The Crusade Euphoria

Fuck international law! On to Tripoli! Observations on U.N. Resolution 1973 and other U.N. Security Council “humanitarian interventions.”

What used to be predictable can no longer be denied. The coalition of the willing and now NATO are bombing a path to Tripoli so the Libyan rebels can drive Moammar Gadhafi out of office, dead or alive. President Obama may deny that this is a mission of the new Africa Corps, but he himself said, “It’s time for Gadhafi to go.” His French counterpart, Nicolas Sarkozy, has never allowed any doubt concerning that mission. Their opinion is that the root of the evil has to be removed. But that war strategy is no longer compatible with UN Resolution 1973.

The Russians, Chinese, Indians and Brazilians must have recognized that. Confidence in the mandate was, at best, naïve considering the crusade euphoria in Paris and London. They couldn’t be certain that, after the quick destruction of the Libyan air force and air defense systems, the coalition troops would be redeployed purely in the defense of Libyan civilians. That had occurred only once in recent history. When President George H. W. Bush had run the Iraqi army out of Kuwait in 1991, he rejected sending his forces onward to Baghdad with the objective of toppling Saddam Hussein. He took severe criticism for that decision but the UN Resolution allowed only for the liberation of Kuwait, nothing more. Today, one can argue that a looser interpretation of that resolution with spontaneous intervention at an opportune moment might have precluded the 2003 invasion of Iraq that resulted in so many victims. But the clear wording of the resolution didn’t permit that and Bush abided by it. His loyalty to that mandate has never been praised.

Escalation of the war

We know that both Russia and China, with their veto powers, only reluctantly abstained from voting on Resolution 1973. They’re both already critical of the escalation of the war Obama hesitates to call a war — that’s a familiar syndrome. All the lying about the number and cause of casualties aside, the use of bombs and rockets has long since surpassed the intent of the resolution to “take all measures to protect civilians” from attack by the Libyan army.

“Monitoring” the advance of the rebel forces toward Tripoli with bombs and rockets is less an adherence to the intent of the resolution than it is an aid toward a military victory. That is a clear violation of the resolution that General Secretary Ban Ki Moon may not be ignoring, but neither is he complaining very loudly about it.

But the problem goes deeper. Protection of civilians in accordance with Article 42 of the UN Charter rightly forms the basis of Resolution 1973 as “humanitarian intervention.” The Security Council is the only body authorized to intervene in a violent internal conflict between a government and its protesting citizens, regardless of whether it is called a civil war or not. As long as the military actions do not go beyond its own borders, neighboring states must observe strict neutrality. Also according to Article 42, the government may only resort to military measures that “may be necessary to maintain or restore international peace and security.”

This formulation follows the classic situation of invasion from outside and does not address internal revolts, uprisings or coups, all of which are covered by the concept of sovereignty in the form of a prohibition of outside intervention and the guarantee of territorial integrity. While the 1977 wars for colonial independence were supported and legitimized by two additional protocols in the Geneva Conventions covering human rights, there are no such rules covering “humanitarian intervention” in internal conflicts.

For the first time in 1991, the UN Security Council found the Kurdish minority in Iraq needed its protection from Saddam Hussein’s attacks. In its Resolution 688 of April 1991, they announced that the repression against the Kurds constituted a threat to international peace and regional stability without ever giving any further justification. The Chinese, who at first didn’t want to agree to the resolution, were later convinced to drop their objection when large numbers of refugees actually began pouring across the Syrian and Iranian borders. That resolution also wasn’t quite so critical because, while it restricted Iraqi sovereignty in the northern provinces, it didn’t allow for any military intervention there.

It was different one year later in Somalia, when it became necessary to curb the indiscriminate violence directed at the civilian population and make possible the distribution of medical supplies and foodstuffs. In December 1992, the Security Council passed resolution 794, authorizing sending in international troops based on the idea that the desperation of the Somali people constituted a danger to global peace. As is now known, sending in U.S. troops in 1994 ended in disaster and the “humanitarian intervention” didn’t bring peace to Somalia. But the unanimous approval of the resolution enjoyed signaled that the Security Council had discovered new ways of getting support for intervention. This was shown barely two years later in December 1994, when Security Council Resolution 940 empowered a multi-national — for which, read: American — force to restore deposed Haitian President Aristide to power. This one was justified as a “restoration of democracy,” and they didn’t even bother mentioning global peace and international security.

A new instrument

That’s how the concept of “humanitarian intervention” was established as an instrument of the UN Security Council. But it was misused again barely five years later when NATO invaded the former Yugoslavia. The attempt to bypass the Security Council and justify military action in Yugoslavia by calling it a “humanitarian intervention” clearly failed and is today defended only by a militant minority. Kofi Annan, former Secretary General of the UN, was prompted by this failure to set up a commission intended to prevent misuse of the “humanitarian intervention” and to propose alternatives to it. From that came the now famous “responsibility to protect” doctrine that was made a resolution by the General Assembly in 2005. It established the concept that governments were responsible for protecting their citizens from serious human rights violations. If they are unable to do so, the responsibility shifts to the UN and includes armed intervention, if necessary. It may, however, do this only under the auspices of the Security Council; individual countries are still prohibited from the use of force.

Resolution 1973 as applied to Libya may be seen as an example of the “responsibility to protect” doctrine if people see the violation of human rights there as serious enough to warrant action as the vast majority in the Security Council apparently have. But the council members must take responsibility for the fact that the situation didn’t come about in the past three weeks and that they not only tolerated Gadhafi’s actions but actually enabled them. That may cast doubt on the legitimacy of their reaction, but it doesn’t make it illegal. The fact that the Security Council stood idly by during the Gaza war of 2008-2009, failing to set up no-fly zones and thus protect civilians from being subjected to white phosphorous bombs, may be seen as a “collective crime of omission.” But here the Council failed to possibly react to the new situation by invoking Article 42 of the UN Charter.

Not only the nations that failed to support the resolution had reservations about the usefulness of a military intervention as they criticized Gadhafi’s actions. The clear violation of the resolution by the course of the war and the military strategy revealed have confirmed those reservations. This engagement falls outside the mandate and is therefore illegal. The consequence should be the withdrawal of the resolution. Then the five veto powers would have to vote for it again or once again decide to abstain.