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The Use of Force in International Law - A Case-Based Approach edited by Ruys, Tom; Corten, Olivier; Hofer, Alexandra (17th May 2018)

Part 1 The Cold War Era (1945–89), 35 The US Strikes Against Libya—1986

Maurice Kamto

From: The Use of Force in International Law: A Case-Based Approach

Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 October 2019

Subject(s):
Self-defence — Protected persons and property — Warfare, air — UN Charter

(p. 408) 35  The US Strikes Against Libya—1986

I.  Facts and Context

Brief, targeted, and lethal: in twelve minutes the US strikes against Libya were over. Several cities were targeted, including the nation’s capital, Tripoli, and one of the largest cities in the country, Benghazi. As a result of this deadly attack, thirty-seven people died, among which thirty-six were civilians, and ninety were injured.

The attack, which took place during the night of 14 to 15 April 1986 and codenamed ‘Operation El Dorado Canyon’, occurred following tensions between Libya and the United States, marked by the bombing in a West Berlin nightclub on 5 April 1986, causing three deaths and 129 injured; the club was targeted as it was frequently attended by members of the US army. The United States carried out the attack against Libya without consulting its allies and justified the operation by referring to the western countries’ inaction and inability to take appropriate measures against international terrorism.1 Indeed, the US operation occurred at a time when Libya and its then leader, Muammar Gaddafi, were accused of supporting terrorist movements. It is true that during the 1980s and the 1990s, Gaddafi, in alliance with the Eastern Bloc and Fidel Castro’s Cuba, openly supported leftist rebel movements such as Nelson Mandela’s African National Congress (ANC), the Palestinian Liberation Organization (PLO), the Irish Republican Army (IRA), and the Polissario Front acting for the liberation of Western Sahara. Gaddafi also supported Anti-Zionists, Pan-Africanist, and black civil rights movements; he claimed he sought to support anti-imperialist and anti-colonial movements around the world, and to influence domestic policies in capitalist societies. During the same period, Gaddafi and his government undertook several invasions of neighbouring states in Africa, notably Chad whose disputed Aouzou Strip was invaded and occupied by Libyan troops between 1973 and 1987. The conflict ended with a Chadian victory, thanks to the US and French aid to Chadian rebel forces and to the government headed by Hissène Habré. Moreover, in 1977, Gaddafi dispatched his military forces across the border shared with Egypt, but the Egyptian forces fought back in what is known as the Libyan–Egyptian War. The fighting ceased when both nations agreed to a ceasefire, under mediation of the President of Algeria, Houari Boumediène.2

Under Gaddafi’s leadership, Libya was rather unstable; for example, after Gaddafi seized power through a coup d’état, Libya was first renamed Libyan Arab Republic in 1969; then it was changed to Socialist People’s Libyan Arab Jamahiriya in 1977, and renamed again in 1986 as the Great Socialist People’s Libyan Arab Jamahiriya. In the course of the 1980s and 1990s, Libya engaged in a controversial nuclear programme, that it agreed to give up after (p. 409) the 9/11 terrorist attacks against the United States and the lifting of the sanctions against the country. In fact, despite its anti-colonial and anti-imperialist stands, and its close relationships with the Soviet Union and Eastern Europe countries, Libya retained close ties to pro-American governments in western Europe largely by promising western oil companies access to the lucrative Libyan energy sector. Nonetheless, Gaddafi and his regime were also suspected and accused of international terrorism. This caused the deterioration of Libya’s foreign relations with several countries and culminated in the US bombing in Libya in April 1986. Indeed, because the United States believed Libya had sponsored the 5 April bombing of the club in Berlin, the US President, Ronald Reagan, ordered strikes against Libya ten days later.3

II.  The Positions of the Main Protagonists and the Reaction of Third States and International Organizations

The tension between the United States and Libya, which culminated in the US strikes on 14 April 1986, gave room to a large debate in the UN. It appears from that debate that an overwhelming majority of the member states of the United Nations were against the US action and condemned it unequivocably. Nevertheless, the outcome of the debate, in terms of decision-making, was different in the Security Council and in the General Assembly. While the Security Council failed to adopt a resolution on the US operation, the General Assembly adopted a resolution condemning the strikes as an act of aggression.

In the following section, we will present the debates held in the two bodies and thus outline the individual positions of the United States, Libya, and third states.

1.  The debate in the Security Council and failure to adopt a resolution

The United States justified the strikes as measures taken under self-defence in accordance with the UN Charter. Its position can be found in the letter dated 14 April 1986 whereby the US Government informed the Security Council of its military action against Libya. The letter reads:

In accordance with Article 51 of the UN Charter, I wish, on behalf of my government, to report that United States forces have exercised the United States right of self-defence by responding to an ongoing pattern of attacks by the government of Libya. As stated by President Reagan on April 14, ‘self-defense is not only our right; it is our duty. It is the purpose behind the mission undertaken tonight, a mission fully consistent with Article 51 of the United Nations Charter’. Over a considerable period of time Libya has openly targeted American citizens and U.S. installations. The most recent instance was in West Berlin on April 5, where Libya was directly responsible for a bombing which resulted in the death of one U.S. Soldier and injury to a large number of American servicemen and other persons. … The United States objective was to destroy facilities used to carry out Libya’s hostile policy of international terrorism and to discourage Libyan terrorist attacks in the future … The Libyan policy of threat and use of force is in clear violation of Article 2(4) of the United Nations Charter …4

(p. 410) Following the US Government’s letter, the Libyan Government sent a letter of its own to the Security Council, by which it ‘request[ed] the immediate convening’ of this organ ‘to consider and adopt urgent and effective measures against the armed military aggression staged by the United States of America against the Socialist People’s Libyan Arab Jamahiriya’.5

The debate, conducted under the chairmanship of France, revealed a large condemnation of the US attack on Libya. It must be recalled that the attack took place while the Security Council was already seized and engaged in the consideration of the situation arising from the tension between Libya and the United States in the Central Mediterranean. The meeting of the Council was convened on 12 April 1986 at the request of Malta, which considered that the prevailing situation called for immediate action by the Security Council under Articles 33 and 34 of the UN Charter. The Government of Malta tabled a draft resolution whose objective was ‘to put an immediate stop to any further action, likely to lead to the resort to the use of force, and to entrust the Secretary-General with the full power to take whatever action necessary to ensure the maintenance of peace in the central Mediterranean’.6

