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What kind of law is this?

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Many aspects of the Libyan situation remain unclear: the scope of the mandate given to UN member states by Security Council Resolution 1973, the broader aims of the intervention, how many civilians have been killed and by whom, and who the rebels represent. One thing, however, seems clear: the international intervention is considered to be legal. International lawyers have agreed with the UK government’s advice that Security Council Resolution 1973 ‘provides a clear and unequivocal legal basis for the deployment of UK forces and military assets to achieve the resolution’s objectives’. Legal experts have been quick to suggest that Resolution 1973 gives authority for any action thought necessary not only to protect civilians, but to protect areas inhabited by civilians.

The constraints imposed on Libyan forces are similarly radical and far-reaching, going well beyond the obligations imposed by general international law on governments responding to insurgencies. The resolution demands ‘the immediate establishment of a ceasefire and a complete end to violence’, and bans all flights in Libyan airspace unless their sole purpose is ‘humanitarian’. If the expansive authority granted to international forces and the novel obligations imposed on Libya by Resolution 1973 are sanctioned by international law, what kind of law is this? And does it deserve our fidelity?

Resolution 1973 is the latest stage in a political experiment stretching back to the mid-1950s, when the UN and other international actors began to develop and systematise new forms of international executive action designed to fill what they saw as the ‘political vacuum’ emerging in the Middle East and Africa as a result of decolonisation. In claiming the political authority to take executive action independent of the interests of Great Powers, Dag Hammarskjöld challenged other 20th century visions of world order, such as those projected by Britain and France at Suez or Belgium in the Congo. The effect has been to create a long-term policing and managerial role for the UN in the decolonised world.

The idea that the Security Council might have jurisdiction to manage the conduct of a civil war has slowly taken shape, as international lawyers have loyally interpreted the UN Charter in ways that have authorised the new roles adopted by the Security Council, the Secretary-General and the Secretariat. There is little in the Charter that suggests its authors envisaged the creation of a powerful international executive that could undertake such wide-ranging forms of police action as fact-finding, peacekeeping or territorial administration. But this has never been treated as a constraint on UN involvement in such activity. Instead, generations of UN officials and international lawyers have argued that the UN and its organs must be deemed to have whatever powers are necessary to perform their functions. Over time, as the powers considered necessary for maintaining peace and security have been interpreted ever more broadly, an expansive apparatus of international rule has been established.

Over the past decade, the concept of a ‘responsibility to protect’ has emerged, which gives legal authorisation for international measures undertaken to protect people at risk from genocide, crimes against humanity, war crimes or ethnic cleansing, when the state is unable or unwilling to do so. The concept was developed in the aftermath of the Nato intervention in Kosovo, unanimously endorsed by the General Assembly at the World Summit in 2005, and specifically invoked by the Security Council when it authorised member states to take all necessary measures to protect civilians and civilian populated areas in Libya. The concept, like the UN Charter, does not impose obligations on the Security Council or the Secretary-General, but gives them an apparently unconstrained discretion to undertake executive action when necessary to further the goal of protecting civilians.

That discretion, however, is exercised highly selectively. It seems almost banal to point out that since 1945 international intervention has never been carried out against a Western European or North American state. Similarly, the ‘responsibility to protect’ is unlikely ever to be invoked to authorise measures against an ally of the West. Many governments have attacked civilian protesters over recent months, but there has been no international response to the declaration of martial law, the killing of civilians by government forces and the detention of protesters in Bahrain, the home of the US Navy’s Fifth Fleet; the killing of more than 60 protesters in Syria; the arrest, detention and alleged torture of scores of protesters in Egypt, whose new military cabinet passed a law on 24 March banning strikes and demonstrations; the killing of at least 29 protesters and the detention of hundreds more in Iraq since February, many of whom report being hooded and beaten by soldiers; or the killing of 52 protesters and wounding of hundreds more in Yemen, which is still receiving financial and military aid from the US. Israel, responding like Libya to an armed insurgency rather than peaceful protests, continues to engage in the blockade and aerial bombardment of areas inhabited by civilians. And then there’s the US counter-insurgency in Iraq, where according to the most conservative estimates more than 66,000 civilians were killed between 2004 and 2009.

In 1954, Carl Schmitt bemoaned the destruction of European international law in the 20th century. According to Schmitt, European international law had depended for its meaning on the recognition that ‘European soil or soil equivalent to it had a different status in international law from that of uncivilised or non-European peoples’. Once it had been transformed into ‘a universal international law lacking any distinctions’, it had ceased to be meaningful. Yet only two years later, the Suez intervention marked the emergence of a form of international rule premised on new distinctions, a response to the revolutions that swept the Arab world during the 1950s and 1960s.

