Libya: Relevance of International Humanitarian Law
Libya is situated in North Africa, and is surrounded by Egypt, Sudan, Chad, Niger, Algeria and Tunisia. The Capital is in the city of Tripoli, which is also the largest city in Libya. Libya gained independence in 1951 from Italy. King Idris led the movement and after Independence, he was declared as the ‘Head of State’ of Libya, a Constitutional and Heredity Monarchy. In 1969, a small group of military officers led by Muammar Gaddafi staged a military coup against King Idris. Gaddafi was declared as the “Brother Leader and Guide of the Revolution“. In 1977, Under Muammar Gaddafi, Libya officially became the “Great Socialist People’s Libyan Arab Jamahiriya”. Gaddafi officially passed power to the General People’s Committees and became a symbolic figurehead. Although, his military rank was that of a Colonel and he did not hold an official position in the government, Gaddafi acted as the de facto head of state of Libya, ‘as was recognised as such in internal and international affairs alike’.[i]
Libya had a significant amount of Oil Reserves, the discovery of which ensured that the country went from one of the poorest countries in the world to a wealthy state. Under Gaddafi, the per capita income of the country increased substantially, and so did the Human Development Index. Housing, Education, Employment and Health facilities improved under Gaddafi’s rule. The Great Manmade River was built in Libya to allow access to fresh water to all parts of the Country.
In 2008, Kings and Rulers of Africa conferred on Muammar Gaddafi the title ‘King of Kings of Africa’.
Background of Revolution: Arab Spring
The Arab Spring refers to a series of protests in the Middle East and North Africa against existing governments in the Arab World. The Arab Spring Movement started in 2010. It is believed to be instigated by dissatisfaction with the rule of local governments, issues with dictatorship and absolute Monarchy, the increasing inequality in wealth, human right violations, corruption, economic decline, unemployment, extreme poverty, etc. The protests have included techniques of civil resistance, demonstrations, strikes, marches, rallies etc. The Arab Spring was also unique as a Resistance movement because of the use of Social Media to mobilise people. In Many Countries, the authorities have responded violently to these protests which led to further unrest and violence by protestors too.
The Arab Spring movement started in Tunisia in 2010, when a man set himself on fire, in protest to police corruption and ill treatment of civilians. After the rapid spread of protests in Tunisia, the President of the country fled to Saudi Arabia. The movement then quickly moved to Egypt, Libya, Yemen and Algeria. As of 2015, rulers have been forced from power in Tunisia, Egypt, Libya and Yemen. Major Protests broke out in Algeria, Iraq, Jordan, Morocco and Sudan. Many Countries in the African and Arab World were affected.
In Honour of these Civil Movements, ‘TIME’ Magazine, named it’s ‘person of the year’ as ‘The Protestor’.
In Libya, the protests started in February 2011. After a 40 year rule of Muammar Gaddafi, various groups in Libya rose to protest against his ‘corrupt and inefficient’ rule. The first protests were peaceful, with demonstrations being held in various cities in Libya, which then proceeded to become a full scale revolt with the formation of various insurgency groups. The Government forces fought these insurgency groups, with various attack and counter attacks, which led to a Civil War in Libya. The Intervention of the United Nations and NATO, who were initially fighting independently and then joined forces with the rebel groups, resulted in the bringing down of the regime of Muammar Gaddafi. The Libyan Conflict was subject to the law of armed conflict, i.e. International Humanitarian Law, but the legal status of the situation kept changing. What started out as a non international armed conflict, between the Gaddafi Government and the anti government insurgency groups, and then changed in character with the joining of forces from the NATO and United Nations. In this article, I aim to identify the various points in the conflict along with their legal character in relation to application of International Humanitarian Law.
Start of Revolution: February, 2011
By 11th February, 2011, the Heads of State of both Tunisia and Egypt had stepped down. Protests first broke out in Benghazi, a city situated in East Libya on 15th February, following the arrest of a human rights activist. 17th February was declared as the ‘Day of Rage’ to mark the five year anniversary of a government’s crackdown on protests outside the Italian Embassy in the Capital City of Tripoli. The protests were against the cartoon depictions of the Prophet Mohamed.
