Lawfulness of the use of force to combat ISIS in Libya

(To Giuseppe Paccione)

By now, it is a fact that in Libya there is no longer a government authority that has control over the entire Libyan territory, it can be said that it is living in absolute anarchy. In the context of international law, this phenomenon is defined as a failed State.

The central authorities in the city of Tobruk, recognized by the international community as a legitimate government, no longer have the ability to control every corner of their land.

Terrorist groups linked to ISIS lord it, causing terror among the many foreigners present and causing the oil production to fall vertically. The illicit sale of crude oil and arms trafficking have increasingly aggravated the situation, which has become very dangerous with the proclamation of an Islamic caliphate.

There is a strong risk that Libya will become a second Somalia. Its defragmentation with the birth of two or three independent states has not, at least for the moment, its realization, although some tribes and armed bands can not organize itself as a state entity.

Attempts made by some international organizations have not yet achieved any excellent results. Apart from the EUBAM (Union Border Assistance Mission), a civilian mission of the EU, hopes are placed in the hands of the UNSMIL (United Nations Support Mission in Lybia); not an armed mission, but a political one, aimed at encouraging dialogue between the different groups that make up the Libyan mosaic. This mission acts under the aegis of the Secretary General of the United Nations, through the special envoy Bernardino Leon and does not have the characteristic of a peace-keeping mission which, as a rule, is deployed on the territory of a state. Our country has supported its total support for the United Nations special envoy, offering its willingness in favor of a troop intervention only under the aegis of the decision that can be adopted by the Security Council, evacuating the 'idea of ​​intervening unilaterally.

Let's see what the lawful options can be in terms of international law.

The threat of a missile attack that can be launched from the Libyan coasts or the attack of a group of terrorists on Italian soil should not be taken into the background, given the threats of recent days of wanting to hit Italy. . In this case, our country could trigger the reaction system in self-defense, without having to resort to the request for authorization from the Security Council. It is now well established that self-defense or self-defense can be implemented not only with regard to a state, but also against non-state actors. The reaction could occur only after the armed attack has been launched, but also when it is imminent.

Another important aspect to keep in mind is that the Allies could intervene in favor of our country, a member of NATO, which would have the right to invoke Article 5 of the Atlantic Pact, according to which the Parties agree that an armed attack against a or more of them in Europe or North America will be considered as a direct attack against all parties, and consequently agree that if such an attack occurs, each of them, in the exercise of the right of self-defense, individual or collective , recognized by the ARI. 51 of the Charter of the United Nations, will assist the party or parties thus attacked by immediately taking, individually and in concert with the other parties, the action it deems necessary, including the use of armed force, to restore and maintain security in the North Atlantic region. Any such armed attack and all measures taken as a result of it will immediately be brought to the attention of the Security Council. These measures will end when the Security Council has taken the necessary measures to restore and maintain international peace and security. But also within the EU where in article 47 which states that in case of aggression the European partners are obliged to provide the attacked with help and assistance with all the means in their possession. The self-defense action can last for as long as necessary and involve an armed presence in Libyan territory.

As it is well known, the use of peace-enforcement forces requires the endorsement of the Security Council of the United Nations and which would involve a stable dispatch of a multinational force on the soil of Libya, which aims to pacify the territory and to reconstruct the institutional order. Importantly, this troop presence could operate either under the aegis of the UN General Secretariat, or under the command of a state.

Another aspect to keep in mind is the coalition of willing, that is to say of an operation without the coverage of the United Nations, but this aspect without the assent of the sovereign State and without the ?? authorization of the Security Council is considered unlawful.

Compared to peace-enforcement operations, peace-keeping operations have the aim of maintaining the peace, avoiding favoring one or the other party that is fighting and the peacekeeping force is not authorized to - use of armed coercive action, except in the case of protecting its own members.

Returning to a probable military intervention by Italy, it should be mentioned that it has to deal with the Treaty of friendship, partnership and cooperation stipulated by the then Prime Minister Berlusconi and the dictator Libyan Gaddafi, in 2008. In that agreement there are two rules which highlight the inhibition of the threat and the use of armed action and determine the prohibition of carrying out hostile acts departing from both territories. Provisions that, of course, were addressed in 2011, when our country, together with others, intervened in Libya to bring down the absolute power of the Libyan leader. These rules, just mentioned, would not be an obstacle if we were in self-defense. The only perplexity could appear in relation to an armed act not authorized by the competent authority of the United Nations and not in self-defense. In any case, the Italian government would do well to keep its guard up and take serious measures on the uncontrolled arrival of boats full of human beings that depart from the Libyan coast. It is said that out of 100 migrants, 10 could be ISIS terrorists.

(photo: US DoD)