The legal framing of the Egyptian military intervention in Libya

I never thought I would be writing about an Egyptian military intervention into another country in my day and time, but the dramatic changes and developments in the armed conflict in Libya has posed the question of whether Egypt’s role in this situation was legal or not. At the same time, the question of which doctrine of the international law Egypt can use to justify the Airstrikes on Da’esh is raised – whether the self-defense and or protecting citizens abroad or assisting another state.

On 15 February 2015, a video was released showing images of 21 kidnapped Coptic Egyptians being killed by a militant group declaring their loyalty to ISIS or Da’esh. As a response to this video, which I don’t think is appropriate to share; the Egyptian president announced a week of mourning over the victims and called for an urgent meeting with the National Defense Council. A few hours after the meeting, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.6120938-3x2-940x627

These air strikes open the question again about the legality of the Egyptian Military intervention inside the Libyan territory especially after the different statements from the President Sisi and the Foreign Affairs Minister in UN Security Council meeting.

The historic background of the Libyan situation is significant in this context. Libya today has divided into a violent political struggle between two major powers: the internationally recognized, Tabruk parliament and Tripoli’s parliament. The Islamist groups cooperated with Misrata’s forces to stage a counterattack in Tripoli and occupy the capital. This forced the newly elected parliament into exile to Tabruk to be under the protection of general Haftar.

Alongside with this political struggle and declining situation, in June 2014, the jihadist group Majilis Shura Shabab Al-Islam (the Islamic Youth Shura Council) in Derna announced its allegiance to the Islamic State in Iraq and Syria (ISIS). A few months later, the organized militant group in Egypt, Ansar Beit Al-Maqdis, which continually attacked the governmental buildings and military bases, also announced its allegiance to ISIS and changed its name into Wilayet Sinai or the Sinai State. This link between the groups increases the suspicion of cooperation between the two groups and increases military operations against the Egyptian government and Army.

The use of language

A few hours, after the president Abd El-Fatah El-Sisi’s speech on the killing of 21 Christian Egyptian in Derna by militant group loyal to ISIS, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.

2015-635596428048984075-898The Egyptian citizens reacted to the video of the killings with significant anger and asked for revenge and reprisal attacks. During his speech president Sisi used the word “the right of response” to the killing of the Egyptians in Libya. Also, the ministry of Foreign affairs issued a statement after the airstrike stating that the airstrikes were under legitimate right of states of self-defense individually or collectively and its right to protect its citizens abroad. The linguistics used in both statements refers to framing the airstrikes towards the Egyptian citizens and protecting the citizens. The president statement directed to the citizens, and to settle down the anger of the citizens, but at the same time, statements like revenge or reprisal are not appropriate to be used in the international law context.

Therefore, framing the argument and defense of the attack through “the right of response” is to legitimate the illegitimate act.

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A few days later, the weakness of the doctrine of the right of response and the excuse of protecting of citizens abroad which had been used by the president and the ministry of foreign affairs was clear. The use of this doctrine in international law is rare and is not preferred. Therefore, during the UNSC urgent meeting in relation to the situation in Libya, the Foreign Affairs Minister instead commented on the Egyptian airstrike in Libya by using a different argument for the strikes, by stating “Egypt has decided to respond to the requests and needs of the Government of Libya and has provided military assistance”. The Foreign Affairs Minister’s statement framed the airstrikes as assisting the Libyan government in the war against terror after asking for help as part of consensual intervention, as the coordination and assistance of another country is not a violation against international law. Therefore, Egypt’s strikes over the Libyan territories were not in contradiction of the United Nations charter and customary international law. This new statement is directed to the international community, thus the language used must be the most appropriate to be accepted in doctrine and according to international law.

The word and framing used is important in international law and in strengthening the legitimacy of the Egyptian airstrikes in Libya. The justification of airstrikes based on the self-defense and/or protecting civilians abroad arguments or the right of response are weak in international law in comparison to the argument of the assistance of another country in the war against terrorism. The president used the phrase right of response to comment on the killing of Egyptians in Libya because he was directing the statement to Egyptian citizens while the Minister of Foreign Affairs could not use a weak legal argument in his speech to the international community justifying the airstrikes. Therefore, he used the argument of state requesting assistance of another state. The linguistics used by the president and foreign affairs minister differ because each one of them is talking to a different audience. Framing and language of law is just as important domestically as it is internationally.

