A. NATO Halting Attacks by Qaddafi's Forces

In phase one of Operation Unified Protector NATO and its allies launched a number of airstrikes at various ground-based devices, systems and heavy artillery of the Qaddafi regime, as well as enforcing the no-fly zone. The rebels showed a low level of military effectiveness at the time. However, allied air attacks against government forces surrounding Benghazi and other rebel-held cities, as well as masses of loyalist forces within, reinforced the rebels.

Constituting the legal mandate of the military operation in Libya, UNSC Resolution 1973 paragraph 4 authorized UN member states ‘to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi’. The reference to ‘all necessary measures’ means that NATO enjoyed wide discretion in its choice of forcible means. The only specifically excluded measure in paragraph 4 is the deployment of ‘a foreign occupation force’ on Libyan territory.

But, importantly, paragraph 4 establishes a distinction between the authorized measures and the objective to be achieved. The authorization ‘to take all necessary measures’ is directly linked to the protection of ‘civilians and civilian populated areas …, including Benghazi’. Only military measures directed at achieving civilian protection are legally recognized through the mandate in paragraph 4. Military measures taken in pursuance of other aims will represent a breach of paragraph 4 and will amount to an unlawful ‘threat or use of force’ against the targeted state under the UN Charter Article 2(4).

Paragraph 4 decides that the objective of protection comprises ‘civilians and civilian populated areas …, including Benghazi’. International humanitarian law defines ‘civilians’ in international armed conflicts as all those who do not participate in the armed forces of any party or are members of militias belonging to a party to the conflict.Footnote ²⁸ There is, however, no agreed definition of ‘civilians’ in non-international armed conflicts.Footnote ²⁹ But it is accepted in both international and non-international armed conflicts that civilians are not protected against attacks ‘for such time as they take a direct part in hostilities’.Footnote ³⁰ Similarly, civilians taking direct part in hostilities should not be considered protected under Resolution 1973.Footnote ³¹ Therefore only Libyan non-combatants, i.e. residents of Benghazi or other areas of Libya who do not fight with the armed forces on either side of the conflict, enjoy protection under the term ‘civilians’ in Resolution 1973.

The objects of protection under paragraph 4 also include ‘civilian populated areas’. An ordinary reading of the phrase indicates that it is about protecting specific geographical areas. This understanding coincides with that of the French representative in the Security Council meeting adopting Resolution 1973 who stated that the resolution authorizes member states to resort to all necessary measures ‘to protect civilians and territories’.Footnote ³² The reference to ‘civilian populated areas’ is thus about protecting geographical zones populated by civilians, including towns and cities. Regardless of whether attacks on such inhabited territories are being directed at civilians or at military objects recognized as legitimate under international humanitarian law, the mandate of paragraph 4 allows for protection. This widely extends the mandate, permitting NATO and its allies to also protect cities and towns held by rebel force as well as protecting rebel forces present in such areas.

The mandate of paragraph 4 finally includes the protection of the city Benghazi. As a populated territory the city already enjoyed protection under the term ‘civilian populated areas’. Nevertheless, by making a particular reference to Benghazi in Resolution 1973, the Security Council sent a clear message to Qaddafi. If Qaddafi did not immediately pull back his forces from the announced massive assault on Benghazi, NATO would initiate a military operation to secure its protection. The rapid advance of the Qaddafi forces to within striking distance of the rebel-held city of one million people had created an urgent need for protection and there was no room for ambiguities as to the legality of protecting Benghazi.Footnote ³³

On the one hand, the inclusion of ‘civilian populated areas …, including Benghazi’ in paragraph 4 expands the protection mandate from covering solely those who are covered by the term ‘civilians’ under international humanitarian law. On the other hand, the explicit reference to these areas implies a restrictive interpretation of the mandate. It only licenses protection of these three explicitly mentioned objects. The mandate does not authorize military measures to protect the whole population or the entire geographical territory of Libya.

