Resolution 1973, Intervention, and International Law

by Conor Foley on March 20, 2011

Like Chris, I don’t have a vote at the United Nations and I have also found the bloodthirsty enthusiasm with which certain sections of the blogosphere have turned the conflict in Libya into a spectator sport rather nauseating. However, I do have a couple of thoughts about the resolution authorizing intervention.

Paragraph 4 of resolution 1973 is headed protection of Civilians and states that

Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General’ are authorized ‘to take all necessary measures , . . . . . 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.

This is the legal basis of the military action that allied forces are taking. The wording is significantly different to the standard clause that has been appearing in UN Resolutions since the 1999 mission to Sierra Leone, which, under the heading of Protection of United Nations’ Staff, Facilities and Civilians, tends to read along the following lines.

to protect United Nations personnel, facilities, installations and equipment, ensure the security and freedom of movement of its personnel and, without prejudice to the efforts of the government, to protect civilians under imminent threat of physical violence, within their capabilities.

The ‘protection of civilians’ has become an increasingly central concern of UN peace-keeping missions over the last decade and this has resulted in the above wording appearing in most Security Council Resolutions authorizing peacekeeping or stabilization mandates. The caution of the language is obvious – UN personnel are mentioned first and civilians second, and the protection is to be achieved ‘within the capabilities of the UN military contingent and ‘without prejudice’ to the host government. However, the resolutions are adopted under Chapter VII of the UN Charter, which authorizes the use of force.

This explicit authorization to use force to protect the lives of civilians arose directly out of the experiences of the humanitarian interventions of the 1990s. The establishment of the Kurdish safe haven at the end of the first Gulf War in April 1991 is widely considered as the first of these interventions, but the resolution supporting it (688) was not adopted under Chapter VII of the UN Charter. Subsequent missions, such as those in Somalia, Rwanda and Bosnia-Herzegovina, were defined as ‘threats to peace and security,’ rather than threats to civilian lives, a quite different conceptual concept when it comes to mission planning.

NATO’s actions over Kosovo in 1999 also lacked UN approval and was defended legally under the controversial doctrine of ‘humanitarian exception’ to the international prohibition on the use of force.

The aftermath of the Kosovo conflict saw a flurry of reports and commissions on the question of the legality of humanitarian interventions and the drawing up of a set of principles on the Responsibility to Protect (R2P) which received semi-endorsement at the UN millennium summit. The invasion of Iraq effectively killed off R2P, but work around the protection of civilians has continued under UN auspices and protection strategies are being increasingly integrated into the planning of most UN missions. This debate has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.

The intervention over Libya undoubtedly opens a new chapter on this debate and, at the time of writing, none of us have any idea what its eventual outcome will be. However, Resolution 1973 is in its own terms a significant milestone in the evolution of the UN and the debate about the legality of the use of force for humanitarian ends.

{ 108 comments }

1

Rich Puchalsky 03.20.11 at 4:20 pm

“This debate has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.”

A preemptive shot at those stupid, excitable conspiracy theorist non-experts, I presume.

All right. Leaving out the word “plot” — which implies some kind of Grand Conspiracy — how do you know this, exactly? Let’s imagine that the decision was made in the following way: the key political leaders in the Security Council communicate with each other and decide that for reasons of geopolitical stability in a key oil region, they’d better intervene in Libya. On the way out the door, one of them says, “Oh, yeah, better run this by the legal geeks and make it sound good with whatever humanitarian theory is current. Once the war starts it won’t matter anyways.” Then people like you go out and do your job, which is to tell everyone that technocrats are in charge and that the decision had nothing to do with those conspiracy nuts.

Got any evidence that your view is more true?

2

Andrew 03.20.11 at 4:39 pm

Hello Conor, and thanks for posting here.

Can you expand a little on what you view to be the significant differences in wording between the authorization of intervention in Sierra Leone in 1999, and the authorization of intervention in Libya? Both mention the protection of civilians. Is it the latter’s emphasis on “all necessary force”, and the lack of the qualifier “imminent,” thereby perhaps more clearly indicating that more offensive, proactive, preventive military operations are authorized?

Like Rich, I also focused on this part of your post:

The invasion of Iraq effectively killed off R2P, but work around the protection of civilians has continued under UN auspices and protection strategies are being increasingly integrated into the planning of most UN missions. This debate has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.

Do you mean that the debate had more influence over the wording of the resolution than any Western plot? Or do you mean that, (assuming for the sake of argument) as UN missions have embraced a wider latitude of operations to achieve protection of civilians, and as UN missions have become more focused on protection of civilians, there was an underlying assumption that such a mission was legitimate, where such an assumption would have been weaker or non-existent before?

3

Straightwood 03.20.11 at 4:42 pm

What is happening at the UN is a slow movement toward enforcement of a global charter for human rights reflecting the values of the European Enlightenment. Extrapolating the logic of the Libyan intervention leads to the de-legitimization of any government that forcibly suppresses freedom of speech and assembly. The Libyan intervention now provides a precedent for international armed force being used to remove any repressive authoritarian government.

The global enforcement of consent of the governed is being attempted. Whether this can be achieved in the near term is doubtful, but we are at an important inflection point in history, and it is largely the result of the advent of ubiquitous electronic communication technology. Zuckerberg may ultimately rank with Guttenberg as a great enabler of democracy.

4

geo 03.20.11 at 5:02 pm

Straightwood @3: irony as subtle as this is dangerous. Deploy with care!

5

Henri Vieuxtemps 03.20.11 at 5:39 pm

Yeah, indeed, the UNSC is not an agency with a bunch international bureaucrats debating fine language and concepts. It’s a body with 15 member-states, 5 of them veto-wielding permanent ones. It seems hard to imagine that anything other than geopolitical interests of these 15 states had any effect on the decision.

6

Random lurker 03.20.11 at 6:11 pm

It seems to me that the Gaddafi government was in pratice quite favourable to the geopolitical interests of western states; on the other hand, if the rebellion (revolution?) succeeds, we can not know what the new government will do.
Gaddafi seemed near to crush the rebels until the resolution came, at wich point the rebels seem to have much better chanches of victory.
So while I’m usually very cynical on idealism in international relations, I really can’t see any “realist” explanation of the resolution.

7

Zack 03.20.11 at 6:13 pm

R2P was first endorsed at the 2005 World Summit and by the African Union in the same year, affirmed by the UNSC in 2006, endorsed by Ban Ki-Moon in a January 2009 report, and adopted by the GA in July 2009. To say that Iraq “killed off” R2p, when the most significant movement on its inclusion in international law took place well after the invasion, is flatly and unarguably wrong.

8

simple mind 03.20.11 at 6:20 pm

What is the resolution on Côte D’Ivoire going to look like? And after that, Myanmar, no?

9

Rich Puchalsky 03.20.11 at 6:25 pm

“It seems to me that the Gaddafi government was in pratice quite favourable to the geopolitical interests of western states; on the other hand, if the rebellion (revolution?) succeeds, we can not know what the new government will do.”

I presented it as a sort of null hypothesis, Random Lurker. Other people here have claimed, credibly (at least to me), that at least some of it was due to domestic French political concerns. I could make up nice-sounding reasons why “realism” might be the case — avoiding chaos above all, for instance (because Gaddafi wasn’t as close to crushing the rebels as he liked people to think), or in order to ensure that western states had more influence over the shape of the eventual settlement of the situation, whether that’s Gaddafi back in power or a revolutionary victory.

Since I’m not privy to any great-power high-level political discussions, I have no idea what is true. But I do know that all of those seem more credible, as unsupported stories, then the unsupported idea that these humanitarian theories affected the decision in any way other than the technical wording of the document.

10

politicalfootball 03.20.11 at 6:39 pm

The global enforcement of consent of the governed is being attempted.

The strongest statement you can conceivably make in this regard is that the enforcement of consent of the governed is being attempted in Libya. We ain’t bombing Bahrain, or even talking about it.

Extrapolating the logic of the Libyan intervention

I think you’ve misunderstood the logic of the intervention. Whether or not Mr. Foley’s mockery of conspiracy theorists is deserved, the logic of the Libya intervention is bound up in the fact that there’s a lot of oil there. As simple mind points out, we’re not bombing Myanmar, or even talking about it.

If we want an interpretation of events that is both plausible and maximally charitable to the West, it would go something like this:

The global enforcement of consent of the governed stability in resource rich countries is being attempted.

11

Random lurker 03.20.11 at 6:44 pm

#R. Puchalsky

I can’t know what passes through the heads of politicians, however IMHO the whole set of insurrection in arab states cought the estabilishment umprepared, and in particular the situation on the ground in Libya evolved so fast that politicians had to respond immediately withouth time for tought.

12

Random lurker 03.20.11 at 6:47 pm

#politicalfootball

“The global enforcement of stability in resource rich countries is being attempted. “
But if that was the case, it would be much simplier to help Gaddafi, who for sure would like “stability” to be enforced.

13

Zack 03.20.11 at 6:54 pm

This (http://thecable.foreignpolicy.com/posts/2011/03/18/how_obama_turned_on_a_dime_toward_war) is helpful reading on what American policymakers, at least, were thinking. It appears that crude realism had more or less nothing to do with it.

14

Rich Puchalsky 03.20.11 at 7:14 pm

Zack, there is only one sourced quote in the entire leading part of that article:

“”In the case of Libya, they just threw out their playbook,” said Steve Clemons, the foreign policy chief at the New America Foundation. “The fact that Obama pivoted on a dime shows that the White House is flying without a strategy and that we have a reactive presidency right now and not a strategic one.””

Note that this sourced person is responding from outside. They see what we have all seen: response in one country that suddenly contradicts modes of response in other countries, and draw the conclusion that the White House has no strategy and is being reactive.

That’s quite possible. But it’s also quite possible that the blind-sourced administration officials that the article asks us to believe in were simply lying, spreading an agreed on propaganda line about a sudden commitment to humanitarian intervention, and that the real difference is oil. Do you trust them not to lie?

