“Responsibility to Protect” as Imperialism: The Libyan Case of 2011
Paul Alexander Haegeman, for the Center for Syncretic Studies | Edited by Joaquin Flores
Humanitarian Intervention and The Responsibility to Protect (R2P) as an Instrument, Extension and Continuation of Neo-Colonialism and Post-Modern Imperialism:
The Libyan Case (2011). Considerations: The Kaleidoscope of International Legal Strategies and the Enabling of Wars of Aggression.
“Until the Day of Judgment, the Augustinian teaching on the two kingdoms will have to face the twofold open question: Quis judicabit? Quis interpretabitur? [‘Who will decide? Who will interpret?] Who answers in concreto, on behalf of the concrete, autonomously acting human being, the question of what is spiritual, what is worldly and what is the case with the res mixtae.”
– Carl Schmitt, Political Theology II: The Myth of the Closure of Any Political Theology, Michael Hoelzl and Graham Ward trans. (Cambridge: Polity Press, 2008) (first published 1970)
“Quod non fecerunt barbari, fecerunct barbarini”
(The peace of the police is not the calm of the temple but the silence of the tomb)
Contents
Summary
Overview
Prohibition on the Use of Force
Resolutions 1970 and 1973
Criticism of Responsibility to Protect
The Origins of R2P
Subverting the Opinio Juris of UN member States
Realism masquerading as Liberalism
Epistemic and Theoretical Concerns
Conclusion
Bibliography
Summary
[dropcap]T[/dropcap]his dissertation explores the 2011 UN- authorized intervention in Libya which culminated in the assassination of Colonel Gaddafi and the emergence of a new government recognized and endorsed by the US, the UK, France, the UN, the Arab League and various other international entities. The underlying purpose of this paper is to illuminate the probable motives and problematize the humanitarian legitimacy of the intervention in order to unveil undeclared Imperial and neo-Colonial intentions.
I will be drawing on Aspects of International Law and International Relations to frame the position that the Libyan intervention was an exercise in Imperial real-politik legitimized by an enfeebled United Nations, one that added another notch to the already questionable legitimacy of the authority of the United Nations when speaking on behalf of an abstract “international community”. Issues pertaining to peace and security, sovereignty and self-determination, decolonization and post-colonialism, etc., being uncomfortable bed-fellows with a declared right to intervene on behalf of a people whose state apparatuses have failed to ensure their civil liberties and human rights, provides damning evidence through the disparity between state practice and rhetoric of an instrumentalized form of human rights protection. More specifically I will be looking at the origins of International Law and its relationship with Imperialism and Colonization, opining that the concept of R2P (RtoP) was likely to have been developed as a foreign policy tool for the Great Powers to provide them with a veneer of legitimacy in international law, shrouding Acts of Aggression and for by-passing the violation of the principle of the non-use of force.
As a cynical consequentialist whom still believes the UN has an important normative role to play in international affairs I want to dismiss any ‘throwing the baby out with the bathwater’ type accusations before the reader begins this examination in total dejection. Without problematizing international law it cannot make any real substantive progress so this cynical survivalist-consequentialist position is necessarily non-pyrrhic in its dismay.
Overview of the Current and Prior Status of the Libyan State
It is generally conceded that the modern State of Libya has been somewhat dissolved, fracturing into quasi-feudal fiefdoms ruled violently by vying Warlords which are comprised of the various tribes that constituted Libya as a unitary State prior to the intervention under Gaddafi’s regime. If the invocation of the doctrine ‘Responsibility to Protect’ (RtoP or R2P) was indeed to prevent and protect Libyan citizens the aftermath certainly proves that there are profound problems with employing such justifications – at least as far as legitimate outcomes are concerned.
Historically, throughout the ages, Libya (known as Lebu to the Ancient Egyptians), as with all contemporary Nation States, has been the site of multiple political presences, occupations and transitions. This is significant as it highlights the contingent nature of temporal political endeavours providing the proper context with which to comprehend and locate the nature and character of current events. In the case of the Libyan intervention in 2011 I suggest that the correct prism with which to view this event is an epiphenomenal realism (perhaps in the Heraclitun tradition) which may allow us to understand the relation of historical epochs – e.g., the emergence and consolidation of political orders in relation to the epochs of international law exploring the various prisms of international relations theories to discern the nature and character of the Libyan intervention lucidly.
Libya (as a modern state) was admitted to the United Nations family on the 14th December 1955. It is important to recall that the Libyan State is inextricably tied to the process of decolonization in the aftermath of the Second World War that led to the creation of many new Nation States, as a result of the inability of the Great Powers to retain their old colonial mandates. From its creation as a modern nation state, and more specifically since the 1980s, Libya developed astronomically.
From 2005-2010 the Human Development Index (HDI)[1] gave Libya a ‘high’ development status; public health care was regarded the best in Africa by the World Health Organization (WHO) and UNESCO prior to the ‘humanitarian intervention’; plus additional data sources such as the Library of Congress (1987 file) and the Nations Encyclopaedia attest to Libya’s sustained and phenomenal independent development in
both housing, health, water supply and sanitation. The post-intervention state of Libya has witnessed dramatic and catastrophic collapse in Libya’s overall development back to a pre-1970’s state. It is situating the intervention in this context that dispels any and all illusions as to the ‘humanitarian’ character of the intervention and the invocation of ‘Responsibility to Protect’ as a liberating force for the Libyan people.
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Prohibition on the Use of Force in International Law
The U.N Charter stipulates that: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’[2] Exceptions to the non-use of force are the inherent right to self-defense or Chapter VII U.N.S.C enforcement action: E.g., ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression’ (Article 39); ‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’ (Article 41); ‘Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.
Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’ (Article 42). Furthermore, the Charter provides that ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security’ (Article 51).
Britain’s Tony Blair: one of the prime movers behind the use of “R2P”
[dropcap]T[/dropcap]he genesis of the doctrine/theory of the ‘responsibility to protect’ (R2p/RtoP) was supposed to resolve some of the problems associated with humanitarian intervention as an additional exception to the non-use of force in international law; however the inherent complexities, doubts and general cynicism associated with its deployment in Libya has probably scuppered the premature idea that it has become an indispensable component of international law. Furthermore, given the post facto details of the intervention in Libya (as with Syria) being comprised of contra-like forces (confusingly mixed with native rebel forces) the International Court of Justice provides further verification in such scenarios of the non-use of force vis-à-vis irregular armed forces: i.e., (195).
“[…] The court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces. But the court does not believe that the concept of “armed attack” includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may be regarded as a threat or use of force, or amount to intervention in the internal or external affairs of other States. It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked.’[3] “
However, in the case of Libya, because Gaddafi had been effectively de-legitimized (i.e., externally delegitimized by the ‘international community’) there was no recourse to activate the right to self-defense in this case by having it “immediately reported” to the U.N.S.C as required by Article 51 of the U.N Charter.
Furthermore; (202) “The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference […] As the Court has observed [in the Corfu Channel case]: “Between independent States, respect for territorial sovereignty is an essential foundation of international relations” (I.C.J Reports 1949, p.35).
“International law requires political integrity also to be respected. … This principle is not, as such, spelt out in the Charter. But it was never intended that the Charter should embody written confirmation of every essential principle of international law in force. The existence in the opinio juris of States of the principle of non-intervention is backed by established and substantial practice.” (I.C.J Reports 1949, p.35).
More relevant; (228) “As to the claim that United States activities in relation to the Contras constitute a breach of the customary international law principle of the non-use of force, the Court finds that … the United States has committed a prima facie violation of that principle by its assistance to the Contras in Nicaragua, by “organizing or encouraging the organization of irregular forces or armed bands … for incursion into the territory of another State, “in the terms of Generally Assembly resolution 2625 (XXV).” (I.C.J Reports 1949, p.35).
Consider the parallels with what is referred to the “CIA-Arab Legion” (Al Qaeda, et al) with what the ICJ referred to as “UCLAs” [“Unilaterally Controlled Latino Assets” in CIA Vocabulary]. It follows from this (given the facts on the ground, that additionally, the U.K, France, Turkey, Qatar, Jordan, etc would also be in violation of the Court as it was established that the operations in Libya and Syria constituted foreign forces. The evidence is indisputable. Although the Court refers to the General Assembly resolution to invigorate its argument the GA cannot make binding international law – it can only make recommendations.
