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Responsibility to Protect at a Crossroads: The Crisis in Libya

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Giselle Lopez wrote “Responsibility to Protect at a Crossroads: The Crisis in Libya” as part of the 2014 Humanity in Action Diplomacy and Diversity Fellowship. The research essay was first published in Transatlantic Perspectives on Diplomacy and Diversity (Humanity in Action Press 2015). The complete book is available for purchase on Amazon.

 

Abstract

This article examines the ethical and legal implications of the Responsibility to Protect (R2P) through a case study of humanitarian intervention in Libya. The R2P doctrine, often lauded as an emerging norm to guide concerted international action to protect civilians from mass atrocities, has also generated controversy, as many claim that political interests often override humanitarian motivations in armed intervention. The intervention in Libya was the first full-blown test of the guiding principles of R2P and provides a valuable lens through which to examine the application of these principles. Although initially hailed as a model case of how R2P should be applied, the wisdom of intervention in Libya has increasingly been called into question as the country descends further into civil war. The deteriorating security situation in Libya demonstrates the moral risks of applying R2P in an international response to prevent mass atrocities through the use of force. By highlighting the shortcomings of this intervention, this article argues that two key elements of the R2P framework – the responsibilities to prevent and rebuild – have been deemphasized in favor of the responsibility to react. Rather than a blanket criticism of R2P, these challenges present an opportunity for the United Nations to critically examine justifications for the use of R2P and to enhance assessments of longer-term needs for peacebuilding and development prior to, during, and following an intervention.

 

One of the most disputed issues of foreign policy surrounds the dilemma of humanitarian intervention.

Introduction (1)

“[I]s there not a danger of such interventions undermining the imperfect, yet resilient, security system created after the second world war, and of setting dangerous precedents for future interventions without a clear criterion to decide who might invoke these precedents and in what circumstances?” (2)

“Ultimately… decisions about intervention will continue to be made in an ad hoc fashion by political leaders balancing national interests, legal considerations, world opinion, perceived costs and humanitarian impulses – much as they were prior to the advent of R2P.” (3)

Humanitarian intervention, which involves the use of armed force to protect civilians at risk of mass crimes, has generated a great deal of controversy due to major failures in the 1990s and questions regarding the effectiveness, motivations, legality and legitimacy of interventions.

One of the most disputed issues of foreign policy surrounds the dilemma of humanitarian intervention. In the face of humanitarian crises, leaders must respond to a broad spectrum of voices urging action to prevent mass atrocities and minimize the loss of life. Humanitarian intervention, which involves the use of armed force to protect civilians at risk of mass crimes, has generated a great deal of controversy due to major failures in the 1990s and questions regarding the effectiveness, motivations, legality and legitimacy of interventions. To address these issues, the International Commission on Intervention and State Sovereignty (ICISS) established the doctrine of the Responsibility to Protect (R2P), which was endorsed by world leaders at the 2005 United Nations (UN) World Summit. (4) Under the R2P framework, each state has the primary responsibility to protect its population from genocide, war crimes and crimes against humanity. (5) If a state fails in this responsibility or is the perpetrator itself, the responsibility then falls to the international community. (6) R2P has been lauded as an emerging norm that would guide concerted action to protect civilians from mass atrocities while ensuring respect for sovereignty. (7) However, two of the key elements of the R2P framework – the responsibilities to prevent and rebuild – have been diminished in favor of the responsibility to react, with important implications for its use in humanitarian interventions.

The case of the humanitarian intervention in Libya in 2011 is unique, as it marked the “first full-blown test” of the guiding principles of R2P. (8) In March 2011, as uprisings erupted across the Arab world, the international community turned its attention to Libya, where Muammar Gaddafi’s forces appeared intent on carrying out a massacre on the city of Benghazi. In response to the swift escalation of violence in the Libyan uprising as well as growing demands for international action to prevent a massacre in Benghazi, the United Nations Security Council authorized armed intervention to protect civilians in Libya. (9) Significantly, although R2P was previously invoked to highlight individual states’ responsibility to protect, this marked the first time that the UN Security Council explicitly invoked the R2P doctrine to authorize the international community to conduct an armed intervention to protect civilians. (10) Security Council Resolution 1973 paved the way for a NATO-led operation to prevent the advance of Gaddafi’s forces into Benghazi and provide military support for the rebels. (11) In October 2011, the operation ended with the death of Muammar Gaddafi and the fall of his regime, the establishment of a transitional government and the departure of foreign forces. Although the Libyan transitional government urged NATO to stay in Libya until the end of the year, NATO members decided to end the operation on October 31, claiming that the National Transitional Council could handle any security threats on its own. (12)

With widespread violence and instability in Libya today, many have questioned the wisdom and effectiveness of the intervention and the extent of support for Libya’s post-conflict transition.

Initially, Libya was lauded as a model case of how R2P should be applied. As the security situation deteriorated in the months following the end of the operation, however, observers began to question the wisdom of the intervention and the level of support for Libya’s postwar transition. Today, the country is, according to several reports, descending into civil war and experiencing a legitimacy crisis, with essentially two governments fighting for power. The Libyan government struggles to control powerful militias, there have been seven different prime ministers since 2011, the economy is crippled due to poor governance and attacks on oil ports and recent reports claim that the country is descending into civil war. The rapidly deteriorating security situation in Libya has led to a humanitarian crisis, with over 100,000 refugees and an estimated 287,000 internally displaced. (13)

In a recent interview with Thomas Friedman, President Obama claimed that one of his biggest regrets with regard to foreign policy is his lack of foresight with the Libyan intervention:

“I think we underestimated… the need to come in full force… the day after Gaddafi is gone… at that moment, there has to be a much more aggressive effort to rebuild [a society] that didn’t have any civic traditions.” (14)

Today, the Libyan case remains an anomaly as the only Arab Spring uprising that sparked swift action by the international community and led to an armed intervention. With widespread violence and instability in Libya today, many have questioned the wisdom and effectiveness of the intervention and the extent of support for Libya’s post-conflict transition.