15

Zack 03.20.11 at 7:43 pm

Outside of polemical framing, serious scholarship on American policy in the Middle East has, to my mind, undermined the everything-is-about-oil thesis, in part by demonstrating the centrality of liberal commitments to the international imagination of the American political class. Take that together with the fact that the sort of realism you appear to be adhering to has, in my mind, been fatally wounded by recent constructivist critiques emphasizing the role of ideas in IR, and common-sense observations about how American policy would be different if oil were a central concern, and I think there’s almost no reason to believe it’s oil rather than a real commitment to ideas like R2P.

16

Zack 03.20.11 at 7:47 pm

Addendum: there’s nothing “sudden” about the commitment of those internal administration players. Hillary has been a well-known interventionist for years. Samantha Power literally wrote the book on genocide and humanitarian intervention – A Problem from Hell. And you can read Rice herself advocating for a stronger commitment to liberal interventionism here (http://www.brookings.edu/articles/2007/07_human_rights_rice.aspx).

Obama’s Nobel Speech also ought speak for itself. I think given all of the evidence, Mr. Foley’s claim that speculation about oil amounted to conspiracy theory was, I think, well founded.

17

Conor 03.20.11 at 8:03 pm

Straightwood: I don´t think it provides a precedent for regime-change, but it certainly takes the debate about ´protection´ of human rights into new territory.

Andrew: yes, ten votes in favour with five abstentions and none against is quite unprecedented given the sweeping nature of the paragraph that I quoted. And if you read the speeches of the country delegations it is quite clear that Brazil, at least, is defensive about abtaining rather than voting in favour.

Rich, yes to your final question (assuming it was not rhetorical) because I would have to be part of your conspiracy for it to be true and I know that I am not. Of course you may still think that I am part of the conspiracy (I would deny it wouldn´t I) but you asked for evidence and not proof.

18

Henry 03.20.11 at 8:08 pm

Rich (and I thought you had left our comments sections in a huff) – before you start tossing around codswallop that Conor is flacking for Western imperialism, you might want to read his book to see what he actually says about this stuff. Or maybe, I don’t know, just click through the link he provides to a review of it (you will find the relevant button on the left hand side of your mouse, unless you are a Mac user). I know – this would require ‘work’ and ‘thinking’ and ‘evaluating arguments’ and all of that hard stuff. But it does tend on the whole to beat Pavlovian stimulus-response as a style of analysis.

19

Conor 03.20.11 at 8:14 pm

Zack: I was bending the stick on R2P a bit, but there are a few caveats to the assertions in your first post. Some of the language of R2P was contained in the outcomes document from the world summit it is true, but the concept itself was not endorsed. The UNSC resolution of 2006 also explicitly stated that such interventions would only be legitimate if authorised by the security council (with its P5 vetoes).

Since the origins of R2P are the reports into Kosovo, where the intervention was not authorised, and the original report raised the question as to what would happen if the UNSC failed to ´fulfil its responsibility to protect´ (ie would this pass to others), I think that it is fair to say that the original doctrine has been sufficiently diluted in recent years. There is also a clear tension between the recommendation for reform of the UNSC to make it more representative and the fact that most of the countries most logically in line for inclusion (particularly Brazil and India) are strongly anti-interventionist.

My sense is that R2P is not really going anywhere and it has scarcely featured in the debates about the current intervention.

20

Hidari 03.20.11 at 8:15 pm

I think it’s worthwhile noting that there is, indeed, far more legality (or ‘legalness’?) about this attack on Libya than there ever was about the invasions of Yugoslavia, Afghanistan or Iraq.

Having said that, the idea that this is motivated be a ‘responsibility to protect’ is self-evidently bollocks, as Saudi Arabia has just invaded Bahrain, and the world collectively shrugged its shoulders and went ‘meh’. Indeed, the US went out of its way to deny that the invasion was, in fact, an invasion. But this is self-evidently an infinitely better candidate for ‘intervention’, given that the US has far more leverage over Saudi Arabia than it has over Gaddafi, and also the fact that an invasion is far more obviously politically and morally ‘bad’ than a bloody and confusing civil war.

21

Henry 03.20.11 at 8:22 pm

Or perhaps I am wrong – it may be that Conor has been masquerading as an excoriating public critic of intervention in Iraq and other places for the last many years, _precisely so that he could jump sides at exactly the right moment_, hence delivering a devastating knock-out blow to the enemies of imperialism &c&c.

22

Andrew 03.20.11 at 8:24 pm

Thanks for the response Conor, though I wonder whether the vote count you mentioned is better evidence for your argument than the subtle differences in wording.

As to realism and interventionism in Libya… I agree that humanitarian concerns are undoubtedly one motivation in play, but…

if one believes that this broadens the concept of legitimate military intervention for humanitarian purposes, one must also recognize that this increases the opportunity for legitimate military interventions when humanitarian concerns are present but are not the motivating factor. Insofar as legitimacy is a factor at all in a decision to undertake military action, this increases the ability of the US and others to intervene militarily in Iran and elsewhere.

To that extent, the intervention in Libya may have more of a realist dimension than conspiracy theories about oil credibly support – a dimension somewhat ironically given plausibility by an idealist reading of the role of legitimacy in military actions.

23

leederick 03.20.11 at 8:33 pm

“[R2P] has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.”

I think western plot sounds pretty likely – I’m not sure it’s oil driving it so much as fear of a wave of immigrants, chaos in the Med, and being caught on the wrong side of a North African political realignment away from old allies. We know the vote was driven by France, UK, and the United States – and we know it took tham a lot of diplomatic work to get it.

A permanent member veto or two abstentions/no votes would have killed the resolution. China and Russia, are certainly hostile to intervention in a sovereign state and were leant on not to veto. Brazil and India abstained for the same reasons and Germany obviously has pacifist tendancies.

Of the 7 other for votes Bosnia, Portugal and Lebanon may have humanitarian motives (though if so, why no planes?) but due to EU politics and US aid are very easy for France/UK/US to lean on. And as for Colombia, Gabon, Nigeria, South Africa they don’t strike me as enthusiastic interventionists. I think a plot is a pretty likely explanation for why this vote went through. If you only count the G8+5 vote they would have lost, this was won through political manuvering not a global swing in favour of humanitarianism.

24

Zack 03.20.11 at 8:40 pm

Conor: Thanks for the measured response to a somewhat unmeasured initial comment. A brief reply:

You’re right about the 2006 World Summit, but the 2009 GA resolution committed the U.N. to further consideration about R2P, indicating that the idea is still kicking around as the accepted framework for discussing issues about humanitarian intervention generally.

I’m not sure I follow your second two points. Kosovo may have started the process for deliberation about R2P, but I’m not sure why the history of that particular conflict has had a significant detrimental effect on R2P’s role as an international norm. As for Security Council reform, there’s little evidence that this issue is somehow displacing R2P or delegitimizing the notion of intervention. Even if India/Brazil are anti-interventionist generally (a point which I think you overstate given India’s history in Bangladesh and <a href="http://www.yomiuri.co.jp/dy/columns/commentary/20091117dy01.htm&quot; this sort of thing, that doesn’t mean their views couldn’t change as pro-intervention norms continue to diffuse.

Finally, you’re wrong to say R2P hasn’t played a role in the Libya debate. The Rogin article I linked to cites Ban Ki-Moon’s statement in support of the current UN action as basing its defense on R2P.

25

Conor 03.20.11 at 8:47 pm

Andrew: the significance that I am attaching to the wording may just be because I have spent the last few months reading every single resolution on ´protection of civilians´ for a project that I have been working on for DPKO and it is a huge jump in legal terms from the previous resolutions. The country representatives at the UNSC will have been aware of this and so the strong vote in favour of it is also significant.

I am sure that there are other motivations driving the intervention (I would guess that hatred of Gaddaffi by his immediate neighbours was quite significant in influencing the Arab League and presumably is also a factor in British and US thinking, while Sarkozy may also be motivated by domestic political considerations and post-Tunisian embarassment). My post was not intended to be an exhaustive discussion of these.

26

Substance McGravitas 03.20.11 at 8:48 pm

But this is self-evidently an infinitely better candidate for ‘intervention’, given that the US has far more leverage over Saudi Arabia than it has over Gaddafi,

Not to pick on Hidari, but that is just sad. America’s influence over Saudi Arabia may one day lead to a nation in which a woman can leave the house on her own.

27

Conor 03.20.11 at 8:56 pm

Zack: I stand corrected on the Ban Ki-Moon statement, thanks for the link.

I was in New York at the time of th UNGA debate and I am basing part of my assessment of where R2P is going on some conversations and notes from the time, but since I don´t have them to hand, I will not push the point. You will probably remember the speech that Gareth Evans made in about 2007, though, when he said that R2P´s ´false friends´(ie Blair) had gravely weakened the concept.

28

Sev 03.20.11 at 9:03 pm

#10 “If we want an interpretation of events that is both plausible and maximally charitable to the West, it would go something like this:

The global enforcement of (consent of the governed) stability in resource rich countries is being attempted.”

It may be a mistake to underestimate that these are elected leaders whose electorates are watching these events on TV. Undoubtedly the price of oil and its effect on their tottering economies and mood of said electorates also focuses their attention.

#20 Sure, there is hypocrisy in this, but I think a not unreasonable judgment has been made that standing up to the Saudis at this point is much too risky. That could conceivably change in the event of very large popular uprising against them, particularly if it tended toward violent repression and chaos. So stability is doubtless the pre-eminent goal, with the idea of popular sovereignty a distant second. After all, an interruption of the Saudi oil supply could have fairly dire consequences for most of us.
Finally, the (assisted) success of the revolution in Libya will surely increase the pressure on the remaining repressive regimes.

29

Zack 03.20.11 at 9:10 pm

Those notes/conversations sound interesting, Conor. Let me know if there’s a place I could read your more extended thoughts on them. And the Gareth Evans point is well-taken – my claim more that R2P proponents have managed to rehabilitate the idea by separating it from people like Blair who, as you rightly pointed out, damaged it by association with Iraq.

