by Sarah Joseph
This morning, Melbourne time, the UN Security Council passed Resolution 1973/2011, which authorises the taking of “all necessary measures” including a no fly zone but short of occupation, to protect civilians and “civilian populated areas” from Colonel Gaddafi’s government. The UN has essentially authorised “humanitarian intervention” against Gaddafi’s regime.
“Humanitarian intervention” refers to the threat or use of force by a State or States against another State for the purposes of preventing or stopping the latter State from committing extensive and grave violations of humanitarian law and human rights law. Humanitarian intervention, unlike the deployment of peace-keeping forces, takes place without the consent of the target State’s government. Despite humanitarian purposes, humanitarian intervention is war; purity of motive does not change that characterisation. It is an inherently strange term as it effectively denotes “humanitarian war”.
In my opinion, based on contemporary news reports,* Gaddafi’s response to protests in his country, including the reported aerial strafing of unarmed protesters, constituted crimes against humanity. The situation, however, from an international law point of view, became hazier when the protesters took up arms. I will assume that the situation in Libya in the last few weeks has constituted “civil war”. Governments are allowed to fight rebels using military force in a civil war. There is no international right to rebel, even against murderous governments: international law is silent on the issue. There is no breach of the law of armed conflict for Gaddafi to target and kill armed rebels, whether they be soldiers who have defected, or civilians who take direct part in the hostilities. It isn’t even illegal to use planes when the other side lacks them: there is no requirement that the sides in a war be equal (that can be really undesirable as it might just fuels an endless war).** What is illegal is the use of disproportionate force, the targeting of civilians and civilian infrastructure, and the terrorisation and brutalising of civilians or captured rebels. These things seem to have taken place in Libya since its descent into civil war (see this report from Human Rights Watch). Furthermore, if one takes Gaddafi and his son Saif at their word, they have threatened to inflict gross retribution on the rebels and their civilians supporters in the event of their re-establishing control. It therefore seems clear that “stopping Gadaffi” is in fact a humanitarian imperative to stop ongoing gross abuses and to prevent future worse abuses.
Legal Status of Humanitarian Intervention
As humanitarian intervention involves international war, it is largely illegal. International law only recognises the legality of international war in two circumstances: self defence and force as authorised by the Security Council under Chapter VII of the UN Charter (including instances of humanitarian intervention, as in Libya). There are some viable arguments that humanitarian intervention outside the auspices of the UN is legal in some circumstances, but if you put all international lawyers in the world in a room and got them to vote, I suggest the majority would vote for the orthodox position I just put. That position dicates that previous instances of “unilateral humanitarian intervention”, such as India’s intervention in Pakistan in aid of the East Pakistan (later Bangladesh) in 1971, Tanzania in Uganda in 1979, Vietnam in Cambodia in 1978, and NATO in Serbia in 1999, were all illegal, regardless of any humanitarian motives or outcomes (see this link for descriptions of those interventions). The most “humanitarian” of those interventions in terms of outcome was possibly Vietnam’s invasion of Cambodia which put a stop to Pol Pot’s genocide. Yet it is hard to even characterise that as humanitarian intervention given Vietnam never claimed any particularly humanitarian motives for it: rather it seemed to be opportunistic conquest.
It is now legal for international forces in Libya to use force in Libya. (However, the force used will be illegal if it goes beyond the mandate of Resolution 1973 or breaches the international law of armed conflict.) Indeed, Resolution 1973 is possibly the most aggressive Resolution ever passed by the Security Council. Yet the international community, particularly “the West”, has been pilloried by some in recent weeks for its failure to act earlier, especially given Gaddafi’s relentless driving back of the rebel forces. Indeed, the lateness of the international response is implicitly acknowledged as the Resolution goes much further than the authorisation of a “no fly zone”, even though that is what the rebels and their supporters have been calling for for weeks: it is now recognised that a no fly zone alone cannot achieve the ends sought.
The wheels of the UN Security Council turn slowly. This is not new, and indeed it has acted much faster this time than is normal. Time was needed to convince certain States, namely Russia and China (which will rarely support intervention for all sorts of ideological and political reasons) not to kill the Resolution with a veto. Logistical tactics also have to be worked out (assuming they have been).
But given the inevitability of that slowness, should the West or NATO or the US have acted without UN authorisation? Newt Gingrich, a likely Republican candidate for the US Presidency in 2012, called on 8 March for the US to unilaterally impose a no fly zone without even consulting its European allies. The rebels themselves have been calling for “the West” to do something for a number of weeks.
