By Richard Falk
The NATO intervention in Libya overstepped its UN authorisation, but this is barely being discussed in the media.
In Western circles, the outcome of the NATO intervention in Libya has already been pronounced "a victory" from several points of view: as a military success that achieved its main goals at acceptable costs, as a moral success in averting a humanitarian catastrophe, and as a political success that created an opportunity for freedom and constitutionalism on behalf of a long oppressed people.
This is one of those rare results in an international conflict situation that seems to please both conservatives and liberals - conservatives because it was a show of force that reaffirmed Western primacy based on military power; liberals because force was used with UN backing in accordance with international law to further human rights and liberal values.
Gaddafi is apparently a spent force, and the future of Libya now becomes a work in progress without any clear understanding of who will call the shots from now on. Will it be the Libyan victors in the war for control of the country? Will it be their NATO minders hiding behind the scenes? Will the NATO representatives do the bidding of the oil companies and the various corporate and financial interests that will want a profit making stake in Libya’s future?
Or will it be some combination of these influences, collaborating more or less harmoniously? And, most relevant of all, will this process be seen as having a liberating effect on the lives and destinies of the Libyan people? It is far too early to pronounce on such momentous issues, although one can hope and pray for the best.
But it is not too soon to question the unconditional enthusiasm for what has been done and what it portends for the future.
Western triumphalism
Perhaps this unfortunate triumphal spirit was most clearly voiced by Roger Cohen writing in the New York Times, who viewed the Libyan intervention as a historically momentous discharge of global moral responsibility that seems to depends on post-colonial pro-activism by the West: "... the idea that the West must at times be prepared to fight for its values against barbarism is the best hope for a 21st century less cruel than the 20th”.
This rather extraordinary claim cannot be tested by reference to Libya alone, although even narrowly conceived, the grounds for such confidence in the West seems stunningly ahistorical. But if the net is enlarged, as it must be, to encompass the spectrum of Western interventions in Vietnam, Iraq, and Afghanistan, the self-absorbed gaze of Cohen seems like a dangerous form of advocacy for using force in international relations.
Looking at this broader experience of Western intervention makes one squirm uncomfortably in reaction to the grandiose claim that the willingness of leading Western countries to police the world is humanity’s "best hope" for the future. Cohen is not timid about insisting that Libya provides a positive model for the future: “The intervention has been done right - with the legality of strong backing, full support of America’s European allies, and quiet arming of the rebels.” A contrast with Iraq is drawn, implying that it was an intervention "done wrong".
There is a heavy dose of implicit paternalism, condescension, and ahistorical consciousness, not to mention wishful thinking, present here, by identifying the West as the best hope for the future just because it managed to pull off this Libyan intervention (that is, assuming that it does, which remains far from assured). What about putting the failed intervention into the balance, and then deciding whether it is helpful or not to encourage the West to take on this protective role for the rest of the world? I seem to remember in days past such self-empowering phrases as "white man’s burden" and "civilising mission".
Too soon to tell
And let us not be too quick to praise this Libyan model. It is certainly premature to conclude that it has been a success before acquiring a better sense of whether the winners can stick together in a Libya without the unifying target of Gaddafi. We must also see whether they can embark upon a development path that benefits the Libyan people and not primarily the oil companies and foreign construction firms. Any credible assessment of the Libyan intervention must at least wait and see if the new leaders can able avoid the authoritarian temptation to secure their power and privilege within the inflamed political atmosphere of the country.
The majority of the Libyan people undoubtedly have strong expectations that their human rights will now be upheld and that an equitable economic order is soon established that benefits the population, and not the tiny elite that sits on the top of the national pyramid. These are expectations that have yet to be satisfied anywhere in the region. The challenge is immense, and perhaps is beyond even the imagination of the new leaders, and likely exceeds their capabilities and will.
Yet such worries are not just about the uncertain future of Libya. Even if Libya turns out to be the success story already proclaimed, there are still many reasons to be concerned about the Libyan intervention serving as a precedent for the future. These concerns relating to international law, to the proper role for the UN, and to the shaping of a just world order have been largely ignored in the discussion of the Libyan intervention. In effect, once NATO helped the rebels enough to get rid of the Gaddafi regime, it became irrelevant to criticise the undertaking. In the rest of this article I will try to explain why the Libyan intervention should be rejected as a precedent.
As the World Court made clear in the Nicaragua decision of 1986, modern international law does not allow states to use force except when acting in self-defence against a substantial armed attack across its borders, and even then, only until the Security Council acts. The United Nations Security Council has the authority to mandate the use of force under Chapter VII of the UN Charter on behalf of peace and security, and also, on the basis of UN evolving practice, for humanitarian ends. This has been challenged as opening a big loophole that can be used to carry out a post-colonial imperialist agenda. Even granting that humanitarian ends should now be understood to have been legally incorporated into prevailing ideas of "international peace and security", a crucial further question exists as to whether the force used by NATO remained within the confines of what was authorised by the Security Council.
The Security Council debate on authorisation indicated some deep concerns on the part of important members, including China, Russia, Brazil, India, and Germany, that formed the background of SC Resolution 1973, which sets forth the guidelines for the Libyan intervention. This extensive resolution articulated the mission as protecting threatened Libyan civilians against violent atrocities threatened by the Gaddafi government, with special reference at the time to an alleged imminent massacre of civilians in the then-besieged city of Benghazi.
