2. The use of force by the permanent members of the UNSC

Under international law it is possible for a State to use force against another State when authorization has been given by the UNSC under Chapter VII of the UN charter, or in self-defense against an armed attack. However, it is worth noting that under article 51 of the UN Charter it is expressly permitted to resort to “collective self-defense”. We will examine more closely the justifications offered in cases such as Libya, Kosovo and Mali which involved the military intervention of some permanent members of the UNSC.

3. Lybia

In 2015 the fear that the terrorist organization might take control of Libya led to the concern of the international community and to the expansion of the military intervention against ISIL from Iraq and Syria to Libya. According to international law the intervention is legal if it does not violate self-determination. The intervention by invitation theory shall be coupled with the complementary “purpose-based approach” since the consensual intervention is limited to the realization of objectives such as to support the government to maintain law and order. Moreover, it is not possible to invoke those theories when a civil war is taking place in the country that issues the invitation. When the Egyptian government took military action on the territory of Libya, “no member criticized the airstrikes or the legal argument of consensual military intervention”. On November 2015 the US intervened with a military action in Libya but did not provide any legal justification for this action because the Western powers have been reluctant considering that a prerequisite for such a military intervention is the establishment of a national unity government in Libya”. What really happened in the case of Libya was that states leveraged the possibility of a military intervention by invitation to politically accelerate the solution of the Libyan civil war, as it is clear looking at the position and statements of the US, the UNSC and NATO.

4. Kosovo

As professor Sur said “the 1999 use of force in Kosovo by several NATO members was justified more by its legitimacy than by its legality: it was a fair war but not a lawful one.” In 1999 in response to an attempt by the government of Serbia to carry out ethnic cleansing against the Kosovar population an international coalition led by the US military intervened in those territories. However, it was not possible to claim that they acted based on a right of collective self-defense because the air strikes were not in response to an armed attack against a member state of the UN. Moreover, according to the North Atlantic Treaty 1949 NATO member states must “refrain in their international relations from the threat or use of force”. The unauthorized military actions undertaken were considered illegal under the UN Charter but NATO justified its use of force as a response to the “unrestrained assault” by Yugoslav military forces. According to the European Union, there is a “moral duty”, not explicitly legal, to end a violence and the humanitarian catastrophe in Kosovo. The Kosovo precedent and the humanitarian intervention argument could be used by states to circumvent the Security Council and defend their political and economic interests, like Putin himself did in the context of the Crimean crisis in 2014 when he referred to the Kosovo precedent as “a precedent our western colleagues created with their own hands in a very similar situation”.

 5. Mali

After France started its military intervention in Mali, nobody raised a single protest concerning this intervention and, on the contrary, the number of expressions of support was overwhelming. No State doubted the legality of the French intervention in Mali. France proposed three arguments to justify its military attacks, which shows that France may be “down to a concern that none of them is capable by itself of providing sufficient justification for the intervention, but that the combination of all three might”. However, the self-defense justification still appears to be problematic: to exercise self-defense, there must be an armed attack by one State against another. As the ICJ pointed out in DRC v Uganda “in the case of the French intervention in Mali it is crystal clear that there is no armed attack against Mali by another State”. However, since not a single member of the UNSC opposed to the intervention of France in the context of the Mali crisis, it could be possible to argue that State practice has evolved and sustain Judge Koojmans’ argument who found it “unreasonable to deny the attacked State the right to self-defense merely because there is no attacker State”.

In most of the cases the actions undertaken by the member states of the UNSC were not fully lawful but still “tolerated” by the international community or justified by reference to new doctrines developed on cornerstones principle of international law and sometimes pre-emptory jus cogens norms. 

​