The government has today published a note (hat tip to Paul Waugh) setting out a summary of the legal basis of the government’s deployment in Libya. Actually it does no more than explain that UN Resolution 1973 authorises member states to take all necessary measures to enforce a no-fly zone and to protect civilians in Libya, and state that the government sees this as sufficient legal basis for deployment. Pretty obvious stuff.
I wonder about the wisdom of this, really. Yes, (as Ros Taylor argued earlier today), arguably Iraq shows us transparency as early as possible is a good idea. But equally, what Iraq shows is that, as soon as you publish any form of legal advice, pressure grows to publish it all – and if you don’t, you’re accused of having some secret adverse advice. Today’s note is so uncommunicative that I think it may merely raise a clamour for disclosure of the Attorney’s full advice. Since he’ll be advising continually on the lawfulness of targets, which for obvious reasons will be secret, the government will never be able to satisfy anyone’s desire for total legal transparency.
In any case, the real legal question people are asking today is whether it’d be lawful for UK and other forces to target Colonel Gaddafi himself. The answer to that seems to me clear: UN Security Council Resolution 1973 authorises member states to take all necessary measures to enforce the no-fly zone and to protect civilians. So if killing Gaddafi became necessary in order to protect civilians, it would be lawful to target him. Even Philippe Sands seems to agree with that. What I doubt is that anyone can come to the conclusion that killing him would be necessary. In any event, the politics of all this seem to me to make it more likely that US, British and French forces will avoid killing Gaddafi if they can. If he is killed, I think it’s likely to be by accident.
Here’s UNSCR 1973, which is the really important document.