Moreover, paragraph 4 limits the scope of protection to situations where civilians and civilian populated areas, including Benghazi, are ‘under threat of attack’. The expression shows that the mandate not only includes actual attacks, it also covers situations when civilians or populated territories are exposed to a threat of attack. A similar description of the term ‘threat’ was made by the International Court of Justice in the Nuclear Weapons Advisory Opinion where the Court said that a ‘threat’ under Article 2(4) of the UN Charter is a ‘declared readiness of a State to use force’.Footnote ³⁴ A ‘threat’ involves a communicated hostile determination or intention. This communication may be expressed or implied. The existence of a threat must be determined on the basis of whether there are reasonable grounds for such a perception.

The significance of the condition of an ‘attack’ is that the mandate only permits NATO to conduct military operations to prevent or halt attacks, or threats of attacks, posed by either party to the Libyan conflict. There is no definition of the word ‘attack’ in Resolution 1973, nor in the UN Charter. But international humanitarian law establishes that civilians ‘shall not be the object of attack’.Footnote ³⁵ ‘Attack’ is defined in Additional Protocol I to the Geneva Conventions as ‘acts of violence against the adversary, whether in offence or in defence’.Footnote ³⁶ This has been taken to mean ‘combat action’Footnote ³⁷ or ‘the use of armed forces’.Footnote ³⁸ Similarly, ‘attack’ under paragraph 4 of Resolution 1973 should be taken to mean the use of military force against ‘civilians and civilian populated areas’.

At the time NATO and its allies initiated airborne attacks on pro-Qaddafi forces in the city of Misrata, the city had already been under attack by government tanks and artillery for several days.Footnote ³⁹ This was also the case when NATO began its airstrikes of Qaddafi's troops within Ajdabiua, where government soldiers, tanks and warplanes had been bombarding the town.Footnote ⁴⁰ When carrying out military airborne action to protect these cities as well as other populated areas from ongoing attacks by government forces, NATO and its allies acted within the mandate in paragraph 4.

When it comes to Benghazi, Qaddafi had not initiated attacks on the city. But although Libya's Foreign Minister, Khalid Kaim, had announced that the government was ready for a ceasefire with the rebels, Qaddafi's forces continued to advance swiftly toward Benghazi. In his speech on a radio show in Tripoli on 17 March, Qaddafi announced his readiness to ruthlessly assault the city of Benghazi the very same night, ‘It's over. The issue has been decided’, he said, offering amnesty to those who laid down their arms.Footnote ⁴¹ The actual movement of troops in combination with the announcement of a forthcoming assault the same night constituted a clear communication of a hostile intention. Thus, when the US, France and Britain on 19 March launched airstrikes and Tomahawk cruise missiles directed at the government forces, Libyan army tanks and vehicles outside of Benghazi, these military actions were carried out within paragraph 4 of Resolution 1973.

B. The Stalemate between the Combating Forces

During the initial months of the conflict, the government forces altered their tactics, making use of armed 4 × 4 vehicles like those used by the rebels, as well as placing heavy armoury within civilian populations, making it harder for NATO to identify and strike at the targets. By mid-April 2011 the siege of the city Misrata had lasted for 6 weeks, with Qaddafi's forces bombarding the city with rockets and artillery. Several claimed that the battle in Libya had reached military stalemate and that NATO operations had limited effect on the bloodshed.Footnote ⁴² France and Britain appealed for more intensified NATO bombing to halt Qaddafi from bombarding civilians. NATO, on the other hand, said it was ‘conducting its military operations in Libya with vigour within the current mandate. The pace of the operations is determined by the need to protect the population’.Footnote ⁴³ Vice Admiral Rinaldo Veri, Commander of Maritime Forces for Operation Unified Protector, opined that he did not think there was a stalemate in the conflict. He said that NATO and its allies ‘are going slowly but steady … We are still moving forward’.Footnote ⁴⁴