This article explores the context in which the decision was made to intervene in Libya, the nature of the intervention and the instability that has followed the fall of the Gaddafi regime. In this context, I argue that for the UN to renew hope in the future of R2P, it must address the failures of R2P in Libya and highlight the responsibilities of countries to not only react to mass atrocities but also prevent, rebuild and respect the foundational principle of sovereignty on which the UN Charter rests.

Since its development, advocates and commentators have analyzed R2P as an “emerging international norm.” (19)

Humanitarian Intervention and the Responsibility to Protect

In the face of humanitarian crises, leaders must respond to a broad spectrum of voices urging action to prevent atrocities and minimize the loss of life. Humanitarian intervention is characterized by the use of armed forces to protect a population from large-scale human rights abuses by a regime. (15) Although legal under certain provisions of the UN Charter and motivated by a desire to prevent and respond to mass atrocities, humanitarian intervention has generated a great deal of controversy. (16) In reality, it is difficult to ensure that requirements of intervening states under international law are respected, and interventions often reward militants, creating a “moral hazard.” (17) With several failures of humanitarian intervention in the 1990s, the issue stirred debate surrounding the impacts, motivations, legality and legitimacy of interventions. (18)

In 2001, controversy about the intervention in Kosovo and fears among developing countries of assaults on their sovereignty led to the formation of ICISS to examine these issues. The ICISS developed the Responsibility to Protect as a framework that would guide international actions to prevent and respond to the threat of mass crimes, such as large-scale loss of life or ethnic cleansing. Rather than serving as a means to justify armed intervention, R2P was intended to limit the use of armed force, strengthen the international order and provide guidelines for concerted international action to protect populations from mass atrocities. Since its development, advocates and commentators have analyzed R2P as an “emerging international norm.” (19)

According to R2P, if preventive measures have failed to resolve or contain the situation and a state is unwilling or unable to do so, then the international community may undertake interventionary coercive measures.

As articulated in the report by the ICISS, R2P is characterized by a three-tiered distribution of responsibility: the state has the primary responsibility to protect its people; if the state fails, the responsibility falls to domestic authorities in partnership with outside authorities; if authorities fail, the responsibility falls to the international community. (20) According to R2P, if preventive measures have failed to resolve or contain the situation and a state is unwilling or unable to do so, then the international community may undertake interventionary coercive measures. (21) These measures may include political, economic or judicial measures, and in extreme cases, military action. (22) For armed intervention, the report outlined a three-pronged approach for prevention, reaction and rebuilding of the state in which the intervention takes place. (23)The report also outlined six criteria under which military intervention may take place under the principle of R2P:

R2P was designed so that “when the next case of threatened mass killing or ethnic cleansing comes along, as it surely will, it must be dealt with expeditiously and in a systematic, thoughtful and above all principled way.” (25)

  •  Just cause threshold – There must be a “serious and irreparable harm occurring to human beings, or imminently likely to occur,” including large-scale loss of life with or without genocidal intent, which is caused by deliberate state action, state neglect or inability to act, a failed state situation or large-scale ethnic cleansing.
  • Right intention – Whatever other motives individual states have, the primary purpose of the intervention must be to halt or prevent human suffering.
  • Last resort – Armed intervention is justified only when every non-military option for peaceful resolution of the crisis has been explored, with “reasonable grounds for believing lesser measures would not have succeeded.”
  • Proportional means – The scale, duration and intensity of the intervention must be the minimum necessary to provide for the protection of civilians.
  • Reasonable prospects – There must be a reasonable chance that the intervention will succeed in its mission to halt or prevent suffering, and that consequences of the intervention will not be worse than consequences of inaction.
  • Right authority – The United Nations Security Council must be the primary authority to authorize military intervention for humanitarian purposes.

As Gareth Evans, a co-chair of the ICISS, acknowledges, R2P raises numerous conceptual problems. For instance, it is not clear what exact threshold constitutes “large-scale,” how the political interests of intervening states can influence an intervention, to what extent peaceful options must be pursued, how to ensure proportionality and what states should do if the Security Council fails to act in the face of mass atrocities. (24) However, R2P was designed so that “when the next case of threatened mass killing or ethnic cleansing comes along, as it surely will, it must be dealt with expeditiously and in a systematic, thoughtful and above all principled way.” (25) According to Alan Kuperman, the R2P debate is about whether armed intervention can achieve its humanitarian objective, and the impacts of intervention on interests of stability, security and prosperity. (26) The case of Libya, as the first humanitarian intervention for which the Security Council relied on R2P, (27) sheds light on all of these aspects and on the future of this emerging global norm.

Libya: Crisis and International Response

Uprising and International Response

Gaddafi used language reminiscent of the 1994 radio broadcasts calling for genocide in Rwanda.

