r2p in libya

8/13/2019 R2P in Libya

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European Union Institute for Security Studies1

IMPLEMENTING R2P IN LIBYA HOW TO OVERCOME THE INACTION

OF THE UN SECURITY COUNCIL

The UN Security Council Resolution 1970 on thesituation in Libya does not provide a satisfactory an-swer to the question of how the international com-munity should intervene to prevent the massacre ofcivilians that is allegedly currently taking place in that

country. This means that an alternative approach mustbe considered. If the body whose primary responsibil-ity it is to preserve international peace and securitydoes not provide a timely i.e. immediate responseto a gross and systematic violation of human rightscharacterised by attacks on the civilian populationwhich may amount to crimes against humanity, asthe Resolution acknowledges, other actors in the in-ternational community are entitled to take the leadunder international law and implement the Principle ofthe Responsibility to Protect (R2P), provided certainlegal conditions are met.

The Resolution containsa fundamental contradic-tion. On the one hand, itexplicitly mentions the factthat the Council acts underArt. 41 of the UN Charter,which refers to measuresnot involving the use ofarmed force for giving ef-

fect to decisions of theCouncil in cases of breachof the peace or a threat tointernational peace and se-curity; on the other hand,the Council calls uponall Member States, work-

ing together and acting incooperation with the Secretary General, to facilitateand support the return of humanitarian agencies andmake available humanitarian and related assistancein the Libyan Arab Jamahiriya (par. 26). This wasconsidered a sufcient justication for enforcing a no-

y zone in the North and subsequently the South ofIraq, in order to protect Kurdish and Shiite popula-tions from persecution by their own government, backin 1991. At the time there was certainly no further re-action of the Security Council upon the UK, Franceand the US establishing a no-y zone and enforcingit with military means, acting upon a paragraph ofResolution 688 (1991) which is practically identical tothe last paragraph of Resolution 1970 quoted above.But the implicit veto of Russia and China against theuse of force in Libya to enforce the decision has ledin this case to the Security Council referring to Art. 41

Luis Peral*

March 2011

* Dr. Luis Peral is a Research Fellow at the EU

Institute for Security Studies.

Kevin

Frayer/AP/SIPA

Smoke rises following air strikes outside the town of Bin Jawad, eastern Libya, 6 March 2011.


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instead of making a general reference to Chapter VIIof the UN Charter.1

The international community, and in particular stateswilling to protect the victims of the massacres, is thusconfronted with what must qualify as the most unre-alistic and absurd decision that the Council has yetmade. In the present circumstances, there is abso-lutely no chance of enabling the Secretary Generalto make humanitarian assistance available through-out Libya, as requested by the Council, without usingmilitary force, which has formally been ruled out bythe Council. Ironically, the Resolution also requestsMember States willing to help the UNSG in provid-ing victims with humanitarian assistance to keep theCouncil regularly informed on the progress of actionsundertaken. Since the use of force in order to create

a no-y zone and protect humanitarian agencies is ex-cluded, UN Member States can perhaps make a directappeal to Gadda, whom the same Council Resolutionstops short of considering as a perpetrator of crimesagainst humanity, asking him to provide humanitarianassistance to the people he is slaughtering.

The shortcomings of the definition of R2P

in the 2005 Outcome Document

It is obvious that the sovereign territorial state bearsprimary responsibility for protecting its own popula-tion, particularly from mass violations of human rights.But it is equally obvious that in cases where such astate initiates a massacre against its own people, theinternational community needs a mechanism by whichR2P is shifted from the state to the international com-munity as represented by a coalition of states or by apeace-enforcing operation. It is thus all very well forthe Security Council to remind Gadda that he bearsinternational responsibility regarding crimes againsthumanity, in the hope that relevant norms and prin-

ciples will lead to an international trial and his subse-quent punishment. But since R2P concerns not the fu-ture criminal responsibility of individuals but the actualprotection of victims, the UNSCs reminder to Libyathat it bears a responsibility to protect the victims of itsown armed action is simply absurd. It is indeed pos-sible that it amounts to a strategy of the Council not to

1. Although some commentators considered at the time that the authori-sation to use force in Iraq, as formulated in the previous Resolution 678

demanding that Iraq withdraw its troops from Kuwait, constituted a validjustification for the use of force in order to implement Resolution 688, this

interpretation is clearly ultra vires: the use of force can only be authorised

under the Charter in order to give effect to a specific decision of the Coun-

cil, not as a general measure against one state.

discharge its own responsibilities under internationallaw.