Then, as now, young leaders were fired by dreams of pan-Arabic solidarity, by the desire to end oppressive and exploitative rule, and by hopes for a better future. Yet they were met with cynical disbelief, mockery and sullen hostility on the part of Western leaders. In Egypt, Libya, the Congo and many other states throughout the Middle East and Africa, the hopes vested in independence were destroyed by an alliance between local elites who gradually came to accept that their survival depended on powerful foreign sponsors, and a Western political and business leadership determined to ensure that independence did not deny them access to the resources of the decolonised world.

If today’s Western leadership is really ready, in the words of William Hague, to support the people of the Middle East in their ‘aspirations for a better future’, it will need to do more than use international law to target its enemies while protecting its friends. In rejecting their authoritarian leaders, the current wave of Arab revolutionaries is also rejecting the international system that has profited from their existence. As the US declares yet again that Israel has the right to defend itself against terrorists while bombs rain down on Libya, as protesters continue to be killed in Bahrain, Syria, Yemen and Iraq, and as the numbers of people detained continue to grow, the idea that Nato is working to support the freedom fighters of this Arab spring rings increasingly hollow. The bombing of Libya in the name of revolution may be legal, but the international law that authorises such action has surely lost its claim to be universal.

Comments on “What kind of law is this?”

  1. Joe Morison says:

    There was (i think but i can’t find it in the archives) an article in the LRB not long before Gulf War II which argued convincingly both that the war would be illegal under international law, and that this would be a very bad thing. The points made above seem strong to me; so i suppose i would have say that it’s good that this time it’s legal, but bad that it’s bringing the law into disrepute.

    I wonder which of these two will turn out to be the most significant: are we moving towards a world where the rule of international law is becoming more entrenched, or are we moving towards one where it comes to mean no more than what the powers that be want it to mean?

  2. John Beattie says:

    Also in the same area, but written after Gulf War II:

    http://www.lrb.co.uk/v28/n14/philippe-sands/reasons-to-comply

  3. Also within the same area, but more as a history of the ideology of humanitarian intervention, was Christopher Caldwell’s piece on Barnard Kouchner, which has been doing the rounds on Twitter:
    http://www.lrb.co.uk/v31/n13/christopher-caldwell/communiste-et-rastignac

    Here’s a soundbite: “the idea that humanitarianism can offer a politics that is not Machiavellian … turns out not to be quite true.”

  4. Max.Grotius says:

    Professor Orford is surely correct – and, given her recent substantial scholarly publication in the area, authoritative – in concluding that the claimed “responsibility to protect” is at least selective, if not naively utopian or, at worst, a cynical pretext.

    This said, though, the examples cited here can afford a different analytical starting point: accepting that the willingness to intervene remains a matter of (relative) national interest and, particularly, is not dictated by any universal obligation, why is it nonetheless that (i) the other permanent members did not veto here; and (ii) the model of intervention appears – despite prior experience – so incomplete? Perhaps – and perhaps addressed in Prof Orford’s new book – one can more usefully ask whether some form of international normative principle, falling short of an obligation to intervene, does however motivate and/or legitimate such actions and, on the other, also dictate or constrain its form.

  5. Levantine says:

    One thing, however, seems clear: the international intervention is considered to be legal. – Really? Not so in my circle of acquaintances. Our former ambassador Craig John Murray wrote in his blog that the intervention has become clearly illegal: “I suspended my judgement on calling this an illegal war because it is a huge accusation, and I take these matters very seriously…. There is no longer any doubt. In bombing defensive emplacements ahead of the rebel assault on Gadaffi’s hometown of Sirte, a line has been definitively crossed. Attacking Sirte cannot possibly be justified as “Protection of civilians”. There was no threat to the civilians of Gadaffi’s hometown from Gadaffi’s forces. Indeed it is arguable that the citizenry of Sirte may be more in danger from the tribal antagonists we are assisting to conquer them.”

  6. Levantine says:

    Here is another reason for the patent illegality of the intervention:

    Charter of the UN, chapter V, article 27:

    1. Each member of the Security Council shall have one vote.

    2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

    3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

  7. Max.Grotius says:

    Sorry to disappoint, but – and accepting that it is contrary to the express words of article 27(3) – practice since 1946, and upheld by the International Court of Justice in 1971, has been that abstention by a permanent member does not amount to a veto: see, for example, Aust’s -Handbook of International Law- (Cambridge, 2010) 194.

  8. Levantine says:

    “Sorry to disappoint,”

    Not at all. Thanks for your informed contribution.

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