During the Council meeting on 14 April 1986, the USSR and Syrian Arab Republic requested to be invited to participate in the discussion on the issue raised by Malta, and there was no opposition to that request. While the meeting was aimed ‘to consider new preparation for a further act of aggression against the Jamahiriya being planned by the United States of America’, the Council had not concluded its consideration of the complaint brought to it by the Soviet Union, Malta, and the Group of Arab States ‘concerning the United States act of armed aggression against the Libyan Arab Jamahiriya’.7 Libya denounced the presence of US aircraft carriers and many other naval vessels stationed off Libya’s shores with the aim of committing an armed aggression under the pretext of ‘revenge against the Jamahiriya for acts whose perpetrators have not yet been determined’. The representative of Libya claimed that ‘[a]t every level, the Jamahiriya has denied any connection whatsoever with the acts which have been invoked by the United States of America as a pretext for committing aggression against the Socialist People’s Libyan Arab Jamahiriya’.8 He further stated that despite the denounciation of the United States’ ‘blatant act of armed aggression … by the international community’ and its condemnation by ‘all those who spoke in the Council during its consideration of that act of aggression … this Council’s failure to adopt a resolution—the result of pressure brought to bear—by the United States of America—has only vetted the appetite of the United States, encouraging it to pursue its aggression’.9 Libya further declared that the US attack was a premeditated act. According to it, since the beginning of the year 1986, ‘the United States has not concealed its premeditated intention to thwart the legitimate right of the Libyan Arab people, to violate that people’s sovereignty and impede its independent policy by force. Everytime something happens in the worlds, the Jamahiriya finds itself accused by the United States Administration for being responsible of those occurrences’.10 Affirming that the alleged ‘premeditated American act of aggression’ constitutes a threat to international peace and security in the whole area, Libya stated that it ‘reserves the right to take such steps as it (p. 411) deems necessary to protect its sovereignty and safeguard its independence in accordance with Charter and the principles of international law’.11

One can easily imagine that the United States was of the complete opposite opinion. Its representative stated that Libya had violated Article 2(4) of the UN Charter, and he was not talking of an isolated instance of use of force in violation of that Article, ‘although that would be serious enough’; the Council, he said, was ‘faced with a persistent course of conduct by a Member State, Libya, in flagrant disregard of the most fundamental rules of international law. Libyan armed forces are now present and in action on the territory of its neighbour, Chad. Libyan armed forces opened fire a few short weeks ago on American naval forces operating on and over international waters on the high seas’.12 Jumping from one argument to another, the United States also affirmed that, as ‘a firm principle’ ‘established long ago’, the use of force as prohibited by Article 2(4) need not be used by uniformed members of the armed forces of a country: ‘It is just as much a violation of Article 2 when individuals, wearing civilian clothes plant bombs in aeroplanes or in crowded cafes.’ The fact that those actions targeted innocent civilians and violated ‘other rules of law and are correctly described as terrorist acts in no way decreases the extent to which they violate Article 2(4)’.13 In addition to the use of force, the United States continued, the Government of Libya has threatened to have recourse to the use of force, not only against the United States but also any of its allies, and this conduct of that ‘outlaw regime’ is also prohibited by Article 2(4) of the Charter; the US representative also affirmed that the Government of the United States has fulfilled the requirements of Article 51 of the Charter by immediately reporting to the Security Council the measures taken in the exercise of its right of self-defence.14

Reacting to the United States, and in the same vein as Libya, the Soviet Union said that ‘the militaristic course of the use of force by the United States against the Libyan Arab Jamahiriya had been the subject of widespread condemnation’ and that, instead of halting this policy and remove its naval units from the Libyan coast the United States had issued ‘blackmail and threats’, and ‘calls were being issued from Washington for Libyan leadership to be taught a lesson by military means’.15 He regretted that the USSR could not help but noted a dangerous recrudescence of the militaristic hysteria that has gripped the United States, in the form of a ‘severe, anti-Libyan syndrome’.16 According to the USSR, no matter how the United States tried to justify its acts, ‘nothing c[ould] justify the use of force or the provocative disregard of the United Nations Charter and the basic norms of international law’.17

As a non-permanent member of the Security Council, the United Arab Emirates noted that ‘over a two-week period’, the Council ‘failed … to arrive at a resolution that would put an end to the United States aggression against Libya’, and that in those ‘last two days, it failed to take steps to prevent the new attack’.18 According to it, the United States possessed military capabilities to annihilate Libya and any other Third World country; ‘arrogant power needs no legal, logical or even ethical justification’.19 In conclusion, the Emirates declared that:

the pretext invoked to justify that act of aggression have no basis whatsoever. We hold the United States—a permanent member of the Council—responsible for that act of aggression and for its consequences; we also hold the United Kingdom responsible, since it authorized the use of bases on its territory for the purpose of launching a military act of aggression against (p. 412) Libya. For our part, that act of aggression against Libya was an act of aggression against Arab territories, causing Arab victims. We condemn it in the strongest terms and we assure the fraternal country of Libya of our solidarity in defending its independence and sovereignty.20

Many other members states requested to be invited to participate in subsequent Security Council discussions.21 They all condemned the US attack against Libya. For instance, according to Syria, ‘the attack that has been carried out by the United States is a flagrant violation of the provision of the Charter and the rules of international law and of civilized conduct’.22 The Arab League adopted a more tempered tone, which is understandable as a collective position is always the result of compromise. Oman, speaking as the President of the Arab Group in April 1986 and in accordance with the unanimous position adopted at their emergency meeting in the night of 14 April 1986, condemned ‘without any distinctions of any sort, [of] all who commit acts of terrorism’.23 It also described the US strikes as ‘the latest act of aggression by the United States against Tripoli and Beghazi and the vast damage caused to civilian targets, peaceful people, innocent families, diplomatic missions, and a hospital in flagrant violation of the principle of the non-use of force in international relations’.24 Then, the ‘Arab nation’ declared its opposition to the threat or use of force in international relations, in situations not covered by the Charter, and above all in situations similar to that which was considered by the Security Council. Mindful of the ‘act of military aggression’ committed against Libya (Tripoli and Benghazi) in the night of 14 to 15 April and all the resultant damage, the Arab Group declared that ‘[t]he Council must take a firm stand and vigorously condemn the aggression’; they backed the draft resolution submitted by the non-aligned delegations on the Council, which appeared to be the most likely to achieve ‘unanimity, or at least, an absolute majority’.25

Many other states voiced criticism and condemned the US attack against Libya, including Bulgaria, a non-permanent Member of the Security Council, which demanded that ‘all United States military actions and aggression and all its encroachments against sovereign and independent Libya, be halted once for all’.26 Yemen denounced the ‘brutal act of aggression carried out by the United States of America with the complicity of the United Kingdom’.27 India recalled the position of the non-aligned countries adopted during an emergency session held in New Delhi on the 15 April 1986. The Ministers and Head of Delegations of these countries, inter alia:

noted with deep shock and profound indignation the armed attacks by the United States of America undertaken with support and collaboration of its NATO military ally the United Kingdom against the territory of the Socialist People’s Libyan Arab Jamahiriya. They strongly condemn this dastardly, blatant and unprovoked act of aggression against a fellow non-aligned country, which constitutes a violation of international law and the principles of the United Nations Charter, and endangered international peace and security. This act of aggression by the United States was all the more condemnable since, by virtue of its position as a permanent member of the Security Council, it has primary responsibility for the maintenance (p. 413) of international peace and security and to abide by the principles of the Charter of the United Nations.28

In a rather unsurprising and short statement, China ‘expressed its deep concern and anxiety’ over the attack by the US naval forces on Libya in the small hours of 15 April and ‘condemned such an act of attacking the territory of another State and encroaching upon its sovereignty, in violation of the norms governing international relations’. The Chinese Government asked ‘the United States Government to stop forthwith its encroachment upon the territory and sovereignty of Libya, and call[ed] on the parties concerned to exercise restraint, cease hostilities and avoid a further deterioration of the situation, in the interest of the maintenance of peace and stability in that region’.29 China clearly condemned the military attack leading to the ‘encroachment upon the territory of a sovereign State under the pretext of striking terrorism’, but did not qualify it as an act of aggression, or, more broadly, a violation of the UN Charter and the principles of international law. One can only assume this was implicit in the condemnation.

