Expediency Over Libya. Consequences In Mali, Syria

I argue that we should never be tempted by expediency in our conduct in international relations, if, the system is to endure. The self-admitted weakness of my paper is that I could not run the whole catalogue of just war theory postulates against each and every single claim by the interveners, (owing to time constraints and my institute's word count stipulations).

The defenders of human rights NATO came to Libya to help.

by Kudakwashe Kanhutu

Critically discuss the extent to which the intervention in Libya was a just intervention.

Introduction:

The 2011 military intervention by NATO forces against Colonel Gaddafi in Libya raises important questions for international order and international justice. The main issue, where humanitarian intervention is concerned, has to be the tension between the protection of human rights and the need to have a stable international system. Most discussions of the subject in international law recognises that: the rules in place for the protection of human rights tend to clash with the rules meant to ensure stability in the international system (state sovereignty rules).[1] The concomitant undercurrent to the above issue is the question of morality: whether states have a right or moral duty to help strangers beyond their own borders. Cosmopolitanism and communitarianism are the major strands of thought which attempt to answer this subsequent question.

My discussion of the intervention in Libya will be in two parts; in the first part I will introduce the key issues surrounding humanitarian intervention and ethics today. In the second part I will tackle the tensions between state sovereignty and the protection of human rights by referring to the UN Charter, which Chesterman has called the ‘closest thing the international community has to a constitution.’[2] In the same part of the paper, having established the  legal parameters, I will then discuss the Libya intervention with reference to the just war tradition.

At face value, remembering the 1994 Rwanda genocide and given the United Nations Security Council (UNSC) Resolutions 1970 and 1973, Libya seems like an intervention that consolidates the emerging norm of the Responsibility to Protect (R2P). However, the fact that NATO countries ended up engaged in regime change actions, reveals that it is not that cut and dried after all. I will argue that this intervention somewhat sets back the R2P norm, while at the same time it adversely affected the rules of international order.

Part I.

Ethics in International Relations:

Ethics is a word which has origins in ancient Greek philosophers’ attempt to chart right and wrong conduct in private and public life. In international relations, ethics are largely concerned with right and wrong conduct between states. On a very basic level, right and wrong conduct as espoused by ethics equates to questions of what is just and unjust. For my paper I have taken what is “just” to mean what is morally right, fair and importantly; legal. It is quite possible that an action can be illegal but legitimate, as the 1999 NATO intervention in Kosovo has since been characterised.[3] I will not labour this point as I, on the contrary, have chosen to argue that for an action to be just; it has to have both moral and legal validity. In everyday life, an analogy of what is illegal but legitimate would be an ambulance breaking speeding laws in the case of an emergency. The difference with international politics is that the ambulance service is not self-interested, as states are, and so cannot possibly abuse the illegal but legitimate logic for gain. In international relations, the illegal but legitimate route seems to be a licence, therefore untenable in as far it can be a threat to international order. States could easily abuse it. Instead, a perfectly just intervention (if it were possible) would protect human rights without undermining the international order. Such an intervention must thereby try to satisfy both morality and legality. Libya very nearly satisfied both these considerations, I will go more into that in Part II of my paper when I talk about the importance of getting a UNSC authorisation to intervene. 

Humanitarian intervention itself is defined by Brownlie as “the threat or use of armed force by a state, a belligerent community, or an international organization, with the object of protecting human rights.”[4] As consent of the target state is not necessary in this kind of action, there are concerns therefore about the erosion of the longstanding principle of non-intervention in the domestic affairs of a sovereign state. The principle of non – intervention is seen in international relations as a source of stability, as without it ‘states would act as armed vigilantes’[5] against each other.  A further consideration is the possibility, according to realist logic, that the protection of human rights can be used as a pretext by self-interested states in pursuit of economic or other strategic gains. It is with this in mind that weaker states insist that the principles of non-interference in domestic affairs be upheld. The weak states’ concerns can be captured by Algerian President Abdelaziz Bouteflika’s contribution to the debate. He opined that “…we remain extremely sensitive to any undermining of our sovereignty, not only because sovereignty is our last defence against the rules of an unequal world, but because we are not taking part in the decision-making process of the Security Council.”[6] 

