Case Study Libya and Syria Professor J.

Craig Barker

Follows from the concepts of sovereignty and independence of states and is affirmed as one of the principles of the United Nations Charter (Article 2(1)):
The Organization is based on the principle of the sovereign equality of all its Members

The preamble is very tempting, and no one is objecting to the preamble, but everything that came after that is completely in contradiction with the preamble. This is what we have now this is what we are injecting, and we should never continue. This came to an end during the Second World War. The preamble says that the nations are equal whether they are small or big. Are we equal in the permanent seats. No. We are not equals.

And the preamble says that all nations are equal whether they are small nations or whether they are big nations as far as rights. Do we have rights of a veto? Are we equals? The preamble says that we are equals in our rights whether we are big or small. This is what is stated, and this is what we have agreed in the preamble. So, the veto is against the charter. The permanent seats are against the charter. We do not accept it and we do not acknowledge it, neither do we recognize it. (Gaddafi ripped up a UN charter at this point)

So, in this charter, there is nothing that the United Nations will interfere which will be the pure business of the internal affairs I mean, the government. It is the internal affairs of a certain government. No country has the right to interfere in this affair, the sort of government whether it is a socialist, capitalist system, or whether it is a reactionary progressive. This is the responsibility of the society. It is an internal matter of the people concerned of a certain country.

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

15 February 2011- 23 October 2011 Part of the broad social uprising known as The Arab Spring Intervention authorised by the United Nations in UNSC Resolution 1973 of 17 March 2011 Hailed as a turning point in the response to mass atrocities (International Coalition for the responsibility to Protect) Additionally Gaddafi and his son and two others were indicted before the International Criminal Court

Commenced on 15 March 2011 and continuing today On 4 October 2011, the Security Council voted on draft resolution S/2011/612. This was vetoed by China and Russia, and Brazil, India, Lebanon and South Africa abstained. On 4 February 2012, the Security Council voted on draft resolution S/2012/77. The vote took place at the time of the attack on the city of Homs and was vetoed by China and Russia, with all of the other members of the Security Council voting in favour of the resolution. On 19 July 2012, the Security Council voted on draft resolution S/2012/538. This was vetoed by China and Russia, and Pakistan and South Africa abstained.

Key Issue sovereign equality of states Legal Framework no intervention unless authorised by UNSC see Syria Three alternatives: 1. remove sovereignty the failed states discourse 2. ignore sovereignty humanitarian intervention 3. reinterpret sovereignty responsibility to protect

For failing States, which still maintain[] some type of minimal governmental structure, the United Nations could provide what they refer to as governance assistance; for failed States, a second level would involve the delegation of certain governmental functions to the United Nations; the third level, the most radical option, is direct United Nations trusteeship. Helman & Ratner, (1992-93) Saving Failed States. Foreign Policy, 89, 3-20 at 13-14.

The label suggests that when governmental infrastructure collapses, the state, its people, and its leaders are solely responsible. While he accepts that indigenous factors such as civil conflict or corrupt leadership often contribute, to a significant degree, to State collapse, other factors, such as the involvement of foreign states, international financial institutions such as the International Monetary Fund and the World Bank, multinational corporations, and the like often plays a major role in mediating the state of local conditions, thereby affecting the viability of the economy and governmental infrastructure Wilde, (2003). The Skewed Responsibility Narrative of the Failed States Concept. ILSA Journal of International and Comparative Law, 9(2), 425-30 at 426.

NATO Intervention in Kosovo 1999 to prevent ethnic cleansing of Kosovar Albanians First, was the NATO armed intervention at least rooted in and partially justified by contemporary trends of the international community? Second, were some parameters set in this particular instance of the use of force that might lead to a gradual legitimation of forcible humanitarian countermeasures by a group of states outside any authorization by the Security Council ? Cassese (1999). Ex Injuris Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? European Journal of International Law, 10(1), 23-30

