Libya and the Limits to the "Responsibility to Protect"

The United Nations Charter begins with the commitment to ending the "scourge of war". And just as the Charter serves as the core repository of international law, the United Nations (UN) itself should serve as the broadest and most representative institution of the international community as a whole. That should mean the UN playing the central role in ending wars and imposing ceasefires, in establishing the primacy of diplomacy and negotiating peace.

The problem is, domination of the UN, and especially of the Security Council by its most powerful member states, means that too often UN actions are neither representative of the global community as a whole, nor legitimate reflections of international law. Since its founding, the UN has faced - or, more often, ignored - the contradiction between absolute national sovereignty and human rights. That is, the UN is an organization of governments - based on the principle of sovereign independence. But the UN also stands, especially through the Universal Declaration of Human Rights, for the defense of people, including the human rights often denied by those same UN member governments.

On issues of war and peace, that sovereignty vs human rights challenge is no easier. And the capacity of the UN - including its legitimacy - to act against war and in defense of peace is especially compromised when the UN itself, most often through Security Council actions, becomes a belligerent actor on one side of an internal conflict or a civil war. In the case of Libya in 2011, the possibility of a UN peacemaking role, encouraging, negotiating or even imposing a ceasefire, was thwarted by its involvement as a participant in the military effort to overthrow Muammar Qaddafi.

Military escalation instead of political dialogue

The UN Security Council resolution that aimed at protecting civilians in Libya started with the call for "the immediate establishment of a ceasefire and ...the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people". It then took note of the goal of "facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution".

Those were important goals. But for the first two weeks the only action taken by the powerful countries that orchestrated the UN response was to escalate military engagement: a no-fly zone, air strikes, "all necessary means", ostensibly for the narrow goal of protecting civilians. The US, UK, France and other western countries continued calling openly for regime change. Some African Union (AU) heads of state tried to go to Libya to begin negotiations, but were initially denied entry to the country, apparently in response to South Africa's vote supporting the UN resolution. A ceasefire didn't seem to be at the top of anyone's agenda, and certainly the UN's most powerful members did not put negotiations anywhere close to the top of their agenda.

The western countries' process of gaining international - read: UN Security Council - approval for the use of military force against Qaddafi was somewhat different than the approach used in earlier efforts to legitimize armed interventions in countries of the global south. To his credit, President Obama essentially recognized that while Security Council approval may provide legal authority, it does not, by itself, assure international legitimacy. It is too widely understood as an undemocratic bastion of power, where the veto of the five permanent members looms as a constant reminder of all the other countries' disenfranchisement. This time was to be unlike George Bush I's success in gaining endorsement for war against Iraq in 1990-91, or Bill Clinton's instrumentalizing of the Council to win support for interventions in Haiti, Somalia and Bosnia (even while the US and France prevented the UN from acting against genocide in Rwanda). This time President Obama, with other western allies, acknowledged that support from the Arab League and the AU would be necessary to legitimize a UN-backed military assault on Libya.

The response from the two regional bodies was telling. The Arab League, made up of 22 governments of which most are dependent on US political, military and/or economic support, soon offered a cautious and rather tepid endorsement of a "no-fly zone" in Libya. Despite its dubious nature, the Arab League vote provided much-needed political cover for US, UK, French and broader NATO involvement. The AU, on the other hand, rejected the idea of a UN-endorsed "no-fly zone", let alone an even broader military campaign against the Libyan regime.

This was not surprising, since the organization's 2001 founding, Muammar Qaddafi had been its biggest cheerleader and certainly its biggest funder. Qaddafi had also provided huge contributions to African countries, much of it for schools, clinics and other infrastructure projects, but much of it inevitably going straight to the pockets of corrupt government officials. And as soon as the AU made clear it did not intend to embrace the US-NATO plan for a military role in Libya, we were hearing only of the need for the Arab League's backing The AU was out of the picture.

