March 25, 2011

The following Questions and Answers (Q & A) address aspects of international humanitarian law (the laws of war) governing the armed conflict between the government of Libya and the international coalition, and between Libya and Libyan opposition armed groups.  The purpose is to provide legal guidance on the fighting, including to the parties to the conflict and those with the capacity to influence them.  This Q & A does not address the justifications or the legitimacy of resorting to war by any party.

By what authority was the no-fly zone against Libya created?

What does the no-fly zone in Libya provide?

What international humanitarian law is applicable in Libya?

What are the basic principles of the laws of war?

Do the laws of war apply to air warfare?

What laws of war apply to no-fly zones generally?

What targets are subject to military attack?

What kinds of targets may be attacked under SC Resolution 1973?

What are the obligations of the warring parties regarding fighting in populated areas?

What precautions must be taken in carrying out military attacks?

Are warring parties permitted to target infrastructure such as airports, roads, bridges and power stations?

May coalition forces attack Libyan radio and television stations?

What is meant by using human shields?

What obligations do warring parties have to humanitarian agencies?

Does international human rights law still apply in Libya?

Who can be held responsible for violations of international humanitarian law?

By what authority was the no-fly zone against Libya created?

The United Nations Security Council (SC) on March 17, 2011, by a vote of 10 to 0 with 5 abstentions, enacted SC Resolution 1973, which creates a "no-fly zone" in Libya under Chapter VII of the UN Charter.[1]  Resolution 1973 also calls for an immediate ceasefire and an end to all violence and abuses against civilians.  It demands that the Libyan authorities comply with their obligations under international law, including international humanitarian law, and that they ensure the rapid and unimpeded passage of humanitarian assistance.[2]  

What does the no-fly zone in Libya provide?

SC Resolution 1973 places a ban on all aircraft flights in Libyan airspace in order to help protect civilians (para. 6). It provides UN member states that have notified the UN secretary-general and the secretary-general of the League of Arab States with wide powers to use military force to enforce the no-fly zone (para. 8). 

The resolution authorizes enforcing states to "take all necessary measures" to protect civilians and populated areas under threat of attack in Libya, including the city of Benghazi (para. 4).  It specifically prohibits "a foreign occupation force of any form on any part of Libyan territory" (para. 4).  Enforcing states could therefore use military force against a wide range of military targets, including anti-aircraft batteries, military aviation control centers, grounded aircraft, military supply depots, and other military objectives.                                                                         

SC Resolution 1973 states that the no-fly zone does not apply to flights "whose sole purpose is humanitarian, such as delivering or facilitating the delivery of assistance, including medical supplies, food, humanitarian workers and related assistance, or evacuating foreign nationals" from Libya. It also permits states to authorize flights that are deemed necessary "for the benefit of the Libyan people" (para. 7).

What international humanitarian law is applicable in Libya?

Fighting between armed forces acting under SC Resolution 1973 and Libyan armed forces is governed by the laws of war for an international armed conflict, that is, hostilities between states.  Applicable international law includes the Geneva Conventions of 1949 and customary laws of war.  Libya and most states that might be involved in hostilities, including France and the United Kingdom, are also parties to the First Additional Protocol of 1977 (Protocol I) to the Geneva Conventions.  Although the United States is not a party to Protocol I, it accepts most of its provisions as reflective of customary international law.  Protocol I provides the fullest articulation of the laws of war as they pertain to the methods and means of warfare. 

Fighting between Libyan armed forces and Libyan opposition armed groups amounts to a non-international (internal) armed conflict. It is regulated by Common Article 3 to the Geneva Conventions and the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II), as well as customary laws of war.

What are the basic principles of the laws of war?