On 11 April 2011 a delegation led by South African President Jacob Zuma emerged as a peace broker in Libya, suggesting an immediate ceasefire and dialogue aimed at reconciling the two parties of the conflict.Footnote ⁴⁵ Although the delegation managed to persuade Qaddafi to agree to a mediation plan, Mustafa Abdul Jalil, the Transitional National Council's chairman, rejected the peace initiative because it did not require Qaddafi to immediately relinquish power while both sides negotiated.Footnote ⁴⁶ The rebels further rejected the peace initiative as it did not require Qaddafi to withdraw his forces and it required a cessation of NATO air strikes.Footnote ⁴⁷ In addition, Anders Fogh Rasmussen, the NATO Secretary General, considered that it was ‘too early’ for a ceasefire because for a ceasefire to be credible ‘an effective monitoring mechanism’ needed to be established.Footnote ⁴⁸

On 14 and 15 April 2011, NATO held an informal meeting in Berlin of NATO foreign ministers and non-NATO members participating in the Libyan conflict to discuss the alliance's military involvement in the country.Footnote ⁴⁹ The US and other NATO allies rejected the French and British calls for them to contribute more to the air campaign to help break the ongoing military stalemate.

On 14 April 2011 US President Barack Obama, French President Nicolas Sarkozy and British Prime Minister David Cameron published a joint article in several newspapers. The three state leaders pledged that NATO would protect civilians and stated that ‘so long as Qaddafi is in power, NATO must maintain its operations so that civilians remain protected and the pressure on the regime builds’. They acknowledged that ‘our duty and our mandate under U.N. Security Council Resolution 1973 are to protect civilians and we are doing that. It is not to remove Qaddafi by force’. Nevertheless, they claimed that ‘it is impossible to imagine a future for Libya with Qaddafi in power’ and that a genuine transition from dictatorship to an inclusive constitutional process could only really begin when Qaddafi had resigned.Footnote ⁵⁰ The ambiguity of this article is striking. On the one hand, it is argued that the mandate does not include the removal of Qaddafi; on the other, it is stated that NATO will maintain its operations and increase the pressure on the regime as long as Qaddafi is in power.

Russia had from the beginning of the operation been wary of any signs of mission creep and had called for a political solution. In a news conference in Berlin on 15 April 2011, Russian Foreign Minister Sergei Lavrov said that the operation should ‘proceed with a political and diplomatic settlement’. He added that ‘The UN has not authorized regime change’.Footnote ⁵¹ NATO Secretary-General Fogh Rasmussen responded by reiterating that the operation did not exceed the UN mandateFootnote ⁵² and on 19 April Lieutenant-General Charles Bouchard explained that ‘NATO will continue its campaign to degrade the Qaddafi regime forces that are involved in the on-going attacks on civilians’.Footnote ⁵³

On 19 April 2011 NATO aircraft conducted multiple strikes against command and control facilities of the Qaddafi regime, including communications infrastructure used to coordinate attacks.Footnote ⁵⁴ On 25 April NATO aircraft destroyed an office building in Qaddafi's Bab al-Azizia complex in Tripoli.Footnote ⁵⁵ Again on 30 April NATO bombed another building in the complex, killing one of Qaddafi's sons and three grandchildren.Footnote ⁵⁶ NATO held that the last attack was a precision strike against the Qaddafi regime's military installations, including targeting a known command-and-control building in the Bab al-Azizia complex. NATO held that the strikes were legal as the targets were in command and control of forces attacking civilians.Footnote ⁵⁷ On 1 May British Prime Minister Cameron argued that the attacks were in line with the UN mandate of Resolution 1973. The command and control centres were part of Qaddafi's war-making machine and by its attacks NATO were preventing loss of civilian life, Cameron said.Footnote ⁵⁸

