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 360^o 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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