentially disturbing) about Gareth Evans' speech - it is when the UNSC is deadlocked, and crimes are occurring on the ground that the R2P buttress to humanitarian intervention doctrine comes into its' own, and intervention to protect the civilian population should be initiated. 

(Closer to the action than Gioia was to Libya. Beer is better, too.)

This is one that will run and run, but I'd prefer to see the UK and allied aircraft that handed Benghazi's airspace back to Libyan control yesterday moved to RAF Akrotiri, Cyprus to bring a little force to bear on the Syrian regime. Akrotiri is less than 220nm from Damascus - under 25 mins flying time. But for Evans, presumably the no-go from the UNSC would mean that R2P can't be applied - and it is this result with which I have the most trouble.

So, President Obama, Prime Minister Cameron and President Sarkozy: prove that Gareth Evans is too cautious and give R2P some legs with an NFZ over Syria - it's legal, and it woulg give the Arab Spring the opportunity to bloom in Damascus, Aleppo and Homs as well. 

Can we target and kill Colonel Gaddafi?

Foreign Policy Magazine asks whether it is legal to kill Colonel Gaddafi?

Well, it's blissfully straightforward.

(Sorry, wrong kind of "Yes!". Anyway, it's still "Yes.")

Umm, Yes. (Or at least "Maybe", depending on proportionality and military advantage.)

Colonel Gaddafi is both the de facto Head of State of Libya, and the de facto Commander-in-Chief of the Libyan armed forces. As such, he's a legitimate military target within the meaning of AP I, and within the remit of UNSCR 1973. Therefore, if the killing of Colonel Gaddafi was proportionate to the military advantage, and was proportionate to the risk posed to non-combatants, then yes, it will be legal.

Can we supply arms to the Libyan rebels?

(FGM-148 Javelin: designed to be squaddie-proof, and it is therefore probably rebel-proof.)

So the back-and-forth along the Libyan coast is continuing, and though it is encouraging that the long-serving Libyan Foreign Minister Mousa Kousa appears to have defected, it doesn't yet feel like either side is going to have a gentle stroll to victory. 

Which is why the American and British Governments are now openly discussing options for supplying the Libyan rebels despite the arms embargo. Is this legal? Secretary of State Clinton and the UK Government says yes it is. Philippe Sands QC says no it isn't. Despite my nuanced disagreement with Prof. Sands earlier this week, I'm instinctively behind him rather than the Governments.

Who's right?

 (Utterly gratuitous shot of UN Headquarters, New York. Cool though.)

The first UN Security Council Resolution is UNSCR 1970 (2011) of Feb 26, 2011. UNSCR 1970 establishes the arms embargo in Operative Paragraphs 9 - 14. Paragraph 9 states:

"9. Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories"

It goes on to provide some exceptions to the embargo.

This raises two questions. 

First, when UNSCR 1970 talks about banning weapons shipments to the "Libyan Arab Jamahiriya", does this mean Libya as a whole or just the Gaddafi regime? 

Second, does UNSCR 1973 (2011) generally supersede UNSCR 1970 (2011), and specifically, does the "all means necessary" language in OP4 of UNSCR 1973 mean that the arms embargo on the rebels is moot in any event? 

On the question of whether the phrase "Libyan Arab Jamahiriya" covers both sides in the conflict, I think that for two reasons it must. First, "Libyan Arab Jamahiriya" is the official name for Libya, and not that of the Gaddafi Government. More importantly, arms embargoes are typically against both sides - see, for example, the Cote d'Ivoire arms embargo in paragraph 16(c) of UNSCR 1933 (2010) - to avoid overtly taking sides. So on the first count, I think that the arms embargo must apply to both rebels and Gaddafi.  

(UNSCR 1441 adopted unanimously, Nov 8, 2002. Implied repeal meant a bad day for the hawks.)

On the second more substantive question, the doctrine of implied repeal does apply to UNSCRs: if the Security Council grants and then limits or rescinds powers - e.g. for the use of force - then States cannot rely on the earlier Resolution to do what they want. Indeed, just ask Messers Blair and Bush - this was the fundamental problem with their attempt to use UNSCRs from 1990 to legitimate their illegal 2003 attack on Iraq.

But even implied repeal only gets you so far: despite the wide latitude of UNSCR 1973 accorded to intervening States, OP4 states:

"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"

So it directly references the arms embargo - reading, in effect;

"to take all necessary measures, notwithstanding the arms embargo, to protect civilians and civilian populated areas under threat of attack in Libya." 

