the folly of protection is intervention against qaddafi’s regime legal and legitimate_

March 20, 2011SNAPSHOT

The Folly of ProtectionIs Intervention Against Qaddafi’s Regime Legal and Legitimate?

Michael W. Doyle

MICHAEL W. DOYLE is Harold Brown Professor of International Affairs, Law, and Political

Science at Columbia University and Chair of the United Nations Democracy Fund Advisory

Board.

In classic United Nations Security Council language, Resolution 1973, passed on March 17,

2011, authorized UN member states to “take all necessary measures . . . to protect

civilians and civilian populated areas” in Libya by establishing a no-fly zone and enforcing

an arms embargo against Colonel Muammar al-Qaddafi’s regime. The resolution gave teeth

to the much-heralded “responsibility to protect” -- which, according to the 2005 UN World

Summit Outcome, is the responsibility of the international community to “help protect

populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.”

The UN General Assembly adopted the principle of the responsibility to protect -- or RtoP,

its UN abbreviation -- in 2005 in a unanimous resolution advocated by nongovernmental

organizations; UN Secretary-General Kofi Annan and the high-level panel he appointed in

2005 to investigate how the United Nations could pursue reform; and Gareth Evans and

Mohamed Sahnoun, co-chairs of the International Commission on Intervention and State

Sovereignty, whose 2001 report urging adoption of RtoP drove the campaign for the

concept. The 2005 document articulating RtoP carefully deliniated grounds for action under

the doctrine, limiting it to four situations suitable for intervention: genocide, war crimes,

ethnic cleansing, and crimes against humanity. The Libyan intervention represents only the

third time since 2005 that the Security Council has invoked RtoP to enforce the protection

of civilians. The second case occurred just weeks ago, when the Security Council’s first

resolution targeted Qaddafi’s crackdown against Libya’s rebellion by calling for financial

sanctions and an arms embargo. Resolution 1973, however, marks the first Security

Council approval of force in the name of RtoP.

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In passing RtoP, the Security Council helped bridge the gap between so-called legitimate

(ethically justifiable) and legal (legally authorized) intervention. The Kosovo Commission, a

group of independent experts under the chairmanship of the South African justice Richard

Goldstone, first identified this dichotomy in 1999 while investigating the North Atlantic

Treaty Organization’s intervention in Kosovo. It deemed NATO’s actions “illegal but

legitimate,” in the sense that the Western countries had performed a legitimate rescue of

oppressed Kosovars likely to suffer ethnic cleansing under Slobodan Milošević’s leadership

but had done so without the Security Council’s legal sanction (unavailable due to the

threatened Russian and Chinese vetoes). To gain approval for their current intervention in

Libya, however, Western nations secured a resolution that passed with ten votes in favor,

no vetoes, and five abstentions from Brazil, China, Germany, India, and Russia.

By invoking RtoP for the intervention in Libya, the Security Council narrowed the divide

between legitimacy and legality. Yet the ethical and legal justifications for both elements

remain murky. Most significantly, a legitimate and lawful outcome to the operation is far

from assured.

The true complexity of the UN action against Qaddafi’s regime can be understood only by

investigating the UN Charter, which specifies that “nothing contained in the present Charter

shall authorize the United Nations to intervene in matters which are essentially within the

domestic jurisdiction of any state.” The only exception to this principle falls under Chapter

VII of the charter, which authorizes the Security Council to “determine the existence of any

threat to the peace, breach of the peace, or act of aggression” and act to “maintain or

restore international peace and security.” Internal abuses by states -- including the

slaughter of civilians -- do not automatically qualify as “international” threats under the

charter.

Nonetheless, the Security Council has, in practice, claimed wide discretion to interpret

events as “threats to the peace” that did not necessarily qualify as dangers to “international

peace.” This phenomenon became particularly acute following the Cold War, when the

Security Council further diluted the requirement of “international threat” by endorsing a

wide range of other triggers for successful Chapter VII sanctions. It authorized arms

embargoes, trade sanctions, no-fly zones, and even armed intervention against various

acts of genocide, ethnic cleansing, interference with the delivery of humanitarian supplies,

violations of cease-fires, collapse of civil order, and coups against democratic governments

and war crimes in Haiti, Cambodia, Iraq, Liberia, Rwanda, Somalia, and the former Republic

of Yugoslavia.

