The Responsibility to Protect – The Cases of Libya and Ivory Coast

By Prof. Marjorie Cohn
May 16, 2011

The United States, France and Britain invaded Libya with cruise missiles, stealth bombers, fighter jets and attack jets. Although NATO has taken over the military operation, U.S. President Barack Obama has been bombing Libya with Hellfire missiles from unmanned Predator drones. The number of civilians these foreign forces have killed remains unknown. This military campaign was ostensibly launched to enforce United Nations Security Council Resolution 1973 in order to protect civilians in Libya.

Murdering in the name of Protecting is a not so new Ideology.

In addition, the United Nations and France have been bombing the Ivory Coast to protect civilians against violence by Laurent Gbagbo, who refuses to cede power to the newly elected president after a disputed election. UN Secretary Ban Ki-Moon insists that the United Nations is “not a party to the conflict.” France, former colonial ruler of Ivory Coast, has over 1,500 troops stationed there. Ivory Coast is the world’s second largest coffee grower and biggest producer of cocoa. The bombing of Ivory Coast is being undertaken to enforce Security Council Resolution 1975 to protect civilians there.

The UN Charter does not permit the use of military force for humanitarian interventions. The military invasions of Libya and Ivory Coast have been justified by reference to the Responsibility to Protect doctrine.

The Responsibility to Protect is contained in the General Assembly’s Outcome Document of the 2005 World Summit. It is not enshrined in an international treaty nor has it ripened into a norm of customary international law. Paragraph 138 of that document says each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. Paragraph 139 adds that the international community, through the United Nations, also has “the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

Chapter VI of the Charter requires parties to a dispute likely to endanger the maintenance of international peace and security to “first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” Chapter VIII governs “regional arrangements,” such as NATO, the Arab League, and the African Union. The chapter specifies that regional arrangements “shall make every effort to achieve pacific settlement of local disputes through such regional arrangements . . .”

It is only when peaceful means have been tried and proved inadequate that the Security Council can authorize action under Chapter VII of the Charter. That action includes boycotts, embargoes, severance of diplomatic relations, and even blockades or operations by air, sea or land.

The Responsibility to Protect doctrine grew out of frustration with the failure to take action to prevent the genocide in Rwanda, where a few hundred troops could have saved myriad lives. But the doctrine was not implemented to stop Israel from bombing Gaza in late 2008 and early 2009, which resulted in a loss of 1,400 Palestinians, mostly civilians.

Security Council Resolution 1973 begins with the call for “the immediate establishment of a ceasefire.” It reiterates “the responsibility of the Libyan authorities to protect the Libyan population” and reaffirms that “parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians. The resolution authorizes UN Member States “to take all necessary measures . . . to protect civilians and civilian populated areas” of Libya.

But instead of pursuing an immediate ceasefire, immediate military action was taken instead. The military force exceeds the bounds of the “all necessary measures” authorization. “All necessary measures” should first have been peaceful measures to settle the conflict. Yet peaceful means were not exhausted before the military invasion began. A high level international team – consisting of representatives from the Arab League, the African Union, and the UN Secretary General – should have been dispatched to Tripoli to attempt to negotiate a real cease-fire, and set up a mechanism for elections and for protecting civilians. Moreover, after the passage of the resolution, Libya immediately offered to accept international monitors and Qadhafi offered to step down and leave Libya. These offers were immediately rejected by the opposition.

Security Council Resolution 1975 regarding Ivory Coast is similar to resolution 1973 regarding Libya. The former authorizes the use of “all necessary means to . . . protect civilians under imminent threat of physical violence” in Ivory Coast. It reaffirms “the primary responsibility of each State to protect civilians” and reiterates that “parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians.”

The UN Charter commands that all Members settle their international disputes by peaceful means, to maintain international peace, security, and justice. Members must also refrain from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the Purposes of the United
Nations.

Only when a State acts in self-defense, in response to an armed attack by one country against another, can it militarily attack another State under the UN Charter. The need for self-defense must be overwhelming, leaving no choice of means, and no moment for deliberation. Neither Libya nor Ivory Coast had attacked another country. The United States, France and Britain in Libya, and France and the UN in Ivory Coast, are not acting in self-defense. Humanitarian concerns do not constitute self-defense.

