Preliminary Libyan Scorecard: Acting Beyond the UN Mandate
Foreign Policy Journal
8 September 2011
Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has 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.
(…) And let us not be too 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, that they can 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 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 endorsed 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. (…)
With regard to Libya, the culprits are not just the states that participated in this runaway operation, but also the members of the Security Council and the Secretary General of the United Nations that abstained from supporting Resolution 1973, who seemed to have a special duty to make sure that the limits of authorization were being respected throughout the undertaking. (…) This allocation of responsibility seems more important when it is realized that the actions of the Security Council are not subject to judicial review. (…)
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. (…)
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 the 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.
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