30

Sev 03.20.11 at 9:14 pm

“After all, an interruption of the Saudi oil supply could have fairly dire consequences for most of us.” On second thought, probably something like this is what it would take to get the US more serious about alternative sources of energy/climate change. Of course, the first thought would be coal liquefaction or shale oil.

31

John Quiggin 03.20.11 at 9:18 pm

Important to note that “French domestic political” concerns were the adverse reaction to Sarkozy’s initial support for Ben Ali in Tunisia, combined with Sarkozy’s own political weakness. So, in practice this explanation is equivalent to some version of Responsibility to Protect.

Oil as an explanation for concern about Libya also seems implausible to me. Libya’s own oil is unimportant and Gaddafi’s downfall can scarcely be good news for the Saudi regime, even if they can get away with repression in the short term. If you want an explanation in terms of national interest, refugee flows are the place to look. But then, assuming the goal is to minimise refugee numbers, there’s a degree of commonality between European national interests and those of the Libyan people.

32

politicalfootball 03.20.11 at 10:06 pm

Libya’s own oil is unimportant

Tell it to the oil futures market.

and Gaddafi’s downfall can scarcely be good news for the Saudi regime

So you figure the Saudis are insincere in supporting the no-fly zone?

33

Rich Puchalsky 03.20.11 at 10:06 pm

“Rich (and I thought you had left our comments sections in a huff) – before you start tossing around codswallop that Conor is flacking for Western imperialism, you might want to read his book to see what he actually says about this stuff.”

Here’s what I wrote: “Then people like you go out and do your job, which is to tell everyone that technocrats are in charge and that the decision had nothing to do with those conspiracy nuts.”

Flacking for imperialism? No. Not unless “realism”, domestic political concerns, Obama’s whim, and every other motive not involving the legal debate about humanitarian intervention are all classed under imperialism. But making what Conor does sound a lot more important than it is, in terms of actual political decisions? Yes. Describing the process in this way serves the valuable function, for policymakers, of insulating them from political concerns and responsibilities, such as whether people in their countries want to be involved in another war. Instead the intervention is described as the outcome of a process which no one not expert in it has heard of, and which the public had better not opine about because they don’t know much about it.

34

LFC 03.20.11 at 10:14 pm

Two recent articles on R2P:

M.W. Doyle, “International Ethics and the Responsibility to Protect,” International Studies Review 13:1, March 2011

C. Badescu and T. Weiss, “Misrepresenting R2P and Advancing Norms,” International Studies Perspectives 11:4, November 2010

The latter, judging from the abstract and a skim through, suggests that, far from weakening R2P, misuses of R2P such as in the Iraq invasion run-up have actually strengthened it: “misuses can advance norms through contestation and conceptual clarification” (from the abstract).

35

geo 03.20.11 at 10:15 pm

36

politicalfootball 03.20.11 at 10:33 pm

But if that was the case, it would be much simplier to help Gaddafi, who for sure would like “stability” to be enforced.

In fact, when Gaddafi was effectively enforcing stability, he was a U.S. friend. The only thing that changed was the stability.

For me, to say that “oil” is at the root of this is only to say that we wouldn’t be having this conversation were oil not involved. Once Libya hits the agenda, then there are all kinds of other motives that come into play, but absent the oil, Libya ain’t on the agenda.

37

Conor 03.20.11 at 10:40 pm

John: on refugee flows. This is the classic justification for a Chapter VII intervention by the Security Council in a humanitarian crisis. The argument goes that a conflict/natural disaster/combination of them both will cause refugee flows, which will de-stabilize a neighbouring country and, therefore, cause a threat to regional peace and stability. This may or not be true (it was true of the refugee crisis in northern Iraq in 91 when Turkey sealed its borders on that basis) and it was certainly cited in relation to Somalia and Bosnia – although probably with less justification. The legal point, though, is that the UN Charter does not provide for interventions solely in order to protect human rights or to ´interfere´ in a state´s internal affairs(see Article 2) and so there has to be some justification found for a Chapter VII action (threat to regional peace and security). The respect for national sovereignty is usually very strong in the wording of these resolutions (eg without prejudice to natioal government´s responsibility) which makes the wording of the current resolution so remarkable.

38

Henry 03.20.11 at 11:00 pm

bq. Flacking for imperialism? No. Not unless “realism”, domestic political concerns, Obama’s whim, and every other motive not involving the legal debate about humanitarian intervention are all classed under imperialism. But making what Conor does sound a lot more important than it is, in terms of actual political decisions? Yes. Describing the process in this way serves the valuable function, for policymakers, of insulating them from political concerns and responsibilities, such as whether people in their countries want to be involved in another war. Instead the intervention is described as the outcome of a process which no one not expert in it has heard of, and which the public had better not opine about because they don’t know much about it.

Rich – Google is your friend here. It usually is a good idea to find out what someone actually ‘does’ before intimating that they are trying to make that activity sound more important than it is. And precisely the same bad systematic-functionalist argument can be made in re: you. Making these silly claims serves the useful purpose, for policy makers, of making the broad case against intervention sound stupider than it is, and suggesting in the most direct terms that the public had better not opine about it because they (or – more precisely – you) don’t know much about it. Yes – this is a stupid argument. But the stupidity cuts in both directions.

39

Davis X. Machina 03.20.11 at 11:20 pm

@politicalfootball (32)

“Tell it to the oil futures market.”

Brent crude’s up less than 2% today. Over time that kind of increase will tell, but in the short run, it looks like events aren’t moving prices dramatically either way.

“My sense is that R2P is not really going anywhere and it has scarcely featured in the debates about the current intervention.”

Not going anywhere in the sense of not going away, or not going anywhere in the sense of not gaining any traction?

40

Z 03.20.11 at 11:20 pm

Important to note that “French domestic political” concerns were the adverse reaction to Sarkozy’s initial support for Ben Ali in Tunisia, combined with Sarkozy’s own political weakness. So, in practice this explanation is equivalent to some version of Responsibility to Protect.

The limitations of my English being what they are, I am unsure I understand the meaning of this paragraph. I’d just note that in addition to what you mention John, there is the fact that N.Sarkozy was a very close ally of Gaddaffi, so that anything but intense bellicosity would have been interpreted as payback from past favors (this was captured by the reaction of a famous satirical french show to the announce that targeted bombings were underway “Let us look at the targets intended”, the show announced, then they displayed Gaddaffi’s desk with a copy of a financial plan for the last presidential election).

Anyway, to make things crystal clear, Sarkozy’s party suffered today a severe electoral defeat in local elections, and it has been reported by independent and credible sources that France first blocked then hastened the military intervention. From a French perspective, the intent is clear: the intervention was timed so as to maximize impact on the French electorate (I can already hear the talking points tomorrow “yes there were elections yesterday but let us concentrate on the big international picture where the President etc…”). So for one of the key player, the intervention seems to have been completely motivated by domestic factors.

Again, something done out of pure political calculation can once in a while have positive consequences, but to believe that these consequences were the main motivation for France seems naïve.

In the real world, what I feared about military strikes has come to pass. Civilian deaths already number a few dozens, the Arab league is withdrawing its support and it is completely unclear what long term consequences for Libya can be foreseen.

41

Hidari 03.20.11 at 11:47 pm

‘Finally, the (assisted) success of the revolution in Libya will surely increase the pressure on the remaining repressive regimes.’

Maybe but not necessarily. If it strengthens the forces of the ‘West’ (i.e. the United States) then the only repressive regimes who will feel increased pressure will be Iran and Syria. As someone else above pointed out, if defeat for Gaddafi will be bad news for the Saudis why are the Saudis backing the ironically named ‘no fly zone’?* (Ironic because of course it is only the Libyan air force which cannot fly above Libya. The Americans can fly, and for that matter, bomb, with impunity).

*This is very different from the situation in Egypt, which really did increase pressure on the Saudis, as they made clear ‘off the record’.

42

Major Alfonso 03.20.11 at 11:48 pm

@24 Leedrick “Portugal and Lebanon may have humanitarian motives (though if so, why no planes?)” – Portugal are in financial meltdown and probably couldn’t afford to send a packet of crackers. I’d imagine the bond markets would throw an extra 1% on their rates if they thought the country was spending money on jacking up the price of oil/saving lives. While Lebanon… planes? What planes? Hardly an armed forces that will ever go on foreign excursions given the domestic instability and neighbourhood and the ever present cleavages within the forces themselves. That there is a Lebanon capable of taking positions on issues such as this so close to home is a minor miracle. You might say the new Lebanese administration want to be in the right camp on this one, to prove they aren’t shilling for Syria and Iran, but if Gadaffi goes it will likely influence Syrian demonstrators much more than either the fall of Ben Ali or Mubarak. Is this just Lebanon attempting to prove it’s responsibility? I reckon they want Gaddafi gone for killing Musa al-Sadr and little else.

43

politicalfootball 03.20.11 at 11:53 pm

Brent crude’s up less than 2% today. Over time that kind of increase will tell, but in the short run, it looks like events aren’t moving prices dramatically either way.

One day’s change in the oil futures market isn’t what I was talking about, but “less than 2%” is a substantial increase, and if you Google up a chart that goes back further than one day, you’ll find that Libya’s troubles coincided with a pretty dramatic jump in oil prices.

Anyway, my only interest in oil prices is to rebut Prof. Quiggin’s assertion that Libyan oil is an “unimportant” factor in the West’s deliberations on intervention. A stronger argument, I think, arises from the relative lack of interest in the West regarding human rights abuses elsewhere. (And in the West taking the opposite side in other oil states.)

44

Rich Puchalsky 03.21.11 at 12:20 am

Does the bad systematic-functional argument really work in the same way in both directions? Let’s see. I was saying that Conor, as an expert, was playing up the necessity of expert understanding of the legal process that supposedly led to war. (Am I allowed to say that he’s presenting himself as an expert in this, or do you want me to Google further? He just wrote that “I have spent the last few months reading every single resolution on ´protection of civilians´ for a project that I have been working on for DPKO”.)

