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Libya: does the Responsibility to Protect entail regime change?

March 29, 2011

The UN Security Council has put itself and others in a difficult spot over Libya. This is because it has mandated those of its Member States who are operational in and around Libya to take all necessary measures to protect civilians, when the avowed policy intention of so many of them is in fact regime change. France, the UK and the USA to name three of the governments most involved in military action, have all in different ways said so. Just to be clear, British Foreign Secretary William Hague said on Channel 4 News last night that he saw no future in a partitioned Libya, and did not expect others at today’s international summit in London to see it as a desirable outcome. So what we are witnessing and many are celebrating is surely a UN-mandated operation expressly designed by those planning and implementing it (whatever the actual intentions of those who voted for it), to help lever Gaddafi from power. This may well result in a political vacuum, in a fragile state whose political institutions are inadequate to deal with this kind of massive change, and thus the distinct possibility of further conflict in the months and years after he’s gone.

Of course, it looks clear that proportionally more violence against civilians is being conducted by Gaddafi’s forces than by the opposition. So, for now at least, it’s easy for NATO and its members to justify a military action which so far is entirely targeting one side in Libya’s civil war, in terms of UN SCR 1973. I’ve limited knowledge or understanding of the nature of the Libyans and Libyan groups taking part in the uprising, so no way to know how likely they are (whether now, fighting against Gaddafi, or later in a possible future fight among themselves) to commit atrocities against civilians. On the basis of the news currently emerging, they seem to be conducting themselves more decently than Gaddafi’s people. So intervening on their side seems virtuous. But it’s important to look at this on a longer-term and a wider canvas.

I’m personally an agnostic on the question of whether the international military intervention is the right thing to do, simply because I have insufficient knowledge of Libya to be able to estimate the most likely results of such an action over the medium and longer term. And after the revelations of Coalition ignorance about the Iraq they decided to invade, and the lack of forethought about what to do about the crockery they were about to break, I’m somewhat afraid that the UN and its Member State governments also lack the detailed intelligence to enable them to make an informed assessment of what might happen next in Libya. But I certainly back the principle of the international community intervening militarily under its Responsibility to Protect, provided the justification for doing so is based on solid intelligence that allows it to fulfil the requirements of a just war.

A Just War jus ad bellum – paraphrasing St Thomas Aquinas and others, is one which is waged with legitimate authority, with just cause and “right intention”. It must be likely to result in the restoration of law and order and the conditions for the fulfilment of human rights; it must be a last resort; and it must be fought proportionally. Finally, it must have a high probability of success: be winnable in the shortest possible time causing the minimum amount of harm.

We can of course be wary of a set of rules drawn up by the mediaeval Catholic Church to provide its secular co-establishment – the kings and princes of mediaeval Europe – with a religious justification for their military exploits. Nevertheless, jus ad bellum was not entirely cynical in its origins, has evolved over the intervening centuries, and continues to provide a basis on which to consider the ethical dimensions of something – waging war – which will always be a predominantly political enterprise.

The difficulty in the case of the international engagement in Libya is obvious. Its legitimacy is in doubt, since it appears to be premised on a confusion: on the one hand, the UNSC – the supreme authority – has mandated operations to protect civilians; on the other, the governments with authority over NATO forces have declared that their policy goal is Gaddafi relinquishing power. Sophistry aside, it’s hard to separate the one goal from the other.

The actual political goal of the action therefore seems to be regime change. Can this be considered Right Intention? I’d say yes, given the Gaddafi regime’s record of poor governance and abuse of rights – and its own flagrant abuse of the rules for waging war, jus in bello : proportionality, distinction between military and civilians, and military necessity. But with one caveat: will the regime that replaces Gaddafi be significantly better than his regime, and will that improvement be worth the death, suffering and damage incurred? On balance, the answer seems likely to be yes.