The “Arab Awakening” of 2011 reached Libya on February 15, when security forces opened fire on a protest in Benghazi. (28) Anti-government protests spread across Libya and quickly evolved into a violent movement to overthrow Muammar Gaddafi, who had ruled the country for 41 years. (29) Although protests were erupting across the Arab world, the crisis in Libya seized the attention of the international community and became a focal point for action to prevent mass atrocities. (30) In his speeches in February, Gaddafi used language reminiscent of the 1994 radio broadcasts calling for genocide in Rwanda; he referred to the protesters as “cockroaches” and “rats” and publicly told his forces to show “no mercy” to rebels and to “cleanse Libya house by house” until they surrendered. (31) By that time, rebels had established a stronghold in Benghazi, and Gaddafi’s forces set their sights on overtaking the city. (32) According to a report by Human Rights Watch on February 20, 2011, at least 233 people had been killed in the previous week, and government forces were indiscriminately targeting civilians. (33)

Faced with what appeared to be an imminent bloodbath, a wide range of NGOs – including Libyan, European, African, Asian and American organizations – called on the United Nations to fulfill its responsibility to protect civilians and prevent Gaddafi’s forces from perpetrating a massacre and potential genocide. (34) The Global Centre for the Responsibility to Protect urged the UN Security Council to take steps to protect Libya’s population, including a no-fly zone to prevent aerial attacks on civilians, an arms embargo on Gaddafi’s regime, sanctions on the government and a commission of inquiry to investigate war crimes. The Centre also called for regional organizations to support such measures. The League of Arab States (LAS), Organization of the Islamic Conference (OIC) and African Union (AU) issued calls for action and condemnation of the violence, which were crucial in encouraging the international community to move forward with stronger measures. (35)

Resolution 1970 marked the first time the Security Council had invoked the R2P framework since a 2006 resolution on the crisis in Darfur. (40)

Several United Nations bodies moved to respond to the crisis in Libya. The Special Advisers on the Prevention of Genocide and the Responsibility to Protect issued a press release to remind the Libyan government of its responsibility to protect its population. (36) The Human Rights Council adopted Resolution S-15/2 calling for the Libyan regime to cease human rights violations, for the establishment of a commission of inquiry and for the General Assembly to suspend Libya from the Council. (37) On February 26, 2011, the Security Council responded to concerns from other UN bodies as well as the LAS, AU and OIC by unanimously adopting Resolution 1970. (38) Resolution 1970 asserted Libya’s “responsibility to protect” its population, imposed an arms embargo and travel ban on the Gaddafi family and members of the government, froze the family’s assets and referred the situation to the International Criminal Court (ICC). (39)  It marked the first time the Security Council had invoked the R2P framework since a 2006 resolution on the crisis in Darfur. (40)

Divided Calls for Action

Many voiced concerns about waging an armed intervention.

While condemnation was widespread, international bodies, individual states and organizations advocated for different measures to respond to Gaddafi’s threats. (41) The European Union and individual states – including the United Kingdom, United States, Switzerland, Australia and Canada – reacted quickly with sanctions and travel bans. (42) France and the U.S. led calls early in the crisis for recognition of the rebel movement in Libya and the implementation of a no-fly zone, provided it received regional and legal support. (43) In March, both the Gulf Cooperation Council and the Arab League, which had suspended Libya from its membership, denounced the Gaddafi regime as illegitimate and called for the UN Security Council to impose a no-fly zone on Libya. (44) In Libya, meanwhile, there were widespread defections from the Gaddafi regime among members of the government, military and tribal leadership. (45) The National Transitional Council (NTC), led by former Justice Minister Mustafa Abdul Jalil, was formed as the interim opposition government, and Libya’s deputy ambassador to the UN, Ibrahim al-Dabashi, appealed to the UN for a no-fly zone and broader armed intervention. (46)

Increasing pressure and non-military measures proved ineffective in deterring Gaddafi from expressing intent to attack the population.

Many voiced concerns about waging an armed intervention. The African Union consistently worked to find a peaceful solution to the crisis and rejected armed intervention, adopting a roadmap for peace calling for an immediate ceasefire and political reforms, which the NTC rejected. (47) In response to calls for a no-fly zone from the Arab League, U.S. Defense Secretary Robert Gates observed that it was not clear that a no-fly zone would be wise: “This is not a question of whether we or our allies can do this… The question is whether it’s a wise thing to do and that’s the discussion that’s going on at the political level.” (48) Gates opposed the intervention on several grounds: the dangers of taking action without clear political objectives, the lack of insight into the affiliations of the rebels, the political fallout from another U.S.-led intervention in a Muslim country, the potential unintended consequences on regional security, the sapping of resources for Afghanistan and the limited impact of no-fly zones. (49) In Europe, one of the key countries opposing intervention was Germany, including Chancellor Angela Merkel and Foreign Minister Guido Westerwelle, who said that while “[w]e condemn the crimes of the dictator Qaddafi… [there is] no such thing as surgical strikes. Every military engagement will also produce civilian casualties.” (50) Westerwelle noted the experience of this in operations in Afghanistan and Iraq. (51) In an emergency session of the European Council to discuss the situation in Libya, European Council president Herman Van Rompuy and European Commission president Jose Manuel Barroso agreed that Gaddafi must leave, but Van Rompuy ruled out military intervention. (52) Sarkozy and British Prime Minister David Cameron became the leading advocates in Europe of a no-fly zone in Libya, but gathered limited support in the EU (53).

Despite this opposition, with rapid advances by Gaddafi’s troops and the call for a no-fly zone from the Arab League demonstrating consensus in the international community in favor of intervention, the U.S. administration soon voiced support for the intervention. (54) The coalition supporting the no-fly zone in Libya soon comprised the U.S., France, Britain, the United Arab Emirates and Qatar. (55) Although many continued to voice concerns about the potential consequences of an intervention, increasing pressure and non-military measures – including sanctions, an arms embargo, travel bans, asset freezes, a commission of inquiry and referral to the ICC – proved ineffective in deterring Gaddafi from expressing intent to attack the population. (56) On March 17, the UN Security Council adopted Resolution 1973, which sanctioned a no-fly zone and authorized states to take “all necessary measures… to protect civilians and civilian populated areas under threat.” (57) China, Russia, India, Germany and Brazil abstained from the vote. (58) The resolution was widely hailed as a groundbreaking decision; in a statement following the meeting, Ban Ki Moon announced that Resolution 1973 “affirms, clearly and unequivocally, the international community’s determination to protect civilians from violence perpetrated upon them by their own government.” (59) Hence, despite above-mentioned concerns, the UN Security Council authorized an armed intervention to protect Libyan civilians.