These protests were peaceful, and yet according to some claims, the government retaliated with force, which resulted in several deaths in the city of Benghazi. This turned the protests violent, and by the 20th of February, several local armed groups started emerging in cities in West Libya, namely Al Zawaiyah and Misrata and also in the city of Benghazi, in East Libya. Benghazi became the main city of the uprising. The government were now fighting against various small insurgency groups from various parts of the country. At this point, most of the fighting against the regime was spontaneous and divided. It was not subject to a united command. The International Crisis Group in its report stated that around February 2011, around 100 to 300 anti Gaddafi armed militant groups were formed in Libya. However, the consolidation processes of these small resistance groups commenced soon after. The groups began organising themselves geographically to present a unified front to the government. Each group was led by a military commander, who was usually a defector from the National Army. Gaddafi’s government constrained possibilities of communication in the country, which prevented these unified groups in various parts of the country to unite into one rebel military structure.
By 24th February, various cities and towns in the country were captured by the rebel forces. Fighting between the government forces and the armed rebels continued. By the end of February 2011, National Transitional Council (NTC) was formed as the principal opposition group in Libya, to administer areas under rebel control. They were the political face of the uprising. Under the NTC, a military wing was set up to coordinate with various armed troops. At this point of time, the anti government forces were unified and organised.
The qualification of the Libyan conflict is the subject of academic controversy. When did International Humanitarian Law start applying in the case of Libya? Was it when the various insurgency groups were formed and clashes with the government ensued or was it on the formation of the NTC? Common Article 3 of the Geneva Convention describes a Non International Armed Conflict as an “Armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”. This definition is rather vague and ambiguous. However, the case laws of the UN tribunals have elaborated upon the dual requirements of ‘intensity’ and ‘organisation’ to decide if IHL is applicable to domestic armed conflicts. Among the indicators of Intensity, various cases have considered the number of persons and type of forces[ii], geographical spread and frequency of armed clashes[iii], and the need for mobilisation of armed forces to counter the insurrection.[iv]
The clashes in Libya quickly fulfilled the intensity criteria, and rather earlier on in the conflict. Demonstrators started taking up arms against the government forces, as early as February. The rebels were taking over various cities across Libya. The government also responded with the police opening machine gun fire on the protestors, and the Libyan Air force bombarding Rebel controlled cities.
As for ‘Organisation’, various ICTY chambers have looked into factors including the existence of a command structure and disciplinary mechanisms within the non-State armed group; the group’s unity in internal and external relations; and its ability to gain access to weapons, equipment, recruits, and training.[v]
In the beginning of the revolution, the Gaddafi’s crackdown on communication efforts resulted in not being able to create a unified rebel force. However, by the beginning of March, Rebel groups had captured various cities in Libya and were able to maintain control over them. This indicates a strong organisational force amongst rebel groups. Also, once the NTC was established, they affirmed their commitment to International Humanitarian law by issuing ‘codes of conduct’ on the treatment of detainees and prisoners and also a frontline manual on the fundamental rules of IHL. This officially fulfilled the criteria of Organisation and also their ability to implement and enforce IHL.
Common article 3 of the 1949 Geneva Convention applies in the cases of armed conflict of a non-international nature, occurring on a State party’s territory. Libya is also party to the 1977 Additional Protocol II which deals with non-international armed conflict.
Other Applicable Human Rights instruments were applicable, like the 1966 Covenant on Civil and Political Rights and the Convention on the Rights of the child. Additional Protocol II prohibits attacks on the civilian population and individual citizens, as well as the environment and cultural property including places of worship. It restricts attacks on works and installations containing dangerous forces. It strengthens fundamental guarantees enjoyed by all persons who are no longer taking part in the hostilities and lays down the rights of persons deprived of freedom and liberty. It provides for judicial guarantees for those prosecuted in connection with the armed conflict. It protects the wounded and sick as well as religious and medical personnel and their means of transport, whether civilian or military.
Common Article 3 of the Geneva Conventions read as follows:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Foreign Intervention: March, 2011
The Security Council of the United Nations, which is often criticised for being too inefficient and slow in responding to large scale violence, acted suspiciously fast in this case. An Initial Resolution 1970 was adopted condemning the violence of Gaddafi’s government and demanded an immediate end to the attacks. It also froze the assets of Gaddafi and his closed ones, restricting their travel. They also referred the matter to the International Criminal Court for investigation. Not only did Gaddafi’s government not comply with the resolution, they also announced an intensification of crackdown on rebel forces.