'Humanitarian intervention' language distrusted
The debate emphasised the application of the recently-endorsed norm of Responsibility to Protect (R2P), which sought to allay fears about Western interventions in the non-West by refraining from the distrusted language of "humanitarian intervention" and substituting a way of describing the undertaking as less of a challenge directed at the territorial supremacy of sovereign states. The R2P norm relies on a rationale of protecting vulnerable peoples from rulers that violated basic human rights in a severe and systematic fashion.
But once underway, the NATO operation quickly lost sight of the mission as authorised, and almost immediately acted to help the rebels win the war and to make non-negotiable the dismantling of the Gaddafi regime without much attention to the protection of Libyan civilians. This was not just another instance of "mission creep", as had occurred previously - but, rather, mission creep on steroids!
It would have been possible to explain what the real intentions of NATO were during the Security Council debate, even including setting forth an argument that the Libyan people could not be protected unless the rebels won the civil war and Gaddafi was out of the picture. Presumably such forthrightness was avoided because it almost certainly would have turned several of the abstaining five countries into negative votes. This would have included permanent Security Council members China and Russia, who would have been able to veto the resolution, thereby preventing the Security Council from reaching a decision. So the pro-interventionists admittedly faced a genuine dilemma: Either dissemble as to the ends being pursued and obtain the legitimacy of limited advance authorisation from the UN, or reveal the real goals of the operation and be blocked by a veto from acting under UN auspices.
A similar dilemma faced the intervening governments prior to the 1999 NATO’s Kosovo War. It was resolved by ignoring the legalities altogether, with NATO acting without any UNSC authorisation. It was also a controversial precedent, and some blamed the reliance on "a coalition of the willing" in Kosovo for the later claim of de facto authority to carry out the Iraq invasion without gaining prior UN approval.
Western involvement in Kosovo and Iraq circumvented the UN’s legally prescribed role of deciding when to authorise force on behalf of international peace and security. This was criticised, but the unlawfulness of the action led to no clear repudiation of either intervention after the fact, and rather highlighted the weakness of the UN, which, in both cases, ratified the results of uses of force that clearly violated the UN Charter's prohibition of all uses of non-defensive force. This was especially disturbing in Iraq, as the attack legally amounted to a war of aggression, a "crime against peace", in the language that the Nuremberg Judgment rendered against surviving Nazi leaders after World War II.
More vigilance needed at UN
With regard to Libya, the culprits are not just the states that participated in this runaway operation. The members of the Security Council and the Secretary General of the United Nations that abstained from supporting Resolution 1973 seemed to have a special duty to make sure that the limits of authorisation were being respected. It would seem to be a matter of serious responsibility for all members of the Security Council to ensure respect for the Charter’s core effort to prevent wars and seek peaceful resolution of conflicts.
When exceptions are made to this generalised Charter prohibition on the use or threat of force, it should always be strictly observed and interpreted, and if limits are exceeded, then the supervisory authority and responsibility of the Security Council should kick in as a matter of course, and in a spirit of constitutional seriousness. The Secretary General also has secondary responsibility to take appropriate steps to call the attention of the membership to such a blatant departure from the authorising resolution as an essential aspect of his role as custodian of the integrity of UN procedures and ombudsman ensuring fidelity to the Charter.
This allocation of responsibility seems more important when it is realised that the actions of the Security Council are not subject to judicial review. This controversial example of judicial self-restraint within the UN System was ironically decided by the World Court in the 1992 Lockerbie case involving sanctions imposed on Libya in apparent violation of relevant treaty law. The majority of the judges concluded that whatever the Security Council decided needed to be regarded as authoritative even if it went against international law; that this was the last word so far as international law was concerned.
Against this background, the abstaining states were also derelict at the outset by allowing a resolution of the Security Council involving the use of force to go forward, given that it contained such ambiguous and vague language. Although Security Council Resolution 1973 did seem to reasonably anticipate the establishment of a No Fly Zone and ancillary steps to make sure it would be effective, the proposed language of the resolution should have signaled the possibility that action beyond what was being mandated would be undertaken.
The notorious phrase "all necessary measures" was present, which was justified at the time as providing the enforcers with a desirable margin of flexibility. Almost immediately, once NATO launched its operations it became obvious that an entirely new and controversial mission was underway than what was acknowledged during the debate that preceded the adoption of Resolution 1973. The US Supreme Court has often invalidated Congressional action as "void for vagueness", and in the UN setting, this is something that its members should be prepared to do on their own in their role as final guardians of constitutional integrity in relation to warmaking under UN auspices.
Given the Charter emphasis on war prevention and peaceful settlement of disputes, it should be standard practice that exceptional mandates to use force would be interpreted strictly to limit the departure from Charter goals and norms, but the record even before Libya has been disappointing, with geopolitics giving states a virtually unlimited discretion that international law purports to withhold.
There is a further related issue internal to best practices within the United Nations itself. The Security Council acts in the area of peace and security on behalf of the entire international community and with representational authority for the whole membership of the organisation. The 177 countries that are not members of the Security Council should have confidence that this body will respect Charter guidelines and that there will be a close correspondence between what was authorised and what was done. This correspondence was not present in the Libyan intervention, and it seems to have been barely noticed in any official way, although acknowledged and even lamented in the corridors and delegates' lounge of the UN Headquarters in New York City.
This interpretative issue is not just a playground for international law specialists interested in jousting about technical matters of little real-world relevance. Here, the life and death of the peoples inhabiting the planet are directly at stake. If the governments will not act to uphold agreed-upon, fundamental limits on state violence, especially directed at vulnerable countries and peoples, then the citizens of the world - "We the peoples of the United Nations", as proclaimed by the Preamble to the UN Charter - need to raise their voices.
Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades. His most recent book is Achieving Human Rights (2009).
He is currently serving his fourth year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.