You’re saying that one could equally (badly) argue that my silly comments work to discredit opposition to intervention. If only “the broad case against intervention” could be made by experts, than it wouldn’t sound as stupid as I’m supposedly making it.

The difference between those two arguments is that one takes for granted that there should be public discussion on whether we should go to war, and one doesn’t. If the people were actually consulted in any way, naturally one would expect many arguments, some silly, some not. This is naturally not something I’d expect you to understand, Henry, given how many reasons you find for telling people to shut up. I don’t even expect you to understand why anyone would be annoyed that an expert dismisses skepticism about legalism in this area as belief in “western plot(s) to invade”. But anyone with a somewhat less technocratic orientation will easily see the difference.

45

Omega Centauri 03.21.11 at 12:57 am

If you think seriously about the realpolitic implications for any of these politicians you will find (similar to sev@28) that:
(1) The Libyan oil does matter. Spare capacity, if it still exists is now minimal, and the world could be on the brink of an severe oilprice shock. The fragile economic recovery would not withstand this. I’m sure this figures in the calculus of all those involved in making this decision. (Of course realists, and the market, know that much of Libyan oil production is lost for years, no matter the resolution of the current civil war.)
(2) The refugee flows into southern Europe are a big threat to the fragile EU economy. Again it is unrealistic to think any of the major political decisionmakers are unaware of this risk.
(3) The public support base of these politicians because of the before mentioned “facebook revolutions” are much more aware of the sufferings of the people in North Africa then was the case for previous events of this nature. That means, that the politicians have to be seen by segments of their own populations as taking the moral highground.
(4) If we take a realistic view of the whole “long war/war on terror”, its causes and probable resolution we see, that the cause was largely the repression of the peoples in MENA, and the inability to make progress against them. The Obviously favorable (to the west) outcome would be that those frustrations are removed. Even better if the revolutions that eliminate those frustrations are largelt secular. Again, those politicians for whom the whole war on terror thing is important domestically cannot miss this either.

So we have a conjunction of realpolitical calculus, with moral outrage. A pretty potent combination.

The situations in say Bahrain or Saudi Arabia are not comparable, at least not yet. Scale of repression matters. The fraction of the populations of these states at risk of losing their lives over this are far lower. This does matter as far as the calculus goes. Also the risks, of say destabilizing Saudi Arabia, are almost unthinkable, as far as the world economy is concerned. The Bahraini protestors are mostly Shia, and rightly or wrongly in western minds that is conflated with “puppets of Iran”.

46

ajay 03.21.11 at 1:00 am

Anyway, my only interest in oil prices is to rebut Prof. Quiggin’s assertion that Libyan oil is an “unimportant” factor in the West’s deliberations on intervention. A stronger argument, I think, arises from the relative lack of interest in the West regarding human rights abuses elsewhere. (And in the West taking the opposite side in other oil states.)

So, let me get this straight – we are bombing Libya and supporting the overthrow of a nasty but basically compliant dictator, because of oil. Simultaneously, we are tacitly supporting the repressive activities of other nasty but basically compliant dictators in the region, also because of oil. You aren’t struck by any inconsistency here?

47

Henry 03.21.11 at 1:15 am

Rich – what Conor actually does is to work on the ground with humanitarian and civil rights organizations in various spots of the world. His expertise is derived primarily from this experience on the ground. And his book – and related bits of advocacy over the last decade, has been precisely to argue, on the basis of his experience on the ground, against a misguided general assumption that a “responsibility to protect” is a good thing and justifies intervention in places like Iraq. Approximately 30 seconds of Googling would have allowed you to figure this out. For what it’s worth, actually going back and looking at his original posts for us (or this piece which I linked to from my original introduction), would have done the job quite nicely.

And you are (not for the first time, nor the second, nor the third, nor the ….) reading things into his post that simply are not there. The claim that Conor does not take for granted that there should be public discussion of going to war is a grotesque misrepresentation – and one that bluntly seems to me to have more to do with your own personal demons than with anything that he has written or can reasonably be taken to imply.

More precisely, he does not, under any reasonable reading, “dismiss skepticism about legalism” as a belief in western plots to invade. Instead, he makes a purely empirical argument – that the particular wording of this document has more to do with internal debates within the legal/expert community than with the purported desire of Western countries to get the oil. This is not a normative claim. It is perfectly compatible with the ancillary claim that these debates among experts have led in grotesque or fundamentally mistaken directions (Conor’s book is more or less just such a scathing criticism of earlier versions of the ‘responsibility to protect’ doctrine). It does not say that public debate is wrong or to be dismissed. It does say that a particular theory held by some in these debates is wrong, and to be dismissed. I trust the distinction is clear.

And I’m not telling you to shut up. I am telling you – again not for the first time, nor the second, nor the third – that actually engaging with arguments properly requires figuring out a bit about what the argument involves and why it is being made, rather than a ‘four legs good, two legs bad’ approach under which anyone who has ‘expertise’ and who makes an argument that you initially don’t like is trying to shut you (and by extension the Plain People of the Internets) out so that the argument can be settled behind closed doors by the technocrats. I do not plan to say any more on this topic in this thread, since I don’t want to derail it, but nor did I want to let the original sneer stand without challenge.

48

Omega Centauri 03.21.11 at 1:27 am

ajay: I don’t see the contradiction on the realpolitic side of the issue. Qaddafi, was fine for international business puposes, while he was in firm control. But, once the extent of the opoosition became apparent, and he decided he must stay in power no matter the cost to his country/countrymen, is when things turned from “we can hold our noses, and pretend not to see”, to,
“this is going to be a tremendous catastrophe, and our interests will be severely impacted”. So far the other currently being suppressed revolutions have not crossed that sort of severity threshold.

49

Rich Puchalsky 03.21.11 at 2:09 am

“Instead, he makes a purely empirical argument – that the particular wording of this document has more to do with internal debates within the legal/expert community than with the purported desire of Western countries to get the oil.”

If the claim is about the wording of the document, then I agree with it. But the document is not the decision. (Or did I misread “This debate has probably had far more influence on the Security Council’s recent decision than any ‘western plot to invade another country in the Middle East.” as referring to “decision” in the colloquial sense, as opposed to a sense in which written documents of this kind are referred to as decisions? That doesn’t really make much sense — no one would expect the Security Council to write “we have decided to seize the oil” in their official decision — but I guess it’s possible.)

So, assuming that I read the statement correctly, what you describe as his empirical argument in no way leads to the conclusion “It does say that a particular theory held by some in these debates is wrong, and to be dismissed.” How can a theory about the reasons for the decision be dismissed by referring to the document? Only if the document reflects the actual reasons for the decision, and is not an after-the-fact justificatory smokescreen for them.

Let’s see what you’ve summarized in your comment. It starts with someone with heroic experience in humanitarian work and expertise in a particular legal process, and ends by saying that “a particular theory held by some in these debates” is wrong, and to be dismissed. Why? Because expertise in how the document was written equates to knowledge of why the decision was made. And public debates need not end, of course, but certain people in those debates really have to give up talking about western plots to invade or they’re going to look silly.

Are you really sure that I read something into the post that wasn’t there? Because that was exactly it.

50

Alex 03.21.11 at 3:02 am

the significance that I am attaching to the wording may just be because I have spent the last few months reading every single resolution on ´protection of civilians´ for a project that I have been working on for DPKO and it is a huge jump in legal terms from the previous resolutions.

So let me get this straight. The one time in quite a number of years that Western governments feel like intervening in another country AND go the UN route, the legal terms are a lot more flexible and wider than normal. That would be exactly what you would expect to see if this wasn’t motivated by RtP, but instead was about using RtP as a cover for more dubious ulterior motives.

Something else that counts against RtP being the motivating factor here (or even the main one), is that at the start of the year many of these leaders were busy selling Gaddafi weapons to repress his people. Now all of a sudden we’re supposed to believe they’re motivated by humanitarian factors by intervening?

51

William Timberman 03.21.11 at 3:30 am

Reading this thread, I’m tempted to ask which is the blunter instrument, war or politics? (And wasn’t von Clausewitz’ take on the relationship between them just a teensy bit disingenuous after all?) I’m not entirely sure that Conor and Rich can’t both be right here. Under the circumstances, it beggars belief that R2P could be the basis of anything taken seriously by the governments of today’s major powers. It’s simply impossible for anyone even remotely familiar with the history of the world since 1945 not to snicker when asked to take such a proposition at face value.

And yet, and yet…. The obstacles to honesty in politics are such that people of good will in the various governmental and supra-governmental agencies, in the Institutes of This and That, the NGOs and think-tanks, etc. are such that any bending of the arc of the moral universe would necessarily take a lot of time, and a truly godawful number of the powerless hanging on the end of it to make any progress at all. Even so, that’s how progress is ultimately made — which I take to be the thrust of Conor’s argument.

Or to take an example which seems at first to be irrelevant: Galileo had to either recant or be disposed of, and no weeping over his fate, if any, until way later. Eppur’ si muove, however, eventually came to be a far more important marker of our civilization than the putative infallibility of the church. Something to ponder, I think, and although I more often think that Chomsky — and Rich — have the better case when probing the motives of the powerful, what they have to say isn’t necessarily all that needs to be said.

52

John Quiggin 03.21.11 at 3:36 am

@Z To clarify my point, I agree exactly with your statement that “N.Sarkozy was a very close ally of Gaddaffi, so that anything but intense bellicosity would have been interpreted as payback from past favors”, and that he was therefore compelled to act by domestic political pressure.

My point is that this domestic political pressure was not the result of what would normally be called domestic concerns (eg about the price of oil) but reflected the belief (at least for the moment) of French voters that the downfall of dictators was a desirable goal.

Whether or not this turns out well is another matter. The point I was making is that an explanation of the intervention in terms of international realpolitik doesn’t stand up.