The laws of war - whether in international or internal armed conflicts - seek to minimize unnecessary pain and suffering during wartime, particularly by protecting civilians and other noncombatants from the hazards of armed conflict.  It addresses the conduct of hostilities - the means and methods of warfare - by all sides to a conflict. A fundamental principle is that parties must distinguish at all times between combatants and civilians. Civilians and civilian objects may never be the object of attacks. Warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects and to refrain from attacks that would disproportionately harm the civilian population or fail to discriminate between combatants and civilians.  
 
International humanitarian law also provides a number of fundamental protections for noncombatants, (such as civilians, captured combatants, and those who are unable to fight because of wounds or illness). It prohibits violence against such persons - particularly murder, cruel treatment and torture - as well as outrages against their personal dignity and degrading or humiliating treatment. 

Do the laws of war apply to air warfare?

The general principles of the laws of war apply to air warfare.  However, the specific application of these rules, such as with respect to precautions necessary to spare civilian objects from attack, may entail different practical measures from ground warfare.  For example, taking all feasible precautions to determine that an aircraft is a military target may include such factors as visual identification, responses to radio warnings, infrared radar and electronic signatures, identification modes, aircraft number and formation, and altitude, speed and other flight characteristics.[3] 

What laws of war apply to no-fly zones generally?

Enforcement of a no-fly zone must be in accordance with the laws of war concerning the methods and means of armed conflict.  Specifically, the laws of war only permit attacks on military objectives, such as military airplanes, helicopters and targets on the ground. Attacks on civilians and civilian objects, such as commercial airlines and other civilian aircraft, are prohibited.   

Civilian objects become subject to legitimate attack when they become military objectives - that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage. This would include the deployment of military forces in what are normally civilian objects, such as civilian aircraft. Where there is doubt about the nature of an object, it must be presumed to be civilian.

Civilian aircraft may be intercepted or diverted to prevent them from entering a no-fly zone.  However, by entering a no-fly zone, they do not lose their civilian status and their protection from attack.  According to the UK Military Manual, "attacks on ostensibly civil aircraft ought only to be carried out as a last resort when there is reason to believe that it is itself deployed on an attack."[4]

Civilians may be targeted for attack only when they are "directly participating in hostilities." In the context of the no-fly zone, directly participating in hostilities would include flying military aircraft or civilian aircraft as part of a military operation; engaging in electronic warfare; loading aircraft with ordnance, such as missiles and bombs; planning military air operations; and repairing or servicing military aircraft directly prior to participating in military operations.

What targets are subject to military attack?

The laws of war limit permissible means and methods of warfare by parties to an armed conflict and require that they respect and protect civilians and captured combatants. The fundamental tenets of this law are "civilian immunity" and the principle of "distinction." While humanitarian law recognizes that some civilian casualties are inevitable during armed conflict, it imposes a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives. Civilians lose their immunity from attack during the time they are "directly participating in the hostilities."

The laws of war also protect civilian objects, which are defined as anything not considered a military objective. Prohibited are direct attacks against civilian objects, such as homes and apartments, places of worship, hospitals, schools, and cultural monuments - unless they are being used for military purposes. Civilian objects become subject to legitimate attack when they become military objectives - that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage. This would include the deployment of military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.

The laws of war prohibit indiscriminate attacks. Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.

Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.

What kinds of targets may be attacked under SC Resolution 1973?

Enforcement of the no-fly zone in Libya permits denial of Libyan airspace to all aircraft, including airplanes and helicopters. The laws of war only permit attacks on aircraft that are Libyan military or are non-military aircraft taking part in military operations (for example, civilian aircraft transporting Libyan soldiers).

However, SC Resolution 1973 not only authorizes a no-fly zone, but it provides broad powers to enforcing states to "take all necessary measures" to protect civilians. Thus, they could use military force against a wide array of military targets to enforce the no-fly zone, such as anti-aircraft defenses, military depots and other military objectives.      

It would be unlawful for countries taking part in enforcement of the no-fly zone to declare all or any part of the zone as subject to unrestricted air attacks in which any aircraft in the zone could be attacked, regardless of its military or civilian status.

