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The Politics of Global Humanitarianism: R2P before and after Libya

Abstract and Keywords

The responsibility to protect (R2P) is both a license for and a leash against forcible intervention. It succeeded in widening the scope of legitimate armed intervention by licensing some (protective) interventions but only because it was seen as a leash against other (exploitative) interventions. This chapter traces the origins of the R2P doctrine in the Kosovo and ICISS reports, highlights the special features of the 2005 Outcome Document, notes how the doctrine was strengthened in practice by careful attention to non-coercive measures in Myanmar, Kenya, and Guinea, and then examines the landmark case of its use to sanction and then intervene against Gadhafi’s regime in Libya in 2011. The chapter concludes by drawing lessons for the revision and revival of this important contribution to human security.

Keywords: responsibility to protect, Kosovo, ICISS, Libya, sanctions, armed intervention

On 17 March 2011, the United Nations Security Council authorized ‘all necessary means’—the UN words signifying armed intervention—against Muammar Gadhafi’s Libya. Was this a justifiable act of global humanitarian protection? The casualties experienced were nowhere near the level of past humanitarian crises that warranted intervention, such as Bangladesh in 1971 (200,000–300,000 deaths; 8 million refugees) or Rwanda in 1994 (800,000 deaths). The eminent political philosopher of just war theory, Michael Walzer, thus argued that Libya did not qualify as a humanitarian intervention because it was not a genocidal massacre like Rwanda; and surely he was right.1 He then reasonably concluded that it was instead just an ordinary rebellion against a typical tyrant, but one incapable of succeeding on its own. Intervention, he suggested, was not justifiable.

I think we can agree that it was not justifiable as a classical humanitarian intervention against a massacre of the kind that any well-meaning state would have the right, and perhaps duty, to stop by overriding the non-intervention norm. It was more preventive than reactive. It was also more proactive and dependent on multilateral, procedural legitimacy than most just war thinking would have envisaged. It was, instead, something new, an application of the responsibility to protect (R2P)—a new norm for humanitarian protection, one that includes the possibility of military intervention, and a newly legitimate moral minimum of global order. Importantly, with Security Council authorization, it adds legality to morality. This UN-authorized protection replaces, under special circumstances, the massacre standard underlying traditional humanitarian intervention.

R2P evolved out of the failures to protect the populations of Rwanda (1994) and Bosnia (1992–5) and NATO’s decision to intervene in Kosovo (1999). R2P has been invoked, explicitly and implicitly, successfully and unsuccessfully, in cases ranging from (p. 674) Myanmar and Kenya in 2008, to Guinea in 2009, and then recently, and controversially, for Libya in 2011. And the intervention in Libya has had significant negative consequences for international protection for Syrians since 2011.

R2P is both a licence for and a leash against forcible intervention. It succeeded in widening the scope of legitimate armed intervention by licensing some (protective) interventions but only because it was seen as a leash against other (exploitative) interventions.

R2P has thereby contributed to the increasing pluralism, contested and contestable, of the normative architecture of world politics. This confusion may reduce as R2P norms become better institutionalized in the UN, reshape the discourse of international ethics, and are accumulated in customary law. In any case, where the alternative to pluralism is a clarity that either abandons vulnerable populations or imposes unrealistic expectations of enforced human rights, contestation is a step forward. R2P can now be a resource for responsible policy, and it is the best we are likely to get if we continue to care about both vulnerable populations and national sovereignty.

Significantly, R2P now constitutes a moral minimum limit to global pluralism. States should respect and attempt to further the full range of human rights as expressed in the two covenants on civil and political rights, and economic, social, and cultural rights. But what they also now must do, or be liable to enforcement action, is to protect their populations from genocide, crimes against humanity, war crimes, and ethnic cleansing. The meaning of sovereignty has changed. States are still sovereign, independent in their domestic affairs, but they are no longer free to commit one of those four crimes without risk of legitimate international constraint.

More than 150 Heads of State and Government (on behalf of the entire UN membership of 191) affirmed R2P as part of the World Summit Outcome Document at its 2005 Summit.2 R2P’s core commitments are expressed in two key paragraphs, which are worth quoting:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it… .

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and [if] national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

(p. 675) The paragraphs identify what have been called three ‘pillars’ of R2P.3 The first is the responsibility of each state to protect its own population. The second is the responsibility of the international community to assist states. The third, and the most striking, is the residual responsibility of the Security Council to take timely and decisive action if a state fails to protect its own population from war crimes, crimes against humanity, ethnic cleansing, or genocide.

These paragraphs appear revolutionary, and they have created much controversy. Indeed, the pillar 3 responsibility of the doctrine of R2P reshapes established non-intervention norms embedded in international law and ethics-norms that were designed to maintain national jurisdiction free from external intervention.

