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The Folly of Protection
 Is intervention against qadaffi legal and legitimate

Foreign Affairs
Michael W. Doyle
March 20, 2011

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.

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.

Success with regard to the Libyan intervention has yet to be defined.

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. (…)

(…)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. (...)

(...)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 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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