Libya and UN Charter By A.G. Noorani - Saturday 9th April 2011

THE much-touted sanction for the war in Libya, the UN Security Council’s Resolution 1973 (2011), has a disreputable ancestry stretching back to 20 years.
The Soviet Union was in decline. The unipolar moment had arrived. Flushed with power the US bent the UN to its will, posing a real threat to the sovereignty of nations and, indeed, to world peace.
As before, illegality is compounded with deceit. The professed aim, protection of the people, is belied by the actual conduct of the war and the unconcealed aim of regime change. “He (Qadhafi) should go,” President Barack Obama had declared on Feb 26 well before Resolution 1973 was adopted on March 17.
The UN Charter not only places on the Council (Article 24) the “primary responsibility for the maintenance of international peace and security” but lays down a precise scheme by which the responsibility should be discharged. Briefly, it is by states assigning armed forces to the UN which will be under “the strategic direction” of the Council’s Military Staff Committee consisting of the chiefs of staff of its five permanent members. The committee has never functioned.
Consider the precedents. The Security Council’s resolution of June 27, 1950 on Korea asked member states to assist the Republic of Korea “to repel the armed attack”. Its resolution of July 13, 1960 on the Congo authorised the secretary general “to provide the government with such military assistance as may be necessary”. Its resolution of Nov 24, 1961 on Katanga’s secession from the Congo empowered him “to take vigorous action, including the use of requisite measure of force, if
necessary” for defined ends. While not professing to be “a UN’s war”, these actions were well with its Charter.
The breach came after Iraq’s invasion of Kuwait on Aug 2, 1990. Resolution 660 of that day demanded Iraq’s withdrawal from Kuwait and asked the two states “to begin immediately intensive negotiations”. A slew of resolutions followed culminating in Resolution 678 on Nov 29, 1990. It demanded Iraq’s compliance with previous resolutions and added that it authorised “member states cooperating with the Government of Kuwait, unless Iraq on or before January 15, 1991 fully implements … the foregoing resolutions, to use all necessary means to uphold and implement Security Council Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area” — a carte blanche for imposing the West’s schemes in the region.
The British defence secretary Tom King noted on Jan 27, 1991 that this went beyond Kuwait’s liberation. However the Council can act, as the Charter requires it to, only through the committee. Failing that, the states retain the right of self-defence which, as Perez de Cuellar the UN secretary-general said on Nov 8, 1990 had no application to the case.
But the Council simply cannot abdicate its functions by giving the member states the ‘power of attorney’ to act on its behalf under an open-ended resolution, free from the constraints of the committee and, indeed, from the Council’s own control. This reduces Article 24 to naught. The UNSC ceases to be responsible by providing a fraudulent legal cover to the US.
Resolution 678 was recalled 12 years later on Nov 8, 2002 in Resolution 1441 (2002) for a second war on Iraq. Its charge-sheet on Iraq’s failure to disarm concluded in para 12 with a decision “to convene immediately upon a receipt of a report” on Iraq’s compliance or otherwise of its obligations “in order to consider the situation and the need for full compliance” of the resolutions. This envisaged another meeting.
The US and Britain prepared two draft resolutions to win the Security Council’s sanction (Feb 24 and March 7) and went to war when they failed to win support for it. When Resolution 1441 was adopted on Nov 8, 2002, Russia, France and Germany said explicitly in a joint statement that “in case of failure by Iraq to comply with its obligations” the fact would be reported to the Council and “it will be then for the Council to take a position on the basis of that report”.
Like Resolution 678 on Iraq, Resolution 1973 on Libya also “authorises member states …. to take all necessary measures … to protect civilians and civilian populated areas under threat of attack … while excluding a foreign occupation force of any form on any part of Libya territory and requests the member states concerned to inform the secretary-general immediately of the measures they take” for reporting to the Council. Those “measures” are for them to decide. The UN is reduced to a registry.
This is gunboat diplomacy.
On March 18, 2003, on the eve of Iraq’s invasion, the deputy chief legal adviser at the British foreign office, Elizabeth Wilmshurst resigned because in her opinion the war would be illegal. The attorney general Lord Goldsmith gave one opinion on March 7, 2003 and another on March 15, which supported Tony Blair fully, because the chief of defence staff Adm Sir Michael Boyce demanded a clear opinion on the lawfulness of the war. Earlier the attorney general had opined that another resolution was necessary.
Two points he made on March 7, 2003 are relevant now. “Regime change cannot be objective of military action” and the lawfulness of the action turns also on the “question of proportionality”. Both are flouted in Libya. The Economist reported recently that the coalition “cannot claim to be protecting local civilians when attacking government forces” and “for all the previous insistence that regime change is not on the agenda, the leaders attending the [London] conference could not have been clearer that the military campaign will continue until Colonel Qadhafi has gone”.
Last July, Britain’s deputy prime minister, Nick Clegg, standing in for the prime minister in parliament, described the war on Iraq in 2003 as “illegal”. So is the war on Libya.
The writer is an author and a lawyer.

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