This point also applies to Alex @50. We don’t have to believe that Western political leaders are motivated by humanitarian concerns in this case, any more than when they decide to raise (or not to cut) welfare benefits. All that matters is that they judge it to be politically necessary to respond to those concerns.

53

William Timberman 03.21.11 at 3:37 am

Ugh. Too hasty with the submit button. Please make that:

bq. ..NGOs and think-tanks, etc. *are reduced to prayerful pleading,* and any bending of the arc of the moral universe *must* necessarily take a lot of time, and a truly godawful number…

Apologies for the incoherence.

54

Satan Mayo 03.21.11 at 6:02 am

Something else that counts against RtP being the motivating factor here (or even the main one), is that at the start of the year many of these leaders were busy selling Gaddafi weapons to repress his people. Now all of a sudden we’re supposed to believe they’re motivated by humanitarian factors by intervening?

I thought he wasn’t in the habit of using major military equipment to repress his people until a couple weeks ago. He was more into handing it out to other non-Arab governments that were engaged in actual conflicts.

55

Alex 03.21.11 at 6:55 am

I thought he wasn’t in the habit of using major military equipment to repress his people until a couple weeks ago.

He hadn’t used “major military equipment” on his own people (at least not to this extent) in recent years, but arms aren’t just for using, they’re also a big sign saying “Rise up and these weapons will be turned on you”.

This point also applies to Alex @50. We don’t have to believe that Western political leaders are motivated by humanitarian concerns in this case, any more than when they decide to raise (or not to cut) welfare benefits. All that matters is that they judge it to be politically necessary to respond to those concerns.

Well, no. The political leaders of these operations need to have altruistic motivations else they won’t have the best interests of Libyans at heart. An example off the top of my head (assuming the motivation you suggest – though I’ve seen no polling that imply French public support) would be if there’s “collateral damage”, and the coalition try hiding the bodies/denying involvement/smearing the dead or wounded.

56

Martin Bento 03.21.11 at 7:17 am

FWIW, I suspect the major motivations are neither humanitarian nor oil-based, but a desire for Western powers, especially the US, to retain their credibility and influence in the area, most directly in Egypt, but, as we’ve all seen lately, Egypt’s voice is heard loudly throughout the region. I have to agree with Rich that a close legal reading of the document is not a reliable guide to actual motivations and should not be treated as such. Are we really to the point where it is a “paranoid conspiracy theory” to suppose that politicians sometimes lie?

What concerns me more than the motivations is the incoherence of the whole thing. It is just to protect the civilian population, but Ghadafi must go? Who is going to make him go? We don’t have the mandate for an occupation, so we can’t set up a government directly. Also, Obama has ruled out ground troops. So is the plan for the rebels to take Ghadafi out? That means we are crippling Ghadafi’s ability to fight and forcing him into a ceasefire with the intention that the other side not respect the ceasefire, or only respect it till we can change the situation so that it is no longer in their interest to respect it. What kind of humanitarian mission is that? That’s a mother holding a bully’s hands, so her son can hit back safely. Ghadafi is arming his civilian supporters, so attacks by the rebels on his forces will constitute attacks on civilians to about the same extent as the reverse. The man does have supporters, after all, and an important dimension of this conflict is tribal.

Suppose then we freeze things to the status quo. Well, Ghadafi has most of the country, and almost all the oil, and it will be hard to prevent reprisals against rebellion supporters in the regions he controls, especially without boots on the ground. Or he could just wait. This is a recipe for a quagmire. If we do not get rid of Ghadafi, the only way to protect the civilian population indefinitely is to stay engaged indefinitely, and even that is dubious sans ground troops. Is the Eastern Rump even viable as an independent state?

I don’t know how to do it under international law, but I think we would be much better off if we could drop the BS, admit we’re siding with a violent revolution against Ghadafi, not just preventing a slaughter, and move to get him out of power quickly. Then try to create a true liberal democratic government. No, it didn’t go well in Iraq, but that was in bad faith, and not building on an authentic uprising. It could turn out better, even if privileged access for Western oil companies just happens to end up part of the deal, by pure coincidence, as in Iraq. I’m not optimistic on the prospects, and therefore would have preferred to stay out of it, but now that we’re in, a limited mission looks like an unending mission, and one that could only achieve limited success anyway.

57

Hidari 03.21.11 at 9:18 am

‘Something else that counts against RtP being the motivating factor here (or even the main one), is that at the start of the year many of these leaders were busy selling Gaddafi weapons to repress his people. Now all of a sudden we’re supposed to believe they’re motivated by humanitarian factors by intervening?’

Not just that, but the fact that they were selling Gaddafi arms, are now bombing him and trying to kill him, and not only are they not apologising for or explaining this inconsistency, but are not even admitting that anything has changed (it’s really impossible not to think of Orwell’s 1984 here). For example that babbling fool and (alleged) crook Blair was last seen in Rupert Murdoch’s Sun arguing that ‘I am right! About everything! Sell them arms! Then bomb them! Bomb them while we sell them arms! Bomb them because they accepted the arms which we asked them to buy! I am right right right right right I tell you! And I always have been! That will be £10,000’.

I paraphrase.

58

Henri Vieuxtemps 03.21.11 at 10:20 am

My point is that this domestic political pressure was not the result of what would normally be called domestic concerns (eg about the price of oil) but reflected the belief (at least for the moment) of French voters that the downfall of dictators was a desirable goal.

Is there any evidence that French voters favor military involvement in Libya, let alone actually pressuring their government to start a shooting war there? I mean, yeah, there’s one, obviously – Bernard-Henri Lévy, but how many more?

59

LFC 03.21.11 at 10:24 am

Cf. R. Payne’s post Libya: R2P or Regime Change?

60

novakant 03.21.11 at 10:49 am

It usually is a good idea to find out what someone actually ‘does’ before intimating that they are trying to make that activity sound more important than it is.

What Conor ‘does’ here (and I don’t have the time to find out what else he does or say) is privilege his own framing of events and dismiss other versions as stupid and ill-informed – you’re doing the same. What kind of a response do you expect, especially since it’s blatantly obvious that factors such as strategic and business interests cannot be ignored when evaluating this conflict and many, many others (see #57).

61

LFC 03.21.11 at 11:05 am

@57, 60:

Re the they-sold-arms-to-Gaddafi-now-they’re-bombing-Libya-they-must-be-hypocrites theme: look, as others have pointed out, there’s a difference between being a repressive dictator and being a repressive dictator who starts shooting his own citizens en masse. Yes, there is a Western arms industry and mil-ind complex that sells lots of arms to unsavory people. Yes, the Western leaders are not exactly saints. This doesn’t mean the recent actions are all about oil and money and everything else is just a fig leaf. No.

62

Random lurker 03.21.11 at 11:15 am

# O. Centauri (45)
(2) The refugee flows into southern Europe are a big threat to the fragile EU economy. Again it is unrealistic to think any of the major political decisionmakers are unaware of this risk.
In Italy the refugee flow is already seen as a major problem, in part because a major costituoent of the government is the “Lega Nord”, a party that is based ona a “no immigrant” and rather xenophobic platform.
The Italian government actually asked other EU governments to “share the burden” of refugees but AFAIK had only a negative answer from France.
In the meanwile, the “reception camp” (in reality a sort of temporaneus prison for illegal immigrants) of the small island of Lampedusa, where most immigrants arrive, is already crowded over maximum capacity. The government tried to send there some tents to provide a camp for the refugees but the citiziens of the island blocked the ship with the tents, apparently because they fear that the camp could became permanent.
Interestingly, the only major party that was against intervention in Italy was exactly the “Lega Nord”, because they feared that a war will cause an increase of the number of refugees.

63

Rich Puchalsky 03.21.11 at 1:06 pm

I should emphasize that I’m not making a positive claim that we know that the intervention is about oil, or geopolitics in general, or any of the other possibilities including a narcissistic whim of Obama’s. I’m saying that we don’t know. This is particularly important within America because of recent American history.

Americans were recently lied into war in an egregiously deceptive fashion. The occupation resulting from that war still continues, after hundreds of thousands of Iraqis died. And now people are assuring us that this time the humanitarian impulse is sincere? That we should read Obama’s Nobel speech, study the books written by his advisors, the legal reasoning behind the Security Council decision, as if all of that means something? There were many good comments since #50 or so, but I’ll quote Martin Bento: “Are we really to the point where it is a ‘paranoid conspiracy theory’ to suppose that politicians sometimes lie?”

I’m only going to write about America in this comment, since I know too little about what’s going on elsewhere. What would convince people that Obama was sincere? Well, first, he could address the war crimes committed by the previous Administration, including openly admitted waterboarding. Has he done that? No, in fact he’s effectively given them blanket immunity. Second, he could stop the U.S. from continuing its shameful treatment of people at place like Bagram and Guantanimo. But no, that would cost domestic political points, to put the best possible construction on it. Third, he could act consistently — if he thinks that this is a good reason for intervention, why not in other countries that seem similar?

We’ve just had the strongest possible proof that politicians lie about humanitarian intervention as a reason for war. And now we’re to accept legal justifications as reflecting the actual reasons for war, when none of the actions of the politician in question match them?

No. If protests worked, then this intervention should have been protested immediately. Bush and the Iraq War did damage to the American polity that Obama has not exerted himself to repair, but has instead exacerbated. I have no idea what the actual reasons for this intervention are, and at this point, politicians who want us to go to war again should have to demonstrate what those reasons are through actions that cost those politicians actual political effort, not hide behind legal smoke.

64

Andrew 03.21.11 at 1:10 pm

Conor @25: the significance that I am attaching to the wording may just be because I have spent the last few months reading every single resolution on ´protection of civilians´ for a project that I have been working on for DPKO and it is a huge jump in legal terms from the previous resolutions. The country representatives at the UNSC will have been aware of this and so the strong vote in favour of it is also significant.