Intervention in Libya and the Fall of Gaddafi

With the UNSC Resolution legally authorizing the use of force in Libya, a coalition of states formed – including 15 NATO countries, Sweden, Jordan, Qatar and the United Arab Emirates – to implement the no-fly zone. (60) As violence escalated, the coalition provided support to NTC forces in Benghazi, Misrata, Tripoli, Gaddafi’s hometown of Sirte and other areas held by Gaddafi forces. (61) After intense diplomacy and a successful initial intervention that “rescued the people of Benghazi, obliterated Libya’s air defense system within 72 hours and deployed aircraft and naval vessels to enforce the UN resolution,” NATO took control of the coalition. (62) This led to a hybrid coalition- and NATO-led operation, which some saw as necessary to combine the efforts of those who were able to attack Libyan forces on the ground with those who preferred to patrol the airspace and waters. (63) Operation Unified Protector, as the overall intervention was named in Libya, had three key objectives: a) policing the arms embargo, b) patrolling the no-fly zone and c) protecting civilians. (64)

Within two weeks NATO’s initial goal of protecting civilians evolved into regime change. (68)

As The Economist pointed out on March 25, 2011, in establishing the no-fly zone the coalition had stopped Gaddafi from crushing a revolt in Benghazi, but not enough to remove him from power. (65) However, the article says, this low-intensity intervention could lead to a frozen conflict, in which Gaddafi could outlast the coalition in imposing sanctions and policing Libya. (66) Thus Kurt Volker, former American ambassador to NATO, urged a maximalist interpretation of the UN resolution to remove Gaddafi from power and end the crisis. (67) Although coalition leaders initially adopted a limited interpretation of the resolution, within two weeks NATO’s initial goal of protecting civilians evolved into regime change. (68) The coalition rejected Gaddafi’s appeals for a ceasefire and continued to support the rebels and attack Gaddafi’s forces. (69)

Over several months, NATO conducted air strikes on government-held areas and armed the rebels to allow their advance. (70) After eight months of fighting, the rebels took Muammar Gaddafi’s hometown of Sirte. (71) On October 20, rebel forces reportedly captured Gaddafi from a drainpipe and killed him. (72) His death raised alarm among human rights groups as chilling videos emerged of the moments before his death, in which he was beaten, sodomized with a bayonet, and dragged onto the back of a truck after being shot. (73) According to Human Rights Watch, Libyan authorities never carried out an investigation of the circumstance surrounding his death or evidence of mass killings of captured members of Gaddafi’s forces at the death site. (74) Three days later, the regime was defeated, and the war ended. (75) In all, the war lasted 36 weeks and led to an estimated death toll of between 8,000 and 11,500 people.(76)

R2P in Libya: An Assessment

Short-term – A Model Intervention and New Hope for Libya

“All things considered, the Libyan intervention was extraordinary in terms of the speed and the caliber of response by the international community. We had never seen an international intervention like that before.” (77)

In its early days and immediately following the end of the war, the intervention in Libya was hailed by many as a model intervention and appeared to be a “textbook case of how the new UN doctrine was supposed to work.” (78) In an article entitled “Why Libya skeptics were proved badly wrong,” Anne-Marie Slaughter announced that the intervention in Libya was wise not only for humanitarian reasons but also for U.S. foreign policy interests. (79) According to Ian Daalder and James Stavridis, the intervention in Libya was the outcome of a swift international reaction to the deteriorating humanitarian situation in Libya and included sanctions, an arms embargo, an asset freeze and ultimately the authorization of the use of force. With UN Security Council authorization and a broad coalition of countries, the intervention was considered both legal and legitimate. NATO’s intervention in Libya cost several billion dollars overall, which is only a fraction of the amounts spent on other interventions in the Balkans, Afghanistan and Iraq. Furthermore, there were no casualties on the NATO side, and the air campaign minimized civilian casualties. (80)

The popularity of the U.S. in Libya skyrocketed to the highest level ever recorded by Gallup.

Following the overthrow of Gaddafi, Libya held its first democratic elections in July 2012, which were supported by the UN Support Mission in Libya (UNSMIL) and seen as the mark of a new era for the country. (81)  The failure of Islamists to win the elections demonstrated a widespread anti-Islamist sentiment in Libya and was considered unique from a regional perspective, in light of the landslide victories by Islamists in Tunisia, Morocco and Egypt. (82) The election also illustrated a desire among Libyans to open Libya to the world and “to throw off the vestiges of both the religious opportunism and the isolationism of the Gaddafi era.” (83)

The popularity of the U.S. in Libya skyrocketed to the highest level ever recorded by Gallup, reflecting new, positive U.S.-Libya relations. (84) Following the September 2012 attack on the U.S. consulate in Benghazi, 30,000 Libyans marched to force Ansar al-Sharia – the jihadist group known for its role in the attack – out of the city. (85) Although Libya remained deeply conservative, the elections and growing anti-Islamist consensus among Libyans demonstrated an openness to democracy and internationalism, which was a positive outcome of the intervention. (86) In light of the low costs, high level of international cooperation, targeted attacks that avoided civilian casualties and limited military risks, the intervention indeed appeared to be a “model intervention,” as it was hailed by top representatives to NATO. (87)

