Author: Louisa H. Poulsen - Edited by: Michael R. Zieniewicz and Giacomo Toffanello
The international intervention in Libya in 2011 was initially proclaimed to be a success and a model for future Western interventions, specifically because long-term dictator Muammar Gaddafi was overthrown. However, now four years later, the situation in Libya is far from stable with various armed groupings challenging the authority of the central government. Often considered in relation to the on-going civil war in Syria, scrutinising the Libyan case is as relevant as ever. In this article, Louisa H. Poulsen, a Master’s student in International Security and Law, will revisit the legal and political aspects of the 2011 intervention, and will discuss to what extent the intervention might set a precedent for future similar actions.
In early 2011, the so-called ‘Arab Spring’ began sweeping across the Arab world; first with a revolution in Tunisia, then in Egypt. Libya followed this course in February 2011, when protests erupted in Benghazi. The rebels organised with the aim of overthrowing dictator Muammar Gaddafi. As clashes intensified between the rebels and forces loyal to Gaddafi, the country was before long near a state of civil war. Calls for international intervention came from various actors in order to protect the civilian population from the forceful response of Gaddafi’s forces.
The international community decided to intervene in Libya in March 2011. The objective of this article is to examine the legal basis of the international intervention in Libya with emphasis on the authorisation of the use of force by the United Nations Security Council (UNSC). The intervention has been widely criticised, specifically in terms of the implementation of the UNSC resolution, which authorised the intervention. Consequently, the enactment of the mandate will be considered, particularly in relation to potential implications for future adoptions of resolutions authorising interventions. Moreover, since the intervention and the overthrow of Gaddafi, Libya has been labelled a ‘failed state’. For this reason, the current situation in Libya will be briefly considered before turning to the present situation in Syria, which has often been compared to that of Libya in 2011. The first question to be addressed is how the use of force was authorised.
Legal Basis of the Intervention
Fundamental to international law is the prohibition of the use of force by Member States, to which there are only two exemptions. First, the right of self-defence is enshrined in Article 51 of the UN Charter. As noted by Gray, Article 51 is the most important exception to Article 2(4) of the same Charter, which prohibits the use of force in international relations. Second, actions authorised by the UNSC are also exempt to the prohibition. The prohibition of the use of force is expressed in Article 2(4), which states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…”. However, as stated in Article 2(7) of the same Charter, though the UN is prohibited in intervening in “matters which are essentially within the domestic jurisdiction of any state”, enforcement measures can be applied under Chapter VII. This article will consider two UNSC Resolutions, both of which act under Chapter VII, namely, Resolutions 1970 (2011) and 1973 (2011).
On February 26, 2011, the UNSC adopted Resolution 1970, in which it ”[deplores] the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government”. The Resolution expresses concern ”that the widespread and systematic attacks currently taking place [in Libya] against the civilian population may amount to crimes against humanity”.
As previously noted, Resolution 1970 states that the UNSC acts under Chapter VII of the UN Charter, and it specifically refers to Article 41, which states that the UNSC “may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures”. Implementation of measures under Article 41 do not necessarily require the use of force and acting under this Article, the use of force is not authorised for the enactment of the Resolution. Had Resolution 1970 additionally referred to Article 42 of the Charter due to the inadequacy of the scope of Article 41, it could have authorised the use of force in order to “maintain or restore international peace and security”. Accordingly, on March 17, 2011, the UNSC adopted an additional Resolution 1973 as a response to the “the failure of the Libyan authorities to comply with resolution 1970 (2011)”. In addition to upholding the actions set out in Resolution 1970, Resolution 1973 is authorising the enforcement of the arms embargo and there are added sections concerning protection of civilians as well as the establishment of a No Fly Zone. This Resolution, however, only refers to Chapter VII of the UN Charter and no specific Articles (neither Article 41 or Article 42) are emphasised as grounds for the Resolution.
Resolution 1973 does not explicitly authorise the use of force, but in paragraph 4, it gives Member States the authorisation to “take all necessary measures” in order “to protect civilians and civilian populated areas under threat of attack”. Thus, in order to protect civilians, Member States are authorised to use force. The wording of the Resolution is arguably vague, and “all necessary measures” leaves room for interpretation. Consequently, the Member States that were to implement the Resolution interpreted it as authorising military intervention and the use of force in Libya.
