Commentary by Shereen Dbouk – 13 July 2011
When the United Nations Security Council (UNSC) decided to authorize a military intervention in Libya, most of us were still processing what was happening in Egypt. In matter of weeks, two UN Resolutions had been adopted and the fear of continuing war crimes being committed without being challenged by the international community was lifted with a sigh of relief.
The UNSC first adopted Resolution 1970 which imposed an arms embargo and an asset freeze over funds “owned or controlled, directly or indirectly, by the individuals or entities listed” in the Resolution. This decision was reinforced with Resolution 1973, adopted within a mere hours after Muammar Gaddafi’s televised address to the Libyan people, vowing to show no mercy to the rebels who had taken arms against him.
For once, the International Community wasted little time and reacted promptly to protect civilian lives. A no-fly zone and an arms embargo were immediately implemented and France began to inflict targeted strikes within days. However the subsequent NATO-led air campaign quickly led to suspicions as to end-goals of a mission that was perceived as quickly turning into a protracted conflict. Who were these rebels located in Benghazi who needed protection? In a case of selectivity versus prioritization, did the Security Council have a better plan for Libya than for Bahrain or say, Syria? Pressured by the international civil society, the Council came up with resolution 1973 to rescue the Libyan people. Today, months after the start of the conflict, the nature of the mission drafted months ago by the SC has drastically changed.
Resolution 1973, the rebels and NATO: Taking sides while pretending not to
The content of Resolution 1973 was unclear from the beginning. In an attempt to override previous caveats listed in Resolution 1970, the Security Council decided to authorize “(…) Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory (…)”
In other words, the protection of civilians clearly meant the protection of the rebels located in Benghazi who at the time needed the International Community to help them in their endeavor to overthrow Gaddafi. The drafting of the Resolution allowed the coalition to interpret it either narrowly or broadly, but despite this, the mission remained clear: to protect civilians, not to overthrow the Libyan leader.
It became evident over time that NATO’s targeted strike sorties were opening the way for the rebels to move toward Tripoli and that they were the boots on the grounds the UN did not want to send.Things became legally more complicated when countries began to recognize the National Transitional Council (NTC) as a de facto legitimate representative of the Libyan people alongside Gaddafi’s de jure government.Under international law, it means that frozen assets from individuals such as Gaddafi himself or his inner circle can be made available by States detaining the funds, to the newly recognized NTC. It also means that one side of the plan was to remove Gaddafi with the help of the rebels’ National Liberation Army, a mission not included in the Resolution and illegal under international law.
From human rights protection purposes to regime change
Presidents Obama, Sarkozy and Cameron set the tone from the very beginning by calling for the departure of Gaddafi from Libya.Meanwhile, South African President Jacob Zuma desperately tried to introduce a mediation process but was quickly hindered in his task. It is reported that the president himself and African Union representatives to Gaddafi had to ask NATO for permission before setting foot in Libya, which represented a clear attempt to sideline the regional organization. This roadmap for peace contained a cease-fire that was accepted by Gaddafi but rejected by the NTC. It prompted President Zuma to condemn NATO attacks on Libya by claiming that “We [AU] strongly believe that the resolution is being abused for regime change, political assassinations and foreign military occupation.”
If there was any doubt left about the new direction given to the mission, President Sarkozy put an end to it quickly when France recently supplied arms to the National Liberation Army, an act illegal under international law and in violation of Resolution 1973.
This decision challenged the overall legality of the Resolution, which was adopted to protect civilians. The term “civilians” bears a precise meaning under international humanitarian law. The 1977 amendment protocol to the Geneva Conventions provides under Article 50 that the term « civilians » cannot include members of the armed forces of a party to a conflict which is defined under article 43. In other words, Sarkozy’s snap decision may well have lifted the protection granted to the rebels under international law since they are no longer « civilians » and drain out from the coalition the main element of its UN mandate. He may also have endangered NATO’s credibility by highlighting the fact it is “officially” taking sides in the Libyan internal conflict. In the midst of a civil war, the principle of distinction is difficult to enforce. Thus, the distinction between civilians and non-civilians poses a conundrum, opening up a Pandora’s box of criticism.
When does it become interference and breach of sovereignty instead of an intervention for humanitarian protection purposes?
In the case of Libya, both Resolutions were adopted following the guidelines of a new norm called the Responsibility to Protect (R2P), which provides new criteria to identify breaches or threats to peace under the UN Charter. It is usually understood that the principle of non-intervention defined by Article 2(4) of the UN Charter can only be tempered by the right of self-defense or a threat to peace defined under Chapter VII.
However, no specific provisions make a direct reference to coercive measures being enforced for humanitarian purposes. The theory of R2P is a successful attempt at breaking this dichotomy between prohibitive law and moral responsibility. The concept emerged in 2001 when the International Commission on Intervention and State sovereignty (ICISS) released the Responsibility to Protect Report, which re-conceptualized the notion of State sovereignty and shifted the debate from national security to human security. The R2P theory follows the logic that our collective and moral responsibility for the security and welfare of human beings transcend political and territorial borders and that it is our moral duty to act when populations are at risk or are victims of mass atrocities. A message that Obama’s chief aid Samantha Power was already advocating during NATO’s campaign in Bosnia in the mid-1990s.
When Gareth Evans, one of the authors of the ICISS report, previously stated that for once “the stars were well and truly aligned in the Libya case”, Libya appeared represented the perfect opportunity to intervene in the Arab world using the human rights rationale at a time when western powers feared losing their influence in the region.
Unfortunately, the blunders of Libya have undermined the “humanitarian hawks” handling of a crisis. This intervention, with all its paradoxes, and with its haphazard application with regard to the protection of civilians, is close to becoming a fiasco. Four months into the conflict, the coalition seems unable to tackle Gaddafi’s forces and the battle between his army and the rebels is ongoing. In the face of slow progress and a continuing stalemate between the Rebels and Gaddafi, some NATO members, particularly France, appear to have re-introduced negotiations with the regime to the list of alternatives.
What does this new political twist say for the Libyan people now embedded in a civil war?The UN Resolution prohibits any foreign occupation on the ground. However, if the coalition decides on a peace roadmap to settle the crisis in Libya, nothing says that the rebels will lay down their arms against Gaddafi. The region may have its own Iraq to deal with.
If humanitarian issues have been sidelined in favor of realpolitik and NATO’s mission amounts to anything other than protecting Libyan civilians, the impact will go beyond the borders of Libya. It challenges the legitimacy of the Security Council as custodian of international peace and threatens this latest attempt by the UN to recapture the narrative of humanitarian intervention.
ArabsThink.com has the pleasure to welcome Shereen Dbouk as a regular columnist and contributor. You can find out more about Shereen in the ‘Who We Are‘ section of the website.
 Paragraph 9 of resolution 1970 prohibited all direct or indirect supply, sale or transfer of arms to anyone in Libya at the time
 «The sending of arms to the Libyan rebels is illegal, yet it has been going on almost since the beginning of the conflict there, believes Mahdi Darius Nazemroaya from Center for Research on Globalization: “It definitely is violating the United Nations’ sanction as well as international law. There is something called the ATT [the Arms Trade Treaty] and under the ATT they cannot supply arms to the rebels,” he said. ”This is not new news either. They have been saying it from March that they have been sending arms to the rebels. In the London conference, the Prime Minister of Qatar said they were going to send arms. He said that in front of Hillary Clinton and all the representatives of the NATO states were there.”» http://rt.com/news/un-arms-conflict-expert/