On 10th March, 2011, France became the first country to officially recognise the NTC as the legitimate representatives of the Libyan people, thereby making NTC the Ruling party of Libya.
On 17th March, 2011, the Security Council passed Resolution 1973, which authorised the taking of’ all necessary measures’ to protect the civil population of Libya. This authorised the Use of force to protect Civilians. While Germany, Brazil, China, India, and Russia abstained, the resolution drafted by France and the United Kingdom and cosponsored by Lebanon and the United States received ten favourable votes out of fifteen (South Africa, Bosnia and Herzegovina, Colombia, France, Gabon, Lebanon, Nigeria, Portugal, the United Kingdom, and the United States). Focusing on protecting the civilian population, Resolution 1973 called for an immediate cease-fire and the complete cessation of violence against civilians. It authorized Member States to take all necessary measures to protect civilians under Chapter VII of the UN Charter, while excluding any form of occupation of Libyan territory. In addition, it allowed Member States to take all measures required to implement the flight ban over Libyan airspace (the ‘No-Fly Zone’). The responsibility to implement a no-fly zone was handed over to the League of Arab States. Implicitly underlying this call for the protection of civilians was the concept of the Responsibility to Protect (R2P).
Responsibility to Protect: R2P provides that every state has the primary responsibility of protecting populations within its jurisdiction against acts of genocide, war crimes, ethnic cleansing, and crimes against humanity. However, if the concerned state is unable or reluctant to stop these crimes, the international community as a whole has a collective and subsidiary responsibility to take appropriate measures to ‘protect the civilian population’ who are victims of war crimes, crimes against humanity, genocide, or ethnic cleansing. Specifically, R2P rests on three pillars: first the responsibility of each state; second, the responsibility of the international community to support a particular state in exercising its responsibility to protect its people; and finally, in cases where a state fails in its duty, the responsibility of the international community to take diplomatic, humanitarian action or other means to stop these violations. While initially non-violent, these additional measures may be extended to armed or unarmed coercive means, as authorized under Chapter VII of the UN Charter. According to the R2P, responsibility for the use of force should be guided by strict criteria: seriousness of the harm done to the population; a just cause for intervention; intervention as a last resort; proportionality of the means used and an assessment of its consequences.
Resolutions 1970 and 1973 clearly concern the situation covered by the third pillar of R2P. The two resolutions were adopted under Chapter VII of the UN Charter, which provides for the use of coercive means ‘in case of any threat to peace, breaches of the peace or acts of aggression’.
The Gaddafi government announced a Ceasefire, but failed to abide by it, and accused the rebels of violating it first. In talks facilitated by the African Union, the rebels rejected the offer to end the fighting as the offer did not include the removal of Gaddafi.
Two days later, a multi state coalition started military intervention, thereby implementing The UN Security Council Resolution 1973. The US and British air force attacked the Libyan air defence, with the French Air Force joining in. They also established a naval blockade and surrounded the country. On 31st March, the North Atlantic Treaty Organisation (NATO) took over coordination of international forces, naming their operation as ‘Operation Unified Protector’. NATO also took control over the no-fly zone.
Considering that there were interventions to the non-international armed conflict by foreign state parties, does the character of the armed conflict become of an international character?
Common Article 2 of the Geneva Conventions declares that the rules of IHL apply to “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties”.[vi] This has been interpreted by the ICTY as ‘a resort to armed force between States’, [vii]with no threshold requirement for intensity, organisation or duration.
In the current case of Libya, when military intervention from State Parties started, the nature of conflict changed to that of an International one. Also, the Security Council’s authorisation of use of force against Libya, through Resolution 1973 was similar to that of a declaration of war, which expressly triggers the application of Common Article 2. Thus, by the time there was foreign military intervention in the territory of Libya, the application of IHL for an international armed conflict commenced.
