Preliminary Libyan Scorecard: Acting Beyond the UN Mandate
TRANSCEND MEMBERS, 19 Sep 2011
In Western circles of influential opinion, the outcome of the NATO intervention in Libya has already been pronounced ‘a victory’ from several points of view: as a military success that achieved its main goals set at acceptable costs, averting as a moral success in averting a humanitarian catastrophe, and as political success that created an opportunity for freedoom and constitutionalism on behalf of a long oppressed people with the. This is one of those rare results in an international conflict situation that seems to please both conservatives and liberals. Conservatives because it was a show of force that reaffirmed Western primacy based on military power. Liberals because force was used with UN backing in accordance with international law and in furtherance of human rights and liberal values.
Qaddafi and his loyalists are apparently a spent force, and the future of Libya now becomes a work in progress without any clear understanding of who will call the shots from now on. Will it be the Libyan victors in the war for the control of the country? Will it be their NATO minders hiding behind the scenes? Will the NATO representatives do the bidding of the oil companies and the various corporate and financial interests that make no secret of seeking a robust profit-making stake in Libya’s future? Or will it be some combination of these influences, more or less harmoniously collaborating? And most relevant of all, will this process be seen as having the claimed liberating impact on the lives and destinies of the Libyan people? It is far too early to pronounce on such momentous issues, although sitting on the sidelines one can only hope and pray for the best, but it is not too soon to question the unconditional enthusiasm for what has been done and what it portends for the future of UN peacekeeping.
What has transpired since March when the UN Security Council gave its go ahead for the use of force to protect civilians in Libya should not be an occasion for cheering, but it has been in Western elite circles. Perhaps this unfortunate triumphal spirit was most clearly voiced by Roger Cohen writing in the New York Times, who viewed the Libyan intervention as a historically momentous discharge of global moral responsibility that seems to believes rests on the shoulders of post-colonial pro-activist leaders in the West: “..the idea that the West must at times be prepared to fight for its values against barbarism is the best hope for a 21sr century less cruel than the 20th .” This rather extraordinary claim cannot be tested by reference to Libya alone, although even narrowly conceived the grounds for such confidence in Western uses of force in the global south seems stunningly ahistorical. But if the net is enlarged, as it must be, to encompass the spectrum of recent interventions under Western auspices that include Vietnam, Iraq, and Afghanistan making the self-absorbed gaze of Cohen seem like a dangerous form of advocacy relating to the use of force in international relations. Looking at this broader experience of Western intervention makes one squirm uncomfortably in reaction to the grandiose claim that the willingness of leading Western countries to police the world is humanity’s ‘best hope’ for the future. Cohen is not timid about insisting that Libya provides a positive model for the future : “The intervention has been done right—with the legality of strong backing, full support of America’s European allies, and quiet arming of the rebels.” A contrast with Iraq is drawn, implying that it was an intervention ‘done wrong.’
There is a heavy dose of implicit paternalism, condescension, and passé consciousness, not to mention wishful thinking, present if the West is to be identified as the best hope for the future just because it managed to pull off this Libyan intervention, that is, assuming that the post-Qaddafi experience in the country is not too disillusioning. What about putting the failed interventions into the balance, and then deciding whether it is helpful or not to encourage the West to take on this protective role for the rest of the world? I seem to remember in days past such self-empowering phrases as ‘white man’s burden’ and ‘civilizing mission.’ It seems arbitrary and contentious to situate barbarism geographically, and it certainly seems strange to think that the locus of barbarism is in the non-West.
And let us not be to quick to praise this Libyan model? It is certainly premature to conclude that it has been a success before acquiring a better sense of whether the winners can avoid a new cycle of strife and bloodshed, and stick together in a Libya without the benefit of Qaddafi as the common enemy. Or if they do, can they embark upon a development path that benefits the Libyan people and not primarily the oil companies and foreign construction firms. Any credible assessment of the Libyan intervention must at least wait and see if the new leaders can able avoid the authoritarian temptation to secure their power and privilege within the inflamed political atmosphere of the country. The majority of the Libyan people undoubtedly have strong expectations that their human rights will now be upheld and that an equitable economic order is soon established that benefits the population, and not the tiny elite that sits on the top of the national pyramid. These are expectations that have yet to be satisfied anywhere in the region. The challenge is immense, and perhaps is beyond even the imagination of the new leaders, and likely exceeds their capabilities and will.