The Origins and Evolution of the R2P Doctrine

Humanitarian intervention pits the protection of global humanitarian rights against national self-determination and sovereignty. Its recent evolution as the international legitimacy norm of R2P both reflects those tensions and helps to reconcile them. R2P builds on, but narrows, humanitarian military intervention doctrine in ways that expand international legitimacy and address many, but not all, sceptics of humanitarian intervention.

International law prohibits any threat or use of force against a state’s ‘political independence or territorial integrity’4 and protects the domestic jurisdiction of states against even UN intervention5 unless the Security Council authorizes such intervention for the sake of stopping or preventing threats to the peace, or breaches of the peace or acts of aggression6 in order ‘to maintain or restore international peace and security’. Domestic abuses do not automatically threaten international peace. Security Council members have frequently divided over whether some abuses constituted international threats, splitting for example the United States and the United Kingdom over Palestine in 1947 and the West from African states, backed by the USSR, over abuses in southern Africa in the 1960s.7 Pushing back against this protection of domestic sovereignty, of course, are the provisions of the Genocide Convention and the actual discretion that the Security Council exercised repeatedly in the 1990s, regularly defining ‘international’ to include a wide array of domestic emergencies including authorizations to deliver humanitarian assistance, enforce civil war ceasefires, and even restore democracy, as in Haiti in 1994. While the Security Council authorized these interventions, many states in the Global South began to perceive an alarming expansion of the Security Council’s asserted jurisdiction.8

The international ethics embodied in the just war tradition also reflects contradictory norms, protecting national self-determination and permitting humanitarian rescue of peoples from atrocity crimes.9 National sovereignty is what permits peoples to express (p. 676) their rights to self-governance. Yet, when peoples are subject to crimes against humanity, common human solidarity calls out for rescue.

The Kosovo crisis was a watershed event in the reformulation of the doctrine of humanitarian intervention. When the UN did not protect the Kosovars, NATO did. US President Bill Clinton, echoing earlier promises by British Prime Minister Tony Blair, announced a ‘Clinton Doctrine’ to the assembled NATO peacekeeping (KFOR) troops on 22 June 1999, following their successful, though belated, occupation of Kosovo:

Never forget if we can do this here, and if we can then say to the people of the world, whether you live in Africa, or Central Europe, or any other place, if somebody comes after innocent civilians and tries to kill them en masse because of their race, their ethnic background, or their religion, and it’s within our power to stop it, we will stop it.10

UN Secretary-General Kofi Annan three months later also endorsed the principle of humanitarian intervention, but highlighted a dilemma: the requirements of international law—consent by a state, individual or collective self-defence, or Security Council authorization—were missing in the Kosovo campaign. The imperative of ‘halting gross and systematic violations of human rights’ had clashed with ‘dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents, and in what circumstances’.11 Both the Blair–Clinton doctrine and the Annan dilemma alarmed developing states of the ‘South’, which feared that humanitarian concern might be used as a pretext for imperial intervention. The G77 (132 states of the South) condemned ‘the so-called right of humanitarian intervention’ in paragraph 69 of their Ministerial Declaration of 24 September 1999, three months after the NATO intervention.12 The Non-Aligned Movement (114 countries of the South) was deeply divided, with Islamic countries overwhelmingly supportive of the NATO intervention, and non-Islamic ones (led by Cuba, Belarus, and India) opposed.13

The Kosovo Commission (sponsored by the government of Sweden) was then asked to write an objective, international, and non-governmental report to assess the intervention. It famously concluded that the intervention was ‘illegal but legitimate’. It was not an act of self-defence and it lacked the needed Security Council approval under UN Charter Article 39, but it was a legitimate humanitarian rescue in the eyes of the commission of notables. In making the judgement the Commission defined what it saw as relevant ‘threshold principles’ for a genuine ‘humanitarian intervention’:

The first is severe violations of international human rights or humanitarian law on a sustained basis. The second is the subjection of a civilian society to great suffering and risk due to the ‘failure’ of their state, which entails the breakdown of governance at the level of the territorial sovereign state.14

The principles still were noticeably wide (‘international human rights or humanitarian law’), and they allowed for unilateral action if the Security Council would not act, albeit as a last resort. The Commission did not assuage the concerns of the South.

