The continuing threat of US aggression against Syria makes it necessary to once again turn to the international legal analysis of the actions of the NATO countries, as well as the UN leadership regarding Libya. The parallels are highly relevant here.
The armed conflict in Libya and the US and NATO aggression against the Socialist People’s Libyan Arab Jamahiriya (SNLAD), which followed in March-October 2011, as well as the armed conflict in Syria, raised a number of crucial legal issues affecting the very essence of the modern international legal order ...
These issues include the legal basis for the adoption of UN Security Council resolutions No. 1970 and No. 1973, as well as the legal consequences of these resolutions; the legal basis and consequences of the transfer of the situation in Libya to the International Criminal Court, as well as the legal basis for assisting the so-called opposition during armed conflict. Consider these problems in more detail.
1. Legal grounds for adopting UN Security Council resolutions No. 1970 and No. 1973
Traditionally, it is customary to analyze the international legal consequences of resolutions of the UN Security Council. However, it is important to pay attention to the legal basis for adopting these resolutions themselves. Cases in which the UN Security Council, when making important decisions, goes beyond its authority, are becoming more frequent (for example, resolutions on the establishment of the International Criminal Tribunals for the former Yugoslavia, for Rwanda and the Special Court for Lebanon). Roughly exceeded its authority of the UN Security Council when adopting resolutions 1970 and 1973.
The first. When analyzing the actual rationale for adopting the measures set out in UN Security Council Resolution No. 1970, it becomes clear that at the time of the decision, there was no actual basis for the Council to apply Chapter VII of the UN Charter. So, another 22 and 25 February 2011, two UN Security Council meetings were held under the unobtrusive title "Peace and Security in Africa." At the first UN Under-Secretary-General for Political Affairs, L. Pascoe (USA) informed Council members about "violence and non-selective use of force" (the meeting was closed and the official report did not contain any specific information; what Pascoe said was only known the words of Secretary General Ban Ki-moon a week later). At the second meeting, the representative of Libya, Schalke, said: “On February 15, a group of civilians took to the streets calling for the release of a lawyer named Tarbel ... For this group of demonstrators, fire was opened in the head and chest, as if the soldiers who had fired did not know living people ... "He also said:" Today I hear the words of Gaddafi: "I will either rule you or destroy you." "We appeal to the United Nations to save Libya," Schalke concluded his speech. At the same meeting, UN Secretary-General has declared “over a thousand dead "However, unlike all previous situations, no evidence was presented to the world community. Moreover, when these" evidence "was tried to be presented in the media, this could not but arouse the most serious suspicions of their production character, or more precisely, of their falsification.
The message of the Russian Foreign Ministry from 25 in March, that is, on the eve of the adoption of the 1970 Resolution, states that "estimates of the number of people killed in clashes between the opposition and the loyal authorities by forces vary from 1 to 2 thousand people." However, the question arises: how in a situation with “estimated data” could the Council take such radical decisions in favor of only one of the parties? The difference between one and two thousand dead is the same as between one thousand and zero. The MFA message formally allows for such a difference. And it remains completely unclear, but who, in fact, died? Is it "opposition" or "loyal power"? If these are loyal authorities of the country’s citizens, then why did the UN Security Council stand against them?
They raise questions and sources of information, including the sources used by the Russian Foreign Ministry. Thus, in a report from February 22, the Foreign Ministry claims that “according to eyewitness accounts,” the processions [that is, not attacks by armed gangs committing outrages, but only some processions] were bombarded from the air. Question: why are certain “eyewitnesses” indicated in the message, but not the Russian embassy in Tripoli? There is a suggestion that the embassy gave other information. This is indirectly confirmed by the subsequent withdrawal of the Russian ambassador on the eve of the vote on UN Security Council Resolution No. 1973.
There are serious questions about the activities of the UN Fact-Finding Commission in Libya, created by the decision of the UN Secretary General. The commission was not able to start work, since on the day of its planned arrival in Tripoli, bombing of Libyan territory began aviation NATO. The question arises: why was this commission created? The circumstances of the creation of the Commission give serious reasons to believe that it was formed only with the aim of creating the appearance of establishing facts. In addition, a clear violation of the principle of impartiality was the appointment to the Commission of the former chairman of the International Criminal Court, F. Kirsch, who is a citizen of Canada, a NATO member state. How can Kirsch be objectively declared impartial during the preparation of the aggression and the aggression of NATO itself against Libya?
Thus, it can be concluded that neither the international community nor the Russian Federation possessed the actual evidence necessary for taking the measures prescribed by Resolution No. 1970. At least no such evidence was presented to the international community. The adoption of UNSC resolutions 1970 and 1973, as well as the transfer of the situation in Libya to the ICC in the absence of established facts, as well as signs of a clear reluctance to establish the real state of affairs (in particular, massive falsification of video footage from the largest video information providers) are grounds for legality of resolutions adopted and their contents. And the refusal to establish facts is of fundamental importance for solving all other issues.