As Brune and Toope recently put it, humanitarian intervention never achieved the solidity that its promoters sought. This might be partly due to the shift of focus away from humanitarian intervention to intervention in response to global terrorism in the aftermath of 11 September 2001. It has been argued by some that the United States-led invasions of Afghanistan and Iraq were undertaken, at least in part, on humanitarian grounds. However, in neither case did humanitarian concerns provide the primary justification for intervention. In fact, to a greater or lesser extent, both interventions have solidified public opinion against military intervention, whatever the justification. Consequently, the failure to develop a more systematic legal basis for unauthorised humanitarian intervention is also due to the strength of the shared understanding that buttresses the collective security regime of the Charter Brune and Toope (2010). Legitimacy and Legality in International Law. Cambridge: Cambridge University Press at 324

International Commission on Intervention and State Sovereignty 2001. The Responsibility to Protect. Available at: http://responsibilitytoprotect.org/ICISS%20Re port.pdf Two elements: First Sovereignty as responsibility [s]tate sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself

Second Element the residual responsibility of the international community [w]here a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect (ICIS Report 2001: XI)

Secretary-General Ban Ki Moon January 2009 Report entitled Implementing the Responsibility to Protect UN Doc A/63/677 not a short-term process responsibility to protect is, first and foremost, a matter of state responsibility Secondly R2P aims at a lengthy process of building State capacity to avoid genocide, war crimes, ethnic cleansing and crimes against humanity based upon active partnership between the international community and the state and working through persuasive measures and positive incentives (ibid, para 28)

Thomas Weiss has asserted that by conceptualising the new approach to massive human rights violations as responsibility to protect, the ICISS sought to drive a stake through the heart of humanitarian intervention. Weiss argues that the new terminology avoids the assertion of the moral high ground that is inherent in the concept of humanitarianism and contends that it overlooks the self-interested dynamics of the strong to impose their will on the weak in the name of the so-called universal principles of the day [. . .] An honest debate about motivations and likely costs and benefits is required, not visceral accolades because of a qualifying adjective (Weiss, (2007). Humanitarian Intervention. Cambridge: Polity Press at102-03).

What do we mean by Sovereignty as Responsibility? Ultimately, responsible sovereignty depends upon good governance; the management of identities based on race, ethnicity, culture, language and religion; and economic well-being or welfare of demand-bearing groups in a society (Deng et al. (1996). Sovereignty as Responsibility: Conflict Management in Africa. Washington, DC: Brookings Institution at 93130). Effectively the argument runs that sovereignty is conditional

body of positive obligations for States (prospective responsibilities) in relation to international human rights law and international humanitarian law is considerable. mechanisms and procedures of implementation of the wide array of human rights and humanitarian standards remain underdeveloped and grossly inadequate (Deng et al. 1996: 10). Without further developing mechanisms, such as treaty monitoring and reporting bodies, the international community is severely limited in what it can do to ensure that States comply with their legal obligations.

Both Libya and Syria actually represent the failure of responsibility to protect, both as a moral concept and in terms of independent legal authority for international executive action. This conclusion does not immediately call into question the importance and value of the concept itself. Rather, it provides a framework for lessons learned in relation to future crises and for reappraising responsibility to protect in light of two closely-linked conflicts that represent the precise type of conflicts that responsibility to protect was explicitly meant to resolve.

Lesson 1: The Limitations of Prevention and the Concept of Sovereignty as Responsibility

Historic recalcitrance of both Libya and Syria Repeatedly condemned by NGO;s and IGOs, most importantly the UNs own Human Rights Committee Continued lack of willingness of the government of Syria to accept its responsibilities to all of its citizens in light of killings, abuses and massive refugee crisis If this failure was the result of concerns about being seen to overly-criticise the two regimes as such, then the concept of responsibility to protect would have shown itself to be nothing more than a rhetorical and deeply unconvincing statement of purpose. If lessons can be learned about the importance of identifying and acting upon emerging threats to civilian populations, even in the face of strong central governments, then there is hope that the concept can emerge into an age of prevention.

If this failure was the result of concerns about being seen to overly-criticise the two regimes as such, then the concept of responsibility to protect would have shown itself to be nothing more than a rhetorical and deeply unconvincing statement of purpose. If lessons can be learned about the importance of identifying and acting upon emerging threats to civilian populations, even in the face of strong central governments, then there is hope that the concept can emerge into an age of prevention.

