THE UNITED NATIONS AND THE
POLITICS OF HUMANITARIAN INTERVENTION: A CRITICAL ANALYSIS OF UNITED NATIONS
SECURITY COUNCIL RESOLUTION 1973 ON LIBYA
Introduction
Any government derives true legitimacy only from the willing
consent of the governed and the first obligation of government is to provide
security for its people. A government that cannot protect its people from
external threats has failed in its primary responsibility, while a government
that itself threatens the lives and security of its citizens forfeits any claim
to legitimacy (Global Focus, n.d)
The year 2011 brought with it a number of issues on the front
burner of international politics; it also unleashed a wave of political crisis
in a number of countries in the Middle East and Africa leading to mass
protests, regime change and internal democratization of formerly dictatorial
states. This has been christened the Arab Spring or Arab revolution. This wave of
crisis triggered off by the self immolation of a Tunisian street vendor
Mohammed Bouazizi after his cart was confiscated and his face slapped by local
law enforcement agents on December 17, 2010 in Tunisia saw to the unseating of
several diehard dictators that prior to this crisis would have been considered
impossible. The first victim of Bouazizi self-immolation was the 23 years old
regime of Zine el-Abidine Ben Ali of Tunisia, as Bouazizi's self-immolation sparked protests
in his rural town of Sidi Bouzid which spread to other cities and the capital
Tunis (Noor 2011, Arab Spring in Wikipedia 2012). Initially the government
responded coercively using the old tactics of the stick, when this failed to
yield result, it brought in the carrots in the form of cabinet reshuffle and promise
of 300,000 jobs for teeming youths that formed the core of the mass protest.
This did not assuage the anger of the people who persisted in the demand that
President Ben Ali vacate office. By January 14, 2011 Ben Ali resigned and self-
exiled himself and his family to Saudi Arabia (Noor 2011; Ajami 2011). The
success of what has come to be known as the Jasmine revolution (named after
Tunisian national flower - Jasmine) by western press or 'Dignity revolution' in
Tunisia became a wakeup call for the masses of other Arab states leaving under
similar repressive and undemocratic regimes. Thus between Dec 2010 and
March 2011 the protest has spread to
other Arab States, namely Algeria (Dec 28, 2010), Lebanon (Jan 12, 2011),
Jordan (Jan 14, 2011), Mauritania (Jan 17, 2011), Sudan (Jan 17, 2011), Oman
(Jan 17, 2011), Saudi Arabia (Jan 21, 2011), Egypt (Jan 25, 2011), Yemen (Jan
27, 2011), Iraq (Feb 10, 2011), Bahrain (Feb 14, 2011), Libya (Feb 15, 2011),
Kuwait (Feb 18, 2011), Morocco (Feb 20, 2011), Western Sahara (Feb 26, 2011),
Syria (March 15, 2011), (Wikipedia 2012). While some states were able to
contain the protests by promising democratic reforms, improvement in economic
and social well being of the populace, Cabinet reshuffle, immediate political
reforms, and financial handouts, others were not so lucky. The unlucky ones
include Egypt where the protest saw to the ousting of President Mubarak after
18 days of massive protest, thus bringing to an end his 30 years rule. As
Mubarak was exiting, the protest in Libya started and gained momentum
attracting wide publicity from the international press. The Libyan protest is
not unconnected with the speedy ousting of President Mubarak from office. The
Gaddafi regime like many other Arab state government responded to the protest
by employing the coercive apparatus of the state to suppress the protest. The
state threatened to deal mercilessly with all persons in cities fermenting
trouble. Just like in the case of Egypt,
the international community led by the United States admonished the government
to hearken to the yearnings of the people and embark on immediate democratic
reform. The use of force in dealing with unarmed civilians was condemned in all
its entirety. However as the protest in Libya persisted, the Gaddafi regime
threatened increased use of force on protesters calling on his supporters to
get into the streets and deal with the rebels whom he described in derogatory
terms as rats and cockroaches. Gaddafi blamed the West, Al-Qaeda and use of
narcotics by youths for the uprising. He promised to die in Libya a martyr than
step down and bow to the rebel's wishes (The
Guardian 2011; Saleh &England 2011; Seymour, 2011). Amidst threats from
Gaddafi and his son Saif al Islam, media reports were awash of the heavy
casualties on the side of the rebels as reports claimed that Gaddafi used the
army to clobber down opposition and journalists reporting against the regime.
There were also reports of injured demonstrators being refused access to hospitals
and ambulance transport; of dead bodies being removed from hospitals to conceal
the carnage and of doctors being prevented from documenting the number of dead
and wounded (Wikipedia 2012). In the face of this scenario, the United Nations
Security Council (UNSC) on February 26, 2011 adopted and issued Resolution 1970
which expressed grave concern at the situation in the Libyan Arab Jamahiriya
and condemned the violence and use of force against civilians, it also deplored
the gross violations and systematic violation of human rights including the
repression of peaceful demonstrators, it expressed deep concern for the deaths
of civilians and rejected unequivocally the incitement to hostility and
violence against the civilian population made from the highest level of the
Libyan government. The resolution also demanded immediate end to violence, calls
for steps to fulfill the legitimate demands of the population, and urged the
Libyan government to act with the utmost restraint, respect human rights and
international humanitarian law, as well as ensure safety of foreigners and safe
passage of humanitarian and medical supplies. The resolution also referred the
situation in Libyan Arab Jamahiriya to the prosecutor of the international Criminal
Court for investigation and banned both direct and indirect sale/transfer of
arms by member states, their nationals, or through their territories to Libya.
It called on member states to freeze assets of Gaddafi and members of his inner
circle and enforce travel ban on same. The Secretary General was tasked to
create an 8 member panel of experts to assist the SC monitor the sanctions
(UNSC Resolution 1970, 2011). These sanctions did not deter Gaddafi as he
continued his military campaign against opponents of his regime who similarly
were also waging violent campaign to dethrone him (CIRET Report 2011). The wide spread report about Gaddafi's continued
military assault on the civilian population protesting against him led to the
UNSC Resolution 1973 of 2011 adopted on the 17th of March authorizing
"protection of civilians" and "a No fly zone over
Libya" otherwise known in
international relations parlance as "humanitarian intervention"(HI).
The Security Council (SC) treated the matter as constituting a threat to
international peace and security and thus authorized member states or their
regional organizations "to take all necessary measures ...to protect civilians and civilian
populated areas under attack in the Libya Arab Jamahiriya, including
Benghazi...; part 6 on no fly zone established "a ban on all flights in
the air space of Libyan Arab Jamahiriya"
Armed with this resolution the allied forces of about 17
states led by US and NATO, launched the military operation termed operation
Odyssey Dawn aimed at crippling Gaddafi's military capability in order to
protect the civilian population of the
protesting cities especially Benghazi and Misrata. The exercise which not only
targeted and crippled Gaddafi's air and land capability but also destroyed part
of his palace killing his son raised some queries on the manner of
implementation of resolution 1973 especially the wide interpretation given to
vague and undefined mandate to protect civilians. In addition the military
exercise which did not only side with the armed insurrection against the regime
in removing and Killing Gaddafi, but also took a toll on the civilian
population it claimed to protect casts doubt as to the main motive of the NATO
led coalition and justifiability of the intervention. Thus the Libyan
revolution and the foreign intervention
that saw it to fruition once again raises the vexed issue of the using the
United Nations or any of its arms/agency to pursue vested interests masked as
interests of international community and or protection of fundamental rights of
oppressed persons. It also resurrects the controversy surrounding the concept
of humanitarian intervention and under what circumstances it should be
justified or considered legal? Although the intervention in Libya received the
blessing of the UNSC, a body so authorized to do so, however controversy
continues to trail the manner of implementation of the resolution and the wide
array of interpretations given to the resolution especially with reference to
the phrase "all necessary means". This paper examines the position of
the United Nations with regards to the vexed issue of humanitarian
intervention. It examines specifically the politics of humanitarian
intervention with particular reference to resolution 1973 of 2011 on Libya, the
impetus that drove its adoption, the manner of interpretation and
implementation of the resolution with the aim to unearth the underlying motives
behind the humanitarian intervention in Libya.
Statement of the Problem:
The wave of Arab Spring which started in Tunisia in December 2010 took
over Libya on February 15 2011 after the call went out in various social media
inviting Libyans to demonstration against the regime on Feb. 17, 2011 popularly
titled 'a day of rage" following the example of Egypt where one of the
longest serving dictators - President Mubarak was thrown out of power in a
similar demonstration. In response to this call many Libyans especially in the
East trooped out on the 12th and 13th of February in Benghazi led by a Lawyer
human right activist Fathi Terbil. The arrest of Terbil intensified the effort
as more activists and close to 600 persons demonstrated in front of the
Benghazi police headquarters on the 15th. The police responded violently
towards the demonstrators resulting to casualties on both sides (CIRET-AVT
2011, Arab Spring-Libya Civil War in Wikipedia 2012). The violent protest in
Benghazi spurred similar protests in other cities east of the country. The one
sided report of the western media which presented the image of a dictator slaughtering his unarmed population and ready
to inflict more mayhem on the protesting civilian was what caught the fancy and
attention of the international community and through them the United Nations.
The initial response of the UN was a call on both sides especially on the
regime to show restraint and tow the path of dialogue. Following Gadaffi's
speech to crush the insurgents referring to them as rats and cockroaches, and
wide spread report of the regime killing unarmed civilians, the UNSC dished out
a series of sanctions against the regime in resolution 1970 in the form of
asset freeze/travel ban of Gaddafi and his close allies, in addition to arm
blockade (UNSC, Resolution 1970, 2011). However before the sanction could take
root, and in response to the demands and pressure of the Benghazi protesters,
the Arab league, United States, United Kingdom and France for a no fly zone in
Libya, the UNSC came out with 'Resolution 1973' the content of which consist
mainly of protection of civilian populace and the placing of a no fly zone over
Libya. The UNSC resolutions on Libya though received wide spread support of all
the members with 5 abstentions (abstention is interpreted as consent) the
resolution continues to be immersed in controversy with regards to its
interpretation and implementation by the US and NATO-led coalition of the
willing that enforced the resolution. Doubts have also been cast on the
intention of the framers of the resolution given the vague and imprecise nature
of the resolution on protection of the civilians which leaves it susceptible to
any interpretation that may suit the self interest of the intervening states.
There has also been controversy as to the legality and justifiability of UN
instigated external intervention under
whatever pretext in violation of the sanctity of sovereignty of member states
which the UN has pledged to protect (Kochler 1999, Goodman 2006, The Economist
2008, Guraziu 2008, Stanulova 2010, Kochler 2011, Mandami 2011a).
The problematic of this paper is first, to unearth and assess critically
the factor(s) responsible for the adoption of Resolution 1973 on Libya, and
secondly to find out whether the manner of implementation of Resolution 1973
complied with or violated the mandate of the resolution which fundamentally is
to protect the civilian population from harm. Against this backdrop the paper
raises the following research questions:
(1) Did
Gaddafi regime's threats and use of force to quell protest instigate the UNSC
adoption of resolution 1973 on Libya?
(2) Did the manner of enforcement of resolution
1973 by NATO led coalition comply with the mandate of the Resolution on Libya?
Objectives of the Study
The broad
objective of this study is to critically evaluate the UNSC resolution 1973 on
Libya
The
Specific objectives of the study are
1. To determine
if Gaddafi regimes threats and use of force to quell protest brought about the
UNSC adoption of resolution 1973 on Libya
2. To
determine if the manner of enforcement of resolution 1973 by the NATO led
coalition complied with the mandate of the resolution.
Significance of Study:
This study
has both theoretical and practical significance.
In
theoretical terms the study is significant given the raging controversy over
the legality and justifiability of humanitarian intervention either by states,
group of states or the United Nations. In addition the study shall contribute
to the wealth of knowledge on the issue of UN humanitarian intervention.
In
practical terms the study is significant because of the specificity of the
Libyan crisis since the beginning of the Arab Spring. It unearths the rationale
behind the UN humanitarian intervention in Libya when such intervention did not
take place in other countries with similar situation. The findings of this
study shall be useful to scholars and technocrats bent on solving similar
crisis in other Arab countries with mass revolt.
Operational Definition
Conceptualizing
Humanitarian Intervention:
Humanitarian intervention (herein also referred to as HI) has been
variously defined though some commonalities run through the various definitions
(Kadas, 2001:1). For instance, Roberts (in Kadas 2001:1) defines HI as a
"military intervention in a state, without the approval of authorities,
and with the purpose of preventing widespread suffering or death among the
inhabitants" Knudsen (Kadas, 2001:1) sees it as "dictatorial or
coercive interference in the sphere of jurisdiction of sovereign state
motivated or legitimated by humanitarian concerns". While Bhikhu (in Kadas
2001:1) defines it as "an act of intervention in the internal affairs of
another country with a view to ending
the physical suffering caused by the disintegration or gross misuse of authority of the state ,
and helping create conditions in which a viable structure of civil authority
can emerge". Keohane (2003:1) defined it as "the threat or use of
force across state borders by a state (or group of states) aimed at preventing
or ending widespread and grave violations of the fundamental human rights of
individuals other than its own citizens without
the permission of the state within whose territory force is applied".
Stanuova (2010) defines it as legitimate use of force by states against another
state for the purpose of alleviating human suffering in the latter. While Heinz
(2010) defined it as "the trans boundary use of military force in order to
halt or avert large scale and grave human suffering", Kadas (2001:2)
identifies some commonalities in all the definitions, namely (i) Use of
military force, (ii) Absence of the target state's permission, (iii) Its aim to
help non nationals (iv) Agency of intervention. This paper adopts the
definition by Keohane (2003).
Literature Review:
The literature review focuses on the diverse scholarly
perspectives on the vexed issue of humanitarian intervention considered
fundamental in understanding and answering the questions posed in this paper.
This includes the theoretical arguments with regards to the legality/justification
of humanitarian intervention, the history and dynamics of UN's role in
Humanitarian intervention, and humanitarian intervention in the Libyan crisis
as mandated by resolution 1973.
Humanitarian
Intervention: The Legality and Justification Concerns
Guraziu (2008:3) opines that "the main problem with
humanitarian intervention is not the lack of consensus in defining the concept
but rather the more contentious issues such as the legality and legitimacy of
an intervention". For some schools of thought, HI will be legitimate if it
is authorized by the UN - considered the legitimate institution to do so as the
world body entrusted with peace and security of the World, as Kurth (2005:90)
put it "the political authority with the greatest legitimacy among the
widest number of states is the UN". For some others, HI will always be
illegitimate and illegal because it violates the sovereignty of nation states.
Thus the illegality/legality or justification thesis and the violation of
sovereignty thesis forms the central focus of most theoretical/practical
concerns on humanitarian intervention. There are many schools of thought on
this.
In the work Humanitarian Intervention debate, Holzgrefe (2003)
raised a fundamental question, "does the international community have a
moral duty to intervene to end massive human rights violations like Rwandan
genocide? To answer the question Holzgrefe (2003) observes that intellectual
postulations regarding the morals and justice of HI has been classified in
diverse ways, yet no single typology captures all the important differences
between views. He thus classified these views into four ethical divides. The
first ethical divide concerns the proper source of moral concern (i.e. Are
morally binding norms an inherent feature of the World discovered through
reason or experience and unalterable by humans? or is it derivable from the
explicit or tacit consent of the agents
subject to that norm?); the second
divide concerns appropriate objects of moral concern (i.e. Is international
justice to be concerned essentially with welfare of individual human beings
or should it be concerned with the
welfare of the group which can differ significantly from the interests of the
individual?); the third divide is on proper weight of moral concern (i.e. should
all objects of moral concern receive equal treatment?); while the fourth is
about proper breadth of moral concern(i:e should all states, nations, races,
humans constitute objects of moral concern, or are there some that should
attract more attention)? He opines that each ethical concern addresses different
theoretical postulations. The theories can be grouped into four major arguments
and counter arguments namely, naturalist versus consensualist, individualist versus
collectivist, egalitarian versus inegalitarian and the universalist versus the
particularistic theories.
Within the first ethical concern (proper source of moral concern)
Holzgrefe identifies the naturalist theories which contend that morally binding
norms are an inherent feature of the world, discovered through reason or
experience, that is, facts about the world possess an intrinsic moral
significance which human beings are powerless to alter. This is in contrast to
the consensualist theories which claim that moral authority of any given
international norm derives from the explicit or tacit consent of the agents
subject to that norm, in effect just norms are made not discovered. Within the
second concerns (appropriate objects of moral concern) he identifies
individualist theories of international justice concerned ultimately with
welfare of individual human beings in contrast to the collectivist theories
that maintain that groups can have interests different from individual
preferences that compose them. Within the third divide (proper weight of moral
concerns) he locates the egalitarian theories that claim that the objects of moral
concern must be treated equally in contrast to the inegalitarian theories that
claim otherwise. In the fourth divide(proper breadth of moral concern) he
identifies the universalist theories that assert that all relevant agents
wherever they exist are the proper objects of moral concern in contrast to the
particularist theories that hold that certain agents (human being, races,
nations, states) but not others are the proper objects of moral concern. He
argues that the various theoretical postulations regarding HI falls into one or
more of these four divides. He classified the theories of humanitarian
intervention into five categories, namely: utilitarianism, natural law, social
contractarianism and legal positivism. Within each theoretical concern there are
also variations.
Utilitarianism according to Holzgrefe is a naturalist doctrine
that an action is just if its consequences are more favorable than unfavorable
to all concerned, in other words an action consequences are everything. Conduct
is never good or bad in itself, only its effects on human well being make it
good or bad. Thus utilitarianism is naturalist, individualist, egalitarian and Universalist,
because human well being is considered an intrinsic good, and each person
counts and no one for more than one. He further classified utilitarianism into
two -"Act utilitarians" which contend that each human action is the
proper object of moral evaluation, in the sense that each specific act is just
if its immediate and direct consequence is more favourable than unfavourable to
all concerned. In effect humanitarian intervention is just if it saves more
lives than it costs and unjust if it costs more lives than it saves. This has
been criticized for asking too much and too little of people, in that it obliges
us to help others to the point at which our own well being is reduced to the
same level as those whose well-being we are attempting to improve; its extreme
altruism is the logical consequence of its individualist, egalitarian and
universalist premises. In contrast
," Rule Utilitarians" hold that a specific class of actions is the
proper object of moral concern in the sense that an act is just if it conforms to a set of rules whose
general adoption increases aggregate well-being more than the general adoption
of any other set of rules. This view holds that if people do not observe the
same rules, trust will erode and aggregate well-being decreases. In effect
justice of humanitarian intervention depends not on its consequences but on
whether it is permitted by a rule that if followed by everyone produces the
best consequences for all concerned. Unfortunately there is no agreement
amongst this group as to which set of rules satisfies this criterion. In
addition the act utilitarians criticized the position of the rule utilitarians
as 'unutilitarian' fetish adherence to rules for their own sake and has therefore
fallen prey to "rule fetishism". Holzgrefe concludes that the debate
between the act and rule utilitarians is
that neither side supports their claims with anything beyond anecdotal
evidence thus a systematic analysis of the welfare of humanitarian intervention
and non-intervention is sadly lacking. This constitutes a setback in assessing
the merits and demerits of competing utilitarian claims.
