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Egypt’s intervention in Libya is legal–here’s why

FILE - In this Saturday, Feb. 13, 2016 file photo provided by Egypt's state news agency MENA, Egyptian President Abdel-Fattah el-Sissi, addresses parliament in Cairo, Egypt. El-Sissi reshuffled his government on Wednesday, March 23, 2016 naming nine new ministers and creating a new portfolio for business but leaving the key ministries of defense, foreign affairs or interior untouched. (MENA via AP, File)

Egypt’s Foreign Minister Sameh Shoukry has spoken about how Egypt must now take control of its border with Libya as well as events inside Libya itself, as the country is a failed state that has no reliable government.

Shoukry stated,

“We cannot allow the terrorists to stay safe and benefit from a failure of the Libyan government’s loss of control over the country’s territories, which have now turned into a safe haven and a training ground for foreign fighters and other elements, who infiltrate through the Egypt-Libyan border and attack innocent Egyptian civilians”.

He described recent Egyptian air strikes against ISIS targets in Libya as in the interests of Egypt’s security saying

“Those airstrikes were legitimate self-defence. Our nation will protect its national security by all means at its disposal”.

Egypt’s actions against terrorist targets in Libya are legal according to international law for two reasons.

1. Done with consent of the Libyan House of Representatives 

Although technically speaking, the fledgling and deeply inadequate Government of National Accord in Tripoli is the  Libyan government backed by the UN due primarily to western pressure, most of the eastern part of Libya is under control of the more secular, responsible and better organised Libyan House of Representatives based in Tobruk near Egypt’s border with Libya. The Libyan House of Representatives’ military leader, Khalifa Haftar of the Libyan National Army has worked with Egypt in helping to coordinate the strikes.

This means that the de-facto legitimate government of the region has approved of Egypt’s action and is working with Egypt against a common threat.

The fact that there is no single government of Libya, gives practical weight to the decisions made by the Tobrul government, especially when concerning areas which in actual fact it governs.

2. The Caroline Test

International law allows for extremely limited preemptive (perhaps better understood as retaliatory measures that stop short of war) actions in foreign states without the approval of such states and/or without approval from the UN if there is an imminent and localised danger to the state which seeks to attack in a move of preemptive self defence.

The test is defined as follows:

A. The use of force must be necessary because the threat is imminent and thus pursuing peaceful alternatives is not an option (necessity)

B. The response must be proportionate to the threat (proportionality) 

Egypt’s action in Libya fulfils this criteria as it is clear that Libya cannot contain the terrorists who are in control of much of Libya. These terrorists are almost certainly responsible for atrocities in Egypt, including the recent slaughter of Christian pilgrims in Egypt which is the proximate cause for Egypt’s military intervention.

It is difficult to apply the Caroline Test during action against a state that is not a neighbour of the country which is conducting a preemptive attack. This is why in every instance of US military intervention over the last 20 years, the US has not even tried to invoke the Caroline Test.

It is curious but unsurprising that the US, Turkey and many EU states have illegally invaded and occupied Syria with no legal justification, but seem to be doing next to nothing to help Egypt in an hour of need, even though a legal basis for intervening in Libya along with Egypt, one which does exist in Syria where US and Turkish forces continue to indiscriminately slaughter civilians in a highly chaotic campaign.

In this sense, perhaps Egypt will learn the true value of friendship with the west: value for western elites and burdens for the non-western partner.

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