(p. 677) In an effort to include more viewpoints from the Global South (and more representation from former government officials), Canada supported a new and more ambitious commission, one co-chaired by Mohammed Sahnoun and Gareth Evans. The International Commission on Intervention and State Sovereignty (ICISS) reframed the debate as ‘responsibility to protect’ rather than a ‘right’ to intervene and, by dint of numerous meetings at the regional level around the world, built a multilateral coalition. Building on former Sudanese Foreign Minister Francis Deng’s articulation of a ‘responsibility to protect’ for internally displaced persons, they identified a dual responsibility: that of governments to protect their own inhabitants and then, should governments fail to do so, a residual international responsibility.15 International responsibility had three parts: to prevent, to react, and to rebuild.

Compared with the Kosovo report, the ICISS report narrowed the triggers for action to the threat of or presence of ‘large scale loss of life’ whether by action or inaction of states and ‘large scale ethnic cleansing’. Building on classic just war doctrine underlying humanitarian intervention, the Commission specified ‘right intention’, ‘just cause’, ‘proportionality’, and ‘right authority’ as further qualifiers on when international force could be used if states failed to meet their responsibility to protect their own populations. ‘Right authority’, furthermore, was specified ideally as the UN Security Council. ‘No better or more appropriate’ authority could be found, but, at the same time, it was not the last word. In ‘shocking situations … concerned states … may not rule out other measures’ if the Security Council does not act. And ‘the Security Council should take note’.16 The ICISS had narrowed the triggers and the authority, but in 2001 much of the Global South was still alarmed. Secretary-General Annan personally welcomed the report, but no UN venue would host its formal New York presentation in 200117 (the Commission unveiled its report in a hotel across the street from the UN).

This record reveals the significance of the 2005 Summit Outcome Document paragraphs (quoted in the introduction and analysed elsewhere in this Handbook) that won the unanimous assent of the assembled Heads of State and Government. Paragraphs 138–9 reflected four additional years of assiduous lobbying and doctrinal adjustment, overcoming the significant distrust of the international community to any intervention following the 2003 invasion of Iraq.

R2P is both a licence and a leash. The two paragraphs broadened the norm of legitimate intervention beyond the limited authority outlined in customary international law and the UN Charter’s authorization to avert threats to ‘international peace and security’. They also narrowed the triggers for R2P from ‘international human rights’ or ‘large scale killings’ (the triggers specified by the Kosovo and ICISS commissions) to four specific crimes: ‘genocide, war crimes, ethnic cleansing and crimes against humanity’. To emphasize the point, these four specific elements are repeated five times in the original two paragraphs. In addition, the assembled states removed the ambiguity in authorization found in the earlier reports and clearly restricted ‘right authority’ to use coercive means to the Security Council when it contemplates ‘collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis’.18 The UN reaffirms the importance of state (p. 678) responsibility and the triad of prevention, reaction, and rebuilding, and that R2P is a ‘responsibility’—though only undertaken on a ‘case-by-case’, hence discretionary, basis.

The Practice of R2P

The practice of R2P has been crucial in assuring two sets of sceptics: those who seek to reduce global protection because they fear neo-imperialism and those who want to increase global protection and doubt the effectiveness of working through the UN system. In all the cases discussed here, while coercion was in the background, precluding international armed intervention was the key to R2P success and to its widening political support.

The first test for the UN was, ironically, passed by inaction, when it did not intervene in Myanmar to rescue the population from the effects of Cyclone Nargis in May 2008. After the hurricane struck and when news of the government’s inability or unwillingness to deal with the disaster circulated, French Foreign Minister Bernard Kouchner and former Australian Foreign Minister Gareth Evans called for action. Evans commented: ‘When a government default is as grave as the course on which the Burmese generals now seem to be set, there is at least a prima facie case to answer for their intransigence being a crime against humanity—of a kind which would attract the responsibility to protect principle.’19 Evans himself soon changed his mind, and cooler heads in the UN Security Council and the Secretariat prevailed. Widespread loss of life and government incapacity to rescue—both of which were manifest and which were triggers for ICISS’s responsibility to protect—were not the triggers for United Nations R2P. And to treat them as such would have undermined the thin support R2P had achieved at the 2005 Summit. ‘Crimes against humanity’, the closest potential trigger, included murder, extermination, enslavement, and other crimes evidencing ‘widespread or systematic attacks on the civilian population … part of government policy … a consistent plan’.20 The loss of life appeared to be widespread, but there was no evidence of a consistent plan, an intentional ‘policy’ designed to deprive parts of the population of the means of life. Eventually regional diplomacy secured access—too late for many victims, but ‘late enough’ to permit slow-moving regional diplomacy to work, and thus to preserve the thin political coalition behind R2P.

Kenya in 2008 and Guinea in 2009 were also crises shaped by R2P—but implicitly, not explicitly. This indeed might be the doctrine’s strongest claim: it provides an option whose mere existence encourages consensual resolutions of crises.