The second category, natural law is based on the naturalist
doctrine that human beings have certain moral duties by virtue of their common
humanity. Its basic precepts are discovered through reason and therefore
available to anyone capable of rational thought. This view holds that "our
common human nature generates common moral duties -including some versions of a
right of humanitarian intervention. A representative view is that of Joseph
Boyle (in Holzgrefe 2003)
Our
moral obligations are not limited to people whom we are bound in community by
contract, political ties or common local. We are obliged to help whoever{sic}
we can...and be ready to form and promote decent relations with them...This
general duty to help is the most basic ground
within this common morality for
interference in the internal affairs of one nation by outsiders, including
other nations and international bodies. The specific implications of the
general duty to provide help depend on a number of highly contingent factors,
including respect for a nation's sovereignty and awareness of the limits of
outside aid. But the normative ground is there and ...in extreme circumstances
it can justify the use of force.
The Dutch jurist Hugo Grotius affirmed this view when he wrote
that
The
fact must be recognized that kings and those who possess rights equal to those
of kings, have the right of demanding of punishment not only on account of
injuries committed against themselves or their subjects, but also on account of
injuries which do not directly affect them but excessively violate the law of
nature or of nations in regard of any person whatsoever.
Natural law theorist further opines that this right of
intervention is discretionary and is not obligatory especially where it places
a burden on the citizens of the intervening state. Similarly the victims of
genocide, mass murder and the like possess no right of humanitarian rescue or
moral claim to the help of any specific state. Against this backdrop, the duty
of humanitarian intervention is an 'imperfect duty' like the duties of charity
and beneficence, based on the freewill of states to choose when and how to
help. By contrast states possess a perfect duty of non-intervention, as
Christian Wolf (Holzgrefe 2003:28) opines "to interfere in the government
of another ...is opposed to the natural law of liberty of nations, by virtue of
which nations is altogether independent of the will of other nations in its
actions...if any such things are done they are done altogether without
rights." In opposition to the
imperfect duty of humanitarian intervention , Allen Buchanan posits a perfect
duty of HI by asserting that if persons have rights then one ought
not only to respect persons' rights by not violating them but also contributing
to creating arrangements that will ensure that persons' rights are not
violated. In the same token, it is not enough for a state to refrain from
violating human rights itself, it must also create and participate in
international institutions that prevent or stop gross human rights violation.
Therefore a perfect duty of humanitarian intervention is in principle wholly
compatible with the precepts of natural law (Hozgrefe 2003).
Social contractarianism is also a naturalist doctrine that moral
norms derive their binding force from the mutual consent of the people subject
to them. This mutual consent is not between real people in real choice
situations but ideal agents in ideal choice situations. In their view, norms
are morally obligatory only if free, equal and rational agents would consent to
them. By defining justice in this way, they avoid the criticism that actual
norms are rarely if ever, chosen freely. Thus by idealizing the choice
situation social contractarians ensure that mutual consent is genuine and not
the product of force or fraud. Social contractarians disagree on certain
basics- the identity of the contracting parties. While some contend that norms
are just if the citizens of a state would consent to them, others claim that
they are just if the states themselves would consent to them. The identity of
the contracting parties is important because it affects which norms would be
chosen and which are morally binding. If citizens of a state were the
contracting parties, then a duty to maximize the national interest would be selected
because as Buchanan (in Holzgrefe2003:29) argues "what makes the
government legitimate is that it acts as the faithful agent of its own
citizens. And to that extent, government acts legitimately only when it
occupies itself exclusively with the interest of the citizens of the state of
which it is the government. Thus the justice of any given intervention hinges
on whether it benefits or harms the "national interest". For scholars
like Samuel Huntington intervention aimed at ending gross human rights abuses
in foreign countries are almost always unjust. He asserts that "it is
morally unjustifiable and politically indefensible that members of the [United
States] Armed Forces should be killed to prevent Somalis from killing one
another" (in Holzfrefe 2003:30). For
scholars like Joseph Nye Jr. (in Holzgrefe 2003:30) who defines national
interest more expansively, interventions aimed at ending genocide and mass
murder can be morally obligatory in certain circumstances. However in either
case, the interests of the intervening state counts for everything in assessing
an intervention's legitimacy; while the interests of the target state counts
for nothing. Holzgrefe further argues that the widespread appeal of
"national interest" argument rests in large measure on the
inegalitarian, particularist view that
states should privilege the well -being of their own citizens over the
well-being of nameless persons in
distant lands.
Communitarianism is the consensualist, particularist doctrine that
norms are morally binding in so far as they fit the cultural beliefs and practices
of specific communities. A representative view is that of Michael Walzer (1983
in Holzgrefe 2003). Justice according to Walzer is relative to social meanings.
For him there are "infinite number of possible lives shaped by infinite
number of possible cultures, religions, political arrangements, etc". Therefore
"a given society is just if its substantive life is lived in a way
faithful to the shared understandings of its members". Thus the
"inherited cultures that rule peoples' lives are morally binding because
they are the product of long processes of 'association and mutuality', 'shared
experience', and 'cooperative activity'. "They are binding because they
are the product of consent". A duty of humanitarian intervention is just
because it fits the inherited cultures of political communities everywhere. It
is justified when "it is a response ... to acts that shock the moral
conscience of mankind". "This global culture of human solidarity
demand that states intervene whenever
one of their number massacres, enslaves, or forcibly expels large
numbers of its citizens or collapses into frenzied, murderous anarchy"
(Walzer in Holzgrefe2003:34). Scholars faulted the consent ingredient of
contractarianism on the grounds that consent as conceived by this school cannot
generate morally binding norms. Gerald Doppelt (in Holzgrefe 2003:34) observes
that given the inequality in social and political life, oppressed people have
little or no control concerning their social participation. Put differently,
Communitarianism is blind to the warping effects that asymmetries of wealth,
power and status have on expression of consent.
Legal positivism as a normative doctrine is the consensualist,
collectivist view that norms are just if they are lawful; that is if they are
enacted according to accepted procedures. This view also posits the
"separability thesis" in that it claims that "binding laws have
absolutely no need to "reproduce or satisfy certain demands of morality, though
in fact they have often done so" (Hart 1958 in Holzgrefe 2003:35). Another variation of this view posits that
"one has a moral obligation to obey the law qua law only if is enacted
according to just legislative procedures. But the question is-what constitutes
just legislative procedure? Holzgrefe opines that in international law,
"state consent" expressed in the form of treaties and international
custom is the accepted procedure for enacting legal norms. They argue that
state consent is the legally valid (and morally binding) legislative procedure
because it is the legislative procedure that states recognize as legally valid.
Naturalist have queried the idea of obeying law qua law just because it was
passed in accordance with the accepted recipes for making law more so if the law is a wicked law.
Teson (2003) concentrated on the liberal case for
humanitarian intervention. Liberal view is hinged on a standard assumption of
political philosophy which is that "a major purpose of states and
governments is to protect and secure human rights, that is rights that all
persons have by virtue of personhood alone.
Governments and others in power who
seriously violate those rights undermine the one reason that justifies
their political power and thus should not be protected by international
law" . Against this backdrop, such governments cannot hide behind the mask
of sovereignty to defend their actions as tyranny and anarchy results to the
moral collapse of sovereignty. Liberalism further contends that the fact that
persons are right holders has normative consequences for others, namely, the
obligation to respect those rights, obligation to rescue victims of tyranny or
anarchy, if we can do so at reasonable cost to ourselves, which in essence is
the right of humanitarian intervention. The liberal view has two components:
the first is that governmental tyranny and behavior that typically takes place
in situations of extreme anarchy are serious forms of injustice towards
persons, the second is the judgment that subject to important constraints,
external intervention is at least morally permissible to end that injustice. It
further opines that if situations that trigger humanitarian interventions are
morally abhorrent, then neither the sanctity of national borders nor a general
prohibition against war should by themselves preclude humanitarian
intervention. Anarchy and tyranny, it contends are two extremes in a continuum
of political coercion. Anarchy is the
complete absence of social order which leads to a Hobbesian state of nature,
and the need for survival compels persons in the state of nature to lead a
brutal existence marked by assaults on human dignity-a case of too little
government; in a similar vein, tyranny is not simply an obvious assault on the
dignity of persons, it is a betrayal of the very purpose for which government
exists. It is a case of abuse of government, of too much government.
Humanitarian intervention is therefore one tool to help move the quantum of
political freedom in the continuum of political coercion to the Kantian centre
of that continuum away, on the one hand, from the extreme lack of order (anarchy)
and on the other, from governmental suppression of individual freedom (tyranny).
Put differently if human beings are denied basic human rights and
consequentially the capacity to pursue their autonomous projects, outsiders - (foreigners,
governments, international organizations) have a duty not only to respect those
rights themselves but also ensure that governments respect them.
Using the concept of "debordering and rebordering" of
human rights derived from world society perspective Thorsten Bonacker (2007:27)
examines how the global human rights regime is a 'debordering and rebordering'
process and therefore offer opportunity for humanitarian intervention.
According to this school, debordering can be defined as the functional change
of borders, the loss of importance of their territorial anchoring and as a
consequence-the decoupling of (functional) system borders and territorial
borders. In contrast to theories of globalization/trans or denationalization,
debordering for world society means both new forms of debordering and
rebordering because without borders no social order can reasonably be conceived
of. Rebordering is therefore a reaction to debordering processes. From this
viewpoint the global human rights regime is on one hand a debordering process
in so far as it decouples individual rights from the notion of belonging to a
particular political community; it is a post national form of inclusion and
integration. On the other hand it draws a new line and creates a new border.
Thus the debordering process is attributed to the development of transnational
human rights regime as well as a consequence of it. The human rights regime is
itself part of a rebordering process because the institutionalization of a
transnational human rights regime is a reaction to the decline of the nation
state and the establishment of a new order. This order is established beyond
the state and materializes in some respect as world society. However the human
rights regime is not a replacement of the nation state but rather stresses new
additional borders, which allows older borders to be put into perspective. Thus
rebordering creates new forms of inclusion and symbolic integration as well as
post national conflict and types of conflict settlement. Bonacker further notes
that the symbolic constitution of a community based on human rights implicates
a border between those who are part of this community and those who are
excluded from it (so called outlaw regimes). This raises the question of
legitimation in postnational constellation. In such a postnational
constellation of world politics, recognition of states is no longer exclusively
based on inter-state community, but also on transnational actors within a
transnational public sphere and one aspect of legitimation or delegitimation is
compliance with or violation of human rights provisions. If a transnational
community substantiates a massive human rights violation in a state, that state
can lose its international recognition and violent intervention into such a
state if the transnational public sphere is mobilized becomes reasonable. In
this way, human rights becomes a strong resource of legitimacy not because of
their ability to regulate world politics with law but because of their function
as an empty symbol that cannot be rejected. In effect the transnationalization
of political and legal inclusion by human rights directs attention to the
difference between functional and territorial borders, and the human rights
regime in this respect becomes a way of decoupling the political and the legal
system from their nation state framing. On this level functional borders
structures national borders between nation state or put differently the principle of
functional differentiation dominates the principle of segmentary
differentiation (Bonacker 2007:23-33) .
The other theoretical divide borders on how best to
interpret the UN Charter and relevant international conventions to find
justification for the legality or illegality of humanitarian intervention. Two
schools of thoughts emerge on this, the classicist view and the legal realist
view.
The classicist presume that parties to a treaty "had
an original intention which can be discovered primarily through textual
analysis and which in the absence of some unforeseen change in circumstances,
must be respected until the agreement has expired or has been replaced by
mutual consent" (Holzgrefe 2003:38). This school otherwise referred to as
"textualists" believe that words, phrases, and sentences in treaties
often have plain meanings and usually have specific and ascertainable original
intentions which consistent with the
principle of the rule of law, are binding as long as the treaty remains in
force. As a result they privilege indicators of intent closest in time to the
text's creation (Farer 2003:61). Thus it rests its arguments on the literal
interpretation of UN Charter especially Article 2(4)) and other international
treaties rejecting the expansionist reading of the UN Charter advanced by the
Legal Realist school. They contended that the UN Charter did not make provision
for HI, rather the UN charter in Article 2(4) contradicts the very notion of
humanitarian intervention. It states 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 manner
inconsistent with the purposes of the United Nations" (Guraziu, 2008:4;
Stanulova, 2010:2; Portela 2000:3; Kochler1999:5). Adopting a more liberal
approach Legal Realism on the other hand asserts that texts are but one among a
large number of means for ascertaining original intention. It argues that
original intention has no intrinsic authority rather the past is relevant to
the extent it helps us to identify the prevailing attitudes about the propriety
of a governments acts and omissions (Reisman in Holzgrefe 2003:39). Relying on
expansionist reading of UN texts it argues that the phrase "in any other
manner inconsistent with the purposes of the United Nations" permits
unauthorized intervention where the UNSC fails to realize one of its chief
purposes-protection of human rights (Holzgrefe 2003). In their view the article
only forbids the use of force when it is directed against territorial integrity
or political independence of any state (Adjei 2005:29). Where neither is the
case humanitarian intervention is not prohibited. Murphy (2005) thus argues
that the language used in Article 2(4) does not prohibit humanitarian
intervention if the purpose of the intervention is not to alter the boundaries
of a state or to topple a government and that the negotiating history of the
text confirms that the drafters sought a broad prohibition. He notes that the
UN Charter contains two exceptions to this broad prohibition. First, Article 51
of the Charter provides that "nothing in the present Charter shall impair
the inherent right of individual or collective self -defense if an armed attack
occurs against a member of the United Nations, until the Security Council has
taken measures necessary to maintain peace and harmony". The second exception in Article 42 also states that " 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 or
sea, or land forces as may be necessary to maintain or restore international
peace and security" (Murphy
2005; Portela 2000). In the views of Teson
(in Adjei 2005) since Article 2(4) also prohibits use of force when it is
employed against the purposes of the UN, the big question is whether
humanitarian intervention will survive the "purpose test". If
protection of human rights is one of the purposes of the UN then humanitarian
intervention is legal. In addition it follows logically that if all uses of
force with the exception of those expressly stated in the charter were illegal
then the qualifying clauses to article 2(4) becomes redundant. To give effect
to that clause, one must look at other parts of the Charter (Adjei 2005:30).
They suggest that the general prohibition on the use of force, enshrined in
Article 2(4) could and should be
stretched to accommodate other important principles of the UN such as human
rights, so as to permit interventions with a humanitarian purpose (Welsh
2006:55). They further argue that powerful states will not be constrained by
old texts construed in ways that seriously compromise their interests; as rules
acquire authority in the international system by prescribing in greater or
lesser details the behavior that, in a
particular area of activity, optimally advances the shared interests of major
states (Farer 2003:63). In the absence of such dynamism in rule making and
interpretation there is a likelihood that states may openly reject the
established meaning or offer a mendacious account of their behavior or simply
act without explanation. This attitude may provoke other states and the
likelihood of reciprocating in a similar manner. To avoid escalation of
violence, governments and legal scholars should focus on the present and seek
to clarify and publicize contemporarily
demanded or policy-maximizing interpretation of old texts both international
agreements and scholarly tomes and by so doing summarize and crystallize past
state behavior into rules that can be as
specific and binding as a treaty(Farer
2003:64). Both schools of thought inarguably run parallel arguments that
justify the positions they took. Hence Rudi Guraziu (2008) in his review of
literatures on the justification of military humanitarian intervention
categorized the major contentions into two groups, namely restrictionists and counter-restrictionists.
Restrictionists base their arguments on the principle of sovereignty and the
norm of non intervention which relies
heavily on Article 2(4) and 2(7) of the UN noting that the act is not
only a violation of UN charter but also could be pretext for the achievement of other
objectives of the interveners. The idea that humanitarian intervention can be
used as a pretext for war and imperialistic adventure by the advanced
powers was interrogated by Ryan Goodman
(2006). Goodman argues that a key obstacle to legalizing unilateral
humanitarian intervention (UHI) is the overriding concern that states would use
the pretext of HI to wage wars for ulterior motives. He asserts that contrary
to this popular view, legalizing UHI would actually discourage wars with
ulterior motives. He contends that encouraging aggressive states to justify
force as exercise of humanitarian intervention can facilitate conditions for
peace between those states and their prospective targets. Taking the human
rights posture the counter restrictionists argue that the UN Charter does not
ban the use of force in cases of massive abuse of human rights by a state. This
they argue is in consonance with customary international law based on the just
war theory. Thus Hugo Grotius, a Dutch
Jurist argues that "where a tyrant should inflict upon his subjects such a
treatment as no one is warranted in inflicting, other states may exercise a
right of humanitarian intervention" (in Guraziu 2008) Ferdinand Teson (in Guraziu 2008) also
notes that issue of sovereignty and human rights remains problematic
because whichever action taken will imply a violation of some fundamental rule
of international law, therefore either intervention is undertaken to put an end
to the massacres or we abstain from intervening
and tolerate the violation by other states of the general prohibition of
gross human rights abuses. He asserts that abuse of human rights is not only an
assault on the dignity of persons but a betrayal of the principle of
sovereignty. Writing on the subject of sovereignty and right/duty of state to
intervene on humanitarian grounds, Henry
Shue (2006:12-16) highlighted the views of Friedrich Kratochwil (1995) which
describes sovereignty as a kind of right that creates a space within which a
bearer of the right is sometimes free to do what is morally wrong. He however
notes that "while the exercise of sovereignty is certainly not defeasible by
direct appeals to morality, the proper scope of sovereignty's exercise does
change and it could change partly in response to moral appeals". This
change may require two steps, one cannot
merely say, this is wrong, so sovereigns are not allowed to do it since
sovereigns are understood to be free to
do much that is wrong (as are individual persons). But one can say (1) this is
very wrong that even sovereigns should be understood in future not to be free
to get away with it and (2) once this is generally understood among sovereigns
to be outside the scope of sovereignty, sovereigns ought not, according to the
now-tightened rules of sovereignty, to do it in future. He asserts that a rule
change may have to precede a demand for a behaviour change, but there is no
reason why a rule change cannot be based at least in part on moral
considerations. Shue went further to elaborate on the limitations of
sovereignty and argues that the content of sovereignty blinds us to its form,
but its form imposes unseen limits on its content. He argues that sovereignty
was not originally intended to, and indeed cannot be unlimited. Extrapolating
from the writings of classical theorists like Christian Wolff, Emmerich de
Vattel and Rambotham & Woodhouse, he opines that the principle of non
intervention protects the principle of sovereignty but at the same time limits
it. This is because if sovereignty is a right, it becomes limited. It is
limited because the duties that are constitutive of the right, and without
which there can be no right, constrain the activity of every sovereign
belonging to international society. The deeper reason (quoting Vincent 1974)
being that non-intervention imposes duties that also constrain the sovereignty
of the states that bear the duty. It protects one by constraining everyone
else's and protects everyone else's by constraining the one. Thus the form of
sovereignty is its being a right, and this dictates a feature of its content,
it being limited. Therefore an agent’s right must have the form of limits on
the behavior of other agents and if all have right, the conduct of all has
limits. In effect rights portend rules of the game which also implies
limitations on the exercise of rights. Shue also added that one specific limits on
state sovereignty is dictated by the nature of fundamental individual rights.
