OPERATION UNIFIED PROTECTOR AND HUMANITARIAN INTERVENTION WITH SECURITY COUNCIL AUTHORIZATION: INTRA VIRES?

This article discusses whether authorization for military intervention in civil wars by the United Nations Security Council is ultra vires under the U.N. Charter, with particular reference to Operation Unified Protector carried out in Libya in 2011. Under Article 39 of the U.N. Charter, the Council is entitled to take military measures when there is a threat to, or breach of, international peace. Any definition of threats is lacking in the Charter; the Council is vested with wide discretionary powers. Since the 1990s, the Council has defined civil wars as threats to international peace and applied military measures against some of these on the ground of humanitarian intervention. However, the power of the Council to determine threats is not unrestricted. Article 39, Article 24(2) and the principles of international law impose limitations on Council authority. Under these rules, the Council is not entitled to intervene in civil wars where there are no transboundary effects. Therefore, Council authorization to forcibly intervene in the Libyan conflict is ultra vires. Unlimited power to determine threats and humanitarian operations in this context would render the principle of non-intervention meaningless and might lead to an abuse of power. This article proposes that a separation be made between the concepts of threats to international peace and humanitarian crisis, with a mechanism established as a part of the UN which would intervene in every case of humanitarian crisis.