Security Council Resolution 1973 on Libya: a moment of legal & moral clarity.

AuthorWilliams, Paul R.
PositionInternational Law in Crisis
  1. INTRODUCTION II. PROTECTION OF CIVILIANS A. All Necessary Measures B. Civilian Populated Areas ... Including Benghazi C. Under Threat of Attack D. Notwithstanding Paragraph 9 E. Excluding a Foreign Occupation Force III. NO FLY ZONE WITH TEETH IV. CONCLUSION I. INTRODUCTION

    When the United Nations Security Council adopted Resolution 1973 on March 17, 2011, the world witnessed a brief moment of legal and moral clarity. (1) Although at least 17 humanitarian interventions have taken place since 1990--including northern and southern Iraq, East Timor, Bosnia, Somalia, and Kosovo (2)--humanitarian intervention has often been handicapped by narrow legal mandates and weak implementation. But in Libya, the world got it right. The Security Council quickly passed a well-drafted legal blueprint for humanitarian intervention and an international coalition (3) aggressively implemented it. In doing so, a coalition led by the British and French demonstrated the legal skill and moral commitment to prevent an impending massacre. (4)

    This article argues that Resolution 1973 and its subsequent implementation provide a blueprint for effective humanitarian intervention. (5) The humanitarian intervention in Libya was characterized by: (1) swift action by the Security Council to authorize military intervention when diplomacy appeared fruitless; (6) (2) a well-drafted resolution that provided the mandate necessary for a successful intervention; and (3) aggressive and immediate implementation by an international coalition. This article does not take the view that humanitarian intervention is always the appropriate response to the international community's responsibility to protect civilians from atrocities and crimes against humanity. (7) However, when the international community does determine that humanitarian intervention is the right course of action, Resolution 1973 and its implementation provides a model framework to successfully protect civilians.

    In Libya, it took less than one month and just one prior resolution for the Security Council to authorize the use of force to protect civilians. (8) Less than one month after Muammar Gadhafi first ordered helicopters and snipers to kill protesters in Benghazi (9) and just nineteen days after measures under Security Council Resolution 1970 (10) had failed to stop Gadhafi's forces advancing towards Benghazi, the Security Council authorized the use of force to protect civilians. Resolution 1973 is a well-drafted legal blueprint that provides intervening forces with the mandate necessary for a successful intervention. (11) This legal blueprint authorized: (1) the use of "all necessary measures" to enforce the resolution; (2) the protection of all "civilian populated areas ... including Benghazi"; (3) the protection of areas "under threat of attack"; (4) an exception to the arms embargo "notwithstanding paragraph 9 of resolution 1970"; (5) an exclusion of a "foreign occupation force" that still allowed for limited presence on the ground; and (6) a no fly zone with teeth. (12) A coalition led by the British and French immediately and aggressively implemented the mandate under Resolution 1973. Just two days after Resolution 1973 was adopted, French planes attacked Gadhafi's forces advancing on Benghazi, and the U.S. and U.K. launched over 110 cruise missiles into Libya. (13) On March 31, NATO assumed full responsibility for the mission in Libya, and conducted over 9,000 strike sorties in six months. (14)

    Humanitarian intervention in Libya was characterized by recognition by the international community that this was not a war between two moral equals. (15) This recognition was reflected throughout Resolution 1973, particularly in the cleverly drafted clause extending protection to civilian populated areas including Benghazi and in the exception to the arms embargo. (16) This notion was also apparent in the firm manner in which the international coalition implemented the resolution to protect persons under threat of attack by Gadhafi's forces. (17)

    Rarely has the Security Council responded so quickly and effectively to stop a humanitarian crisis. In Bosnia, for instance, over a year passed from the time Serbian forces first fired on peaceful demonstrators in Sarajevo until the Security Council authorized the use of force to deter attacks against safe areas. (18) And, by the time the Dayton Peace Accords were signed nearly four years later, thirty-three separate resolutions provided piecemeal legal authorization for intervention in Bosnia, (19) and between around one hundred thousand civilians were killed and over two million displaced. (20) Despite Security Council authorization to use force in Bosnia, the international community was timid and tardy in the implementation of military intervention. In fact, General Michael Rose, who led the U.N. mission in Bosnia, specifically said that the U.N. "must ... avoid all situations that involve the use of force.... It is not part of our mission to impose any solution through force of arms." (21) As a result, NATO forces and U.N. peacekeepers turned a blind eye to numerous attacks by Serbian forces on civilians in designated safe areas, and when NATO did use force, it was characterized by pinprick airstrikes on unmanned tanks (22) and airport runways. (23)

