Caitlyn Duke, The University of Queensland, Australia
Caitlyn is a third year BA/LLB student at the University of Queensland, Brisbane, Australia, majoring in Peace and Conflict Studies. She works as a Paralegal in the Projects team at King&Wood Mallesons.
The 2011 intervention in Libya was the first time the United Nations Security Council (UNSC) authorised the use of force, couched in the norm of the Responsibility to Protect (R2P), against the wishes of a functioning state. This application of R2P, implemented through UNSC Resolution 1973 and led by the North Atlantic Treaty Organisation (NATO), was ultimately a failure. Although the NATO forces succeeded in protecting Libyan civilians from the violent regime, the motivations behind the intervention were not aligned with the ideological principles of the R2P norm, as NATO intervened with the intention to overthrow Muammar Gaddafi’s authoritarian regime. This paper will seek to first explain the R2P norm, followed by a consideration of the political environment within which it was applied in Libya in 2011. It will conclude with a critical analysis of NATO’s interpretation of UNSC Resolution 1973.
Assessing the Responsibility to Protect Success in Libya
UNSC resolution 1973 is considered by many (see Garwood-Gowers, 2013) to be a key example of R2P in action. Formally defined by the International Commission on Intervention and State Sovereignty (ICISS) in 2001, the R2P is ‘premised on the idea that sovereign states not only have the primary responsibility to protect their peoples, they also have a collective extra-territorial responsibility to protect populations from mass atrocities everywhere’ (Nuruzzaman 2013, p.58). In 2005, when the recommendations of the ICISS report and the notion of R2P were formally debated by the UN General Assembly, the norm was refined to ‘the responsibility to use appropriate diplomatic, humanitarian and other peaceful means … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’ (United Nations General Assembly 2005, paragraphs 138-39). Further, in January 2009 a report by the Secretary-General titled Implementing the Responsibility to Protectoutlined a three-pillar strategy for advancing the agenda mandated by the Heads of State and Government at the 2005 Summit: Pillar I is ‘the enduring responsibility of the State to protect its populations’, Pillar II, ‘the commitment of the international community to assist states in meeting those obligations’, and Pillar III denotes ‘the responsibility of Member States to respond collectively in a timely and decisive manner when a State is manifestly failing to provide such protection’ (UN General Assembly, 2009, A/63/677).
According to Thakur, ‘Libya, in 2011, provided an opportunity to convert the noble sentiments and solemn promise of R2P into meaningful action’ (2011, p.15). It was thus through the lens of the refined definition that the UNSC passed Resolution 1973, which authorised Member States to ‘take all necessary measures’ to protect civilians who were under threat of imminent attack in Libya, and also implemented a no-fly zone over the conflict areas of Libya (UN Resolution 1973). Although there is no explicit reference to R2P in the operative provisions, the preamble to the resolution states that the UNSC ‘reiterates the responsibility of the Libyan authorities to protect the Libyan population’ (UNSC, 2011). This sets the tone for a clear theme of R2P throughout the operative provisions of the resolution. Importantly, Resolution 1973 was the first time the UNSC authorised intervention without host state consent (Bellamy, 2011).
The swift implementation of UNSC Resolution 1973 was necessary as the situation in Libya was continually deteriorating. The 2011 Libyan crisis was essentially an uprising against the regime of Colonel Muammar Gaddafi, who had led Libya for over forty years after a successful military coup on 1st September 1969 (Joffé, 2013). Gaddafi led Libya via a political system of his own creation known as a Jamahiriya (a ‘state of the masses’), whereby the people were theoretically sovereign (Joffė, 2011). Libyan citizens governed by expressing their views at small local gatherings and voting on matters at Basic People’s Congresses, which would then progress to the national General People’s Committee. However, in practice, only 10 per cent of Libyan people exercised their right of direct democracy over the Libyan body politic (Joffé, 2013). Through this system, Gaddafi technically had no ‘political, administrative, and traditional duties’ (Hajjar, 1980, p.185), yet he still ruled Libya with an iron fist, made all important decisions himself, and retained all power within a small state elite (Vandewalle, 2011). Brahimi explains that the ‘the formal administrative structures [of the Jamahiriya] merely served as vehicles for executing the policies that emerged from the informal structures controlled by Gaddafi’ (2011, p.607). Colonel Gaddafi’s novel system of governance is critical to an analysis of the pre-conflict environment because Libya had no formal centralised government, thus there was no avenue for democratic accountability or opposition to the oppressive regime. Further, it was difficult for the UN to negotiate an R2P operation under the Secretary-General’s proposed second pillar of R2P, assistance, as Colonel Gaddafi was not formally the sovereign leader of Libya. This meant that Gaddafi, in his self-proclaimed position as Guide of the Revolution, was the most powerful person in the Jamahiriya while simultaneously being the most sheltered (Hajjar, 1980, p.198). Yet, as Brahimi states, ‘there was some irony to the fact that Colonel Gaddafi’s regime was brought to the brink of collapse by the sort of popular grassroots politics he himself had rhetorically championed’ (2011, p.605).
