Mary Ellen O’Connell
In early September 2011, President Sarkozy of France declared the NATO-led military intervention in Libya a success. I disagree with his assessment for four reasons:
- The known result of six months of fighting is thousands killed and even more injured, with fighting continuing as of this writing.
- The use of force was not a last resort as required by international law and the just war doctrine.
- The use of force could not be predicted to do more good than harm, as also required by international law and the just war doctrine.
- The United Nations Security Council authorized only a limited use of force for civilian protection. The disregard of these limits may undermine the Council’s authority, along with the general prohibition on the use of force.
NO MEASURE OF SUCCESS
In late August, the rebels announced that 50,000 had been killed in the civil war.1 A week later, they revised their numbers down to 30,000 killed with tens of thousands more injured.2 Tens of thousands killed is no measure of success.
One can respond to the casualty figures by arguing that more might have been killed without the intervention. This is true, but in line with international law, the resort to force requires a prediction about the necessity and cost of intervention. Serious analysis prior to the war could have predicted high casualties resulting from military intervention.
NOT A LAST RESORT
The intervention was not a last resort. Sanctions, including an arms embargo, had hardly been put in place when the bombs began to fly. There was no attempt to use peaceful means to protect civilians such as gaining safe passage out of Benghazi.3 The rebels wanted no negotiation that might lead to Qaddafi stepping down in exchange for amnesty or a safe haven abroad.4 In May, the apostolic vicar of Tripoli called the decision to bomb and forego peaceful means immoral.5
NO CERTAINTY OF GOOD
Little is known about the leaders of the uprising. Some were high-ranking officials who defected from the Qaddafi regime with which they had been associated for decades. These individuals who worked with a dictator for decades raise real questions about whether a resort to military force on their behalf will end up doing more good than harm.
The Security Council vote to authorize military force was close, with only ten affirmative votes (nine are needed for approval). Five states abstained, including Brazil, China, Germany, India, and Russia. The Germans abstained because they did not see the need for military intervention. The principle of necessity in international law requires that any use of force under the United Nations Charter must be a last resort and have the prospect of achieving more good than harm.6 The interveners failed to demonstrate either aspect of necessity in this case.
NO RWANDA NOR BOSNIA
When the bombing began Western leaders invoked comparisons to Rwanda and Bosnia. But of course Libya is neither Rwanda nor Bosnia. Qaddafi’s threats against Benghazi were made during the fighting of a civil war. The genocide in Rwanda was perpetrated against unarmed civilians who had been offered protection by UN peacekeepers. The massacre at Srebrenica was committed against civilians who had been promised protection by the UN.
Other, less obvious negative consequences are possible from the war in Libya. Rebels in other places with no chance of gaining power through force may nevertheless take up arms in the hope of being rescued by NATO. The coalition’s contempt for the terms of Resolution 1973 may weaken the authority of the Security Council and the UN Charter norm prohibiting the use of force. NATO Secretary General Anders Rasmussen described NATO as ‘enforcing’ Resolution 1973, but the world knows that the intervention went beyond the protection of civilians and that its real purpose was armed regime change.
So far, only war appears to be the winner in Libya.
Mary Ellen O’Connell is Research Professor of International Dispute Resolution at the Kroc Institute and the Robert and Marion Short Professor of Law at the University of Notre Dame.
1 Kim Sengupta, Rebel Leaders Put Libya Death Toll at 50,000, Independent.co.uk, Aug. 31, 2011, http://www.independent.co.uk/news/world/africa/rebel-leaders-put-libya-death-toll-at-5000…
2 Libya: Estimated 30,000 Died in War; 4,000 Still Missing, HUFFINGTONPOST, Sept. 8, 2011, http://www.huffingtonpost.com/2011/09/08/libya-war-died_n_953456.html.
3 See Robert C. Johansen, Opinion: How to Save Lives in Libya, Establish a Humanitarian Corridor Where Libyans Can Avoid Violence, Globalpost, Mar. 13, 2011, http://www.globalpost.com/dispatch/news/opinion/110311/liba-united-nations-gaddafi.
4 Mark Tran, Libyan Rebels Protest Over African Union Peace Mission, Guardian, April 11, 2011, http://www.guardian.co.uk/world/2011/apr11/libya-rebels-protest-peace-mission/print.
6 For more on the rules on the use of force in international law and their link to the Just War Doctrine, see, Mary Ellen O’Connell, Preserving the Peace: The Continuing Ban on War Between States, 38 Cal. Western. L. Rev. 41 (2008).