As every effective system of rights needs to include some default or back up
duties, that is duties that constitute a second line of defence requiring
someone to step in to the breach when those with the primary duty that is the
first line of defence fail to perform it. Often the ideal content of the second
duty is simply the enforcement of the primary duty, the default duty falls upon
someone who can make the bearer of the primary duty do it. But the nature of
the secondary duty, like that of the primary duty will depend on the nature of
interest to be protected, the most effective means of protecting it ,and this
cannot be specified purely in the abstract (Shue 2006:17). What Shue has done
is to conceptualize under what circumstances state sovereignty shall yield to
individual sovereignty constituted as the collection of rights fundamental to
an individual's existence. To this end Ramsbotham and Woodhouse (in Guruziu
2008) suggested four steps that prioritizes individual rights before state
rights and allow intervention when a state fails its duty to protect its
citizens. These are: (1) Victims' right to protection and assistance, (2) host
government's duty to provide it, (3) outside government's duty to act in
default, (4) outside governments’ right to intervene accordingly.
In a bid to move
the main issue in question in this debate which is offering help to
humans beings to reduce or alleviate their suffering away from the
much expended energy on the morality and legality of the intervening act
itself, the ICISS in 2001 redefined sovereignty as implying responsibility, and
moved the debate from the right to intervene to the responsibility to protect
(R2P) and thus opines that "the
primary responsibility for the
protection of its people lies with the state itself but where a population is
suffering serious harm as a result of internal war, insurgency, repression or
state failure, and the state in question is unwilling or unable to halt or
avert it, the principle of non intervention yields to the international
responsibility to protect (Guraziu2008, Musiani 2008, Massingham 2009). Thus R2P adopts a new view of sovereignty which
emphasizes as its defining characteristics the capacity to provide protection
rather than territorial control, and as
Weiss (in Massingham 2009:804-805) puts
it "sovereignty has added a fourth characteristics- 'respect of human
rights' to the three earlier defined by the treaty of Westphalia-territory,
authority and population. Taken as whole R2P is best understood as a broad
policy agenda that aims to create a consensus on how to prevent and react to
situations of gross human suffering couched as responsibility to protect in
order to generate the will and consensus necessary to mobilize a decisive
international response. Thus it is premised on the responsibility to prevent,
react and rebuild. These three criteria are seen as the early warning,
preventive toolbox and political will of R2P.
Scholars however feel that the report is weighted heavily on the
responsibility to react and implications for military intervention thus
associating R2P primarily with humanitarian intervention (McFarlane, Thielking
&Weiss 2004, Weiss 2007, Bellamy 2009 in Heize 2011). R2P was seen as an
attempt to create a new norm that would legalize HI. The Commission listed some
criteria for military intervention or responsibility to react. The first of
these is the threshold criteria of just cause. This implies that military
intervention must be limited to situations of (a) 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 failed state
situation or (b) large scale ethnic cleansing, actual or apprehended, whether
carried out by killing, forced expulsion, acts of terror or rape. The second
criterion is right authority. This refers to the question of who should be the
body to authorize any such intervention. In sum three right authorities are
suggested, the Security Council, the General Assembly and Regional
Organizations. The third criterion is right intention. This means the primary
purpose of intervention must be to halt or avert human suffering and that
regime overthrow is not legitimate reason for invoking the doctrine. The fourth
criterion is last resort meaning that the resort to force should only be used
when every diplomatic and non -military avenue for the prevention or peaceful
resolution of the humanitarian crises has been explored. The fifth criterion is
proportional means which is a fundamental principle of jus ad bellum. While the
last or sixth criterion is reasonable prospects. This dictates that military
action can only be justified if it stands a reasonable chance of success, it
should not be undertaken if the consequences of embarking upon the intervention
is likely to be worse than if there is no action at all (Massingham 2009).These
criteria were also noted by the 2004 panel set up by the UN Secretary General.
The last criterion listed is in consonance with the doctrine of "double effect"
from the just war theory which allows interveners to cause the death of
innocent civilians if by so doing they prevent much greater harm and if the
damage they do is unintended. Much of the R2P criteria seems to have flowed
from the ideas of Tony Blair who at the thick of NATO intervention in Kosovo
and amidst serious criticism from China and Russia raised questions popularly
referred to as the Blair reality check, notably (1) Are we sure of our case (2)
Have we exhausted diplomacy? (3) Can we be successful? (4) Are we prepared for
the long haul? Do we need to be? (5) Is it in our national interest? Is it in
our common interest? (6) What is the desired outcome? (Blair in Global Focus
n.d). Much of the proposals of R2P were re-evaluated in the World Summit
Outcome Document (WSOD) and rephrased along the lines of the traditional
interpretation of the Charter of the UN in the areas of collective security and
peace. Musiani (2008:2) argues that the notion of lawful self defense included
in article 51 of the Charter is the only legal instrument available to states
in order to justify use of force on their part. However the dilemma regarding
the interpretation of Article 51 is the possibility of resorting to self
defense to repel an imminent attack. WSOD notes that for the action to be
legitimate it is necessary for the threat to be actually imminent and not merely
likely and in the latter case the state involved should seek the Security
Council authorization. In addition the Secretary General's report in 2005 World
Summit concluded that Article 51 as formulated in the Charter is fully
appropriate in cases of armed response to imminent threats; and the use of force as pre-emptive defense against 'external'
or 'internal' threats to international peace and security
is to be considered as the Security Council's exclusive competence. Pre-emptive self
defense is thus subordinated to an express authorization of the Security Council
as the interpreter and voice of the international community's collective
security needs (Annan 2005 in Musiani 2008:3). This stance is a disapproval of
the Bush doctrine of pre-emptive self defense anchored in unilateralism and
without the permission of the Security Council (SC). WSOD thus reaffirmed (even
if vague) a commitment to multilateralism and the responsibility of the
Security Council in deciding coercive measures (Musiani 2008). The Human Rights
Watch (HRW) set out similar criteria as found in WSOD and other UN panel
documents for HI. The basic criteria include, (1) Military action must be the
last reasonable option to halt or prevent slaughter and should not be used if effective
alternatives are available; (2) the intervention must be guided primarily by a humanitarian purpose,
humanitarian purpose must be the dominant reason for military action; (3) every
effort should be made to ensure that the means used to intervene themselves
respect international human rights and humanitarian law, we do not subscribe to
the view that some abuses can be countenanced in the name of stopping others; (4)
It must be reasonably likely that military
action will do more good than harm, HI should not be tried if it will
cause more suffering. (5) Humanitarian intervention is preferred when it
receives the endorsement of the UNSC or other bodies with significant
multilateral authority. Many of the UN resolutions and reactions of states
indicate a preference for interventions that abides with the norms of
international law and charter of the UN. This is in consonance with the feeling
that allowing any one state the privilege of abuse of the of UN Charter will be
tantamount to allowing all, resulting to a state of global anarchy in which the
weaker states will be at the mercy of the more powerful states (Kochler 1999);
and HI enjoy legitimacy from the international community when it is authorized
by the UNSC and operates in accordance with international law. As Portela
(2000) observes the activities of the UN in the past two decades suggest that
the protection of human rights in situations of extreme deprivation and
suffering has been given pre-eminence over the sovereignty principle.
In view of the arguments of the resrictionists and
counter restrictionists, it becomes pertinent to examine the history and
position of the UN with regards to the use of humanitarian intervention, so as
to ascertain whether the position of the UNSC on Libya is in consonance with
existing practice of the UN.
The United Nations and
Humanitarian Intervention: History and Dynamics
Humanitarian intervention predates the UN. According to Kadas
(2001:2), the early discussions of humanitarian intervention can be traced back
to sixteenth and seventeenth century classical writers on international law,
especially with reference to the discussion on the moral or ethical doctrine of
just wars. This is because in the pre-Westphalia Europe, the principal
normative framework for legitimizing resort to force was the moral doctrine of
just war (Haines 2008:89). The just war doctrine treated as a normative theory
prescribes right conduct in conflict situations. It adopts an in between
position between pacifism and bellicism though closer to the former in that it
tries to avoid war or limit its destructive consequences. Hence it encompasses
the twin concept of 'jus ad bellum' (right to go to war) and 'jus in bello'
(right conduct in war) which comes from a long tradition in western thought
traceable to Plato (427-347BC). However the first explicit reference to the
just war concept came from Plato's follower Cicero (106-43BC) who states that
"just war should be fought justly" (Viotti & Kauppi 2009:176).
Cicero's ideas were later developed further by St. Augustine who presented it
as the alternative to pacifism dominant in the early Christian Church. Later St
Aquinas (1225-1274), Vitoria (1480-1546), Suarez (1548-1617), Gentili
(1552-1608) contributed further to the concept. However, Hugo Grotius popularized
the concept in his work - "De Bellum ac Pacis" - (Law of War and
Peace) 1625 by taking it from its moral and ethical base to develop it into a
legally binding principle of international law (Viotti & Kauppi 2009). Grotius
in De Bellum ac Pacis opines that
states are entitled to exercise the right "vested in human society"
on behalf of oppressed individuals. Thus the Groatian formulation allows full
scale use of force to end human suffering (Kadas 2001:2). However the 'jus ad
bellum' is not a blank cheque, it goes with certain principles. First, war was
permissible if it has a just cause ("Causa
Justa) with just intent such as self
defense; Secondly the decision to go to war must be made by the legitimate
authority within the state (the Sovereign prince in the pre charter era).
Thirdly, resort to armed force must be proportionate to the provocation;
fourthly there must be some chance of success; and fifthly it must be the last
resort, that is use of armed force must be delayed until every reasonable
peaceful means for settling the dispute has been exhausted (Viotti & Kauppi
2009:178-179; Haines 2008:89). In furtherance of the just war doctrine, J.S.
Mill in his essay " Few Words on Non intervention -(1859) wrote:
There
seems to be no little need that the whole doctrine of non-interference with
foreign nations should be reconsidered, if it can be said to have as yet been
considered as really moral question at all...To go to war for an idea, if war
is aggressive, not defensive, is as criminal as to go to war for territory or
revenue; for it is as little justifiable to force our ideas on other people, as
to compel them to submit to our will in any other respect. But there assuredly
are cases in which it is allowed to go to war without having been attacked, or
threatened with attack; and it is very important that nations should make up
their minds in time, as to what these cases are... (in Wikipedia 2012).
On the question of intervention on the side of government, Mills
notes that "government which needs foreign support to enforce obedience
from its own citizens, is one which ought not to exist". Neither did he
encourage intervention for liberation purposes. He notes:
When
the contest is only with native rulers and with such native strength as those
rulers can enlist in their defense, the answer I should give to the question of
legitimacy of intervention is, as a general rule, No. The reason is, that there
can seldom be anything approaching to assurance that intervention, even if
successful, would be for the good of the people themselves. The only test
possessing any real value, of a people's having become fit for popular
institutions, is that they, or a sufficient portion of them prevail in the contest,
are willing to brave labour and danger for their liberation...But the evil is,
that if they have not sufficient love of liberty to be able to wrest it from
merely domestic oppressors, the liberty which is bestowed on them by other
hands than their own, will have noting real, nothing permanent... (in Wikipedia
2012)
These intellectual precursors influenced what was later to be
known as humanitarian intervention (intervention d' humanitae) in the 19th
century Europe. Kochler (1999:4) observes that the term humanitarian
intervention is not new as it was employed in the so called "Holy Alliance
established in 1815 by the rulers of Austria, Prussia and Russia, later joined
by England and France against the Ottoman (Turkish) Empire in favor of
presumably "persecuted" Christian population group. Thus humanitarian
intervention was one of the legitimation ideology of European imperialism to
justify interference in the territory of major rival powers, and as such it
provokes a certain element of self-righteousness and fanaticism based on a
concept of 'human rights' (or 'rights of humanity') by which the western powers
authoritatively defined and claimed their own moral and civilization
superiority over others or perceived enemies. He surmised that the revival of
the concept under the circumstances of power politics in the present unipolar
order is not progress but regression in terms of the very ideals of humanity.
However the lack of prohibition on the use of force during this era explains
the proliferation of aggressive behaviors that sometimes were rationalized as
just wars or humanitarian intervention (Kadas 2001, Murphy 2005). Murphy
observes that after World war 1 in 1914 states became increasingly interested
in legally prohibiting the resort to war, out of a belief that international
legal constrains could help prevent or
at least constrain warfare. This interest he observes led first to an effort in
1919 to discourage warfare by creating the League of Nations which promote the
use of arbitration to resolve disputes backed by the possibility of collective
action against a recalcitrant state. This was followed by the outright
renunciation of war as an instrument of national policy in the 1928
Kellogg-Briand Pact(a treaty that has continued to remain in force with over
sixty parties). These efforts did not stop the World war II. The conduct of the
axis powers during the world war demonstrated the potential for grave misuse of
the doctrine of humanitarian intervention. For instance Japan's invasion of
Manchuria in 1931 was premised on the
need to protect the local population from anarchy; Italy 's invasion of
Ethiopia in 1935 was rationalized on the grounds of need to abolish slavery;
and Germany's invasion of Czeschoslovakia in 1939 was based on the need to protect the Czech Peoples(Murphy 2005). These interventions threw
into question the humanitarian character of these interventions urging states
at the end of World war II to be more committed to creating legal structures
that would prevent the resort to war. The four powers that met at Dumbarton
Oaks, Washington D.C in 1944 (China, Soviet Union, United States and United
Kingdom) set out to draw a charter that will prohibit states from the use of
force. Even though the charter on completion included provisions on recognition
and respect of human rights, it remained heavily oriented towards preventing
the resort to war (Murphy 2005, Roberts 2006). The charter was essentially non
interventionist and this is evident in Article 2(4) earlier cited above which
prohibits members from the threat or use of force in their international
relations, and Article 2(7) with the explicit prohibitive clause:
Nothing
contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of
any state or shall require the Members to submit such matters to settlement
under the present Charter, but this principle shall not prejudice the
application of enforcement measures under chapter VII.
Roberts (2006) notes that
notwithstanding the strong presumption against the use of force in Articles
2(4) and 2(7), the Charter did leave some scope for humanitarian intervention
in two main ways. For instance references to fundamental rights proclaimed to
be the central purpose of the UN in the preamble and in Article 1. Secondly the
Charter left the Security Council with considerable discretion to decide on the
possibility of such interventions in Chapter VII especially Articles 39, 42 and
51 and the final phrase of Article 2(7) allows for enforcement measures within
states under Chapter VII of the Charter. Franck (2003:205) asserts that the UN
charter is a 'freeze frame' of historically validated norms and also the
foundation for a dynamic political and administrative institution". He
argues that "at the centre of the freeze frame is Article 2(4) which
prohibits states' recourse to force except in self defense against attack or
with prior authorization by the Security Council". He argues that despite
this prohibition "much of the rest of it establishes a continually dynamic,
evolving institution imbued with a spirit of relevance, one in which the
emphasis is on practical problem solving rather than formal doctrinal
exegesis." 'Thus while "the normative framework of the Charter is
self-consciously static, it is also intended to be perpetually evolving as the
seemingly static norms are applied to practical situations through an
essentially political process operating to solve real crises, instance by
instance". One factor that has enabled the UN charter to be imbued with
the dynamism Franck wrote about is the concept of human rights. Roberts (2006:74)
identifies what he called the parallel stream of 'human rights law' and the
'laws of war' both of which relate to the treatment of the individual since
1945 which have had profound influence on the UN disposition towards
humanitarian intervention. This human right orientation finds anchorage in the
concept of crimes against humanity which goes with the proposition that even
government's actions against its citizens may be the subject of international
action. This concept was given prominence in the 1948 UN Genocide Convention
which establishes that genocide, even if carried out entirely within the
borders of a state, is a matter of international concern. The renewed focus of
UN on implementation of international humanitarian norms, led to the adoption
of a number of statutes on 'genocide' and 'crime against humanity'. For
instance the 1993 statute of the International Criminal Tribunal (ICT) for the
former Yugoslavia, the 1994 Statute of the
ICT for Rwanda and the 1998 Rome
statute. In addition the 1948 adoption of the Universal Declaration of Human
Rights by the General Assembly gave some substance and specificity to some of
the Charter's general references to human rights. Thus the large body of rights
agreements concluded under the UN auspices had profound implications, not just
for the relations between citizen and state, but also for the conduct of
international relations. They reinforced the view that a government's treatment
of its citizens was a matter of legitimate international concern. He argues
that in contrast to international human
rights, the laws of war developed outside the UN framework, though the UN
became gradually involved in aspects of its implementation and negotiation of
new agreements, for instance the 1977 Geneva Protocol I on armed international
conflicts (Roberts 2006:76). Despite the UN human rights declarations and the
seeming loopholes in the articles banning resort to force, the UN has been
unequivocal in the condemnation of acts of aggression that violate the
territorial integrity of other states even those with purportedly humanitarian
justifications. Roberts also notes that the General Assembly almost routinely
condemned a number of military interventions, namely the Anglo-French
intervention in Suez (1956), the Soviet intervention in Hungary (1956), the
Indian invasion of Pakistan (1971), the Indonesian intervention in East Timor
(1975), the Moroccan intervention in Western Sahara (1975), Vietnamese intervention
in Cambodia (1978) the Soviet intervention in Afghanistan (1979), the US-led
intervention in Grenada (1983) and Panama (1989). Stanulova (2010:6) also
observes that Art 2(4) received further reinforcement when the General Assembly
adopted in 1965 a "Declaration on the inadmissibility of
intervention" which forbids all forms of intervention in the internal or
external affairs of other states. Furthermore the 1970 Declaration on
principles of international law duplicates word by word both Article 2(4) and
the 1965 Declaration and was couched in even stronger language of "duty of
states not to intervene". Furthermore, the International Court of Justice (ICJ)
though more open to changes in international law and permissible of new forms
of intervention continues to reaffirm the non-interventionist orientation of UN
charter. This is evident in the Nicaragua Case (1986) in which Nicaragua
accused USA of violating Article 2(4) of
the UN Charter and customary international law (to refrain from threat or use
of force), when it assisted rebels who wanted to overthrow the new government.