The violent civil war in Libya began with peaceful demonstrations by the Libyan people, which were heavily influenced by the Arab Spring protests spreading from Tunisia to Egypt and beyond (Bellamy, 2011, p.838). The difference was that rather than surrender power, as the leaders of Tunisia and Egypt had done, Gaddafi responded with force (Daalder, 2012). The protests began after human rights lawyer Fathi Terbil was arrested on February 15th, Terbil himself explaining in a BBC interview that the demand for rights grew once ‘the security services used violence to deal with the demonstrators, killing or wounding many of them’ (Terbil, 2011). This violent response of the Libyan government soon escalated, with reports that the regime’s forces were ‘using tanks and warplanes against the demonstrators, and executing those officers who refused to deploy the instruments of the state against its people’ (Brahimi, 2011, p.606). Further, the UN Office of the High Commissioner for Human Rights (OHCHR) reported on ‘ill-treatment, beatings, injuries, rapes, torture, killings, enforced disappearances and arbitrary arrests of protesters including lawyers, human rights defenders and journalists’ (Ulfstein, 2013, p.159).
It became clear to the international community that the situation had reached critical levels when Gaddafi began to employ genocidal language, described by some as the ‘most candid statements of the kind from any government since the Rwandan genocide of 1994’ (Lynch, 2011, p.68). During an address on national television, Gaddafi proclaimed, ‘officers have been deployed in all tribes and regions so that they can purify all decisions from these cockroaches’ and ‘any Libyan who takes arms against Libya will be executed’ (ABC, 2011). It was evident from the government’s continued violent actions and the utilisation of such language, that the security of the Libyan people was at risk. The UNSC passed Resolution 1970 on February 26 2011, which called on Member States to make available humanitarian assistance in Libya, and ‘expressed its readiness to consider taking additional appropriate measures as necessary to achieve that’ (United Nations, 2011). But it was not until Resolution 1973 that the UNSC authorised action under the third pillar of the R2P.
By adopting Resolution 1973, the UNSC sought to protect the Libyan population, one of the core principles of the R2P. NATO, as a coalition of Member States, had the authorisation to act under the mandate of this resolution, and as such was the primary body enforcing its provisions (Ulfstein Geir, 2013). In the wake of the Libyan conflict, the New York Times, describing the operation as a ‘true alliance effort’, reported, ‘NATO’s success was swift – saving tens of thousands of Libyan lives, grounding Gaddafi’s air force, and watching Libya’s coast’ (Daalder and James, 2011). The timely response was effective, directly correlating with the Pillar III obligation to initiate R2P operations in a timely and decisive manner. Then US Representative to the UN, Susan Rice, agreed, stating ‘I can’t remember a time in recent memory when the Council has acted to swiftly, so decisively, and in unanimity on an urgent matter of international human rights’ (cited in Dunne and Gifkins, 2011, p.522). NATO weakened the Gaddafi forces through repeated attacks, greatly assisting the rebel’s efforts. On this basis, the operations in Libya succeeded in ‘protecting civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’ (UN Security Council, 2011), as was mandated in the resolution.