However, the General Assembly does have some powers that can challenge U.N.S.C decisions (although in purely realist terms what implications this would have for the U.N remains unclear). Hans Von Sponeck discussing that intervention in Libya recalls that (i) “it wasn’t long after the no-fly zone was established that the British, French and the U.S began to openly discuss regime change; so was it about protecting civilians or removing Gaddafi? (ii) militias were armed by foreign forces; (iii) under-cover special-forces were present on the ground violating the ‘no troops on the ground’ principle. (I) openly violates and exceeds the mandate; (ii) contravenes the ICJ settlement in respect to the Nicaraguan Contras as well as the Congo Armed Activities Case; (iii) violates the strict ‘no boots on the ground’ conditionality/criteria. He also asserts that the response of the NATO members was not as unanimous as suggested by officials and especially the media (consider the so-called Arab League ‘consensus’) – “Only five of the twenty-eight NATO member countries provided military support” for the intervention highlighting how fragmented the NATO-Europe military alliance actually was. He rightly fears that by exceeding the mandate in bad-faith, the UN itself becomes entangled, embroiled and complicit in the issue of regime change which fundamentally undermines the purpose and principles of the UN.[4]
In response to whether there was an option to shut down UNSC decisions regarding the application of RtoP in Libya he argues that there was. It required United Nations General Assembly (UNGA) adopt the ‘Uniting for Peace’ Resolution (Res.377) by two-thirds majority in the Assembly. Alternatively, it is possible to get the UNSC referred to the International Court of Justice (ICJ); however, this requires the acceptance of both States party to the referral. So, in the case of Libya (as with Iraq and now Syria), it is highly unlikely that the States in question have the political will to take this approach especially in light of the ICJ findings in the Nicaragua case. Additionally, given the time required to re-modify criteria in international law and the reluctance to adopt ex post facto potentiality would have little impact on the contemporary legality of the Libyan intervention.
The cynical demonization of Gaddafi by the Western media prostitutes allowed Western leaders to deny even the ugliness of his assassination at the hands of NATO-created jihadists.
Furthermore, the FUKUS alliance is unlikely to accept such a referral if it leads to the possibility of producing more narrow criteria that would inhibit the advancement of concepts like RtoP. It Is also possible for a department of the UN (e.g., UNICEF) to request an Advisory Opinion from the ICJ which would problematize the legality of the action sanctioned by the UNSC (i.e., whether there is a genuine case of a violation of ‘peace’ and ‘security’).
In the case of Libya, the effectiveness of manufacturing consent quickly negated the prospect of seeking it as a solution to the problem. Given that humanitarian intervention (and RtoP) are presented necessarily as the success of justice making in-roads into UN Charter Law (and international customary law) it parry’s focus away from the fundamental problem:
“[t]hat the five Great Powers have permanent membership and the right of veto in the Council and that the Council has the authority to bind members would be indefensible under any conception of institutional justice worthy of that name […] The UN’s collective security-system (unlike the League’s) is based on the co-option of overwhelming power. It follows tautologically that if such power is overwhelming it allows co-option only on its own terms.”[5]
If the events in Libya consisted of being a Civil War then G.A. Resolution. 2131 (XX) specifically declares that intervention in such events is against the Spirit of the Charter suppressing the ‘peoples of their national identity’ which ‘constitutes a violation of their inalienable rights’. Parts of this Declaration were incorporated into the ‘Section on the Principle of Non-Intervention in the 1970 Declarations on Principles of International Law’ (Harris, p.742). Because the nature of the intervention in Libya remains contended, especially given its aftermath, i.e., whether it was state-sponsored insurrection or whether it was a genuine civil war inevitably presents an issue of indeterminacy beyond the mere semantic play of legal terminology.
Without the capacity to discern the underlying motives en-commencement it problematizes what international legal principles ought to be utilized. A very gray area in the real-time unravelling of events that might have allowed Libya to invoke the ‘inherent’ right to self-defense (Article 51) was somewhat curtailed by the international de-legitimization of what was referred to as ‘Gaddafi’s regime’ muddied by the fact that there was an internationally recognized government called the Libyan Socialist Arab Jamahiriya. Being isolated as such made it impossible to effectively mount legal counter-arguments required for UN support. Recalling that one aspect of RtoP was to remove the ‘inherent’ aspect of the right to self-defense (enshrined in the UN Charter) the focus on external legitimacy and authorization for an intervention, in effect renders the target state exposed without confidence that it can resort to the typical UN sanctioned rights for self-defense, and therefore challenge the legitimacy of the intervention underway.
Also, given that NATO exceeded its mandate given the post-facto disintegrated state of Libya, ongoing human rights abuses, regime change and a plethora of other incidents further questions the post-hoc legitimacy of the affair the ICJ in its pronouncements in the Iranian Oil Platforms cases regarding ‘necessity’ and ‘proportionality’[6]. Given that both UN and ICJ criteria for an intervention are actually quite narrow keeping in mind the contemporary openness of the debate as to whether a right to intervention has become a norm (which doesn’t seem to have the opinio juris so claimed), it seems unlikely that the impending massacre in Benghazi would have qualified as such. However, one aspect of RtoP which is problematic is the wide spectrum for interpretation allowed for by the potentiality of a ‘threat’ let alone an ‘actual’ massacre. In the literature this technicality seems to have been little mentioned.
Crucially for the U.N, if it was embroiled and enmeshed in ‘regime change’ it fundamentally violated its own proclaimed raison détre. Perhaps, it is possible that in the aftermath of Kosovo and Iraq regarding its own crisis of legitimacy (an organization that presents itself as universal and inclusive) it took the low-handed option of cutting its losses and ‘saving face’ by aligning itself with powerful interests thus sacrificing a sovereign state to protect its own legitimacy and ultimately its relevance. The spirit of the Charter in the aftermath of the shadow of obliterating world wars is clear – to prevent further horrors from occurring. Both Hague Conventions[7] and the Universal Declaration of Human Rights[8] descriptively go a long way to safe-guard human liberty from tyranny but also undermine the principle of sovereignty.
If types of sovereignty were universal (as Anghie clearly implies are not) and a ‘balance of power’ existed in countries where sovereignty was determined as a consequence of the ‘colonial encounter’ then there are genuine concerns regarding the adoption of human rights into interventionist doctrines like the ‘responsibility to protect’. If the facts on the ground point unambiguously to contra-like forces present in countries such as Libya and Syria then this violates another General Assembly resolution referred to in the Armed Activities case in which the International Court of Justice found: ‘(162) […] the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among states in accordance with the Charter of the United Nations (hereinafter “the Declaration on Friendly Relations”[9]) provides that: “Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force” (General Assembly resolution 2625 (XXV), 24 October 1970.).
“Fact-finding is a critical aspect of determining the legitimacy and therefore the potential legality of any action. Therefore how an agency ascertains and verifies information is critical…”
Further, “no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities towards the violent overthrow of the regime of another State, or interfere in civil strife in another State” (ibid.).’ Additionally, in a separate opinion Judge Simma found that; ‘I fully agree with his [Judge Kooijmans] conclusions that, if armed attacks are carried out by irregular forces from such territory against a neighboring State, these activities are still armed attacks even if they cannot be attributed to the territorial State, and, further, that “it would be unreasonable to deny the attacked State the right to self-defense merely because there is no attacker State and the Charter does not require it so” (ibid.).’[10]
Thus far, international law is unambiguously clear that there is a prohibition on the use of armed force against a sovereign state. Ambiguity however emerges through the recognition in the literature of ‘irregular’ forces, more or less, overt recognition that contemporary wars do not necessarily entail State/State warfare – i..e, that States can (and often have) used irregular, clandestine, mercenary and/or proxy forces in order to shield them from the accusation of a direct act of aggression – the cardinal crime in international law. The case of ‘fact-finding’ in Libya was notoriously more ambiguous than in Syria where the competence of intelligence gathering was much higher or rather, where the Syrian state has been much more careful in collecting evidence of foreign forces in the country (e.g., passports of various nationalities plus the confiscation of various weapons that are not manufactured or used by the Syrian National Army). Fact-finding is a critical aspect of determining the legitimacy and therefore the potential legality of any action. Therefore how an agency ascertains and verifies information is critical.
[dropcap]T[/dropcap]he Syrian Chemical weapons saga is symptomatic of divisions in the U.N that somewhat correspond to ideological differences regarding what the U.N ought to be and what it is or has become.[11]
Deeper entanglement regarding the differences between the U.N.S.C and U.N.G.A problematizes the efficacy of what constitutes facts where different member states (with the same theoretical inherent rights) are propagating different facts that have a direct influence on whether an intervention is actualized or not. A good example of how judgements and principles can be produced without direct access to the facts was the International Court of Justices ‘fact finding’ mission in the Congo.[12] This again highlights fundamental problems when invoking certain legal principles, especially in cases where an exception to an established rule of international law is far from being a closed argument but rather an on-going dialectic.
The conundrum is as follows: how can a principle of international law be appealed to (and, or invoked) where the facts on the ground appear to be less than sufficient to warrant the execution of a principle – especially so where the temporal threshold of exhausting pacific measures has not been passed? It is probable that Kofi Annan in elucidating on the principle of RtoP – referring to ‘threats’ and/or intent to commit atrocities, etc, is aware that if a more concrete set of measures for determining the likelihood of such an event occurring is likely to be lost in a debate on what the facts on the ground really are thus reducing the need for necessary immediacy and rapid reaction to avert atrocities.
