Wednesday, 23 March 2011

Is it legal to target Gaddafi?

On Monday night, I voted to support military intervention in Libya. It is far from straightforward, and I have my reservations – from the lack of definition of the mission, to the cost to the British taxpayer. But, since we are already involved, I want to see the swiftest victory possible. Can that include targeting Gaddafi under international law, the most decisive way of delivering coalition objectives? As James Kirkup reports at the Daily Telegraph, the British government says yes, while the US suggests no (echoed unhelpfully by some in the UK military).

There are many reasons why it may be unwise to spell out publicly what - or who - your military targets are. It tips them off. It can make for bad diplomacy, or aggravate risks to your own forces. But I am baffled by the US suggestion that it is legally controversial. It isn’t. As the head of war crimes at the British Embassy in The Hague between 2003 and 2006, I watched the various war crimes tribunals churn through the legal implications of conflicts from the Balkans to Sierra Leone. The rules are reasonably clear.

First, military operations need to be lawful under the jus ad bellum – you need a legitimate reason to resort to military force. The UK asserts three principal grounds for going to war: self-defence, a mandate from the UN Security Council or exceptionally - as in Kosovo – a right to intervene to avert an overwhelming humanitarian catastrophe. Second, military intervention must be ‘necessary and proportionate’ to achieving the stated objective. Third, the intervening forces must comply with the jus in bello – the rules governing the conduct of military operations, which are codified in the Geneva Conventions various other treaties.

The current operations are clearly covered by UN Security Council resolution 2011/1973. The current focus of bombing is designed to neutralise the threat by the Gaddafi regime to civilians – so it is necessary and proportionate – and Britain has strict rules to ensure specific military strikes are checked to comply with law of armed conflict (I helped review the Joint Services Manual back in 2003). So, does that permit targeting Gaddafi?

Operational paragraph 9 of resolution 1973 authorises:

‘[A]ll necessary measures …to protect civilians and civilian populated areas under threat of attack.’

If the removal of Gaddafi is necessary to stop the attacks on civilians, it falls within the scope of the resolution. That seems a reasonable working assumption, in the circumstances. The preamble to the resolution condemns gross and systematic human rights abuses by the Libyan government, whilst warning the regime its attacks on civilians may amount to crimes against humanity (an earlier resolution referred Libya to the International Criminal Court (ICC)). Chapter 5 of the UK Joint Services Manual sets out the general definition of legitimate military targets according to the jus in bello:

‘[T]hose objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’

Unsurprisingly, the definition further includes ‘combatant members of the enemy armed forces’. So, the key remaining question is: is Gaddafi actually making military decisions with operational consequences? Does anyone doubt it? Isn’t that precisely why the regime has been referred to the ICC? The US and UK authorities have repeatedly stated that they will hold Gaddafi personally to account – based on the information demonstrating that the dictator remains in control of his forces. The golden rule of international humanitarian law is: don’t target, and make every reasonable effort to minimise collateral harm to, civilians. Indiscriminate bombing would be illegal. By definition, discriminating in favour of senior commanders is not only permissible – it is desirable to minimise civilian (and coalition) casualties. Why should the top brass be immune from the military risks that foot soldiers face, especially in a dictatorship?

I remember the doubts about whether Milosevic was really in charge of Bosnian Serb forces during the Yugoslav conflict – and suggestions by some that Karadzic and Mladic were operating autonomously. But, no-one seriously suggests Gaddafi is not in overall charge of those forces that remain loyal. The US made no bones about the legality of killing Uday and Qusay Hussein, when they did not come quietly in July 2003 (whether they were specifically targeted remains unclear).

If Gaddafi chooses to surrender, he should be detained with due process. But, as long as he retains ‘command responsibility’, he is a legitimate military target. Whatever the question marks over this mission, once the decision has been made to intervene, we should be pursuing the swiftest successful outcome possible. President Obama dithered over the No-Fly Zone, and now Secretary Gates appears to be tying the hands of coalition forces. I suspect it reflects nervousness about mission creep, not the law. But, whatever the military and political calculations in Washington, and mindful of the risks of articulating it publicly, we can target Gaddafi – and we should.


Richard Tebboth said...

Lessons from history: League of Nations and Ethiopia, the Rhineland, Czechoslovakia, Anschluss, Palestine, Berlin, Ruanda, Zimbabwe, Darfur, Iraq, Afghanistan (part 4), DRC ..

How should the principle and extent of an 'ethical foreign policy' be defined?

Mike K said...

I suspect that we are in for a long stalemate with the 'rebels' only gaining ground under cover of Nato strikes, then falling back repeatedly. They are simply not militarily strong enough to hold ground on their own. This will inevitably suck in more outside intervention and create international friction. Did removing the old leaderships in Iraq and Afghanistan create the environment for peace and stability? If only it were that simple. Least worst option is probably a country of 2 halves.

Cosmo said...

Not Anonymous but Keith Evetts:
I (ex-FCO with a spell at the UN in New York) agree with Dom's reasoning.

And, as a former Prime Minster once remarked to his private office in a similar situation not many decades ago: "If ---- doesn't like it, let him sue"

Richard Tebboth said...

5 weeks further on: the stalemate and bloodshed continues.

Can we not recognise the 'rebels' as an interim government and provide the necessary military assistance?

The words 'projecting power' were used at the time of the Defence Review: have we no naval resources to relieve the siege of Misrata?

The recent Defence cuts together with the ongoing expensive commitments to Afghanistan Mk 4, the two new carriers and the 'independent deterrent' are causing a significant weakening of our capabilities. Were matters to become Argi-mentative again in the south Atlantic could we resist?

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