The Report inspiring R2P was submitted to the UNGeneral Assembly shortly after 11 September 2001by the International Commission on Intervention andState Sovereignty, an international expert group whoundertook an exhaustive examination of internationallaw under the auspices of the Canadian government.According to this Commission, although they shouldalways be an exceptional measure, armed interven-tions to protect populations suffering mass violationsof human rights are legitimate, even in cases wherethe Security Council fails to provide the adequateauthorisation, when there is serious and irreparableharm occurring to human beings, or imminently likelyto occur, of the following kind: (a) large-scale loss of

life, with genocidal intent or not, which is the producteither of deliberate state action, or state neglect or in-ability to act, or a failed state situation; or (b) large-scale ethnic cleansing.2

The fact that R2P was endorsed by all UN memberstates on the occasion of the 2005 World Summit waswidely celebrated as a success, although it clearlyrepresented an attempt to empty the concept of anycontent by subsuming it under Chapter VII of the UN

Charter while leaving untouched the discretionarypowers of the Security Council, as the case of Libyaillustrates. Certainly, the World Summit OutcomeDocument endorsed by world leaders apparentlyembraced R2P as regards cases of genocide, warcrimes, ethnic cleansing and crimes against humanity.All states thus codied within a multilateral frameworktheir willingness to take measures which would benon-coercive in the rst instance but when necessarycoercive, specically mentioning Chapter VII, in caseswhere national authorities show signs of their inabilityor unwillingness to protect the population on their ter-ritory.3

Leaving aside all accompanying references to pre-vention, cooperation and solidarity, as well as to thecomprehensive action of the UN system, including allits agencies, and regional organisations and NGOsthat were incorporated in the subsequent Report ofthe Secretary General of January 2009 as regards

2. The Responsibility to Protect: Principles for Military Intervention, inThe Responsibility to Protect. Report of the International Commission on

Intervention and State Sovereignty, available at: http://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp#synopsis .

3. Paragraphs 138 and 139. In this context, the States show their support

for the mandate of the Special Advisor of the Secretary-General on the Pre-

vention of Genocide (par. 140).
http://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp#synopsishttp://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp#synopsishttp://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp#synopsishttp://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp#synopsis


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non-coercive measures,4the fact is that according tothe Outcome Document only the Security Council can,on a case-by-case basis, exercise R2P when a mas-sacre is ongoing and only military action can put anend to it. Thus the formulation of the principle emerg-ing from the World Summit serves precisely the op-posite purpose of the formulation in the Report of theInternational Commission on Intervention and StateSovereignty that had identied it as a fundamentalprinciple of international law.

As Lampedusas Prince of Salina so memorably putit, everything must change if we want everything toremain the same. But an alternative line of reason-ing applies, indeed must always apply, under interna-tional law, especially when a fundamental principle isat risk of being pre-empted. Considering that the 2005

Outcome Document leads to the conclusion that theSecurity Council bears responsibility on a case-by-case basis for protecting populations from the verymoment the territorial state shows its unwillingness orinability to do so in particular by initiating a massacreamounting to a crime against humanity two ques-tions emerge that need to be addressed:

1. Can the Council not only decide not to dischargeits own responsibility but even prevent other mem-bers of the international community from discharg-ing theirs by merely citing Art. 41 of the Charter?

In other words, can the UN system, including byconsensus of member states under the UN frame-work, limit the exercise of rights and faculties thatare conferred to sovereign states under interna-tional law beyond the UN Charter?

2. What are the options under the present internation-al order in cases where the Council is either unwill-ing to act efciently or lacks the necessary capacityto take on the responsibility for protecting victims ofa massacre? Is there a codied practice that wouldallow for action in spite of it not being authorised bythe SC?

Consequences of inaction of the Security

Council in R2P cases

Given that the Council can authorise the use of forcein order to give effect to its decisions to prevent or putan end to massacres, and that the territorial sovereignstate can always use force in order to prevent or put anend to massacres, R2P is necessarily redundant and

nonsensical when predicated on either the Council or

4. See full text of the Report in http://globalr2p.org/pdf/SGR2PEng.pdf.

of the territorial state. The principle becomes mean-ingful only when neither the territorial state nor theUNSC have discharged their respective and succes-sively applicable responsibilities. If R2P represents anattempt to avoid the territorial state using the shield ofsovereignty in order to legally massacre its citizens,it is equally unacceptable that the UNSC uses theshield of its discretionary powers in order to preventinternational action being deployed to protect the vic-tims. Endorsing a legal principle in order to preventits application is indeed contrary to international law,which is ultimately interpreted by sovereign states, inparticular when the UNSC fails to apply principles thathave been endorsed by them.