During the 2676th meeting of the Security Council, five other countries were invited to take part in the discussions, without the right to vote.30 During the continuation of the debate the general condemnation of the US attack was reiterated. For Algeria, in view of the magnitude of the means used and the wide range of the military instruments mobilized ‘that action was not, as a laborious argument would have us to believe, an exercise of the legitime right of self-defense … rather it was a prohibited, therefore inadmissible use of force’,31 since Article 51 cannot be invoked in the absence of an act of aggression. Yugoslavia, on its part, stated that ‘force has been flagrantly used again in the Mediterranean against the sovereignty and territorial integrity of the independent and Non-Aligned Arab Jamahiriya … An act of aggression was committed … contrary to the principles and purposes of the Charter of the United Nations as well as to the basic norms of international relations’.32

In the course of the 2677th meeting of the Security Council, Afghanistan, Benin, the Islamic Republic of Iran, and the Lao People’s Democratic Republic joined the debate.33 Qatar, referring certainly to the statement of Australia below, declared that although the attempts by that country ‘to support the acts of aggression by reference to international (p. 414) law and to the Charter of the United Nations, it has in no way altered the true state of affairs, which is based upon arrogant power and conceit’.34 During the continuation of the debate at the 2680th meeting of the Council, the People’s Republic of the Congo regarded the US armed attack ‘as a clear and simple act of aggression, within the meaning of Article 1 of the annex to the General Assembly resolution 3314 (XXIX) of 14 December 1974’.35 Ghana, which was then one of the non-permanent members of the Security Council recalled a statement circulated on 16 April 1986,36 in which its government had ‘in no uncertain terms condemned this latest “act of aggression against Libya” as “the culmination of a persistent onslaught by the United States against the rights of people throughout the world” and “a manifestation of the blatant arrogance with which the United States demonstrates its power” ’. In concert with other non-aligned countries, it ‘condemned the United States Administration’s preference for military option over peaceful negotiation’.37

A minority of countries did not condemn the US action. Australia, another non-permanent member of the Security Council at the time, clearly took sides against Libya, although it regretted that the conflict had taken place. According to it, a peaceful resolution of that conflict meant, ‘as an absolute and essential condition, that Colonel Qaddafi terminate his Government direction of, export and support for terrorist activities against civilians and civilian targets, such as have recently been directed against United States civilians. This would also mean that the United States should desist from further military action against Libya’. Australia accepted that ‘there was a substantial body of evidence of Libyan involvement in and direction of international terrorism. This situation cannot continue. We have all condemned such outrages’.38 In fact, the whole statement of the Australian Government was focused on Libya’s responsibility in international terrorism and the necessity to root out this phenomenon.

The strongest support of the US military attack came from the United Kingdom. For this country, the only issue before the Security Council was terrorism. It therefore recalled all instruments adopted in the UN that condemned terrorist acts. It tried to build a legal foundation to its position by making a general statement that ‘State-directed terrorism is in fact war by other name’.39 It further stated that the Security Council had before it ‘a particular and flagrant example, maintained over many years, of the use terrorism—that is, common murder—as an instrument of State policy’.40 One could however wonder how ‘common murder’ could amount to war. The UK representative went on to invoke Colonel Qaddafi’s ‘terrorist career’, and recalled the position of the twelve members states of the European Community, of 14 April, against terrorism and their call upon Libya to renounce to it.41 According to the UK Government, the inherent right of self-defence, that the United States, as any other state, has, ‘plainly includes the right to destroy or weaken the capacity of one’s assailant, to reduce its resources and to weaken its will so as to discourage and prevent further violence’.42 In short, self-defence authorizes all possible actions, provided they are ‘proportionate’. This appears to be a contradictio in terminis.

A few states adopted a more ‘neutral’ position, placing emphasis on the role of the Security Council both in the prevention of and the resolution of the dispute, which if left unresolved could endanger the maintenance of international peace and security. These states indicated their willingness to cooperate with the Council in that respect.43

(p. 415) Finally, despite a large and favourable majority—not only of the member states of the UN as a whole, but also within the Security Council—a resolution could not be adopted on the matter. Indeed, following the veto of the United States, France, and the United Kingdom, a Security Council draft resolution condemning the US attack against Libya was rejected.44

2.  The adoption of a resolution in the General Assembly and position of states

Despite the failure to adopt a resolution at the Security Council condemning the US attack, following a request from Libya, the General Assembly adopted Resolution 41/38 on 20 November 1986, by 79 votes in favour and 28 votes against, with 33 abstentions.45 After having heard the representative of Libya, the General Assembly reaffirmed ‘the purposes and principles of the Charter of the United Nations and the obligation of all States to refrain from the threat or use of force in their international relations and to settle their disputes by peaceful means’; and ‘the inalienable right of all peoples to determine their own form of government and to choose their political, social and economic system without any interference, subversion, coercion or constraint of any kind whatsoever’.46 The General Assembly then expressed its deep concern at ‘the threats and aggressive provocations, and the freezing of assets and properties, carried out against the Libyan Arab Jamahiriya’, and ‘at the series of disinformation campaigns carried out against the Libyan Arab Jamahiriya’; and its ‘grave concern at the aerial and naval military attack perpetrated against Tripoli and Benghazi on 15 April 1986, which constitutes a serious threat to peace and security in the Mediterranean Region’.47 It also noted ‘with concern that the Security Council has been prevented from discharging its responsibilities owing to the negative vote of certain permanent members’.48

Furthermore, taking into consideration the Declaration adopted by the Assembly of Heads of State and Government of the Organisation of African Unity at its 22nd ordinary session, held at Addis Ababa in July 1986,49 and taking note of the political Declaration adopted by the 8th conference of Heads of State or Government of Non-Aligned Countries, held at Harare in September 1986,50 and other relevant declarations of the Non-Aligned Movement (NAM), as well as the final communiqué adopted at the Co-ordination Meeting of the Ministers for Foreign Affairs of the Organization of the Islamic Conference, held in New York in October 1986,51 the General Assembly Resolution:

[Condemned] the military attack perpetrated against the Socialist people’s Libyan Arab Jamahiriya on 15 April 1986, which constitutes a violation of the Charter of the United Nations and of international law;(p. 416)

[Called] upon the government of the United States in this regard to refrain from the threat or use of force in the settlement of disputes and differences with the Libyan Arab Jamahiriya and to resort to peaceful means in accordance with the Charter of the United Nations;

[Called] upon all States to refrain from extending any assistance or facilities for perpetrating acts of aggression against the Libyan Arab Jamahiriya;

[Affirmed] the right of the Libyan Arab Jamahiriya to receive appropriate compensation for the material and human losses inflicted upon it;

[Requested] the Security Council to remain seized of the matter, and requests the Secretary-General to report thereon to the general Assembly at its forty-second session.52

Thus, the General Assembly resolution appears, to some extent, as a response to the vetoes in the Security Council, which, during the Cold War period, was perceived as a tool for western domination. Indeed, as the use of force against Libya occurred during the Cold War period, the ideological division of the world was reflected during the debate at the General Assembly and in the vote of the resolution. Several states expressed divided opinions on the US attack against Libya: a few were clearly in favour, others had a more nuanced position, and many others were clearly against the attack.

