Publication
29-06-20

A Libyan Playground for Foreign Powers: Presenting the Case for ‘Negative Equality’

Prematurely calling time of death on ‘negative equality’?

On 5 and 6 December 2019, the Journal on the Use of Force and International Law (JUFIL) and the Ghent Rolin-Jaequemyns International Law Institute (GRILI) hosted an international conference on ‘military assistance on request’, the doctrine formerly known as ‘intervention by invitation’. Also present at the conference were several members of the refurbished International Law Association (ILA) Committee on the Use of Force, co-chaired by Professors Claus Kreß and Vera Rusinova and intent on fleshing out the many unresolved issues related to this intricate topic.

One leitmotif of the spirited conference proceedings (with resultant papers soon to be published in two special issues of JUFIL) was profound scepticism towards the doctrine of ‘negative equality’, which prescribes that ‘[t]hird States shall refrain from giving assistance to parties to a civil war which is being fought in the territory of another State’. Few participants considered the doctrine as a representation of the lex lata, echoing common criticism among legal commentators – including in the blogosphere (see, for example, here, here and here). In a 2018 report, the ILA Committee’s immediate predecessor also seems to have hedged its bets by opining that while ‘consent can allow for the sending of armed forces into a State following the request by its government for assistance in quelling an insurrection … [and] may preclude a violation of the jus ad bellum, it cannot justify violations of the jus in bello or international human rights law’.

It is therefore all the more surprising that the situation in Libya appears to belie this negative trend for ‘negative equality’ as it features a ban on all foreign interference and emphatic support for a Libyan-led, Libyan-owned process to end the conflict – and thereby confirms the doctrine’s main tenets.

Read more here.