I actually wrote – and then deleted – that what I view as subtle differences may be much more significant to those very familiar with these documents. So point taken.

Reading your comment @37, it seems the most significant difference in wording in your view is the absence of the “without prejudice to national efforts” clause found in other resolutions, indicating less respect for national sovereignty than has been the case previously.

Now… I must admit that I find such a clause extremely elastic even where it does exist. Suppose it existed here. Loyalist tanks are argued to be harming, not protecting, civilians, and so destroying those tanks does not prejudice national efforts to protect civilians. Ditto for anti-aircraft, other vehicles used in offensives, and so forth.

In other words, I think it very easy, whether the clause exists or not, to justify current military actions with very plausible arguments.

I think to flesh out the idea that these changes of wording are significant, it might be worth sketching out a broader theory of what role the UNSC plays in int’l affairs, and the extent to which the wording limits what Member States may do under those resolutions. There is, after all, no judiciary to tell a Member State that its interpretation is incorrect – and so it seems, to me anyway, that the UNSC, in language that is frequently vague so as to win, diplomatically, votes, gives over the power of interpretation to the enforcing Member States.

And in that case, the difference in wording will be as significant (or not) as the interpreting States wish those differences to be.

65

Hidari 03.21.11 at 2:16 pm

‘Re the they-sold-arms-to-Gaddafi-now-they’re-bombing-Libya-they-must-be-hypocrites theme: look, as others have pointed out, there’s a difference between being a repressive dictator and being a repressive dictator who starts shooting his own citizens en masse’.

Yes, but from the perspective of international law, a repressive dictator invading another country (who poses it no threat) is even worse, because of Westphalia etc. Now: Saudi Arabia has just invaded Bahrain to prop up the Bahraini junta. And the US approves. Why? And what does this tell us about the oh-so-selective ‘morality’ of ‘the West’?

(As a counter-example, imagine that Iran had just invaded Bahrain to protect the Shia population there. Would the United States’ reaction have been the same?).

66

Norwegian Guy 03.21.11 at 2:21 pm

For all this talk about how the wording of the Security Council resolution authorises war, it’s interesting to see that at least Russia, China, India and the Arab League do not support the war. So you can say that the wording of the resolution is very deliberate etc., but surely the Russian, Chinese, Indian and Arab diplomats and governments did not see it the same way as the French/British/US etc. did. Why didn’t just Russia and China veto the war if they are opposed to it?

I can see at least two explanations for this:

1) The Russian and Chinese opposition is insincere, and they are really supporting the war.

2) The resolution wasn’t clearly worded at all, but could be interpreted in different ways. Perhaps the exact wording of the resolution is because all the member states on the UNSC want to be able to interpret it the way that suits them best?

67

Henry 03.21.11 at 2:28 pm

bq. Yes, but from the perspective of international law, a repressive dictator invading another country (who poses it no threat) is even worse, because of Westphalia etc. Now: Saudi Arabia has just invaded Bahrain to prop up the Bahraini junta. And the US approves. Why? And what does this tell us about the oh-so-selective ‘morality’ of ‘the West’?

From the perspective of international law, this is not an ‘invasion’ – the Saudis have been invited in by the internationally recognized government of the country. The Westphalian system (which, as a historical sidenote, does not have much of anything to do with the Treaty of Westphalia), has no particular problem with an oppressive government seeking help from outside to maintain its repression – cuius regio, eius religio and all of that. From the point of view of ethics, it is of course entirely a different story. But that is a different kind of hypocrisy, I think, from the one you are suggesting is going on here.

68

William Timberman 03.21.11 at 2:29 pm

Hidari @ 57

Your paraphrase reminds me of the last page of Ulysses. Tony Blair as Molly Bloom…now there’s a truly awful bit of conjecture. We’ll be in need of a proper debunking here, I think. Should we alert the political analysts, or the psychoanalysts?

69

Chris Bertram 03.21.11 at 2:42 pm

_I can see at least two explanations for this:_

A third possibility:

(3) China and Russia believed that France, UK, USA would do it anyway, and would prefer that an action that they disagree with go ahead under the fig leaf of international law rather than seeing global norms further undermined. Since no essential interests of theirs are challenged, they are content to heckle from the sidelines.

70

Henri Vieuxtemps 03.21.11 at 2:46 pm

Ah, Chris beat me to it:

3) They don’t mind the US/UK/France to get involved with another tar-baby. Sit back and pass the popcorn.

71

Hidari 03.21.11 at 4:04 pm

‘From the perspective of international law, this is not an ‘invasion’.

Really?

http://www.un.org/documents/ga/res/37/a37r037.htm

72

Henry 03.21.11 at 5:56 pm

Yes, really. For starters, UN General Assembly resolutions are not usually seen as a significant authoritative source of international law. But more generally, the Westphalian norms against non-intervention usually presuppose a very large degree of freedom of action for recognized sovereigns within their own borders, and inviting various actors in, even for nasty purposes such as killing innocent demonstrators, squashing dissent etc, is usually considered within those limits. NB that this does not excuse the US from (in my opinion, quite well merited) accusations of hypocrisy on Bahrain, given their elastic attitude to Westphalian principles and non-intervention in a multitude of other cases (the question becomes: if the US is willing to break the rule of non-intervention here, here and here, then why not there too?). NB also that supposedly inviolate rules on non-intervention are frequently broken in practice (hence e.g. Krasner’s “Organized Hypocrisy” book, also the very interesting Cooley and Spruyt book on sovereignty as incomplete contracting in e.g. overseas bases agreements etc). But, insofar as there is an international law worth talking about based on Westphalian principles, and insofar as we ought to care about it, it seems to me that what Bahrain has done is incontestably within those limits. Again, I stress, this does not mean that one shouldn’t be harshly critical of US hypocrisy on Bahrain – but the criticism should be based on different grounds.

And I think that this is not an empty objection. People who are strong on states’ sovereign right to non-intervention under Westphalian principles also tend to be strong on states’ rights to do whatever they want to their own people without interference by the outside world. Criticizing these practices, as you would like to do, implies (I think very nearly necessarily) being critical of the Westphalian notion of sovereignty. It does _not_ mean embracing every and all intervention by outside powers – or even _any_ intervention by outside powers given the current international order. But it does mean, I think, that one cannot have one’s Westphalian cake (by accusing the US of failing to respect Westphalian principles) and eating it at the same time (by thinking that Westphalia prevents the ruling house of Bahrain from getting outsiders to come in so as to do horrible things to their citizens).

NB though that in all of this I have fairly idiosyncratic views of international law, and am at best unconvinced that it has substantial normative weight in and of itself – so take these arguments with that caveat in mind.

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engels 03.21.11 at 7:17 pm

Jeremy Corbyn writing in The Guardian:

[…] One can’t help but be struck by the rush to military involvement by politicians of all countries and all persuasions. The contrast with the western treatment of the rest of the region could not be more stark. The Palestinian people have lived with occupation for 60 years, well over 1,000 died in Gaza during Operation Cast Lead, settlements abound and Israel possesses nuclear weapons. I can’t remember anyone calling for a no-fly zone in Gaza in winter 2008-09 when phosphorous bombs were used against a largely unarmed and defenceless civilian population.

Saudi Arabia is the world’s biggest oil exporter, and the biggest importer of arms from Britain and other countries. The importance of Saudi Arabia to western economic interests cannot be overstated, otherwise why would Blair take such an extraordinary decision as to suspend the Serious Fraud Office investigation into the BAE contracts with Saudi Arabia? Britain is up to its neck in supporting the Saudi monarchy with all the denial of human rights and aggression that the regime has shown toward its opponents. Saudi armed forces have crossed into Yemen in recent times, and last week entered Bahrain to support the king in his suppression of democratic protest.

News today of huge demonstrations and growing isolation of the Yemeni president, Ali Abdullah Saleh, looks like almost a replay of what happened in Tunisia. I asked a young activist in Tunis just a few weeks ago if their revolution was asking for western help, his reply was: “No, we will do it ourselves; the problem with the west is, it never knows when to leave.”

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Conor 03.21.11 at 7:25 pm

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Hidari 03.21.11 at 7:26 pm

CF comment 73: of course the hypocrisy as regards ‘Cast Lead’ is grotesque. But even more grotesque is the fact that the US invaded Iraq illegally (as is now admitted by almost everybody). If a ‘no fly zone’ had been put in place over the United States (and Europe) hundreds of thousands, maybe millions of lives would have been spared. But who even suggested such a thing? Who could even think such a thing? And even if such a thing was thinkable, who could possibly implement it? Asking these questions goes a long way to helping us answer deeper questions about who runs the world, and in whose interests.

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Charlie 03.21.11 at 8:32 pm

In the UK at the moment there seems to be some doubt as to whether or not Gadaffi is himself a legitimate target (in the context of the ‘all necessary measures to protect civilians’ UN resolution). The head of the army says he isn’t; the coalition government seems to be saying that he is, or might be.

So, is Gadaffi a legitimate target? Is he, in effect, a combatant? Are things such that if he weren’t targetted and stopped, his actions would directly harm civilians? Or is targetting him legitimised merely by his having made threatening speeches, say?

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geo 03.21.11 at 8:35 pm

Henry @72: In the 2009 post you linked to, you write: “First are things like UN Security Council approval for the use of force. This is international law – but I don’t think that one can plausibly argue that it has much inherent legitimacy.” You go on to say that it may be a good thing notwithstanding, for practical reasons. But you don’t say why, exactly, it’s not inherently legitimate.

If you mean that granting a veto to five great powers (or former great powers) has little moral justification, I agree. But the clear purpose of the UN Charter was to disallow unilateral military intervention. Even if the mechanism is imperfect, isn’t the principle entirely legitimate and urgently important?

You’ve probably addressed these questions elsewhere. (You promised to in the 2009 post.) If so, could you mention where?

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chris 03.21.11 at 9:00 pm

Are things such that if he weren’t targetted and stopped, his actions would directly harm civilians?