The western countries and the states whose nationals had been victims of terrorist acts allegedly sponsored by Libya were in favour of the US attack. In the abovementioned letter addressed to the Security Council on 14 April 1986, the US Government invoked Article 51 of the UN Charter and declared that the attack carried out by its forces was the exercise of its right of self-defence. It stated that it had unsuccessfully attempted to discourage Libya’s terrorist conduct via peaceful means: ‘when quiet diplomacy, public condemnation, economic sanctions and demonstrations of military force failed to dissuade Colonel Qaddafi, this self-defence action became necessary’.53 In anticipation of the countries that would criticize the attack, the United States also declared in its letter: ‘It is hypocrisy to equate the answer to terrorism with terrorism: it is equating crime with those who fight crime.’54

The United Kingdom fully supported this position. In a speech made during the debate in the House of Lords, the representative of the Government of the United Kingdom alleged that ‘there has been no doubt about the implication of the Libyan Government in State-directed terrorism’, and indicated that it believed the United States’ action against terrorist-related targets was ‘undertaken in the light of evidence that further terrorist attacks were planned, was within the inherent right to self-defence under article 51’.55 For the United Kingdom, this right of self-defence ‘is not an entirely passive right. It plainly includes the right to destroy or weaken the capacity of one’s assailant, to reduce his resources, and to weaken his will so as to discourage and prevent further violence’.56 Reacting to those who invoked articles of the UN Charter that enjoined member states to settle their international disputes by peaceful means and to refrain from the threat or use of force, it argued that ‘these articles do not impair the inherent right of individual or collective self-defence under article 51. There is a limit to the damage, in terms of lives (p. 417) and property, that sovereign states can be expected to take from planned terrorist attacks of another state’.57

Israel also supported the US position during the debate on the Security Council draft resolution. According to its representative at the UN, the United States had no choice but to strike the source of terrorism; it could not afford to wait for further acts of terrorism to occur. It declared that ‘[t]here [was] irrefutable evidence of Libyan complicity’.58

Chad was the only African and Third World country that endorsed the US position and, therefore, voted against the General Assembly resolution. Chad’s support for the US strike can be explained by the fact that it viewed it as a fair revenge for Libya’s deadly invasion and occupation of part of its territory, the Aouzou Strip, from 1973 to 1987, which Chad perceived as an illegitimate war imposed on it by Gaddafi and his regime. Indeed, while acknowledging that Libya suffered damage through the American air raid, Chad declared that:

[the] damage was undoubtedly slight compared with that caused to Chad by the Tripoli criminals, but was clearly exaggerated and blown up in the interest of Libya’s cause, we believe that this gives Qaddafi an opportunity to understand and weigh the suffering Libya is causing the people of Chad who are the victims of this open aggression …59

In between states who were for and those who were against the US attack, were those whose position was nuanced and somewhat neutral. Although Belgium expressed its understanding for American indignation vis-à-vis a series of terrorist attacks carried out in western Europe, it shared the European Community’s opinion, which considered that the responsibility of Libya had been established but that the escalation of military tension should be excluded since it did not contribute to the fight against terrorism. Belgium held a neutral position with regard to the US invocation of self-defence.60 Spain voted against the draft resolution because, in its opinion, ‘it reflect[ed] an incomplete picture that is out of context with the complex set of circumstances and the factors that played a relevant part in those events’. In particular, there was ‘no reference in the resolution to the problem—unfortunately, a very real problem—of international terrorism’.61 Similarly, the representative of Chile declared that his country ‘cannot support a decision that disregards terrorism’.62 Turkey recalled that it had always been of the view that negotiations and other peaceful means should not be discounted and therefore could not reconcile the air raids carried out against Libya with the principles of international law. Nevertheless, it found it difficult to vote for the draft resolution put before the General Assembly ‘because it d[id] not encompass all the elements reflecting the position of the parties and d[id] not take into account the distinct competence and responsibilities of the Security Council’.63 In the same vein, the New Zealand Prime Minister, Mr David Lange, declared that ‘[m]ajor acts of terrorism, especially those conducted with the connivance or under the direction of a State, may justify the use of force, so long as the force used is reasonable and proportionate to the danger. American military action may have been justifiable as an act of self-defence, but the fact that it conforms with America’s rights under international (p. 418) law does not necessarily make it right’. Because the draft resolution made ‘no reference to the actions of the Libyan government over a period which provoked the United States attack’ and because, ‘[r]egrettably, the sponsors of the draft resolution have chosen to condemn the retaliation while disregarding the chain of events which led to the United States action’, New Zealand voted against the draft resolution.64

China, for its part, adopted a rather balanced position from which it appears that it did not want to take sides. Indeed, the Chinese Government declared that it ‘opposes and condemns terrorism in whatever form’, and is ‘against using terrorist means to carry out a political struggle’. At the same time, it is ‘also against violating the territory of a sovereign State on the ground of combating terrorism’. It recalled that:

the peaceful settlement of international disputes is a universally recognised principle in contemporary international law and also one of the important principles enshrined in the Charter. Strict observance of this principle in relations between States and to refrain from the use or threat of force against each other are obligations common to all countries. We are of the view that both the United States and Libya should abide by this principle and settle their differences in a fair and reasonable fashion through peaceful talks.65

China’s position can be explained by the fact that, at the time, it was not powerful enough, neither economically nor military, to openly oppose the United States out of solidarity with the Third World countries. Consequently, it could not side in favour of the US action but it could not go as far as opposing it either.

Many countries expressed outspoken condemnations against the US attack on Libya and they were not only Third World countries. The USSR, who had tried unsuccessfully to pass a resolution at the Security Council, denounced the attempt of the United States’ administration to accuse Libya of supporting international terrorism.66 It recalled its position, as contained in a statement of its Minister for Foreign Affairs:

Individual criminals and individual terrorists cannot be identified with States and people. Individual incidents cannot be used in order to punish peoples and States, as was the case with Libya and as is now threatening Syria. The problem of terrorism must be resolved jointly, pooling effort to achieve the eradication of terrorism as an evil.

In this regard, the USSR considered that ‘the attempts of the United States to justify the attack on Libya through references to Article 51 of the United Nations Charter are unfounded and totally unconvincing as was demonstrated yesterday in the statement of the representative of Qatar and other representatives’.67 Following this position, Bulgaria, unsurprisingly, condemned ‘the ambition of a great Power to arrogate to itself the role of arbiter judging by its own lights the policies of other sovereign States, whether situated close to it or thousands of kilometres from its territory’.68 According to Sweden, the US military attack against Libya was carried out in contravention of international law as it is set out in the UN Charter and other documents. Conflicts must be resolved by peaceful means; the attack ‘[could] not be defended under Article 51 of the Charter’. Although the Swedish Government had repeatedly condemned all forms of terrorism, it was of the view that ‘this threat must be met by intensified international co-operation’, and that ‘terrorist deeds must be combated by political and police means, not by acts of war’. That is why the Swedish delegation supported several elements of the resolution adopted by the General (p. 419) Assembly.69 Uganda declared that, although the US administration claimed to be in possession of irrefutable evidence, it had showed none of it to independent observers, it aimed only to bring Libya to its knees. For this country, the US military attack represented ‘a flagrant violation of the integrity, sovereignty and independence of Libya’.70 Peru made no secret of its willingness to vote in favour of the revised draft resolution ‘because it constitute[d] a rejection of the acts of any State that departs from the rules of international co-existence established by the Charter of the United Nations and under international law’. Yet, at the same time, the Government of Peru reiterated its ‘condemnation of terrorism in all its forms, whoever those responsible may be, whether individuals or States, and whatever the motives, or the national or international arenas chosen’.71

