The Folly of Protection

Is Intervention Against Qaddafi’s Regime Legal and Legitimate?

Courtesy Reuters

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

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