In Kenya, Kofi Annan, former UN Secretary-General, Benjamin Mkapa, a former Tanzanian president, and Graca Machel, a Mozambican liberationist and wife of former South African President Nelson Mandela, served as a mediation team. Their task was to halt ethnic killing sparked by the widely contested re-election of President Mwai Kibaki, in which opposition leader Raila Odinga claimed to have been robbed of victory. Approximately 800 people were killed and some 260,000 others were displaced across (p. 679) the country, in a wave of deadly rioting and ethnic killings.21 Kouchner again invoked the specific language of R2P.22 Annan, however, while later acknowledging that he ‘saw the crisis in the RtoP prism with the Kenyan government unable to contain the situation or protect the people’, did not use that language directly with the Kenyan government. He did not need to. Governments in Africa, Europe, and the United States were sending the same message of concern, backed with cuts, or threatened cuts, in government foreign aid (humanitarian aid continued). Moreover, Annan has noted that the leadership in Kenya knew that R2P was now part of the Security Council arsenal, available if their intransigence provoked sufficient international will to invoke it.23

The September 2009 crisis in Guinea involved coup leader Captain Dadis Camara’s troops rioting against a peaceful demonstration. The international community mobilized again. Secretary-General Ban Ki-moon condemned the violence and set up a UN Commission of Inquiry. The Commission report raised the possibility that ‘crimes against humanity’ had been committed by Camara’s troops. The United States and the European Union suspended economic assistance. Camara was attacked by one of his own officers (whom Camara may have planned to be the scapegoat for the earlier violence) and fled the country for medical assistance. An interim government initiated steps towards a democratic election with international support.24

Libya

The March 2011 UN-authorized and NATO-led intervention in Libya was the doctrine’s most important test case and first use of armed intervention. In classic United Nations Security Council language authorizing force, resolution 1973 of 17 March 2011 authorized UN Member States to ‘take all necessary measures … to protect civilians and civilian populated areas’ in Libya, including by establishing a no-fly zone and enforcing an arms embargo against Colonel Muammar Gadhafi’s regime.25

The resolution thus gave teeth to the much-heralded R2P as only the third time since the Security Council had invoked the doctrine to enforce the protection of civilians. The first case was to authorize an arms embargo over the Sudan in 2005. The second case had occurred only weeks earlier, when resolution 1970, the Security Council’s first resolution, targeted Gadhafi’s crackdown against Libya’s rebellion by calling for financial sanctions, an arms embargo, and a referral to the International Criminal Court (ICC) for criminal prosecution. Significantly, resolution 1970 passed unanimously (that is, with the support of Russia, China, Brazil, and South Africa—all later sceptics about forcible intervention in Libya). Resolution 1973 marks the first Security Council approval of force in the name of R2P (notably with abstentions, though not negative votes, from Russia, China, Germany, India, and Brazil). And this became controversial, putting R2P itself in peril.26

Even a few years later, it is still far too early for an accurate assessment (we still lack the archives and insiders’ full accounts), but humanitarian rescue against war crimes and (p. 680) crimes against humanity seems to offer the best justification for the Libyan intervention. Gadhafi’s regime had alienated a wide swath of Libyan society, provoking in the UN’s later assessment ‘an almost intolerable amount of uncertainty, oppression, and serious abuse into the daily lives of citizens’. This reflected years of ‘nontransparent allocation of resources … a sense of relative deprivation among Libyans’, provoked by the looting of Libya’s oil wealth in ways that sustained the army, the regime, and Gadhafi’s personal and familial coterie while abandoning the rest of the population.27

As the conflict escalated, the prosecutor of the ICC (to whom the case had been referred by the Security Council) found what he regarded as reasonable evidence of serious crimes. Gadhafi and his confederates were alleged to have committed deportations, rapes, forcible attacks on non-combatants, and the destruction of religious and other non-military buildings. Noting the efforts by Gadhafi’s forces to cover up the crimes by hiding and destroying bodies, the prosecutor acknowledged the difficulty of accurate body counts, but suggested that the best evidence was that 500 to 700 had died in February 2011; the regime claimed ‘only 150 or 200 died … and half of them security forces’.28 In the month that followed, Gadhafi and his sons were reported to have made threats of merciless expulsion, ‘house to house’ searches, and extermination against the rebels, their supporters, and perhaps the entire city of Benghazi.29

President Nicolas Sarkozy of France and Prime Minister David Cameron of the United Kingdom took the lead. Both were alarmed by the humanitarian crisis emerging as Libyans stood up against Gadhafi. Sarkozy may have been motivated in part by a wish to escape the scandal of his government’s alleged dealings with the corrupt Libyan and Tunisian regimes; Cameron, by a desire to be seen to be acting independently of the United States in order to escape the shadow of Prime Minister Blair’s perceived dependence on President Bush.30