Despite initial optimism, many observers have challenged the basic premises of the intervention and the nature of the mission itself. These claims call into question the ethical grounds of the NATO mission under R2P’s requirements of just cause threshold, right intention and last resort. Alan Kuperman has challenged a number of aspects of the intervention, including the claim that Gaddafi’s forces initiated the violence and used indiscriminate force in targeting peaceful protesters and that the NATO intervention aimed primarily to protect civilians. (88) According to Kuperman, many protesters were armed and violent from the beginning, and although the government’s escalation of force was rapid, Gaddafi’s forces avoided using deadly force and were largely responding to the protesters’ escalation of force. (89) Furthermore, claims of the use of indiscriminate force by Gaddafi’s forces are questionable given that, among the victims, women ranged between around 1-3%, indicating that forces strove to target combatants. (90) As Daniel Byman further notes, it was mainly Gaddafi and his sons’ rhetoric and propaganda by rebels that made the massacres seem imminent. (91) In addition, Byman states that Gaddafi’s regime never threatened or actually perpetrated revenge killings of civilians. (92) If true, these facts constitute a challenge to the requirement under R2P of a just cause threshold, as they undermine the claim that a massacre was imminent.

Many have also challenged the intervention because although it was borne from a desire to protect Libyan civilians, NATO’s primary objective quickly evolved into the overthrow of Gaddafi’s regime, which went beyond the UN Security Council Resolution 1973’s mandate to protect civilians. If NATO’s priority was to protect civilians, it would have been sufficient to impose a no-fly zone, bomb security forces that posed direct threat to civilians and attempt to negotiate a ceasefire. However, NATO began taking actions that went beyond this goal, including targeting Libyan forces that were retreating and aiding rebels who rejected Gaddafi’s offers for a ceasefire. Alan Kuperman predicts that without NATO’s intervention, the conflict in Libya would have lasted six weeks and led to a death toll of about 1,100. As stated above, with NATO’s intervention, the conflict lasted 36 weeks with a death toll ranging between 8,000 and 11,500; if these predictions are correct, the NATO intervention increased the death toll in Libya by between seven and 10 times. (93)

Although Kuperman’s claims are at least partially based on a hypothetical counterfactual, other reports have also confirmed that the mission of NATO evolved into regime change over the course of the mission, hence violating the requirement of right intention under R2P. Shadi Hamid, a fellow at the Brookings Institution’s Center for Middle East Policy and former Director of Research at the Brookings Doha Center, argues that regime change was necessary in order to protect civilians, and therefore fell within the scope of the Security Council Resolution. (94) Hamid’s point has also been confirmed by Hugh Roberts, former director of the International Crisis Group’s North Africa Project. (95) However, even if we accept that regime change could justifiably fall under the objective of protecting civilians, Western powers and NATO did violate the terms of the Security Council resolutions by refusing to acknowledge Gaddafi’s acceptance of a ceasefire offer and supporting the NTC’s rejection of the ceasefire. (96) Thus, while it is debatable whether the intervention fulfilled the “right intention” requirement, it is apparent that it did not fulfill the requirement of armed intervention as a last resort.

The dehumanizing and inflammatory language that Gaddafi was using at the time was a driving factor and a legitimate basis for the use of R2P as a justification for international response.

“I think that Western powers made a huge mistake by pivoting so rapidly to regime change, which wasn’t justifiable under R2P and wasn’t justifiable under the resolution.” – Jared Genser (97)

According to Jared Genser, a leading human rights lawyer and co-editor of The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time, the dehumanizing and inflammatory language that Gaddafi was using at the time was a driving factor and a legitimate basis for the use of R2P as a justification for international response. Although Gaddafi was pressing for a ceasefire, as Genser notes he had not retracted these statements, and it was not unreasonable for the NTC to insist that Gaddafi withdraw his forces from Benghazi as a condition for negotiations. Genser pointed out that it is important to view R2P as essentially preventive rather than reactive in stopping mass atrocities. However, Genser also acknowledges that the shift early on in the operation from a humanitarian objective to one of regime change was clearly inconsistent with R2P as it had originally been envisioned: “I think that Western powers made a huge mistake by pivoting so rapidly to regime change, which wasn’t justifiable under R2P and wasn’t justifiable under the resolution.” (97) As he notes, this has led to a backlash against the use of R2P in Syria due to complaints by China and Russia that the intervention went beyond the mandate of the UN resolution. Ultimately, Genser says, regime change was likely necessary to completely prevent the commission of mass atrocities by Gaddafi, but there should have been a graduated approach to demonstrate that this was not the primary motive for intervention. While it is debatable whether the intervention fulfilled the right intention requirement, given that there was no graduated approach and no meaningful consideration of peaceful options, it is apparent that the NATO operation did not fulfill the requirement of armed intervention being a last resort. (98)

Long-term

The ethicality of the intervention under R2P extends beyond Gaddafi’s fall to the trends in post-war Libya, where there have been few positive developments. Since the end of the war in October 2011, Libya has been plagued by economic instability, widespread violence and insecurity and threats to political transition processes. Although the military intervention succeeded in its goals of protecting Libyan civilians, the lawlessness and instability of postwar Libya has placed civilians at the mercy of militias and terrorist groups, while the international community largely ignores the escalating violence. (99)

The increasing power and autonomy of Libya’s roughly 300 militias has led to a worsening security crisis.

