The Folly of Protection

In classic United Nations Security Council language, Resolution 1973, passed on March 17, 2011, authorized UN member states to “take all necessary measures . . . to protect civilians and civilian populated areas” in Libya by establishing a no-fly zone and enforcing an arms embargo against Colonel Muammar al-Qaddafi’s regime. The resolution gave teeth to the much-heralded “responsibility to protect” -- which, according to the 2005 UN World Summit Outcome, is the responsibility of the international community to “help protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.”

The UN General Assembly adopted the principle of the responsibility to protect -- or RtoP, its UN abbreviation -- in 2005 in a unanimous resolution advocated by nongovernmental organizations; UN Secretary-General Kofi Annan and the high-level panel he appointed in 2005 to investigate how the United Nations could pursue reform; and Gareth Evans and Mohamed Sahnoun, co-chairs of the International Commission on Intervention and State Sovereignty, whose 2001 report urging adoption of RtoP drove the campaign for the concept. The 2005 document articulating RtoP carefully deliniated grounds for action under the doctrine, limiting it to four situations suitable for intervention: genocide, war crimes, ethnic cleansing, and crimes against humanity. The Libyan intervention represents only the third time since 2005 that the Security Council has invoked RtoP to enforce the protection of civilians. The second case occurred just weeks ago, when the Security Council’s first resolution targeted Qaddafi’s crackdown against Libya’s rebellion by calling for financial sanctions and an arms embargo. Resolution 1973, however, marks the first Security Council approval of force in the name of RtoP.

In passing RtoP, the Security Council helped bridge the gap between so-called legitimate (ethically justifiable) and legal (legally authorized) intervention. The Kosovo Commission, a group of independent experts under the chairmanship of the South African justice Richard Goldstone, first identified this dichotomy in 1999 while investigating the North Atlantic Treaty Organization’s intervention in Kosovo. It deemed NATO’s actions “illegal but legitimate,” in the sense that the Western countries had performed a legitimate rescue of oppressed Kosovars likely to suffer ethnic cleansing under Slobodan Milošević’s leadership but had done so without the Security Council’s legal sanction (unavailable due to the threatened Russian and Chinese vetoes). To gain approval for their current intervention in Libya, however, Western nations secured a resolution that passed with ten votes in favor, no vetoes, and five abstentions from Brazil, China, Germany, India, and Russia.

By invoking RtoP for the intervention in Libya, the Security Council narrowed the divide between legitimacy and legality. Yet the ethical and legal justifications for both elements remain murky. Most significantly, a legitimate and lawful outcome to the operation is far from assured.

The true complexity of the UN action against Qaddafi’s regime can be understood only by investigating the UN Charter, which specifies that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” The only exception to this principle falls under Chapter VII of the charter, which authorizes the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and act to “maintain or restore international peace and security.” Internal abuses by states -- including the slaughter of civilians -- do not automatically qualify as “international” threats under the charter.

Nonetheless, the Security Council has, in practice, claimed wide discretion to interpret events as “threats to the peace” that did not necessarily qualify as dangers to “international peace.” This phenomenon became particularly acute following the Cold War, when the Security Council further diluted the requirement of “international threat” by endorsing a wide range of other triggers for successful Chapter VII sanctions. It authorized arms embargoes, trade sanctions, no-fly zones, and even armed intervention against various acts of genocide, ethnic cleansing, interference with the delivery of humanitarian supplies, violations of cease-fires, collapse of civil order, and coups against democratic governments and war crimes in Haiti, Cambodia, Iraq, Liberia, Rwanda, Somalia, and the former Republic of Yugoslavia.

RtoP, responding to the sense that these domestic harms warranted international response, solidified the Security Council’s claims to wider discretion. Yet it also restricted its ability to sanction intervention to the four situations listed in the RtoP document -- genocide, war crimes, ethnic cleansing, and crimes against humanity -- and thus precluded, for example, intervention in cases of civil disorder and coups. Although the resolution authorizing force against Libya will certainly further entrench the principle of RtoP, it will not completely resolve the tension between RtoP -- in itself only a General Assembly recommendation -- and the UN Charter itself, which, according to the letter of the law, limits action to “international” threats. Equally significant, the Libyan resolution authorizes only a no-fly zone and the protection of civilians, not the ouster of Qaddafi that U.S. President Barack Obama has called for and which is most likely to resolve the crisis politically.