Paradox of the turn to protection Chilling words of Hans Schmitt: [d]emocracy requires [. . .] first homogeneity and second if the need arises elimination or eradication of heterogeneity [. . .] A democracy demonstrates its political power by knowing how to refuse or keep at bay something foreign and an equal that threatens its homogeneity (Schmitt (1988). The Crisis of Parliamentary Democracy, translated by E. Kennedy. Boston MIT Press at 9).

In the face of tyrannical states who has the power to protect the international community? [t]he history of attempts to ground authority upon protection shows that much will depend upon who interprets what protection or [what] the safety of the people means in a particular time and place, and who decides whether and how it will be achieved ... [i]t is to that question of limits that those who are institutionalising the responsibility to protect must turn if the authoritarian tendencies inherent in the appeal to de facto protective authority are to be avoided Orford, A. 2011. International Authority and the Responsibility to Protect. Cambridge: Cambridge University Press at 137

Implementing Responsibility makes clear that

the five permanent members bear particular responsibility because of the privileges of tenure and the veto power they have been granted under the Charter and urges them to refrain from employing or even from threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect, ... and to reach a mutual understanding to that effect (Ban op cit: para 61). See Libya resolutions but contrast with lack of resolution in relation to Syria

No broad interpretations of the Charter can, it seems, overcome the clear and legitimate actions of Russia and China in blocking the relevant resolutions. No matter ones moral indignation, the legal outcome is that this has had the effect of blockingFinally, an analysis of the genealogy of liberal interventionism through its various manifestations of failed States discourse, humanitarian intervention and, ultimately, responsibility to protect once again highlights that the current legal framework for the authorisation of military intervention to prevent widespread human rights abuses is controlled, as it always has been, by the Security Council in general and its permanent members in particular. The option still remains through a combination of article 2(7) and Chapter VII of the Chapter for collective security measures to be taken in the form of authorised interventions. However, the final lesson of Libya and Syria is that such authorised interventions will continue to be the exception rather than the rule, and they are, in themselves, no guarantee of a successful outcome. any authorised intervention in Syria. Notably, within the context of the broader notion of liberal interventionism, the unforeseen consequence of seeking to persuade and cajole the Security Council to act responsibly has the effect of firmly establishing, in all cases where a Security Council resolution authorising military intervention is not obtained, the illegality of any military intervention in the target State. Thus, any assertion that a military intervention in Syria might have been unlawful but legitimate must surely be squashed. (Barker (2013) The Responsibility to Protect: Lessons from Libya and Syria in Barnidge, The Liberal Way of War, Ashgate: Dartmouth)

In spite of many reservations about the conceptual and practical basis for responsibility to protect, particularly in relation to the (non)interventions in Libya and Syria, the concept should not be abandoned. Orfords designation of responsibility to protect as a normative grounding for the practices of international executive action is accurate and should give rise to further endeavours by the United Nations to intervene in crisis-torn States. In light of the first lesson highlighted above, such interventions should be early and avoid the use of force. This is perhaps the strongest aspect of responsibility to protect, and the failings of the concept in relation to Libya and Syria should not serve to undermine the use of international executive action as envisaged by Orford. Implementing Responsibility is replete with examples, and challenges, as to how this might be achieved. In light of the second lesson, it should be stressed that greater care must be taken to more precisely conceptualise and define still further the concepts of both responsibility and protection. None of the official documentation emanating from the United Nations or the Commission adequately does this. It is particularly important that the United Nations, or the international community more broadly, defines protection in a way that sets its legal limits in a way that avoids its authoritarian tendencies and clarifies the concept of responsibility.

Finally, an analysis of the genealogy of liberal interventionism through its various manifestations of failed States discourse, humanitarian intervention and, ultimately, responsibility to protect once again highlights that the current legal framework for the authorisation of military intervention to prevent widespread human rights abuses is controlled, as it always has been, by the Security Council in general and its permanent members in particular. The option still remains through a combination of article 2(7) and Chapter VII of the Chapter for collective security measures to be taken in the form of authorised interventions. However, the final lesson of Libya and Syria is that such authorised interventions will continue to be the exception rather than the rule, and they are, in themselves, no guarantee of a successful outcome. (Barker, op cit)