Other countries, including Russia and China, were deeply influenced by the demands for action from the developing world, and even more by defection of Libya’s ministers of the interior and of justice and especially of Libya’s two leading diplomats at the UN, who denounced the regime’s killing of innocent demonstrators and called for intervention. Especially influential at the Security Council itself was Libya’s permanent representative. Like most diplomats, the members of the Council were sceptical of casualty reports and they knew of the rivalries between Gadhafi and members of the Arab League that lurked in the background of the League’s denunciations of Gadhafi. But the Gadhafi family’s own reported phrases—such as calls to deal with the ‘cockroaches’ (astoundingly reminiscent of the genocide rhetoric from Rwanda 1994)—and the pleas of the Libyan Deputy Ambassador Ibrahim Dabbashi and Ambassador Abdel Rahman Shalgam were decisive. The ambassadors, well known in the UN and Gadhafi appointees, made unforgettable denunciations against the growing depredations of the regime and the urgent necessity of stopping them.31

The United States initially cautioned against action, as Secretary of Defense Robert Gates expressed the lack of US interest in Libya. France and the Arab League proposed a no-fly zone on 15 March. But soon thereafter, Washington reversed itself and insisted on a full air campaign to protect Libyans threatened by Gadhafi’s regime. On 28 March, (p. 681) reacting to mounting casualties, President Obama summarized the case for armed action, in increasing order of importance:

  1. 1. The threat to regional stability in Egypt and Tunisia and the need to stand with the popular forces in the region.

  2. 2. Qaddafi’s record of ‘extreme violence,’ launching jets and helicopters against civilians, cutting off of water for tens of thousands in various towns including Misrata, shelling cities and towns, unleashing gunships on the people and raiding homes and hospitals. (When his record of arbitrary arrests, torture and ordering of rapes was added in, all these led to the ICC arrest warrants.)

  3. 3. Most important was the threat of worse to come: the looming slaughter in Benghazi that could ‘not wait one more day.’32

Following just war traditions, the intervention seemingly enjoyed just intentions, necessity (last resort, at least for Benghazi), and reasonable prospects of success. Gadhafi’s air defences were weak and the United States and NATO could utilize Italy and sea-based naval airpower to interdict the Libyan air forces and dominate relevant airspace conveniently concentrated along Libya’s coast.

Proportionality is more complex. The intervention in Libya joined legality (Security Council approval) to legitimacy (the cause of protecting civilians). But, as described earlier, it still strained against the letter-of-the-law role that the Charter assigns the Security Council and risked going beyond (as it did) the protection of civilians that R2P envisages. It also remained ethically problematic unless it had a good prospect of resolving the crisis without further large loss of life and leaving behind a viable, legitimate, and rights-respecting Libyan polity. All these issues provoked concerns and revealed a series of tensions and problems that will shape the Libyan intervention’s legacy.33

The first problem is a lack of clarity about when to invoke pillar 3 of R2P. When does the gravity of the crimes rise to a level warranting intervention? How reliable is our information? The key to the indictment of Libya under R2P in this case had to be threats, because much violence was averted. Post-war surveys by the Red Cross and other humanitarian agencies found a total of fewer than 3,500 accountable deaths—in the ‘hundreds’ in major cities, not thousands. Yet the National Transitional Council (NTC), the recognized interim governing body for Libya during and immediately after the conflict, claimed 30,000 to 50,000 deaths.34 Still, the Libyan conflict is closer in casualty level to Kosovo than to Bosnia or Croatia, not to speak of Rwanda. It was the threat of expulsions and massacres that seems to have justified the action, not the numbers already killed.35 The case for action became persuasive when the Arab League, the Organization of Islamic Cooperation, and other regional organizations spoke out in favour of intervention, including directly to the Security Council, and individual Libyan diplomats and officials resigned in protest.

The second problem was equally grave: a lack of strategic doctrine on how to design protection, distinguishing strategic scenarios and fitting remedies to harms. The strategic scenario in March was a likely stalemate. Gadhafi probably would have been able to (p. 682) conquer the rebel capital Benghazi with his air force, artillery, and armour in the lead, but the commencement of allied intervention destroyed the air force and protected the civilian population from large-scale attacks. On the other hand, it was not clear that the rebels could conquer the country even if Gadhafi’s air force was neutralized, unless international arms or forces on the ground aided them—aid not explicitly authorized by resolution 1973, which only permitted the protection of civilians. President Obama hoped, as the UN Security Council strategy envisaged, that economic sanctions would undermine Gadhafi’s regime, but Gadhafi had too much loose cash and gold for the sanctions to gain traction anytime soon.

