By Asli Bali
The Libya intervention is important for three reasons. First and foremost, its potential consequences for the people of Libya give urgency to the current stalemate. Second, the intervention may have profound implications for the “Arab Spring” in the rest of the region. Finally, the intervention is important because of the precedent that has been set in the international system. Whatever the ultimate outcome of the intervention on the first two scores, from this third perspective, the precedent set by the United Nations Security Council’s authorization of a military intervention in Libya is already evident.
From an international law perspective, the Libyan intervention is unprecedented. While it is true that the Security Council (UNSC) had previously authorized the use of “all necessary means” to provide security in the delivery of humanitarian relief supplies in Somalia and to create a safe haven in Srebrenica, these authorizations were for activities to which the relevant governing authorities had consented. Both the Bosnian government and the nominal government in Somalia were seeking the assistance of the United Nations in those instances. Thus, the interventions in those cases were more akin to peacekeeping than a stand-alone authorization of coercive humanitarianism. Libya represents the first time that the UNSC, acting solely on its Chapter VII powers, has authorized the use of “all necessary measures” to protect the humanitarian welfare of a civilian population. In other words, this is the first Security Council-authorized humanitarian (military) intervention.
Under the UN Charter, the UNSC may authorize the use of force in response to a threat to international peace and security. But the Council did not find such a threat in the Libyan case. Rather, in Resolution 1973, the UNSC obliquely referenced the relatively novel doctrine of “responsibility to protect” as the basis for its authorization, by invoking the failure of Libyan authorities to effectuate their responsibility to protect the Libyan population. Despite this reference, however, the course of UNSC action in Libya has run roughshod over the precautionary principles embedded in the doctrine of responsibility-to-protect.
The responsibility to protect entails, first and foremost, a responsibility in the international community to take peaceful measures to prevent harm to civilians. The principal tools by which this responsibility is to be fulfilled are such diplomatic measures as capacity-building, mediation and negotiation. Only should all diplomatic efforts fail may coercive means be contemplated. And should coercion be necessary, coercive measures are to be minimized, imposed incrementally and given an opportunity to have an effect.
In the case of Libya, coercive measures were the first rather than the last option employed by the Council. The first protests in Libya began on February 15, 2011. The Gaddafi regime responded with violence within the first few days, much as had been the case in Egypt, Bahrain and Yemen. Unlike those cases, however, the UNSC moved precipitously to address the Libyan situation. Within one week of the first protests, on February 22, 2011, the UNSC issued a press statement expressing its concern. Within four days of that statement, the Council adopted its first package of coercive measures in Resolution 1970 — an asset freeze, arms embargo, travel ban and referral of the regime to the International Criminal Court — without attempting any diplomatic overture to the Libyan authorities. Further, by threatening the regime with criminal indictment, this first concrete action by the UNSC seemed likelier to foreclose than encourage a negotiated solution to the crisis. Less than three weeks after that sanctions package was passed, the UNSC passed Resolution 1973 with an open-ended authorization to use force.
The UNSC authorized “all necessary measures” short of an “occupation force” to “protect civilians and civilian populated areas under threat of attack.” While the resolution specifically references a “no fly zone”, the breadth of the authorization far exceeds that tactic to include authorization to engage in aerial attack against ground forces should they be deemed a threat to civilian populations (dubbed by some a “no drive zone”) and indeed to deploy ground troops for any purpose other than as an “occupation force”. On what basis had the UNSC concluded that such open-ended authorization of force would accomplish the purpose of protecting civilians or facilitate political transition in Libya?
Three months after the passage of Resolution 1973 there remains no clear strategy that can be accomplished on the basis of the tactic authorized by the Council and pursued by NATO. With no vital strategic interests at stake, the principal countries participating in the NATO mission will not use the force necessary to decisively end the conflict. Rather they rely on airstrikes with little prospect of accomplishing even the minimum goal of protecting civilians. Indeed, the choice of aerial bombardment enables NATO to engage in a military attack while minimizing risk to its own forces, a tactic that has the predictable effect of prolonging rather than terminating the conflict.
Since the NATO intervention began, the toll on the civilian population has steadily increased. As the tactic of aerial bombardment failed to achieve immediate results, NATO’s definition of its mission expanded, exceeding anything authorized by the UNSC. First, NATO began attacking not only regime forces threatening civilian populations, but also Libyan troops in retreat. Next, they targeted Libyan forces wherever they may be, even when not involved in any threat to civilians, but stationed far from conflict in the western provinces. As these tactics failed to decisively alter the military balance, NATO resorted to increased airstrikes in Tripoli. These attacks soon took on the appearance of assassination attempts, including strikes that resulted in the death of Qaddafi’s grandchildren while sleeping in their residence.
NATO’s mission creep is a consequence of the mismatch between the tactic of airstrikes and the increasingly apparent strategic goal of regime change. With western and Arab governments pledging this month in Abu Dhabi over a billion dollars to finance and arm the rebel forces, and the British and French reportedly sending military advisors to assist the rebels on the ground, further escalation seems likely. The cost of the prolonged military stalemate can best be measured in civilian casualties. An intervention initially justified to avert an anticipated “bloodbath” in Benghazi — then the last refuge held by largely-defeated rebel forces — has given way to mounting civilian casualties in Misrata, Ajdabiya, Zawiya and elsewhere. Rather than protecting the welfare of the civilian population, the intervention as it stands has served to push the frontline of fighting to less well-defended cities, with greater civilian casualties each time the balance between rebels and regime forces in these cities seesaws back and forth.
What then is the end game? The political leaders of countries most involved in the NATO intervention have made clear that “Qaddafi must go.” The precedent of invoking human rights and humanitarianism for regime-change by military intervention, with the blessing of the UN, will have wide-ranging implications for the legal regime governing international peace and security. In the meantime, the intervention has escalated, and perhaps prolonged, a brutal civil war. For the defenders of the intervention, success might look much like the “victory” in Kosovo. But if the Libyan intervention results in an outcome comparable to that in Kosovo, it may well mean the partition of the country and the creation of a nominally autonomous province (or set of eastern provinces) that will ultimately be a NATO protectorate. If that is what “victory” would look like, what are the less appealing alternatives? An extremely unhappy, and increasingly plausible, scenario would be a “victory” more akin to Iraq than Kosovo, namely a protracted civil war that results in the destruction of Libya’s infrastructure and unleashes a set of atrocities that fuel another generation of conflict.
Asli Bali teaches international law at the UCLA School of Law. This commentary is published by DAILY NEWS EGYPT in collaboration with bitterlemons-international.org