The second. How justified is the qualification of the situation in Libya as an “armed conflict”? UN Security Council Resolution No. 1970 established that the authorities "must comply with international humanitarian law." Such a statement means that the Security Council a priori viewed the situation in Libya at that time as an “armed conflict”. However, were there legal grounds for this? They were not represented. Again, the lack of real information gives grounds for different interpretations. So, for example, there were grounds for believing that there was no legally state of “armed conflict” in Libya before the start of the NATO aggression. Until March 2011, what was happening in Libya was an armed insurgency, that is, a purely criminal offense, which is governed by domestic rather than international law and which should be stopped by the country's authorities without any foreign intervention. It should be recognized that Russia's voting for the UN Security Council Resolution No. 1970 was a serious mistake. This is also because this may have direct legal consequences in relation to the Russian “situations” in the North Caucasus. Above all, such a position damages the right of states to conduct counter-terrorism operations within their national legislation and transfers such situations immediately to the category of “armed conflicts” - that is, to the area of international law! Here there is a threat of a serious erosion of the national law of the states, which soon will simply have no place to deal with the most important issues of public life.
Third. What are the legal grounds for the introduction by the UN Security Council of measures not provided for in the UN Charter? UN Security Council Resolution No. XXUMX has announced a so-called no-fly zone over Libya. What are the legal grounds for such a measure? The resolution does not name them. And this is understandable, because in the UN Charter there are no provisions that would allow the "closure of the airspace" of a member state of the Organization. We have repeatedly (when considering the creation of adhoc international criminal tribunals for the former Yugoslavia, Rwanda and Lebanon) noted the slyness of the resolutions of the UN Security Council, "acting on the basis of Chapter VII of the Charter". Compulsory measures, especially of such importance, cannot be applied on the basis of the head of the Charter. They can be applied on the basis of a specific article and even an article clause. However, we do not see this, not only in the case of the tribunals, but also in the case of “closed zones”. Why? Is it a coincidence? In our opinion, not by chance. There is simply nothing to refer to the Security Council. No such articles. This is the Council’s own invention. And it is not regulated by international law. This means that this measure directly violates the principle of the sovereignty of a UN member state, since the airspace is part of the sovereign territory of the state. Thus, paragraph of the Security Council Resolution No. 1973 violates Article 1973 of the UN Charter (principle of the sovereign equality of member states; prohibition of the use of force against the territorial integrity and political independence of states) and norms of international treaties in the field of international air law. Paragraph 2 of the UN Security Council Resolution No. 6 establishes a ban on air flights over the territory of Libya. And the 1973 paragraph allows all states to “take all necessary measures” to enforce this prohibition. That is, the UN Security Council has allowed everyone to shoot down Libyan aircraft over its own territory.
The 17 paragraph of the said Resolution, which prohibited UN member states from allowing Libyan aircraft to land on their territory, looks no less illegal. Such an establishment is not consistent with a number of international treaties in the field of international aviation: in violation of these treaties, states were obliged to refuse to land an aircraft from Libya, regardless of, for example, whether it has enough fuel to fly back or not. That is, in fact, it was prescribed to destroy the aircraft.
The main legal problem of resolutions No. 1970 and No. 1973 was the total violation of the rights of the civilian population of Libya. Despite the fact that formally both resolutions proceeded ostensibly from the need to protect it, it was the civilian population that was most cynically turned into the main target. In fact, both resolutions recognized only "rebels" as civilians. At the same time, it was quite obvious that the absolute majority of the population retained loyalty to the legitimate authorities.
The very vocabulary of these resolutions shows that the UN Security Council did not consider this part of the population a “people” of Libya at all. For example, paragraph 2 of Resolution No. 1973 states that the authorities of the country must "satisfy the legitimate demands of the people." He did not even remember the right of the country's population to security and protection from armed rebellion. That is, the main UN body that bears the main responsibility for maintaining peace and security (Article 24 of the UN Charter) did not find a single member of this organization who would protect the rights of the majority of the population of Libya!
If someone asks how UN Security Council resolutions No. 1970 and No. 1973 defended the rights of Libyan citizens loyal to the authorities, the answer will be one: no way! These resolutions deprived the power of the country of the right to the protection of the majority of the civilian population. That is, these resolutions directly provided for the violation of the rights of those whom, it would seem, they were supposed to protect.