Although this is a necessary condition for effective action (i.e., rapid-reaction) this ought to massively increase the necessity for more accurate information gathering and analysis. This in my opinion is a critical flaw in the efficacy of RtoP for (1) it leaves RtoP wide-open to post-facto dissolution where legitimacy is still an on-going question and (2) it leaves us with a decision-making problem that has an analogue with J.S.Mill’s competent judge in ‘On Utilitarianism’ regarding executive decisions which has been dealt with admirably by Anne Orford in respect to Dag Hammarskjöld’s attempt to transform the U.N into an executive organization. Furthermore, as already has been mentioned – it embroils the U.N in regime-change.[13]
War and Peace wax and wane in a state of nature, but the anthropomorphization of our conceptualizations of nature and humanity also distances us from epiphenomenal aspects of being in time, which distorts the facts and is further distorted by the variety of ideological prisms we deploy in the name objectivity and conventional standards of custom (the subjective aspect).
Grewe
In terms of legal scholarship observing the adaptations of international law in different epochs illustrates that progress might be a delusion – but a necessary one – that preserves the parsimony of a project with its own ideological structure – i.e., that of international law itself. The Laws of War are no less averse to ideological framing than other aspects of international law. It is in this sense that Wilhem Grewe[14] appears to take two positions: (1) a type of epiphenomenal realism with (2) the cautious suggestion that international law is indeed progressing. What was novel for Grewe was British imperial dominance allowed her to universalize international law. Although Grewe delves deeply into the machinations and complexity of the epochs one thing remains constant – at the heart of an epoch appears to be a power or a constellation of powers driving the development of international law which is inextricably connected (despite the application of “indirect” techniques) to imperial domination. This gives incredible force to the realist prism in international relations and perhaps explains why theorists like Morgenthau warned against the universalization of international law in an age where the epiphany of Anglo-American power had already reached its halcyon.[15]
In discerning the appropriate prism in international relations for understanding the Libyan intervention, a salient omission from Wilhelm Grewe’s account in Epochs in how a predominant power colours the style of an Epoch, is the cautious non-use of the term hegemony which would have allowed the consolidation of realist account in international relations. Although there are ample references to conferences, treaties and legal developments in respect to colonialism and imperialism, he does not sufficiently delve into the ideological theory underpinning these events. He is very cautious in taking this approach, which I believe is symptomatic of a progressivist positivistic approach to international law. However, it is also possible that the focus of his work precludes a synthesis of the schools. In an epoch where human rights conventions and laws have emerged as the perennial driving force of international relations, we must understand to what extent the predominant powers have influenced this movement, and to what extent, in the spirit of Qui Bono, does this serve the interests of the consolidation of power.
With growing emphasis of human rights in world affairs and in particular the emphasis on ‘protection’ the U.N Charter’s Preamble and Articles 1(3), 55, and 56 suggest there may be a foundation for an exception to the generally accepted principle of non-intervention. In a legal sense, the drive for removing the prohibition against intervention on humanitarian grounds is led by the ‘counter-restrictionists’ who argue that the U.N Charter allows for (1) the protection of fundamental human rights; and (2) that there is a right of humanitarian intervention in customary international law. The counter-restrictionists lament the paralysis of the U.N.S.C which is understandable but usually understate the problems associated with the protection of human rights across borders.
Quizzically one international lawyer argues that ‘[…] humanitarian intervention does not breach Article 2(4) because the article prohibits the use of force only against the ‘political independence’ and ‘territorial integrity’ of states, and humanitarian intervention does neither of these things (Damrosch 1991: 219).’[16] With the political independence and integrity of the Libyan state currently under intense question it seems in practice that effects of an intervention can go far beyond the ‘intended’ outcome further begging the question as to whether protection of human rights in another sovereign state is actually suitable for all intents and purposes, despite being posited on a ‘case by case’ basis. Other counter-restrictionists do not assert that there is actually opinio juris regarding humanitarian intervention, but look to preceding State practice (prior to the establishment of the U.N Charter) citing examples of other interventions (e.g., ‘British, French and Russian intervention in Greece (1827) and U.S intervention in Cuba (1898)’ however, as Brownlie (1974) and Chesterman (2001) explain ‘[…] these arguments exaggerate the extent of consensus about the rules governing the use of force, and their reading of the textual provisions of the U.N Charter runs contrary to both majority international legal opinion and the opinions expressed by its architects at the end of the Second World War.’[17]
More problematic still is the conflation (a symptom of the emergence of human rights in international law) of international law with moral justice. Sovereignty as responsibility is indicative of this transformation of international law but arguments are often based on appeals to ‘common humanity’ (Caney 1997: 34, Blair 1999), ‘just war theory’ (Ramsey 2002: 35-36, Dinstein 2011: 65-67) or the recrudescence of fundamental human rights in some world religions (Lepard 2002).[18] The invocation of Gaddafi’s responsibility to protect his own citizens by (Annan, Obama, Cameron et al) as a moral action is terribly muddied by the fact that Libya is a post-colonial state with problems inherited from the same imperial and colonizing forces that assumed the responsibility to protect Libyan citizens in the form of the ‘mission civiliastrice’ (civilizing mission) in recent history.
This is consistent with the realist prism in that ‘States do not intervene for primarily humanitarian reasons’ and complimenting Grewe’s caution to the wind regarding complexity in that ‘States almost always have mixed motives for intervening […] genuine humanitarian intervention is imprudent because it does not serve national interest […] (also) ‘strategies of intervention are more likely to be guided by calculations of national interest…’[19].
Other important questions raised by others include (1) ‘The problem of abuse […] (i.e.,) the absence of an impartial mechanism for deciding when humanitarian intervention is permissible (Frank and Rodley 1973); (2) ‘Selectivity of Response’ (e.g., NATO’s intervention in Kosovo); (3) fundamental disagreement regarding the moral principles (i.e., one of philosophy’s remaining fundamental dilemmas); and (4) intervention is in and of itself counter-productive (i.e., it rarely, if ever, produces the outcome the initial reasons for the intervention argued for.
Even the estimable liberal thinker J.S Mill argued that democracy can only be established by a ‘domestic struggle for liberty. Human rights cannot take root if they are imposed or enforced by outsiders.’[20] More pertinently in the case of Libya ‘humanitarian intervention can actually cause mass atrocities by encouraging dissatisfied groups to launch rebellions in the hope of provoking a disproportionate response that will trigger external military intervention (Kuperman 2005: 2008).
Although not a legal scholar Maximillian Forte has well documented and highlighted the problems of the intervention (complimenting legal scholarship that argues against a right to intervene due to counter-productivity). For example one of the major militia’s to take up arms in the ‘revolution’ – the Misratans took it upon themselves to avenge anything they considered to be the legacy of Gaddafi – i.e., ethnic cleansing of the Tawarghans and the excessive shelling and destruction of Sirte as well as countless reports of brutal and routine tortures of anyone ‘black’ or anyone suspected of being a supporter of the regime.
Today Libya is fractured by powerful tribal militias that trust each other less than they trusted Gaddafi with the internationally recognized T.N.C proving totally ineffective and the now departed prime-minster Ali Zeidan actually calling for more intervention.[21] This only touches the surface of human rights abuses (supposedly regulated by jus in bello) during and in the aftermath of the intervention. Furthermore, it problematizes question of ‘proportionality’ and ‘necessity’ raised by the I.C.J in respect to the ‘Oil Platforms case’ where the number of civilians saved by NATO bombing outweighed by the number of civilians killed in the ensuing chaos. Further complicating the invocation of RtoP is whether RtoP was actually invoked at all (as most commentators state). This is significant because the I.C.I.S.S report lays emphasis on not only intervention but prevention and rebuilding and with hind-sight it is clear that these conditions were not and have not been met (notwithstanding the exhaustion of all pacific measures in the rapid run-up to NATO bombing).
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Resolutions 1970 and 1973
The first significant declaration by the U.N was UNSC Resolution 1970 (2011) (S/RES/1970 (2011)) made on the 26th February 2011. The Security Council expressed its ‘grave concern’, ‘deploring the gross and systematic violence’, ‘welcoming condemnation by the Arab League, African Union and the Secretary General of the Organization of the Islamic Conference’, ‘considering that attacks’ may amount to ‘crimes against humanity’; ‘Demands an immediate end to the violence and calls for steps to fulfill the legitimate demands of the population’, etc. The Resolution also imposes an Arms Embargo, Travel Bans, Asset Freezes, Humanitarian Assistance, etc. Two weeks later the UNSC declares Resolution 1973 (2011) (S/RES/1973 (2011)) approving the imposition of a ‘no-fly zone’ and authorizing ‘all necessary measures’ to protect civilians. The Resolution was adopted by voting with ten in favor, none against and five abstentions (Brazil, China, Germany, India and the Russian Federation). In this resolution the invocation of the doctrine of the Responsibility to Protect is unambiguously clear – “Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians”.
