Last night Newsnight reported that British special forces had been on the ground during the Libyan operation. It was set up as a possible breach of the UN mandate, which excluded in Resolution 1973 (2011) ‘a foreign occupation force of any form on any part of Libyan territory’. The report was used to suggest that the UK had engaged in an illegal use of force. This implication was developed by the studio guest Nabila Ramdani. She was not opposed to a humanitarian intervention but argued that the coalition had used a mandate of that kind to disguise political interference in the affairs of a sovereign Arab nation. The legitimacy of the uprising in Libya was thus ‘absolutely tainted’. Rory Stewart MP provided the counter-argument. This implied that we should not be surprised at the evidence presented in the report (indeed the prospect was raised in a House of Commons library report in April) and special forces on the ground could not be interpreted as a breach of the mandate, which contained a reference to the scale of any deployment. A few special forces do not make ‘a foreign occupation force’. This was the argument put by the government at the time. See for instance the references in the above report. See also this response by the Armed Services Minister, Nick Harvey to the question by John Baron MP on 24 May 2011 (Hansard, col.783), which is a response to the use of attack helicopters rather than special forces but illustrates where the line of legality was drawn.
Mr John Baron (Basildon and Billericay) (Con): Whether or not we deploy attack helicopters, the fact that a key NATO ally has represents, in my view at least, a significant escalation in this conflict and reinforces the point that regime change has been the objective of our intervention. Given the air strikes and this latest news, at what point does the Minister believe that our actions on the ground will cross the line as regards UN resolution 1973?
Nick Harvey: My hon. Friend refers to operations on the ground and asks at what point they would cross UNSCR 1973. What was specifically prohibited was a landing and occupying force and I do not see that one can in any way compare the use of attack helicopters to take on moving targets with a landing and occupying force. We are talking about two completely different things.
The issue might look different if we consider UN Security Council 1970 (2011), which ruled out ‘assistance related to military activities’. It decided that
“all members shall immediately take the necessary measures to prevent the direct and indirect supply, sale or transfer to the Libyan Arab Jamahiriya …of arms and related material 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 material, including the provision of armed mercenary personnel whether or not originating in their territories”
This did not apply to supplies of non-lethal equipment meant for humanitarian or protective use and other arms approved by a sanctions committee.
There was some speculation that this embargo did not prevent assistance to the rebels. For instance, Malcolm Rifkind is cited in the above HoC Library report (p.6) as equating the “Libyan Arab Jamahiriya” with the Gaddafi regime rather than the territory of Libya. Cameron replied on the 14 March by acknowledging that this was not an opinion shared by all lawyers.
This has echoes of the debate on the legality of the Iraq invasion. The argument that a second resolution was needed for the invasion to be legal was, as the Attorney General put it, only the ‘safest’ argument. The implication of course was that the second resolution argument was not the only way the government could find legal cover for the invasion. There was, in that instance, the ‘revived authority’ argument. I can only speculate, but Cameron’s answer would suggest that the government had two legal opinions, one arguing that the safest course of action was to not to arm or assist the rebels, another arguing that the embargo related only to the Gaddafi regime a la Rifkind’s suggestion.
There is another aspect to this question. It has to do with the question of whether 1973 overrode 1970. On the 29 March Secretary of State Clinton said “It is our interpretation that 1973 amended or overrode the absolute prohibition on arms to anyone in Libya.” And on the 30 March David Cameron told Parliament (Hansard Col.333) “The legal position is clear that the arms embargo applies to the whole territory of Libya. But at the same time UNSCR 1973 allows all necessary measures to protect civilians and civilian-populated areas… We do not rule it out but we have not taken the decision to do so.” See Marko Milanovic’s post at EJIL-talk for discussion around this point.
Now, the Newsnight report stated that the French and Qatari’s had supplied the rebels with weapons and Stewart this time did not cite the available legal arguments (that the 1970 didn’t apply to the rebels, or that 1973 overrode 1970s total embargo) to defend their actions. He seemingly backed away from the action of these allies, insisting that the UK could not be responsible for the French and Qatari actions, something Ramdani contested. This backing away from the French/Qatari decision to supply arms also appears in the written answer Lord Howell gave to Baroness Tonge on 19 July (2011: Col.WA276) He noted that the French ‘did not consult in advance with the UK Government over their decision to supply some weapons along with other essential supplies to the Libyan Opposition in the Jebel Nafusa resisting attacks by the Qadhafi regime’, but that UN resolutions ‘allow in certain limited circumstances weapons to be provided to the Libyan Opposition’. This it seems to me suggests that the while the UK government did not regard the supply of arms to the rebels to be illegal it was not, in its opinion, necessarily the safest legal course to take. It might also suggest that the government thought it was safe legally but not something they necessarily agreed with politically.
I sympathise with Ramdani but I tend to agree with Stewart. I don’t think Newsnight’s confirmation (if that’s what it is) that UK special forces were on the ground can be understood as a breach of the mandate when we consider 1973’s exclusion of a ‘foreign occupation force’. But a question remains whether it can be classed as “other assistance related to military activities” banned under 1970. Even if it is understood in these terms, it does not necessarily mean a breach of the mandate because, as noted above, there are arguments that enabled the international coalition to assist the rebels in various forms. There was possibly a sliding scale used to assess legality, from an occupation force which was a no-no (convenient because that was a political no-no as well); to arming the rebels which was risky; to military advisers, communication equipment and body armour which was a yes because it was closer the ‘protection of civilians’ mandate.
I also tend to agree with Stewart and don’t think the presence of special forces on the ground would have escalated the level of violence. The presence of special forces on the ground did not mean the mission had shifted to regime change. That, arguably, was the mission even without special ground forces. In fact, it is possible that the deployment of these forces was necessary to limit the civilian casualties of airstrikes and would have been necessary even in a limited intervention to protect Benghazi.
That still does not make the pursuit of regime change legitimate. Like I say, I sympathise with Ramdani and western states must take into account the growing concern that R2P is being used politically, but there is a practical issue she and other humanitarian interventionists have to face up to. Had the international forces limited their operations to the defence of civilians directly threatened in for instance Benghazi, or had they failed to assist the rebels in their transition into a credible fighting force, then the violence would in all likelihood have been prolonged. This is the dilemma at the heart of civilian protection, which is articulated nicely by Bellamy and Williams in International Affairs.
One might still argue that even then this did not give the international coalition the right to pursue regime change under the cover of a civilian protection mandate. But that possibly misses the point. For the international coalition, regime change was a means of protecting civilians. If that was a misinterpretation of the UN mandate then the onus was on Russia or someone else holding that opinion to bring the matter back the Security Council.