The ICJ in its judgment observed the similarity between the Charter and
customary international law, noting that the latter continues to exist despite
the treaty. It reaffirmed the non -intervention stance when it asserts that
non-intervention forbids all states or group of states to intervene directly or
indirectly in the internal or external affairs of other states. The Court
however admitted that international law is not static but state practice
accompanied with opinion juris can change it (Stanulova, 2010:7).
The
debate on the legality or illegality of humanitarian intervention became more
intense in the UN during the post cold war era as the international community
proved itself more willing to collectively intervene in other states on
humanitarian grounds. Thus the 1990s has been identified by many scholars as
the decade of humanitarian intervention, some with the blessing of the UN, and
the era also witnessed the most sustained discussion on the topic (Heinze 2011,
Stanulova 2010, Guraziu 2008, Jayakumar 2012). The precursor of humanitarian
intervention in the 90s was the US led intervention in Iraq to protect the Kurd
in Northern Iraq and Muslim Shites in Southern Iraq in 1991.The Security
Council (SC) did not authorize the intervention but did declare that the human
right situation in Iraq constituted a
threat to international peace and security (Wheeler 2006, Weiss,
Forsythe, Coate &Pease 2007:168;
Massingham 2009). The importance of this shift argues Wheeler is that it
legitimates military enforcement action under chapter VII of the Charter. This
is in contrast to SC decision on the India's intervention in Pakistan in which
the full weight of Article 2(7) was used to criticize India's supposed meddling
in the internal affairs of Pakistan. However, the Security Council authorized a
number of interventions during this period. These include the US led
intervention in Somalia in 1992 to end civil conflict and suffering of the many
civilian populace, France's intervention in Rwanda in 1994 to end the brutal
civil conflict and genocide between Tutsis and Hutus, (though the delayed
intervention led to the loss of over 800 lives of the Tutsis), the US led
intervention in Haiti in 1994 to reverse a military coup that ousted the
democratically elected president of Jean-Bertrande Aristide. Many scholars
attribute the nascent debate on humanitarian intervention in the UN on NATO
unauthorized intervention in Kosovo in 1999 and failure of the UN Security
Council to take decisive action to halt the humanitarian crisis that prompted
it. Since Kosovo the debate has been on not just the legality or illegality of
humanitarian intervention, the violation of sovereignty by humanitarian intervention
but also on the need to make the UN and UN charter and the international
community more responsive to gross violation of human rights. Against this
background the then Secretary General of UN Kofi Annan at a speech at Ditchley
Park, Oxfordshire in June 1998 stated that the UN Charter was never meant as
license for governments to trample on human rights and human dignity. Kofi Annan followed this
up with his address to the 1999 UN General Assembly in which he propagated the
idea of developing norm in favour of "intervention to protect civilians
from wholesale slaughter" (Kochler 1999; Roberts 2006). Annan redefined the idea of state sovereignty
by articulating it as being weighed against individual sovereignty as
recognized in international human rights instruments (Massingham 2009). Speaking
on the same note, the ex British Prime Minister Tony Blair unveiled his
'doctrine of the International Community' in his address to the Economic Club
of Chicago in 1999.According to Blair:
We live in a World where
isolationism has ceased to have a reason to exist. By necessity we have to
cooperate with each other across nations... Many of our domestic problems are
caused on other side of the World… We are all internationalist now, whether we
like it or not...We cannot ignore new political ideas in other countries if we
want to innovate. We cannot turn our backs on conflict and violation of human
rights within other countries if we want still to be secure... The doctrine of
isolationism has been a causality of world war... Today the impulse towards
interdependence is immeasurably greater. We are witnessing the beginnings of a
new doctrine of international community. By this I mean the explicit
recognition that today more than ever before we are mutually dependent that
national interest is to a significant extent governed by international
collaboration and we need a clear and coherent debate as to the direction this
doctrine takes us in each field of international endeavour (The Blair Doctrine
1999).
On the basis of this doctrine Blair justified the NATO
intervention in Kosovo which was widely condemned by the international
Community and the General Assembly. In 2001 the International Commission on
Intervention and State Sovereignty (ICIS) established by the government of
Canada in 2000 (against the background of the outcry against NATO intervention
in Kosovo) came out with a report titled 'Responsibility to Protect'. The
Commission chaired by the Australian foreign minister Gareth Evans and Algerian diplomat Mohamed Sahnoun was
largely influenced by the work of Francis Deng "Sovereignty as
Responsibility" The report shifted the focus from 'right to intervene' to'
responsibility to protect (R2P)'. R2P
according to the report designed to be more than just coercive military
intervention for humanitarian purposes is premised on three central
responsibilities - "to protect, to react and to rebuild". Thus R2P
was seen as a more holistic and integrated approach to conflict prevention and
the avoidance of human rights abuses and mass atrocities than the previous
articulations of military intervention for humanitarian purposes (Kochler 1999;
Massingham 2009, Heinze 2011). In Sept 2003 the Secretary General before the
58th General Assembly proclaimed the compelling necessity of reform of the UN
in both structure and rules of conduct of member states and the organization.
This was to enable the system respond adequately and promptly to new threats to
international security namely, international terrorism, nuclear weapon proliferation,
chronic poverty of some areas of the world that favours the spreading of
terrorist activities /organized crime and the drift towards unilateralism. To
facilitate this reform, he set up a panel in Nov 2003 on 'Threats, Challenges
and Change' with the mandate to delve into the most problematic aspects of
current international relations and formulate recommendations for the reform of
the UN system to be discussed at the World Summit scheduled for 2005. The Panel
report entitled "A More Secure World: Our Shared Responsibility"
appeared in 2004. Building on that report Mr. Annan produced his personal
contribution to the anticipated reform of the UN titled "In Larger
Freedom". This formed the bedrock of the 2005 World Summit which conclusion
is articulated in the World Summit Outcome Document (WSOD). Heinze (2011) observes that though member
states at the 2005 World Summit unanimously endorsed a (watered down) version
of the R2P doctrine, followed by a reaffirmation of R2P by the UNSC, which
indicated its readiness to adopt R2P measures where necessary; however, State
practice has not necessarily accompanied these declarations rather there was
something of a revolt against R2P after the 2005 World Summit. In the views of
Bellamy (2005 in Heinze 2011) the post summit revolt against R2P was largely a
result of the continuing association of R2P with humanitarian intervention. In
addition the UNSC authorized interventions of the 1990's did indicate its willingness to respond to
internal crisis under the purview of "threats to international peace and
security", however this tendency is not a departure from the established
practice about when the use of force is thought to be justified except for the
fact that internal human rights abuses can now be considered threats to
international peace (Heinze 2011). The failure of R2P to catch on with the UN
members has been attributed to its emphasis on
responsibility to 'react' rather
than 'prevent' and 'rebuild', scholars
like Evans and Sahoun (in Bajora 2011) suggest that emphasizing the
later two principles will make the reaction prong of the doctrine more
palatable. However WSOD and the 2004 panel report suggest five criteria to be
fulfilled before use of force is authorized. These are gravity of the threat
for state security; the proportionality between means and aim; the exclusive
aim to neutralize the threat; the absence of peaceful alternatives; a
comparative evaluation of the consequences in the light of the initiative's
likely success and the risk of producing no major damage than the one caused by
inaction (Musiani 2008:3). Apart from employing the powers in chapter VII,
neither the Security Council nor the General Assembly has been able to come up
with a generally acceptable legal notion or norm of humanitarian intervention
and the skeptical stance towards it by
member states is predicated on some nagging issues. Many states especially of
the third world see humanitarian intervention as pretext for the pursuit of
expansionist and strategic interests of the powerful states in a unipolar world
order directed by the US (Roberts 2006, Kochler 1999). In addition the practice
has not shown any consistency in terms of the states chosen for intervention
and those left out giving the impression of a double standard. In this regard
the Rwandan situation and case of Darfur in Sudan comes to mind. The recent
intervention in Libya and non intervention in states with similar circumstances
affirms this feeling of double standard. As Tobias Vogel (1996) puts it, when
the bad guys are weak such as Iraq in Kurdistan, intervention pops to the top
of the agenda; when they are strong, such as Russia in Chechnya, little is
said. More importantly humanitarian intervention erodes the legitimacy of the
UN as the bastion of state sovereignty. Roberts (2006) however observes that
what has been happening at the United Nations is a gradual and incremental
change in the interpretation of the Charter rules and the UN's
responsibilities, particularly as regards the balance between the rights of individual
sovereign states and the rights of the community. These trends he notes will
continue more through precedent and improvisation than any legal or doctrinal
revolution.
The Libyan
Crisis and Humanitarian Intervention
Libya presents quite a departure from most cases of HI
that aroused the various controversies surrounding the legitimacy and or
legality of humanitarian intervention. First, the crisis is a product of the
Arab Spring that took over most states in the Middle East and North Africa.
Secondly, intervention in Libya was authorized by the Security Council, and
thirdly intervention led to regime change rather than just protection of
civilians from abuse and suffering. Scholars have also expressed opinions
although scantily on NATO led intervention in Libya more especially on the
interpretation given to the SC resolution 1973 (2011) authorizing intervention.
The views expressed can be grouped basically into two, antagonists and
protagonists of the intervention mandate, with few coming in between. The
antagonist see the US -NATO led intervention as part of the imperialist pursuit
of the dominant western hegemony which has embraced the ideology of humanitarian
intervention as pretext for its expansionist policy. This viewpoint is aptly
represented by scholars like Mahmood Mamdani, Jeff Mackler, and Richard Falk
In an opinion piece with Aljazeera Mamdani (2011a)
observes that though the resolution for intervention in Libya got the mandate
of the UNSC with some abstentions, some of the countries that abstained,
especially China and Russia were critical
of the vague nature of resolution 1973 which implementation was
left" to any and all" and by implication to those with the means to
do so-US and NATO. Mamdani critiqued the West for disallowing political
resolution of the conflict in Libya while allowing such in Bahrain and other
Arab states considered allies of the Western powers. He notes that the US-NATO
led intervention in Libya violated resolution 1973 as ground soldiers were used
to aid rebels and the bombardment killed many civilians the resolution set to
protect. He notes that the full political cost of the military intervention in
Libya will be clear during the transition period as the physical damage
inflicted on the country will likely make the next government in Libya less
sovereign. Mamdami (2011b) in another opinion piece notes that the
conditions making for interventions in Africa are growing rather than diminishing as a result of the
growing contest between the dominant global powers and new challengers notably
China in the continent. He observes that opposition movements in Africa tend to
seek support -financial and military from the West, and the West in the past
decades have created a political and legal infrastructure for intervention in
independent countries, and the key to that infrastructure are the United
Nations Security Council and the International Criminal Court neither of which
works to create a rule of law. Mamdani suggests internal reform of dictatorial
African regimes as way to avoid the imperialistic war called humanitarian
intervention.
Jeff
MacKler (2011) notes that the "UN no Fly zone" resolution was a
license for a wholesale destruction of Libya's military apparatus and much of
Tripoli's infrastructure. He christened it a Euro-American declaration of war
which was never meant to benefit the oppressed people of Libya. He argues that
the US/NATO led intervention was part of the expansionist policy of Western
capital in the quest for spheres of influence. He further notes that the
imperialist destruction of Libya in the mask of humanitarian intervention was
meant to yield gains in the form of contracts for reconstruction which will be
paid for with oil or Libyan funds stacked in US and European banks. In a similar
vein Falk (2011) asserts that in the realm of world politics, coincidences
rarely occur, in the sense that a precedent was set by the UN in
authorizing a limited protective
intervention that when acted upon ignored the guidelines set by the drafters of
Security Council resolution. He reasoned that "the actual scope and
ill-disguised purpose of the intervention shortly after it became a reality in
Libya was to tip the balance in a civil war and achieve regime change. He notes
that UN is faced with the dilemma of either refusing to succumb to geopolitical
pressures and stepping aside to whenever the so called coalition of the willing
is formed to carry out an attack or grant some kind of limited autonomy that
eventually gets overridden by the far more expansive goals of the intervening
governments as the Libyan case reveals. He concludes that in either way the
authority of the UN is eroded and the historical agency of geopolitics is
confirmed.
The protagonists led by ex British Prime Minister Tony
Blair, and Prof Juan Cole, insist that intervention backed by resolution 1973
was the right thing to do. According to Blair (2011) the crisis in Libya brings
once more to the fore the blurred line between moral outrage and strategic
interests. Using his concept of international community he argues that the era
when a regime can go rogue and brutalize its own people has passed as such
behavior will not be ignored by the international community especially the West
as that will be sending a signal of impotence and discouragement to those
fighting for freedom. He asserts that the passage of the resolution on "no
fly zone" over Libya was not only timely but the right thing to do as the
West cannot afford to be mere spectators but players in the events taking place
in the Middle East. He however advised that the policy of the West must not
just be a demand for change but a demand for change based on the principles and
values intrinsic to democracy, which implies not only the right to vote, but
also rule of law, free speech, freedom of religion and the free markets. He
rationalized the non application of humanitarian intervention in Bahrain on the
grounds that Bahrain is ready for reform while Gaddafi was not but rather
insisted on bombing his own people. An obvious fact from Tony Blair's argument
is that Western liberal ideals is central to the intervention in Libya.
In a rather unsettling debate within the scholarly left,
the argument has been whether US-NATO -led intervention in Libya should be
commended or demonized as imperialism. To this Prof Juan Cole (2011) asserts
that the intervention is not only legal since it was directed by the UNSC,
a body so authorized by law to do so,
but also received wide support from the international community, Arab League
and Libyan rebels. It served to forestall the wide scale massacre that the
Gaddafi regime planned to perpetrate on innocent civilians. He notes that the
war for oil supposition brandished by most intellectuals critical of the
intervention does not hold since the West already had a deal on oil with the
Gaddafi regime before the revolution. In response to Cole, Phyllis Bennis
(2011) argues that legality is not legitimacy as many states in Europe were
opposed to the intervention, in addition time was not given for the sanction
and the ceasefire demanded by stipulations of resolution 1970 to take effect
before using the military option. Bennis asserts that the US-NATO led
intervention went beyond the mandate of resolution 1973 in implementing a no fly zone which by
implication killed more civilians than it set out to protect. Prashad (2011)
also argues that the Libyan revolution is different from the Tunisian and
Egyptian experience in the sense that it was hijacked by armed opposition
politicians allied to the US and the West, and therefore a calculated attempt
by the US and NATO to divert attention from the Arab Spring in other parts of
the Middle East like Bahrain and Yemen. Taking a middle road approach, Gilbert
Acher (2011) argues that support for the intervention should be limited to the
initial stages of grounding Gaddafi military capability to hurt civilians
especially those in Benghazi, beyond that, the Libyan rebels should be armed to
liberate Libya without US/NATO direct interference.
Gap in Literature:
A lot has been done on humanitarian intervention more
especially with respect to past
cases like Iraq, Somalia Kosovo, etc.
however not much has been done on Libya especially with reference to critical
analysis of the adoption and implementation of resolution 1973 . Many views
expressed were adhoc views made during the crisis. It is this gap that this
research intends to fill.
Theoretical
Framework:
This work shall be analyzed from the perspective of the
Just war theory which operates on three basic prongs- jus ad bellum (justice of
resorting to war) jus in bello (just conduct in war) and jus post bellum (justice
at the end of war).
The jus ad bellum is guided by certain principles,
namely, just cause (evidence of public harm or genocide) right intent, (to avert
human suffering) legitimate authority (waged by body or institution so
authorized) Probability of success (must likely succeed) Proportionality (the
good to be accomplished or evil to be prevented
in totality must outweigh the
totality of suffering it will inevitably cause to all parties), last resort
(use of force when every other peaceful and viable alternative has been tried
and exhausted). The principle of jus ad bello goes with the attendant criteria
of distinction between combatants and non combatants, no atrocious weapons,
proportionality, humane treatment of war prisoners, no reprisals and no
repression of one's own civilians. The jus post bellum comprises just
termination if rights violated has been
secured, public declaration of
peace by legitimate authority,
prohibition of revenge against the loser, proportionality - terms of surrender
must be proportional to rights violated, Discrimination between combatants and non
combatants in seeking punishment and
rehabilitation or building a vibrant civil society ( Lacewing n.d, Just War
Doctrine n.d). These principles formed
the anchorage for the R2P adopted by the UN in the WSOD. This makes it very
appropriate in addressing the rationale behind the adoption, and implementation
of Resolution 1973. In addition to the
Just war theory we shall also elicit the interpretational capability of the
classicists and legal realism schools of thought in dealing with the
interpretation of resolution 1973 especially regarding the implementation of no
fly zone over Libya. These theoretical perspectives shall enable us to assess
resolution 1973 in terms of its justness, and keeping with the original
intention of the drafters or deviation from it.
Hypotheses
1. The threat and use of force against protesters in
Libya by the Gaddafi regime is responsible for the UNSC adoption of resolution
1973 on Libya.
2. The non implementation of paragraph 1 and 2 of
resolution 1973 as well as the excessive
force employed in the enforcement of a no fly zone in Libya by the NATO led
coalition constitute a violation of the
mandate of the resolution which is to
protect the civilian population in Libya.