On Recognition: How the Arab Spring Skewed a Normative Practice

 The Arab Spring uprisings really did shake the region in many different ways. The first two countries, which were swept by protests, namely Tunisia and Egypt came out without need for, or suggestion of intervention. Libya and Syria, however, had quite a different experience. What looked like the beginning of an uprising, much like different Arab countries, quickly spiraled out of control and turned into a full fledged civil war, aggravated by international intervention whether through political recognition of rebel groups, materialistically supporting different factions, or physical use of military power. The reaction of many different states after the Arab Spring skewed away from the normative understanding of certain principles of international law. The most significant principle of these is recognition, particularly recognition of governments.

The principle of recognition is very important in this context, because International Humanitarian Law principally depends on the legitimate and recognized government to regulate use of force, and intervention from other states. Intervening on behalf of the recognized legitimate government, subjects the intervening countries to much less rigorous standards in the law of armed conflict than if countries intervened on behalf of a “rebel group”. That is why the issue of recognition and twisting the normative understanding of it, is an matter which needs to be understood from a legal perspective, not just as an issue of political support.

What is recognition?

The traditional, legalistic understanding defines recognition as “a method of accepting certain factual situations and endowing them with legal significance” as defined by Malcolm Shaw in his textbook, properly titled ‘International Law’ (6th ed. P. 207). Thus, it is fair to adopt the notion that the issue of recognition in international law had previously taken the form of recognizing the independence of newly formed states. International law was neutral to the dispute of changes in governments within states, as it was considered an internal matter. Recognition of states by no means a simple issue, nor does it take merely a legalistic position, without considering the political one as demonstrated in CGP Grey’s video on recognition of states. On the other hand, recently, recognition also came in the form of recognizing governments of states that are already established and independent, and this is what I intend to focus on in the post-Arab spring political moment.

Of course the two types of recognition can intertwine and it is important to keep that in mind. In 2010, the ICJ gave an Advisory Opinion on the Declaration of Independence by Kosovo. The court deterred from answering the awkward issue of secession, and opted to focus on the very action of declaration of independence by Kosovo by a minority group, and it deemed it legal under international law. However, they did not explicitly say whether Kosovo should gain independence and be recognized as a state or not by the international community in support of this minority group. This type of “intertwined” recognition status is quite important for issues of self-determination particularly internal self-determination. Internal self-determination is defined as “may refer to various political and social rights” as defined by the LLI of Cornell University Law School. This is critical in the discussion of the legal position of the Syrian rebel groups, as will be discussed in the section on Syria’s SNC.

Both types of recognition, whether it is the declaration of an independence of a state or recognizing rebel groups as the legitimate government of certain states have always been a sour note in international law, particularly by the Security Council. In1965, when Southern Rhodesia declared independence from the UK’s colonial domination, the Security Council issued multiple resolutions (Resolution 202, Resolution 216, Resolution 217), which “regard[ed] the declaration of independence by (the Rhodesian government) as having no legal validity”. The resolutions dismissed the entity that declared independence, as a “racist minority”, although that entity was the de facto government, as Southern Rhodesia had been self-governing since 1922 and had all four aspects, which qualified it as an independent state, under article 1 of the Montevideo Convention on the Rights and Duties of States. Independence was later granted in 1980 to what we now know as Zimbabwe.

Fast forward to 2001, state practice was still completely disregarding so called “rebel groups” as the representatives of a country, regardless of their actual control of the territory. The line between de facto control of a certain territory, and the international de jure government and diplomats did not always meet, particularly with Afghanistan. Ever since their emergence in 1994, the Taliban was effectively taking control of the country after the old soviet-backed regime collapsed. The Taliban went on to have de facto control over 90% of the country; however, they were not internationally recognized as the legitimate government or the legitimate representatives of the people, even though the Security Council obliged them to adhere to the Geneva Conventions, in article 12 of Security Council Resolution 1193 (1998).