Other countries expressed their position in stronger terms. For the League of Arab States, the US action against Libya ‘was an act of aggression for which the United States could not provide, then or later, credible justification. There were accusations that Libya was linked to anti-United States violence in Western Europe, but no “evidence” was made public’.72 Afghanistan’s condemnation was stronger, declaring that:

the elaborate defamation campaign, the economic and cultural blockade, the acts of armed provocation and destabilisation and the naked acts of aggression perpetrated by the United States against Libya are by all indications elements of a premeditated design within the overall United States global policy of state banditry and terrorism.73

According to the Democratic Republic of Laos, by including ‘references to the right of self-defence, the concern for fighting international terrorism and so forth’, the United States arrogated ‘to itself the right to commit acts of aggression against a small independent country, thousands of kilometres from the coast of the attacking power’.74

III.  Questions of Legality

Article 51 of the UN Charter provides that: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. It flows from this part of the first sentence of Article 51 that it is not only an act of aggression as defined in General Assembly Resolution 3314 (XXIX) that justifies the recourse to self-defence, but also an armed attack. Hence, it is not sufficient to claim self-defence to take legal military action under international law.

Indeed, the recourse to Article 51 is subject to specific conditions. In light of the provisions of this article, some of the allegations of the United States in support of its military action against Libya are questionable. According to the letter of the US Government to the Security Council, there are four grounds for the recourse to the right to self-defence provided by Article 51: (i) repetitive attacks committed by Libya; (ii) the attacks targeted American citizens; (iii) the attacks also targeted Libyan political opponents and democratic values and institutions; (iv) the need to carry out the fight against international terrorism. We will examine each of these allegations in turn.

First, the United States alleged that the recourse to the inherent right of individual self-defence was justified in view of ‘an ongoing pattern of attacks by the government of Libya’. It is generally considered by commentators that the expression ‘armed attack’ has a narrower meaning than the expression ‘threat or use of force’ in the sense of Article 2(4) of (p. 420) the Charter, or the term ‘aggression’ as defined in Resolution 3314. Not every use of force amounts to an armed attack. As can be derived from the ICJ’s jurisprudence and the work of several commentators, an armed attack exists only when force is used on a relatively large scale, is of sufficient gravity, and has a substantial effect.75 The assessment of whether one is in presence of a use of force widely speaking, that is, accumulation of small-scale attacks, or an attack with certain gravity cannot be made in abstracto. As is shown by the jurisprudence of the ICJ, what is often decisive for the determination of a situation is ‘the ascertainment of the specific factual circumstances of each alleged instance of an exercise of the right of self-defense, and the corresponding attribution of the burden of proof’.76 According to some,77 the accumulation of several small attacks, each which on their own does not necessarily reach the gravity threshold, can under certain circumstances trigger the right of self-defence as provided by Article 51. However, such a position does not stem clearly from the ICJ’s jurisprudence. On the contrary, the Oil Platforms judgment suggests that ‘a mere addition of several small-scale attacks alone does not easily translate into one sufficient large-scale cumulative attack which would give rise to the right of self-defense’.78 In the light of this consideration, invoking the right of self-defence, as the United States did to legitimize the 1986 attacks on Libya, to defeat ‘an ongoing pattern of attacks by the government of Libya’, to cite the US Government, was not within the framework of the relevant rules of international law in 1986, nor even within today’s framework. Despite the openness to the idea that cumulative small-scale attacks might legitimize recourse to self-defence pursuant to Article 51, the manifest dangers of circumventing the criteria of gravity and immediacy, which pave the way to self-defence, remain in this regard. Consequently, one should be very cautious in considering the hypothesis of cumulative small-scale attacks as a possible criterion for the use of force under Article 51 of the Charter.

From a purely legal perspective, such ‘an ongoing pattern of attacks’ by a government could be considered as ‘a situation which might lead to international friction or give rise to a dispute’, in the sense of Article 34 of the UN Charter. It therefore should have been reported to the Security Council, in accordance with Article 35 of the UN Charter, for it to decide what measures should be taken in accordance with Articles 41 and 42.

Second, in its letter to the Security Council the US Government said, inter alia, that: ‘Over a considerable period of time Libya has openly targeted American citizens and US installations.’ The American citizens allegedly targeted were attacked abroad in different countries and not necessary in the United States. Therefore, irrespective of their (p. 421) scope, the alleged attacks against American nationals did not occur on US territory. Some commentators have attempted to sustain that the use of force by a state against foreign nationals is an armed attack against the latter’s home state,79 on the grounds that nationals form part of a state’s population and are consequently one of its essential constituent elements. Such a position appears interesting from a theoretical point of view, but it is rejected by most scholars ‘on the grounds that the security or existence of a State is not under threat if its nationals are assaulted in another country’.80 Diplomatic missions and individual citizens are not considered by most states to be ‘external positions’ of a state against which an attack could be considered as an armed attack against the latter.81 As has been rightly stated, ‘[s]uch an extensive interpretation of “armed attack” would result in the blurring of any contours of the right of self-defense’.82

It must be recalled that in the Oil Platforms case, the ICJ distinguished between people and vessels representing a state on the one hand, and thus acting in a public capacity, and vessels and people acting in a private capacity on the other hand. The Court asserted that ‘the Texaco Caribbean, whatever its ownership, was not flying a United States flag, so that an attack on the vessel is not in itself to be equated with an attack on that State’.83 Further, in the case of a single incident, it must specifically be targeted against a state or group of states to be considered as establishing a pattern. In that respect, the Court said in the case mentioned above:

There is no evidence that the mine laying alleged to have been carried out by the Iran Air, at a time when Iran was at war with Iraq, was aimed specifically at the United States; and similarly it has not been established that the mine struck by Bridgeton was laid with the specific intention of harming that ship, or other United States vessels … Even taken cumulatively, and reserving, as already noted, the question of Iranian responsibility, these incidents do seem to the Court to constitute an armed attack on the United States, of the kind that the Court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a ‘most grave’ form of the use of force …84

It is to be recalled that the 1986 bomb attack took place in a club in Berlin, Germany, thus not on US soil. Further, most victims were not American citizens and people attend a nightclub in a private capacity and not in an official capacity representing a state. The United States did not contest any of these elements. In the same way as mining a ship, ‘which was not flying a US flag is not in itself an attack on the US’, an attack against individuals, including US citizens, in a club cannot in itself be regarded as an attack against the United States. For this reason, an attack against soldiers in a discotheque should not in itself be equated with an attack on a state. Thus, the US Government could not claim that the 1986 bomb attack was aimed specifically at the United States. One could assume that the United States knew such an argument could not be legally successful since it claimed (p. 422) that the Libyan bomb attack in the club was specifically aimed at all freedom-loving states, including the United States and Germany.