In this particular eld of resorting to intervention to pro-tect the victims of massacres, the fatal problem is that

international law has been disregarded and manipulat-ed for too long as a consequence of Washingtons em-brace of unilateralism in the aftermath of the al-Qaedaattacks of 11 September 2001. As the then UNSG KoAnnan put it in early 2004, the terrorist attacks in theUnited States and the war in Iraq succeeded in break-ing the consensus on what constitutes a threat topeace.5Even in the case of Afghanistan, where formallegal basis for the intervention was admittedly providedby the Security Council (ius ad bellum), agrant andstill ongoing violations of international humanitarianlaw (ius in bello), subsequently extended to Pakistan,

render this consensus on threats to peace and how torespond to them elusive and even futile. A consensuson the scope and extent of the legal order can only bebased on full compliance with basic legal principles.

If R2P represents such a basic consensus, thenmember states and the Security Council must be heldaccountable either for breaching the principle or fornot implementing it. The alternative would be that nei-ther member states nor the Security Council can beheld accountable under international law, or that theSecurity Council is in fact the sole interpreter of inter-national law. As stated by Jean Combacau in 1974,

a threat to peace according to the meaning of Article39 of the Charter is dened in terms of a situationconcerning which the competent organ determinesthat it does in fact constitute a threat to peace.6But,if that is the case, it is absolutely unrealistic to expectstates to respect decisions of the Security Council.The crucial question may therefore not be that the

5. Words of welcome by the UN Secretary-General during the meeting withNATO parliamentarians, New York, 8 March 2004 (see complete text at www.

un.org/apps/sgstats.asp?nid=808). His concern led to the forming of theHigh-level Panel on Threats, Challenges and Change, whose mandate con-sisted of re-establishing that consensus in order to overcome divisions in

the world and to propose lines of action to reform the UN on the occasion

of its 60thanniversary.6. Jean Combacau, Le pouvoir de sanction de lONU. Etude thorique de la

coercition non-militaire(Paris: Pedone, 1974), p. 100.
http://www.un.org/apps/sgstats.asp?nid=808http://www.un.org/apps/sgstats.asp?nid=808http://www.un.org/apps/sgstats.asp?nid=808http://www.un.org/apps/sgstats.asp?nid=808


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organ is not sufciently representative, as frequentlystated these days particularly by those states whowant to become permanent members of the SecurityCouncil but that its discretionary powers may trumpcompliance with basic principles of international law.In other words, expanding UNSC membership will nothelp forge a new international consensus on threatsto peace unless the organ becomes more account-able and not less active as regards discharging itsresponsibilities.

But the Council is bound to act in strictly legal terms.According to Article 39 of the UN Charter, it shalldetermine the existence of any threat to the peace,breach of the peace, or act of aggression and shallmake recommendations, or decide what measuresshall be taken in accordance with Articles 41 and 42,

to[authors emphasis] maintain or restore internation-al peace and security. The key here lies in the factthat the identication by the Council of the existenceof a threat to peace, as in the case of Libya, obligesit to act either by recommending or deciding whatto do so that peace is maintained or restored, forwhich it needs to either provide or else authorise oth-ers to provide the necessary means of action. Whatthe Council cannot do under the Charter is to identify athreat without providing or asking others to provide ananswer commensurate to the threat. Responsibilitiesare not dispensable but must be discharged.

The consensus expressed in the Charter and in theOutcome Document that the Council bears responsi-bility to act when the territorial state initiates a mas-sacre no longer stands in the event that the Councilfails to discharge such responsibility by providing anadequate and effective answer. Third states willing toprotect victims of massacres perpetrated by their owngovernments whose plight was not acted upon by theCouncil are thus entitled to do so, including by usingforce in as much as they fully respect all relevant inter-national principles. Third states do not bear a particu-lar responsibility or obligation under international law,

but their right to act cannot be pre-empted by thosewho have failed to discharge their responsibilities.