 

“Legitimate representative of the people”

PLO Leader Yasser Arafat in the UNGA in 1974
PLO Leader Yasser Arafat in the UNGA in 1974 (Photo Credit: palestineun.org)

A certain practice seems to have been popularized post/during the Arab Spring where states and international organizations have been declaring that a certain rebel group is the “legitimate representative of the people” of a certain state. It started with the National Transition Council (NTC) in Libya, and then the Syrian National Council (SNC) was also recognized in Syria in the same manner as in Libya. What is surprising is not just that they recognized rebel entities, but that most countries recognized them as the legitimate representatives of the people, NOT the official government of the state. What does “legitimate representative of the people” mean without being the recognized government?

The first time this term was used was in the recognition of the Palestinian Liberation Organization (PLO) as the legitimate representatives of the Palestinians under UN General Assembly Resolution 3210 of October 1974. This was reaffirmed a month later in Resolution 3237 when the PLO was admitted as an observer entity in the UN. This status was given due to the fact that Palestine did not qualify as a state in accordance with the Montevideo convention, hence, it cannot be treated as a full sovereign government, yet they possess the right of self-determination. The term “legitimate representative” was used as an answer to an awkward situation, when certain groups of people clearly have the right of self-determination, but did not have the right to the status of statehood. Post 2011 however, it became the go-to term to express disapproval of regimes in states, and supporting a different entity in their claim to govern that state.

To break it down, recognizing an entity as a legitimate representative of the people, while not recognizing that they are the legitimate government of a territory, is reminiscent of colonial times. This is when liberation groups existed within a non-self-governing territory, which was under “colonial domination, alien occupation and…racist regimes in the exercise of their right of self-determination” as described in the ICRC Additional Protocol I, perhaps as the first step in recognizing the independence of these entities.

The problem in this description is that, even though Libya and Syria were confronted with serious rebellion, and the legitimacy of the regimes in both countries was and is seriously in question, yet placing the rebels within the same understanding of entities aiming for state recognition is a bit of a stretch, as their state is already recognized, here have been many “local” dictators before, yet the international community did not rally behind an armed faction for “Self-determination” unless succession was in question. This obviously changed in the cases of Libya and Syria, and in order to understand the reasoning behind this unconventional declaration, the events that followed this statement of the peoples’ legitimate representation, should be examined.

Libya’s NTC

NATO and THE Libyan NTC. (Photo credit: Al-Akhbar English)

On 10th of March 2011, around a month after protests and armed civil unrest started in Libya against the country’s dictator, Colonel Muammar Gaddafi, the French president, Nicolas Sarkozy declared the National Transitional Council (NTC) is the “sole legitimate representative of the Libyan people”. This came with a movement of support from the US and EU countries towards the NTC. The United States went as far as discussing with congress the possibility of allocating Libya’s frozen assets from Qaddafi’s regime to fund the NTC according to an official statement made by Mark C. Toner, the Acting Deputy of the US State Department. However, recognition of the NTC as the legitimate government was an issue, which the US was still concerned about from the legal point of view. On the 11th of April, the US Ambassador in Libya stated:
“Recognition remains a legal and an international obligations issue that we’re still studying, and we have not made a definitive determination on that question. But that has not stopped us from doing everything that we could to support the NTC and the Libyans”.

 

On the other hand, recognizing an entity as a legitimate representative of the people does not need the rigorous criteria that are put forward when recognizing an entity as the legitimate government of a state, particularly when it was not a fully democratic process that brought that entity to power. One thing is certain though, once there was recognition that the NTC is the legitimate and sole representative of the people, any form of friendly relations with the (at the time) existing regime, were cut. This is based on the principle of sovereign equality of States as stated in UNGA Resolution 2625 on the principles of friendly relations among states.

There were many question marks over this step, like, what does this recognition mean from an international law perspective? Does the fact that the NTC effectively took the seat of Libya as the country’s representative in the UNGA equate to them acting in the name of the state on the international platform? And most importantly, does this give the NTC the right to invite another government to intervene militarily in Libya?