From civilian uprising to civil war

The Libyan opposition, reflecting the independent spirit of the Arab Spring uprisings in other Arab countries, initially rejected any foreign intervention. But fairly quickly, after the Qaddafi regime's initial military attack on the democratic protesters followed by the spontaneous action of the opposition to take up arms itself had largely transformed the Libyan conflict from a civilian uprising into a civil war that changed. First there was the call for "just a no-fly zone, but no foreign intervention". Then that escalated to the call for UN or NATO or US or British or French or somebody's military to attack Qaddafi's armor and ground forces.

Ironically, because it quickly became the leit-motif of the overall call for humanitarian intervention, the no-fly zone itself was never likely to provide the main civilian protection, since most of Qaddafi's attack came from tanks and other ground-based forces. The US had initially rejected the British-French initiative in the UN calling for a no-fly zone, because influential forces within the Obama administration, the Pentagon, Congress, and other US elites believed a no-fly zone would not protect civilians, and would pull the US into a quagmire with no clear exit strategy or basis to declare "victory". But after a few days of internal debate, the prointervention forces, largely based in Hillary Clinton's State Department, won the day. They told the British and the French that they could not support the no-fly zone plan, but that instead of simply vetoing the proposed resolution, they would redraft it to fit US requirements.

The result was a vastly expanded resolution that not only endorsed a no-fly zone, but authorized "all necessary measures" to be used in the name of protecting civilians. While the regional and global discussions focused on the no-fly zone, the resolution actually went much further. The language "all necessary measures" legalized unlimited military force, and because "to protect civilians" was not defined, it was left to the US-NATO coalition forces themselves to decide how far they wanted to go. The public urgency that limned the UN debate focused on threats Qaddafi had made, as his forces continued their assault on cities, primarily in eastern Libya, still under opposition control. The language was dire, threatening "'no mercy or compassion' for those who fight"against his regime. But the threatening language was distorted further, beyond its actual meaning by the constant repetition of threats to search "alley by alley" and the words "no mercy". The result, deliberate or not, was to convince a broad swathe of Americans and others in western countries that Qaddafi was threatening to slaughter the entire population of Benghazi - threatening a genocide.

The notion that the threat was directed against civilians, or that a genocidal assault on the city was either imminent or inevitable, simply is not borne out by the facts. There was a threat, but its severity could not be known. Weighed against that was the known consequences of "humanitarian" military interventions by the most powerful countries in the world, even beyond the likely inadequacy of military protection for civilians. Consequences include directly-caused civilian casualties, escalation of the existing humanitarian or human rights crisis, and legitimation of unilateral military interventions, and the sidelining of diplomacy. And then of course there is the problem of increasing the economic and strategic power of imperial countries while escalating the power disparities, dispossession and disenfranchisement of civilian populations left in occupied and/or destroyed states, as well overall military/political/ humanitarian failure and years of lethal and costly US-NATO occupations.

Selective military intervention

Foreign military intervention by powerful northern governments, especially that of the US, against far weaker countries of the global South, is a dangerous, risky proposition, whether couched in the language of humanitarianism or not. And that very real danger emerges even before the broad political challenge of hypocrisy and double standards is confronted. Military intervention is always selective. This isn't about weighing all the various humanitarian crises, deciding where and how to respond on the basis of which ones impact the most people, which ones are the bloodiest, which ones are closest, which ones have the most brutal dictator ... This is about moving directly to military intervention in a few select cases, while other humanitarian crises are not responded to at all, even by non-military means - because the primary motivation for the governments involved, unlike the motivation for people, is not humanitarian at all. It would be easier to accept that military intervention in Libya really was based on humanitarian motives if non-military but active intervention was already underway in other similar (if so far smaller) crises.

For example, if the US had immediately cut all military and economic aid to Bahrain at the first sign of its king bringing in foreign troops to suppress the uprising. If the US had immediately ended all arms sales and stopped the current weapons pipeline to Saudi Arabia when its soldiers crossed the causeway. If the US had announced a complete halt in all military aid to Yemen when Saleh's forces first attacked the demonstrators. Not to mention the possibility of a decision to cut military aid to Israel and end the decades of USgranted impunity for war crimes. All of those actions were possible, appropriate, non-military, and would have had huge humanitarian impacts. When none of them is done, it's difficult to accept the claim that military intervention in Libya is really grounded in humanitarian motives.