Framework for implementing R2P with-

out authorisation of the UNSC

There is a common belief that the principle of R2P isgrounded in international human rights law, but thisis only one of the possible interpretations. As Robert

Yewdall Jennings stated in 1939, well before interna-tional human rights law was enacted, persecutions

are of international concern for reasons exclusivelypertaining to sovereign rights of third countries:thewilful ooding of other states with refugees constitutesnot merely an inequitable act, but an actual illegality,and a fortiori where the refugees are compelled toenter the country of refuge in a destitute condition.7In this perspective, invoking the sovereignty of neigh-bouring states is in itself sufcient justication for anintervention to protect victims in Libya, their potentialexodus constituting a threat to peace and security,which reects the concerns of interior ministers of EUcountries bordering the Mediterranean (Italy, Malta,Cyprus, Greece, France and Spain) in a declarationthey made at a meeting held in Rome on 23 February.In an unprecedented joint statement, they urge theEU to establish a common and sustainable asylumsystem that includes relocating migrants within the

EU by the end of 2012 and a solidarity fund to helpthe Mediterranean countries that initially receive them,while warning of the danger of uncontrolled ows ofillegal immigrants and asylum seekers into Europe,with serious consequences and potential risks to EUinternal security.8

In the event that the UNSC is not prepared to imple-ment the principle, this and other similar lines of rea-soning should allow for action taken by a coalition ofthe willing. But, more fundamentally, the practice of theCouncil subsequent to its Resolution 688 (1991) pro-

vides a clear understanding of the content of interna-tional law in this respect, even if the pre-eminence at-tached by the body to counter-terrorism during the lastdecade has only introduced confusion in internationallaw and deviation from its core principles. Certainly,as a consequence of the end of the Cold War, theSecurity Council adopted a series of decisions whichresponded to common parameters of interpreting in-ternational law in R2P cases. The armed interventionsof limited scope that took place, with unequal results,in Iraqi Kurdistan, the former Yugoslavia, Somalia,Rwanda and Albania as well as some decisions suchas those concerning Abkhazia and Zaire (today the

DRC), have allowed for the establishment of a newcategoryof threats to international peace and secu-rity that is not solely or even predominantly based oninternational human rights law. In 1997, the Presidentof the Council identied what doubtless could be con-sidered the predominant rationale underpinning its

7. Some International Law Aspects of the Refugee Question, British Year-book of International Law, vol. XX, 1939, pp.111-2.

8. For details, see: http://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-

from-north-african-unrest?ref=topic&name=Storm-Centre&title = (accessed7 March 2011). The question is whether they are aware of existing adequate

legislation at the EU level, which however entails that they need to cre-

ate a category of protected persons coming from Libya in accordance withprevailing principles of international law (see my note Mass Exodus and theResponsibility to Protect under European and International law. The case of

Libyaat http://www.iss.europa.eu/uploads/media/Mass_exodus.pdf.
http://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-from-north-african-unrest?ref=topic&name=Storm-Centre&titlehttp://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-from-north-african-unrest?ref=topic&name=Storm-Centre&titlehttp://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-from-north-african-unrest?ref=topic&name=Storm-Centre&titlehttp://www.iss.europa.eu/uploads/media/Mass_exodus.pdfhttp://www.iss.europa.eu/uploads/media/Mass_exodus.pdfhttp://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-from-north-african-unrest?ref=topic&name=Storm-Centre&titlehttp://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-from-north-african-unrest?ref=topic&name=Storm-Centre&titlehttp://www.news1130.com/news/world/article/187844--mediterranean-countries-ask-eu-to-share-refugees-amid-migrant-waves-from-north-african-unrest?ref=topic&name=Storm-Centre&title


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decisions: the massive displacement of civil popula-tion in conict situations can result in a serious risk forinternational peace and security.9

Even if human rights considerations also played animportant role, the Councils willingness to protect civilpopulations caught up in conicts during the 1990scan only be explained as a result of the determinationto nd a legitimate way of avoiding a massive exo-dus of refugees. The legitimate method found was theprotection of humanitarian aid, which led to the im-plicit conclusion that protecting basic States interestsentailed greater efforts to provide assistance to civilpopulations trapped in conict. During these years, itwas conrmed that humanitarian assistance, protect-ed if necessary by peacekeepers or coalition forces,was the most efcient strategy taking into account

economic cost and the benets in terms of interstatesecurity for dealing with armed conicts. For thisreason, and not for any other, the Council has beenand still is perhaps the major promoter and protectorof the humanitarian work of NGOs.