Third, according to the United States, the Libyan leader, Muammar Gaddafi:

has reneged on international agreements and has blatantly used violence against political opponents. In sum, he has made terrorism an integral part of his foreign policy. Libyan attacks are not simply the random use of violence, but concerted violence directed against the values, the interests and the democratic institutions of all freedom-loving states. They are a clear assault on international order; an assault on the Charter of the United Nations and the principles which we as members of the Council are pledged to defend. Let us not shrink from this challenge.85

The alleged ‘violence directed against the values, the interests and the democratic institutions of all freedom-loving states’ falls neither within the definition of an armed attack in the sense of the UN Charter, nor under the definition of an act of aggression as contained in the Resolution 3314. In making such a claim, the United States attempted to create the fiction of being specially targeted. If admitted, such reasoning would dilute the requirement of being specifically targeted as one of the main criteria for the application of Article 51 of the Charter. Moreover, it is almost impossible to define exactly which states are the freedom-loving ones, leaving room for ambiguous or opportunistic interpretations and thus, abuse of the concept of self-defence.

From a purely factual stand point, assuming that such values and interests are identifiable, not all states share such values, and therefore they cannot be considered as common values and interests of the international community as a whole.86 In this particular case, values and ideologies are very dividing issues: authoritarian regimes might recognize themselves in the democratic values put forword by the United States. Likewise, there are different ideologies in the world, and no state will consider using legally armed force against another state for the mere fact that it has a different ideology. An ideology in itself cannot give ground for the use of force compatible with the Charter. Even in the hypothesis where a particular ideology would lead, for instance, to racism or apartheid, genocide or ethnic cleansing, it is not ideology, as such, which would be combatted by the use of force but its consequences. It would be undoubtedly contrary to the principle of freedom of choice by every people of its political regime—as recognized under international law—to allow the recourse to the use of force against a state for its claimed ideology, whether on the basis of Article 51 or even of the responsibility to protect (R2P). A different type of sanction might be used in that case. Furthermore, the right of self-defence in Article 51 of the UN Charter explicitly requires ‘an armed attack … against a Member of the United Nations’. However, only states can be members of the UN, unlike values, interests, and democratic institutions. Accordingly, Article 51 cannot be invoked in respect of attacks against values or interests. Assuming that peace and security (Article 1(1) of the UN Charter) are values, they can justify the use of force, but only under the conditions laid down in Chapter VII of the UN Charter.

For the purpose of a complete consideration of the law of the use of force in the light of the Libyan conduct in the international scene in the 1980s, let us have a look at some (p. 423) events involving Libya after the 1986 US attack. In this, the ‘ongoing pattern of attacks’ would have been acceptable after the alleged Libyan terrorist attacks on UTA aircraft and Pan Am aircraft, which resulted in hundreds of deaths.

The first attack, in 1988, was the bombing of the US Pan Am airline which crashed in Lockerbie in the United Kingdom, killing 270 people (all 243 passengers and sixteen crew members, and eleven Lockerbie residents), among them 189 American citizens and forty-three British citizens.87 The Lockerbie judgment stated, inter alia, that: ‘The clear inference which was drawn from [the] evidence is that the conception, planning and execution of the plot which led to the planting of the explosive device was of Libyan origin.’ Thus, there was no doubt in the minds of the judges ‘about the Libyan origin of the crime’.88 Until 2003, Libya had never formally admitted to having carried out the 1988 Lockerbie bombing; but on 16 August 2003, it formally acknowledged its responsibility—although claiming not guilty—in a letter presented to the president of the UN Security Council. The motive of the Libyan bombing of the Pan Am Flight 103 was allegedly a reaction in the framework of a series of military confrontations with the US navy that took place in the 1980s in the Gulf of Sidra, especially the 1981 incident when the US navy F-14 Tomcat fighters shot down two Libyan fighter aircrafts.89

The second attack, in 1989, was the bombing of the French UTA aircraft, which crashed in Niger, causing the death of 170 people (all 156 passengers and fourteen crew members) from eighteen different countries.90 According to the judgment of the Cour d’assises of Paris, six high-ranking Libyan officials involved in the planning and execution of the attack were sentenced, in abstentia, as being responsible for destruction and degradation of movable and immovable objects or properties by means of explosive substance, causing the death of seventy people.91 This Libyan action was allegedly carried out in response to France’s support to Chad against the tentative annexation of the Chadian Azouzou strip by Libya.

Nevertheless, as can be seen, both deadly incidents occurred after the 1986 US attack on Libya: the Pan Am Flight 103 bombing took place on 21 December 1988, and the UTA Flight 772 bombing was on 19 September 1989. Therefore, although the gravity of these acts is indisputable and makes them attacks against members of the UN, in the sense of the UN Charter, they could not have justified retrospectively a US self-defence against Libya in 1986.

As a result of the above considerations, and from a purely legal perspective grounded on the current state of international law of the use of force, the alleged ‘ongoing pattern of attacks’ committed by the Libyan regime reported in the US letter to the Security Council was irrelevant. For this reason, and the one derived from the ungrounded violence directed against the values and interests of the freedom-loving states, the third ground to attack Libya in 1986 was a completely unacceptable derogation of the prohibition of the use (p. 424) of force in international relations. To conduct an armed attack against a country on such basis had no grounds in international law.

IV.  Conclusion: Precedential Value

Clearly, the majority of states that took the floor during the General Assembly debate met the US military attack on Libya with disapproval; very few states expressed their support. In this regard, it cannot be seen as a precedent for the use of self-defence. It was clearly perceived as an unlawful armed attack, and some states even qualified it as an aggression.

More so, a careful analysis of the applicable law of self-defence as developed by the ICJ on the basis of the Charter and exposed by commentators of the latter reach the same conclusions: the grounds for the armed attack invoked by the United States fall outside the scope of the legal framework for self-defence as it was in the 1980s and as it is still today.

Only the fight against international terrorism might to some extent render an armed attack lawful under the current state of international law. Indeed, terrorism appears today to have become a ground for the use of force in international relations. Indeed, after the deadly 9/11 terrorist attack in New York, the UN Security Council adopted the landmark Resolution 1373 (2001) of 28 September 2001,92 aimed at combating the sponsorship of terrorism.93 The preamble of the resolution reaffirms ‘the inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368’ and ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’.94 In substance, the resolution opens the door to the use of force against terrorism, whether in the home state or abroad.95 The question whether self-defence can be used to fight terrorism has arisen since then, and is now put forward since the advent of the so-called Islamic State (ISIS). This question has been cause for controversy amongst scholars. According to some, self-defence in such a case is not allowed under Article 51 of the UN Charter, and therefore, the invocation of self-defence in the fight against ISIS is unlawful.96 On the contrary, some are of the view that invoking self-defence against terrorism, and particularly Al Qaeda and ISIS, either supported by governments in the first case or committed on territory it controls in the second case, is lawful as it is sustained by a well-established international practice. In this regard, it is considered that the existing rules of international law on the use of force, in particular regarding Security Council authorization and self-defence, properly understood, are adequate to address current threats and do not contain significant shortcomings, and that whilst by no means perfect, the existing rules ‘are preferable to any alternative rules that could be agreed’.97 This seems to be an abrupt conclusion in the light of the current state of the law on the use of force. It is true (p. 425) that Resolution 1373 (2001) might be looked at as giving legal grounds to an extension of the application of Article 51 of the Charter, although it was designed for the relationship between states, at a time when no one could anticipate that terrorism would become the major threat to peace and international security. Indeed, the Resolution ‘[d]eclares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations’; and decides also that all states shall ‘[t]ake the necessary steps to prevent the commission of terrorist acts’. One might consider, therefore, that the Resolution admits implicitly that states can take all appropriate measures in conformity with relevant provisions of international law to prevent or to fight terrorism. Assuming that this interpretation is correct, this would mean that the Security Council Resolution 1373 (2001) has amended the Charter. This then gives rise to the question whether the Security Council has the power to modify the UN Charter. In the light of Article 109 of the UN Charter, the answer to such a question is clearly negative. Moreover, another important question is whether the abovementioned Resolution could be considered as an authorization to use of force by the Security Council. One can hardly give a positive answer to this question since the Security Council cannot give such authorization before an event that triggers the use of force has occurred. The legal debates on this issue are therefore ongoing.