The above sentiments were made in relation to discussions of the emerging R2P norm, a discussion that became necessary after the international community’s failure to prevent the 1994 Rwanda genocide and the 1995 Srebrenica massacres. The tension between human rights and sovereignty is clear when you contrast those two failures with the aforementioned 1999 NATO Kosovo intervention which had no UNSC authorisation. It thus became an imperative to establish a systematic international response whenever states engage in large scale human rights abuses against their civilian populations. Kofi Annan, the UN Secretary General at the time, highlighted the problem with this question; “if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”[7] In response to the above concerns, the United Nations General Assembly (UNGA) then put together an International Commission on Intervention and State Sovereignty (ICISS). Its task was to attempt to build a broader consensus for the protection of human rights, while paying attention to the concerns of the non-intervention principle.[8] The outcome was the Responsibility to Protect principle (R2P). This principle is significant for my paper as it was the main justification for the military intervention in Libya.

The R2P norm – as expressed in the ICISS document – recasts sovereignty as conditional, and not absolute, in these terms:

(a) State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself; and (b) Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.[9]

R2P proposes the conditions under which human rights considerations can trump the inviolability of state sovereignty. Importantly, this norm does not endorse the illegal but legitimate logic I outlined earlier, instead it seeks to ground the norm beyond both moral and legal reproach. To this end the ICISS panel proposed criteria that should be met before humanitarian intervention is allowed to disregard the non – intervention principle. The R2P norm therefore consists of three pillars or criteria that has to be observed before military intervention can be authorized. Also, according to Thakur, to ensure that intervention would not be invoked over a lower threshold issue such as disputed elections, the application of R2P was tightened ‘to four atrocity crimes: war crimes, genocide, ethnic cleansing, and crimes against humanity.’[10] Some of the operational considerations for R2P, such as right intention and right authority are germane to just war theory, so I will leave those out for now until the second part of my paper. At this stage I will just list the three pillars which were unanimously adopted by states at the 2005 World Summit, these are; (1) each state has a responsibility to protect its population from grave rights abuses, (2) the international community has a duty to assist that state in building protection capacities and, (3) when the state is manifestly failing to protect its citizens, then the international community should take action through the Security Council in accordance with the United Nations Charter.[11] The norm has since been reaffirmed by the UNSC in Resolutions 1674 (2006) and 1894 (2009).[12] Which bodes well for my adopted position in this paper that a just intervention must be one that has both moral and legal justifications undergirding it. I will now turn to the UN Charter and its legal import for the Libya case.

Part II.

The Libya Intervention in the UN Charter Context:

The UN Charter also reflects the tensions between sovereignty and human rights protection I mentioned earlier in the first part of this paper. Those who want to defend the principle of non – intervention can rely on Article 2 (7) of the Charter which prohibits intervention in the domestic affairs of member states, except for enforcement measures under Chapter VII.[13] While those who advocate protection of human rights will say that the preamble,  Articles 1 (3) 55, and 56 of the Charter show that human rights are equally important.[14] The consideration in these opposing arguments remains what is best for stability in the international system. So the legal route does not guarantee a resolution of these tensions.

Regardless of the above, to the question whether the UNSC acted within its competencies in authorising use of force in Libya, Payandeh reckons it did. He concedes that ‘in light of the rather weak legal restraints on the Security Council, Resolution 1973 has to be considered legal and consistent with the Security Council’s competences under the Charter of the United Nations.’[15] Which is to say that Article 39 allows the UNSC to determine whether there is a threat to international peace and security and if it says there is, the Council can then authorise use of force against a sovereign state.

