Luisa Vierucci

THE NO-FLY ZONE OVER LIBYA: ENFORCEMENT ISSUES

This article addresses the question of the lawfulness under international law of the use of force to implement the part of the UN Security Council Resolution 1973 (2011) establishing a no-fly zone (NFZ) over Libya. This question, so far neglected by the doctrine, raises thorny legal issues as the legal contours of a NFZ are not settled. According to available information, it will be demonstrated that the intervention of the States acting individually or within NATO to enforce the NFZ over Libya comes under scrutiny mainly in relation to the lawfulness of the use of force with respect to air-to-ground attacks, as it is dubious that a NFZ allows strikes against ground targets. In the article it is argued that, even admitting that such strikes are permitted, the relevant legal criteria that emerge from the combination of the jus in bello and jus ad bellum rules have to be respected. In particular, according to the interplay between these two branches of the law, only those objects (including aircraft) being used, or intended to be used to attack or threaten civilians could be lawfully targeted.

Introduction: A Normative or Pragmatic Definition of NGOs?

It is today beyond doubt that Non-Governmental Organizations (NGOs) play a prominent role in international law-relevant fields, from treaty making to rule implementation; from support to courts to aid delivery. However, the increasingly active stance of these organizations on the international plane still raises questions concerning their position under international law, which is the subject of a continuing debate amongst legal scholars. In the last decade this debate has focused especially on the question whether NGOs have international legal personality. In legal doctrine an entity with international legal personality is usually described as an entity endowed with legal rights and/or obligations and legal capacities directly conferred on it under international law. Sometimes the legal capacities are specified as including procedural capacity and/or treaty-making capacity. While states clearly enjoy all aspects of international legal personality, this is not necessarily the case for other entities. For instance whereas International Governmental Organizations (IGOs) usually have treaty-making capacities, they cannot invoke the contentious jurisdiction of the International Court of Justice (ICJ) or of regional human rights courts. Legal scholars have not reached a consensus on the question whether NGOs also enjoy (some components of) international legal personality. Moreover some authors have examined the legal status of NGOs, rather than their legal personality. The term ‘legal status’ has been efficaciously defined as ‘a broad concept, which embraces all kinds of provisions and practices which explicitly take account of NGOs or which can be used by these organizations for acting in the international legal context, irrespective of which field of international law the material belongs to’.1 The content of this status may vary according to the circumstances and needs to be specified for each particular entity.

Implementation of the Duty of Care by NATO

The very nature of the North Atlantic Treaty Organization (NATO), namely a military alliance of a defensive character, points to the relevance that the duty of care may have for the organization, as it implies the prospect for deployment abroad and in a dangerous environment for personnel either directly hired by the organization or having some other working link with it. Civilians having a working relationship with NATO are not only those recruited to run the Headquarters or to support Council approved operations or missions but also consultants, temporary staff, staff seconded from a member State and members of the civilian component of a NATO force deployed in the field. This chapter will analyse the extent to which NATO implements its duty of care when these categories of civilians perform functions outside the Headquarters. In addition, the paper attempts to address the degree of applicability of NATO duty of care obligations to non-staff members, namely contractors and locally employed personnel.

Sul principio di proporzionalità a Gaza, ovvero quando il fine non giustifica i mezzi

On the Principle of Proportionality in Gaza, or When the End Justifies the Means - The Operation Cast Lead launched by Israel in the Gaza Strip on December 27, 2008 has attracted strong condemnation by the international community for its disproportionate character. While there is no doubt that the conduct of the conflict by Hamas was in breach of the principle of proportionality, the evaluation of the military operations carried out by Israel in light of that principle is more complex. As we have attempted to show, the assessment of proportionality in contexts similar to those of the Gaza Strip has to be conducted both in a ius ad bellum and ius in bello perspective, the two approaches being so interconnected as to make the violation of the in bello proportionality foreseeable. However, this prima facie finding has to be tested against the assessment of proportionality conducted for each relevant incident - an exercise that can be made only when all relevant information is available.