More importantly this was enabled by activating Chapter VII in the U.N Charter which provides the effective declarative and remedial prescriptions in respect to ‘threats to the peace’, ‘breaches of the peace’ and ‘acts of aggression.’ In the case of the Libyan intervention the relatively swift shift from exhausting Article 41 conditions (a window of a few weeks) to Article 42 conditions raises doubts as to whether all Chapter VI pacific means were exhausted prior to activating Chapter VII. Unfortunately, the inherent ambiguity regarding temporal conditions, reasonable phases to react, etc are not explicit in this section which is a particular vulnerability which presents an aporia in which U.N.S.C member states can exploit in realist terms. Essentially it is left at the arbitrary discretion of the Security Council and as such ‘threats to the peace’ are often enmeshed with the State interests of the Security Council.
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Criticism of Responsibility to Protect
It is fair to say criticism against the idea of a ‘responsibility to protect’ has outweighed criticism in support of it. Some of the more focused criticism emphasizes the fact that RtoP is only unique in its formulation but doesn’t really offer anything innovative and new. In fact all the principles are recrudescences of already existing principles of international law. Furthermore, cautious arguments suggesting that RtoP has emerged as a legal norm has been largely refuted by many scholars who state that the notion of ‘instant custom’ is anathema to the very character of customary international law (CIL). E.g., ‘How can a concept that is labelled as a “new approach” and a “re-characterization” of sovereignty’ in 2001 turn into an emerging legal norm within the course of four years, and into an organizing principle for peace and security in the UN system one year later?
None of the four main documents in which responsibility to protect has been treated in depth can be regarded as generating binding international law under the classic sources of international law set forth in Article 38 of the Statute of the International Court of Justice (ICJ) (e.g., “international conventions,” “international custom, as evidence of a general practice accepted as law,” and “general principles of law”)[22].’
Still, familiar criticism related to the debate against ‘humanitarian intervention’ re-surfaces with RtoP but with the concomitant differences of sense, tone and reference. E.g., both Alex Bellamy and Nicholas Wheeler illuminate three problems that have their analogue in the humanitarian intervention debate: (1) ‘Agreement on criteria does not guarantee agreement on action in real cases’; (2) ‘The criteria are open to manipulation by powerful actors’; and (3) the assumption that ‘governments can be persuaded to act’.
The success of an apparent consensus regarding the adoption of RtoP by the international community was somewhat overshadowed by the watered-down language of the Outcome Documents (2005) which betrayed a great deal of uncertainty, cynicism and doubt associated with the idea: E.g., ‘The different conceptions of the notion of responsibility to protect finally became apparent in the drafting process of the Outcome Document of the 2005 World Summit. Both the form and contours of the concept were intensively debated before the high-level plenary meeting. Several states (Algeria, Belarus, Cuba, Egypt, Iran, Pakistan, the Russian Federation, and Venezuela) expressed reservations about including the responsibility to protect in the Outcome Document. Some delegations argued that the concept was too vague and open to abuse.
Others doubted that it was compatible with the Charter, noting that there is no shared responsibility in international law outside the responsibility of a state to protect its own citizens and the institutional mandate of the United Nations to safeguard international peace and security.’[23] Furthermore, although the principle of Sovereignty is a bedrock of international law it has never been (according to Carsten Stahn) a closed ‘self-referential’ unit the implication being that it appears RtoP (and universal human rights) over-accentuates and re-enforces the very principle it seeks to undermine.[24] The tacit claim is here is that RtoP is suppressing its premises. As previously mentioned RtoP, doesn’t necessarily state anything new in and of itself.
As Stahn points out: ‘The ICJ reaffirmed in the Barcelona Traction case that obligations erga omnes “derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ REP. 3, 32, para. 34 (Feb. 5).’[25] Furthermore, ‘It is also well understood that sovereignty entails duties on the international plane. Sovereignty never meant that a state could act in its territory regardless of the effect of its acts on another state.
This point was expressly made in 1928 by the arbitrator Max Huber in the award in the Island of Palmas case. After the end of World War II, the adoption of the UN Charter and the rise of key human rights instruments eroded the classic equation of sovereignty and “power.” Although the Charter was oriented toward protecting the sanctity of sovereignty, it contained important references to human rights protection. The preamble, the last sentence of Article 2(7),91 and Articles 1(3) and 55 made it clear that the Charter was designed to “protect the sovereignty of peoples” and was “never meant as a licence for governments to trample on human rights and human dignity.” ‘This reading of the Charter was recognized in legal doctrine as early as 1947. ‘It became apparent with the unleashing of Chapter VII after the Cold War. It was accompanied by the recognition of the concept of erga omnes obligations (“obligations of a State towards the international community as a whole”) by the ICJ.’[26] The point here is unequivocally clear, there is very little if anything new about RtoP so the ‘euphoria’ associated with its ‘success’ is baffling if one were to make the mistake of understanding it as something truly revolutionary. Additionally the selectivity of its application in Libya is also puzzling given the contextual contradictions pertaining to post-colonial theory.
The laws of war, supposed to regulate warfare, have not reduced the barbarous occurrences on the field in modern warfare although the media shows us that there are more organizations in the field that were designed to monitor and ameliorate the worst effects of war (NGOs and other trans-global organizations). When we understand that leaders of third-world countries have not inherited functioning Sovereign States and this has been a result of imperial wars of aggression and violent colonization (i.e., genocides, pogroms, etc) for centuries, the desire to remove this from memory (of both the aggressor and the subject of aggression) serves the pre-emptive function of rationalizing these events at the expense of caricatured straw-men (e.g., Saddam Hussein, Robert Mugabe, Colonel ‘Mad Dog’ Gaddafi, etc) that allow for the commencement of what is today called ‘defensive imperialism’[27] .
There maybe an analogue of this in international law in the form of ‘transitional justice’ – where in the aftermath of a military intervention (e.g., Libya) the ‘international community’ resolves to lay down a new compatible domestic legal foundation for the State whose political structure has been dissolved (i.e., the Arab Libyan Socialist Jamahiriya) by recognizing a new political entity (i.e., the N.T.C). This complicates the role of the U.N in international affairs in so far as the major powers in NATO were explicit in their desire for ‘regime change’. In this sense post-colonial theory as a prism of international relations reveals the ‘myopia’ inherent in the emergence and evolution of international law and more pertinently – reveals that this myopia is essential and fundamental to the security of the current epoch and zeitgeist of international law.
The legal scholar Frederic Megret also highlights the connection and the tangled history the laws of war (i.e., international humanitarian law) shares with it’s colonial and imperial origins in the context of the ‘War on Terror’ (WOT): ‘one ends up with a paradox: although international humanitarian law is supposed to have shed its racist past, the laws of war nonetheless clearly end up excluding a category of individuals on exactly the same grounds that they previously excluded ‘savages’. How can the laws of war both include and exclude? At what discrete levels do these apparently irreconcilable operations occur?’[28]
An exclusionary tactic also appears extant in the responsibility to protect doctrine in that once the ‘de-legitimization’ of a government has been successful its recourse to defend its ‘inherent’ rights using international law is severely curtailed. In an excellent article by Nicholas Glover the responsibility to protect doctrine is carefully deconstructed with consideration to its philosophical-ideological problems with a focus on the issue of type-token conceptions of emancipation (i.e., what kind of liberal-democratic peace can emerge from a security-conception of implementation?). E.g., “Can Security ever be Emancipatory (?)”[29] and to what extent can democracy ever be implemented from outside the social body which it targets? Glover indicates that the language of R2P is rhetorical and represents a re-attenuated framework: Ie., ‘[…] the depoliticising, post-interventionary language of R2P, is not an antidote to international power relations, but its’ latest vehicle.
Responding to the crisis of containment and finding an antidote to the malpractices of underdeveloped/post-colonial states—in order to secure non-insured life and the Liberal order—the R2P doctrine has located the ‘underdeveloped Other’ at the apex of development policy (Duffield, 2008).’[30] Glover actually locates the crux of the problem in the conception of emancipation which R2P employees to justify intervention, emphasizing that authentic democratic development is an indigenous grass-roots process. E.g., ‘[…] whilst the practice of R2P in Libya claims to champion the protection of Libyan ‘victims’, dialogue and peace-inducing political reformation, its centralised, top-down, paternalistic, state-based and institutional character renders its claims to emancipation false.’[31]
In the section ‘Liberal War and Libyan Resistance’ Glover re-echoes many a critics observations in respect to the ex-post facto state of Libya as a result of the intervention and by implication the unproportional quantity of deaths on a significantly higher scale than the alleged massacre in Benghazi. Although the following extract is already dated the point remains intact: “Western military involvement in the Libyan civil war has saved some lives, but the aerial bombardments and the militarisation of the resistance against the Libyan regime have ceased to reduce political violence. Hence, the Libyan conflict has become a protracted war characterised by increasing political and human costs […] The current military campaign has resulted in protracted violent conflict. This consequence of war reflects the depoliticised logic of the R2P’s paradigm of resistance, in that it serves to disempower non-violent civil resistance and the potential for ‘people polity’—both of which represent a push away from state-driven discourses and practices (Engdahl, 2011). In this sense, the practice of R2P in Libya has been counterproductive to resistance and emancipation.”[32]
The ‘Fall’ of the World Trade Centres and ‘September 11’ heralded a return to the demarcation and semantics of the Colonial ‘Sauvage’ – i.e., the exclusion of the ‘non-liberal’, ‘non-Western’, ‘Other’ in contemporary ideological language including the language of the Laws of War and International Humanitarian Law.[33] Given that R2P represents the encouragement of armed intervention in the name of humanitarianism in the case of Libya it appears there’s a risk that such a doctrine could be absorbed into the corpus of the law of war in what Yoram Dinstein suggests is a contemporary recrudescence of the ‘just war doctrine’.