What exactly would be likely to happen if he *were* “stopped” (by which I assume you mean killed)? Is the pro-Gaddafi force largely defined by their support for Gaddafi as an individual, or is he the leader of a definite faction with some other raison d’etre? Tribal, sectarian, regional, something else? Who would succeed him, or is that an unsettled question among his supporters to the point that they would split into multiple factions and/or substantial numbers would join the rebels rather than accept his successor?

If Gaddafi is just the current leader of a faction that would carry on the war regardless, and retain control of most of the weapons regardless, then I can’t see how targeting him would have any effect that could possibly be characterized as positive.

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Tim Wilkinson 03.21.11 at 9:49 pm

So there have been a few threads on Libya, with a surprisingly prevalent 2003-ish feel: obviously it’s complicated, and the US are not acting out of the purest motives nor without hypocrisy, but still, we are being told some pretty extreme things and as serious people we’d better go along with it with some minor reservations. We can always complain later once the bullshit in the lead up, and the lack of any resemblance between what was proposed and what ensues, becomes glaringly apparent rather than just overwhelmingly probable. (Given that I have been against the intervention from the start, I want to get my smugness aired quick, before some vaguely realistic casualty figures start rolling in.)

Just a few questions by way of a reality check:

How many civilians have been massacred by Gaddafi’s forces; where and when, and how do we know this? Anyone got any footage of mass demos, violence against the protestors, that kind of thing? (I don’t include this ridiculous performance, featured by Juan Cole in his own ‘oh, go on then’ blog post linked to by CB on another thread). I assume all the particulars of the atrocities so far, and a systematic reasoned assessment of what is to be expected, was laid out before the UNSC before they doled out open ended war permissions. The pre-ramble of the resolution (these things are genreally pretty laughable as legal documents, but this one is a cracker) makes it sound as though there has been a lot of civilian killing and general war crimey sort of stuff, unspecified human rights violations, etc – hence the resolution protecting those civilians from the Mad Dog who was, we are sure, poised to do a Fallujah.

Is there anyone who imagines that there is any real limit on what this resolution will be used to justify? As everyone was well-aware beforehand, no-fly-zone = bombing, and it never ends there. Protecting civilians means all sorts of other stuff, shit happens, stuff escalates, ground troops, mustn’t cut and run. The only thing supposedly ruled out is an army of occupation, and since I don’t suppose the US consider themselves to have an army of occupation in Iraq or Afghanistan, or for that matter in Saudi or Kuwait, that’s pretty meaningless.

Do we know much about the rebel army? E.g. how it got armed, what it wants (or various factions want), whether it can be relied upon to achieve its objectives without endangering any civilians? In particular what the high-level regime defectors in the mocvement are after, and who they are talking to, and whether the National Front for the Salvation of Libya has much of a role?

Is anyone surprised that the mission acquired the subsidiary objective of removing (read: hunting down and killing) Gadaffi with ink still wet on the resolution?

Is there any good reason to suppose that weighing in on one side of a civil war/coup attempt and continuing until the chosen (currently it seems losing) side has prevailed (and a particular person has been killed, by bomb or rope) is a good way of ‘protecting’ civilians?

Is it at all clear that the Gadaffi ceasefire offer was given proper consideration by the ‘Int’l community and by the opposing army, and was allowed a chance before being despicably broken by Gaddafi’s forces? I haven’t heard this actually asserted – inxstead I heard a certain amount of airy scepticism about G’s bona fides followed immediately by NATO bombing raids.

Can we expect a lot of outrage against the rebel army from those who abhor the Hamas paramilitaries’ habit of mingling with the civilian population (i.e. being located in Gaza)? After all, it appears that they based themselves in Benghazi, amongst the civilian population.

(+ bonus q. Has anyone noticed that when SAS troops are captured, it’s always when they are in the middle of doing nothing very much of any importance? They have always got lost and foolishly strayed over a border, or they’ve only just arrived, etc; never, of course, engaged in a top-secret military manoeuvre. In fact they always seem to look rather silly – consistent with the officially preferred ‘cock-up’ theory of history.)

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Steve LaBonne 03.21.11 at 9:55 pm

This thing is turning to crap even faster than I expected. I take no pleasure from having been right.

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leederick 03.21.11 at 10:49 pm

“Why didn’t just Russia and China veto the war if they are opposed to it?

They gave reasons in ‘we are abstaining because of X’ speeches to the SC. Russia supports intervention, but the significantly different wording and strength of the resolution from previous practice that Connor notes was too much for them, so they abstained on the basis that while it’s not what they want, it’s better than nothing. China was opposed but didn’t veto as they respected the requests of Arab League and African Union (read ‘the requests of ‘ as ‘their commercial relations with’).

http://www.un.org/News/Press/docs/2011/sc10200.doc.htm

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Tim Wilkinson 03.21.11 at 11:02 pm

Omega Centauri: (4) If we take a realistic view of the whole “long war/war on terror”, its causes and probable resolution we see, that the cause was largely the repression of the peoples in MENA, and the inability to make progress against them. The Obviously favorable (to the west) outcome would be that those frustrations are removed. Even better if the revolutions that eliminate those frustrations are largelt secular. Again, those politicians for whom the whole war on terror thing is important domestically cannot miss this either.

I think this is to misunderstand the function of the War on Terror, which is pretty straightforwardly to fill the military/industrial/security/propaganda gap left by the Cold War (the ‘War on Drugs’ was inadequate for a number of reasons).

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Natilo Paennim 03.21.11 at 11:07 pm

Has there been any discussion around this topic that references the failure of the bourgeois democracies to aid the Spanish Republic against the Falange? The sticking point, from my point of view, is that the people from Libya who have called for UN/US/NATO intervention in Libya seem to be, almost without exception, members of the current ruling class in Libya. Call me a cynical old anarchist, but it seems that the likelihood of this whole mess turning into a pointless reshuffling of the face cards in the Libyan deck is rapidly increasing with every day.

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leederick 03.21.11 at 11:45 pm

“In the UK at the moment there seems to be some doubt as to whether or not Gadaffi is himself a legitimate target (in the context of the ‘all necessary measures to protect civilians’ UN resolution). The head of the army says he isn’t; the coalition government seems to be saying that he is, or might be.”

That’s actually a very bright sign. Gen David Richard – the head of the army – is unquestionably a humanitarian. He’s the guy who when ordered to Sierra Leone to evacuate UK citizens, and then get out and leave the natives to have their arms hacked off by the RUF, acted without authority to fight and end the civil war. It shows we have to be sceptical about whether the politicians are running the show or not. We know the Tory leadership want regime change, they’ve openly said it, the military’s agenda is another matter.

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politicalfootball 03.22.11 at 12:02 am

Call me a cynical old anarchist, but it seems that the likelihood of this whole mess turning into a pointless reshuffling of the face cards in the Libyan deck is rapidly increasing with every day.

I disagree with “pointless.” I think that this reshuffling is, in fact, the point.

Gaddafi became a problem, internal dissent became powerful, and it’s time for the Powers to reshuffle the deck. If that leads to democracy, that’s okay, but it’s not the point of the intervention, any more than it was in Afghanistan or Iraq.

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Tim Wilkinson 03.22.11 at 12:12 am

If G isn’t actually serving in the army then ‘targeting’ him would be an assassination, which is not supposed to be OK, is it? I imagine Richard was probably responding on that kind of basis. After that, the politicans contradicted him: regime change is the only way to ‘protect civilians’ in the recently elasticated phrase – and may have had some quiet words. I don’t think you will find Richard sticking to his earlier position under those circs.

But Gadaffi doesn’t have to be assassinated, shot with his hands up or collateralised to death – he can be captured, and hanged under the auspices of a US-run show trial, just like Saddam. The head of the army will do what he’s directly ordered to do, short of discrete cases of manifest illegality, perhaps.

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Lemuel Pitkin 03.22.11 at 7:51 am

The intervention over Libya undoubtedly opens a new chapter on this debate

Except in the narrowest legal sense, how can this possibly be true? Haven’t most wars historically been justified in humanitarian terms? Has the US *ever* bombed or invaded a country except in the name of human rights and democracy?

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ajay 03.22.11 at 10:13 am

Now: Saudi Arabia has just invaded Bahrain to prop up the Bahraini junta. And the US approves. Why? And what does this tell us about the oh-so-selective ‘morality’ of ‘the West’?
(As a counter-example, imagine that Iran had just invaded Bahrain to protect the Shia population there. Would the United States’ reaction have been the same?).

From an international-law point of view, Hidari, there’s a big difference between “sending troops into a country with the government’s permission” and “invading”.

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Andrew 03.22.11 at 10:21 am

Lemuel, but Conor’s point is not that the justification for war is new; it is that the UNSC, by this action, is further realizing and cementing an exception to the protections of sovereignty.

Tim, the US commander also disavowed any military effort to find or to kill Gadhafi, but my read is that this is driven more by a concern to keep the scope of the mission limited – for now – than legal issues. If the coalition wished to interpret “protect civilians” very broadly – holding that the destruction of the loyalist forces was the only way to achieve that protection – then it would make sense to target the command and control processes of the loyalist forces. The process itself would be the target, but Gadhafi, as a part of the process, might turn out to be targeted as well. There is an executive order forbidding assassination, but that’s not much of an obstacle if the President wishes to modify it, or put forth a certain interpretation of what assassination means in the context of the original prohibition.

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dsquared 03.22.11 at 10:31 am

From an international-law point of view, Hidari, there’s a big difference between “sending troops into a country with the government’s permission” and “invading”.

From a military point of view there are some fairly significant differences too.

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dsquared 03.22.11 at 10:37 am

Alan Kuperman, by the way, made a point which is rather bothering me (in the context of running out the “strategic victimhood” thesis for an NYT column), which is that given the ubiquity of camera phones these days, and the large amount of footage of every other recent Middle Eastern revolution, why is there so little video evidence of Gaddafi’s atrocities against civilians? There is some footage of demonstrators being fired on on the Wikileaks site, and the Times apparently had footage of casualties in hospital with machine gun wounds, but we were meant to be going to war because people were slaughtered in thousands.