RtoP, responding to the sense that these domestic harms warranted international response,

solidified the Security Council’s claims to wider discretion. Yet it also restricted its ability to

sanction intervention to the four situations listed in the RtoP document -- genocide, war

crimes, ethnic cleansing, and crimes against humanity -- and thus precluded, for example,

intervention in cases of civil disorder and coups. Although the resolution authorizing force


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against Libya will certainly further entrench the principle of RtoP, it will not completely

resolve the tension between RtoP -- in itself only a General Assembly recommendation --

and the UN Charter itself, which, according to the letter of the law, limits action to

“international” threats. Equally significant, the Libyan resolution authorizes only a no-fly

zone and the protection of civilians, not the ouster of Qaddafi that U.S. President Barack

Obama has called for and which is most likely to resolve the crisis politically.

The no-fly zone itself faces questions of ethical legitimacy as well. An old tradition of ethical

and practical lessons, dating at least as far back as the writings of the British philosopher

John Stuart Mill in the middle of the nineteenth century, argues against armed intervention

for the sake of protecting civilians and promoting human rights and democracy. For anyone

committed to human dignity, this tradition claims, democracy and human rights must

derive from self-government, not laws and regulations imposed by foreigners, however well

meaning. And imposing democracy from the outside tends to fail. Democracy is not only

government for the people; it is also government of and by the people. Unless citizens view

themselves as a collective body and are prepared to pay taxes, defend their borders, and

abide by majority rule, democracy is unsustainable. These attributes are more often

achieved by long national struggles and wars of liberation than foreign intervention.

Thus, when foreigners seek to liberate a country whose people have been unable to liberate

themselves, they often fall into one or more of three traps. First, the leadership that

replaces the former regime finds that it cannot rule because it has not been able to mobilize

the support to win on its own, and, as in Iraq, civil strife follows the liberating invasion. The

new leadership finds itself in the second trap when it can only remain in power thanks to

ongoing foreign support. As a result, it renders the country a client state rather than a free

nation. The third trap occurs when the leadership learns that it can only govern as the

previous dictator did -- by force. The liberating invaders are thus responsible not only for

the monetary and human costs of the invasion but for having produced a civil war, a

colony, or one more tyranny with a new ideological label attached.

Foreign states must sometimes override or disregard these traps. The national security

interests of a given country may require intervention, or the casualties being suffered or

likely to result from a domestic conflict are so large as to demand a humanitarian rescue

(such as in Rwanda in 1994). Such humanitarian rescue offers the best justification for the

current intervention in Libya. Yet legitimate armed interventions must be proportional, in

the sense that they will actually cost fewer lives than they save. The no-fly zone is saving

the rebels and their civilian supporters at the moment, but their current preservation may

simply set the stage for a prolonged and costly civil war.

Military action should also not be undertaken unless it is likely to be successful. Success

with regard to the Libyan intervention has yet to be defined. Qaddafi probably would have

been able to conquer the rebel capital Benghazi with his air force, artillery, and armor, but

the commencement of allied intervention will destroy the air force and protect the civilian


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population from large-scale ground attacks. However, it does not appear that the rebels

can conquer the country even if Qaddafi’s air force is neutralized unless they are aided by

international arms or forces on the ground -- assistance not authorized by Resolution 1973.

The current intervention in Libya, then, seems to wed legality with ethical legitimacy. But it

strains against the letter of the UN Charter law on intervention and will remain ethically

problematic unless it can help resolve the crisis without further substantial loss of life. This

uncertainty will pose intricate problems for policymakers and negotiators in the weeks and

months ahead. If Qaddafi retains power while the rebels maintain their own territory, will

partition provide a workable solution? If Qaddafi and the rebels cannot achieve any political

agreement, can the international community continue its involvement while the two sides

battle it out with small arms? Or will the interveners brush aside the restrictions of the

Security Council resolution and topple Qaddafi -- and thereby discredit the legal

authorization of RtoP? Regardless, the intervention in Libya is sure to shape how RtoP is

applied in the future.

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