The Legal Requirements for Military Intervention and for Humanitarian Assistance in Libya

The situation in Libya was of great concern for the Italian Government during 2016. The instability of the African country and the risk of increased terrorist activities on Libyan soil carried a significant weight in the reports of the Italian executive in front of the Parliament. Within these issues, the parliamentary practice of Italy highlighted three strictly intertwined legal questions, namely the requirements for military intervention and for humanitarian assistance in Libya, as well as the boundaries of the concept of self-defence. It should not come as a surprise that in this case, during 2016, migration issues played a relatively minor role with respect to security concerns. One might take the view that the stability of the State and the need of having an effective government can be seen as preconditions for tackling the root causes of migration. Speaking about the requirements for intervening militarily in Libya the Minister of Foreign Affairs and International Cooperation, Mr Paolo Gentiloni Silveri, affirmed the need of obtaining a formal request from the legitimate government. On 9 March 2016, in front of the Chamber of Deputies (586th Meeting, XVII Legislature) he stated the following:

“The Government will intervene militarily if and when it will be possible to respond to security requests from a legitimate Government, actively engaged in regaining control of the territory. The Government will do so upon a decision of the Parliament and it will coordinate its activity with the allied forces”.

This approach is consistent with a previous statement of the Minister of Defence, Ms Roberta Pinotti. On 24 February 2016, reporting before the Chambers of Deputies (576th Meeting, XVII Legislature), the Ministro took the Iraqi case as the example that Italy will follow also in Libya. Although reference to invitation from the host State is not explicit, her statement confirms that operations abroad must be made “in agreement” with the government. Differently from what will be seen in the following statements, in this position expressed by Ms Pinotti, United Nations Security Council Resolutions do not seem to have been taken into consideration as preconditions for intervening, but only as parameter of legality of the action. More precisely, the Minister stated:

“[…] [W]ith the same determination we endorse the national [Italian] point of view that sees the active and direct involvement of the local population and of the local governments as fundamental in the fight against terrorism, to which a support is needed. This involvement is fundamental for the positive outcome of the action and is its catalyst for efficacy. This is the reason why we are present in Iraq and not in other scenarios. There we operate, in agreement with the Iraqi Government, and we support the battle that they are conducting against terrorism. The same approach is true for Libya, where Italy is an active side for its sustainable and durable stabilization, in full respect of international law and of United Nations Security Council Resolutions”.

As has been mentioned, the above position slightly changed at a later stage. On 28 April 2016, Minister Gentiloni stated in front of the Chamber of Deputies (615th Meeting, XVII Legislature) that in the case of Libya a UN Security Council resolution must complement intervention by invitation. More specifically, he stated:

“The only condition for obtaining these objectives is stabilization, which will be very long, gradual and strenuous. As Italy, we are committed to this and there will not be any military intervention without requests from a Libyan Government and without a validation from the United Nations Security Council. Until now no request has arrived – and I want to point that out – even for the protection of the oil reservoirs, because also in this field no request has arrived from the Libyan Authorities neither to the Italian Government, nor, per our knowledge, to any other Western Government. Our clear impression is that the Libyan Authorities are for the moment heading towards consolidating their presence by enlarging it, little by little, from the naval base in which they are installed. Now they have taken possession of eight ministries in Tripoli and they are gradually consolidating their presence and just on the basis of this consolidation they will then also be able to ask the international community for a contribution in terms of training of their security forces or for other purposes. In this context it will be possible to discuss, but this will be discussed firstly in Parliament, and we will need a framework of international legality from the United Nations”.

The above position is not isolated. The necessity of having both a formal request from the host authorities and a specific international legal framework from the UN arose already before the III Permanent Committee – Foreign and European Community Affairs of the Chamber of Deputies on 4 February 2016. According to the Undersecretary of State for Foreign Affairs, Mr Amendola, the legal framework for an international mission involving Italy would include not only an invitation from the local authorities, but also a UN Security Council resolution. In an even more stringent manner, the involvement of Italy would also depend on political and factual conditions such as the participation of Italy’s allies and adequate security conditions on the ground. More precisely, he stated:

“On the one side, and as underlined by the Prime Minister already some months ago, Italy is available to lead a possible international mission supporting the stabilization of Libya. It would be a training and assistance mission aimed to consolidate the capacity of the future Government to operate in a secure environment in Tripoli and to expand its authority on the whole territory. Also in this venue I want to recall that the mission would be initiated only on the basis of a formal request of the establishing Libyan Government, in an international legal framework integrated by a United Nations Security Council Resolution, in the presence of an adequate participation to the effort by our international partners and, finally, by sufficiently permissive security conditions for the safeguard of our military personnel”.

Along similar lines, the Minister of Defence, Ms Pinotti, dealt with a parliamentary question concerning some military activities against ISIS carried out by the United States in Libya. On 3 August 2016, reporting in front of the Chamber of Deputies (667th Meeting, XVII Legislature), Ms Pinotti mentioned the existence of the invitation by the Libyan authorities, and also mentioned Resolution 2259 adopted by the Security Council in 2015. According to paragraph 12 of Resolution 2259, Member States are urged “to swiftly assist the Government of National Accord in responding to threats to Libyan security and to actively support the new government in defeating ISIL […] upon its request”. The Minister stated that

“The activity conducted by US forces is fully consistent with United Nations Resolution n. 2259 of 2015 and, as a result of a specific request for support formulated by the legitimate Libyan Government for opposing to ISIS in the area of Sirte”.