Unfortunately, the alleged success of the NATO operation in Libya is undermined by the underlying agenda behind the intervention. After resolution 1973 was passed by the UN, Gareth Evans wrote in a newspaper column:
Legally, morally, politically and militarily [the intervention] has only one justification: protecting to the extent possible the country’s people… When that job is done, the military’s job will be done. Any regime change is for the Libyan people themselves to achieve (Evans, 2011)
In spite of this assertion, the NATO forces appear to have been fighting not solely to protect the Libyan population, but to ultimately remove the Gaddafi regime. NATO interpreted Resolution 1973 as giving permission for a wide range of military activities. Within forty-eight hours of the resolution being passed, armed forces from the US, France, Britain, Canada and other NATO members conducted aerial bombings against Libyan military and intelligence corporations, which continued daily for the next eight months (Keating, 2013). The bombings were widespread and received continuing criticism for their severity. Russia, in particular, brought attention to the civilian casualties that resulted from the air strikes, while China expressed a similar dissatisfaction with an ‘arbitrary interpretation’ of the Resolution (Bellamy and Williams, 2011, p.31).
NATO was also clearly in favour of a regime change because of their explicit support of the rebels’ efforts. Not only were rebel forces trained in combat by French and British intelligence agencies and foreign military advisors (Ulfstein, 2013), but French forces also allegedly provided arms to Libyan rebels. These actions were deemed by the Russian Foreign Minister to be ‘a very crude violation of UN Security Council Resolution 1970’ (BBC News, 2011), which had established an arms embargo for Libya. In March, an opinion piece in the New York Times reported that ‘Western powers were now attacking the Libyan Army in retreat, a far cry from the UN mandate to establish a no-fly zone to protect civilians’ (Kuperman, 2013, p.114). Kuperman asserts that the assistance NATO supplied to the rebels who sought to overthrow Gaddafi was at odds with UNSC intentions, and instead extended the war and magnified the harm to civilians (2013, p.114). The reason NATO operations manifestly failed is because the use of force without the consent of the host state should primarily be about protecting the lives of innocent civilians. Yet, as India’s former ambassador to the UN, Hardeep Singh Puri, said, NATO instead became the armed wing of the Security Council, ‘dedicated not to protecting civilians in Benghazi but to overthrowing the government in Tripoli’ (cited in Nuruzzaman, 2013, p.64).
The regime in Libya was evidently one which violated human rights and imposed unfair living standards on its constituents. Therefore, the intentions of the NATO operation in removing the Gaddafi regime were at least in part marked by good intentions to protect Libyan citizens. However, attempting regime change is a misapplication of the R2P norm and contradicts international norms of state sovereignty. Further, although not explicitly endorsed by the UN at the 2005 World Summit, the original ICISS report recommended that when acting under the R2P, states should commit to a ‘responsibility to rebuild’, whereby intervening States should ‘provide full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert’ (ICISS, 2001, p.XI). NATO and UN Member States manifestly failed to assist Libya with this process in the wake of the intervention and the ensuing Libyan civil war. Nuruzzaman explains that after Gaddafi was killed by rebel forces, all that remained was ‘a hell of lawlessness, with 125,000 armed militias who have continued to control different parts of the country and clash against each other’ (2013, p.64).
The R2P reflects a dedication to the protection of populations from mass atrocity crimes. When the UNSC implemented the R2P in Libya through Resolution 1973, this was its original intention. The Gaddafi regime had resorted to intensive violence and used genocidal language during the Libyan civil war. However, the underlying motivation to remove the Gaddafi regime fuelled the NATO operation in Libya. This is in clear misalignment with the ideological principles of the R2P, thus constituting a failure of the norm in Libya. As Keating (2013, p.175) asserts, this failure ‘through the military focus on inappropriate means and inappropriate ends creates an unfortunate precedent that has the potentially to fatally weaken the concept of R2P’. This precedent has arguably already begun to reverberate throughout current conflicts, with some academics reflecting on the failure in Libya and its impacts for the current situation in Syria (Morris, 2013; Nuruzzaman, 2013). One can only hope that the R2P, which aims to protect people from the most serious crimes, will be applied more appropriately in the future.
 Although the UN similarly authorised the United Task force to enter Somalia, this was ‘in the absence of a central government rather than against one’ (Bellamy & Williams 2011, p.825)
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