In the case of Libya, the Security Council defined the situation there as a threat to international peace and security and furthermore cited humanitarian protection as the reason for the intervention.[16] What  gave further extra moral legitimacy to the use of force was that Colonel Gaddafi was very isolated as his own ambassadors defected, and  regional block  after regional block called on him to respect his commitment to the R2P commitments his government had made in endorsing the 2005 World Summit Outcome document.[17] The European Union (EU), the African Union (AU), the League of Arab States, and the Gulf Cooperation Countries (GCC) all came out criticising the gross human rights violations he was committing.  Another development aimed at further delegitimizing him was the UNSC referral of him to the International Criminal Court (ICC). I find it slightly problematic that Russia, the United States and China can refer Gaddafi to a Court whose authority they themselves do not recognise. Still, the case can be made that the intervention was legal. It is only in the conduct of operations that problems began to arise.

Ramesh Thakur, to my mind, captures the essence of what happened in Libya with regards the UN authorisation when he said;

With a rapidly deteriorating humanitarian situation in Libya in early 2011, the United Nations (UN) authorised the use of force to protect an imminent slaughter of civilians but prohibited taking sides in the internal civil war, intervening with ground troops, or effecting forcible regime change. The record of NATO actions in Libya marks a triumph for R2P but also raises questions about how to prevent the abuse of UN authority to use international force for purposes beyond human protection.

Thus, NATO got a United Nations authorisation which made the intervention legal unlike in their 1999 Kosovo intervention, but still there are accusations that NATO overstepped this mandate. It is this overstepping of the mandate which would make the intervention to an extent unjust as it might mean another motive and not human rights protection was the real primary motive. Whether there were ulterior motives other than humanitarian protection can be discerned using just war theory.

Just War Theory and Libya:

The just war tradition or just war theory seeks to proscribe the instances when states can go to war and once in war, how they conduct themselves. The terms used are jus ad bellum, jus in bello and jus post bellum, which equate to a just cause to go to war for; just conduct while in war and just conduct after the war ends, respectively.  Just war exhibits a considerable overlap between morality and legality: to show the justness of an intervention the R2P norm  uses the same criteria as that the Geneva and Hague Conventions codified into law. Jus ad bellum is satisfied if these four boxes are checked; just cause/right intention, proportionality, reasonable hope of success and last resort, while jus in bello admits to proportionality, discrimination and responsibility as its benchmarks.[18] It’s too early to opine on jus post bello in Libya.

Following up on just two (for brevity’s sake) of the criteria, my concrete case yields this: the just cause/intention in Libya was given as the need to avert the imminent massacre of 700 000 civilians in Benghazi. This was supported by reference to Colonel Gaddafi’s ‘no mercy speech’ where he had promised to go from door to door cleansing Benghazi of the rats and cockroaches.[19] Last resort follows readily as Colonel Gaddafi’s troops were about to recapture Benghazi, it has been argued that there was no time to try other means.[20] In his annual Dullah Omar Lecture, former South African President, Thabo Mbeki, pointed out this had been an exaggeration as Human Rights Watch had released data showing that in other recaptured cities such as Misurata, there had been no massacre of civilians.[21] If the imminent massacre claim is inadmissible, then the corollary is that the last resort claim fails the test too. Still, even if this were the case, the fact that no one at the UNSC vetoed Resolution 1973 shows that Colonel Gaddafi was not trusted to show restraint. No nation wanted to be on the wrong side of history had Benghazi turned out to be another Rwanda. So the interveners can be afforded the benefit of the doubt in as far as they could not be sure if Colonel Gaddafi would carry out his televised threat or not.