According to the Italian Government, military intervention in Libya would thus be subject to the existence of a formal invitation from the host State and a UN Security Council resolution. In contrast, the conditions needed for starting a mission of humanitarian assistance would seem to be confined to the invitation from the host State. In the case discussed in front of a joint session of the III Permanent Committee – Foreign and European Community Affairs and the IV Permanent Committee – Defence of the Chamber of Deputies, and the III Permanent Committee for Foreign Affairs and Emigration and the IV Permanent Committee for Defence of the Senate of the Republic on 13 September 2016, the mission of humanitarian assistance would include doctors, nurses and military personnel for protection and logistic support. Aside from medical equipment, the mission would also include an aircraft C-27J parked in the airport of Misurata for strategic evacuation.

“On 8 August president Al-Sarraj addressed to President Renzi the request for military hospital structures for nursing the wounded. Before this, there have already been manifestations of interest. […] Obviously, until the request was not official and since it implies programming the dispatch of military to Libya, it was not possible to proceed in an official way. […] As Minister Gentiloni reminded, this is a humanitarian mission”.

Whereas the Minister of Defense remarked the military component of the mission, the Minister of Foreign Affairs, Mr Gentiloni, in the very same venue, stressed the importance of the civilian component of the mission.

“[…] we are sending to Libya a hospital, not an aircraft carrier. It is an operation that has indeed some security issues and, therefore, has to have a military protection, which will be evaluated by the military. As correctly stated by honorable Causin, this evaluation is delicate, because the environment is not safe, but we are building a camp hospital. There are no boots on the ground, maybe there are meds on the ground, if we want to use this American terminology, we are sending doctors to Libya with the necessary military protection”.

In a further statement in front of the Chamber of Deputies (576 Meeting – XVII Legislature) on 24 February 2016, the Minister of Defence apparently adopts an extensive reading of the scope of self-defence under Article 51 of the UN Charter. While it would be beyond the scope of this piece to enter into the debate on the interpretation of the article, suffice it to say that the declaration of Ms Pinotti is consistent with the general tendency of States to invoke self-defence for purposes that may not, in theory, be covered by the article. Speaking about the increased US presence in the base of Sigonella, the Minister remarked that, given the security concerns in North Africa, US activities aimed to protect US citizens in that area would amount to legitimate self-defence. She stated:

“More recently, after a very serious episode in which, you remember, the American ambassador in Bengasi was killed in Libya, it was negotiated and we were requested, through the relationship between our Governments, the reinforcement of the American presence [in Sigonella], in order to satisfy the legitimate needs to protect their citizens in the area of North Africa, not just Libya, but the area of North Africa, given the situation that it is experienced therein. The usage of the above means encompasses exclusively defensive profiles of their personnel, when necessary, and that is an exemplification of the right to self-defence set forth by Article 51 of the UN Charter. In full respect of that principle, the usage by the US of the base of Sigonella is every time discussed and authorized […]”.

A very similar wording was used by the Undersecretary for Defense), Mr Alfano, in front of the IV Permanent Committee – Defence of the Chamber of Deputies on 3 March 2016, further confirming the extensive reading of the scope of Article 51 of the UN Charter:

“More recently, following the murder of the American Ambassador in Bengasi, Libya, the reinforcement of American means in [Sigonella] was asked and negotiated between Governments in order to satisfy the legitimate exigencies of protection of their citizens, not only in Libya but in the area of North Africa. The employment of these concerns exclusively defensive profiles of their personnel, when necessary, and that is an exemplification of the right to self-defence set forth by Article 51 of the UN Charter”. 

Whereas in the above statements the right to self-defence is mentioned in relation to the protection of nationals, in a different statement the right to self-defence is linked to the protection of the State. The context is related to the threat posed by terrorist activities and the need to defend the country from such threat. On 9 March 2016, Mr Gentiloni intervened before the Chamber of Deputies (586th Meeting – XVII Legislature) without explicitly recalling Article 51 of the UN Charter, but mentioning, instead, Article 52 of the Italian Constitution, which states that “[t]he defence of the country is a sacred duty for every citizen”.  It is unclear from the overall discourse whether the Minister poses this provision as the legal ground legitimizing covert intelligence operations supported by military units. Nonetheless, according to the Minister, these confined operations already take place in several areas across the Mediterranean and Libya will not be an exception. Self-defence is mentioned slightly afterwards, when arguing that it is important to distinguish between contrasting terrorism, thus acting in self-defence, and the overall stabilization of Libya. He stated:

“We have to defend ourselves from the terrorist threat, we will defend ourselves and we will do so exactly as it has to be done, because this is what our Constitution provides for under Article 53. It is our duty to defend Italy from the terrorist threat. […] Italy mobilizes against the terrorist threat in various areas and theaters across the Mediterranean and certainly will do so also in Libya. It is for this reason that the Parliament decided in December that in certain cases, intelligence operations might require security conditions ensured by the support of military units. The Parliament will be informed of these operations by means of the COPASIR , according to Act 124 of 2007 […]. One thing has to be clear, honorable colleagues: contrasting terrorism, of which I am speaking, must be based first and foremost on an extraordinary informative effort; it has to be based, when necessary, on circumscribed actions, on proportionate reactions to actual threats shared amongst allies. However, once we set the boundaries and the frames of our reaction to the terrorist threat, which has to exist, and will take place, we have to know that it is not from our counter-terrorism activity that we can expect the stabilization of Libya. Confusing self-defence and the stability of Libya does not help, on the contrary, it might even complicate the situation we are facing”.

The original Italian version of the speeches translated or quoted above can be found here below:

Statement 4 February 2016

Statement 24 February 2016

Statement 3 March 2016

Statement 9 March 2016

Statement 28 April 2016

Statement 3 August 2016

Statement 13 September 2016

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