It should be emphasized that even the very vague provisions of the UN Security Council Resolution No. 1973 did not, from the point of view of international law, provide grounds for supporting the so-called rebels. The text of the resolutions of the UN Security Council did not grant the right to arm the rebel groups, since even the most problematic wording on the application of "all necessary measures" was associated with ensuring the rights of civilians.
2. Legal grounds for the transfer by the UN Security Council of the situation in Libya to the ICC
To date, the UN Security Council has transferred two situations to the International Criminal Court (ICC): the situation in Sudan (2005 year, Darfur) and the situation in Libya. However, the legal basis of such a transfer raises a number of serious questions about their legality.
So, nowhere in the UN Charter the UN Security Council’s right to transfer cases to the International Criminal Court (ICC) is not fixed. This right is granted to the Council in another international treaty - the Statute of the International Criminal Court itself. However, this argument is irrelevant for non-parties to this treaty. In fact, the situation looks even worse than the violation, it is just absurd! Look at what happens: the states (USA, Russia, China) that are not parties to an international treaty (the ICC Statute), referred the situation to the International Court of Justice regarding a state that is not a party to the same treaty (Libya)! There is a complete destruction of international law.
In addition, the question arises of gaps in the legal basis for the activities of the Security Council itself: where are these grounds defined for the Security Council itself? What are their criteria? What is the actual side of things? What facts were reviewed by the board? Why are they not presented to us? Or do the “facts” mean TV reports of the Air Force?
Thus, acting on the basis not of the UN Charter, but of an international treaty, the participants of which are not some members of the UN Security Council, nor the state itself, whose situation was transferred to the ICC, the UN Security Council exceeded its authority. Only resolutions that are adopted within the authority of the Council in accordance with the UN Charter are subject to execution. Accordingly, the resolutions in question should not be observed by the UN member states.
This also concerns the issue of the duty of “all” states to cooperate with the ICC on the situation in Libya. Especially states that are not members of the ICC. Or who are members of the ICC, but have their own position in relation to cases against non-member states.
It is impossible not to draw attention to the fact that the situation in Libya, already in the Court itself, was transferred to the pre-trial chamber, which is headed by Judge Tarfusser from Italy. If we consider that Italy is not only the former colonizer of Libya, but also the main participant in the NATO aggression against Libya, the choice of the President of the ICC looks not only a violation of the principle of impartiality, but a malicious, demonstrative violation.
3. International illegality of assisting rebel forces by foreign states
The time elapsed after the NATO aggression in Libya convincingly showed that the use of the terms "opposition" and "rebels" is not applicable to the situation in Libya. However, for the purpose of analyzing the international legal wrongfulness of assistance of foreign countries to internal groups, we will use this term, as it is used in international legal acts, and the least strict legal regime is applied to it. Thus, having proved that rendering foreign aid to insurgents is illegal, we will prove the illegality of rendering aid to all other armed groups.
First of all, it is necessary to determine the sources of law that regulate the behavior of states during armed conflict. First, these are the Geneva Conventions for the Protection of War Victims 1949 of the Year (common article 1 for all four conventions) and Article 1 of the Additional Protocol 1977 of the year. According to these acts, states are obliged to comply with the conventions under all circumstances, and also - to force others to comply. Thus, the United States and other NATO countries that provide support to insurgents in a given state are obliged to enforce compliance with international humanitarian law not only by the government of Libya or, say, Syria, but by any other participants in the armed conflict. To repeat: this is a duty, not a right. It should be borne in mind that this provision of the Geneva Conventions is a reflection of customary international humanitarian law, therefore the question of the participation of a state or party to a conflict in relevant international treaties is not worth it. The United States has once been convicted of violating international law for supporting the rebels. This was done in 1986 by the United Nations International Court of Justice in the decision on the famous case “Nicaragua v. USA”, for example, in connection with the attitudes that were given by American instructors to the contras detachments and which contradicted the provisions of international humanitarian law.
The so-called rebels in the Libyan armed conflict committed mass crimes. This is recorded in the Report of the Independent International Commission to Investigate Events in Libya. The report of the Commission refers to the crimes of the rebels and the killing of civilians as a result of the bombing of Libya by NATO forces.
Support for this kind of rebels implies the international legal responsibility of the respective states.
Everything that happened in Libya, today we are seeing in Syria. The Report of the Independent International Commission of Inquiry into the Syrian Arab Republic, despite the fact that this report attempts to justify  the leadership of the Syrian rebels, there is evidence of their gross violation of international humanitarian law. The Commission registered cases of killings, lynches and other gross violations of human rights committed by militants of the so-called “Syrian Free Army” (SSA), and stressed that “members of the FSA, including field commanders bearing command responsibility, can be prosecuted under international law. right.
Chemical application weapons rebels also said that they are committing massive international crimes. Both the United States and other countries that provide them support are directly responsible for this, according to international law ...