    Unlike Libya, the humanitarian intervention in Bosnia was blinded by a notion that both sides should be treated equally. This was reflected throughout the campaign in the slow authorization for the use of force, the lack of response to violations by the Serbian troops, and the duration of a two-sided arms embargo. (24) In one particularly egregious instance, U.N. forces destroyed the bunkers and trenches of Bosnian government troops and drove over 550 of them at gunpoint from a strategic area in order to "preempt the Serbs from doing it themselves." (25)

    Often, in the face of ongoing atrocities, the Security Council fails to authorize intervention. (26) This was the case in Kosovo, where over a year after attacks by Serbian forces on ethnic Albanians and a massacre of the Jashari family in the village of Prekaz, (27) the Security Council had adopted only two resolutions, (28) neither of which authorized the use of force. Eventually, NATO airstrikes began without Security Council approval. And later, the international community refused to admit the legality of intervention, instead dubbing it "illegal but legitimate." (29)

    Tragically, sometimes the international community does nothing at all. In 1994, the world watched in silence while over eight hundred thousand were killed in the Rwandan genocide. (30) The genocide in Darfur has claimed over four hundred thousand lives, (31) and despite strong rhetoric condemning the attacks against civilians, the international community's response to the atrocities has been wholly inadequate to protect them. (32)

    Despite these and other lessons, humanitarian intervention in Libya did not have the full support of the international community every step of the way. In the adoption of Resolution 1973, five countries abstained: Germany, Russia, China, India, and Brazil. (33) Germany was concerned that there would be large-scale loss of life and that implementation of Resolution 1973 would result in "protracted military conflict." (34) Brazil believed that humanitarian intervention would exacerbate the situation in Libya, "causing more harm than good to ... civilians," (35) and Russia warned against "unpredicted consequences" and expressed concern about who would enforce the measures and how they would enforce them. (36) India was similarly concerned about implementation and unintended consequences, (37) while China simply disagreed with a resolution that authorized force when peaceful means had not been exhausted. (38)

    Once Resolution 1973 was adopted and humanitarian intervention underway, certain members of the international community continued to doubt the wisdom of intervention. Although Arab League calls for a no fly zone in Libya played a role in the adoption of Resolution 1973, (39) and Lebanon reportedly played a role in its drafting, (40) Arab League leaders balked once they saw what actions were actually required for a successful humanitarian intervention. (41) Even amongst some NATO allies, resolve began to falter as the campaign proved to be longer than some had anticipated. (42)

    Fortunately, the fears espoused by the five abstainers proved largely unfounded. Likely far fewer civilians died in the implementation of Resolution 1973 than would have been killed if the world had done nothing. Fears about who would implement the campaign were quickly quashed as the British, French, and Americans immediately took the lead, followed shortly thereafter by NATO. And while the campaign was perhaps not as brief as some would have preferred, it began to wind down after just six months. Lastly--and not to be underestimated--the Libyan people are now free

    from a brutal dictator and able to determine their own future. This article argues that Resolution 1973 and its subsequent implementation provide a blueprint for humanitarian intervention that successfully protects civilians. In order to shed light on this framework for intervention, this article: (1) analyzes the text of Resolution 1973 authorizing the use of force; and (2) examines the interpretation and implementation of Resolution 1973 by the international coalition. In the analysis of Resolution 1973, this article focuses on paragraph 4 of the resolution, under the heading "Protection of Civilians," (43) and paragraphs 6 and 8 of the resolution, under the heading "No Fly Zone." (44)

    Where relevant, this article will compare the text of Resolution 1973 with an earlier, leaked draft of the resolution. The first draft of the resolution was prepared primarily by the British and French with input from Lebanon. (45) Reportedly, between the leaked version of the resolution and adoption of Resolution 1973...

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