The already sceptical states became even less convinced as NATO took a more offensive approach. China and Russia repeatedly disputed the allies’ interpretation of the resolution, accusing NATO of overstepping Resolution 1973. At a news conference on 26 April 2011, Russian Prime Minister Vladimir Putin held that NATO had exceeded the mandate, escalating its action from civilian protection to killing Qaddafi and enforcing a regime change. Putin expressed outrage over the destruction of Libya's infrastructure and said that ‘in essence one of the warring sides is attacking under the cover of aircraft’.Footnote ⁵⁹ In a statement on 30 June, the Chinese Foreign Ministry spokesman Hong Lei said that his country ‘urges the international community to strictly abide by the spirit of the relevant UN Security Council resolution and not take any actions that exceed the authority granted by that resolution. We have always urged a political solution to the current crisis in Libya, so that Libya returns to peace and stability as soon as possible’.Footnote ⁶⁰ The African Union stated that ‘a verifiable and internationally-monitored ceasefire is key, both to creating conducive conditions for successful negotiations among the Libyan parties and also to ensuring the protection of the civilian population, which is the very purpose for which resolution 1973 (2011) was adopted by the UN Security Council and which should inform the ongoing military operations in Libya.’Footnote ⁶¹

At the General Assembly dialogue concerning the responsibility to protect, in July 2011, several countries raised their unease about the military force used by NATO when implementing Resolution 1973. South Africa's UN Ambassador, Baso Sangqu, said he believed that the Security Council resolution that his country supported on Libya authorized only a no-fly zone and did not mean ‘regime change or anything else’.Footnote ⁶² The concerns of perceived overreach of Resolution 1973 echoed the Secretary-General of the Arab League, Amr Moussa, who as early as 23 March 2011 underscored that the Security Council had authorized military measures to protect Libyan civilians, not to enforce regime change.Footnote ⁶³

Nonetheless, on 14 December 2011 UN Secretary-General Ban Ki-moon opined his belief that ‘Security Council resolution 1973 … was strictly enforced … within the mandate’. ‘This military operation done by NATO forces in Libya was strictly within [resolution] 1973’, he said.Footnote ⁶⁴

Whether Resolution 1973 allowed military activities in pursuance of a regime change has been one of the most controversial issues concerning the Libyan intervention. The legal litmus test is whether the NATO measures were aiming at protection of ‘civilians and civilian populated areas …, including Benghazi’ against ‘threat of attack’. The term ‘under threat of attack’ goes beyond the need for a definite or direct link to an actual attack. A comparison between the text in Resolution 1973 on Libya with Resolution 1975 (2011) on Côte d'Ivoire, where the Security Council also authorized the use of armed force to protect the civilian population, shows that while the text of Resolution 1975 is limited to situations where civilians are ‘under imminent threat of physical violence’, the text of Resolution 1973 does not require imminence. Yet, some form of adequate connection must be established between a military capability and the risk to civilians. Surely, Qaddafi's command and control centres did not in themselves pose a threat against the civilian population. However, they enhanced Qaddafi's capabilities to attack his own people. Without these centres Qaddafi was no longer able to effectively coordinate his forces. Resolution 1973 did not establish a basis for destroying Qaddafi's military forces. Nevertheless, there may be a fine line between what should be considered a lawful destruction of capability to threaten civilians against attack and general impairment of the regime's army.

This leads to the question of overthrowing the regime. Shortly after Resolution 1973 was adopted, on 24 March 2011, UN Secretary-General Ban Ki-moon stressed that Resolution 1973 was not aiming at a regime change but to protect civilians ‘because Colonel Qaddafi has been killing his own people’.Footnote ⁶⁵ It could be argued that removing Qaddafi was necessary to protect Libyan civilians from future attacks. Qaddafi himself had announced his preparedness to continue fighting to retain power in Libya. Clearly a regime change would protect civilians. By enforcing a regime change, NATO would remove the greatest threat on the Libyan civilians, Qaddafi.

Nevertheless, what is decisive for the lawfulness of the military activities is that the mandate strictly limits military activities to those directed to achieve protection of ‘civilians and civilian populated areas’ under ‘threat of attack’. The lawful aim was neither general human rights protection in Libya nor to bring down the Qaddafi regime – or to enforce democracy.