So far, even the combination of massive air strikes, CIA agents on the ground coordinating with the opposition, Obama's authorization to arm the rebels, and the defection of Moussa Koussa and other key Qaddafi regime officials, has not been sufficient to defeat the regime. Claiming they simply "hoped" Qaddafi's regime would crumble from within, international actors' military involvement resulted in a position that essentially ruled out negotiations while the long-time Libyan leader remained in power.

The opposition's sudden call for a ceasefire began to significantly change the terrain. Clearly this was a moment for a rapid international move towards new negotiations aimed at establishing the immediate ceasefire. The opposition's shift may have reflected their growing realization that even the massive US-NATO attacks against the regime and the possibility of CIA arms and training could not ensure - let alone consolidate - a real victory over the far better-armed and better-trained forces of Qaddafi's military.

This new position may have also reflected a growing uncertainty as to whether the vastly disparate components of the opposition - young democratically-oriented professionals, unemployed workers, a range of Islamists possibly including some identifying with al Qaeda, defecting regime soldiers, newly returned Libyan CIA assets and more - can unify enough to continue fighting. They also may have been watching the rapidly disintegrating public international support for the western coalition fighting on their side of the civil war, and judging that they dare not rely too much on their current allies. Finally, the opposition may have recognized the increasing danger to civilians across Libya posed by the escalating fighting. Even NATO was warning its partners, the Libyan opposition, against attacking civilians.

Rejected proposals

But Qaddafi rejected the opposition's proposal, despite its unexpected narrow focus that would have allowed the long-time Libyan dictator to remain in power. The next move came from the AU, whose representatives proposed a "roadmap" for a ceasefire and political reforms "to eliminate the causes of the current crisis". The opposition rejected that proposal, although its text bore similarities to the Benghazi leadership's own earlier offer.

Clearly urgent negotiations are needed. There have been choruses of enraged cries - "Negotiate?! With Qaddafi?!" - mostly coming from US and European officials. That disingenuous outrage needs to be answered with the quick reminder that until about six or seven weeks ago, that same Muammar Qaddafi was their guy. They need to be reminded that starting in 2002, US and European diplomats managed to negotiate quite nicely with their Libyan counterparts, and, in just about a year reached an agreement in which Qaddafi surrendered his nascent nuclear weapons program and paid huge compensation claims to victims of Libyan terrorist attacks. The US in return removed Libya from its "anti-terrorism" blacklist and ended sanctions, while European governments rushed to embrace the Libyan dictator and European oil companies flooded Libya with new oil contracts. And those western officials need to be reminded that Qaddafi's repression is nothing new, it was well known back then too. So yes, negotiations are possible - and urgent.

A ceasefire alone does not answer all the critical questions. A real ceasefire should mean an end to US claims that somehow the UN resolutions' unequivocal demand for a complete arms embargo does not apply to weapons the US might provide to strengthen the opposition, but the US may continue that claim and it will have to be challenged. A ceasefire does not provide for the kind of real accountability so desperately needed to hold not only Qaddafi but other dictators across the region, those already overthrown and those still holding on to power, to account for their human rights violations and other crimes. The situation in Libya has been referred to the International Criminal Court, where prosecutors are already investigating possible violations. A ceasefire should not end those investigations, but the timing of accountability efforts always has to take into consideration the requirements of ending bloodshed. The limits of UN peacemaking and UN diplomacy have been open and visible throughout the Libyan crisis. The legality created by a Security Council resolution authorizing force was not matched by real legitimacy. The very real challenge that led to the UN's adoption of the "responsibility to protect" doctrine - the fact that many people face dire human rights violations, war crimes, even crimes against humanity at the hands of their own government or the government controlling them in illegal occupations - remains to be answered. But it must be answered in a way that does not create more humanitarian, human rights, political, economic and other problems than it solves. Libya is not a model for the "R2P" doctrine - it is a model of why we need a different one.

Originally published in New Routes Journal (Life and Peace Institute)