What are the obligations of the warring parties regarding fighting in populated areas?

International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on warring parties to take steps to minimize harm to civilians.

The laws of war require that the parties to a conflict take constant care during military operations to spare the civilian population and to "take all feasible precautions" to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving "effective advance warning" of attacks when circumstances permit.

Forces deployed in populated areas must avoid locating military objectives near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives. Belligerents are prohibited from using civilians to shield military objectives or operations from attack. "Shielding" refers to purposefully using the presence of civilians to render military forces or areas immune from attack.

At the same time, the attacking party is not relieved from its obligation to take into account the risk to civilians simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas.

What precautions must be taken in carrying out military attacks?

All parties to a conflict have a legal duty to protect the life, health and safety of civilians and other noncombatants. The targeting of military installations and other military objectives is permitted, but parties must take all feasible precautions to avoid civilian harm and are prohibited from targeting civilians, launching indiscriminate attacks, or attacking military objects if the anticipated harm to civilians will be disproportionate to the expected military advantage. Military commanders must choose the means of attack that can be directed at military targets and will minimize incidental harm to civilians. If the weapons used are so inaccurate that they cannot be directed at military targets without imposing a substantial risk of civilian harm, then they should not be deployed. Deliberately attacking civilians is in all circumstances prohibited. Individuals who attack civilians with criminal intent are responsible for war crimes.  


Are warring parties permitted to target infrastructure such as airports, roads, bridges and power stations?

Airports, roads and bridges are civilian objects that become military objectives subject to attack if they are actually used for military purposes. Even then, the rule of proportionality applies, requiring the parties to the conflict to weigh the short and long-term harm on civilians against the military advantage served; they must consider all ways of minimizing the impact on civilians; and they should not undertake attacks if the expected civilian harm outweighs the definite military advantage. Among the factors to be considered are whether the destruction of particular roads or bridges serve in fact to impede military transport in light of readily alternative routes - that is, whether the infrastructure attacked is making an "effective" contribution to the party's military action and its destruction offers a "definite military advantage" - or whether its destruction seems aimed more at inconveniencing the civilian population and even preventing it from fleeing the fighting and seeking safety.  
 
While electrical facilities that supply the army as well as the civilian population might be a military objective, the harm to civilians when electricity supplies fail is often enormous, affecting refrigeration, sanitation, hospitals and other necessities of modern life; in urban society, electricity is arguably "indispensable to the survival of the civilian population," meaning that it can be attacked only in extremely narrow circumstances or in a manner that limits the impact to the short term.  Meanwhile, the military effect of targeting electrical facilities serving the civilian population often can be achieved in more focused ways, such as by attacking military facilities themselves or the portion of an electrical grid directly serving a military facility.  

May coalition forces attack Libyan radio and television stations?

Military attacks on broadcast facilities used for military communications are legitimate under the laws of war.  Such attacks on civilian television or radio stations are prohibited if they are designed primarily to undermine civilian morale or to psychologically harass the civilian population. Civilian television and radio stations are legitimate targets only if they meet the criteria for a legitimate military objective; that is, if they are used in a way that makes an "effective contribution to military action" and their destruction in the circumstances ruling at the time offers "a definite military advantage." Specifically, Libyan government broadcast facilities could become military targets if, for example, they are used to send military orders or otherwise concretely to advance Libyan military operations. However, civilian broadcasting facilities are not rendered legitimate military targets simply because they broadcast pro-Gaddafi propaganda. Just as it is unlawful to attack the civilian population to lower its morale, it is unlawful to attack facilities that solely shape civilian opinion; neither directly contributes to military operations.

Should stations become legitimate military objectives because of their use to transmit military communications, the principle of proportionality in attack must still be respected. This means that coalition forces should verify at all times that the risks to the civilian population in undertaking any such attack do not outweigh the anticipated military benefit. They should take special precautions in relation to buildings located in urban areas, including giving advance warning of an attack whenever possible.

