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NATO
intervention in What has transpired
since March when the UN Security Council gave its go-ahead for the use
of force to protect civilians in 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, as a moral success that averted a humanitarian catastrophe, and as political success the creation of an opportunity for freedom and constitutionalism on behalf of a long-oppressed people. This is one of those rare results in an international conflict situation that seem 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 What has transpired
since March when the UN Security Council gave its go-ahead for the use
of force to protect civilians in This rather extraordinary
claim cannot be tested by reference to There is a heavy dose
of implicit paternalism, condescension, and pass 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, even assuming that the post-Qaddafi
experience in the country is not too disillusioning in this one set
of circumstances. What about putting the failed interventions into the
balance, and then deciding whether it is helpful or not to encourage
the West, which means mainly the And let us not be
too quick to heap praise on 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 International law concerns Yet such worries are
not just about the uncertain future of 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-defence against a substantial prior 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 authorised by the Security Council. The Security Council debate on authorisation 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 Security Council Resolution 1973, which in March 2011 set forth the guidelines for the intervention.This extensive resolution articulated the mission being authorised 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 emphasised the application of the norm of Responsibility to Protect (R2P) endorsed by the Security Council a few years ago 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 blander 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 under way, the NATO operation unilaterally expanded and qualitatively shifted the mission as authorised, and almost immediately acted to help the rebels win the war and to make non-negotiable the dismantling of the Qaddafi regime. NATO made these moves without even attempting to explain that it was somehow still acting primarily to protect 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! Dilemma It would have been
possible during the Security Council debateto explain in a forthright
manner what obviously must have been the real intentions all along of
NATO. It would have been possible and respectful of the integrity of
UN discourse to have made the attempt to convince the members of the
Security Council that the only way the Libyan people could be protected
was to help the rebels win the civil war and to be sure that 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 A similar dilemma
faced the intervening governments prior to NATO's 1999 Kosovo War. It
was resolved by ignoring the legalities altogether, with NATO acting
without any Security Council authorisation. 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 authorisation,
for the later claim of de facto authority to carry out the Iraq invasion
without gaining prior UN approval. In both Kosovo and Responsibility With regard to Libya, the culprits are not just the states that participated in this runaway operation; the members of the Security Council that abstained from supporting Resolution 1973 and the Secretary-General of the United Nationshave a special duty to make sure that the limits of authorisation were being respected throughout the undertaking. It would seem to be a matter of constitutional responsibility for all members of the Security Council to ensure respect for the UN Charter's core effort to prevent wars and seek peaceful resolution of conflicts. When exceptions are made to this generalised Charter prohibition on the use or threat of force they should always be strictly formulated, and then continuously monitored 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 upholding the autonomy and legitimacy of the United Nations. The Secretary-General also has secondary responsibility to take appropriate steps to call the attention of the membership to such blatant departures from an authorising 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 realised that the actions
of the Security Council are not subject to judicial review. This controversial
doctrine of judicial self-restraint within the UN system was ironically
decided by the 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 when it contained such ambiguous and vague language as to raise a red flag as to the scope of the proposed authorisation. 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 signalled 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 needed protection to Libyan civilians. Almost immediately once NATO launched its operations, it became obvious that an entirely new and controversial mission was under way than what was acknowledged during the debate that preceded the adoption of 1973. The US Supreme Court has often invalidated Congressional action as 'void for vagueness', and this is something in the UN setting that Security Council members should have been 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 UN 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 Organisation. 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 authorised and what was done, especially when force
is authorised and sovereign rights are encroached upon. This correspondence
was not present in the Libyan intervention, and this abuse of authority
seems to have been barely noticed in any official way, although acknowledged
and even lamented in the corridors and delegates lounge of UN headquarters
in 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, the territorial integrity, and economic autonomy 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. Of course, this imperative does not imply a whitewash for tyrannical rule. Richard Falk is
an international law and international relations scholar who taught
at *Third World Resurgence No. 253, September 2011, pp 39-42 |
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