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The Origins of RtoP and the Case of Libya
RtoP emerged from a Canadian-government initiative (2000) exploring ‘the right to humanitarian intervention’[34] vis-à-vis and ultra vires the Westphalian notion of Sovereignty which remains held in international law to be the primary legal unit in international affairs. The ICISS report states in its “Basic Principles”: ‘[…] the primary responsibility for the protection of its people lies with the state itself.’[35] Not exhausting all the principles contained in the report the “Just Cause Threshold” states: (A) large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or (B) large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. [36]
The first clearly isolates the causal strings of demanding RtoP by excluding or limiting a States ability to raise questions pertaining to externally backed insurrections. Thus if there is a problem within the territorial boundaries of State X, then State X is the primary bearer of the responsibility to protect its citizens. Failing this, the possibility of Other States intervening on the behalf of the citizens of State X becomes a possibility. This reasoning is legally unsound for if the UN is a family of Nations it is definitely not within the so-called ‘spirit’ of UN treaty law to violate a States sovereignty, especially so in cases where there is serious ongoing international disagreement as to the nature of the violence occurring in State X.
It is also unsound and terminally defective in other ways. State X does not exist in a vacuum (i.e., as an entity with different ontic echelons –e.g., it has tribal factions, religious diversity, international diplomatic relations, etc.), thus it is a type of inverted identification stating X = X, or merely X in so far as it facilitates X’s exclusion and forces X to invert (gaze into itself – i.e., becoming embroiled within itself), whilst simultaneously becoming a target X as a result.
“Just Cause Threshold” (A) is clearly very low and very open. E.g., With ‘actual or apprehended’ or ‘with genocidal intent or not’ one might as well use ‘real’ or ‘imagined’ which is absurd for directing foreign policy in international relations. Furthermore, one can never determine the extent of an event being something unless it has or is occurring, therefore evidence is vital to ensuring that the JCT has been passed. Merely stating that event Y might occur is not sufficient for justifying action where and if event Y did not occur. It is convenient to state post-facto that event Y did not occur due to effective and just action. If anything at all, (A) is merely a thinly-veiled rationalization, for intervening in State X without State X having much recourse to utilize international diplomatic instruments.
The second part functions to isolate State X: (i) ‘deliberate state action’ (=State X’s responsibility); (ii) ‘state neglect’ (=State X’s responsibility); (iii) ‘inability to act’ (=State X’s responsibility); and (iv) ‘failed state situation’ (=State X’s responsibility). In sum, State X is responsible for all events taking place within the territorial domain of State X.
Given that these are rendered as concepts that belie the complexity of relations – i.e., there is no Question as to why State X is in this particular condition. The focus is merely on State X with no connection/relation to States X, Y, Z. This not just simple cause/correlation confusion this is a “zero-day” elimination of deferring options – i.e., an arbitrary determination that State X is to be isolated and attacked. There is no mention of any preceding causes. JCT (B) appears to be the selected rationale of the US State Department given the synchronicity of media accounts regarding acts of ‘ethnic cleansing’, ‘violence’ and ‘mass rapes’.
The ICISS report in the ‘Elements’ does state: ‘[…] address both the root causes and direct causes’ but of course this is modified with ‘of internal conflict’ again narrowing the focus directly onto State X. In the ‘Precautionary Principles’ ‘Right Intention’ appropriately asserts the need for multilateral consensus but makes no mention of how that consensus was built or how State/Organization (national, regional or international) X, Y, Z may have been co-opted or dismissed.
The other ‘Precautionary Principles’ were not fulfilled prior to activation – e.g., in respect to ‘Last Resort’ the intervention happened so rapidly as to prevent a ‘massacre’ in Benghazi (as the AU and BRICS had suggested) that a political solution was not really made available as an option. ‘Proportional means’ was also dismissed which was simply illustrated by a comparison with the number of deaths in the so-called Benghazi ‘massacre’ and the number of people massacred by NATO bombing and various sponsored militants. Clearly then, the opening pages of the ICISS report leave little doubt as to the political character of the concept.
It is open enough to make any State a potential target and narrow enough to prevent the State from deploying counter justifications (moral and legal) for making it a target. It is circular in its reasoning, type-identification (i.e., X=-X) in its structure and totally political in nature – i.e., it is a hastily compiled formula splicing ‘just war theory’ with real-politik (reactionary in itself) which begs some interesting questions given the time of its compilation. (e.g., was this after Gaddafi’s symbolic ‘tearing up’ of the UN Charter?).
A particular instance of high-level complicity in the development of RtoP is the curious openness of Kofi Annan’s statement, “Causing threats [italics mine] of genocide”[37].
Problematic is that a threat can be explicit or implicit; it can be overt or remain silent – thus the discretion of the causal agency is the primary factor in determining the nature of a threat not Kofi Annan. Furthermore, in actuality, a threat has a corresponding tone and character whereby the veracity and immediacy of it can be discerned. Given the vast gulf of interpreting what constitutes a threat and the leaving that ultimately at the discretion of the UNSC (most members of whom have salient connections to Imperialism and Colonialism) begs belief.
There’s been a great deal of criticism and support of RtoP, especially in the context of the ongoing ‘War on Terror’ which has entailed a great deal of energy invested in immunizing this criticism. The UN General Assembly widely adopted the RtoP as an international norm[38] however with the onset of the Libyan crisis a lot of tensions regarding method, scope and deployment of RtoP emerged hyper-sensitizing global consciousness in respect to it.
‘This tension was brought to the fore on March 17, 2011, when the UN Security Council adopted Resolution 1973 in response to the escalating civil war in Libya. Citing Chapter VII of the United Nations Charter, the Security Council authorized member states “to take all necessary measures… to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamhariya.”’[39]
However, as Alex Stark notes, growing criticism about how RtoP was implemented has brought an increasing disquiet about how RtoP can be ‘tamed’ (i.e., sufficiently normalized) so that (regardless of Libya) it can used for more appropriate purposes (recall Mohamed Sahnoun). Although he is not explicit he seems to be suggesting (i.e., through suppressed premises as others have) that neo-Imperialism (not his words) necessitates highly attenuated policy modifications to prevent the kind of opportunism that led to the Libyan intervention:
‘The subsequent invasion, originally led by the UK, France and the US – and soon after taken over by NATO – re-ignited the debate over what kinds of policy measures should be used to prevent imminent mass atrocities, and particularly whether military intervention is an appropriate response.’[40]
In the case of RtoP: ‘Using military force in extremis with a view toward “saving strangers” was the lynch-pin for the debate resulting from international inaction in 1994 in Rwanda (doing too little too late) and action in 1999 in Kosovo’[41] thus, the “never again” narrative is re-cycled in an altered modality and used to compel Other States into obeisance (an obeisance masquerading as benevolence). However, he (Thomas Weiss) concludes in support of RtoP alluding to Edward C. Luck’s assertion that a norm is “measured in centuries, not decades.”[42] Emboldened (as many advocates were) by the ‘success’ of the Libyan intervention and alluding to the typical ‘prevent-a-catastrophe’ trope is symptom of the deliriousness of the intervention; however, the so-called ‘moral hazard’ argument can lead to different outcomes and is context relative. Merely suggesting we must dismiss the ‘moral hazard’ argument because it can lead to greater ‘moral hazards’ is vacuous.[43]
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RtoP as a possible device for hi-jacking and subverting the Opinio Juris of UN member States by undermining UN Treaty Law in respect to Non-Intervention
Article 2(4) of the U.N Charter:
‘“[States shall] Refrain […] from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.’[44]
Good-faith between UN member States[45] is vital to the smooth functioning, viability and sustainability of the UN itself so an old philosophical distinction between genuine (authentic) intentions/motives and bad-faith (concealed intentions/motives) also exists at the level of State practice. So when the proponents of RtoP assert the imperative necessity of preventing atrocious crimes against humanity they are referring to very particular instances (e.g., Darfur, Kosovo, Cambodia, the Holocaust, etc). It is these cases which provoke the disgust and terror of mankind and short-circuit rational-legal solutions that would fail to prevent such atrocities in the process of occurring. However, given real-politik and the nature of Imperialism, it is important to acknowledge (as with all ideology) its proness to be appropriated, adapted and instrumentally deployed for non-humanitarian ends.
