Sisi’s assertive upshift was patently a response to Turkey’s strong support for the GNA and its game-changing impact on the ground. The 14-month assault on Tripoli by forces loyal to General Khalifa Haftar, which are backed by Egypt, had been reversed. Sisi’s mention of “terrorist militias and mercenaries” was an apparent reference to the armed groups loyal to the GNA which had received assistance from Turkey.
The GNA immediately condemned Sisi’s remarks as an infringement of Libyan sovereignty, a clear intervention in Libya’s internal affairs, and an expression of support for putschists against the legitimate government. The GNA went so far as to dub the Egyptian president’s threat of military intervention a “declaration of war.”
These events inevitably raise the question of whether, if Egypt really carries out its threat and launches a military intervention in Libya, its action can be justified on any legal grounds.
Legal Basis of a Possible Military Intervention
As stated in Article 2 (4) of the UN Charter, it is one of the most essential norms of international law that all states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any other state. On this basis, any arbitrary military intervention by Egypt in Libya would constitute a violation of international law. However, there are two issues that Egypt might raise in order to overcome the charge of unlawfulness:
1) Egypt might assert that the legitimate government of Libya is not the GNA but the rival administration based in Tobruk, to which the forces loyal to General Haftar are linked. If this were the case, then an intervention in Libya carried out by the Egyptian armed forces upon the invitation of the Tobruk administration would be legitimate.
2) Egypt might also assert that its security and peace are under immense threat because of the military advance of the ‘terrorists and mercenaries’ towards the Egypt-Libya border, and that because the Libyan authorities do not or cannot stop the military activities of these groups, Egypt will be compelled to defend its security and peace by its own means. This approach would be tantamount to a resort to the controversial ‘unable and unwilling’ doctrine in international law, which has frequently been endorsed by regional actors including Turkey and Israel when conducting cross-border military activities against armed non-state actors.
De Jure Government
The government of a country may change hands in constitutional or unconstitutional ways but “the state” remains constant. In international law, this is called the doctrine of continuity of states. In such situations, states and other international legal persons (ILPs) are legally free to recognize either of the rival governments, because the recognition of governments in international law is largely seen as a purely unilateral and political decision of ILPs. In practice what usually matters most is whether the government(s) possess effective control over a considerable portion of the country’s territory.
It is not always easy to determine which of the rival governments is the de jure government. This requires a factual examination on a case-by-case basis. However, it would not be inaccurate to argue that one of the main qualifications of a de jure government is the enjoyment of broad recognition within the international community. The GNA fulfils this criterion beyond any doubt since it is the UN-backed and recognized government of Libya.
The GNA was established in 2015 upon the Libyan Political Agreement of Skhirat in order to reconcile the warring factions in the country. This was due to the efforts of the United Nations Support Mission in Libya (UNSMIL) and the Special Representative of the UN Secretary-General to Libya. Subsequently, the UN Security Council unanimously recognized the GNA as the sole legitimate government and executive authority of Libya through Resolution No. 2259 of December 23rd, 2015.
The GNA’s sole and effective oversight over the National Oil Company, the Central Bank of Libya, and the Libyan Investment Authority was clearly emphasized in that Resolution. The Security Council also requested all UN member states to engage constructively with the GNA, as the legitimate Libyan authority, in order to develop a coordinated package of support to build its capacity. The Council also called upon member states “to cease support to and official contact with parallel institutions that claim to be the legitimate authority.”
Even though Article 51 of the United Nations (UN) Charter, which is the main legal basis for the right of self-defence in international law, does not specify who can be considered the perpetrator of international armed attacks, it has traditionally been accepted in international law that a state’s right of self-defence can be triggered only by armed attacks from other states. The International Court of Justice (ICJ) has adopted this approach in some prominent cases such as the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), the Armed Activities in the Territory of the Congo (DR of Congo v. Uganda) and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
However, in the face of the rising power and proliferation of armed non-state actors (NSAs) in recent decades, an alternative approach has rapidly gained recognition among a significant number of states: the ‘unable and unwilling’ doctrine. According to this doctrine, when a state is unable or unwilling to prevent its territory from being used by armed NSAs as a base for the launch of attacks on other states, the victim state is permitted to use its right of self-defence so long as the other requirements for self-defence are met. The UN Security Council Resolutions Nos.