In post-Gaddafi Libya, one of the biggest failings of the government has been its inability to revive the economy. (100) Hydrocarbon revenues comprise over half of Libya’s GDP and nearly all of its exports, and Libya has the largest oil reserves in Africa with 46.4 billion barrels. (101) Since 2011, however, the eastern half of Libya – which holds the majority of Libya’s hydrocarbon resources but limited human resources – has sought autonomy, and federalists have continually stopped oil production. (102) As a result, oil production has dropped by 30% from its peak in 2012 at 1.6 million barrels, limiting the government’s ability to pay civil servants and develop institutions. (103)

Today, Libya is descending into civil war.

The increasing power and autonomy of Libya’s roughly 300 militias has led to a worsening security crisis. (104) Although Libya had its first democratic election in July 2012, since then there have been scores of reprisal killings, torture, beatings and arbitrary detentions of suspected Gaddafi supporters. (105) The government, which has been led by a string of seven successive prime ministers since Gaddafi’s ouster, has been unable to halt widespread violence or establish control over militias, which outgun the army and have defied demands by the National Transitional Council to leave key military installations (106). With no professional army and police force, the transitional government established an agreement in late 2011 to place militias on the government’s payroll. This deal gave the militias freedom to pursue their own political, ideological and criminal agendas. (107) Militias have since occupied government buildings, raided military facilities, pressured lawmakers to pass legislation and allied with federalists to stop oil production. (108) The intervention also exacerbated terrorist activity, with weapons liberated from Gaddafi’s arsenal spreading to arms markets and radical Islamists in Libya and throughout the region, particularly in Mali. (109) This threat was highlighted by the September 11, 2012, assault on the U.S. consulate in Benghazi, which led to the deaths of Ambassador Christopher Stevens and three other Americans. (11) The attack led many Western diplomats and NGOs to evacuate the country, and U.S. policy toward Libya became limited toward preventing another Benghazi. (111) Following the attack, violence worsened within Libya with frequent assassinations of politicians, soldiers, journalists, public officials and diplomats (112).

Today, as Western leaders focus their attention on the wars in Iraq and Syria, Libya is descending into civil war. According to Frederic Wehrey and Wolfram Lacher, the country is experiencing a legitimacy crisis, with essentially two governments fighting for power: one in the eastern city of Tobruk represented by the elected parliament and backed by an armed group called Operation Dignity, and another in Tripoli supported by the armed group Operation Dawn. (113) Operation Dignity began through a military campaign led by former Libyan army general Khalifa Hifter against Islamist militias in Benghazi and expanded as Hifter formed alliances with eastern tribes, federalist militias and military units opposed to the dominance of their rivals in the dysfunctional GNC. (114) Regional influences have inflamed these divisions, with Egypt and the United Arab Emirates (UAE) supporting Dignity, and Qatar, Sudan and Turkey reportedly supporting Dawn. (115) Both have targeted civilians and public institutions, and neither has accepted UN-sponsored proposals for peace talks (116). Thus, with too many weapons, too many factions and weak institutions, “Libya now combines all the ingredients, including meddling foreigners, for a protracted civil war. (117)

Duncan Pickard, nonresident fellow with the Atlantic Council’s Rafik Hariri Center and former Libya country director for Democracy Reporting International, observes that unlike its neighbors, the country had to effectively start from scratch: “Libya had nothing to work with – no institutions to draw from, no legal continuity with the past.” (118) This was a legacy of Gaddafi’s regime, under which all institutions, including the security sector, were dependent on his rule. (119) Paradoxically though, in comparison with other states in the region, Libya received less support from foreign countries. (120) There have been several initiatives to support Libya in its transition, including UNSMIL’s efforts to promote rule of law, strengthen human rights and restore security and stability; (121) U.S.-sponsored efforts to promote rule of law, security and justice; and EU support for development of the security sector, public administration, civil society and education. (122) According to Mattia Toaldo of the European Council on Foreign Relations, although EU programs provided substantial assistance to Libya, support for Libya’s transition was limited and should have included efforts to build the legitimacy of institutions and political actors, promote reconciliation among former combatants, encourage national dialogue and address the worsening economic conditions. (123) With the deteriorating security situation, however, many organizations and diplomats left the country, leaving only limited support for the transition. (124) According to a RAND study based on research and interviews with officials from the U.S., Europe and Libya, Libya’s most serious problem since 2011 has been a lack of security, which has undermined all efforts to build strong, effective institutions. (125) This lack of security, according to the study, stems from the failure of efforts to disarm and demobilize rebel militias following the war and the subsequent expansion of criminal and jihadist networks. (126) As the report says, the international community’s limited support for postwar Libya left the country struggling to rebuild and on the brink of civil war. (127)

Shadi Hamid, although supportive of the intervention, also acknowledges the impact of limited commitment to Libya’s post-conflict transition:

“[T]he fact that there were so many militias meant that we had to give some thought to disarming and demobilization… That couldn’t have happened without the real sustained support from the international community… What ended up happening was a small-scale NATO effort, which I would say was largely symbolic. We had to go well beyond that… that should have been a top priority for the international community the day after, and [it wasn’t].” (128)

This, he says, was in large part because the Obama administration had little interest in nation-building, wanted to minimize costs and sought to “lead from behind,” which affected the initial decision to intervene as well as the extent of U.S. and NATO involvement in the intervention and Libya’s transition. (129) As Hamid observes, “we can’t understand the failure on the day after without understanding the broader orientation of this administration.” (130)

The responsibility to prevent has been called into question by the rejection of peaceful solutions before they were fully pursued.

