Recognition of the Libyan Rebels, Conflict Status, and Detention Operations

Robert Chesney
Friday, July 15, 2011, 10:54 AM
The armed conflict in Libya began as a non-international armed conflict, but was internationalized when a host of states intervened against the Libyan government.  Now, the United States has joined a growing list of states recognizing the rebels as the legitimate government of Libya, which leaves no state party to the conflict on the other side of the fight--much as occurred over time in Afghanistan after the Karzai Administration took power.  Does this suffice to de-internationalize the conflict, returning it to non-international armed conflict status?  I think so. From a U.S.

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The armed conflict in Libya began as a non-international armed conflict, but was internationalized when a host of states intervened against the Libyan government.  Now, the United States has joined a growing list of states recognizing the rebels as the legitimate government of Libya, which leaves no state party to the conflict on the other side of the fight--much as occurred over time in Afghanistan after the Karzai Administration took power.  Does this suffice to de-internationalize the conflict, returning it to non-international armed conflict status?  I think so. From a U.S. perspective, I don't believe anything significant turns on this given the limited nature of our current contributions to the hostilities operations there.  But there is an interesting question with respect to detention operations conducted by the rebels new Libyan government. Will anyone argue that the new government must prosecute captured members of Qaddafi's army organized armed group or else free them, on the theory that IHL affords no detention authority in the non-international armed conflict setting (an argument that arises from time-to-time vis-a-vis Afghanistan)?  Obviously such prosecutions would be a bad idea as a matter of policy (why seek the long-term imprisonment of run-of-the-mill soldiers absent war crime allegations?), yet in order not to lose the war the new government certainly needs to be able to incapacitate the soldiers that it does capture.  So I am doubtful anyone will seriously object to the ongoing use of detention-without-charge by the new government.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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