C. NATO Assisting Rebels towards Regime Change

NATO provided for the high-precision strike capabilities that the rebel commanders needed.Footnote ⁶⁶ The rebels were also rapidly improving their operations, especially in combat coordination, due to covert deployment of foreign military advisors and special agents from both France and Britain who trained the rebels and provided tactical intelligence for the NATO aircraft bombing forces.Footnote ⁶⁷ Moreover, the rebels received secret airdrops of weapons and ammunition, admitted both by France and Qatar.Footnote ⁶⁸ The rebels managed to push back the regime forces in the Jebel Nafusa mountains and in Misrata. When becoming aware of the French airdrop of arms to Libyan rebels, Russian Foreign Minister Sergei Lavrov reacted by saying that ‘If this is confirmed, it is a very crude violation of UN Security Council resolution 1970 [which imposes an arms embargo on Libya]’.Footnote ⁶⁹

While the rebels grew stronger, the effectiveness of the Libyan government in maintaining control over its own forces declined due to NATO air strikes wiping out command-and-control centres and infrastructure. The rebels then initiated a more aggressive military approach attacking cities and towns held by Qaddafi's forces. When the rebels advanced to Qaddafi-held territories, including Tripoli, Bani Walid and Sirte, NATO and its allies launched air strikes in the same areas. Media reported that sleeper cells had been set up within Tripoli, armed with weapons smuggled in by the rebels. On 20 August 2011 the sleeper cells were activated and there was a closely coordinated operation between the rebels on the ground and NATO, launching precision strikes in the area.Footnote ⁷⁰ The same day Tripoli fell to the rebels. On 20 October Qaddafi was killed and on 27 October the Security Council adopted Resolution 2016, terminating the protection of civilians and the no-fly zone of Resolution 1973.Footnote ⁷¹

By providing close air support for the rebels’ advances into cities held by Qaddafi's forces, NATO wiped out Libyan military forces defending those cities. NATO's air strikes assisted the rebels in conquering new areas and finally in bringing down the Qaddafi regime. This raises the question of whether the coalition lawfully could provide such aerial support for rebel operations on the ground.

Any armed assistance provided for by NATO was limited by the mandate in Resolution 1973. As already stated, the resolution did not cover regime change or general human rights protection in Libya. NATO was solely and exclusively authorized to protect ‘civilians and civilian populated areas’ under ‘threat of attack’. The areas held by Qaddafi were obviously not under threat of attack by him. When the rebels advanced on cities held by Qaddafi's forces it was the rebels themselves who posed a threat of attack on civilians and civilian populated areas.Footnote ⁷²

Moreover, the coordination between the rebels and NATO while the rebels advanced on Qaddafi-held territories, witnessed NATO taking sides in the conflict. The traditional UN principle of impartiality implies that when the Security Council authorizes the use of force in situations of armed conflict, unless otherwise specified, the intervening states should remain neutral towards the political aims of the parties of the conflict.Footnote ⁷³ Evidently during the Libyan conflict, NATO and its allies acted solely on the part of the rebels, although the mandate did not take sides in the conflict.

The legal basis for NATO air strikes in this phase was arguably consent by the rebels as the new effective government of Libya, rather than Resolution 1973. But neither the UN mandate nor consent would provide a basis for NATO's use of force to assist the rebels with the offensive. While Resolution 1973 had the defensive purpose of protecting civilians, consent from the rebels would only be relevant once they had secured sufficient control of Libyan territory. Moreover, there is general agreement that the right of ‘intervention by invitation’ does not apply in cases of civil war.Footnote ⁷⁴

While it is easy to understand that NATO for military and political reasons wanted to overcome the stalemate between Qaddafi and the rebels, the air support for the Libyan rebels to advance on Qaddafi-held territories went beyond the mandate of Resolution 1973 and thus violated the prohibition against the use of force under the UN Charter article 2(4).