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March 20, 2011

SNAPSHOT

The Folly of Protection

Is Intervention Against Qaddafi’s Regime Legal and Legitimate?

Michael W. Doyle
MICHAEL W. DOYLE is Harold Brown Professor of International Affairs, Law, and Political
Science at Columbia University and Chair of the United Nations Democracy Fund Advisory
Board.

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.

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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

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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.

The no-fly zone itself faces questions of ethical legitimacy as well. An old tradition of ethical
and practical lessons, dating at least as far back as the writings of the British philosopher
John Stuart Mill in the middle of the nineteenth century, argues against armed intervention
for the sake of protecting civilians and promoting human rights and democracy. For anyone
committed to human dignity, this tradition claims, democracy and human rights must
derive from self-government, not laws and regulations imposed by foreigners, however well
meaning. And imposing democracy from the outside tends to fail. Democracy is not only
government for the people; it is also government of and by the people. Unless citizens view
themselves as a collective body and are prepared to pay taxes, defend their borders, and
abide by majority rule, democracy is unsustainable. These attributes are more often
achieved by long national struggles and wars of liberation than foreign intervention.

Thus, when foreigners seek to liberate a country whose people have been unable to liberate
themselves, they often fall into one or more of three traps. First, the leadership that
replaces the former regime finds that it cannot rule because it has not been able to mobilize
the support to win on its own, and, as in Iraq, civil strife follows the liberating invasion. The
new leadership finds itself in the second trap when it can only remain in power thanks to
ongoing foreign support. As a result, it renders the country a client state rather than a free
nation. The third trap occurs when the leadership learns that it can only govern as the
previous dictator did -- by force. The liberating invaders are thus responsible not only for
the monetary and human costs of the invasion but for having produced a civil war, a
colony, or one more tyranny with a new ideological label attached.

Foreign states must sometimes override or disregard these traps. The national security
interests of a given country may require intervention, or the casualties being suffered or
likely to result from a domestic conflict are so large as to demand a humanitarian rescue
(such as in Rwanda in 1994). Such humanitarian rescue offers the best justification for the
current intervention in Libya. Yet legitimate armed interventions must be proportional, in
the sense that they will actually cost fewer lives than they save. The no-fly zone is saving
the rebels and their civilian supporters at the moment, but their current preservation may
simply set the stage for a prolonged and costly civil war.

Military action should also not be undertaken unless it is likely to be successful. Success
with regard to the Libyan intervention has yet to be defined. Qaddafi probably would have
been able to conquer the rebel capital Benghazi with his air force, artillery, and armor, but
the commencement of allied intervention will destroy the air force and protect the civilian

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population from large-scale ground attacks. However, it does not appear that the rebels
can conquer the country even if Qaddafi’s air force is neutralized unless they are aided by
international arms or forces on the ground -- assistance not authorized by Resolution 1973.

The current intervention in Libya, then, seems to wed legality with ethical legitimacy. But it
strains against the letter of the UN Charter law on intervention and will remain ethically
problematic unless it can help resolve the crisis without further substantial loss of life. This
uncertainty will pose intricate problems for policymakers and negotiators in the weeks and
months ahead. If Qaddafi retains power while the rebels maintain their own territory, will
partition provide a workable solution? If Qaddafi and the rebels cannot achieve any political
agreement, can the international community continue its involvement while the two sides
battle it out with small arms? Or will the interveners brush aside the restrictions of the
Security Council resolution and topple Qaddafi -- and thereby discredit the legal
authorization of RtoP? Regardless, the intervention in Libya is sure to shape how RtoP is
applied in the future.

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