1368 and 1373 concerning the US military intervention in Afghanistan are considered to have facilitated this shift in the general approach to self-defence in international law. In recent years, the ‘unable and unwilling’ doctrine has been adopted by several states in their battles against armed NSAs including Daesh.
While the increasing recognition of the ‘unable and unwilling’ doctrine appears to be broadening the scope of application of the principle of self-defence in international law, the requirements for the invocation of self-defence that existed in customary international law are still in place. These comprise the threshold of gravity of an armed attack in scale and effect, the imminence of the threat, and the promptness and proportionality of the response.
Therefore, in order for any possible military intervention by Egypt in Libya to be justified, not only must the prerequisites of the ‘unable and unwilling doctrine’ be met, but the intervention must also conform to these necessary conditions of international customary law. In other words, even when a state adopts the ‘unable and unwilling’ doctrine, it must still abide by certain limitations, and must use the doctrine for defensive rather than punitive purposes.
Currently, the necessary conditions do not exist for Egypt to invoke the ‘unable and unwilling’ doctrine. To our knowledge, the armed groups that the Egyptian authorities are labelling ‘terrorists and mercenaries’ are actually integral parts of the GNA’s armed forces and are operating under its command. These groups are not NSAs independently carrying out assaults; on the contrary, they must be considered the legitimate military forces of Libya, since they are associated with the GNA. There is not the shadow of a doubt that the GNA, as the sole legitimate executive authority of Libya, has its sovereign right to structure its armed forces as it sees fit.
The term ‘terrorist’ is often used by governments arbitrarily in order to incriminate their political foes. They are free to do so within the framework of their domestic laws. From the perspective of international law, however, a group may only be deemed a terrorist organization if it is designated as such by the UN Security Council. As long as it is not proven that the GNA collaborates with or recruits groups designated terrorists in this way, there is no legal basis for Egypt’s use of the term.
Similarly, the term ‘mercenary’ is attractive for blame games because of its negative historical connotations. It is true that the use of mercenaries is banned by a cluster of global and regional conventions, primarily the International Convention against the Recruitment, Use, Financing and Training of Mercenaries and the Convention for the Elimination of Mercenarism in Africa. However, Article 1 (d) of the former and Article 1 (e) of the latter clearly stipulate that anybody who is a member of the armed forces of a party to a conflict is not to be regarded as a mercenary.
Therefore, as long as the armed groups fighting on the GNA’s side are somehow recruited as an integral part of the GNA’s armed forces, they will not be within the scope of the ban in question.
Most importantly, no kind of armed attack has yet been launched by the GNA on Egyptian soil or against the Egyptian armed forces, nor has there been any signal that such an attack might be imminent. Reports about attacks on Egyptian citizens conducted by militias from a Daesh-related group are not attributable to the forces of the GNA. This means that any possible Egyptian military intervention in Libya would not fulfil even the most fundamental requirement of self-defence.
It may cross the Egyptian decision-makers’ minds to adopt the doctrine of pre-emptive self-defence to justify a possible military intervention in Libya. However, it has to be emphasized that this doctrine is not endorsed by most mainstream international lawyers and that such a justification would also rest on very shaky ground.
Deniz Baran is a member of faculty of the Istanbul University International Law Department and international law specialist at Al Sharq Forum. He is also a lawyer registered with the Istanbul Bar Association. He was previously coordinator of the International Law Research Centre (UHAM) affiliated to Fatih Sultan Mehmet University. He graduated from Istanbul University with a degree in law. He received his master’s degree and is currently studying for a PhD in public international law at the same university. He has a keen interest in the media and has written articles about legal matters for various media outlets including Al Jazeera, Middle East Eye, Anadolu Agency and Perspektif Online.