Libya and R2P: norm consolidation or a perfect storm?

A similar conjoining of purpose with process, in relation to the collective use of force, has not been seen since the 1991 Gulf War.
Jess Gifkins Tim Dunne
19 April 2011

How far does NATO’s intervention to protect civilians in Libya represent a deepening of the norm of responsibility to protect (R2P)? The international community’s response to the current crisis shows signs of a progressive acceptance of R2P, although there are reasons to be cautious in thinking the same combination of factors are likely to hold in other cases of humanitarian atrocities.

In 2005, the United Nations General Assembly endorsed the idea that states, and the international community, bear a ‘responsibility to protect’ people from mass atrocity crimes, such as those in Libya that began in February 2011. While the Security Council agreed to the doctrine of the ‘responsibility to protect’ in 2006, it has only invoked it in relation to two cases, first Darfur and now Libya.

The Security Council referred to R2P on Darfur when authorising a United Nations peacekeeping force in Darfur (prior to UNAMID) however in this situation the government of Sudan did not consent to the deployment and the resolution was not implemented. This left the UN looking weak and contributed to further delays before a United Nations-African Union ‘hybrid’ peacekeeping mission was authorised a year later.

The two United Nations Security Council resolutions (1970 and 1973) adopted in response to the humanitarian crisis in Libya suggest, on the surface, that state leaders have taken civilian protection norms further than at any previous time when the ‘something must be done’ call has resounded throughout the international community.  In support of this view, notice how lack of consent on the part of the Libyan government did not prevent the Council from adopting and implementing a Chapter VII resolution.

What makes the forcible action to prevent further atrocities in Libya all the more remarkable, from the perspective of UN authorisation, is that when it came to voting on resolution 1973, no state can have been deluded into thinking military action might not follow. To use the term that divided the diplomatic community over Iraq in late 2002 and early 2003, it was clear that any resolution would ‘trigger’ immediate air strikes against Libyan military targets.

The conjoining of purpose with process, in relation to the collective use of force, has not been seen - so argues UN expert Ramesh Thakur - since the 1991 Gulf War. No other resolution has connected “all necessary measures” to civilian protection so explicitly. In so doing, the Libya case stands apart from other recent interventions for alleged humanitarian purposes. In the case of Kosovo, the British tried to argue that a UN resolution would not be achieved because permanent members of the Security Council were preparing to cast an ‘unreasonable’ veto.  In the case of Iraq in 2003, the legal basis for the war - albeit undertaken ostensibly to disarm Iraq - was grounded in the idea that earlier UN Security Resolutions 678, 687 and 1441 combined to achieve, ‘implied authorisation’. The current Libyan resolutions are more explicit in authorising the use of force to protect civilians.

A second line of argument in support of the view that the action against Libya is a significant consolidation of norms of civilian protection relates to the Security Council’s referral of the situation in Libya to the International Criminal Court (ICC) less than two weeks after the protests began.

This is only the second time the Security Council has referred a matter to the ICC for investigation.  Also noteworthy is the fact that the referral was carried out with every member of the Council agreeing, including the United States, a long-standing sceptic in relation to international criminal jurisdiction and an opponent of the Rome Statute. The only other case that the Council has referred to the ICC was Darfur, but this was more than two years after the crisis had begun. In the case of Libya, the Council has been remarkably quick, and surprisingly united in referring this matter to the ICC.

Perfect storm

Set against the view that Resolution 1973 constitutes R2P norm consolidation, several factors have to be born in mind. The first relates to the indeterminate character of the resolution in operational terms. The no-fly zone was authorised to be implemented by member states who have notified the Secretary-General of the Security Council or the League of Arab States.

According to a briefing by Ban Ki-Moon, the UK, the US, Denmark, Canada, Italy, Qatar, Belgium, Norway, Spain, the United Arab Emirates and NATO all sent letters of notification to indicate their involvement.  But who precisely was to lead the mission, and according to what terms of engagement? These questions were left unanswered in Resolution 1973.

The other reason to be cautious in relation to the intervention in Libya is that 1973 was more contentious than many have inferred. The absence of a veto being cast by a permanent member masks over the extent to which many influential countries refused to lend their support to the no-fly zone. To be lawful, Security Council resolutions only need 9 countries to vote ‘yes’, and no vetos. However, the Council places a great importance on unanimity and the vast majority of resolutions are passed with all 15 members voting ‘yes’. 

To show just how unusual the 10/5 split was in the Council, consider the fact that of the approximately 70 resolutions that are passed each year, about 65 of them include every Council member voting ‘yes’. In fact, resolution 1973 on Libya is the only resolution that has been passed by the Council so far in 2011 without the support of every Council member.

Abstentions by China, Russia, Germany, India and Brazil raise a bigger question for forcible civilian protection; what future do such actions have in a world that is not being led by the United States and its western allies? While Germany can be bracketed for reasons of the societal taboo on the use of force, the same does not hold for the so-called rising powers such as Brazil, China, Russia and India. The world after the decline of American hegemony is likely to be less inclined to engage in forcible protective interventions.

Supporters of the ‘Responsibility to Protect’ see 1973 as further evidence of a deeper normative consensus around the need to use force, as a last resort, in response to actual and potential atrocity crimes. Rather than viewing it as a precedent that is likely to be invoked at any point soon, there are good reasons for thinking of it as a ‘perfect storm’ demanding decisive action. Military force was clearly necessary to prevent further atrocities which Gaddafi was publically threatening; Gaddafi had made an enemy of the West in the 1990s following several high profile state-sponsored terrorist attacks; he had few friends in the region; and the geo-strategic terrain was favourable to NATO.

Accepting this, it is also the case that Resolution 1973 is the clearest example of the UN authorising enforcement action since the First Gulf War. We have evidence of an unusually forceful and quick response from the UN Security Council with the objective of protecting civilians. However, in thinking of Libya as a precedent, this must be tempered with an understanding of factors that are unique to this situation. Gaddafi loudly stated his intentions to engage in atrocities, and he lacked allies in the Security Council to prevent action from being taken against him. The situation in Libya has put R2P front and centre in diplomacy and security, but the factors that have here aligned to authorise and implement the no-fly zone may not coincide in other cases. 

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