Thus a distinction can be made between authentic and non-authentic employment of a principle – especially one that is as unsettled and highly controversial an ‘exception’ to the UN law regarding non-Intervention between States. The jus ad bellum (when force can be used) in respect to international law governing the ‘Use of Force’ is crystallized in ‘UN Charter’ law by the ‘Rule on the Use of Force against Intervention’ (Article 2.4). There are two UN sanctioned exceptions to this rule (Chapter VII mandate and Self-Defense) plus a third which remains highly contested and concerns the intervention in Libya (i.e., ‘humanitarian intervention’ and RtoP). Chapter VII of the UN Charter stresses the lawful requirement of settling disputes peacefully and gives the UNSC the authorization to settle disputes in such a manner. Furthermore, additional Articles provide the UNSC with authorization where threats to international peace are concerned. E.g., Chapter VII, Article 41 gives the UNSC authorization to ‘decide what measures not involving the use of armed force are to be employed to give effect to its decisions’ not withstanding Article 42:
“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”[46]
In the case of Libya, it was the astonishing rapidity of enabling and enacting the RtoP exception that raises doubts as to whether all ‘pacific’ means were exhausted prior to the intervention. Additional issues relate to questions of necessity, proportionality and immediacy ex post facto. It also begs the question as to the authenticity of the deployment of this principle given the unsubstantiated claims of a massacre (or rather acting when there are serious doubts as to whether one has or will occur on the scale used to activate the exception in the first instance).
This point is especially poignant when ex post-facto the number of killings during and after the intervention are a magnitude higher and more extensive when compared to internal police action against a phenomenon that to this date still has no consensus regarding its nature (i.e., whether it was a domestic uprising, a sponsored insurrection, etc).
One contradiction in the narrative regarding Libya is that the UNSC mandate for a limited intervention was that Libya did not pose a threat to ‘international peace and security’ and the situation was highly internal and localized. Furthermore, given the unsubstantiated claim of a ‘massacre’ the legal rationale was highly tenuous. It is unlikely given Libya’s ‘pariah’ status (i.e., international isolation) that it could have been a genuine threat to international peace and security.
Michael Schmitt explains Article 39 “does not give the right for the UNSC to punish a wrongdoer”[47] as that would be a reprisal. As the narrative shifted to NATO violating the UNSC mandate and questions pertaining to ‘regime change’ began to emerge the manifest action in the theatre began to shift away from the norms allowed for by the exceptions to something which is potentially illegal – i.e., the threat and/or actual use of force which was beginning to exceed its mandate. This is exemplified by statements to the effect “Gaddafi must go” (i.e., regime change) repeated ad-nauseum by U.S State Department officials and Franco-British Government officials reflecting confidence produced by new-found rebel gains in the wake of NATO bombing, and an opening of an aperture for the eventual liquidation of Gaddafi.
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Realism masquerading as Liberalism
The use and abuse of the semantic softness and positivity of humanistic language makes the liberal approach more attractive to those who (prima facie) need to at least feel that there is some hope in the face of abominable suffering, famine and war. However, the language of human rights, liberation and democracy also masks those who would use it to further self-interest and therefore, die-hard realists have no scruples about using liberal language to suit their agendas thus making it difficult to discern the nature and character of events until the aftermath. The modern, secularized, positivist and ‘scientific’ language of international humanitarian law has not rendered it immune to instrumentalization that was often the primary criticism against the more religiously oriented just war theories.
An incredibly lucid paper by Nicholas Glover problematizes the liberal project, with a focus on RtoP and Libya, by revealing that the liberal peace which is the ideological locus of action is fundamentally exclusionary and is not ‘emancipatory’ (as often characterized), but security based which in effect constitutes a ‘negative epistemology of peace’ (Rasmussen: 2003: 13).[48] [Peace is not simply the absence of war – ed]
Additionally, “the Liberal peace reveals its predilection to disciplinarity and the hegemonic scripting of political order (Shinko, 2008: 481-482). The R2P must be understood as a Liberal approach to making peace, which legitimates the use of military force and coercive forms of statebuilding outside of the ‘Liberal heartland’, in order to advance its own project of neoliberal democratic ordering.”[49]
More disconcerting is the superimposition of the ‘international’ over the ‘local’ (or ‘indigenous’) which strikes at the heart of questions regarding the authenticity of the language of emancipation. This is pertinent in the case of Libya given that the N.T.C was imposed on the Libyans and the language of ‘regime change’ became eminent.
Glover states, e.g., “R2P then is an internationalised discourse which over-securitises the biopolitical category of the ‘local’—thus failing to engage sufficiently with everyday life and the empowerment of indigenous agency in emancipatory emergencies (Richmond, 2010: 466)”[50], and;
“The peace imagined by the R2P is a totalising and reductionist praxis of freeing individuals from threatening state practices through neo-liberal capacity-building. This reductionism of peace excludes the marginalised ‘Other’ from potentially emancipatory public space where they can demand social justice (Springer, 2010: 528).”[51]
Glover’s paper is a technical and cogent breakdown of liberalism and RtoP that clearly dismisses the pretenses associated with official narratives governing RtoP and perhaps gets to the heart of one important jus ad bellum criteria – i.e., for our purposes – discerning ‘right intention’. In sections titled ‘A Militarized Paradigm of Salvation’, ‘Liberal War and Libyan Resistance’ and ‘Western Emancipation’ there is little doubt about the character of the intervention and although Glover does not refer explicitly to the paradigm of realism it is implicit in this symptomatic reading.
These sections in Glover’s article refer to ‘the securitised logic of R2P’, the ‘marginalisation of political dialogue and civil resistance’, the ‘focus on and privilege the ‘International community’’, ‘aerial bombardment of towns and cities has had limited emancipatory and humanitarian impact (Taylor, 2011)’, ‘symptomatic of Western security practice in the ‘global borderlands’ (Aradau, 2008: 72), ‘it represents the instrumental prioritisation of risk management via opportunistic violent action against a selected instability-inducing sovereign’ and it is symptomatic of ‘the ‘global civil war’, which pitches contrary modalities of life—insured/uninsured, Liberal/illiberal—and interconnects security, development and containment’.
Most importantly: “the crux of the Libyan intervention relates to the West’s ability to contain the pervasive security risks of globalisation’s ‘unruly borderlands’, while maintaining the ability of mass society to consume beyond its means (Duffield, 2008: 162). In conclusion, the practice of R2P in Libya represents false emancipation, inasmuch as; it privileges the ‘International’ as the primary agent of resistance and emancipator of Libyans, thus marginalising Libyan forms of resistance calling for democratic revolution and the construction of equitable institutions…”[52]
To aptly conclude: ‘‘[…] the idea that the laws of war were primarily designed to regulate international armed conflicts would be used effectively to exclude wars of national liberation from the ambit of most of the Geneva Conventions. So conspicuous was the victory of the West in making the laws of war the frame of reference, that even by the time the Third World sought to make its new-found presence felt and to reverse the tide, it would do so unmistakably in the language of the laws of war rather than by challenging them.”[53]
An excellent example interventionist logic wrapped in the language of liberal universalism is Fernando Teson (a Legal process theorist) who states, “tyrannical governments are outlaws”. He argues that liberal international law should seek to protect individuals from tyrannies, and that force maybe legitimately used for this purpose. Indeed, he maintains that sovereignty rests on internal legitimacy, and since tyrannies lack this, they also lack a ‘proper foundation’ of state sovereignty. The conclusion is a subversive one from the perspective of traditional international law: “Sovereignty is to be respected only when it Is justly exercised.” In practical terms, Teson would have the democracies boot the non-democracies out of the UN, suspend their right to make treaties, remove their diplomatic privileges and refuse to recognize them as legitimate.
Thus, this new liberal theory seeks to harness international law for the purpose of promoting ‘core values’. Of course the appeal to values is a chimera given that values are not necessarily of a determined character in a world in perpetual transformation. It is essential to understand that each theory is not a monolithic school with standardized epistemological and metaphysical boundaries, although the character of a theory can be generalized to give it its relevant foundational aspects. Thus, liberalism as a political ideology is not monolithic – and it does not necessarily support the oft-argued idea presented by anti-imperialists and critiques of Eurocentrism; this idea being that there is a convenient convergence of liberal democracies as allies in a war against non-liberal undemocratic states which is parallel to the old colonial distinction between civilized and non-civilized peoples. For example, John Locke in Two Treatises of Government argues “people are not naturally inclined to war – since it threatens lives and livelihoods. Rather, war is the product militaristic and undemocratic government.”
However, if we focus on State practice and behaviour, the evidence is irrefutable that power poses problems for liberal values, rendering them somewhat rhetorical where the gulf between rhetoric and action is too wide to justify liberal claims and assumptions.
Appealing to Customary International Law in respect to the use of force poses different problems. If, as Article 38(b) of the Statutes of the International Court of Justice states, custom is one of the most important sources of international law and the prohibition against the use of force is a pillar of customary behaviour consolidated by opinio juris then humanitarian intervention (including RtoP) cannot be considered settled customary international law (despite arguments to the contrary). The Court provides two conditions: (1) “evidence of general practice” (the objective component), and (2) “accepted as law” (the subjective component).
