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

bq. ‘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.

bq. ‘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.

Conor Foley guestblogging

by Henry on March 20, 2011

Conor Foley has kindly agreed to come back to write about the Libya intervention, international law, and topics related thereto. He has blogged on these topics before, and I recommend again his excellent book on the topic, The Thin Blue Line: How Humanitarianism Went to War. We’re really happy to have him back with us for a bit.