Methodology:
Research Design
Case Study Design:
Case study is a qualitative kind of research design that enables a
researcher to focus on a single individual, group community, event, policy area
or institution and study it in-depth (Burham, Gill, Grant & Layton-Henry
2004:53). It examines one or few cases of a phenomenon in detail by using
several data collection methods like interviews, document analysis, and
observation (Johnson & Reynolds 2005, Baxter & Jack 2008). Case study
research through reports of past studies, allows the explanation and
understanding of complex issues. It can be considered a robust research method
particularly when a holistic, in-depth investigation is required (Zainal
2007:1). Through case study the researcher is able to go beyond the
quantitative statistical results and understand the behavioral conditions
through the actor's perspective. By including both quantitative and qualitative
data, case study helps explain both the process and outcome of a phenomenon
through complete observation, reconstruction and analysis of the cases under
investigation (Tellis 1997 in Zainal 2007). Robert Yin a leading proponent of
the case study design defines it as an empirical inquiry that
"investigates a contemporary phenomenon within its real-life context, when
the boundaries between phenomenon and context are not clearly evident and in
which multiple sources of evidence are used" (Zainal 2007, Johnson and
Reynold 2005). It is a study design most appropriately used to answer how and
why questions (Yin quoted in Johnson and Reynold 2005). Case studies are
constructed to richly describe, explain, assess or evaluate a phenomenon (Borg
& Gall 1996:549). By attempting to capture as many variables as possible,
case studies can identify how a complex set of circumstances come together to produce a particular manifestation
(Hancock 1998). Given these notable
features the case study design is appropriate for this study as it is
basically a study of the UN intervention in the Libyan crisis premised on the
concept of humanitarian intervention. The study seeks to examine why and how
the UNSC resolution 1973 was used in Libya. It intends to unravel the various
factors that led to the adoption of the resolution and the character of its
implementation. It allows an assessment of the resolution within the context of
the Libyan crisis that took place between Feb 2011 and October 2011
Data Gathering Techniques:
We shall rely primarily on secondary sources and analysis of data
from such sources. Secondary data analysis can be literally defined as
“second-hand” analysis. It is the
analysis of data or information that was either gathered by someone else (e.g.,
researchers, institutions, other NGOs, etc.) or for some other purpose than the
one currently being considered, or often a combination of the two (Cnossen 1997
in Care n.d). Thus data shall be gathered from books, journals, official
documents, fact finding reports, news papers and magazines, internet sources
and news reports from various international news media like CNN,BBC, and
Aljazzera and their web sites. In addition we followed the trend of the crisis
from the news reports from acclaimed media agencies like CNN, Aljazeera, and
BBC. The reports of fact finding missions that went to Libya during and
immediately after the crisis like
the Centre International de
Recherches et d'Etudes Sur Le Terrorism
(CIRET) and I'Aide aux Victimes
du Terrorisme (AVT), Independent Civil Society Fact Finding Mission to Libya(ICSFFML),
International Crisis Group(ICG) fact finding mission and official documents of the UN Security
Council, Human Rights Council of the UN , constitutes the major sources of data
for this study. Our reliance on secondary data is predicated on the fact that
we cannot afford the time and cost of
visit to Libya to assess situations by interacting with the Libyan
populace that constitutes the active participants in the crisis
Validity and Reliability of Instrument:
We shall establish
the validity of the instrument through cross referencing triangulation which
involves marching information contained
in one document with information contained in another or other documents.
Reliability will be determined by the regularity of occurrence of an
information in one or several documents.
Data Analysis:
Documents do not speak for themselves but acquire
significant meaning when situated within
a context set by vigorous analytical and methodological assumptions.
Given the nature of this study, we shall employ
qualitative content analysis as well as discourse analysis in sifting
and analyzing the mass of relevant data
in official documents, fact
finding reports, books , journals
,newspapers and magazines used in this study.
Qualitative content analysis has been defined as "a research method
for the subjective interpretation of the
content of text data through the systematic classification process of coding
and identifying themes or patterns" (Hsieh &Shannon 2005:1278 in Zhang
&Wildemuth n.d) It has also been
defined as "any qualitative data reduction and sense making effort that
takes a volume of qualitative material and attempts to identify core
consistencies and meanings"(Patton 2002:453 in Zhang &Wildemuth n.d) .
Qualitative content analysis thus
emphasize an integrated view of speech /texts and their specific contexts. It
goes beyond the classical content
analysis method of merely counting words or extracting objective content from
texts to examine meanings, themes and
patterns that may be manifest or latent in a particular text(Zhang and
Wildemuth n.d). Bryman( 2004 in Kohlbacher 2006) asserts that qualitative content analysis is
"probably the most prevalent approach to the qualitative analysis of
documents " and that it comprises a searching -out of underlying themes in
the materials being analyzed. Using this method we shall sift out the main
themes in the various texts that address the central thesis of our propositions.
This analytical method shall be supported with the
discourse analytical method. The central thesis of discourse analysis is that
reality is socially constructed. In the sense that reality is shaped by the
social and cultural context in which it is
constructed, thus the language of communication, itself a byproduct of
the social and cultural environment becomes an important element in
constructing reality(Fulcher 2012) .Thus the focus of discourse analysis is the nature of language in shaping the actions, intentions
and assumptions of humankind and society. According to Burnham, Gilland Grant
and Layton -Henry(2004:242) "a recurrent theme in the literature on
discourse analysis is that discourses reproduce the everyday assumptions of
society and that those common perceptions and understandings are encouraged and
reinforced by those with access to the media, such as politicians, journalists
and academic experts." In effect, "Language and discourses therefore
frame and constrain sensible given courses of action, some of which are
promoted as sensible, moral and commanding wide levels of support, while others
are discouraged as stupid, immoral and illegitimate". "The general
public are thus guided as to how they should respond to particular crises or
events" (Burham et al 2004). The role of discourse analysis is to reveal
the bases of these common assumptions and to show how they relate to different
interests in society. Discourse analysis
should therefore be critical because language can be used to deceive and to
manipulate those to whom it is addressed. Language and discourse are dominated
by the powerful in society who can impose meanings and explanations of social
reality which protect their interests and undermine those of the rest of society,
by spreading confusion and deceit in discourses that allow oppression and
exploitation of the weak to continue. Thus discourse analysis according to the
positivists and empiricists are "frames" or "cognitive
schemata" defined as "the conscious strategic efforts by groups of
people to fashion shared understandings of the world and of themselves that
legitimate and motivate collective action"(McAdam, McCarthy and Zald,
1996:6 in Burnham et al 2004:243). Language and discourses are politically
constructed and are used by the powerful to legitimate their actions, It is
therefore the function of discourse analysis to describe these discourses,
reveal the assumptions on which they are based and show how different groups
and interests in society benefit from or are oppressed by these
discourses(Burnham etal 2004). Against this backdrop, we shall utilize
discourse analysis to unravel the dominant perceptions and assumptions that
shaped and influenced the discourse on the Libyan crisis. It shall help us to unravel the role of the international press and dominant
western powers in constructing and
promoting the dominant ideas that framed the discourse in the Libyan
crisis. More importantly it shall enable us assess the language used in the structuring of resolution 1973 that influenced the manner of
implementation of the resolution in Libya, in the bid to reveal the underlying
interests of groups served by the resolution. In addition discourse analysis
shall be used in analyzing the posture of the Gaddafi regime during the crisis
especially in assessing the speeches he made which shaped and influenced the
discourse that resulted in resolution 1973.
Empirical Indicators of the Main themes in the Hypotheses
|
Hypothesis
|
Independent
Variable
|
Dependent
Variable
|
Empirical
indicators of Indep Variable
|
Thematic
Issues/major discourses in Texts, Reports and News Media
|
|
The th H1:
The threat and use of force against protesters in Libya by the Gaddafi
regime is responsible for the UNSC adoption of resolution 1973 on Libya
|
Threat
and Use of Force
|
Resolution
1973
|
Violent
character of the protest/demand for Gaddafi to go; Violent response of the Gaddafi regime against
protesters; Gaddafi's antecedents as a tyrant and incendiary Speeches made
against protesters, Gaddafi's son- el
Saif's threats against protesters, Presentation of Gaddafi's threats in the
international media
|
Gaddafi
threats / El Saif'threats against protesters, Statistics of injured
civilians, Violent character of the protest, refugee situation, position of the Arab League, African Union,
NATO-(Britain &France) and USA on
the Libyan Crisis; The position of the UN, role of the UNSC- adoption of
resolution 1970/ Fact finding Mission; adoption of resolution 1973 by UNSC.
|
|
H2: .
H2: The non implementation of paragraph 1 and 2 of resolution 1973 as
well as the excessive force used in the enforcement of a no fly zone in Libya
constitute a violation of the mandate of the resolution to protect the civilian population
|
Non-implementation
of Para 1 and 2 of resolution 1973, and excessive force used in enforcement
of no fly zone.
|
violation
of resolution 1973 mandate to protect civilian population.
|
non
-implementation of ceasefire option in resolution 1973 , Lack of reasonable time span for resolution 1970 to
work, Rejection of AU option of dialogue, use of force before the completion
of the UN fact finding mission, Rejection of Saif's offer for dialogue, Wide
interpretation of the clause 'take all necessary meansures' by NATO, use
of excessive force in the implementation of no fly zone by NATO, Civilian
casualties of NATO air power, Pursuit
of regime Change by NATO coalition, reactions to NATO implemen
tation strategy
|
Ceasefire
provision in resolution 1973UNSC resolution 1970, AU road map for peace in
Libya, UN Fact Finding Mission, El Saif's offer for Dialogue. UNSC Resolution
1973, NATO enforcement of paragrapgh 4 and 8, Reactions to NATO interpretation
and enforcement of no fly zone and regime change
Evidence
of NATO violation of the mandate to protect civilians
|
Empirical Verification
Hypothesis 1: The threat and use of force against
protesters in Libya by the Gaddafi regime is responsible for the UNSC adoption
of resolution 1973 on Libya
The Gaddafi Regime, The Libyan Revolt and UNSC Resolution 1973
Muammar Gaddafi's
Repressive Regime, the Violent Character of the Libyan Revolt and Gaddafi
Regime's Violent Response
Muammar Gaddafi'
regime was born on September 1 1969 after a military coup that ousted King
Idris, Libya's first monarch from power. He consolidated his power as leader of
the revolution through a number of Machiavellian tactics that made sure that no
individual, group(s) or state institutions emerges to challenge his control of
the Libyan state. To realize this dream, he relied on the ideology of what we shall refer to in this paper as Gaddafism which principle is outlined in his "Green
Book" and often evokes themes of Arab nationalism and anti imperialism to
sell his populist policy as champion of the under privileged and the exploited.
In the later years given his bruised relations with other Arab States, he has
replaced Arab irredentism with Pan Africanism. His use of populism led him to
change the name of Libya to Socialist People's Libyan Arab Jamahiriya (meaning
state of the masses )anchored on the notion that Power belongs to the people. Thus Jamahiriya
is a unique political and economic and social vision which outlines the
alternative to capitalism and socialism anchored on the notion that
"representation is a fraud".
Every citizen is part of the political process and citizens can take
their fate into their own hands by belonging to the various levels of peoples
congresses. In this way political parties and development of the civil
institutions of state was stalled (ICG report 2011, ICSFML report 2011). Thus the Jamahiriya produced a
highly complex formal ruling system containing a plethora of congresses and
committees often with overlapping powers that have contributed to a sense of
orchestrated and perpetual chaos. This chaos enables Gaddafi to exercise
unfettered control over the state and
ensure nobody or entity emerges to
challenge his rule. Craftily Gaddafi made sure that he does not hold any formal
position of authority but prefer to refer to himself as leader of the
revolution or brother leader which makes him unaccountable for the misdeeds of
his regime but at the same time exercising absolute authority. Even the army is
somewhat made weak to stall any thought of coup. The key security apparatuses
are under the care of his family members and tribe. All apparatuses are
autonomous with no linkages except to the leader. This governance style enables
the regime to play one group against another and derive unquestionable
obedience from all (ICG report 2011, ICSFML report 2011). A significant feature
of this regime is the absence of basic individual and group freedom as many of
them were outlawed, breach of which can lead to imprisonment or death. For
instance opposition to the ideology of
the state attracts death penalty, offences against security of the state
(defined by the leader or his associates) also attracts the death penalty,
opposition to the leader attracts amputation of limbs, dissemination of
information that tarnish the image of the country abroad attracts life
imprisonment, while the law of collective punishment institutes a system for
wrong doing whereby families, towns and municipalities are held responsible for
the actions of individuals in their midst. Associations exist at the whims and
caprices of the government. This caged system lent itself open to abuse as
citizens were abducted, tortured, imprisoned and killed under any pretence (AHRC
report, WEI report 2011). The climax of the this human right violation was the
1996 Abu Salim prison massacre in which about 1,200
prisoners were killed for protesting the ugly inhuman conditions in the prison.
What is worse is that their death was hidden from their relatives for years.
Gaddafi also attracted international condemnation and isolation as a terrorist
as he was fingered by USA, UK, and France as the master minder of the PanAm
flight 103 bombing that killed 270 people at Lockerbie Scotland and the French
UTA flight 772 bombing that killed 170 people at Niger (WEI report 2011).
Following the efforts of Saif al Islam Gaddafi's son, to open up Libya to
democratic reforms, Gaddafi began to endear himself to the West by championing
the war on terror, dropped Libyan nuclear weapon ambition, paid compensation to
victims of the Pan AM 103 flight and UTA flight 772, made slight improvement in
human rights violation and thus began a gradual process of readmission into the
international community. However despite these gains freedom of speech and
association continues to be severely limited. To compound the problem Libyans
felt that their standard of living falls far short of what is expected of an
oil producing state in comparison with
similar Arab states like Qatar, United Arab Emirate, Egypt etc .Thus the rising
youth unemployment, decaying and underdeveloped infrastructure, rising
disparity between the rich and the poor, and inter tribal animosity(as some of
these socio economic disparities run along tribal lines) became the smoking gun
that snowballed into the February
revolutionary protest and armed struggle. The governance style of Gaddafi and
human rights records of the regime made it difficult for either the citizens or
the international community especially the West to believe that anything except
armed insurrection will ease the dictator out of power. Muammar Gaddafi
confirmed this fear in the various incendiary remarks and speeches made during
the revolution.
Thus the threats by the Gaddafi regime to show no mercy
to protesters against his regime, has been fingered as the major factor
responsible for the adoption and implementation of resolution 1973. However the
threats can only be understood and analyzed within the context of the protest
that generated it, and consequently the character of the discourse that it
generated in the international media both of which influenced the response of
the Gaddafi regime to use force and threaten more use of force to curb the
rebellion. Thus an examination of the character of the protest and the negative
portrayal of Gaddafi regime's response which framed the discourse on the Libyan
revolt in major international media
becomes imperative to understanding the major independent variable under
test which is the use of force and threats of more force against civilian
protesters by the Gaddafi regime and how
these factors combined to influence the UNSC adoption of resolution 1973 on
Libya.
In contrast to the Tunisian and Egyptian revolt which was
largely pacifist, the Libyan revolt which actually took off between Jan 27 and
28 2011 over delay in the provision of
housing units and political corruption was a violent one. In the January protest, protesters in
Bayda, Derna, Benghazi and Bani Walid and other cities in the East, broke into
and occupied houses under construction by government and attacked police
stations and government offices. The government responded to that protest by a
20 million euro investment into housing development (Libya civil war in Wikipedia
2011; ICG REPORT 2011). By late January Jamal al Hajji a writer and political
commentator has called for demonstrations through the social media to be held
in support for greater freedom in Libya. He was arrested over a spurious charge
of knocking down somebody with his car. Early February the Gaddafi regime
called a meeting of political activists, journalists and figures and warned
them over disturbance of peace or creating chaos. By 12th February, the protest
regained momentum under the leadership of a lawyer and human rights activist,
Fathi Terbil who was the lawyer of the Prisoners massacred in 1996. He was
arrested by the regime. Prior to Terbil's arrest Libyans abroad notably
Switzerland and United Kingdom have sent out messages on the various social
medias calling out Libyans to a demonstration against the regime on the 17th of
February called a "Day of Rage" (ICG REPORT 2011). The arrest of
Terbil jumpstarted the protest in
Benghazi by evening of Feb 15 2011, and
spurred protests in other cities
east of the country namely Tobruk 4th largest city in the Country with
about 170,000 inhabitants, Derna - main Islamic fiefdom of Cyrenaica with about
90,000 inhabitants, Al Baida, a town of about 90,000 inhabitants. In all
the cities the protesters attacked, burnt
and looted police stations, barracks, and public buildings, prisons were broken into and prisoners set
free(in Benghazi). In some cases the police responded with lethal weapons
killing some of the protesters, in some other cases the police abandoned their
posts and weapons and ran away, some even defected to join the protest. In fact
both the police and the protesters criminalized their victims. For instance the
Benghazi revolt on 15th February left about 38 injured including 10 security personnel;
The Tobruk revolt had 4 victims before the security personnel themselves fled
the town leaving it to the control of local chiefs. In Derna the demonstration
started on the 15th of February, had 5 dead and 10 wounded through police
bullets on the 16th. In Al Baida, similar incidents left 64 dead after 6 days
of heavy fighting before the insurgents took over the town on the 20th of
February. By the end of February the protest has progressed to the western
cities of Misrata, Zouara and Ziaouia, all very close to Tripoli (CIET-AVT
report 2011, Libyan Civil war -Wikipedia 2011). It is important to point out
that as the protest grew and expanded especially in the cities of Ziaouia less
than 50 kilometers to the capital, the Police received orders not to do
anything against the insurgents, while the insurgents on the other hand were
having a free reign looting ransacking and burning public buildings, inflicting
vicious attacks on their victims comprising of policemen, women and blacks
considered to be Gaddafi's mercenaries. It remains paradoxical that the
"do nothing" order issued to the police came from the interior
affairs minister Abdul Fatah Younis who later defected and became one of the
leaders of the rebellion (CIRET-AVT REPORT 2011). It was after three weeks that
the army received order to regain the city. From all indications, it was not a
peaceful uprising but an armed insurrection to topple Gaddafi and his ruling
clique as the battle in Misrata which lasted for close to two months
portrayed. Misrata with a population of
approximately 400,000 persons had about 257 persons dead, 949 injured after two
months of fighting. This figure contradicts the claims of the insurgents and
the dominant discourse in western international media that Gaddafi's army is
involved in a mutiny against the civilians and that over 8000 lives have been
lost (CIRET -AVT REPRT 2011, Cole 2011). However given the inexperience and
disorganized character of the insurgents, they suffered more casualties when
faced in battle with the Gaddafi trained soldiers. In fact the defacto
government created by the insurgents in the name of Transitional National
Council (TNC) marks a departure from the
experience of Tunisia and Egypt where already existing state institutions took over the affairs of the state.TNC came
into existence on February 27, 2011 in
an attempt to consolidate the efforts to
oust Gaddafi from power and establish a democracy. The main objectives of the
group was to coordinate the resistance movement in different towns and regions
and to give a political face to the opposition to present to the World( Libya
Civil War Wikipedia 2011, ICG report 2011) . In fact the TNC described as
crisis management committee( ( CIRET -AVT REPRT 2011,Cole 2011) made effort to
feed and shape the discourse that Gaddafi is a tyrant bent on killing harmless
civilian protesters and therefore should be removed from power. The protest was therefore aimed at easing Gaddafi out of
power as happened in Tunisia and
Egypt. The TNC is however a pot pourri
of groups with diverse background and
agenda, the common ground being easing Gaddafi out of power. Given Gaddaffi's
revolutionary background and repressive /dictatorial character, violence could
not be ruled out as an option in the protest arising from the wave of crisis.