Enactment of the Mandate to Protect
The Libyan intervention was initially widely proclaimed to be a successful implementation of the so-called “Responsibility to Protect” (R2P), especially because the result was the overthrow of a dictator who had violently suppressed opposition to his regime. As noted by Gazzini, there has been controversy regarding NATO’s implementation of Resolution 1973. Authorised solely to protect civilians, she suggests that NATO went beyond its mandate and targeted Gaddafi loyal forces with the purpose of regime change. At the same time, Member States could claim to act according to the purpose of protecting civilians when attacking these forces. Thus, while Gray maintains that “the actual legal basis for the use of force was a Security Council authorization under Chapter VII”, various states regarded the invocation of the R2P as a pretext for regime change. The enactment of the mandate to intervene in Libya therefore raises questions regarding possible ulterior motives behind the decision to intervene.
Resolutions 1970 and 1973 both refer to the responsibility of the Libyan authorities to protect the Libyan population, which invokes the doctrine of the R2P. Though not legally binding, the R2P has been recognised by world leaders as a framework for interventions with humanitarian objectives. The R2P builds on three pillars, which sets the framework for international actors to act with regards to humanitarian catastrophes. First, it is the responsibility of any state to protect its own citizens against atrocities. Second, it is the responsibility of the international community to assist any given state in upholding its primary responsibility to protect its own citizens. Third, when a state fails to protect its own citizens, the international community has the responsibility to intervene. Accordingly, military intervention by the international community is considered the last resort when a state fails to live up to its primary responsibility of protecting its own citizens.
The seeming failure of the Libyan government to protect its own citizens was thus used to justify the UNSC authorised intervention. However, Greenwald argues that “some non-governmental advocates of “humanitarian war” may be motivated by the noble aims they invoke, but humanitarianism is simply not why governments fight wars; that is just the pretty wrapping used to sell them”. Gazzini suggests that regime change might in fact have been the overall aim rather than the humanitarian objectives stated in Resolution 1973: she argues that the international community was discontent with the prospect of Gaddafi managing to supress the revolts and retain power, and that Gaddafi had likely been able to do just that without NATO air strikes targeting his forces. Similarly, VanLandingham argues that the wider context of the Arab Spring partly contributed to the adoption of Resolution 1973 as Western states saw the Libyan crisis as an opportunity to demonstrate to other revolting Arab nations that dictators could be overthrown. Moreover, Gaddafi’s unpopularity in the Arab world ensured support from various Arab states, including the Arab League, which called for the UN to establish a No Fly Zone. The support from the Arab world made a stronger case for intervention and provided a further incentive for acting.
A Failed State
Presently, conditions in Libya are far from stable as a new civil war is on-going. In the 2011 civil war, various militias fought alongside against Gaddafi. Following his death, the central government was unable to bring stability to the country and, under these conditions, rival militias began to compete to gain political influence. After four decades ruled by Gaddafi, Fisher argues that the increasing power and autonomy of militias made the central government look weak. Today, it is disputed who actually is the legitimate government of the country with two opposing government bodies each claiming to be the representative authority of Libya; one is largely composed by Islamist and militia figures, while the other is dominated by a military alliance. In the political vacuum, the country is arguably disintegrating. There is no functioning police force or army to rein in the large number of militias that are plundering the riches of the country, destroying its infrastructure and committing unlawful killings.
The ‘West’, specifically the United States, has also been directly affected by the instability of the country when its Ambassador, Chris Stevens, was killed in Benghazi by militias. Announcing the death of Stevens on September 12, 2012, US President Obama stated that “along with his colleagues, Chris died in a country that is still striving to emerge from the recent experience of war”. And Libya has yet not quite emerged from war. The latest updated “Libya Travel Warning”, issued by the Bureau of Consular Affairs of the US State Department, advises US citizens against travelling to Libya. “The security situation in Libya remains unpredictable and unstable”. It is stated that the government of Libya has been unable to manage the situation in which “private individuals, U.S. and UN-designated terrorists, and other armed groups” are still in possession of weapons acquired during the time of the Civil War. According to HRW, the armed groups, that are dominating on the ground in Libya, are entangled with the central government and receive payment for services.
The UNSC has also worked towards finding solutions to the present situation in Libya, and on August 27, 2014, it adopted Resolution 2174 (2014). Accordingly, the UNSC recalls all previous resolutions since the previously mentioned Resolution 1979 and it condemns “the ongoing fighting by armed groups and incitement to violence, and expressing its deep concern at its impact on Libya’s civilian population and institutions, as well as the threat it poses to Libya’s stability and democratic transition.” Also, the UNSC expresses its concern “at the growing presence of Al-Qaida linked terrorists groups and individuals operating in Libya.” HRW also states that some armed groups are affiliated with the Islamic State (pp. 356-357). This is echoed by the Bureau of Consular Affairs, warning against traveling in desert and border regions of Libya as “terrorist organizations, including ISIL affiliated groups and al-Qaeda in the Islamic Maghreb, continue to threaten the region”. These concerns are also evident in the international community’s dealings with Syria today.