This led to unpalatable alternatives: If Gadhafi stopped victimizing civilians and retained power while the rebels maintained their own territory, would partition have provided a workable solution? If Gadhafi and the rebels could not achieve political agreement, could the international community see itself as ethically holding the ring, watching the casualties mount, while the two sides battled it out with small arms? Or should the interveners have brushed aside the restrictions of the Security Council resolution and aided the rebels and toppled Gadhafi?

Obviously, the third option was chosen. Qatar provided funds, possibly arms; the United Kingdom and perhaps France added ‘trainers’ on the ground for the rebels, and others, including possibly some Americans, served as bombing spotters and air coordinators. The air campaign went after targets—headquarters, communications, troop and arms depots—remote from areas directly inflicting harm on civilians.

This was all arguably necessary to end the crisis. And some of it was authorized. Resolution 1973 authorized ‘all necessary means’ to protect not just civilians but ‘civilian populated areas’—including against ‘threats’. It also, in the much-disputed paragraph 4, qualified the arms embargo of SCR 1970 (‘notwithstanding paragraph 9 of resolution 1970’) in words that its proponents argued permitted arms shipments to the rebels. Ambassador Susan Rice is said to have warned the other members of the Security Council that wide, not narrow, interdiction of Libyan military assets would be undertaken.36

But the tactical use of NATO airpower to support the rebel offensive against Tripoli, the bombing of Libyan TV, and the attempted assassination by drone of Gadhafi himself arguably strained against the protecting civilian logic of R2P.37 It also undermined the ‘Immaculate Intervention’ contemplated by Russia, China, and other supporters of R2P and the negotiated transition envisaged by resolution 1970 and still hoped for by those who chose not to vote against resolution 1973. To the critics of the intervention, the way force was used for regime change discredited the legal authorization of R2P, which was limited to protecting civilians.

The distinction between protection of populations and ‘regime change’, however, confuses at least five different pillar 3 strategic scenarios.

  1. 1. An oppressive but strong regime that is violating R2P and a weak and or divided opposition. This calls for pressure and persuasion in the direction of reform, for (p. 683) example, by economic sanctions. This was the anticipated scenario shaping the unanimous Security Council resolution 1970 in February 2011.

  2. 2. An oppressive, strong, and violent regime that is victimizing its populations but that is also vulnerable to external military pressure for the purpose of protecting civilians, such as Libya was judged to be in March 2011, with resolution 1973, by Russia, China, Brazil, India, Germany, and South Africa.

  3. 3. A country that has split into a civil war among powerful belligerents, each of which enjoys popular support and each of which is violating R2P. This scenario calls for sanctions or force and diplomacy in order to mediate a comprehensive peace settlement, followed perhaps by UN peacebuilding. Something like this occurred in El Salvador in the 1980s and 1990s, and in Cambodia and Mozambique in the 1990s.

  4. 4. A discredited regime violating R2P that has lost the overwhelming proportion of bureaucratic and popular support, and faces a nearly unified opposition. In these circumstances, the opposition should be recognized and assisted in its efforts to overthrow the pre-existing regime. This was the US, British, and French view of Libya in March 2011.

  5. 5. A regime that has lost all support and is committing R2P violations, but the opposition to which is also divided and cannot govern. Then what is needed is a multilateral enforcement operation followed by a temporary UN peacebuilding trusteeship, as occurred in Kosovo in 1999.

Libya in 2011 was scenario number 4 (and then as the rebels spilt, 5). But members of the Security Council could agree only to plan for scenario 1 and then 2, and were not prepared to change when events on the ground changed, whence the subsequent strife and recrimination.

A third problem was how to manage the intervention. How can one preserve multilateral principles of impartial administration when enforcement must be delegated to the militarily competent—usually to NATO?

Security Council members complained of a ‘blank cheque’ to NATO. NATO members wondered whether the intervention could be seen as a low-cost model for future protection. But it was not quite so promising. The United States, while officially, in President Obama’s widely noted phrase, ‘leading from behind’, had to take the early lead in destroying Gadhafi’s air force and air defences, then continue to carry the load in refuelling, logistics, air rescue, and drone attacks. France, the United Kingdom, Denmark, and Norway carried the bulk of the air combat burden. (The absence of Germany and Turkey was keenly felt.) In the process, NATO ran out of ammunition and exhausted its contingency budgets. For NATO, it became a ‘success’ that could not be readily repeated.38 For the UN, procedures need to be established that allow the Security Council to remain in political control while delegating military implementation to those who can implement—not an easy balance. Brazil is exploring the development of new standards of ‘responsibility while protecting’, but little progress is evident.