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Hidari 03.22.11 at 10:40 am

I come back to the point: the Soviet ‘intervention’ in Afghanistan (which was, of course, to stop the rise of ‘Islamic fundamentalism’) was ‘really’ a case of the Soviets being ‘sending troops into the country with the government’s permission’.

And note also my counter-example in brackets (in the original post).

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Hidari 03.22.11 at 10:44 am

Incidentally since this debate could run and run, is there anybody who actually knows anything about international law writing here, who could comment on the Soviet invasion of Afghanistan? Is it generally agreed to have been an invasion, by modern international lawyers?

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Charlie 03.22.11 at 10:45 am

… it would make sense to target the command and control processes of the loyalist forces. The process itself would be the target, but Gadhafi, as a part of the process, might turn out to be targeted as well.

This could be rewritten as:

“It would make sense to target the healthcare and medical processes of the loyalist forces. The process itself would be the target, but the doctors and nurses, as part of the process, might turn out to be targetted as well.”

We don’t do this, of course. Even though medics play a useful military role in patching people up and, where possible, returning them to the fight, we target only combatants. It looks as though you’re declaring Gaddafi a combatant.

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dsquared 03.22.11 at 11:00 am

#92: the timeline in Afghanistan was 1) Afghan govt invites Soviet troops in 2) coup against Afghan government 3) Soviet troops overthrow new Afghan govt 4) Russia massively reinforces what is now an occupying army.

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ajay 03.22.11 at 11:06 am

Hidari:
Soviet involvement in Afghanistan happened in two phases:
in the first half of 1979 the Taraki government repeatedly requested Soviet help against the rebels, and received it;
in September Amin overthrew Taraki; and in December the Soviets landed special forces in Kabul, captured the presidential palace, killed Amin, installed Karmal, and brought in many more Soviet troops by land.

Phase 1 was “sending troops into the country with the government’s permission” – phase 2 wasn’t really. At present Saudi (and GCC) involvement in Bahrain is very much more like phase 1 than phase 2.

Your counterexample (Iran invades Bahrain) would be very different from what’s happening now – it would be indubitably an act of war.

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Myles 03.22.11 at 11:52 am

Can we get rid of the fatuous pretension that somehow just because the Bahraini and Saudi governments are not democratic, that they don’t constitute legitimate governments? And that somehow it’s a horrifying and exceptional event that one legitimate government is calling upon an allied legitimate government for assistance in repressing its own people, any more horrifying and exceptional than the act of repression itself?

I mean seriously, we can condemn Bahrain for repression, but let’s not get melodramatic every time the Saudis are brought in.

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Walt 03.22.11 at 12:11 pm

I may not have as big a vocabulary as some people, so I have a question. Does “fatuous pretension” mean “arguments that I’m too lazy to take on, so please stop using them”?

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PHB 03.22.11 at 12:44 pm

@Myles 97

No, a government that is not democratic can never be legitimate.

Attacking people who disagree with you in the terms you do is rather childish.

The only legitimate power comes from a mandate from the masses. That is not a pretension, that is how legitimacy is understood in the modern world.

In this case the Saudi intervention changes the situation because one illegitimate ruler has called on another to provide troops to suppress peaceful demonstration by his own people. As a result it is now a question of when, not if the monarchy of Bahrain falls. They have lost legitimacy amongst their own people. They are now a puppet of a foreign occupier.

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Norwegian Guy 03.22.11 at 2:09 pm

“Has there been any discussion around this topic that references the failure of the bourgeois democracies to aid the Spanish Republic against the Falange?”

I have seen the comparison with Spain being made, mostly by Swedish revolutionary socialists and anarchists/anarcho syndicalists/syndicalists as a reason why they are supporting the current bombing campaign.

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Lemuel Pitkin 03.22.11 at 4:01 pm

“Has there been any discussion around this topic that references the failure of the bourgeois democracies to aid the Spanish Republic against the Falange?”

Historically ignorant. The left did not criticize the UK, France, etc. for not sending troops to Spain. They criticized them for *imposing an arms embargo*, preventing the Loyalist government from purchasing arms abroad with its own funds. Our support for non-intervention is consistent.

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Henry 03.22.11 at 4:30 pm

George@77 – my broad position is that law and, more generally, social institutions do not have any legitimacy in and of themselves – they only have legitimacy to the extent that they express the results of some kind of democratic process of decision making (or, in the case of informal social institutions, that they arise from decentralized processes without blatant power asymmetries). Hence, I don’t see that UN Security Council resolutions have any real legitimacy – they have a significant and important pragmatic role, but that is it. Perhaps one could argue that the UNSC could over time be turned into something that was at least indirectly reflective of democratic processes, but I don’t think we are there, or likely to be there any time soon. I certainly don’t think that there is any moral case for or against unilateral military intervention _as such_ – some unilateral interventions could plausibly be for very good reasons, and even, every once in a while, have good effects. The arguments for having some international body approving them – in the absence of any form of international democracy or widespread democracy among the key veto players – seem to me to be prudential rather than principled ones. I think that the same issues arise if you start from the basis of human rights. In the absence of any really legitimate international body, there is no obvious rights-based justification for a veto on unilateral military action – at least none that is obvious to me. Again the case (which is mostly a good one, most of the time) seems to me to be a prudential one – that unilateral military actions are likely to work out pretty badly. To put it back in your court – what is the basis for the argument that the UNSC – or any similar body in a world not composed of democracies – or some principle that is instantiated in the UNSC – is inherently legitimate? I don’t see one – but that is not to say that there is no such argument … (and if I knew what your argument was I could respond better to it).

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engels 03.22.11 at 5:50 pm

my broad position is that law and, more generally, social institutions do not have any legitimacy in and of themselves – they only have legitimacy to the extent that they express the results of some kind of democratic process of decision making (or, in the case of informal social institutions, that they arise from decentralized processes without blatant power asymmetries). Hence, I don’t see that UN Security Council resolutions have any real legitimacy

How does this apply to English common law? Or European law? Decisions of the (UK) House of Lords?

Is international humanitarian law legitimate?

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Henry 03.22.11 at 6:16 pm

Engels – I was thinking exactly about institutions like English common law when I put in the bit about power asymmetries. There’s a long standing debate between people like Richard Posner – who say that informal institutions common law is teh awesome because it instantiates the accrued wisdom of the British people over time, and people like Jack Knight who point to the ways in which many such informal institutions involved pretty blatant power asymmetries in which weaker actors historically did badly. I’m on Knight’s side here. On European law – I think that there is some democratic legitimacy, through the Parliament (which people can vote for), and more weakly through the Council. I think that the steps towards greater veto power by national parliaments in the Lisbon treaty were a very good thing though. On the House of Lords – I don’t think that it has much inherent legitimacy worth talking about. I actually am, however, a little unwilling to get rid of it, as long as it remains a toothless debating chamber, because toothless debating chambers can bring up awkward and embarrassing stuff that national governments and opposition parties might prefer to leave alone. The House of Lords report on the Treaty of Prum is an excellent example – a pretty straight out accusation that the UK government deliberately fiddled the process of negotiation so as to get the outcome that it actually wanted, but couldn’t say that it wanted for fear of criticism on civil liberty grounds. On international humanitarian law I’m wobbly – I think that it is a good thing to have it, but fear for the ways that it can be used by actors seeking to prosecute their own selfish interests given the lack of democratically legitimate procedural restraints. I am all for doing the kinds of things that the ECJ has been doing to clip the UNSC’s wings on things like economic terrorist watchlists, which seems to me to introduce some very basic norms of procedural legitimacy and openness that might over time conduct towards more democratic international politics. That’s probably far more about my personal opinions than you wanted to know, but you did ask for it.

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engels 03.23.11 at 12:44 am

Henry, no, that’s more or less what I wanted to know: thanks. But with respect to English common law (for example), one can be extremely sceptical about the romantic picture of its development that Posner (apparently) signs up to, and indeed agree that it is far from being Teh Awesome, without viewing it is illegitimate. But I take it that is your view. I would assume that’s a fairly radical position for a liberal or social democrat to hold (although it wouldn’t be for a revolutionary communist… so maybe you should think about joining the club?)

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Henry 03.23.11 at 1:04 am

I wouldn’t say that it is illegitimate – rather that it has no inherent legitimacy, apart from its (greater or lesser) usefulness for particular purposes. I don’t know whether it is necessarily radical as a position, but fwiw I see myself as a social democrat (not a liberal except in a very generic sense of that word) with a sympathy for and interest in proposals for the radical remaking of economy and society, but strongly against violence in the conditions of early 21st century advanced industrialized democracies. So I’m certainly (non-violent) revolution-curious, but not a revolutionary.

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geo 03.23.11 at 1:24 am

what is the basis for the argument that the UNSC – or any similar body in a world not composed of democracies – or some principle that is instantiated in the UNSC – is inherently legitimate?

The Security Council’s powers derive from the UN Charter, which has the force of law in all the countries that signed it, in 1948 or subsequently. (Especially the United States, in which treaties take precedence — or are supposed to — over statutory law.) This seems to me as legitimate as legitimacy gets.

It’s true, as I acknowledged, that the veto power of the five permanent members is as unfair and irrational as is the existence of the US Senate and other features of the American electoral system. But that doesn’t affect the Security Council’s legitimacy, any more than the Senate’s.

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Salient 03.23.11 at 1:42 am

I wouldn’t say that it is illegitimate – rather that it has no inherent legitimacy, apart from its (greater or lesser) usefulness for particular purposes.

In this particular case the sheer number of abstentions speaks volumes to me. Even if one assigns/acknowledges inherent legitimacy of the UN Security Council, it seems to me that would confer a deference-inducing moral authority to a resolution passed with unanimous support, but not one passed with numerous and noteworthy abstentions that can be reasonably interpreted as dissenting ‘no’ votes.

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