Thus the protest initially characterized with minimal violence was matched by
state violence which left many dead and injured. The state disproportionate
response resulted into a full blown war.
However the number of casualties varies depending on who is reporting.
According to Amnesty international investigation as at June 2011 showed that the number of casualties reported
by the international press and the rebels was heavily exaggerated as there was
no proof of mass killings of civilians
and no evidence that aircraft or heavy anti -aircraft machine
guns were used against the crowds as reported by most
international press ( Libyan Civil War Wikipedia 2012, ICG REPORT 2011). The report of the heavy
casualties suffered by the Libyan civilians and ill treatment of the protesters
especially women whom were reported raped by Gaddafi soldiers stimulated the
international community outrage against the regime (RFI 2011, ICSFML report
2011). Table 1.1 shows the breakdown of the civilian casualties in various
towns before the UNSC resolution 1973. While Table 1.2 shows the overall
casualty figures as compiled by various international organizations /Press and
the TNC.
Table 1.1 Civilian
Deaths February 16 -March 18 2011
|
Date
|
Opposition
Fatalities
|
Government
Fatalities
|
Civilian
Fatalities
|
Details
|
|
Feb 16
|
1
|
None reported(NR)
|
Not Available(NA)
|
Protest in Roujdane
|
|
Feb 17-20
|
332-479
|
163
|
|
First battle of Benghazi
|
|
Feb 17-25
|
300-700
|
NR
|
|
Tripoli clashes
|
|
Feb 17
|
4-10
|
NR
|
|
Protests in Ajabiya
|
|
Date
|
Opposition Fatalities
|
Government Fatalities
|
Civilian Fatalities
|
Details
|
|
Feb 18
|
2
|
NR
|
|
Protests in Qubah
|
|
*Feb 18-May 15
|
376
|
358-545
|
|
Battle of Misrata
|
|
Feb 20
|
4
|
NR
|
|
Protests in Tobruk
|
|
Feb 20
|
3
|
NR
|
|
Protests in Zintan
|
|
*Feb 21-May 22
|
NR
|
37
|
|
Revenge killings against loyalists in Benghazi
|
|
Feb 21
|
15
|
3
|
|
Rebel capture of the La Abraq Airport in Bayda
|
|
Feb 22-24
|
9
|
NR
|
|
Protests in Gharyan
|
|
Feb 23
|
2
|
16
|
|
Capture and execution of loyalists fighters at Derna
|
|
Feb 24 - March 10
|
151
|
65
|
84-449
|
First battle of Zawiya
|
|
Feb 18-May 15
|
|
|
610-862
|
Battle of Misrata
|
|
Feb 26
|
22
|
NR
|
NA
|
Capture and execution of rebel fighters at Sirte
|
|
March 1-13
|
|
|
39
|
Shelling of Zuwara
|
|
March 1-August 18
|
500-517
|
397
|
-
|
Nafusa Mountains Campaign
|
|
March 1-July 20
|
27
|
NR
|
-
|
Fighting at the Algerian-Libyan border
|
|
March 2
|
14
|
2-10
|
-
|
First battle of Brega
|
|
March 4-12
|
71-81
|
4-27
|
|
Battle of Ra's Lanuf
|
|
Date
|
Opposition Fatalities
|
Government Fatalities
|
Civilian Fatalities
|
Details
|
|
March 4
|
34-100
|
NR
|
-
|
Explosion at an arms depot in Benghazi
|
|
March 6
|
182-230
|
1
|
-
|
Battle of Bin Jawad
|
|
March 6
|
-
|
-
|
1
|
Shooting in Bayda
|
|
March 12
|
-
|
-
|
1
|
Killing of Aljazeera camera man near Benghazi
|
|
March 13-15
|
7
|
25
|
-
|
Second battle of Brega
|
|
March 14
|
7
|
16
|
-
|
Govt retaking of Zuwara
|
|
March 15-26
|
136
|
41
|
25-30
|
Battle of Ajdabiya
|
|
March 15
|
1
|
NR
|
-
|
Rebel fighter plane crashes
|
|
March 17
|
NR
|
1-2
|
-
|
Bombing run on the Benghazi Military air Base
|
|
March 18
|
3
|
NR
|
3
|
Fighting in Zuwetina
|
|
March 19-20
|
261
|
27-30
|
-
|
Second Battle of Benghazi
|
|
March 19-July 13
|
-
|
-
|
1,108
|
NATO bombing Campaign
|
|
March 20
|
1
|
NR
|
-
|
Killing of a rebel activist in Benghazi
|
|
March 22-24
|
NR
|
19-28
|
-
|
Coalition air strikes on Tripoli
|
|
March 26-30
|
12
|
7
|
-
|
First Gulf of Sidra offensive
|
|
March 28
|
1
|
NR
|
-
|
Execution of captured rebel at
Sirte
|
|
March 31-April7
|
46-49
|
28
|
-
|
Third Battle of Brega
|
Source: Casualties of Libyan Civil War - Wikipedia
Table 1.2
Death Total of Protesters, Armed
belligerents and Civilians
|
Source
|
Libyan Casualties
|
Time Period
|
|
World Health Organization
|
2000 killed
|
Feb 15-March 2, 2011
|
|
International Federation for Human Rights
|
3,000 Killed
|
Feb 15-March 5, 2011
|
|
Libyan League for Human Rights
|
6,000 killed
|
Feb 15-March 5,2011
|
|
National Transitional Council
|
10,000 killed
|
Feb 15-April 12, 2011
|
|
UN Human Rights Council
|
10,000-15,000 killed
|
Feb 15-June 9, 2011
|
|
Al Jazeera English
|
13,000 killed
|
Feb 15-June 18, 2011
|
|
National Transitional Council
|
30,000 killed
|
Feb 15-Sept 8,2011
|
|
National Transitional Council
|
25,000killed
|
Feb 15-Oct 2,2011
|
Source:
Casualties of Libyan Civil War Wikipedia 2012
The figures of fatalities in table 1.1 especially before
the March 17 2011 adoption of resolution 1973 does not show signs of genocide
or mass killings of the civilians by the regime. Many of the heavy fatalities
occurred in cities where there was serious fighting between the regime and the insurgents
as seen in Benghazi, Misrata and Zawiya between Feb 17 and March 2011. The
evidence therefore does not support the view that there was mass killings of
civilian population by the Gaddafi regime to warrant the adoption of resolution
1973.
Even more significant than the violence that
characterized the protest is the way the
discourse on this rebellion was framed in the social medias and dominant
international medias like the Cable News Network(CNN), the British Broadcasting
Corporation (BBC) and Aljazeera. It would seem that the discourse that
accompanied the Libyan crisis was framed by these news media which are known to
project the interests of the major powers of the West in the international
arena. In most of these medias the image of Gaddafi portrayed is that of a
tyrant, terrorist, demagogue, and blood thirsty dictator. In fact a mad dog
that has become delusional in his thinking and refuses to give up power. This
thinking framed the discourse that led to the UNSC resolution 1973. Here are some
examples of the headlines and reports from these international medias:
"More than two weeks after the protests against
Muammar Gaddafi's regime began, the Libyan leader is still clinging to power
insisting, we will fight till the last man and woman to defend Libya" (CNN
news report March 3, 2011) Headline: "More Libyan bloodshed could prompt
US, NATO intervention" (Martinez -CNN .com Feb 24 2011). "Reports of
torture killing in Libya says UN Secretary General" (Feb 23
2011.CNN.COM)" Ghaddfi loyalist launch offensive" (Aljazeera March 11
2011) "Video-Gaddafi delusional and
unpredictable"; Report: "Self
Style revolutionary who ruled Libya with an iron fist said he would die than
step down" (Aljazeera Feb 2011). "Libyan forces loyal to Gaddafi have
fought an increasingly bloody battle to keep the veteran leader in power...and
war planes reportedly bombing protesters"(Aljazeera Feb 22, 2011). Headline
-Gaddafi hits with deadly force" , Report -" Libyan leader Muammar
Gaddafi has unleashed a bloody crackdown against pro democracy protesters
seeking his ouster, killing dozens of people in four days of protests... Libyan
internet activists have denounced the international community's failure to act
over the massacres in Libya" (Aljazeera Feb 21 2011). "Libya unrest:
scores killed in Benghazi Massacre(BBC news Feb 2011); Libya unrest sparks
refugee crisis at Tunisia border"
(BBC news Feb 2011) Libyan defectors: Pilot told to bomb protesters flee
to Malta" (The(UK) Guardian FEB 21 2011)
"Libyan crisis: Government attacks Misrata, kill civilians,
unlawful strikes on medical clinic (Afrique en ligne, Feb 19 2011). As these
kinds of reports and headlines bombard the international community from news
media and internet blogs and social medias, the ace against Gaddafi regime
became very high. The International Crisis Group (ICG) report (2011: 4) reiterating
the observation also made in the CIRET-AVT report 2011 notes that:
Western media coverage has from the
outset presented a one sided view of the logic of events, portraying the
protest movement as entirely peaceful and repeatedly suggesting that the
regime's security forces were massacring unarmed demonstrators who
presented no real security challenge.
This version would appear to ignore evidence that the protest movement
exhibited a violent aspect from very early on.
Nevertheless, various western state governments following
these reports and past misdeeds of Gaddafi made up their mind that Gaddafi
should step down or be removed from power. Thus the dominant discourse framing
this crisis is the view that Gaddafi is killing innocent civilians and must
step down. In fact the US - Obama led administration was criticized for acting
too slowly in the Libyan case. By late February President Obama was calling on
the Libyan leader to step down. He states that "When a leader's only means
of staying in power is to use mass violence against his own people, he lost the
legitimacy to rule and needs to do what is right for his country by leaving
now". His Secretary of State, Hilary Clinton reiterated his President's
stand when she said "Muammar Gaddafi has lost the confidence of his people
and should go without further bloodshed and violence" (Goodenough in CNS
news Feb 28,2011). Prime Minister Cameron of Britain was quoted to have said
that the World must consider "the full range of options against Libya if violent
repression continues ", and added that he wanted to tell Gaddafi,
"what on earth do you think you are doing? Stop it!"(Channel 4 news
Feb 25 2011 ). The Libyan Deputy Permanent Representative to the UN, Ibrahim
Dabbashi on Feb.21, 2011 defected from
the regime and reported the regime's use of mercenaries to quell the
demonstration(WEI report 2011). He also said (referring to Gaddafi) "This
is a mad man and he is psychologically not stable" He called for
international sanctions against him
noting that "he will stay until he is either killed or he will commit
suicide"(Channel 4 news Feb 2011).
This kind of denunciations of Gaddafi from close allies and officials of his
government confirms the doubt that Gaddafi will relinquish power through any
other means but by force. On Feb.23 the AU issued a statement condemning the use of force against
civilians and decides to send a mission to Libya to assess the situation, on Feb
25 2011 the UN Human Rights Council passed a resolution condemning human rights
violation in Libya and called for a commission of inquiry. This was followed by
UNSC resolution 1970 on Feb. 26 2011 which demanded immediate end to violence
in Libya, as well as arms embargo, travel ban and assets freeze of Gaddafi and
family and close allies. Attempts by the
Gaddafi regime to reframe the discourse by blaming protest on Al Qaeda
terrorist and western Imperialism failed to catch on. On Feb 27 2011, Libya's
National Transition Council (NTC) was formed, and by March 5 2011, NTC declared
itself the sole representative of the Libyan state and began to demand for a no
fly zone but without direct military intervention on Libyan soil" Their
request of no fly zone was supported by the Gulf Cooperation Council on March 7
2011(WEI report 2011). The call for a no fly zone was reiterated by the Arab
League and Libyan Crown Prince Mohammed El Sennusi by March 8 and 9 2011 respectively (WEIreport
2011, Wiki Leak Central Live blog 2011). Thus the pressure for a no fly zone by
these groups and persons, the UK, France and the US gained momentum in the heat
of Gaddaffi's incendiary speeches and threats of total annihilation of
opposition against his regime. These threats given Gaddafi's dictatorial past,
went further to affirm the dominant view that Gaddafi will make good his threat
especially with regards to the protest in Misrata and Benghazi. Excerpts of some of the speeches by Muammar Gaddafi
and his son Saif al Islam is reproduced and examined below.
Muammar Gaddafi
and Saif al Islam's Incendiary Speeches: Threats to Annihilate Protesters
The incendiary remarks and speeches of Muammar Gaddafi
and his son Saif al Islam has been blamed for the exacerbation of the conflict. For instance the widely televised speech of
Gaddafi on Feb 22 2011, shows the effort of Gaddafi to stimulate the
nationalist spirit of the Libyan people as well as denunciation of the rebel
activities. He denounced the rebels in very derogatory terms and pronounced
punishment for their anti state activities from the Libyan Penal Code. This
speech formed one of the bases of the UNSC resolution1970 and subsequent
resolution 1973.
Excerpts of the Gaddafi's speech of 22 Feb. is reproduced
below:
Muammar Gaddafi has no official post
that he can resign from. Muammar Gaddafi is not a president. He is a
revolutionary leader. Revolution means perpetual sacrifice until death. This is my country, the country of my
forefathers and of your forefathers. We planted it and watered it with the
blood of our forefathers. We are more worth of Libya than those rats and
hirelings. Who are those hirelings, paid for by foreign intelligence services?
God damn them!...They brought shame to their children, their families...tribes.
But they don't have tribes, for Libyan
tribes are honourable, fighter, and
combatant tribes, and they are rallying
around me during this month. ...I am greater than the positions held by
presidents and notables. I am a fighter. A mujahid. A combatant. A
revolutionary from the tent. ...(Emphasis ours)
Recounting the great achievements of his revolution and
the leadership role of Libya in Africa and the World he further asserts:
This handful of hirelings cannot
stop this triumphant course-these cats and mice that jump from street to
street, alley to alley, in the dark. I have paid the price of staying here.
(Recounts the martyrdom of his forefathers)I cannot betray this great
sacrifice. I cannot leave my grandfather's pure remains in al-Margab. In the end,
I will die pure as a martyr....Freedom is a tree in whose shade no one
can sit except the one who planted it with his hands and watered it with his
blood. Libya is a tree in whose shade we sit, for it is we who planted it with
our hands and watered it with our blood.... (Emphasis ours)
Reacting to the activities of the rebels he notes:
Now a small group of young men, who
were given pills are raiding police stations here and there like rats. They
raided barracks. They used relative safety and security that Libya had enjoyed,
and they raid unwary barracks, because we are not in a state of wars for us to
tighten security on our warehouses and forts...
(Emphasis ours )
He exonerates them and blame those that manipulate them:
But these young men bear no fault.
They sometimes mimic what is happening in Tunisia and Egypt... there is a small
sick group, implanted in the cities, and giving out pills, and sometimes money,
to these young men and thrusting them into
these side battles....
He
instructs Libyans to resist the rebellion:
Get out of your homes, go out to
the streets, seize the rats, do not be afraid of them. We did not yet
use force....If it reaches a point where
we have to use force, then we will use it. According to the international
law, and according to the Libyan constitution and Libyan laws. If I had an
official position, If I were president I
would have thrown my resignation in your faces ...But I don't hold an
official position. I don't have anything from which to resign, I have my raffle.
I will fight until the last drop of my blood. And the Libyan people are with
me. I had lived my life not afraid of anything. You are facing a solid
rock, against which America's fleets have crashed....Pull your children from
the streets....Starting tomorrow the police and the army will impose security.
They will open roads and remove all barricades... (emphasis ours)
He lists the crime of the rebels and the punishment s as
stipulated in the Libya penal code:
Look at their crimes. This is the
Libyan Penal Code from before the revolution. Anyone who bears arms against
Libya shall be punished by death, Scheming with foreign countries to incite war
against Libya ...is punished by death...Anyone who perpetrates an act whose aim
is to start a civil war is punishable by death...This will lead to civil war,
if we do not apprehend them right away.
Finally
he declares:
If these things are not fulfilled,
handing over the weapons, the prisoners, the troublemakers who tricked our
children, and removal of all blockades and returning life to normal...if this
is not fulfilled, and Libya is endangered...if we see this happening, we will
prevent it. Then we will declare the march...the holy march...we will issue
a call to the millions, from desert to the desert. And I and the millions will
march in order to cleanse Libya, inch by inch. house by house, home by home,
alley by alley, individual by individual, so that the country is purified from
the unclean. We cannot allow for Libya to be lost from our hands without
justification....I have millions on my side. I have God on my side, who has
made me victorious over the great powers. (Translation byTony Badran
posted in Libya 360o 2011,
emphasis ours).
On March 17 just as the UNSC was deliberating the case of
Libya, Col Gaddafi in a radio broadcast was quoted to have told the rebels of
Benghazi:
"We are coming
tonight. You will come out from inside. Prepare yourselves from tonight.
We will find you in your closets. We shall show no mercy and no pity to them"
(Reuters in Huffingtonpost 2011)
Prior to the Feb 22 Speech by Gaddafi, his son Saif al
Islam in a press interview observes the awareness of the regime of the change in
the region, and regrets the initial
handling of the protests in Libya by the army which he claims was not trained
to handle such civil unrests. He asserts that the rebellion in Libya will spell
doom for Libya which has a different structure from Tunisia and Egypt because
of the ascendancy of tribal inclinations
and absence of civil society. He declares that the protest will lead to civil
war in Libya which will stall all
progress and development and inflict untold hardship on Libyans. He thus
suggests that Libyan protesters accept to talk over their grievances and embark
on a political reform that will usher in
a new constitution and new Libya. He notes that the contrary will be a civil
war. He thus concludes:
We are in front of two choices, we
can reform now, this is an historic moment, without it there will be nothing for decades. You will see worse
than Yugoslavia if we don't choose the first option. Gaddafi is not Mubarak or
Ben Ali, a classical ruler, he is the leader of a people. 10,000s of Libyans
are coming to defend him....The army is also there, it will play a big part
whatever the cost....It is not the army of Tunisia or Egypt. It will support
Gaddafi to the last minute. Now in the Green square people shoot so that they
will show the world that the army is shooting. We must be awake. Now comes the
role of the National Guard and the Army, we will not lose one inch of this
land. 60 years ago they defended Libya from the colonialists, now they will
defend it from drug addicts. Most of the Libyans are intelligent, they are not
Baltagiya(thugs). Benghazi is a million and a half not the few thousands who
are in the streets. We will fight to the last man and woman and bullet.