(p. 684) The fourth problem was how to assist former victims to become an effective and humane government, and thereby avoid another cycle of repression and war. This was the endgame in Libya itself. Could the transitional authorities establish a legitimate and rights-respecting regime?

It would be a sad outcome if the new regime simply replicated Gadhafi’s style of oppression. Ian Martin, the newly appointed special representative for Libya, accurately diagnosed the disintegration of the Libyan state and society and the barely coordinated chaos that characterized cooperation among rebel militias.39 Drawing on lessons from UN peacebuilding elsewhere, he proposed an extensive peacebuilding programme to help reconstruct it. He sensibly included the need for monitoring (200 unarmed military observers and 190 police advisers), a major role in assisting elections, and an unspecified continuing role for NATO. When the plan was leaked in 2011, the NTC rejected it as much too intrusive. This was by past standards a light ‘footprint’, but even it was too much for the loose coalition that constituted the NTC. Deferential, as it so often is, the Security Council backed down and the NTC dictated the terms of initial assistance.40

By late 2012, the record was mixed. Local authorities were victimizing African and Berber minorities in the far south and west of Libya, and the militias in control of Benghazi were reluctant to cede power. Tripoli appeared to function best, but it too was subject to militias holding neighbourhoods hostage. All awaited with hope the emergence of an alternative to militia rule. The NTC rejected the heavy UN footprint (on the East Timor model) that Martin planned, and then Libya’s future was nearly completely in its own hands.41 The situation on the ground continued to deteriorate. By 2014, the Libyans had yet to establish a functioning government and billions in accumulated funds had been squandered.42

Protection after Libya

An assessment of the Libyan intervention highlights wider implications. On the one hand, R2P and the Libya precedent have ‘solved’ the genocide problem. This does not mean that future genocides have been prevented, but that new standards preclude the trap of a genocide threshold for protection. The Darfuri suffered while the International Commission of Inquiry on Darfur to the UN researched. Months of interviewing produced an accurate conclusion that Darfur did not then constitute ‘genocide’. Darfur slaughters lacked the intention to kill on the basis of race or ethnicity or religion—the standards required by the Genocide Convention—and then nothing happened, despite a documented record of crimes against humanity and war crimes.

With R2P, we now have a new more credible standard for international protection. It is more restrictive than Security Council practice of intervention in the 1990s, when anything that could muster the right votes passed, and more restrictive than the ‘human rights’ abuses set by the Kosovo Commission or the indefinite ‘large scale deaths’ of the ICISS. But it is less restrictive than Chapter VII of the Charter (‘international peace’) (p. 685) or the genocide standard of the Genocide Convention. R2P includes genocide, ethnic cleansing, crimes against humanity, and war crimes. But procedurally—and unlike the doctrines enunciated by the Kosovo Commission and ICISS—R2P avoids unilateral exploitation by the requirement of Security Council multilateral authorization. This is a reasonable combination of substantive licence and procedural leash.

On the other hand, Libya has wounded R2P. To gain approval for the intervention in Libya, Western nations secured a resolution that passed with ten votes in favour and no vetoes. But the legitimacy, in the sense of wide support, was not fulsome. There were abstentions from the not insignificant countries of Brazil, China, Germany, India, and Russia. Brazil, Germany, and India are seeking permanent membership on the Security Council, as is South Africa and, though it voted for resolution 1973 while on the Council, it opposed what it saw as regime change in the intervention. The Arab League supported the intervention, but only the United Arab Emirates and Qatar provided any assistance. The African Union condemned Gadhafi’s violence, but it also condemned the air strikes.

Despite their support for sanctions against Gadhafi, the most committed defenders of national sovereignty, such as India, Brazil, and South Africa, are particularly alarmed. They rightly note that none of the veto-wielding permanent five—United States, United Kingdom, France, China, and Russia—or their close allies will ever be subject to R2P sanctions. So whatever happens in conflicts between Israel and Palestine, that conflict—unlike other conflicts in the Middle East, Africa, or Asia—is shielded from R2P sanctions by US support for Israel. And the fact that crises in Tibet and Chechnya are similarly immune from protection assuages none of these critics. The only response is to acknowledge that the world remains unequal, and R2P cannot itself correct that. It does restrict unilateral imperialism, because all Security Council interventions must have the support of diverse permanent members and at least four votes from the non-permanent members. The real question is whether one wants to have a norm that helps protect some (as in Benghazi) even if it cannot protect all.

