Revisiting the UK’s 2011 Rescue of Nationals from Libya. Part II

The first part of this post articulated non-violent evacuation operations (NVEOs) as a specific legal category of rescue operations that are defined negatively – as those rescues which do not constitute uses of force. NVEOs are those rescues which (a) reasonably do not anticipate the employment of violent conduct, and (b) which do not employ force beyond in ancillary, “on-the-spot” reaction. Examples of apparent (states do not often publicise the nonconsensual nature of such operations) past NVEOs include American evacuations from Liberia (Operations Sharp Edge and Assured Response) in 1990 and 1996, the German-led multinational evacuation from Albania (Operation Libelle) in 1997, and the French evacuation from Chad in 1990.

As previously described in the first part of this post, the UK’s Foreign Commonwealth and Development Office (FCDO), responded in January 2026 to a query I had posed about the UK’s evacuations from Libya in 2011. In the midst of worsening civil strife in Libya as a result of the collapse of the Gaddafi regime, the UK launched a series of evacuations from Libya in early 2011. My questions were (reproduced verbatim) –

1. Did the Libyan government of the time (i.e. the Gaddafi regime) consent to the United Kingdom’s evacuation of its nationals from Libya, including in the form it was conducted?
2. Did the Libyan government of the time (i.e. the Gaddafi regime) consent to the deployment of British military personnel in Libya?

The FCDO’s response, seemingly for the first time, acknowledged that the UK had not received Libyan consent for its 2011 NVEO in Libya. The response included the following text (also included in the first part of this post, emphasis my own) –

The safety of British nationals abroad is always the highest priority for the Foreign, Commonwealth & Development Office.

During the rapidly deteriorating situation in Libya at this time, the UK undertook evacuation flights supported by specialist personnel to ensure British nationals could be moved to safety as quickly as possible, as widely reported at the time.

Regarding your questions on consent from Libyan authorities, in situations of acute instability, the UK’s overriding responsibility is to protect its citizens, and actions taken were focused on ensuring their immediate safety.

There are three ways to understand the UK’s response regarding the (non)consensual nature of its rescue operation in Libya. First, it might be suggested that the UK’s response does not confess to the nonconsensual nature of the operation, but that it might have instead relied on Libyan implied consent to justify its rescue. Secondly, the UK’s response might imply that it believes that NVEOs are justified by the existence of a customary right to protect nationals, either via NVEOs or more broadly. Finally, the response might suggest that the UK considers that the wrongfulness of its operation under international law was precluded by the existence of a state of necessity.

The suggestion that the UK potentially relied on Libya’s implied consent is untenable. The strongest support for this proposition originates from Germany. There, the Federal Government argued in the Bundesverfassungsgericht (its constitutional court) that Germany was entitled to assume implied consent for its evacuation. This was because Libya had provided an “open-ended approval” for the take-off and landing of all evacuation flights, and because Germany had notified Libya of the impending rescue. The validity of such an “implied consent” aside (for example, see Byrne’s discussion of when consent would be valid in this context), the UK has never, including in response to my query explicitly enquiring about the presence of Libyan consent, relied on the existence of consent, either explicit or implied, to justify its rescue.

It also appears unlikely that there is a separate customary right enabling states to conduct NVEOs. Several states, such as Panama and Romania in response to Operation Entebbe, have explicitly rejected the principled legality of any intervention without consent, including for rescue operations. Admittedly, these rejections have generally been in response to rescue operations involving violent conduct. Nonetheless, the lack of qualification to these rejections, along with the little state practice involving NVEOs, suggests that there is insufficient uniformity in state practice for a customary right to conduct NVEOs to arise in any form. This is consistent with Forteau’s and Ruys’ assertions of the impossibility of the existence of such a customary right.