As noted above, R2P emphasizes a three-fold responsibility: responsibility to prevent, responsibility to react and responsibility to rebuild. In the case of Libya, the fulfillment of the international responsibility to react is not in question, as the UN Security Council, regional bodies and individual countries reacted with an unprecedented efficiency to respond to the crisis. The responsibility to prevent has been called into question by the rejection of peaceful solutions before they were fully pursued. In Libya’s postwar period, however, the responsibility to rebuild represents the most obvious failure of R2P in the scope of the intervention in Libya. With regard to implications of Libya’s current unrest for the future of R2P, Hamid questions the parallel between Libya’s unrest and a failure of R2P: “Libya is in a very difficult situation right now… but we have to ask ourselves, is that tied to the original decision to intervene or to the failure to support the reconstruction of the Libyan state after Gaddafi fell?” (131)However, as Gareth Evans, one of the architects of the R2P doctrine, points out,

“To ‘protect’ implies more than to ‘intervene.’ It embraces not just a responsibility to react, but to prevent and rebuild as well. Both of these dimensions have been much neglected in the traditional humanitarian intervention debate, and bringing them back to center stage, to rank in priority alongside reaction, makes reaction itself… more palatable.” (132) 

Although justified on the grounds of political interests and costs, the failure of the international community to provide adequate financial, military, institutional and political support for Libya’s post-conflict transition undermines the responsibility to rebuild, an essential element of R2P.

A Death Knell for R2P?

Although the intervention in Libya initially appeared to be a “textbook case” of how R2P should be applied, challenges surrounding the decision to intervene, the nature of the intervention, the lack of support for the transition and the inaction of the Security Council on Syria have led many to claim that Libya became the “death knell” for R2P. (133) The intervention in Libya undermined several components of the R2P framework, including the requirements of just cause, right intention and last resort, and the three-fold responsibility to prevent, react and rebuild. In so doing, it also highlighted the problematic nature of R2P as it does not explicitly account for the role of political interests in humanitarian interventions and their implications for the inconsistent application of decisions to intervene, the nature of the military operations and support for the postwar transition.

In assessing the future of R2P after Libya, one of the most problematic challenges is the claim that armed force was not used as a last resort:

“When R2P supporters advocated the doctrine before the UN in the middle of the last decade, they emphasized its nonmilitary aspects and insisted that the use of force would be a rare last resort. Yet in Libya force almost immediately followed the ultimatums issued to Qaddafi; for all intents and purposes, R2P was NATO-ized. As a result, everywhere outside Western Europe and North America, R2P is losing what little ethical credibility it ever commanded.” (134)

In light of these claims, which are based on credible evidence, the United Nations Security Council should conduct a critical assessment of the decision-making process leading up to Resolution 1973 and the extent to which peaceful options were explored.

The United States and its allies failed to effectively assess what would be needed in Libya’s post-conflict transition to ensure stability and security in Libya and the broader region.

With regard to the objective of regime change overtaking the priority of protecting civilians, according to David Rieff, proponents of R2P should explicitly recognize that in rebellions such as the one in Libya, a mission to protect civilians would likely seek regime change as its mission. (135) Because they have not, he says “the campaign in Libya has done grave, possibly even irreparable, damage to R2P’s prospects of becoming a global norm.” (136) In The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time, Jared Genser and Irwin Cotler likewise recognize that the conflation of the use of force to protect civilians with a pro-democratic intervention in Libya has had significant implications for R2P. (137) As they emphasize, “[t]his confirms the need to further elucidate and elaborate the scope and content of R2P, and determine the policies and procedures that serve the underlying purpose of R2P, namely the protection of civilians from egregious violations of their fundamental rights.” (138)

As Obama acknowledged in his interview with Thomas Friedman, the United States and its allies failed to effectively assess what would be needed in Libya’s post-conflict transition to ensure stability and security in Libya and the broader region. This failure undermined one of the key components of R2P: the responsibility to rebuild. It also called into question the likelihood of states supporting postwar transitions in future humanitarian interventions if it is not in their interest. As Jared Genser notes, this failure is in part a failure of R2P, but it is in larger part a failure of the international community to maintain the focus it has in the conflict phase during the post-conflict phase. Genser affirms that a commitment to rebuilding in the post-conflict phase is critical to R2P and that the neglect of the international community created a vacuum in Libya, which drew in foreign fighters and led to a lack of political powers capable of resolving conflict and domestic challenges. However, he says this is in part the nature of foreign policy:

“In matters of foreign policy, emergencies get attention, and non-emergencies get less attention… So the issue becomes, how do you capitalize on the emergency moments to get commitments for the non-emergency moments you know will come? Surely, we should be able to do that. But you’re never going to maintain the same level of focus and intensity in the post-conflict reconstruction phase.” (139) 

Genser also highlights that it is important to recognize all of the instances in which R2P has been used successfully outside of the context of an external armed intervention to remind states of their responsibility to protect their own populations. (140)

With regard to future interventions, if the responsibility to rebuild remains essential to R2P, the UN must develop a mechanism to hold intervening states accountable for providing adequate support for the post-conflict transition. In the absence of such a mechanism, this element of R2P will continue to be disregarded in favor of national political interests to minimize costs. As Hehir observes in The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect, “[i]f the response to intrastate crises remains prey to… political considerations… and, as a result, rhetorical commitments to human rights protection will only ‘occasionally’ be honored, there appears to be a limited basis for the post-Libya optimism.” (141)