In any case, to apply the above reasoning to the US attack on Libya would clearly be anachronistic since in 1986, the year of that attack, Security Council Resolution 1373 (2001) had not yet been adopted. In other words, considering the US attack on Libya in 1986 in light of the grounds invoked by the United States in its letter to the Security Council and in light of the relevant rules of international law on the use of force at that time, and not from an evolutive or intertemporal perspective, one cannot but conclude that the use of force in that particular case could not be convincingly grounded on Article 51 of the UN Charter.

Footnotes:

1  Marian Nash Leich, ‘Contemporary Practice of the United States Relating to International Law’ (1986) 80(3) American Journal of International Law 632; Charles Rousseau, ‘Chronique des faits internationaux’ (1986) Revue générale de droit international public 982, 983; see also Bailey Thomas, David Kennedy, and Lizabeth Cohen, The American Pageant (Elevent 1998) 1000.

2  See Hilsum Lindsey, Sandstorm: Libya in the Time of Revolution (Faber and Faber 2012).

3  See ‘1986 Berlin Discotheque Bombing’ <https://en.wikipedia.org/wiki/1986_Berlin_discotheque-bombing>.

4  Letter dated 86/04/14 from the Acting Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council (14 April 1986) UN Doc S/17990.

5  Letter dated 86/04/15 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council (15 April 1985) UN Doc S/17991.

6  UNSC Verbatim Record (12 April 1986) UN Doc S/PV.2672.

7  UNSC Verbatim Record (14 April 1986) UN Doc S/PV.2673.

8  ibid 5.

9  UN Doc S/PV.2673 (n 7).

10  ibid 7.

11  ibid.

12  ibid 12–13.

13  ibid 12.

14  ibid 13.

15  ibid 17.

16  ibid.

17  ibid 18.

18  UNSC Verbatim Record (15 April 1986) UN Doc S/PV.2674, 4.

19  ibid.

20  ibid 6.

21  See Letters from the representatives of Algeria, Burkina Faso, Cuba, Democratic Yemen, the German Democratic Republic, the Libyan Arab Jamahitiya, Mongolia, Oman, Poland, and the Syrian Arab Republic referred to in UN Doc S/PV.2674 (n 18), 2 (President); and Ukrainian Soviet Socialist Republic, Bielorussian Soviet Republic, India, Qatar, Yugoslavia, Arab League in UNSC Verbatim Record (15 April 1986) UN Doc S/PV.2675, 2.

22  UN Doc S/PV.2675 (n 21) 12.

23  ibid 27–28.

24  ibid.

25  ibid 30.

26  ibid 35. See also ibid 39–40 (Cuba) which used a very strong language, but, surprisingly, not the term ‘aggression’.

27  ibid 42.

28  ibid 51.

29  ibid 53.

30  This is the case of Czechoslovakia, Hungary, Pakistan, Saudi Arabia, and Vietnam in UNSC Verbatim Record (16 April 1986) UN Doc S/PV.2676, 3.

31  ibid 4.

32  ibid 7–8. See also ibid 12 (Ukraine) referring to ‘act of aggression against Libya’; UNSC Verbatim Record (16 April 1986) UN Doc S/PV.2676, 23 (German Democratic Republic): ‘armed aggression by the main imperialist Power against the Socialist People’s Arab Jamahiriya’; UNSC Verbatim Record (17 April 1986) UN Doc S/PV.2677, 34 (Vietnam): ‘It is an open act of aggression against Libya’; ibid 27 (Poland): ‘American actions cannot be described as anything but an act of aggression against a sovereign Arab State’; ibid 23 (Mongolia): ‘large-scale act of aggression against non-aligned Libya’; ibid 40–41 (Burkina Faso): ‘open act of aggression’, ‘unprovoked acts of aggression’; ibid 42 (Saudi Arabia): ‘aggression against an independent nation’; UNSC Verbatim Record (17 April 1986) UN Doc S/PV.2678, 4–5 (Afghanistan): ‘American aggression against Libya’; ibid 8 (Laos): ‘barbarous aggression committed by the American imperialist against the Libyan Arab Jamahiriya’; ibid 12 (Czechoslovakia): ‘The act of aggression conducted by the United States against Libya’; ibid 21 (Iran): ‘This act of aggression is itself a kind of State terrorism’; ibid 26 (Sudan) stating that a major power has committed ‘an act of aggression’; ibid 35 (Arab League): ‘an episode that many of my colleagues in the Arab world and the Non-Aligned world have describe as an act of aggression against Libya’; UNSC Verbatim Record (18 April 1986) UN Doc S/PV.2680, 6 (Belarus): ‘one more act of aggression carried out by the American militarists’; ibid 47 (Nicaragua): ‘a war of aggression’; ibid 41 (PLO): ‘This is an act of aggression against the whole Arab nation’. For a mere condemnation of the US military attack, or disagreement with the US argument of self-defence, but without a reference to ‘an act of aggression’, see for instance UN Doc S/PV.2677 (n 32) 31–33 (Hungary), 16–22 (Madagascar), 15–20 (Benin); UNSC Verbatim Record (17 April 1986) UN Doc S/PV.2679, 9–13 (Bangladesh).

33  UN Doc S/PV.2677 (n 32) 3.

34  ibid 4.

35  UN Doc S/PV.2680 (n 32) 26.

36  Letter dated 86/04/16 from the Chargé d’affaires a.i. of the Permanent Mission of Ghana to the United Nations addressed to the President of the Security Council UN Doc S/18003.

37  UN Doc S/PV.2680 (n 32) 31.

38  UN Doc S/PV.2676, 18.

39  UN Doc S/PV.2679, 18.

40  ibid 19–20.

41  ibid 19–20 and 23.

42  ibid 27.

43  See for instance: UNSC Verbatim Record (11 April 1986) UN Doc S/PV.2079, 6 (Venezuela).

44  See Nash Leich (n 1).

45  UNGA Res 41/38 (20 November 1986) UN Doc A/RES/41/38.

46  Both statements from UNGA Res 41/38, ibid.

47  ibid.

48  ibid.

49  In this declaration, the OAU ‘strongly condemn[ed]’ an ‘act of aggression’ (A/HG/Decl1 (XXII), 28–30 July 1986). However, Cameroon, Chad, Egypt, Côte d’Ivoire, Central African Republic, and Tunisia made reservations, and Zaire abstained.

50  In this declaration, the NAM denounced ‘the United States aggression’ against Libya, ‘with the support and the collaboration of the United Kingdom’ as a ‘violation of international law and the Charter of the United Nations’ (Letter dated 86/09/30 from the Permanent Representative of Zimbabwe to the United Nations addressed to the Secretary-General (14 October 1986) UN Docs A/41/697 and S/18392, 99–100).

