Egypt’s Military Assistance to the Libyan Government: Legal or not?!

download In the midst of the chaos of the Arab Spring, there have been multiple uses of military force in the internal conflicts by third state parties. Some of these interventions raise questions about their legality according to the international law on the use of force. According to the traditional doctrine in international law, there are only two exceptions to the ban of threat or use of force between states. The first of these two exceptions is the collective use of force by the willing state members according to article 42 of the U.N. Charter in chapter VII, which is under the measures taken by the Security Council. The second exception is the inherent right of self defense according to article 51 of the U.N. Charter. Nowadays, it seems that this classical restrictive view is changing, as there is a third exception on the rise among state practice and supported by the I.C.J jurisprudence. This exception is related to the foreign military intervention by the invitation or consent of the government. It is usually referred to by international lawyers and legal scholars as intervention by invitation. The problem with this new practice is the case of civil war, which raises the question of which government has the authority to consent. There is also the question of the threshold that classifies internal conflicts into civil war and whether or not intervention is allowed in civil wars even with the consent of one of the parties.

-The argument of Consensual Intervention was used by the Egyptian government to justify the air strikes against ISIS militia in Libya. While it is clear that these strikes were a reprisal for the horrific murder of the 21 Egyptian Copts, the use of this argument was necessary due to the lack of legal justification for acts of reprisal against terrorism in international law. One of the bases of the Consensual Intervention argument is article 3 (e) of the G.A. Resolution 3314 on the definition of aggression which construes the following as an act of aggression: “The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement .” This clarifies that the uses of armed forces in that case which do not contradict the agreement with the receiving state are legal. Further support for this argument is found in article 20 of the ILC Articles on State Responsibility which states: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”

-The problem is, when there are internal armed conflicts, which of the parties has the capacity to give consent? Or does the consent of any of the parties hold any legal value in the first place? Eliav Lieblich in his paper, “Intervention in Civil Wars; Intervention and Consent” discusses these issues. He argues against the traditional view that rejects foreign military intervention during internal armed conflict. According to this view there should be no intervention during internal armed conflicts as all parties to the conflict have lost their capacity to represent the state and therefore do not have the capacity to give consent to foreign military intervention. Lieblich’s article describes how the I.C.J adopts the view that when the intervention is in favor of the government, it is not unlawful. The I.C.J ruling in the Nicaragua Case clarified the court’s opinion supporting the legality of intervention in favor of the government as it stated:

It is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law. 

This has also been reaffirmed by in the court’s ruling in the D.R.C v. Uganda case.

-In the case of the Egyptian air strikes in Libya, there seems to be a new lenient doctrine being adopted by the international community. This new doctrine is largely a result of the ongoing ‘War on Terror’. In Libya there are supposedly two governments plus the ISIS militia groups. The one which is mostly recognized by the international community is the government of Haftar, which is the one that supposedly requested or consented to the Egyptian air strikes. This government does not actually possess effective control over the whole Libyan territory, but the other groups controlling the rest of Libya’s territory are either terrorist groups themselves, like ISIS, or affiliated with terrorist activities. For that reason the whole effective control principle is being abandoned.

-Although this new state practice might be helpful in fighting a rogue terrorist organization, it also opens the way for the misuse of force and intervention in the internal affairs of sovereign states in future situations. This is especially true when there are interests to powerful states recognizing one of the parties to an internal armed conflict in order to be able to take forcible measures. This could also lead to bigger armed conflicts when there is a conflict of interests between powerful states each recognizing one of the parties, replaying Cold War scenarios.

-The Egyptian air strikes in Libya clarify a growing problem with international law. The problem is that the international community needs to further democratize its institutions to cure its ineffectiveness while facing the growing threats to international peace and security. The unilateral use of force should still be an exception, but with the uselessness of attempting to resort to collective measures of the Security Council, unilateral use of force could transform into the norm, which destroys the whole purpose of the United Nations in trying to preserve peace and security in the world.

Advertisements

5 thoughts on “Egypt’s Military Assistance to the Libyan Government: Legal or not?!

  1. Hassan Kamal April 14, 2015 / 11:11 am

    Can you also write an article about Egypt’s Military Assistance to the Yemeni Government?

    Liked by 1 person

    • ahmedgk April 14, 2015 / 12:47 pm

      We will write about it within the next month.

      Like

  2. Sara Hassan May 6, 2015 / 11:15 am

    Thank you Ahmed for picking such rich and controversial topic for your blog post.
    It reads very wells and entails many thoughtful insights.