Emily Kadens explains the complexities and problems with defining custom that has led to a lot of uncertainty which has serious implications regarding the use of force. It is not necessary to codify customary international law for it to be effective. I.e., it is a symptom of the drive for formalization in the contemporary epoch of international law (specifically U.N treaty law) seeking to clarify, substantiate and perhaps ‘quantify’ international law; however as Emily states: (1) “custom produces indeterminate behaviour”; (2) “peoples expressions of the indeterminate behaviour are manipulable” […] “The behaviour custom arises from the repeat behaviour of the community to which they have consented to be bound. It does not need to be expressed by a court. It exists as a law […] But if a dispute arises, the court needs to be able to formulate a rule. And so it takes these various articulations of the behaviour picks one and states it as a rule.” The rule/custom “mirrors” the behaviour/custom but one necessarily precedes the other and neither are static – i.e., they are both co-evolving and transformative. So, in this sense we can understand that over-formalization is a symptom of the current trend in international law to codify and positivise international legal principles including the use of force in international law.
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Epistemic and Theoretical Concerns
When referring to the ontological status of the primary sources of international law whilst raising concerns about structural and semantic aporia’s, ambiguity and potential for “slippage”, it follows that skepticism regarding the very stability of the sources raises some serious problems. It raises these problems for not only the efficacy of international law but also its proneness for instrumentalization that lends itself easily to the development of the idea of ‘lawfare’. Marti Koskenniemi explains, “As a language of justification, international law is a means to articulate particular preferences or positions in a formal fashion, accessible to professional analysis: the movement of armed personnel across boundaries becomes ‘aggression’ or ‘self-defence’, an official act a matter of ‘sovereignty’ (or ‘immunity’) or a ‘human rights violation’. The law constructs its own field of application as it goes along, through a normative language that highlights some aspects of the world while leaving other aspects in the dark.” Although beneath a normative cloak, the argument runs deeper with Koskenniemi. Indeterminacy is not only prevalent in language itself but in the intention motivating the various modalities of legal language deployment. E.g;
“[…] the main political point of From Apology to Utopia. For the ‘‘weak’’ indeterminacy thesis to turn into a ‘‘strong’’ one, it needs to be supplemented by an empirical argument, namely that irrespective of indeterminacy, the system still de-facto prefers some outcomes or distributive choices to other outcomes or choices. That is to say, even if it is possible to justify many kinds of practices through the use of impeccable professional argument, there is a structural bias in the relevant legal institutions that makes them serve typical, deeply embedded preferences, and that something we feel that is politically wrong in the world is produced or supported by that bias.”
To make matters worse, Jason Beckett explains: “Koskenniemi offers the most devastating contemporary critique of the very possibility of CIL [Customary International Law]. He claims that CIL must reduce either to a description of what states do (which Koskenniemi terms Apology) or to the arbitrary imposition of an ethical or political theory onto a heterogeneous world (which he terms Utopia). Worse still, these two options stand in bivalent contradiction; they cannot be blended or synthesized, yet neither can serve to justify CIL.”
Although Koskenniemi’s critique has quite profound implications for the aporia’s in international law that are exposed to realist arguments of pragmatism (and thus instrumentalization), he lays bare the emptiness of mere faith in the supposed determinacy of legal terminology and arguments in international law. Furthermore, according to Beckett, “Koskenniemi claims that, no extant theory of CIL has escaped the apology-utopia dialectic, and also that no theory can escape this dialectic; the collapse of theories of CIL into apology, utopia, or oscillation is a conceptual necessity. CIL (indeed PIL as a whole) is inherently indeterminate, and as a result can always be made to defend its subjects’ political choices.”
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Conclusion
[dropcap]T[/dropcap]he history of humanitarian interventions in the Age of the U.N does not sufficiently boost confidence in its use as an exception to the non-use of Force against member States.[54] Its history in contemporary international law is chequered at best which suggests (sufficiently) that RtoP under highly controversial circumstances is unlikely to become a good precedent (at least in its current formulation).
For example a short summary of interventions in respect to UNSC approval is as follows: (i) UNITAF and UNOSOM (92 and 93) in Somalia and UNMIS (05 and 06) in Sudan had UNSC approval; (ii) ECOWAS (91 and 92) in Liberia and ECOWAS (97) in Sierra Leone acquired ex-post facto approval; (iii) the Federal Republic of Yugoslavia had no approval; Oft cited cases where there was no action and is used to promote the necessity of RtoP was Rwanda (94) and Darfur (03-10) in which the UNSC was met with heavy international criticism. It is in this context that the importance of assessing the ‘facts on the ground’ (factoring also the cross-over of jus ad bellum into jus in bello) and rendering contextual-authentic determinations becomes necessary in filtering the appropriate course of action vis-à-vis the actual events unfolding.
In the case of Libya, many statements reporting unanimity in the international community in respect to the use of intervention were expressed prior to any possibility of exhausting all pacific means. In effect, the focus would then shift from the legality of the intervention (jus ad bellum) to humanitarian law (or the law of Armed Conflict – jus in bello) rendering questions of authorization moot as the dynamics of the situation had changed. In respect to the notion of ‘Lawfare’ we might refer to this as tactical diplomacy on the part of those spear-heading the RtoP concept in the UN. Thus in acquiring regional approval (e.g., the Arab League and later re-modified African Union statements) the advantage gained from acquiring the approval needed for its deployment met with little resistance and allowed for a rapid response.
Although humanitarian intervention appears to be emerging as a norm, the debate itself focuses on the proper conditions and limitations for such an intervention. E.g., Michael Schmitt explains using the example of “Anticipatory Humanitarian Intervention” (i.e., is belief sufficient cause for intervening?) – e.g., in Kosovo he asserts it was necessary but in Libya did the facts warrant it? It is difficult to superimpose an event of incomparable magnitude such as the killing of 800,000 people in Darfur with an event such as domestic unrest in a provincial city (Benghazi). Although the Resolutions referred to wide-spread unrest and brutal security responses the focus was on Benghazi where killings were taking place, but certainly not on the scale of Darfur and it is unlikely that this would have occurred.[55]
This is important as the symbolic capital of Gaddafi’s ‘African Dream’ (and Gaddafi’s home town), Sirte was devastated in the concluding phases of the intervention by both NATO bombing and indiscriminate rebel bombardment. Civilians and infrastructure paid the price – collateral damage was extensive. Thus as Maxmillian Forte explains, NATO far exceeded the authorized mandate and the disintegration of the Libyan State and the consequent and gross violations of jus in bello somewhat sobered any sense of the intervention being humanitarian in intent.
Sirte before the NATO assault.
Furthermore, although the evidence of local and foreign sponsored militants/rebels is sufficient to raise legal issues pertaining to the ICJ Nicaragua (1986) report, two facts would have again rendered the issue moot (via the transmogrification of jus ad bellum into jus in bello): (i) the loss of legitimacy of the Libyan government prevented it from taking advantage of international legal instruments that would have complicated the legality of the intervention – e.g., illegality of “the sending by or on behalf of a State of armed bands […] or its substantial involvement therein” – and, “weapons or logistical support” is insufficient; and, (ii) because of the international nature of the intervention as collective action it would have been impossible to effectively raise a coherent case in such a short time window (hence the need for rapidity) against all relevant parties. In this respect Gaddafi, having been isolated, could not effectively challenge the intervention using the same apparatus that was being utilized to remove him (thus my prior metaphorical use of the term aperture as the opening of an opportunity for vested-interests to attack Libya).
Authorization by UN member States to intervene in Libya was enabled by UNSC/res/1970 (2011) and UNSC/res/1973 (2011) allowing “[…] all necessary measures to protect civilians under threat of attack in the country, including Benghazi”. The particulars of the Resolutions adopted unanimously include: Res/1970 (2011): (i) declarations to the effect of opening up Libya to humanitarian activity; (ii) ICC referral; (iii) an Arms embargo; (iv) Travel Bans; (v) an Asset freeze: Res/1973 (2011): (i) activation of Chapter VII of the UN Charter stating “the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians”; (ii) demands to comply with “international law”; (iii) authorizing member States for the “protection of civilians”; (iii) establishes a “no fly zone”; (iv) allows for the enforcement of the “arms embargo”; etc.
Action was affirmed with the declared intent to prevent a “civilian massacre” against a regime that had become illegitimate (i.e., primarily externally de-legitimized) which had not yet occurred. Furthermore, the ongoing international debate as to whether the events unravelling was actually a ‘civil war’, a domestic uprising or a foreign sponsored insurrection were (and remain) largely unresolved.
The parallels of the so-called “Arab Spring” with the earlier ‘Arab Revolt’ are clear. Britain and France spearheaded the attack much in the same way they had spearheaded a preceding historical response to a similar crisis (i.e., Imperial-Colonial history and the fate of a post-Colonial world). US President Barack Obama waxed rhetorical in respect to ‘leading from behind’. Other regional and international actors also participated in what culminated in a NATO enforced intervention. Interestingly the Resolutions in this particular case served to concretize allegations of an impending massacre as fact, which is primarily the reason why critics of the intervention suggested that the impropriety of the intervention would lead to a serious “blow back” of credibility in respect to international law as framed by UN Charter Law. Notably, as Christiansen and Ulfstein explain, “Resolution 1973 represents the first mandate by the Security Council for a military intervention based on the responsibility to protect against the wishes of a functioning government.”