Yet such worries are not just about the uncertain future of Libya. Even if, against the odds, Libya turns out to be the success story already proclaimed, there are still many reasons to be concerned about the Libyan intervention serving as a precedent for the future. These concerns relating to international law, to the proper role for the UN, and to the shaping of a just world order have been largely ignored in the discussion of the Libyan intervention. In effect, once NATO helped the rebels enough to get rid of the Qaddafi regime, it becomes irrelevant to criticize the undertaking and such issues were completely ignored by the media. In the rest of this blog I will try to explain why the Libyan intervention should be rejected as a precedent, and steps taken to avoid its repetition.
As the World Court made clear in the Nicaragua decision of 1986, modern international law does not allow states to have recourse to force except when acting in self-defense against a substantial armed attack across its borders, and then only until the Security Council acts. The United Nations, normally the Security Council, but residually the General Assembly, has the authority to mandate the use of force under Chapter VII of the UN Charter on behalf of peace and security, including on the basis of UN evolving practice, for humanitarian ends under extreme circumstances of the sort that arguably existed in Libya during the latter stages of Qaddafi’s rule. This humanitarian extension of UN authority has been challenged as opening a loophole of indefinite dimensions that can be used to carry out a post-colonial imperialist agenda. Even granting that humanitarian ends should now be understood to have been legally incorporated into prevailing ideas of ‘international peace and security,’ a crucial further question exists as to whether the force used by NATO remained within the confines of what was authorized by the Security Council.
The Security Council debate on authorization indicated some deep concerns on the part of important members at the time, including China, Russia, Brazil, India, and Germany, that formed the background of SC Resolution 1973, which set forth the guidelines for the intervention.This extensive resolution articulated the mission being authorized as that of protecting threatened Libyan civilians against violent atrocities that were allegedly being massively threatened by the Qaddafi government, with special reference at the time to an alleged imminent massacre of civilians trapped in the then besieged city of Benghazi. The debate emphasized the application of the recently endorse norm of Responsibility to Protect (R2P) that sought to allay fears about interventions by the West in the non-West by refraining from relying on the distrusted language of ‘humanitarian intervention’ and substituting a way of describing the undertaking as less of a challenge directed at the territorial supremacy of sovereign states and more in the nature of a protective undertaking reflecting human solidarity. The R2P norm relies on a rationale of protecting vulnerable peoples from rulers that violated basic human rights in a severe and systematic fashion.
But once underway, the NATO operation unilaterally expanded the mission as authorized, and almost immediately acted to help the rebels win the war and to make non-negotiable the dismantling of the Qaddafi regime without any special attention to the protection of Libyan civilians. This was not just another instance of ‘mission creep’ as had occurred previously in UN peacekeeping operations (for instance, the Gulf War of 1991), but rather mission creep on steroids! It would have been possible to explain what were obviously must have been the real intentions all along of NATO during the Security Council debate, including even setting forth an argument that the Libyan people could not be protected unless the rebels won the civil war and Qaddafi was taken out of the picture. Presumably such forthrightness was avoided by the pro-interventionist states because it would almost certainly have turned several of the already reluctant abstaining five countries into negative votes, including in all likelihood, those of China and Russia that are permanent members whose votes have a veto effect, thereby preventing the Security Council from reaching a decision. So the pro-interventionists admittedly faced a genuine dilemma: either dissemble as to the ends being pursued and obtain the legitimacy of limited advance authorization from the UN or reveal the real goals of the operation and be blocked by a veto from acting under UN auspices.
A similar dilemma faced the intervening governments prior to the 1999 NATO’s Kosovo War. It was resolved by ignoring the legalities altogether, with NATO acting without any UNSC authorization. It was also a controversial precedent, and some blamed the Kosovo reliance on ‘a coalition of the willing’ or on a military alliance as providing a sufficient authorization, for the later claim of de facto authority to carry out the Iraq invasion without gaining prior UN approval. In both Kosovo and Iraq circumventing the UN’s legally prescribed role of deciding when to authorize non-defensive force on behalf of international peace and security was criticized, but the unlawfulness of the action led to no clear repudiation of either intervention after the fact, and rather highlighted the weakness of the UN as the Organization acted in both cases to ratify the results of uses of force that clearly violated the UN Charter unconditional prohibition imposed on all uses of non-defensive force by member states. This rogue recourse to force was especially disturbing in Iraq as the attack legally amounted to a war of aggression, a crime against the peace in the language of the Nuremberg Judgment rendered in 1945 against surviving Nazi leaders after World War II.
