“Certainly a new resolution of authorization with respect to the past that responds, at least in part, to the criteria of the doctrine of “protecting for the purposes of the admission of humanitarian intervention that is an intervention aimed to protect the civilian population, an authorization that, for example, was missing in the case of Kosovo in 1999 and in the Italian participation in the conflicts after September 11, 2011”.
Thus spoke to MISNA, Carlo Focarelli – professor of international law at the University of Perugia and at Guido Carli University in Rome – confronting some significant aspects of UN Security Council Resolution 1973, which authorizes military intervention in Libya to ensure the establishment of a no-fly zone, as well as the enforcement of sanctions (embargo, freezing of assets, suspension of flights), and excluding explicitly a ground occupation “in any form and any part of Libyan territory’.
“This is a new Resolution – he said – because it emerges from a new concept. It is the State, Libya, that must ensure the protection of its citizens’ right, but in case the State cannot do so, or is unable to, it is up to the international community to do it, so long as there is the authority of the Security Council, as it happens to be the case here”.
“In Italy’s case – said Focarelli – there is the preliminary point of art. 11 of the Constitution which repudiates war as a too of offense to the freedom of other peoples and as a means to resolve international controversies. This allows for limits of sovereignty for an ordnance that ensures peace and justice among nations promoting and favoring international organizations aiming toward this end”.
In this case it is the very UN Resolution that allows for the respect of the Constitutional dictate within the limits of the authorization.
However, the ongoing military action lends itself to various interpretations. Is it a war or is it an international police action?
Focarelli, suggests that the answer lies somewhere half way.
“We cannot say that we find ourselves before a veritable war in the classic sense and that is a struggle aimed at the annihilation and the conquest of the enemy, but we would be making a mistake in saying that this is but a simple peace operation considering the types of weapons being used and the number of victims. Establishing whether or not the the UN mandate has been respected by the countries that have exploited the open window left by the resolution to intervene, shall be the task of inquiry commissions, international and state. We should stress, however, that the Resolution does not order; it authorizes the intervention to those States that intend to intervene. Nobody is obliged. In the Resolution there are no references if not to the Arab League, calling Chapter VIII of the UN Charter that provides for a the cooperation of regional organizations to maintain local peace and security”.
In other words to suggest that military operations are valid from the point of view of international law though this does not imply taking the side of the interventionists.
International law only says that the military operation is valid; on paper no possibility is excluded if considered to be useful to the protection of the population: “there is no reference to a regime change, rather to the possibility that of scenario of this type could be justified in light of the primary goal of the resolution which is the protection of civilians”.
Inevitably there is a reference to the Italy-Libya Friendship, in 2008 in Benghazi.
“Theoretically – says Focarelli – deploying its bases or even participating with its aircraft in the operations over Libyan soil, Italy is engaging in hostile actions, violating article 4, par. 2 of the Treaty. In practice, however, both Libya and Italy belong to the UN and they have therefore agreed to article 103 of the UN Charter which states: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. In other words, says Focarelli, “even if article 103 speaks of ‘obligations’ and there is an authorization here to this effect and , therefore, it is still the UN Resolution that enables Italy to hold the treaty inapplicable, seeing as the main clauses of the text could be held to be suspended also because of the effect of the ongoing hostilities”.