In regards to legitimate governance in international law (given that the Libyan government was ‘functional’ and legitimate) it is impossible not to get mired in what constitutes ‘legitimacy’ given the history of the development of the UN itself and the continuing contradictions generated by Imperialism and international human rights. In this quagmire, it is impossible and dangerously naïve to presume that the intervention in Libya was enacted in a geo-political vacuum with no Machiavellian (i.e., State and/or Corporate Self-Interest in a Gründ-Realist sense) motives, purely for the benefit of the Libyan people, vis-à-vis the benevolent concerns of the much trumpeted ‘international community’. In fact this would only be possible in the ‘Theatre of the Absurd’.
As Christiansen and Ulfstein explain, although arguing that NATO acted within the mandate[56] , they nevertheless proceed to state: “The reference to ‘all necessary measures’ means that NATO enjoyed wide discretion in its choice of forcible means. The only specifically excluded measure in paragraph 4 is the deployment of ‘a foreign occupation force’ on Libyan territory.”, [which was not sufficient to prevent the use of proxies].
Furthermore, “[…] importantly, paragraph 4 establishes a distinction between the authorized measures and the objective to be achieved. The authorization ‘to take all necessary measures’ is directly linked to the protection of ‘civilians and civilian populated areas …, including Benghaz”. Thus, “Only military measures directed at achieving civilian protection are legally recognized through the mandate in paragraph 4. Military measures taken in pursuance of other aims will represent a breach of paragraph 4 and will amount to an unlawful ‘threat or use of force’ against the targeted state under the UN Charter Article 2(4).” Other international sources have forcefully argued that NATO exceeded its mandate and as a consequence the intervention was in fact an act of aggression in regards to the Use of Force with the threat also corroborated by the rhetoric of “regime change” (hence the ‘threat’ or ‘use’). Yet these issues are rendered moot once proceedings have commenced.
Considering that, “The legal justifiability of a decision is not the same as a causal account of why it was taken. The latter has to do with things legal realists have always referred to: ambition, inertia, tradition, ideology and contingency. The UN Charter did not cause the Security Council to enact a sanctions regime against Iraq in 1990 or the launch of ‘Operation Desert Storm’ the following January. But the question of the legal justifiability of those activities could only be answered in terms of the law of the UN Charter and the use of force.: Furthermore, as Anghie explains, ‘There is a past that international humanitarian law would rather forget, but which is coming back to haunt it. This is a past that bears the shameful mark of racism and colonialism. It is a past that hardly ever gets more than a passing reference in the literature, probably because it is viewed as having been largely transcended, but also partly because it does not fit the overwhelmingly progressivist narrative of international humanitarian law.”
Additionally, “Resistance is aggression, and this calls for the use of force – a force that is both extreme and redemptive. Wars waged by the civilized are invariably ‘defensive’ wars. A powerfully circular logic drives the structure of the civilizing mission because the acquisition by one entity of ‘civilization’ ensures that whatever that entity does is inherently virtuous and legitimate even if it appears to violate existing law”.
Hence “post-modern imperialism [is one] in which effacement and erasure of the past enables the narrative of justice to persist in a self-galvanizing and self-fulfilling manner. If one can displace ‘Hamlets Glass’ for a glass that provides you with want you want to see and hear then justice can be ‘infinite’.”
.
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End Notes
[2] U.N Charter art. 2, para 4
[3] Nicaragua Case Nicaragua v United States Case (Merits): 1986 I.C.J. 14
[4] ‘Hans von Sponeck served as a UN Assistant Secretary-General and UN Humanitarian Coordinator for Iraq after Denis Halliday resigned as UN Humanitarian Coordinator for Iraq in October 1998, von Sponeck took over, heading all UN operations in Iraq and managing the Iraqi operations of the Oil-for-Food program. Von Sponeck resigned in February 2000 to protest UN’s Iraq sanctions policy. Von Sponeck accused the sanctions regime of violating the Geneva Conventions and other international laws and causing the death of thousands of Iraqis.’ Sponeck, H. V. (October 18th, 2012) ‘Hans von Sponeck: U.N.: Responsibility to Protect and U.S Foreign Policy’ [Online]. Available at: http://archive.org/details/scm-141190-hansvonsponeckandsharonmoesres [Accessed: 24th July, 2013]
[5] Koskenniemi, M. The Police in the Temple: Order, Justice and the UN: A Dialectical View [6 EJIL (1995) 325-348]: p.338
[6] Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161 (Nov. 6)
[7] Multilateral treaties developed in 1899 and 1907 that signaled the formalization of the rules and conduct of modern warfare – E.g., Convention (1) on ‘The Pacific Settlement of International Disputes’ (Hague [i]) states: art. 1 ‘With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences.’
[8]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd session, 183 plen mtg, UN Doc A/810 (10 December 1948).
[9] UNGA Res 2625 (24 October 1970) UN Doc A/RES/25/2625
[10] The Armed Activities Case Democratic Republic of the Congo v Uganda I.C.J. Rep. 2005, p.168
[11] I.e., those that believe the U.N is a progressive and constructive force in the world and those that believe the U.N is too weak, corrupt and complicit in the history of the world at war.
[13] Criticism of J.S.Mill’s competent judges usually regards what characteristics constitute a competent judge without getting mired in elitist notions of authority.
[14] Grewe, W The Epochs of International Law (2000)
[15] Although a long extract it is perhaps worth quoting Grewe in full:
‘The equating of the just war with the defensive war and the unjust war with the aggressive war, as became fashionable after 1919, had more in common with the theories of 1790 than with those of Grotius. However, even the theorists of 1790 did not use the terms “aggression” and “defense” in a legally precise sense, but rather in a vague ideological sense which enabled them to defame the adversary of the moment as the “aggressor”. War was for them a glorified act of punishment and extermination directed against criminal tyrants and aggressors thirsty for conquest – who stood hors la loi and deserved neither indulgence, consideration nor observance of the ordinary rules of war. The integration of the discriminatory law of war into a system of collective security shared the same intellectual origins.’ (Chapter 7: ‘Law Enforcement’)
[16] Baylis, J. et al. p.513
[17] Ibid, p.513
[18] Ibid.
[20] Ibid, p.515
[21] Mahjar-Barducci, A. (2014) Libya Urgently in Need of Military Intervention Gatestone Institute: International Policy Council (April 29, 2014 at 5:00 am)
[22] Stahn, C. 2007. Responsibility to Protect: Political Rhetoric or Emerging Legal Norm? American Journal of International Law, 99(2007), p.101
[23] Ibid, p.108
[24] Ibid: ‘Partly “Old Wine in New Bottles”’, p.111
[25] Ibid, p.105
[26] Ibid, p.112
INTERNATIONAL LAW AND ITS ‘OTHERS’, Anne Orford, ed., Cambridge, Cambridge University Press, 2006.
[29] Glover, N. A Critique of the Theory and Practice of R2P’ E-International Relations [Online] Available at: http://www.e-ir.info/2011/09/27/a-critique-of-the-theory-and-practice-of-r2p/ [Accessed: 27th May 2014]
[30] Ibid, p.9
[31] Ibid, p.16
[32] Ibid, p.15
[33] Consider the legal ramifications of the term ‘Unlawful Combatant’.
[36] Ibid. p. xii
[37] Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999, at 21.
[38] A/RES/63/308
[39] Bellamy, A.J. Evans, G. Weiss, T.G. (et al) Alex Stark: ‘The Responsibility to Protect: Challenges and Opportunities in light of the Libyan intervention’ (November 2011: E-publications): http://www.e-ir.info/wp-content/uploads/R2P.pdf: Accessed, July 11th 2013.
[40] Ibid.
[41] Thomas G. Weiss: ‘The Responsibility to Protect: Challenges and Opportunities in light of the Libyan intervention’ (November 2011: E-publications): http://www.e-ir.info/wp-content/uploads/R2P.pdf: p.8: Accessed, July 11th 2013.
[42] Edward C. Luck, “The Responsibility to Protect: The First Decade,” (2011) Global Responsibility to Protect 3, no. 4
[43] This is converting an ought, could or would into an Is.
[44] U.N. Charter art. 2, para.4.
[45] General Assembly resolution 2625 (XXV), 24 October 1970
[46] U.N Charter, art. 42
[47] Scmitt, M. “International law and the use of force.” (Joint Military Operations course on Sept. 7, 2012 in Pringle Hall auditorium): www.usnwc.edu: Accessed: Monday, 14 July 2014.
[49] Ibid.
[50] Ibid.
[51] Ibid.
[52] Ibid.
http://ssrn.com/abstract=918541 or http://dx.doi.org/10.2139/ssrn.918541; p.31
[55] Equivocation of events is an oft-used political tool used in the Art of Rhetoric to sway opinions.
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