However, it also behooves us to look at this on a wider canvas. Responsibility to Protect (R2P) is still very new. It says that:

“Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it…

“… The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity…”

R2P was adopted as a text by the UN General Assembly in 2005, which may well be seen by historians in the future as a critical point in the evolution of global governance to rival St Thomas and his Just War ideas. But it will take time for this principle to become a genuine part of international doctrine. For that, the R2P needs to be cited in important decisions, and a body of precedence in its use needs to be accumulated, so that decision makers in the future – be they heads of state making decisions about how to treat their citizens, or internationals deciding whether to intervene on behalf of those whose governments fail to protect them – have an operational framework to go by.

Libya is perhaps the first time R2P has been invoked so publicly, on such a scale, and used within the UNSC to justify a major military action. So the way it is framed and the way it plays out take on an importance even greater than the well-being of Libyans; affecting the well-being of future populations whose governments fail to live up to their responsibility. Getting it wrong may mean years of delay in turning R2P into a doctrine that’s widely accepted and provides legitimacy to protect civilians elsewhere, and in the future.

I understand that it’s naïve to think we can divorce weighty decisions like suspending the sovereignty of a UN Member State, from issues of realpolitik. Nor is this blog an argument against the international action in Libya. But we must be wary of the kind of dishonesty inherent in the international system, which allows powerful Member States to lead the way in persuading the UN-SC to mandate violent action against a regime which those same States have already declared needs changing, using the language of R2P.

In Iraq, the arguments about invasion hung mainly on two hinges: getting the UN’s blessing, and the presumed existence of WMD. What was too often missing in public discourse was a frank discussion about the real objectives and plans. This would have allowed people to make an informed political and ethical judgement. The righs and wrongs got lost in the fog of sophistry. In the future, if we are to evaluate the rights and wrongs of international intervention being proposed under R2P, it is of utmost importance that the language used to frame and justify the intervention is as honest and frank as possible, both at the UN and in the parliaments and public discourse of those doing the proposing. It seems a pity that this lesson hasn’t yet been learned; or that the system and culture of international governance still makes frankness such a rare commodity.

One Comment leave one →
  1. April 8, 2011 9:21 am

    Phil Vernon’s article on Libya and the responsibility to protect is a thoughtful and balanced argument that does, in my opinion, contribute to the debate. Essentially he is arguing in favour of the establishment of R2P within international law. He takes the concept of a just war and the General Assembly’s adoption of R2P in 2005 as the starting point and then argues in favour of the development of an international legal doctrine through precedent. Such a process is indeed the manner in which laws develop and become established within regions of the world where the law is based upon the English tradition (i.e. law based on precedence as opposed to civil code). But as Mr. Vernon points out there are problems here that need to be discussed.

    Initially the world observed the encouraging signs of popular uprisings across the Arab world that unseated dictators in Tunisia and Egypt. When this Arab revolt extended into Libya however, the Gaddafi regime turned its guns and aircraft on the rebels. Then when the Arab League came out in favour of a ‘no fly’ zone, the scene was set for a Security Council resolution. As Mr. Vernon points out in the case of Libya there are already indications that the major powers who both pressed for the UNSC decision and are carrying out the military action against the Libyan army appear to have a motive which goes well beyond the mandate of the SC decision. Hence the precedent in support of R2P that one might hope to establish via the UN SCR with respect to Libya may well prove to be a poor case to promote the concept and its equitable use in future.

    I would take this caution one step further. While I agree that establishing principles of international law to override the sovereignty of nation states in defence of human rights represents a lofty goal, there is a serious problem in trying to do so within the current structure of the United Nations. Although the UN preamble exalts principles of inalienable human rights, as Mark Mazower demonstrates in his book on the history of the UN, the real aim in setting up the UN was to permit the major powers (the victors of WWII) to maintain hegemony across the world. Admittedly the UN has evolved from that inauspicious beginning, but power in the UN remains with the Security Council and more precisely with the five permanent members who enjoy veto rights. The US, the UK and France happen to be such privileged states; the UK and France are of course former colonial powers and the US under George W. Bush invaded Iraq under false pretences and the dubious doctrine of preventive war. This history matters and these three nations are the main combatants in the Libyan operation. The players involved in Libya today are not appropriate to the purpose of setting a precedent for R2P.

    David Hillstrom

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