What is meant by using human shields?

The war crime of "shielding" has been defined as intentionally using the presence of civilians to render certain points, areas, or military forces immune from military attack. While it may be unlawful, as noted above, to place forces, weapons and ammunition within or near densely populated areas, it is only shielding when there is a specific intent to use the civilians to deter an attack. 

Opposing forces may attack a military target that is making use of human shields, but it is still obligated to determine whether the attack is proportionate - that is, that the expected loss of civilian life and property is not greater than the anticipated military advantage of the attack. The presence of so-called "voluntary" human shields - civilians claiming or are claimed to be intentionally surrounding a military target to deter an enemy attack - remain part of a proportionality determination.

What obligations do warring parties have to humanitarian agencies?

Under international humanitarian law, parties to a conflict must allow and facilitate the rapid and unimpeded passage of impartially distributed humanitarian aid to the population in need. The belligerent parties must consent to allowing relief operations to take place and may not refuse such consent on arbitrary grounds. They can take steps to control the content and delivery of humanitarian aid, such as to ensure that consignments do not include weapons. However, deliberately impeding relief supplies is prohibited.

In addition, international humanitarian law requires that belligerent parties ensure the freedom of movement of humanitarian relief personnel essential to the exercise of their functions. This movement can be restricted only temporarily for reasons of imperative military necessity.


Does international human rights law still apply in Libya?

Human rights law is still applicable during armed conflict situations in which the laws of war apply.  Libya is a party to several international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the African Charter on Human and Peoples' Rights.  These treaties outline guarantees for fundamental rights, many of which correspond to the rights to which civilians are entitled under international humanitarian law (e.g. the prohibition on torture, inhuman and degrading treatment, nondiscrimination, right to a fair trial).

While the ICCPR permits some restrictions on certain rights during an officially proclaimed public emergency that "threatens the life of the nation," any derogation of rights during a public emergency must be of an exceptional and temporary nature, and must be "limited to the extent strictly required by the exigencies of the situation." Certain fundamental rights - such as the right to life and the right to be secure from torture and other cruel, inhuman, or degrading treatment - must always be respected, even during a public emergency.

Who can be held responsible for violations of international humanitarian law?

On February 26, 2011, the UN Security Council adopted Resolution 1970, which referred the situation in Libya to the ICC, giving the court jurisdiction to prosecute war crimes and crimes against humanity since February 15, 2011. The resolution provides that nationals from a state outside Libya that is not a party to the ICC Statute shall not be subject to ICC jurisdiction for all alleged acts arising out of operations in Libya established or authorized by the Security Council. Of the 12 countries that have provided notice to the secretary-general about their participation in military operations under Resolution 1973 as of March 24, all are parties to the ICC Statute except the US, the UAE, Qatar and the Ukraine.  All states, including these four countries not party to the ICC Statute, remain obligated under international law to investigate and prosecute members of their armed forces implicated in war crimes. 

Serious violations of international humanitarian law that are committed with criminal intent are war crimes. War crimes, listed in the "grave breaches" provisions of the Geneva Conventions and as customary law in the International Criminal Court (ICC) statute and other sources, include a wide array of offenses, including deliberate, indiscriminate, and disproportionate attacks harming civilians, hostage taking, using human shields, and imposing collective punishments, among others. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding or abetting a war crime.

Responsibility also may fall on persons planning or instigating the commission of a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.

 

[1] Chapter VII of the UN Charter sets out the Security Council's powers to take military and nonmilitary action to "restore international peace and security."

[2] UN Security Council Resolution 1973, S/RES/1973 (2011), is available at http://daccess-ods.un.org/TMP/8632805.94348907.html .

[3] For a detailed analysis of these issues, see HPCR, "Manual on International Law Applicable to Air and Missile Warfare," 2009, available at http://www.ihlresearch.org/amw/manual/.

[4] UK Ministry of Defence, Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), para. 12.58.2.

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