What is more problematic in the Libya intervention is that the reason for it was then wilfully changed from humanitarian protection to a  regime change agenda without getting authorisation from the UNSC. This abuse of Resolution 1973 is  where the whole justness of the Libya intervention may collapse. Payandeh records that US President Barack Obama, President Sarkozy and Prime Minister David Cameron on May 26/27 2011 and ‘issued a final communique that, in surprisingly clear terms, emphasized that regime change was the ultimate goal of the international community’s efforts in Libya.’[22] This takes us back to the issue I have raised throughout my paper that weak states jealously guard their sovereignty as a defence against the whims of larger powers. The abuse of Resolution 1973 in this manner means that should the Western powers now ever want a resolution for humanitarian protection, it would be difficult to obtain. Therefore, the Libya intervention that started out as a legal and legitimate humanitarian protection action, proved that states cannot be trusted with the permission to intervene in domestic affairs of another country.

Conclusion:

My paper has taken a theoretical approach to disentangling the extent to which the Libya intervention was a just intervention. I have tried to show throughout the paper that morality and legality together should be the measure of justness. I began by introducing the most important consideration where humanitarian intervention is concerned: the tension between state sovereignty rules and the rules for human rights protection. As this tension leads states to either watch helplessly as genocides unfold, as in Rwanda or, resort to ‘vigilantism’ as in the 1999 Kosovo intervention, the UN proposed a middle path in the form of the emerging R2P norm. States unanimously endorsed this norm as it looked like it would be grounded in law since UNSC authorisation was a pre – requisite  before military intervention. It seemed to promise to preserve stability and protect human rights at the same time. Libya became the test case of the emerging norm and most of the norm requirements were fulfilled; except during the course of the intervention when it became a regime change action. This must surely set back the norm. Russia and China have vetoed any Resolutions on Syria because of the abuse of the last Resolution they allowed to pass on Libya. Also, Colonel Gaddafi’s end means dictators elsewhere will now fight to the bitter end.

BIBLIOGRAPHY:

Bellamy, Alex J.  and Paul D. Williams. “The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect.”  International Affairs, Vol. 87, No. 4, (2011): 825 – 850.

Bellamy, Alex J. Bellamy and Nicholas J. Wheeler. “Humanitarian Intervention in World Politics.” http://cadair.aber.ac.uk/dspace/bitstream/handle/2160/1925/Wheele?sequence=1 (accessed 05/12/2012).

Chesterman, Simon. Just War or Just Peace: Humanitarian Intervention and International Law. Oxford: Oxford University Press, 2001.

ICISS. The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty. 01/01/2001. http://responsibilitytoprotect.org/ICISS%20Report.pdf  p.2 (accessed 05/06/2012).

Mingst, Karen A.  and Margaret P. Karns. The United Nations in the Post-Cold War Era. Oxford: Westview Press, 2000.

Nicholas J. Wheeler. Saving Strangers: Humanitarian Intervention in International Society. Oxford: Oxford University Press, 2000.

Payandeh, Mehrdad. “The United Nations, Military Intervention and Regime Change in Libya.” Virginia Journal of International Law, Vol. 52, No. 2, (2012):  355 – 403.

Thabo Mbeki Foundation. “Dullah Omar Eighth Memorial Lecture: Reflections on Peacemaking, State Sovereignty and Governance in Africa.” 16/01/2012. http://www.thabombekifoundation.org.za/Pages/Dullah-Omar-Eighth-Memorial-Lecture-By-The-Tmf-Patron.aspx (accessed  05/12/2012). 

Thakur, Ramesh. “Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism.” Security Challenges, Vol. 7, No. 4 (Summer 2011): 13 – 25.  

U.N. General Assembly, Implementing The Responsibility to Protect, 63^rd Session, Report of the Secretary General, (12 January 2009)  (A/63/677). Official Record. New York, 2009.

Weiss, Thomas G.  “R2P After 9/11.” Wisconsin International Law Journal. Vol. 24, No. 3, (): 741 – 760.

Weiss, Thomas G.  “The Sunset of Humanitarian Intervention? The Responsibility to Protect in a Unipolar World.” Security Dialogue, Vol. 35, No. 2, (June 2004): 135 – 153.