I have a piece in an upcoming issue of Ethics and International Affairs, which explores the implications of how NATO is approaching civilian protection in Libya.
The international response to civilian deaths in Libya (and the imminent threat of mass atrocities) is unusual in three keys respects. First, Security Council Resolution 1973 authorized “all necessary measures” to protect civilians without the consent of the "host" state. This is the first time the Council has ever done (though of course it came close in some other cases, such as Somalia and East Timor). The Council’s intentions, and actions, could not be interpreted as anything other than coercive. Second, in contrast to other crises involving alleged crimes against humanity (most notably Darfur), diplomacy produced a decisive response in a relatively short period of time. The resolution's passage was made possible by the fact of regional support (i.e., the request from the Arab League, and was passed by a Security Council whose composition is very much in line with that recommended by advocates of Council reform (non-permanent members included Brazil, Germany, India, Nigeria and South Africa). Thirdly, the effort was not led by the United States; France and the UK proposed the resolution, and Lebanon was a key figure in security support for it. These three features suggest that many analysts of intervention (including myself) need to revise their previously pessimistic assessments of what is possible in contemporary international politics.
What is less clear, however, is how the crisis in Libya—and NATO’s on-going aerial campaign—will affect the fortunes and trajectory of the principle of R2P. In summary, I think is will do so in three main ways.
First, it will reassert the centrality of the Security Council. The Libya crisis and subsequent international response has shifted the organizational focal point for the discussion and implementation of R2P. The text of the 2005 Summit Outcome Document (which in Articles 138 and 139 endorsed R2P) represented a compromise between supporters of the emerging norm and its detractors. As part of that bargain, heads of state and government consciously rejected the idea that another organ within international society—other than the UN Security Council—might be a legitimate authority for the purposes of mandating responses to the threat or commission of mass atrocities. In short, there should be no more Kosovos.
Yet, simultaneously, the Outcome Document specifically identifies the General Assembly as the organ that will continue discussion of RtoP—a nod to dissenters who wished to ensure that the worries of developing countries would be fully taken on board. (More cynically, one might argue that giving the General Assembly the mantle for advancing RtoP was one sure way of guaranteeing slow progress.) After 2005 it was therefore the General Assembly, and not the Security Council, which became the focal point for discussions—some of which have been heated—about R2P implementation. Indeed, there have been conscious attempts to avoid associating aspects of the Council's agenda with the controversial principle of R2P.
The Libyan case offers us an interesting window through which to assess the broader balance of power between it and the General Assembly with respect to R2P. First, it was clear from the very beginning that Western countries, particularly as represented by the NATO alliance, would not countenance action without a Council mandate. As NATO chief Anders Fogh Rasmussen reiterated during the days prior to the passage of Resolution 1973, the alliance would assist in protecting civilian protection only if there was a “demonstrable need, clear legal basis, and strong regional support.” Also, as the authors of the 2001 Canadian-inspired ICISS report had hoped, those Permanent Members of the Council with concerns about the implications of Resolution 1973 abstained rather than blocked Council action—specifically, China and Russia.
Second, it is a clear relinquishing of the notion of impartiality.
A second important aspect of Resolution 1973, and the accompanying air campaign, is the degree to which it shifts the nature of the UN’s involvement from one of genuine (or at least professed) impartiality—a hallmark of the United Nation’s original approach to peacekeeping—to one of ‘taking sides.’ Of course, action authorized under Chapter VII of the Charter has theoretically always been partial, as it does not require the consent of the target state. Yet, in most cases since 1990 the Council has in practice sought to gain an invitation to act for reasons of both pragmatism (the host government’s consent can make a military action easier to carry out) and principle (powerful states such as China have demanded consent as an expression of the deeper value of sovereign equality). With the Libya case, the Council is reasserting its right to point its finger at the ‘wrongdoer’.
Third, it elaborates the “Sharp End” of R2P - something the current Secretary General of the UN had hoped to avoid, in order to make the principle more palatable to its opponents. During the past two years, the diplomatic agenda around R2P has been focused around prevention and capacity-building, and less on the possibilities for coercive action by the international community.
In some ways, this strategy has made good sense. There is clearly a need to increase the capacities of states to protect their own populations, and to develop non-coercive tools that third parties can wisely employ to address the deep causes of mass atrocity crimes. But there is also an urgent need to elaborate the more targeted and coercive tools that the international community can employ as part of so-called pillar III (the international responsibility to protect populations when national authorities 'manifestly fail to do so') —whether those tools are being employed preventively (to avoid an imminent catastrophe) or as part of a response to large-scale atrocities that are ongoing.
As Alex Bellamy reminds us, Libya was on no one’s watch-list in terms of being at risk of mass atrocity crimes. Structural or root-cause prevention strategies would have had little to say about this particular country. Instead, events in Libya were brought to a head by a series of shocks and specific events, which very few predicted. In order to be prepared for such dynamic situations, international actors and national governments require some ready-made capacities to both deter potential perpetrators of crimes and address the vulnerability of potential victims.
Photo courtesy of Reuters.