The costs of Libya may now be visible in Syria. The dissenters on the Security Council felt that they had been hoodwinked and sold a protection intervention that turned into a regime change intervention. These costs are not to be measured just by the Russian veto on Syrian resolutions. Neither Russia nor China has been prepared to abstain on resolutions presented by the United States and the Europeans to sanction the Assad regime and both, in fact, vetoed resolutions, carefully negotiated in advance to limit their impacts.43 Nonetheless, as leading scholars of R2P have argued,44 the specifics of the case count. Russia would have vetoed sanctions against its Syrian ally (one of the few it has in the Middle East) no matter how immaculate the Libyan intervention had been. Nor is it the case that the general principle of R2P has significantly lost its attraction. The principle has continued to gain large majorities in support; it has been applied in less controversial crises such as Mali and the Central African Republic; and the elements of protection against war crimes, crimes against humanity, genocide, and ethnic cleansing are ever more widely affirmed in Security Council, General Assembly, and Human Rights Council resolutions.45

(p. 686) Instead, two factors impeded protection. The first was the moral complexity of the Syrian civil war. Unlike Gadhafi in 2011, the Assad regime retained the support of the bureaucracy, the army, and large parts of the Syrian population (especially among the Alawite and other populations who fear the Sunni and the extremist rebels more than they do the Assad regime). Any Security Council intervention would have needed to focus on Chapter VII sanctions on trade, finance, and arms that would have incentivized both the Assad regime and the rebels to genuinely negotiate in Geneva (scenario 3, presented earlier). But, second, trust in pillar 3 enforcement of R2P by the Security Council in controversial cases has also eroded, making it politically easier for Russia and China to veto and for Russia to continue to arm the Assad regime. This also makes it more difficult for Arab states, the United States, and the Europeans to override Syrian sovereignty in the name of protecting the Syrian population from the depredations of the Assad regime and some of the rebels.

With action effectively stymied at the Security Council, the erosion of R2P was also reflected in General Assembly votes condemning Syria for human rights violations from A/RES/66/176, December 2011, to A/RES/68/182, December 2013. All passed with substantial majorities and few (12 or 13) negative votes. What was striking was the large numbers of abstentions (43, 31, 36) and when ‘responsibility to protect’ was specifically referenced (as in A/RES/67/183) and even A/RES/68/182 in the context of denouncing the use of chemical weapons, the abstentions climbed to 59 before falling to 47. Despite deaths climbing over 190,000 (more than ten times the Libyan numbers) and refugees over 2.9 million, it took three years for the Security Council46 to permit humanitarian assistance to cross Syrian borders impartially—to aid either rebels or government populations—without the permission of the Assad regime (heretofore denied).

We need to find remedies for the confusions of R2P soon. Failing to learn these lessons makes innocent Syrians today and others in the future bear the costs of the learning exercise that the international community should have already begun in order to make R2P genuinely responsive and responsible.47

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                                                                                    Notes:

                                                                                    (4.) UN Charter, Article 2(4).

                                                                                    (5.) UN Charter, Article 2(7).

                                                                                    (6.) UN Charter, Article 39; Dinstein 2005.

                                                                                    (7.) Goodrich et al. 1969, pp. 296–7.

                                                                                    (17.) At Secretary-General Kofi Annan’s request, I approached the President of the General Assembly to see whether a room could be found. The GA President’s then chief of staff, Ban Ki-moon, after checking with the group heads, determined that a UN venue could not be allocated for something so controversial.

                                                                                    (18.) UN Charter, para. 139.

                                                                                    (23.) For his later reflections, see Cohen (2008). For his reluctance to use the term with the government, I rely on my interview with Kofi Annan, 14 April 2010, in New York, in which he said there was ‘no direct reference to RtoP’. But Annan did warn the government that the entire region was concerned and that a continuation of the crisis would disrupt the whole region.

                                                                                    (28.) Office of Prosecutor ICC 2011.

                                                                                    (31.) Interview with a permanent representative and Security Council member, 31 October 2013; and another interview with Ambassador Peter Wittig, Germany’s permanent representative, 11 November 2013.

                                                                                    (33.) Interview with a permanent representative and Security Council member, 31 October 2013; and another interview with Ambassador Peter Wittig, Germany’s permanent representative, 11 November 2013.

                                                                                    (36.) According to a senior adviser at the US Mission to the UN, personal interview 2013.

                                                                                    (47.) This chapter draws on material in Doyle 2015. The chapter benefited from the suggestions of Maggie Powers and Garrett Brown, Adrian Gallagher and Matt Sleat, and other members of the seminar convened at Sheffield University in May 2014. At a seminar at Harvard Law School, the chapter also benefited from the suggestions of Dr Ed Luck, the Secretary-General’s Special Adviser on R2P, who did so much to refine and garner support for the doctrine during Secretary-General Ban Ki-moon’s administration of the UN.