With regard to Libya, the culprits are not just the states that participated in this runaway operation, but the members of the Security Council and the Secretary General of the United Nations that abstained from supporting Resolution 1973 seemed to have a special duty to make sure that the limits of authorization were being respected throughout the undertaking. It would seem to be a matter of serious responsibility for all members of the Security Council to ensure respect for the Charter’s core effort to prevent wars and seek peaceful resolution of conflicts. When exceptions are made to this generalized Charter prohibition on the use or threat of force it should always be strictly observed and interpreted, and if limits are exceeded, then the supervisory authority and responsibility of the Security Council should kick in as a matter of course, and in a spirit of constitutional seriousness. The Secretary General also has secondary responsibility to take appropriate steps to call the attention of the membership to such blatant departures from an authorizing resolution as an essential aspect of his role as custodian of the integrity of UN procedures and as the UN’s de facto ombudsman in relation to ensuring fidelity to the Charter. This allocation of responsibility seems more important when it is realized that the actions of the Security Council are not subject to judicial review. This controversial example of judicial self-restraint within the UN System was ironically decided by the World Court in the 1992 Lockerbie case involving sanctions imposed on Libya in apparent violation of relevant treaty law. The majority of the judges concluded that whatever the Security Council decided needed to be regarded as authoritative even if it went against international law, that this was the last word so far as international law was concerned.
Against this background, the abstaining states were also derelict at the outset by allowing a resolution of the Security Council involving the use of force to go forward considered that it contained such ambiguous and vague language as to raise a red flag as to the proposed authorization. Although Security Council Resolution 1973 did seem reasonably to anticipate mainly the establishment of a No Fly Zone and ancillary steps to make sure it would be effective, the proposed language of the resolution should have signaled the possibility that action beyond what was being mandated was contemplated by the NATO countries and would likely be undertaken. The notorious phrase ‘all necessary measures’ was present in the resolution, which was justified at the time as providing the enforcers with a desirable margin of flexibility in making sure that the No Fly Zone would render the protection promised. Almost immediately once NATO launched its operations it became obvious that an entirely new and controversial mission was underway than what was acknowledged during the debate that preceded the adoption of 1973. The U.S. Supreme Court has often invalidated Congressional action as ‘void for vagueness,’ and this is something in the UN setting that the members should be prepared to do on their own in their role as final guardians of constitutional integrity in relation to war making under UN auspices. Given the Charter emphasis on war prevention and peaceful settlement of disputes, it should be standard practice that exceptional mandates to use force would be interpreted strictly to limit the departure from Charter goals and norms, but the record even before Libya has been disappointing, with geopolitics giving states a virtually unlimited discretion that international law purports to withhold.
There is a further related issue internal to best practices within the United Nations itself. The Security Council acts in the area of peace and security on behalf of the entire international community and with representational authority for the whole membership of the Organization. The 177 countries not members of the Security Council should have confidence that this body will respect Charter guidelines and that there will be a close correspondence between what was authorized and what was done especially when force is authorized and sovereign rights are encroached upon. This correspondence was not present in the Libyan intervention, and it seems to have barely noticed in any official way, although acknowledged and even lamented in the corridors and delegates lounge of UN Headquarters in New York City.
This interpretative issue is not just a playground for international law specialists interested in jousting about technical matters of little real world relevance. Here the life and death of the peoples inhabiting the planet are directly at stake, as well as their political independence and territorial integrity of their country. If the governments will not act to uphold agreed and fundamental limits on state violence, especially directed at vulnerable countries and peoples, then as citizens of the world, ‘we the peoples of the United Nations,’ as proclaimed by the Preamble to the Charter need to raise our voices. We have the residual responsibility to act on behalf of international law and morality when the UN falters or when states act beyond the law.
Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, the author or co-author of 20 books and the editor or co-editor of another 20 books, speaker, activist on world affairs, and an appointee to two United Nations positions on the Palestinian territories. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies, and since 2005 chaired the Board of the Nuclear Age Peace Foundation.
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