Comment on Libya and the Responsibility to Protect / by Simmon Li

As the nature of the world system has shifted, so too, as the focus on injustice in the world. In recent decades, the focus on human rights and security has lead to the development of the responsibility to protect. The doctrine represents a step forward in the debate regarding appropriate responses to egregious violations of human rights. As the international community engages in Libya, the responsibility to protect has gained renewed attention in popular and academic discourse precisely because the Libyan situation reflects the mandate of the responsibility to protect. The Arab Spring is a unique opportunity for scholars to see how responsibility to protect may be utilized and implemented. A short discussion of the context in which responsibility to protect (R2P) has emerged, and what the doctrine has to say will be followed by applying it to the Libyan case. An analysis of why Libya constitutes a case for the responsibility to protect will be followed by laying out some of the possible dangers to both the men and women in action in Libya, and to the norm of responsibility to protect and the UN in the future. Responsibility to protect was primarily drafted as a response to the inaction of 1994, and the failure of intervention in 1999 by the international community. As mentioned, it would be fair to say that responsibility to protect has emerged from previous norms regarding human rights, collecting them and providing a more coherent approach in the process of humanitarian intervention . As the ICISS document articulates, the norms of state sovereignty, non-intervention, and self-determination presented unique challenges to the implementation of humanitarian intervention. The responsibility to protect has addressed those norms of state. The foundation of responsibility to protect is increasingly becoming utilized at the international level to address human rights issues. The case in Rwanda 1994 illustrate so painfully, the cost of inaction outweighs the potential cost of intervention, as witnessed in the response of Kosovo 1999. This however, was not prudent because there was no coherent plan for the intervention beyond the immediate horizon. None the less, R2P was put into action in Darfur in 2003  and served to illustrate the doctrine’s persuasiveness regarding its conception of sovereignty as a responsibility. As a result, the R2P has become an important part of the international debate about human rights and intervention.

R2P attempts to redefine the norm of sovereignty in such a way as to give the international community legal justification for the act of intervention. In the past, norms of non-intervention and self-determination have been stumbling blocks when dealing with issues of international human rights. The responsibility to protect is split into four core principles. The first core principle attempts to redefine the norm. Primarily, the report seeks to reconceptualize state sovereignty as a responsibility to its citizens, as opposed to an inherent right .  The report states that a state only retains its sovereignty if it provides for the basic human security that its citizens expect. By relying on past precedent in international law, the report frames intervention from a legal position. The third principle defines the three aspects of responsibility to protect. The responsibility to protect sets out specific facets of responsibility that the international community has vis-à-vis the overarching responsibility to protect, including (1) prevention, (2) reaction, and (3) rebuilding. The last core principle defines the priorities of responsibility to protect. Because sovereignty is redefined as a responsibility, the focus of the international community shifts as well. The primary responsibility is one of prevention . As the state is responsible for the rights and security of its citizens, it makes sense then for the international community to help build capabilities as opposed to intervene.

The first aspect of discussion is the responsibility to prevent. Specifically, there is discussion about early warning and drawing up solutions that address the “root cause” of a conflict. The case of prevention involves addressing political, economic, legal, and military issues that can spark or fuel a conflict. The report articulates that, while the data and information is available to help with early warning, the international community does not utilize the information well enough. With prevention as the primary focus of the larger R2P doctrine, effective use of information is important. In the context of responsibility to protect, the responsibility of prevention obligates the international community to work towards reducing inequalities across the globe through active participation in political and economic reform . These actions encompass what the report calls “root cause” prevention. With a wide scope of ensuring the continued convergence of nations, the UN has equated such convergence with prevention of conflict . The responsibility to protect also stipulates that the international community should strive to produce military capability and institutions that serve as preventive agents against conflict and function to protect the civil society and the functioning of the state. Here we can see that the responsibility to prevent places a high premium on the local ownership of issues . There are pitfalls and questions raised by the prevention responsibility. As Luck points out, the responsibility to prevent is sometimes hard to distinguish from other aspects of the responsibility to protect . The report makes a distinction between mechanisms to address root causes and “direct prevention”. However, this distinct “direct prevention” tends to resemble the actions defined in the responsibility to react. Indeed, does prevention necessarily preclude intervention of any sort? The tools available to the international community for direct prevention serve to blur the lines. Tools such as the ICJ and sanctions, on one level, do represent a violation of the norm of self-determination, and could be seen as a form of intervention.