Convergence of local and foreign anti-government forces: April, 2011
In April, 2011, cooperation between NATO, NATO countries and the Rebel groups increased. The United Kingdom announced that it was sending military advisors to Libya to help the rebels improve their organization and communications, but not to train or arm them. However, many reports later suggested that UK supplied arms and ammunitions to the rebel groups. The United States announced an aid package to help the Libyan Rebels. Italy and France also sent over Military advisors to support the rebels. The Qatar government also signed an export treaty with the Opposition force, where in return for oil in rebel controlled areas, it would finance the cause. NATO personnel were sent to Libya to provide support and coordinate air strikes. NATO also provided operational support and military training to insurgent units.
When NATO took over the military operations against the government of Libya, would the legal character of the conflict continue to be an ‘international armed conflict’ considering that one of the parties is an International Organisation?
On a literal reading of the Common Article 2, it speaks of conflicts between ‘High Contracting Parties’ only. Also, in Hamdan V. Rumsfeld, The US Supreme Court held that the conflict between USA and Al Qaeda was not an International Armed Conflict, as one of the parties was not party to the Geneva Convention. However, various academicians reject this line of argument. They argue that the possibility of an international organisation becoming a party to an international armed conflict on the basis of customary law. Also, since international organisations act on behalf of State parties, it must also be subject to the same responsibilities or State parties could use this power to further their own interests. Thus, even when NATO started collaborating military operations, it is argued that the armed conflict was still ‘international’ in nature.
In June 2011, Muammar Gaddafi and his son Saif al-Islam proclaimed that they would conduct transparent, democratic elections within the next three months. NATO and the rebels rejected the offer, and proceeded to capture the Capital City of Tripoli.
Fall of Gaddafi’s Government: Post August, 2011
Between August and October 2011, the rebel forces took over most of Libya, including the capital city of Tripoli while Gaddafi’s forces retreated to the area around the city of Sirte. Gaddafi’s government was on the defensive with the fall of the Capital City and the chances of Gaddafi’s forces to re gain control were slim. The NTC was essentially governing over Libya around this time. On 16 September 2011, the National Transitional Council was recognised by the United Nations as the legal representative of Libya, replacing the Gaddafi government.
Many critics of the war condemned the resolution passed by the Security Council that allowed states to ‘use all means necessary to protect the civilians’. Many claimed that it appeared that the military intervention was more aimed at supporting the NTC and at killing Gaddafi and his troops. They argued that the NATO operations were aimed to dismantle the military apparatus and the ultimate goal was regime change.
Efforts to locate and defeat Gaddafi’s forces were still in full-swing. The increasing pressure from NATO and its air raids weakened the offensive capacity of loyalist forces. However, the NATO attacks continued until the death of Gaddafi.
Members of the Gaddafi family took flight to Algeria. By mid-October 2011, much of the city of Sirte had been taken by NTC forces, although fighting continued between pro-Gaddafi forces and the now-government and NATO forces. On October 20th, 2011, Gaddafi was captured and killed. The Defeat of the forces was clear, with the Chairman of the NTC declaring the end of the war. On 31st October, 2011, NATO announced the end of its military operations.
What was the nature of conflict once Gaddafi was defeated and NTC took over as the ruling party of Libya? When did IHL stop applying in the case of Libya?
To answer the first question, some argue that once the rebels overthrew Gaddafi’s government following the fall of Tripoli in August 2011, the nature of the conflict changed. The rebels were now the legitimate and effective government of the state of Libya, the conflict was “deinternationalised” and thus non-international in nature again. However, many reject this concept and maintain that the international character of the armed conflict remains. Article 4A(3) of the Third Geneva Convention highlights the possibility that the balance of power changes in an International Armed Conflict, to the detriment of the original government, without the need to reclassify the conflict. This provision provides the need to grant ‘Prisoner of War’ status to members of the government armed forces. This provision thus confirms that the loss of the original government forces must not result in the transformation of the situation into a Non-International Armed Conflict.