There is a double standard in the use of military force to protect civilians. Obama has not attacked Bahrain where lethal force is being used to quell anti-government protests because that is where the U.S. Fifth Fleet is stationed. In fact, the Asia Times reported that before the invasion of Libya, the United States made a deal with Saudi Arabia, whereby the Saudis would invade Bahrain to help put down the anti-democracy protestors and Saudi Arabia would enlist the support of the Arab League for a no-fly-zone over Libya.

The League’s support for a no-fly-zone effectively neutralized opposition from Russia and China to Security Council Resolution 1973. Moreover, the military action by the U.S., France and Britain has gone far beyond a no-fly-zone. Indeed, Obama, France’s President Nicolas Sarkozy and Britain’s David Cameron penned an op-ed in the International Herald Tribune that said the NATO force will fight in Libya until President Muammar Qaddafi is gone, even though the Resolution does not sanction forcible regime change.

When Obama defended his military actions in Libya, he said “Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different.” Two weeks later, the Arab League asked the Security Council to consider imposing a no-fly-zone over the Gaza Strip in order to protect civilians from Israeli air strikes. But the United States, an uncritical ally of Israel, will never allow the passage of such a resolution, regardless of the number of Palestinian civilians Israel kills. This is a double standard.

The military actions in Libya and Ivory Coast set a dangerous precedent of attacking countries where the leadership does not favor the pro-U.S. or pro-European Union countries. What will prevent the United States from stage-managing some protests, magnifying them in the corporate media as mass actions, and then bombing or attacking Venezuela, Cuba, Iran, or North Korea? Recall that during the Bush administration, Washington leveled baseless allegations to justify an illegal invasion of Iraq.

During a discussion of the Responsibility to Protect in the General Assembly on July 23, 2009, the Cuban government raised some provocative questions that should give those who support this notion pause: “Who is to decide if there is an urgent need for an intervention in a given State, according to what criteria, in what framework, and on the basis of what conditions? Who decides it is evident the authorities of a State do not protect their people, and how is it decided? Who determines peaceful means are not adequate in a certain situation, and on what criteria? Do small States have also the right and the actual prospect of interfering in the affairs of larger States? Would any developed country allow, either in principle or in practice, humanitarian intervention in its own territory? How and where do we draw the line between an intervention under the Responsibility to Protect and an intervention for political or strategic purposes, and when do political considerations prevail over humanitarian concerns?”

The Responsibility to Protect doctrine violates the basic premise of the UN Charter. Last year, the General Assembly’s Fifth Committee declined funding for the office of the new Special Advisor on Responsibility to Protect. Some member States argued that the Responsibility to Protect had not been agreed to as a norm at the World Summit. The debate will continue. But for many States, this is a slippery slope that should be viewed with extreme caution.

Marjorie Cohn is the immediate past president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, where she teaches criminal law and procedure, evidence, and international human rights law. She lectures throughout the world on human rights and US foreign policy. http://www.marjoriecohn.com

Is NATO collapsing because of Libyan attack?

German Military Forces Out of NATO

MailOnline
March 23, 2011

Deep divisions between allied forces currently bombing Libya worsened today as the German military announced it was pulling forces out of NATO over continued disagreement on who will lead the campaign.

A German military spokesman said it was recalling two frigates and AWACS surveillance plane crews from the Mediterranean, after fears they would be drawn into the conflict if NATO takes over control from the U.S.

The infighting comes as a heated meeting of NATO ambassadors yesterday failed to resolve whether the 28-nation alliance should run the operation to enforce a U.N.-mandated no-fly zone, diplomats said.

Yesterday a war of words erupted between the U.S. and Britain after the U.K. government claimed Muammar Gaddafi is a legitimate target for assassination.

U.K. government officials said killing the Libyan leader would be legal if it prevented civilian deaths as laid out in a U.N. resolution.

But U.S. defence secretary Robert Gates hit back at the suggestion, saying it would be ‘unwise’ to target the Libyan leader adding cryptically that the bombing campaign should stick to the ‘U.N. mandate’.

President Barack Obama, seeking to avoid getting bogged down in a war in another Muslim country, said on Monday Washington would cede control of operations against Muammar Gaddafi’s forces within days, handing the reins over to NATO.

But Germany and European allies remain unwilling to have NATO take on a military operation that theoretically has nothing to do with the defence of Europe.

Today the German defence ministry announced Berlin had pulled out of any military operations in the Mediterranean.

A ministry spokesman said two frigates and two other ships with a crew of 550 would be reverted to German command.