Reflections: Civil War in Syria
The situation in Syria is arguably no less severe than that of Libya in 2011. The civilian population is subjected to abuse by extremist groups, including the Islamic State, as well as the central government, and millions are internally displaced and in need of humanitarian assistance. Others are fleeing the country to find refuge elsewhere (p. 515). This leaves the question: why did the UNSC authorise an intervention to protect the civilian population in Libya in 2011 and not in Syria? First, draft resolutions directed at the Syrian crisis were vetoed by China and Russia, while the Resolution authorising military intervention in Libya was adopted, though with abstentions. Russia, an ally of the Syrian regime, has advocated against an overthrow of the Syrian government, and the involvement of Russia in Syria, most recently in terms of deploying Russian troops on the ground in Syria to fight the Islamic State, complicates the situation even further. Second, it is arguably possible that the intervention in Libya in 2011 has had ramifications for future interventions, specifically concerning the discontent created by the apparent overreach of the mandate. As previously mentioned, some argue that NATO went beyond what was authorised by Resolution 1973 and contributed to the fall of the Gaddafi regime. The notion that the invocation of the R2P may be used to justify interventions with ulterior motives may deter countries from supporting such authorisations. This view is shared by Morris, who argues that discussions in the UNSC over the situation in Syria was affected by debates about the enactment of Resolution 1973 in Libya.
When considering the current situation in Syria, there is arguably an urgent need to act to protect the civilian population from armed groups as well as from the Syrian regime, which has led to a large number of refugees fleeing to Europe. This is becoming a very direct concern of European governments. At the same time, world leaders are also concerned with the increased presence of extremist groups in the region, specifically the expanding influence of the Islamic State. In September 2014, a US-led coalition initiated airstrikes within Syria, targeted at the Islamic State. The legal grounds for the use of force in Syria is contested. As previously noted, the prohibition to use force within a sovereign state can be overruled by UNSC authorisation or Article 51 of the UN Charter. Thus, according to Arimatsu and Schmitt, the use of force in Syria by the US-led coalition has largely been justified on grounds for collective self-defence against the Islamic State. While the international community intervened in the Libyan Civil War against atrocities committed by government forces, airstrikes in Syria are directed at ‘terrorists’, and the aim is not necessarily to protect civilians. In any case, it may prove difficult to reach agreement on UNSC action for protection of civilians in Syria if there is no will to intervene, and presently, world leaders are more attentive to the ‘terrorist’ threat in Syria.
The current situation in Syria is often mentioned in relation to the Libyan Civil War, especially because the actions of the Syrian government towards its own population resembles the Libyan government’s response to the protests of 2011. Nevertheless, if the UNSC authorises military intervention to protect civilians in countries that experience internal instability and civil war conditions, the present situation in Libya shows that military intervention and the overthrow of a dictator do not guarantee peace and stability. In the case of Libya, the adoption of Resolution 1973 was less problematic than the actual implementation of the mandate, and it may be argued that the ‘overstretch’ of the mandate can affect the wills of states to intervene in future cases of human rights violations committed by central governments against their citizens. In any case, the initial proclamations of success in the Libyan intervention have been challenged by the enactment of the mandate as well as reality on the ground today in Libya. The future of the country is challenged by the power struggles that have emerged in the political vacuum as the supposed attempt at ‘regime change’ left the country without a viable alternative to their long-time dictator, Gaddafi. Thus, the resolve to intervene, whether for humanitarian purposes or not, is not enough. The implementation of a resolution, as well as consideration for the outcome of it, is part of the issue. At least, it should be. Whether or not the Libyan intervention provides a model for future intervention is not really the question. The question is whether we would want it to.
 C. Gray, “The Use of Force and the International Legal Order,” in International Law, ed. Malcolm D. Evans (Oxford, United Kingdom: Oxford University Press, 2013), p. 627.
 Ivi, pp. 625-626.
 Ivi, p. 626.
 S. Zifcak, “The Responsibility to Protect,” in International Law, ed. Malcolm D. Evans (Oxford, United Kingdom: Oxford University Press, 2013), p. 509.
 Ivi, 521.
 R. E. VanLandingham, “The Stars Aligned: The Legality, Legitimacy, and Legacy of 2011’s Humanitarian Intervention in Libya,” Valparaiso University Law Review 46, no. 3 (2012), p. 861.
 Ivi, pp. 861-862.
 S. Zifcak, p. 524.