We will not lose Libya. We will not let Aljazeera Al Arabiya and BBC trick us.
We will live in Libya and die in Libya. (Transcribed
by Sultan AlQassemi Feb 20 2011)
Excerpts of these speeches were widely publicized by the
international press and the incendiary parts where the Gaddafi's swore to fight
were highlighted and used as proof that Gaddafi intends to murder and is in
fact murdering his own people. Thus
on 17th March as Gaddafi made his radio broadcast to Benghazi protesters, the
UNSC adopted resolution 1973 to protect civilians using "all necessary
means' and a 'no fly zone" over Libya with a unanimous vote of ten with
five abstentions.
The UNSC resolution 1973 is premised on the fact that
Gaddafi was killing his own people and will make do his threats to kill the
protesters especially of Benghazi if nothing was done by the international
community to stop him. However the UNSC consideration of a no fly zone was not
based on any factual statistics of Gaddafi's genocidal activities on protesters
but on the much publicized threats and negative press reports which framed the
discourse of the crisis against Gaddaffi. In fact the consideration of a no fly
zone which took place same day as Gaddafi's last threats to the protesters of
Benghazi is a proof that the threats by Gaddafi was not the basis for the UNSC
resolution. In fact it may even be the reason for Gaddafi's hard-line position
to march force with force in the awareness that the protesters are playing the
script of the imperial powers and opponents who want him out of power. The
speed at which the major powers of US, UK and France recognized the NTC as the
legitimate representative of the Libyan people is an indication that they have
withdrawn their recognition of Gaddafi and his regime as the sovereign
authority in Libya, in effect he was seen as the villain who must be ousted at
all cost to enable a new regime to take control in Libya. This explains why
neither diplomacy nor Resolution 1970 was
given enough time to work before
a no fly zone was imposed.
Against this background, we surmise that despite
Gaddafi's use of force to quell rebellion, and the threats to annihilate
opposition, the UNSC resolution 1973 was premised on the
anti Gaddafi forces/major powers decision to remove Gaddafi from power.
So we reject our hypothesis that the use of violence and threats of violence
against protesters by the Gaddafi regime was what brought about the adoption of
resolution 1973.
H2: The non implementation of paragraph 1 and 2 of
resolution 1973 as well as the excessive
force employed in the enforcement of a no fly zone in Libya by the NATO led
coalition constitute a violation of the
mandate of the resolution which is to
protect the civilian population in Libya.
The Libyan Crisis and the Enforcement of Resolution 1973
The Libyan Crisis
and Absence of Diplomacy: Non-Compliance with Paragraph 1 and 2 of Resolution
1973
One obvious lacunae in the UNSC and NATO coalition handling of the
Libyan crisis is the absence or near absence of the use of diplomacy to quell
the crisis. Apart from the UN Secretary General's appointment of Abdelillah al Khatib as a special envoy to Libya on fact finding mission, on March 11 2011,
there was not any known effort by the UN to use diplomacy to douse the crisis.
In fact before the Khatib appointment, Gaddafi's regime has been sanctioned
through resolution 1970. Even the Abdelillah Khatib mission was not allowed to
yield fruit before resolution 1973 was adopted.
Many of the independent and UN
Human Rights Council fact finding missions went to Libya while the NATO led
coalition was implementing the no fly zone. Even with the adoption of
resolution 1973, paragraph 1 and 2 that emphasized cessation of violence by
both parties was never pursued by the UN or NATO coalition of the willing. The relevant paragraph states: .
1. Demands the immediate establishment of a
cease-fire and a complete end to violence and all attacks against, and abuses
of, civilians;
2. Stresses the need to intensify efforts to find a solution to the
crisis which responds to legitimate demands of the Libyan people and notes the
decisions of the Secretary-General to send his special Envoy to Libya and of
the Peace and Security Council of the African Union to send its ad hoc High
level Committee to Libya with the aim of facilitating dialogue to lead to the
political reforms necessary to find peace and sustainable solution;
Thus the adoption
and implementation of no fly zone over Libya did not follow the dictates of the
Just war theory or even the UN's R2P principles which demands exploring all
peaceful alternatives before recourse to violence. First the Abdelillah al Khatib fact finding
mission was not allowed to complete its mission before the commencement of the
NATO campaign, an indication that diplomacy was not on the table in
solving the Libyan crisis. Secondly, The African Union (AU)'s plea to be
allowed to settle the crisis through diplomacy was not granted. In fact Jean
Ping the Chairman of the African Union Standing Commission told Stephen Sackur
in the program Hard talk hosted by Sackur in BBC that the African Union opinion
was not sought on the issue of no fly zone in Libya (BBC News -Hard Talk March
25 2011). The position of AU on Libya include (i) Immediate cessation of all hostilities ; (ii) Cooperation of the
concerned Libyan authorities to facilitate the timely delivery of humanitarian
assistance to needy populations; (iii) Protection of foreign nationals, including African migrant workers living in
Libya; and (iv) Dialogue between the Libyan parties and establishment of a
consensual and inclusive transitional government. The Peace and Security
Commission (PSC) of AU also established a High level ad hoc Committee to follow
-up on the implementation of the Roadmap ( Ping, 2011; UN News Service 2011).
Jean Ping notes that one week after the adoption of AU roadmap the UN Security
Council adopted resolution 1973. Even the permission sought by the Committee to
be allowed to fly to Libya on March 20
2011 to interact with the parties and
commence the peace process was denied by NATO which started its military
campaign on March 19 2011. However the
paradox of the AU position is that while the Union was rooting for a diplomatic
solution, the two non permanent members in the Security Council namely Nigeria
and South Africa voted in favor of the resolution which contained enforcement
of no fly zone but lacked enough clout to pressure for the implementation of paragraph
1 and 2 which tallies with their effort at finding a political solution to the
crisis. In any case the international
Community led by UK, France and the US
have made up their mind about Gaddafi quitting office, so they continued to argue that any negotiation will not include Gaddafi and
members of his family. This attitude violates the principle of last resort of
the 'jus ad bellum' and even the fourth principle of R2P which
stipulates the exploitation of all diplomatic and peaceful means before
using force. This again confirms the
fear of many Third World states that humanitarian intervention can sometimes
act as a pretext for war by the super
powers and in the Libyan case, the triune of USA,UK and France have made up
their minds that nothing but regime change was acceptable, even though Saif al
Islam in his public address to Libyans in February 20 2011 made it known that they were open for
dialogue and constitutional democracy but the NTC and the allied forces felt otherwise. The International Crisis Group(ICG) report
(2011:29) made similar observation when it
notes that:
the UNSC resolution 1973 called
for a cease fire, yet every proposal for
a cease fire put forward by Gaddafi regime or third parties ...has been
rejected by the TNC as well as the Western governments most closely associated
with the NATO military campaign. The
main grounds being cited have been that Quadadafi cannot be expected to honor
his undertakings and that nothing short of his departure is acceptable. However neither the TNC nor NATO has made a
ceasefire proposal of its own and there has yet to be a meaningful attempt to test Quaddafi's seriousness or pose conditions on acceptance
that would subject a putative ceasefire
to effective independent supervision ...and thereby address constructively the
problem of Quaddafi's suspected untrustworthiness.
This again confirms the double standard thesis used in
the choice of state (s) for the
application of humanitarian intervention. This is because similar violent
response was used in Bahrain, Yemen, and Egypt but the western powers never
advocated for a no fly zone or
humanitarian intervention rather they continuously appealed to all sides for
restraint and gave the regimes the
opportunity to address the grievances of the demonstrators through reform of
the political process. It is obvious that in the case of Gaddafi the triune of
USA, UK and France never forgave Gaddafi for his past terrorist activities that
saw to the death of many western states citizens in the bombing of the Pan AM 103 flight and the UTA
777 flight. The internal democratic uprising that erupted in Libya became an
opportunity for payback, hence resolution 1973.
Thus the violence perpetrated by the allied forces of NATO in the
implementation of the no fly zone intensified the crisis as an all out war
broke out endangering the lives of civilians that structures the argument of
humanitarian intervention. Figure 1.1 show that there were more casualties
after the adoption of resolution 1973 than there were before the no fly zone
was implemented. For instance between March 19 and July 13 2011 the NATO
campaign claimed 1108 civilian casualties.
This is expected given the massive air bombardment that characterized
the take off of the NATO campaign called operation Odyssey described as the
biggest military campaign in the Arab World since 2003 invasion of Iraq. US and
British warship and submarines launched more than 110 Tomahawk cruise missiles
at more than 20 coastal targets that crippled Gaddafi's air defences(Aljazeera
,March 20 2011). As the bombardment went on against Gaddafi forces, the western media campaign framed the discourse in such a
manner that Gaddafi remains the monster that must be ousted. An instance of
this was the case of Iman al Obeidi the postgraduate student of law who claimed
that she was gang raped by the Gaddafi soldiers. Her story received wide and
repeated publicity in various international media as well as social medias like facebook and
twitter. News headlines like "Rape used as a weapon in Libya (CNN Sara
Sidner exclusive report, June 16 2011), Rape victims face honor killings in
Libya" (BBC news June 14 2011) "Gaddafi forces accused of rape"
(Aljazeera english May 3, 2011) further damaged the image of the Gaddafi regime
and the international community's feeling about his continued stay in office.
Such discourse also legitimized the use of force by NATO in crippling and
ousting the regime. Thus paragraph 1 demanding ceasefire was never implemented
by the international community represented by the coalition of the willing led
by US and NATO. Rather the NATO led coalition were suspected to have even
joined the ground offensive of the NTC against the Gaddafi regime and thereby
intensified the conflict. CIRET-AVT report (2011:30-31) notes that from the
start of the operations, teams of CIA were deployed in Libya on the orders of
the US President to make contacts with
the insurgents and to act as spotters and guides for air attacks. In addition
UK on Washington's request sent some military advisors to the insurgents, in
order to support the action of the CIA agents on the ground. A French weekly
revealed that France allegedly supplied,
under cover of humanitarian goods, 105mm canons and anti aircraft batteries to rebels in Benghazi in keeping
with the promise of Nicholas Sarkozy to the NTC president that "we will
help you". These facts does not show a group interested in stopping the war and charting a new course
for peace, but those hell bent on seeing Gaddafi out of power by force. In furtherance of that aim the coalition airstrikes targeted his house and
killed his son and grand children. We
wish to observe that the Killing of Gaddafi's son and grand children violates
the mandate of resolution 1973. The NATO attack also intensified the refugee
situation as over 40 000, refugees left Libya for neighboring countries like
Tunisia, Egypt and Italy(Aljazeera May 3, 2011). In a way the selective
implementation of the resolution undoubtedly created and worsened the humanitarian
situation it set out to rectify. ICG report (2011) notes that a ceasefire
functions not only to stop fighting and
save lives but to lead directly to negotiations between the TNC and the Gaddafi
regime thereby enabling politics to resume their rightful place and a new,
constructive, non violent political process to get under way. It did not happen
because the NATO led coalition wanted it otherwise.
Libyan Crisis and
the Enforcement of a No Fly Zone:
Resolution 1973
passed on March 17, 2011 changed the fate of Libya as it gave the mandate that
enabled the US/NATO led coalition to oust Muammar Gaddafi from power. The
resolution aimed at protection of civilians from harm became a pretext for
regime change as the coalition saw regime change as part of the mandate of the
resolution. NATO led coalition anchored its regime change argument on the
clause "take all necessary measures" used in paragraph 4 and 8 of the
resolution respectively. The relevant sections of the resolution here under
reproduced reads :
Acting under
Chapter VII of the Charter of the United Nations:
1. Demands the immediate establishment of a cease-fire and a complete
end to violence and all attacks against, and abuses of, civilians;
2. Stresses the need to intensify efforts to find a solution to the
crisis which responds to legitimate demands
of the Libyan people and notes the decisions of the Secretary-General to
send his special Envoy to Libya and of the Peace and Security Council of the
African Union to send its ad hoc High level Committee to Libya with the aim of facilitating dialogue to lead to the
political reforms necessary to find peace and sustainable solution;
3.
Demands that the Libyan
authorities comply with their obligations under international law, including
international humanitarian law, human rights and refugee law and all measures
to protect civilians and meet their basic need, and to ensure the rapid and
unimpeded passage of humanitarian assistance;
Protection
of Civilians
4. Authorizes Member States that have notified the Secretary -General
acting nationally or through regional organizations, and acting in cooperation
with the Secretary -General, to take all necessary measures,
notwithstanding paragraph 9 of
resolution 1970(2011), to protect civilians and civilian populated areas under
threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while
excluding a foreign occupation force of any form on any part of Libyan
territory, and requests the Member States concerned to inform the
Secretary-General immediately of measures they take pursuant to the
authorization conferred by this paragraph which shall be immediately reported
to the Security Council; (emphasis ours)
5. Recognizes the important role of the League of Arab States in
matters relating to the maintenance of international peace and security in the
region and bearing in mind Chapter VIII of the United Nations, requests the
Member States of the League of Arab States to cooperate with other Member
States in the implementation of paragraph 4;
No Fly Zone
6. Decides to establish a ban
on all flights in the airspace of the Libyan Arab Jamahiriya in order to help
protect civilians;
7. Decides further that the Ban imposed by paragraph 6 shall not apply
to flights whose sole purpose is humanitarian ,such as delivering or
facilitating the delivery of assistance, including medical supplies, food,
humanitarian workers and related
assistance, or evacuating foreign nationals from the Libyan Arab Jamahiriya,
nor shall it apply to flights authorized by paragraph 4 or 8, nor other flights
which are deemed necessary by states acting under the authorization conferred
in paragraph 8 to be for the benefit of the Libyan people, and that these
flights shall be coordinated with any mechanism established under paragraph 8;
8.Authorizes Member States that have notified the Secretary-General
and the Secretary of the League of Arab States, acting nationally or through
regional organizations or arrangements to take all necessary measures to
enforce compliance with the ban on flights imposed by paragraph 6 above, as
necessary, and requests the states
concerned in cooperation with the League of Arab States to coordinate closely
with the Secretary- General on measures they are taking to implement this ban,
including by establishing an appropriate mechanism for implementing the
provisions of paragraph 6 and 7 above, (emphasis ours)
9. Calls upon all Member states, acting nationally or through regional
organizations or arrangements, to provide assistance, including any necessary
over-flight approvals, for the purposes of implementing paragraphs 4 ,6, 7 and
8 above;
10 .Requests the Member States concerned to coordinate closely with
each other and the Secretary -General on the measures they are taking to
implement paragraphs 4,6.7 and 8 above, including practical measures for the
monitoring and approval of authorised humanitarian or evacuation flights;
11. Decides that the Member
States concerned shall inform the Secretary-General and the Secretary-General
of the League of Arab States immediately of
measures taken in the exercise of authority conferred by paragraph 8
above, including to supply a concept of operations;
12. Requests the Secretary-General to inform the Council immediately of
any actions taken by the Member States concerned in the exercise of the
authority conferred by paragraph 8 above and to report to the Council within 7
days and every month thereafter on the implementation of this resolution, including information on any violations of
the flight ban imposed by paragraph 6 above;
The controversial issue in the handling of resolution
1973 is the wide interpretation given to the phrase "take all necessary
measures ...to protect civilians and civilian populated areas..." in
paragraph 4 and in paragraph 8 of the resolution. From the perspective of the
legal realism school, international law and its interpretation is what the
major power says it is. Against this backdrop the interpretation given to the
phrase "take all necessary measures" enabled the coalition to add
regime change as part of the measures for the protection of civilians. To this
end Gaddafi's house was targeted with the aim of killing him. In addition
excessive force was employed in the
destruction of the regimes military capability and even social infrastructures
in contravention of the jus ad bello that requires that the force employed be
proportionate to the one used by the regime. In the course of this NATO ended
up killing a large number of civilians they were expected to protect including
Gaddafi's son and grand children. We wish to observe that the Killing of
Gaddafi's son and grand children violates the mandate of resolution 1973. This
is because in consonance with the Jus ad bellum and principles of R2P, there
should be a distinction between combatants and non combatants, and Gaddafi's
son and grand children were non combatants, in addition it can be rightly
argued that Gaddafi's civilian household belong to the group of civilians the
resolution mandated the interventionists
to protect. (CIRET -AVT report 2011) .
CIRET-AVT report (2011:28) notes that in town of Midza NATO air strike hit hospital, doctors
lodgings and offices, and about forty homes located nearby causing many
casualties amongst civilians and the medical personnel some of whom were North
Koreans. The strikes also brought about psychological trauma to inhabitants of
the affected cities who had to leave their homes to find refuge in tents.
Libyans in the west were upset that they
have been chosen for such strikes and
criminalized in the process. Report of the ICSFFML (2011:47) observes that on Nov.21 2011 NATO attack at Sirte,
Gaddafi's stronghold killed about 47
civilians. The report further notes that many sites targeted by NATO were
ostensibly civilian objects and NATO's defense that these sites were used for
military purposes had no convincing evidence to the fact. These sites include
schools, food warehouse, office of the Administrative Controller in Tripoli.
The report argues that international humanitarian law demands that for a civilian object to be targeted it must
be making an effective contribution to military action, so in effect NATO's
action was violation of one of the cardinal principles of international
humanitarian law ( ICSFFML report 2011:44).The report further notes that NATO
appears to have participated in what could be classified as offensive actions
undertaken by the opposition forces, and their choice of targets raises a prema
facie questions regarding the role of such attacks with respect to protection of
civilians. It brings to the fore the ambiguity in the text of the
resolution. Thus NATO's compliance with
the terms of the resolution must be evaluated in light of the requirements of international law and the UN Charter (ICSFFML
report:43). We also agree with the observations made by the President of International Progress Organisation (IPO) Dr
Hans Kochler to the President of the Security Council and to the
UN Secretary General regarding the wide
interpretation given to the phrase
"take all necessary measures" by the Coalition forces. In the
memorandum Kochler (2011) observes that the delegation of unlimited authority
to interested parties or regional groups is not only incompatible with the UN
Charter but with the international rule of law. The Security Council can under
no circumstances authorize a use of force the extent and form of which is
solely at the discretion of those parties that volunteer to intervene on behalf
of the UN. Thus the procedures outlined in the operative paragraph of resolution
1973 and their implementation by interested parties contradict the doctrine of
collective security which is the foundation of the provisions of Chapter VII of
the UN in several important respects:
1. The notion "all necessary means" is not only
vague but totally undefined. Thus in a context
of international power politics such imprecise terms unavoidably becomes
interpreted according to the self interest of the intervening parties and
therefore can never be basis of legally
justifiable action.