The UK’s response to my enquiry is best interpreted through the lens of necessity. The existence of a state of necessity may preclude the wrongfulness of the evacuating state’s conduct if its actions are, inter alia, “the only way for the State to safeguard an essential interest against a grave and imminent peril” (Art. 25 ARSIWA, affirmed in Gabčíkovo-Nagymaros). The UK’s response is consistent with the grounds for invoking necessity. The existence of a “[situation] of acute instability” in which the “immediate safety” of nationals was at stake can be interpreted as the existence of a “grave and imminent peril”, even in its narrow conceptualisation advanced in Gabčíkovo-Nagymaros. The safety of its nationals (being described as the FCDO’s “highest priority”) are clearly an “essential interest” of the UK. The focus of the UK on protecting its nationals’ “immediate safety” might also be interpreted as suggesting that the launched NVEO was the only way for the UK to protect its nationals.

It is true that territorial inviolability is likely an “essential interest” of the targeted state which would be impaired by the conduct of the NVEO, which might typically disqualify the invocation of necessity (Art. 25(1)(b) ARSIWA). Nonetheless, as Jackson has highlighted, the ILC’s Commentaries to Article 25 envisions a “balancing of interests”. The violation of the targeted state’s sovereignty, which is “temporary and constrained”, is likely outweighed by the humanitarian interest in rescuing (what is often) many civilians.

The existence of a state of necessity is suitable as a legal basis to excuse NVEOs. Necessity has previously been proposed as a legal basis for rescue operations more broadly by Ago and Raby. The former suggested that uses of force not constituting acts of aggression might be justifiable by the existence of a state of necessity. The view that necessity might legitimise uses of force which do not constitute acts of aggression has been widely rejected (being described as “having gained little imitation” by Ruys) with respect to rescue operations which constitute uses of force. There is no reason, however, why necessity cannot justify those rescue operations which fall below the threshold of Article 2(4) As there is no violation of Article 2(4), and the wrongfulness instead arises from the violation of territorial sovereignty, states conducting NVEOs would not be precluded from invoking necessity.

Given the unlikeliness that an independent customary right to conduct NVEOs exists, the existence of a state of necessity precluding wrongfulness is the most appropriate legal basis for the conduct of NVEOs. The strict limitations on invocations of necessity should provide some assurance that states will not be able to abusively invoke necessity to justify otherwise-illegal operations. States invoking necessity can only do so while the state of necessity still exists and may still owe compensation for losses caused to the targeted state by conducted NVEOs. Furthermore, the invocation of necessity (instead of the existence of a separate customary right) means that NVEOs will remain a prima facie wrongful act requiring excuse, as opposed to a tool in states’ arsenal of rights.

This distinction has normative value. After all, NVEOs still involve a breach of the targeted state’s sovereignty, potentially for no fault of that state. This is particularly important given that NVEOs have thus far occurred during breakdowns of authority, where the targeted state may not have had the capacity to readily provide consent. Additionally, there is an element of coerciveness in the intervenor’s imposition of its will through the conduct of an NVEO, regardless of its humanitarian motives. This is especially so given the particular dynamics NVEOs involve, which require special consideration. All past known NVEOs have been conducted by powerful Western states in smaller, lesser-developed states, during breakdowns of authority. The significant power differential is essentially a precondition for the conduct of an NVEO – a more powerful state being targeted by an NVEO would presumably be able to respond militarily, necessitating that the rescue would constitute a use of force to succeed.

Given this context, states should remain careful about legitimising NVEOs by describing them as legal by right, as opposed to excusing their conduct in specific and carefully prescribed circumstances. The continuing obligation of the conducting state to provide compensation for damage caused will ensure that the targeted state, generally far weaker than the state conducting the NVEO and undergoing a breakdown of authority, at least receives material compensation for the damage caused by the NVEO.

Conclusion

The question of the legal basis for the conduct of NVEOs cannot be done justice by a blog post alone. Important questions remain – for example, arising from the indeterminacy of what might qualify as “ancillary” violence. Nonetheless, I have made two arguments. First, I have argued that NVEOs qualify as a distinct legal category of rescue operations. Secondly, I have argued that the best legal basis for NVEOs is the existence of a state of necessity precluding wrongfulness. This has been supported by the UK’s response to my enquiry relating to the nature of its 2011 evacuations from Libya, which to my knowledge is the first time the UK appears to have admitted to the nonconsensual nature of these operations.