    I agree with you on the uniqueness of the Libyan case while analyzing the legality of the Egyptian intervention based on Libyan invitation. The situation on ground in Libya reveals conflicting militias over a land, in way makes it very hard to determine who has the upper hand of domination or whom this domination should be to be affiliated, which triggers the problem of deciding the standard of effective control. However, I believe that state practice in such failed or semi failed states prioritizes other standard of such calculation which is the internationally recognized government. A case in point, the situation in Somalia, which is considered a failed state, reveals that the internationally recognized governments are the legitimate representatives although they lack the effective control over the territory. Therefore, in the Libyan case, recognizing Haftar’s government internationally as the legitimate one overrides the standard of effective control.

    In addition, I do not believe that the Egyptian actions in Libya resemble retaliatory ones, in contrary to the timing of such actions might suggest. Because the Egyptian military assistance to the Hafatar’s which reached to some point of forming a coalition started before the recent slaughtering of the Egyptian Christians. Therefore, I can see these actions as a development and continuation of the military support of Haftar’s defense to the terrorist militias in Libya.
    Furthermore, It worth mentioning that considering these facts; the horrific situation in Libya that reached the edge of being a failed state, the significance number of Egyptians in Libya which are threatened daily in their lives, the recent slaughtering of 21 Egyptians, and the invitation by Haftar for Egypt to intervene pulls to the top the question of whether Egypt actions fall under the banner of the right to self defense?

    I believe that the prerequisites of practicing such right in the Libyan fit within the limits of such right. First, contemporary international law that deals with defensive actions of states has extended to the protection of nationals abroad. However, state practice starting from Grenada (1983) and Panama (1989) till Crimea (2014) have been controversial concerning the conditions under which the protection of nationals abroad falls under the permissible right to self defense. I believe a sufficient criteria for deciding on the existence of such right can be ; a threat of a significance scale to the nationals abroad, an unable or unwilling state to protect those nationals and the necessity, immediacy and proportionality.

    Implementing these criteria on the previously mentioned facts about Libya, shows that Egypt’s actions was the last resort after many demanded assistance given to the Libyan government who declared that it has no more been able to handle the fragile security situation. In addition, living within a daily brutality and chaos in a failed state supposes a real threat to Egyptian lives especially after a recent example of the slaughtering. Finally, Egypt has targeted ISIS’s positions which shows and application of proportionality as a condition of self defense.

    Good luck in your future blog posts.

    Liked by 1 person

  3. ahmedgk May 14, 2015 / 1:03 pm

    Thank you Sara for your comment,
    In regards to your first point, my conclusion was exactly what you said, that the international community is taking a lenient approach on the point of effective control. The principle of international recognition is used instead. My aim was to clarify what problems might rise out of relying on recognition which can be difficult in other situation when major powers recognize different parties in the conflict.
    As to the second point, I am not saying that Egypt was not helping Haftar’s regime, but this does not change the fact that it was also retaliating. My point was that Egypt was clearly retaliating but the fact that the attack was consented later by the Libyan government legalized the action. We have to take into consideration that there was no explicit invitation from the Libyan government before the attack, they merely consented to it after it happened.
    As for the right of self defense and the responsibility to protect, we have to consider that the argument of self defense requires an armed attack attributed to a state. This will be really hard to apply. We can adopt a lenient approach to the rules of attribution as the international community did with the U.S. after 9/11, but there has to be an armed attack. The responsibility to protect is also a controversial point, because according to international law, it should be implemented through collective measures authorized by the security council. Egypt’s intervention was unilateral.
    Overall the whole topic is controversial, but in my opinion the best argument Egypt can use is intervention by invitation. The international community should regulate the issue more clearly to prevent any misuse in the future.
    Again, thank you Sara for the wonderful discussion.

    Like

  4. Ahmed F. Ebada May 31, 2015 / 3:00 am

    thanks Ahmed for giving a brief about the consensual intervention and intervention by invitation.
    i think it is important to understand what this mean, especially after the recent increase of the use of this doctrine in the international law. the invasion of Afghanistan, war on ISIS in Iraq and others interventions are just examples.
    i think because of the lack of knowledge about this doctrine a lot of Egyptians, also governmental officials, were misused of the language about the attacks, which make it wrongful acts, like reprisal and revenge.
    the use of language is also useful as the doctrine itself, it is the way to show the doctrine

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s