51  See also Organization of Islamic Conference Res 21/5 ‘on the American aggression against the Jamahiriya’ (Fifth Islamic Summit Conference 26–29 January 1987); Res 38/9 ‘on the right of the Great Socialist Peoples Libyan Arab Jamahiriya to receive reparations for losses resulting from US aggression in 1986’, 12–13 November 2000, available at <http://www.oic-oci.org>.

52  UNGA Res 41/38 (20 November 1986) UN Doc A/RES/41/38, [1]–[5]. The resolution was adopted with 79 votes in favour, 28 against, with 33 abstentions.

53  Letter from the US to the Security Council (14 April 1986) UN Doc S/17990.

54  Nash Leich (n 1).

55  Statement of 15 April 1986, cited in George Marston, ‘United Kingdom materials on International Law 1986’ (1986) British Year Book of International Law 637.

56  ibid 640.

57  ibid 642 (Position of the House of Lords).

58  UNGA Verbatim Record (22 November 1986) UN Doc A/41/PV.78, 39–40 (Israel).

59  ibid 31 (Chad).

60  Statement of 30 April 1986, quoted in Jean Salmon and Rusen Ergec, ‘La pratique du pouvoir exécutif et le contrôle des chambres législatives en matière de droit international (1984-1986)’ (1987) Revue belge de droit international 313, 472.

61  UNGA Verbatim Record (22 November 1986) UN Doc A/41/PV.78, 72 (Spain).

62  ibid 72–73 (Chile).

63  ibid 67 (Turkey).

64  ibid 64–65 (New Zealand).

65  ibid 63 (China).

66  ibid 17 (USSR).

67  ibid 18 (USSR).

68  ibid 12 (Bulgaria).

69  ibid 71 (Sweden).

70  ibid 2 and 6 (Uganda).

71  ibid 66 (Peru).

72  ibid 54–55 (League of Arab States).

73  ibid 43–45 (Afghanistan).

74  ibid 23 (DR of Laos).

75  Jurisprudence, see: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgment, Merits) [1986] ICJ Rep 1986 [191]; Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003] ICJ Rep 2003 [51], [64], and [72]. Writings see: Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2012) 207–09; James Green, The International Court of Justice and Self-Defence in International Law (Hart 2009) 31; Olivier Corten, The Law Against War: The Prohibition of the Use of Force in Contemporary International Law (Hart 2010) 403; Maurice Kamto, L’agression en droit international (Pedone 2010).

76  Andreas Zimmermann, ‘Article 51’ in Bruno Simma, Daniel-Erasmus Khan, George Nolte, and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) 1408.

77  Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (CUP 2010) 169; Christopher Greenwood, ‘Self-Defence’ (2011) Max Planck Encyclopedia of Public International Law [13]; Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (OUP 1963) 201.

78  Zimmermann (n 76) 1409. Nonetheless, during the Vietnam war, the United States considered the progressive infiltration of armed forces of a state in the territory of another state as an aggression and constantly justified on this ground the individual self-defence of South Vietnam and the collective self-defence involving the United States. The idea of ‘indirect aggression’, based on encouragement or tolerance of subversive or terrorist activities, has also been suggested (see Antonio Cassese, ‘Article 5’ in Jean-Pierre Cot, Alain Pellet, and Mathias Forteau, La Charte des Nations Unies. Commentaire article par article (LGDJ 2005) 1328, 1343).

79  See Oscar Schachter, ‘The Right of States to Use Armed Force’ (1984) 82 Michigan Law Review 1620, 1632; Dinstein (n 75) 217–19; Thomas Franck, Recourse to Force (CUP 2002) 96; Louise Doswald-Beck, ‘The Legality of the United States Intervention in Grenada’ (1984) 31 Netherlands International Law Review 355, 361.

80  See Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Nijhoff 1985) 11; Louis Henkin, How Nations Behave (2nd edn, Columbia University Press 1979) 145; Zimmermann (n 76) 1413.

81  See Tracisio Grazzini, The Changing Rules on the Use of Force in International Law (Juris Publishing 2005) 171; see also Corten (n 75) 510, who has a rather nuanced position and does not reject that theory as such. He writes: ‘We shall not delve further into this debate at this point; suffice it to say that as a matter of principle there is nothing to rule out characterising the armed attack on part of a population of a State as an aggression’; Ruys (n 77) 215 and 239–43.

82  Zimmermann (n 76) 1413.

83  Oil Platforms (n 75) [64].

84  ibid.

85  US position in the Security Council cited in Nash Leich (n 1) 636.

86  Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de droit international 217, 233 offers a definition of community interest, namely: ‘a consensus according to which respect for certain fundamental values is not to be left to the free disposition of states individually or inter se but is recognized and sanctioned by international law as a matter of concern to all states’.

87  See, eg, David Johnson, Lockerbie, The Real Story (Bloomsbury 1989); Matthew Cox and Tom Forster, Their Darkest Day: The Tragedy of Pan Am 103 (Grove 1992).

88  High Court of Justiciary at Camp Zeist, Case n° 1475/99 Opinion of the Court [82]. <https://www.scotcourts.gov.uk/docs/default-source/sc---lockerbie/lockerbiejudgement.pdf?sfvrsn=2> accessed 14 May 2017. See also ibid [90]: ‘The verdicts returned were by a unanimous decision of the three judges of the Court’.

89  See Ronald Reagan ‘Gulf of Sidra Incident’ (1986) US Department of State Bulletin.

90  See Pierre Péan, Manipulations africaines: Qui sont les vrais coupables de l’attentat du vol UTA 772? (Plon 2001); see also ‘Les preuves trafiquées du terrorisme libyen’, Le Monde diplomatique (March 2001) <https://www.monde-diplomatique.fr/2001/03/PEAN/617> 8–9.

91  Cour d’assises de Paris, Judgment of 10 mars 1999. See also Cour d’appel of Paris, Judgement of 16 January 2009; and Cour de cassion, Judgment n° 247 of 9 March 2011 (09-14.743) (Première chamber civile) <https://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/247_9_19167.html>.

92  UNSC Resolution 1373 (28 September 2001) S/RES/1373.

93  ibid. The resolution decides, ie that all States shall ‘[t]ake the necessary steps to prevent the commission of terrorist acts’. It is rather ironic to notice that Saudi Arabia, who approved the US military attack on Libya and voted for the 1373 resolution considers today the US Justice Against Sponsors of Terrorism Act (JASTA), passed in September 2016—which allows 9/11 lawsuits—a cause of ‘great concern to the community of nations that object to erosion of the principle of sovereign immunity which has governed international relations for hundred of years’ quoted in International New York Times (1–2 October 2016), 7.

94  S/RES/1373 (2001) (n 92) Emphasis added.

95  See for instance Antonio Cassese (n 78) 1333, 1350–52.

96  See for instance: Patrick Terry, ‘Germany Joins the Campaign against ISIS in Syria: A Case of Collective Self-Defence or Rather the Unlawful Use of Force?’ (2016) 26(4) Russian Law Journal.

97  Michael Wood, ‘The Law of the Use of Force: Current Challenges’ (2007) 11 Singapore Yearbook of International Law 1, 13.