As to second question, it is generally accepted that IHL applies until the end of the hostilities. Article 6 of the Geneva Convention IV and Additional Protocol I state that the application of the convention ‘shall cease on general close of military operations’. The International Committee of the Red Cross commentary considers the moment to be ‘the final end of all fighting between all concerned’. The appeals chamber of ICTY, in the case of Tadic, held that the application of IHL ‘extends beyond the cessation of hostilities’ until a ‘general conclusion of peace is reached’ or ‘in the case of internal conflicts, a peace settlement is achieved’.[viii] In the case of Libya, it is generally interpreted as the end of all armed conflict with the closing of military operations. It must also include withdrawal of NATO and other international forces. However, specific norms of IHL pertaining to prisoners of war and other persons who could not be repatriated continue to be applicable.
After the declaration of end of War by the NTC, armed conflict instantly stopped. However, newspapers reported various small clashes between Gaddafi loyalists and the government. The closing of military operations in Libya shall be considered as the end of application of IHL.
Humanitarian situation and Human Rights Violations during the War.
One of the main humanitarian issues was the shortage of supplies. By the end of February, the International Committee of the Red Cross, appealed to the USA for funds to meet the emergency needs to the people affected by the clashes. Various humanitarian groups sent over food and medical supplied to Libya. Turkey also sent a Hospital Ship to aid those who were hurt because of the clashes. Another humanitarian issue was refugees fleeing the crisis. Many Citizens and non-citizens started fleeing the country and crossing over to Tunisia and Algeria.
Gaddafi’s son and heir apparent Saif al-Islam Gaddafi accused the rebel forces of Benghazi of killing children and terrorizing the population. Amnesty International reported that security forces targeted paramedics helping injured protesters. In multiple incidents, Gaddafi’s forces were documented using ambulances in their attacks. Injured demonstrators were sometimes denied access to hospitals and ambulance transport. The government also banned giving blood transfusions to people who had taken part in the demonstrations. In the eastern city of Bayda, anti-government forces hanged two policemen who were involved in trying to disperse demonstrations. In downtown Benghazi, anti-government forces killed the managing director of a hospital. The victim’s body showed signs of torture. Some civilian Gaddafi supporters remaining in the city reported that women and children had been killed in crossfire or fired upon by rebel forces. There were also reports of harassment and theft by rebels, however the rebel army indicated it would leave unarmed civilians “to their own devices”, and had allowed families in the city access to supplies and medical assistance.
Official numbers of dead and injured in the conflict have still not been made available. International Criminal Court estimated 10,000 had been killed, while World Health Organization estimated approximately 2,000 killed. The Rebel spokesperson proclaimed that the death toll reached 8,000 and expected it to rise. The NTC declared that around 30,000 had died, by the end of the war.
Amnesty International stated that earlier estimates of the initial clashes in February were exaggerated. It estimated that during the first few days of the conflict, around 100 to 110 people were killed. In January 2013, the new Libyan government estimated the number of killed in the conflict to be actually far lower than previous estimates, with 4,700 of the dead being rebel fighters, a similar number loyalist soldiers and an undefined number civilians.
[i] Prosecutor v. Gaddafi et al, Pre Trial Chamber I, ICC-01/11 (27 June 2011), para 17
[ii] Prosecutor V. Hara-Dinaj, Balaj And Brahimaj ( Trial Judgement) IT-04-84-T(3 April 2008) Paras. 37-60.
[iii] Prosecutor V. Limaj Bala And Musliu (Trial Judgement) IT-03-66-T ( 30 November 2005); Prosecutor V. Tadic (Trial Judgement) IT-94-1-T(7 May 1997), Para. 565
[iv] Prosecutor V. Milsosevic (Decision Of Motion For Judgement Of Acquital IT-02-54-T (16 June 2004)
[v] Prosecutor V. Hara-Dinaj, Balaj And Brahimaj ( Trial Judgement) IT-04-84-T(3 April 2008) Paras. 37-60; Prosecutor V. Limaj Bala And Musliu (Trial Judgement) IT-03-66-T ( 30 November 2005); Prosecutor V. Tadic (Trial Judgement) IT-94-1-T(7 May 1997), Para. 565
[vi] Common Article 2 of the 1949 Geneva Convention
[vii] Prosecutor V. Tadic (Trial Judgement) IT-94-1-T(7 May 1997),
[viii] Prosecutor V. Tadic (Trial Judgement) IT-94-1-T(7 May 1997),
[Guest Post by Surabhi Chatarjee, TISS Mumbai]