2. The imprecise definition of the term makes it
impossible to ascertain the compatibility and commensurability of the adopted
measures with the goals stated in the resolution. It also allows the interested
states and groups of states to act outside a framework of checks and balances
and with total impunity.
3. To authorize states to use all necessary means in the enforcement of legally binding
resolution is an invitation to an arbitrary and arrogant exercise of power, and
makes the commitment of the UN to international rule of law void of any
meaning.
4 The Prime Minister of the Russian Federation was right
in describing the resolution as flawed in so far as it allows everything and
resembles medieval calls for crusade. A procedure by which a country's leadership is declared
an international outlaw, and everyone
(state or regional group) is invited to join in the battle in whichever way
resembles the rationale of the crusades
and such medieval hostis has no room in international law. Such international
vigilantism and humanitarian free for all are elements of anarchy
characteristic of pre modern system of imperial powers as it existed before the
abrogation of the jus ad bellum.
5. In the context of chapter VII enforcement measures,
including the use of armed force, the formular "all necessary
measures" effectively invites
unilateral action by the self-appointed members of a "coalition of the
willing" something which not only subverts but perverts the United
Nations' rationale of collective security in the service of an undeclared
imperialist agenda, hidden behind humanitarian motives.
6. The involvement of NATO as the coordinating
entity for the enforcement of the flight
ban and all military operations in Libya complicated the international
dimension of the conflict. This is
because NATO is a mutual defense pact of European states including Turkey and
two North American states. So even in the disguise of "crisis response
operations" and noble humanitarian motives, offensive action in North
Africa outside the treaty area will further threaten international peace and
security. In other words in view of its composition and political agenda, it
was totally inappropriate for NATO to act as the exclusive enforcer of Chapter
VII resolutions of the Security Council.
7. By deciding to
"protect civilians" in Libya while not acting in comparable
situations of uprising in Bahrain and Yemen, the Security Council obviously
chose a policy of double standards that seems determined by the strategic
interests of the intervening countries.
8. The authorization formula of "all necessary
means" makes the Security Council a mere bystander as the voting procedure
in the council requires the consent of the states that inserted it to cancel
it.
7. In line with the Security Council's tendency, since
the end of the cold war, to arrogate powers not given to it in the Charter, and
to broaden its mandate as "global administrator of justice",
resolution 1973 (2011) appears to have further widened the scope of action on
the basis of Chapter VII so as to include the protection of the civilian population
in situations of domestic conflict. However if the Council aspires to be an
enforcer of rights and an arbiter in domestic conflicts, it will have to abide
by basic principles of the rule of law. As long as it encourages member states
to act as they please, allowing them to further their own national interests in
the disguise of enforcement action on behalf of the United Nations, the
Security Council's practice will itself constitute a threat to international
peace and security (Kochler 2011).
In the recognition of the ambiguities resulting from the
term " take all necessary measures",
the consequent heavy
civilian casualties as a result of excessive use of force by NATO coalition, the
notion of R2P that constitute the
underlying basis of the resolution becomes defeated. In the case of Libya the enforcement action
embarked by NATO and its allies led to several civilian deaths to the chagrin
of the states like Russia, China, and the Arab League which condemned the heavy
bombardment as running contrary to the mandate given in resolution 1973 (2011)
( Wiki leak Central 2011, World News Briefs 2011, The Guardian June 2011, RT
news 2011) . The Russian Prime Minister Viladimir Putin put it this way
We 're concerned at the ease with which
decisions are being made over the use of force in international affairs today. In US policy
it's becoming a dangerous tendency. During Bill Clinton's time they bombed
Yugoslavia and Belgrade, Bush deployed troops in Afghanistan, then under false
pretenses more forces were deployed in Iraq, destroying the entire government
of Iraq. Now Libya is next-they say they 're protecting civilians. But it's
civilians who are dying when they bomb Libya. Where's the logic and the
conscience? There 's neither(RT News 2011)
The Russian Foreign Ministry further states that "It
is unacceptable to use the mandate subsequent upon UN Resolution 1973, the
adoption of which was quite an ambiguous move, to achieve the goals which
clearly are beyond its scope as the
resolution stipulates only measures to protect civilian population." Similarly the head of the Arab league Amr
Moussa who played a central role in
securing the "no fly zone" said "what is happening in Libya
differs from the aim of imposing a no fly zone, and what we want is the
protection of civilians and not the bombardment of more civilians" . He
further notes "When I see children being killed, I must have misgivings.
That is why I warn about civilian causalities" (BBC News, March, 2011, RT
News March 2011,The Guardian 2011, Lamb 2011). The heavy civilian casualties
recorded in Figure 1.1 after the commencement of the NATO led attack points to
one fact, that the implementation of the resolution violated the mandate of the
resolution which was protection of civilians.
In addition, the idea that in domestic conflict,
responsibility to protect civilians
rests with the state
authority (whose legitimate right to the
use of coercion at the time is under challenge) and not with the rebel
group(s) defeats the sole purpose of
invoking this moralist principle. This explains the impunity displayed by the
rebel groups in Libya in the treatment of civilians supportive of the Gaddafi regime.
Various fact finding missions to Libya recorded the gross violation of human
rights by the insurgent forces which
NATO and its other coalition members prefer not to notice. The ICSFFML report (2011:34-41)notes the
prevalence of retaliatory and revenge
attacks on the part of the rebel force, including the illegal appropriation of
properties and other acts of intimidation against pro Gaddafi individuals. It also reported the forcible displacement of
suspected enemies of the revolution exemplified in the town of Tawergha where the entire community
were forcibly ejected by the rebels without hope of return. The Advance
unedited version of Human Rights Council report
(A/HRC)(2011:8;para 28) also notes that
"dozens of civilians are being held in armed opposition -facilities
around Benghazi on the basis of unknown motives and several former members of
the internal security police were found dead, shot in the head or their throat
slashed, often with hands and feet bound". The behavior of the rebel group
contravenes the various prongs of the just war theory and principles of R2P
and cannot be accommodated within the
wide scope interpretation of "all necessary measures" brandished by
the US/NATO coalition. Even the regime
change and capture and killing of Gaddafi cannot be said to
be accommodated within this wide
interpretation. As the CIRET-AVT report(2011:30) puts it, "the elimination
of the Libyan leader is not authorized , nor legitimate in the context of this
operation"
The wide interpretation given to the phrase "take
all necessary measures" in order to
extract regime change from the operation, reveals the real intension behind the
quest for the resolution and thus
violates the twin principle of just cause and right intention of the just was theory and the right intention principle of responsibility to protect,
the underlying basis of resolution 1973(2011).
Against this background we validate our hypothesis 2 :
The non implementation of paragraph 1 and 2 of resolution 1973 as well as the excessive force employed in
the enforcement of a no fly zone in Libya by the NATO led coalition constitute a violation of the mandate of the
resolution which is to protect the
civilian population in Libya.
Conclusion:
The Libyan crisis was a domestic civil strife, and although it
created a panic situation that led to exodus of foreign nationals and
Libyans who wanted to escape the
violence accompanying it , nevertheless
it was not different from other civil unrest that engulfed the other
Arab States, except in the scale of
violence used by both sides, which did not
warrant the adoption of a no fly zone. A no fly zone is essentially
enforced where there is evidence of mass murder or grave violation of human
rights. In Libya, as the reports of various fact finding mission reveal, there
was no evidence that Gaddafi has used his air power to slaughter the civilians,
or ferocious slaughter of civilians as most media houses reported. The protest
was violent in several cases and the state responded accordingly in defense. No
state (especially a dictatorial one like Gaddafi's) would have stood still
while its coercive apparatus is challenged, raided and confiscated as happened
in Libya without some measure of
coercion employed to restore order. It appears that the rebels employed
violence in order to elicit a violent response that in turn will attract the
attention and sympathy of the international community to their sides. Secondly
employing violence and eliciting a similar response from Gaddafi confirms the
image of Gaddafi as a bloody demagogue and terrorist, an image not different
from the one USA and Europe have of him
given his past terrorist activities, and
thereby further the regime change motive of the leaders of the protest many of whom were
exiles resident in Europe and USA. Thirdly,
the leaders of the protest movement must have known that nothing short of a
violent overthrow can remove Gaddafi from power given that Gaddafi himself has
always claimed and cunningly too, that he has no official position and therefore has no power to handover, as the
power of the state rests with the people. This Machiavellian tactics of Gaddafi
has made it difficult over the years for any internal dissent against him to
succeed and in the absence of civil and political institutions in Libya, the Tunisian
and Egyptian examples of handing over to existing institutions of the state
would have been impossible in Libya. It
was obvious to the rebel group that nothing short of violent protest on a
massive scale can tilt the balance of power in their favor if they can
instrumentalize it to gain international recognition and assistance. This explains
the 'unreadiness' of the rebel groups later represented by NTC to accept any
form of peaceful resolution of the conflict suggested by the African Union and
the Gaddafi regime. In view of the speed with which sanctions and no fly zone
was adopted on Libya while not extending similar treatment to other Arab states
like Bahrain and Yemen in the same
situation, the conspiracy theory that the allied powers of USA, UK and France
in collusion with the exiled rebel leaders and Arab League may have planned the
violent protest in Libya in order to get the expected response that will enable
them act as they have done is not farfetched. Otherwise how do we explain that
the United Nations did not send any fact finding mission to Libya before
adopting resolution 1970. In addition the Khatib envoy mission sent by the
Secretary General was not allowed to complete his mission before the adoption
of resolution 1973. Both the US President, Barack Obama and the United Kingdom (UK)
Prime Minister David Cameron continued to rely on security and media reports to
assess the events in Libya and objected to any peaceful resolution that
included Gaddafi. In fact the CIRET -AVT
report (2011) notes that US, UK and French Security operatives were inside
Libya lending both military and strategic support to the rebel groups. The
insurgents did not waste time in asking for international assistance and no fly
zone while rejecting peaceful resolution. It is known that Gaddafi was not in
the good books of the leading nations of the Arab World, so that getting the
Arab League to lend their support for the resolution was not difficult more
especially in view of the US influence in the region while also ignoring the
opinion of the African Union where Gaddafi has some measure of credibility and
influence. The violation of human rights thesis by the Gaddafi regime employed as the 'Justa causa' for the
resolution fails in the face of similar behavior by the rebel groups and
the terrible suffering and deaths of
civilians inflicted by the NATO led attack.
The intervention in Libya did not suffer the legality or
legitimacy crisis that usually accompany HI in many other occasions as it was
appropriately authorised by an authority considered legitimate to do so, the
Security Council. The bone of contention is whether the Security Council as
the agency for ensuring world peace and
security did in fact act wisely in adoption of a resolution that essentially relies
on force without resort to peaceful
alternatives. The enforcement of the resolution as earlier pointed out in our
discussion paradoxically ended up killing more civilians (given the massive air
and ballistic attacks against the Gaddafi regime and his combatants ) thus
defeating the main aim of resolution 1973 (2011) which was "to protect civilians" or
prevent wide spread suffering. NATO cannot rely on the doctrine of the double
effect as this doctrine only allows civilian deaths where it aids to prevent
more deaths. This was not the case in
Libya. This situation arose out of the
agenda of the coalition to oust Gaddafi out of power which by all
purposes and intent was outside the mandate of resolution 1973(2011) despite
the wide interpretation given to the clause " take all necessary
measures" by the NATO led coalition. The killing of Gaddafi without giving
him opportunity for fair hearing runs contrary to the dictates of fair hearing
and rule of law of which the UN should be the
major custodian. It also violates one of the principles of jus post
bellum which prohibits revenge against a loser.
The manner of enforcement
of the resolution 1973 in Libya has had immense consequences on the character
of the crisis in Syria. First it
forestalled the use of humanitarian intervention in whatever capacity by
the UNSC to curb the violence in Syria or extend humanitarian services to
protesting Syrians as Russia vowed to stop such abrasive interference in the
internal politics of sovereign states given the experience of Libya. Secondly
it made the Assad regime in Syria more
determined in countering the violent demonstration against his regime thus
bringing about more causalities than
envisaged. On the part of the rebels it made them more violent believing that
using the Libyan approach of refusing dialogue that includes the Assad regime and increasing the tempo of
violent protest will attract the help of the international
community led by USA and Europe. The aftermath has been wanton destruction of
lives and properties. In effect the
manner of enforcement of resolution 1973
(2011) has curtailed the opportunity of peaceful resolution of disputes, the
raisond'etre of the UN and further
jeopardizes world peace and security.
In the case of Libya, the state is yet to chart the right course
out of the chaotic situation as the
various groups sing discordant tunes as they
harbor different intentions on how to move forward . For instance on
March 6, 2012 militia and tribal chiefs in East Libya demanded a return to the loose federation that
prevailed before the Gaddafi revolution
in 1969. They also announced unilateral plans to begin establishment of
their own autonomous government. The east believe that they liberated Libya
with nothing to compensate them for it, as the NTC announced that the west
shall provide 111 members of the assembly as against 60 from the east. The
prime Minister Abdel Rahim el-Keeb has rejected this option calling on Libyans
to do so. Militia and tribal leaders from the west earlier formed their own
alliance with the intention of exerting influence nationally. There is also the
problem of mopping up the weapons in the
hands of various militia groups that fought the Gaddafi regime(Alzway &
KirkPatrick in New York Times 2012). This has complicated even the human rights status of the present
regime as allegations of torture and human right abuses have been reported
against militia supportive of the
present regime. Donata Rovera , a senior crisis -response adviser for Amnesty
international in London reports massive abuse of human rights by militias that
run detention centers all over the country with no control from the NTC central
government. In some of the detention centers the detainees out of fear say
nothing, but just show their wounds to the visitors as evidence of their
torture. She notes that the NTC lacks both the willingness and the capability
to wrest control from armed groups and the delay has worsened the human right
situation( Walt 2012). In January and February 2012, Amnesty International
delegates interviewed scores of victims of torture who were held in and around
Tripoli, al -Zawiya, Gharyan, Misratah and Sirte, as well as several families
of people who died in the custody of militias after they were tortured.
Detainees told Amnesty International that they had been suspended in contorted
positions; beaten for hours with whips, cables, plastic hoses, metal chains and
bars, and wooden sticks; and given electric shock with live wires and
taser-like electric shock weapons. Medical reports also confirmed the use of
torture. Amnesty International report notes that the (present) Libyan
authorities have been alerted on numerous occasions to the ongoing abuses by
militias, the report regrets that the NTC led transitional government appears to have neither the
authority nor the political will to rein
in the militias many of which are reluctant to disband or submit to the central authority. It further notes that the
authorities have been unwilling to recognize the scale of militia abuses, at
most acknowledging individual cases despite the mounting evidence of patterns
of grave, widespread abuses in many parts of the country. The report surmises
that this inability to bring perpetrators to account is sending the wrong
message to the militias and has encouraged further abuses and a climate of
impunity for such crimes (Amnesty International 2012). The chaos and human
rights abuses in Libya after the revolution signal one thing, that the use of
resolution 1973 and the manner of its implementation in Libya
was wrong. The very human right abuses for which Gaddafi was ousted is
presently being perpetrated in Libya in manners worse than before without those
responsible being brought to account. Paradoxically the UN and the allied
powers that enforced the resolution are busy with similar situation in Syria
why leaving suffering Libyans to their
own fate. However the chaotic situation
and the obvious lack of control of the new Libyan government has just brought
about another calamity but this time not to Libyans but to the United States ,
when Libyan Islamic extremists angered
by the negative portrayal of prophet Mohammed
in a film made by an American Coptic Christian decided to burn down the American embassy in
Libya and in the process Killed four diplomats including the US Ambassador to
Libya Ambassador Christopher Stevens. President Obama has vowed to bring the
perpetrators to justice, as American
warships and sub marines have already been dispatched to Libya while security
has been heightened and tightened in American Consulates in many Arab countries with similar protests or where such is
imminent (CNN News Sept 12 2012, BBC News Sept 12 2012). What happened in
Libya is an attestation of the failure
of order and a sign that the new Libyan
government is yet to establish control over the many well armed militia groups proliferating the
Libyan streets as a result of the revolution. In addition the orchestrated attack
has been likened to the handwork of Al-Queda terrorist net work or local Jihadist that
gained grounds as a result of the revolution and which appears to have seized the opportunity
of the chaotic situation in Libya to carry out their anti American nefarious
activities, thus prompting the question "Is Libya better and safer under
Gaddafi? Was Gaddafi right after all that his violent removal will spell doom
for Libya and Libyans? Only time shall make these issues clearer.
Recommendations:
Against this backdrop we
recommend the following
1. That while the idea or notion of humanitarian intervention from
the perspective of R2P remains laudable, the UN through the Security Council
should enforce such measures through regional organizations or using the
traditional peacekeeping operations so as to avoid the misconception that the
organization has become instrument of the powerful few for the realization of
their national interest. This will also make the UN solely in charge of the
operation rather than the spectator status it assumes once the resolution has
been passed.
2. That the UN except in proven cases of genocide should avoid the
employment of force in the settlement of intra state dispute. This will
encourage parties to employ diplomacy and dialogue rather than violence with
the hope of attracting humanitarian intervention of powerful states to their
sides.
3.That in drawing the resolution of the UNSC very precise and
clear language should be used so as to avoid the scenario where use of imprecise and vague terms is interpreted to
suit the interests of the powerful states.
4.That in the enforcement of humanitarian intervention resolutions
emphasis should shift from responsibility
to react to responsibility to prevent. This will constrain the
intervening states from the large scale destruction of social infrastructures
that usually accompany responsibility to react.
5. That Libya should be guided by the UN to building a virile
civil society and institutions in accordance with ethics of democracy and rule
of law. Thus missions of experts on nation building and statecraft should be
sent to help Libya to chart a path out of
the present chaotic situation they find themselves.
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