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.