Some 60 to 70 German troops participating in NATO-operated AWACS surveillance operations in the Mediterranean would also be withdrawn, according to the ministry.

Berlin isn’t participating in the operation to impose a no-fly zone in Libya and abstained on the U.N. resolution authorising it.

France, which launched the initial air strikes on Libya on Saturday, has argued against giving the U.S.-led NATO political control over an operation in an Arab country, while Turkey has called for limits to any alliance involvement.

In a bid to halt the embarrassing bickering, French Foreign Minister Alain Juppe today proposed a new war committee to oversee operations.

The new body, Mr Juppe said, would bring together foreign ministers of participating states – such as Britain, France and the U.S. – as well as the Arab League.

Meanwhile the head of the Italian Senate’s defence affairs committee, Gianpiero Cantoni, said the original French anti-NATO stance was motivated by a desire to secure oil contracts with a future Libyan government.

Some allies are even questioning whether a no-fly zone is still necessary, given the damage already done by air strikes to Gaddafi’s military capabilities.

Speaking about yesterday’s hastily arranged meeting of NATO allies, one diplomat said: ‘The meeting became a little bit emotional,’ before adding that France had argued that the coalition led by Britain, the United States and France should retain political control of the mission, with NATO providing operational support, including command-and-control capabilities.

‘Others are saying NATO should have command or no role at all and that it doesn’t make sense for NATO to play a subsidiary role,’ the diplomat added.

Turkish Foreign Minister Ahmet Davutoglu suggested that air strikes launched after a meeting in Paris hosted by France on Saturday had gone beyond what had been sanctioned by a U.N. Security Council resolution.

‘There are U.N. decisions and these decisions clearly have a defined framework. A NATO operation which goes outside this framework cannot be legitimised,’ he told news channel CNN Turk.

Adding pressure to the already fractured alliance, Italian Foreign Minister Franco Frattini has also reiterated a warning that Italy would take back control of airbases it has authorised for use by allies for operations over Libya unless a NATO coordination structure was agreed.

In a shock admission, U.K. ministers have admitted the intervention in Libya could last for up to ’30 years’.

Asked for an estimate, British Armed Forces Minister Nick Harvey said: ‘How long is a piece of string? We don’t know how long this is going to go on.

‘We don’t know if this is going to result in a stalemate. We don’t know if his capabilities are going to be degraded quickly. Ask me again in a week.’

In the U.S., Obama has made it clear he wants no part of any leadership role in Libya.

The President has already been criticised for continuing with a tour of Latin America as the military operation over Libya began. And yesterday he insisted again that while Gaddafi must go, the U.S. is not prepared to remove him by force, but merely to enforce the no-fly zone.

Even that hesitant stance, which has already earned him the title of the Great Vacillator, left him criticised for not seeking proper approval from Congress before sending the American military in.

And after reports emerged that Gaddafi’s son had been killed in a kamikaze strike yesterday, fresh questions over what exactly the U.S. intends to achieve in Libya emerged.

With Turkey digging its heels in and the Arab League suspicious, it has been pointed out that Mr Obama has fewer coalition partners in Libya than George Bush did at the start of the Iraq war.

He was criticised by both Republicans and Democrats over his decision to commit the U.S. military before going to Congress.

Representatives Jerrold Nadler of New York, Barbara Lee of California, Michael Capuano of Massachusetts, Senators Richard Lugar of Indiana and Rand Paul of Kentucky, and Representative Roscoe Bartlett of Maryland all complained that Mr Obama had exceeded his constitutional authority by authorizing the attack without Congressional permission.

The President hit back in a two-page letter to Congress and again reiterated his claim that while Gaddafi must go, the U.S. was only in Libya to enforce the no-fly zone for the protection of civilians.

France has already taken a leading role in the conflict, with President Nicolas Sarkozy hosting a summit in Paris over the weekend and French bombers being the first to enforce the no-fly zone.

Last night Britain’s top general was embroiled in an extraordinary clash with Downing Street over the legality of a strike to kill Gaddafi.

No 10 slapped down Chief of the Defence Staff General Sir David Richards after he flatly rejected ministers’ suggestions that the Libyan dictator was a legitimate target for assassination.

Downing Street and Foreign Office officials were quick to dispute that – saying assassinating Gaddafi would be legal because it would preserve civilian lives in Libya.