This issue brings in the so-called “Responsibility to Protect”, sometimes denoted as “R2P”. In 2005, the UN General Assembly endorsed this principle, which imposes a duty on each State to protect its people from grave human rights abuses, namely genocide, war crimes, ethnic cleansing and crimes against humanity (a duty which clearly existed long before 2005). If a State, such as Libya, fails in that duty (a clear fail when the State itself is perpetrating those crimes), the R2P devolves to the international community, in particular the Security Council if force is needed to quell the situation (see paras 138-140 of the World Summit Outcome of 2005 here). The General Assembly did not talk about how R2P plays out if the Security Council fails to act. While one could plausibly argue that the General Assembly can step up to the plate if the Security Council fails to act, it is very difficult to argue that the international community has authorised one State or even a group of States, such as NATO, to take on the R2P if force is needed by using force themselves.
Should Unilateral Humanitarian Intervention be Allowed?
Which brings us to the issue of whether the law on humanitarian intervention is therefore an ass. Should unilateral humanitarian intervention be allowed? Earlier (unilateral) intervention in Libya might have saved lives and prevented the larger scale war that is likely to happen now that international intervention is so late.
Proponents of legal unilateral humanitarian intervention must be aware that that development would mean that more wars are authorised. And war, even when carried out for humanitarian purposes, is ugly and deadly. The main tactic likely to be used against Gaddafi by international forces will be aerial bombing, which will likely cause lots of civilian casualties or “collateral damage”, just as it did in Kosovo. A humanitarian “smart bomb” is often very dumb, especially when dropped from a high height.
Further, unilateral humanitarian intervention is far more likely to be abused by those States capable of invading others than collective action authorised by the Security Council. While people may bemoan its slowness, its gridlock also acts as a failsafe. After all, Hitler claimed his invasion of Czechoslovakia had a humanitarian purpose. I am not in favour of a change in international law which authorises humanitarian intervention.
Indeed, Resolution 1973 only tells against the necessity of such a change. While we can all resent the fact that appropriate actions can be stymied by a single veto, let us not forget that Russia and China have chosen not to expend the political capital on a veto here despite their clear distaste for military action in this instance. When international action (whether involving the use of force or not) is truly supported by the international community, a veto is not impossible but is far less likely. (In contrast, globally unpopular action such as the 2003 invasion of Iraq will likely get vetoed. And of course vetoes will be used to protect the vetoing State and its close allies as is the case with the US and Israel, and the likely case of Russia with Serbia had a vote ever been taken on proposed intervention in Kosovo in 1999).
Should the West have acted earlier anyway?
Perhaps the West should have just ignored the law. That is, keep the law as it is, but recognise that sometimes it really is “legitimate” to break the law. Perhaps the moral imperative of saving Libyans is more compelling than the moral imperative of obeying international law. I have no doubt that moral considerations can outweigh legal considerations, but I have doubts that this situation arose in Libya. One can never prove the counterfactual, so we’ll never know if early Western intervention would have somehow been preferable to UN-authorised intervention now. While I agree that morality can theoretically trump legality, there must be a presumption in favour of the legality when there are extreme uncertainties in pursuing the illegal path. And there are so many considerations that muddy the waters. The optics of illegal Western bombing of an Arab State are not good, particularly in light of the deeply resented Iraqi invasion. Such intervention could have been used by Arab leaders to put down their own “Arab spring” protests by labelling them as Western imperialist agents. Certainly, the endorsement of a Libya no fly zone by the Arab League last week may have allayed those concerns (and that endorsement was probably a necessary precursor to the Security Council’s decision). However, the precedent value of illegal action is deeply problematic: after all Russia justified its 2008 incursion into Georgia by referring to the Kosovo precedent.
Should the international community be intervening in Libya?
The above is written on the assumption that humanitarian intervention, even if it is legal which this intervention will be, is a good idea in Libya at this time. It may not be. War is war, and it is unpredictable and messy. Humanitarian intervention may not work – Somalia for example remains a mess nearly 20 years after the UN authorised intervention in 1992. Despite this, I am personally in favour of the Resolution. I say this in full awareness that the alleged humanitarian motives behind any instance of war are always suspect. States are inherently political rather than moral creatures so France, the UK, the US and the Arab League have all, for whatever reason, decided that war in this case is in their interests. Those interests probably include humanitarian considerations but probably include other less noble motives. Germany has decided that it is not in its interests and abstained. And Russia and China don’t like it, but have decided that a veto is not in their interests. Despite the undoubted existence of non-humanitarian interests and motives, I believe (and fervently hope) the consequences of international intervention in Libya will be less horrific at this time than the fairly predictable consequences of Gaddafi rolling over the rebels. But I cannot know, and nor, frankly, can anybody else.
* This sentence was amended on 1 May 2011, in recognition of the fact that I am relying on media reports.
** My points regarding rebellion and international law owe much to previous analyses by Dr Ben Saul (University of Sydney), which were written in a different context. Of course, Ben can’t take any responsibility for any mistakes I have made above(!)