This could be read as rendering the arms embargo moot if the "necessary measures" to protect civilians included the supply of arms to the rebels - or indeed, if the rebels turned nasty, to the Gaddafi forces. 

But I'm not sure. I'm yet to read the Explanation of Votes (EOVs) that accompanied UNSCR 1973 which will provide the critical colour on whether or not the Member States actually thought that they'd granted these powers to the allied coalition - the shape of which was of course unknown. 

I don't know what the definitive legal answer is: it's possible to make a case either way. 

But by far the best approach would be for the allied powers to return to the Security Council to formally vote on raising the arms embargo on the Libyan rebels. The question of whether this would survive a Russian or Chinese veto is separate, but it would in my view be a mistake to press the outer boundaries of the existing resolution out of fear of a veto by Russia or China. Faced with a choice of making them publicly defend casting a veto in favour of Gaddafi's forces, or running around like naughty school boys who know that they're stretching the rules to breaking point, let's go back to the UN and do it properly.

Legality of pre-emption is back....

(Prof. Philippe Sands QC: brilliant, but in this case, I respectfully (and uncomfortably) disagree. A bit.)

Legality of pre-emption is back - and as usual, no-one can agree. The Guardian's coverage is pretty sensible, and I'll come to the substance of the argument over whether allied air forces in Libya can continue to attack Gadaffi's ground forces within the terms of UNSCR 1973 in a minute.

But first can we just cherish the fact that we're having this debate at all? The notion that abstruse debates about the legality of the use of force are now taking place in the press at all is wonderful, and a testament to the work of people like Professor Sands, Professor Francoise Hampson, Professor Elizabeth Wilmshurst CMG, and Professor Charles Garraway in making the role of the law in the use of force so politically important. Thank-you all - it is a wonderful step forward.

Right: Pre-Emption.

There is a long-running argument amongst international lawyers over whether or not you can act pre-emptively in self-defence. In practice, most of the argument over pre-emptive action (more properly, "anticipatory self-defence") comes down to a ferocious debate over which side of a fence are you on: does a State have to absorb the enemy's first strike, or can it blunt it by attacking a State that is in the final stages of launching an attack?

(1967 Pre-emption, Israeli style: Egyptian AF transports destroyed.)

The classic case is the 1967 Six Day War, in which the Israeli Defence Force mounted a pre-emptive attack on Egypt, believing that Egyptian President Nasser having evicted the UN Emergency Force from Sinai and having closed the Straits of Tiran was about to invade Israel. This led to decisive Israeli victories against Egypt, Syria and Jordan, with Israel occupying the Sinai Peninsula, East Jerusalem and the West Bank, and the Golan Heights. Militarily, it was magnificent performance, but legally it was a shambles: the evidence today is that Nasser didn't intend to attack at all, but was posturing for domestic support.

Oops.

Which is why I put myself in the camp that says you have to in effect ride the first punch before counter-attacking (and this could just be the first artillery rounds crossing the border). And those lawyers who favour the right to pre-empt are almost exclusively in the camp that recognises the danger that a broad power of pre-emption would grant - namely, that the greater the margin of appreciation given to those using their right to "anticipatory self defence", the more likely you are to provide a charter for the unbridled use of force.

(Oh dear.)

This is where the Bush Administration's US National Security Strategy of 2002 and 2006 went so far off the rails: it articulated a doctrine of "pre-emptive warfare". At one level, this takes anticipatory self-defence to the logical conclusion: if something could become a threat, it'll be quicker and easier to deal with it now, rather than later.

This is probably true, but it somewhat misses the point that the use of force in such a situation was rendered completely illegal by the passage of Art 2(4) of the UN Charter. In other words, the US National Security Strategies of 2002 and 2006 were in fact premised on the Bush Administration's willingness to explicitly break international law.

 (One opposed to more billboards.)

Libyan So What?

Prof. Sands' point that pre-emption is a slippery slope is absolutely correct. But I take issue with this quote in the Guardian:

"It is difficult in international law to argue for a pre-emptive use of force to protect civilians from a possible threat that might arise in the future. We don't know if there is evidence to show that a failure to attack Ghadaffi's forces would lead to a regrouping that would lead in turn to attacks on civilians."

I would suggest that to the contrary there is 42 years' worth of evidence that Gaddafi's forces have led a more (and generally rather less than) benign reign of terror over his country. This to me leads me to an expansive understanding of the powers conferred to the coalition of the willing by the UN, and with it, the conclusion that Gaddafi forces are being used to oppress civilians, and therefore that attacking them at a time and place of the allied air forces' choosing probably meets the requirements of UNSCR 1973 OP4. As such, my disagreement with Prof. Sands is about nuance, not the law specifically.