UN Security Council resolution 1973 called for a ceasefire from all Libyan entities and return to diplomacy, however, it was used as the pretext for the NATO intervention in Libya, which completely skewed the conflict in favor of what became the NTC. The legality of NATO’s intervention was not questioned. However, Professor Noam Chomsky argued in an interview that NATO clearly violated the resolution, as they were the first to break the ceasefire. On another note, the US Secretary of State during the crisis, Hilary Clinton, stated to CBS news channel that arming the NTC would be legal under resolution 1973, even though resolution 1970, article 9 clearly prohibits the arming of Libyans according to a BBC article. The question of whether or not the rebels (yet legitimate representatives of the people) are included in this arms embargo or not, had NATO split on the topic. It seems that the NTC fit whatever position was deemed appropriate at the time, and this was paved by such an ambiguous recognition.

Syria’s SNC

SNC President Ahmed Jarba, center, Heitham Al-Maleh, left, and Salem Al-Muslit, Right, Press Conference at British Foreign Office in London Oct. 22, 2013 (Photo Credit: Times of Israel)
SNC President Ahmed Jarba, center, Heitham Al-Maleh, left, and Salem Al-Muslit, Right, Press Conference at British Foreign Office in London Oct. 22, 2013. (Photo Credit: Times of Israel) 

The situation in Syria is still progressing daily, and it seems like the conflict has reached the point where the legality of any action would be placed into question. However, let us examine the situation from the beginning in order to understand the intention and gravity of what followed, and let to the current pandemonium. In October 2011, the Syrian National Council (SNC) was formed from the “internal and exiled opposition activists”, as reported by the BBC. This came after months of military brutality against opposition groups rallying against the Syrian president, Bashar Al-Assad.

By 2012, many countries, including the United Kingdom, recognized the NTC as the sole and legitimate representative of the people. Foreign Secretary of the UK, William Hague gave a speech in the parliament, in which he declared Her Majesty’s full support and recognition of the SNC as the sole and legitimate representative of the Syrian people. In the speech, he additionally established the bases by which their foreign relations will continue moving forward. He stated that, with recognition, comes the responsibilities of the SNC to “uphold their commitments”, though he did not say whether these included observing international conventions and treaties or not. He also stated that the SNC would have a political representative in the UK. Finally he pledged a large id package to the SNC controlled areas (with the Hear, Hear! of the parliamentarians in the background).

Now going back to the same starting point of the Libyan crisis of this odd recognition being reserved to peoples fighting for self-determination, even with the objection to Bashar Al-Assad’s regime, it would be stretching it to say that it is a racist regime, legally speaking (notwithstanding my personal opinion on the atrocities which were committed in Syria). However, for argument’s sake, let’s assume that this really is an issue of self-determination of a people within an established state. Firstly, we need to look at the International Covenant on Civil and Political Rights (ICCPR), in the first article, it states:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

The case of the SNC makes sense when the second article is examined, where it is stated that:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Now it can be argued that the Syrians are seeking self-determination internally, and that is through the SNC as their representative. In that case, the principle of non-intervention does not apply in the same way that was presented in the ICJ ruling of the Nicaragua case, where it was it was deemed that any form of arming or supporting a rebel group is considered illegal. On the contrary, in UNGA Resolution 35/227 (1981), on the question of the self-determination in Namibia, Article 6 clearly encouraged other states to support South West Africa People’s Organisation (SWAPO), in “material, financial, military and other assistance”, in its pursuit of self-determination. It seemed that this is the direction other states have agreed to follow, since the US’s Military and the CIA have agreed to train and equip the Syrian opposition and the legality of this action has not been contested.

Conclusion

             To conclude, it is safe to assume that 2011 onwards saw a swift change in the practice of international organisations, UN organs and Western states regarding the recognition of rebel groups. Furthermore, the arming of opposition groups has been a ‘right’ that many countries have maintained and argued strongly for, particularly in self-determination conflicts. However, as the conflicts in Libya and Syria linger, and the atrocities of war seem to be normalized every day, the question remains as to whether more intervention will actually end these conflicts any quicker.