In an attempt to fully describe and clarify this evolutionin the practice of peacekeeping, in 2000 the Counciladopted Resolution 1296, by means of which it triedto codifyexplicit threats to international peace and se-curity; threats which the collective security system, ona case-by-case basis, needed to be ready to address

at the turn of the twenty-rst century. These newthreats included, or were directly related to, deliber-ate attacks against the civil population or any othertype of protected persons in situations of armed con-ict; the perpetration of systematic massive violationsof international humanitarian law and internationallaw concerning human rights in situations of armedconict; denying free unhindered access to personnelwho carry out assistance or humanitarian tasks to civilpopulations in situations of armed conict; and the vul-nerability of refugees and displaced persons in campswhich could give rise to abuse or aggression, as wellas the risk of armed elements inltrating the camps.10

The Council has not honoured its own denition of cat-egories which call for its immediate action in the caseof Libya. Thus, to the extent that Resolution 1296 cod-

9. Declaration by the President of the Security Council on the protection of

humanitarian assistance to refugees and others in conflict situations, madein the name of the Council, 19 June 1997.

10. It should be pointed out, however, that all these categories of threats

constitute or may constitute immediate causes of forced mass exodus. Reso-lution 1296 is generally a well-conceived codification of the collective se-

curity system practice during the last decade of the twentieth century. Butthe Council of course insisted on the need to make decisions case by case,

and taking into account the circumstances of each situation (par. 1). The

circular definition of threat to peace that Combacau proposed in 1971 is

still fundamentally valid.

ies pre-existing practice, all states of the internationalcommunity are entitled to initiate action on the basisof international norms and principles as expressed ina Resolution of the Council that the Council itself isunwilling to apply. The remaining question is, though,howto implement R2P without further violating the in-ternational order.

Lack of proportionality in the use of force and theexistence of goals other than that of protecting civil-ians have characterised most of the self-proclaimedhumanitarianinterventions throughout history. Abuseon the part of the intervening states frequently de-legitimised their action in spite of their ofcial decla-rations. More recently, the cases of Afghanistan andIraq show that the failure to respect international hu-manitarian law also results in a complete disconnec-

tion between proclaimed goals and results. Emphasisshould thus be placed on means of action rather thanon the declared goals of the intervention. A precedentcan again be found in the interventions carried outduring the 1990s, but also including cases such asSierra Leone in this century, upon decisions of theSecurity Council intended to guarantee that humani-tarian assistance was effectively delivered. In order toprevent abuses in the use of force, these decisions infact subordinated all military actions to the needs ex-pressed by UN civil agencies which hold internationalmandates of action for protecting categories of vul-

nerable people, such as refugees, displaced personsand children, or for providing basic services such ashealth, food and education.

The Council authorised the use of force in as much asit was needed by humanitarian actors to perform theirtasks. From a practical point of view, it was not themilitary who dictated the strategy in the eld, but UNcivilian agencies who specically asked them to escorttheir convoys or protect their facilities. Even if localpopulations were not directly protected by the blueberets or the coalitions of the willing supporting theirtask of protecting humanitarian assets, abuses of the

intervening armies were in this way minimised or evenprecluded. The emerging criteria for a legitimate useof force is that of respecting protection requirementsof UN civilian agencies, as conrmed by the creationof temporary UN civil administrations in East Timorand Kosovo in 1999. The use of armed force was au-thorised only to the extent that it creates conditions inwhich international public civil action could take place.Any other use of force, particularly direct re whichis not justied under the principle of self-defence ofsoldiers as extended to humanitarian workers, wouldhave been deemed unlawful.


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Rather than the end goal of the intervention as de-vised by strategists, the subordination of military forceto international civilian authorities and actors providedlegitimacy under international law to interventions au-thorised by the Security Council in situations similarto that currently prevailing in Libya. Also, consideringthat such practice has been codied by the Councilparticularly in its Resolution 1296, the inaction of theCouncil, even its attempt to pre-empt R2P by mention-ing Art. 41 of the Charter, may not be an obstacle tolegitimate military intervention that is limited to guaran-teeing the delivery of humanitarian aid to the victims ofGadda. Such intervention should start with the estab-lishment of a no-y zone allowing for the return of aid

agencies to Libya and may be followed, if necessary,with the granting of escort and protection to humani-tarian action on the ground. The most basic principlesof international law as endorsed and consistently ap-plied by the international community under the aegisof the Security Council may not be violated by inter-vening states, as we have witnessed in recent years,nor can they be pre-empted by a Security Council thatseems unable or unwilling to discharge its responsibil-ity under international law. Although the Council hasexpressed its readiness to take additional measures ifhumanitarian aid is not guaranteed in Libya, the princi-ple of R2P does not allow for delays or hesitation oncea massacre is actually happening.

r2p in libya

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