But Prof. Sands broader point must be right: if not yet, then pretty soon the western air forces are going to be testing the outer boundaries of UNSCR 1973. Accepting as I do, Malcolm Shaw QC's point that these boundaries are elastic, they are not infinitely so. So whilst hoping that the Gaddafi regime collapses before we're faced with the problem of exceeding the powers granted, the correct thing if rebel ground forces cannot overthrow the Gaddafi regime alone, is to return to the UN Security Council for increased powers if that is required. I'll look at how and what these powers would look like in a future post.

Libyan Reflections

(Top tip to revolutionaries: make sure your signs are in english for television...)

Well, in Libya at least, it all seems to be going swimmingly: my concerns that air support alone may not be enough to break Gaddafi's forces are yet to be confirmed - and in retaking the oil towns of Brega, Ras Lanuf and Ben Jawad, they've opened the road to Sirte, Gaddafi's home town.

All good news. And though it would be easy to point out that Sirte could mark the point at which it begins to get harder, the point is that thus far, the strategy is working, especially as there are reports that Gaddafi forces are breaking and running from the fight under fire from allied airpower.

But the opposite of optimism may not be pessimism, but a dose of realism. I sincerely hope that the Sirte garrison realise what is good for them, and give it up gracefully - but then that hasn't been the case so far for the Gaddafi forces. As his home town, if Sirte falls then suggestions that it's game over for Gaddafi may prove accurate. But let's hope it goes well - and have a solid plan for what happens if it doesn't - within the rules of UNSCR 1973. 

On a different Libyan issue, I saw the photo below posted on an aviation website earlier today:

(Are you sitting comfortably? I'd want it bolted to the pickup, but that's 'ealth 'n' safety nonsense, mate!)

According to the poster, it shows Gaddafi forces deploying a twin pedastal mounted launcher for the Russian 9K338 Igla-S (SA-24 GRINCH) infra-red guided surface to air missile system. I'm not a great MANPADS spotter (too many look too similar!) but it looks right to me. Which, given that Igla-S is the newest and longest-legged former Russian, underscores that the crews over Libya are not operating in a no-threat bubble. Good on 'em, and may they continue to be safe / lucky.

Army + Air Force = Victory

 

(P-47 Thunderbolt, France, 1944 - the beginning of Air-Land Integration)

I think - and I'm sure that someone will correct me - that it was Gen. Omar Bradley who is credited with coining the phrase "Army plus Air Force* equals Victory" following the breakout from Normandy and the critical battle of Falaise Gap. This became the basis of western land doctrine at all points since then, with increasing success coming from a combination of improved communications and situational awareness, together with much more accurate air-to-ground weaponry. Thus doctrine evolved through the post-Vietnam US "Air Land Battle" doctrine - rolled out to general astonishment in Operation DESERT STORM - through to today's Air Land Integration (ALI) in Afghanistan.

But whilst this is working increasingly well in Afghanistan, it is a real challenge in Libya: fundamentally, can the anti-Gaddafi forces who are poorly equipped, and though unquestionably brave, poorly trained defeat the Libyan Army simply because of allied air power?

It's an open question. The key in ALI is integration - making sure that what you're targeting is not only the opposition, but that the targets you are hitting are being hit in the most efficient order to maximise the impact on the ground. This may mean therefore that you're hitting the tanks that you can see ahead of you on the battlefield - a tactical imperative - but that the most effective could be an attack on supply nodes, particularly on fuel, ammunition - what Colin Powell referred to in his "armchair generals worry about strategy, real generals worry about logistics" epithet in Gulf War I. It was also the basis for the 1944 "Transport Plan" in which the USAAF / RAF heavy bombers were diverted to resupply nodes in France, in order to support the ground troops by starving the German forces of supplies.

(The brilliant horseshoe. When effective, the UNSC remains our best hope for international peace and security.)

This demands a level of abstraction from the target that is harder to square with UNSCR 1973. Harder, but not impossible - OP 4 states that the mission is "to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya" - in other words, if you can expansively interpret "threat" then a broad scale targeting plan becomes possible.

Ultimately, this broader approach is probably what will be needed if we are to avoid either stalemate in Libya, or worse, a Gaddafi victory. My hunch - and it's no more than this - is that if we can demonstrate to the line Gaddafi army units that they can defect to the rebels and live, or get destroyed in detail by allied air power, then we're several steps forward.

*Yes, I know that in 1944, the US Air Force was still part of the US Army as the US Army Air Corps.