Although the Libya intervention may very well have been the “death knell” for R2P as a guiding principle for international response to the threat or commission of mass atrocities, it is important to consider that the ICISS emphasized that prevention, rather than response or rebuilding, was the most important element of R2P. (142) Preventive measures can include diplomacy, judicial measures, economic measures, peace operations deployed with local consent, international assistance to build responsible sovereigns and many more. (143) In other words, the inability of the UN Security Council to authorize a humanitarian intervention and hesitation of states to address humanitarian crises where their interests are not at stake need not undermine the more fundamental intent of R2P, which is to establish and solidify the responsibility of individual states to protect their own citizens. As Alex Bellamy notes, “by reducing the frequency of all-or-nothing decisions, more civilians will be better protected from genocide and mass atrocities. That is the promise of R2P.” (144)

Conclusion

When the Libyan conflict erupted in February 2011, the possibility of humanitarian intervention seemed highly unlikely; the wars in Iraq and Afghanistan had drained U.S. military resources and exhausted public support for intervention in the Middle East, Europe was consumed by a major financial crisis and Libya was one of many rebellions that had emerged across the Arab world. (145) In March, however, the crisis in Libya drew an international coalition to protect civilians and provide space for rebel forces to overthrow Gaddafi. (146) The swift response of the UN Security Council and regional bodies was unprecedented and appeared to herald a new era for R2P. Without the intervention, many claim that pro-Gaddafi forces would have killed thousands of innocent civilians, and Libya would have become what Syria is today.

Today, Libya is sliding back into civil war, there is continued inaction in the Security Council on the tragic situation in Syria and many questions have arisen surrounding the justification and nature of the intervention under the Responsibility to Protect. R2P has been lauded as an emerging norm guiding concerted international action to prevent and respond to mass atrocities. However, two of its key elements – the responsibilities to prevent and rebuild – have been diminished, and the responsibility to react has become nearly synonymous with R2P in mainstream discussion of the doctrine. Support for the post-conflict transition of a state must be robust and address the needs of that particular state.  Libya in particular required sustained support in a range of areas including the security sector, delivery of public services, economic development, legal and political reforms and capacity-building for civil society. Although there were several initiatives to support Libya’s post-conflict transition, there was a need for far more robust support in a state that was almost completely devoid of institutions.

As the U.S. wages airstrikes against the Islamic State in Iraq and Syria (ISIS), we are reminded of Libya as a “cautionary tale of the unintended damage big powers can inflict when they aim for a limited involvement in an unpredictable conflict.” (148) As Brian Katulis, a Middle East specialist for the Center for American Progress, says, “If Iraq and Afghanistan are examples of overkill and overreach, Libya is the reverse case, where you do too little and get an unacceptable result…. The lesson is that a low tolerance of risk can have its costs.” (149) However, while the instability, insecurity and institutional weakness of postwar Libya reflect the negative impacts of a lack of support for Libya’s transition, there remain opportunities for the international community to provide guidance and support in Libya’s transition. (150) As Frederic Wehrey discusses, the U.S., EU and UN can play a critical role to ensure other countries in the region – including Egypt, Qatar, Turkey and the UAE – fulfill their pledge of noninterference in Libya’s affairs to prevent the crisis from becoming a full-fledged proxy conflict. (151) They can also do more to enforce the UN arms embargo on Libya, particularly in curtailing the smuggling of weapons through Egypt. (152) Resolving the current crisis, Wehrey says, will require the formation of a power-sharing agreement and the international recognition of the Tobruk institutions, conditional on political compromise. (153) In addition to this support for political compromise, Duncan Pickard and Chibli Mallat argue that the UN support mission needs robust military and institutional support to assist the large nonviolent majority of the population. According to Pickard and Mallat, “[a] UN role in brokering peace could open an avenue for the international community to take greater control of the political transition.” (154) Along with substantial support from the European Union and logistics provided by the U.S., the UN could train an elite force to protect government institutions and help to establish a military order in Libya. (155) With Libya now plagued by competing governments, warring militias and proxy regional conflicts, such efforts are crucial for the international community to demonstrate that it has not reneged on its commitment to fulfill its responsibility to protect.

Instead of a blanket criticism of R2P and the Libya intervention, these challenges present an opportunity for the UN to critically examine the use of R2P to justify humanitarian intervention and address concerns that have prevented the UN Security Council from responding to other crises. A critical evaluation of R2P should consider options to develop and enhance UN procedures to achieve a nuanced understanding of how a conflict manifests in different areas and at different levels in an intrastate conflict, the capacity and legitimacy of existing institutions and the interests of all relevant actors. These procedures should inform an assessment of longer-term needs for peacebuilding and development and identify individuals and groups who derive legitimacy through nonviolent means and who can galvanize support for positive developments in the post-conflict transition. A re-evaluation of R2P should also incorporate the development of a framework to ensure that states abide by the requirements of a resolution’s mandate, uphold the principle of last resort and fulfill their responsibility to rebuild by working closely with development and relief organizations in the country’s transition. These requirements should be embedded into any resolution authorizing armed intervention.

As David Rieff observes, “R2P is a doctrine born of good intentions, but one of its greatest drawbacks is that it turns war into a form of police work writ large, guided by fables of moral innocence and righteousness.” (156) The original advocates of R2P emphasized non-military aspects of the doctrine, insisting that force would be a rare last resort. (157) The case of Libya demonstrated to the world the moral risks of applying R2P effectively in an international response to prevent mass atrocities through the use of force. By accepting and addressing the failures of R2P in Libya, the international community can resolve these fundamental deficiencies and uphold the UN’s stated purpose to maintain peace, security and prosperity worldwide through peaceful means and in conformity with principles of justice and international law. (158)

 

•     •     •

Citation

Lopez, Giselle. “Responsibility to Protect at a Crossroads: The Crisis in Libya.” In Transatlantic Perspectives on Diplomacy and Diversity, edited by Anthony Chase, 119-138. New York: Humanity in Action Press, 2015.

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