Thursday 07 Oct 2021 | 21:05 | SYDNEY
Thursday 07 Oct 2021 | 21:05 | SYDNEY

Libya & R2P: Norm consolidation or perfect storm?

14 April 2011 15:07

Tim Dunne is Professor of International Relations, and Jess Gifkins is PhD Candidate and Researcher, Asia-Pacific Centre for the Responsibility to Protect, University of Queensland.

How far does NATO's intervention to protect civilians in Libya represent a deepening of the norm of Responsibility to Protect (R2P)'

In today's post we will lay out the case for regarding Libya as an advance on prior deliberations inside the United Nations Security Council in relation to intervention for humanitarian purposes. Tomorrow we will suggest that this advance falls short of norm consolidation; the Libya case is a 'perfect storm' scenario that is unlikely to recur.

The international community's response to the Libya crisis shows signs of a progressive acceptance of R2P, although there are reasons to be cautious in thinking the same combination of factors are likely to hold in other cases of humanitarian atrocities.

In 2005, the United Nations General Assembly endorsed the idea that states and the international community, bare a 'responsibility to protect' people from mass atrocity crimes, such as those in Libya that began in February 2011.

While the Security Council agreed to the doctrine of R2P in 2006, it has only been invoked in two cases, first Darfur and now Libya.

The Security Council referred to R2P on Darfur when authorising a United Nations peacekeeping force in Darfur (prior to UNAMID), however, in this situation the government of Sudan did not consent to the deployment and the resolution was not implemented.

This left the UN looking weak and contributed to further delays before a United Nations-African Union 'hybrid' peacekeeping mission was authorised a year later.

The two United Nations Security Council resolutions (1970 and 1973) adopted in response to the humanitarian crisis in Libya suggest, on the surface, that state leaders have taken civilian protection norms further than any previous time when the 'something must be done' call has resounded throughout the international community.

In support of this view, notice how the lack of consent on the part of the Libyan government did not prevent the Council from adopting and implementing a Chapter VII resolution.

What makes the forcible action to prevent further atrocities in Libya all the more remarkable, from the perspective of UN authorisation, is that when it came to voting on resolution 1973, no state can have been deluded into thinking military action might not follow.

To use the term that divided the diplomatic community over Iraq in late 2002 and early 2003, it was clear that any resolution would 'trigger' immediate air strikes against Libyan military targets.

The conjoining of purpose with process, in relation to the collective use of force, has not been seen — so argues UN expert Ramesh Thakur — since the 1991 Gulf War. No other resolution has connected 'all necessary measures' to civilian protection so explicitly.

In so doing, the Libya case stands apart from other recent interventions for alleged humanitarian purposes. In the case of Kosovo, the British tried to argue that a UN resolution would not be achieved because permanent members of the Security Council were preparing to cast an 'unreasonable' veto.

In the case of Iraq in 2003, the legal basis for the war — albeit undertaken ostensibly to disarm Iraq — was grounded in the implausible claim that earlier UN Security resolutions 678, 687 and 1441 could be combined to achieve 'implied authorisation'.

A second line of argument in support of the view that action against Libya is a significant consolidation of the norms of civilian protection, relates to the Security Council's referral of the situation in Libya to the International Criminal Court (ICC), less than two weeks after the protests began.

This is only the second time the Security Council has referred a matter to the ICC for investigation. Also noteworthy is the fact that the referral was carried out with every member of the Council agreeing, including the US, a long-standing sceptic in relation to international criminal jurisdiction and an opponent of the Rome Statute.

The only other case that the Council has referred to the ICC was Darfur, but this was more than two years after the crisis had begun. In the case of Libya, the Council has been remarkably quick, and surprisingly united in referring this matter to the ICC.

Having argued that the Security Council deliberations on Libya are more explicit in authorising the use of force to protect civilians than previous resolutions, tomorrow's post cautions against viewing this as evidence of the kind of normative consolidation that will determine future Security Council actions in response to atrocity crimes.

Photo, of evacuees from Libya, courtesy of the US embassy, Malta.