The second function of the responsibility to protect is to define the principles that an international community should follow in the event of military intervention in a state, the responsibility to react. As the responsibility to protect is primarily concerned about multilateral action, it defines the criteria and parameters of any military action that may be initiated. Through the just cause thresholds, the precautionary principles, the right authority, and the operational principles, responsibility to protect seeks to provide a way for the international community to exercise the responsibility to react . Essentially, the report defines why action should happen, when to act, whom may act, and how action should be undertaken. Such distinctions are important to make sure that the responsibility to protect is not abused for non-humanitarian reasons. The UN is rightfully concerned that inappropriate use of the principle would have negative implications for the legitimacy of its power. As the Libyan case is clearly concerned with this aspect of R2P, a more detailed analysis can be found later in this report.

Third, the doctrine considers the aftermath of intervention. The report mentions a few responsibilities that the international community is obliged to perform should an intervention take place under the scope of responsibility to protect. Here, R2P relies on peace building, which is defined as the process of reconciliation. Reconciliation efforts are operations to repair damage done after an intervention. The peace building is largely focused on aspects of human security. Such needs encompass the physical, political, judicial, and economic security of the citizens. The international community, in doing such work, fulfills the obligations as set out by the responsibility to protect . It is clear in the doctrine that the responsibility to rebuild is one that must be taken on in a sincere and honest manner. The report frames rebuilding as a project of sustainable development, and relies on other conventions already agreed to in the UN regarding development . Through the process of peace building, the state gains the capabilities to deliver on the responsibilities that accompany sovereignty. While peace building is important for the post-intervention capability of the state, the report also lays out a clear method for how power and ownership of the projects should transition away from international leadership to local leadership. It is through a process of incremental transfer of sovereignty and responsibility that the international community seeks to empower local governments to provide for their citizens. The report shows commitment to the idea of local ownership  and bottom up development, while also pointing out the dangers of intention that underlie R2P .

The conclusions drawn from the report seem to suggest that R2P is primarily concerned with defining a moral case in which the international community may act to correct violations of human rights. This moral case is constructed on the foundation of international law as it relates to human rights, and thus constructs the case on legal grounds as well. As R2P has evolved out of the norms concerning humanitarian intervention, many of the questions raised in the discussion of humanitarian intervention apply. While the report does seem to construct a moral case for intervention, the R2P doctrine itself does specify other aspects of action that can be taken. The implementation of such action, however, could be more effective. Because of the lack of actual implementation, there are three main problems with R2P that serve to dilute and even counteract its effectiveness.

First, R2P is not a norm as we have come to define. It is far from completing the “life cycle of norms” that Finnemore and Sikkink lay out . According to Finnemore and Sikkink’s analysis, it is hard to argue that R2P has been internalized. However, it would be easy to point out that R2P is on the path towards internalization, especially if one considers the endorsement by the UN World Summit in 2005  and the reaffirmation a year later. In this case, one could argue that the endorsement by the UN World Summit may represent a tipping point  in which a cascade may follow. Bellamy makes the case, however, that the norm of responsibility to protect has not been internalized . It is clear that there are many points in the responsibility to protect that have yet to be addressed before it could even begin to cascade and become internalized. As with the development of the Bretton Woods economic system, as pointed out by Helleiner , it could be argued that responsibility to protect is an important first step in the process of norm creation . To transplant Helleiner’s nuanced norm emergence analysis and project it to the development of responsibility to protect, Rwanda provided the legitimacy crisis while Kosovo moved the norm of humanitarian intervention into the experimentation stage, which failed and resulted in the responsibility to protect. This brings up an important question as to the future of R2P. The fundamental question of how R2P moves forward relies heavily on analytical lenses through which leaders and opinion movers may approach R2P. Through specific rationalist lenses, R2P may be viewed as an international policy tool to enforce or build a kind of international security. Through measuring of capabilities and a focus on the logic of consequences, states may seek to interpret R2P in a manner that allows them to act. For example, Ignatieff  argues that states unable to provide for the human security of its citizens often correlate with states that are unable to regulate themselves, and thus are liable to generate international security threats  and 9/11 has helped to draw this point sharply. Others may take the constructivist approach and be concerned with the logic of appropriateness. Here, questions about what is right and what is appropriate would be the dominate frame. Walzer argues that the moral case is by far the strongest for responsibility to protect, and that, while consequences do matter, the moral obligation should be the primary concern. Here, the moralistic frame is at the heart of his presentation. Another question of perception involves decision makers and how they may attempt to manipulate and shape R2P into a policy that would be favorable for them . In this analysis, it is possible to see the realist national interest play an important role in the formation of a new norm . As the case of Russia and Georgia in 2008 point out, the perception of R2P can play heavily into how a nation seeks to invoke the doctrine . Likewise, the case of Iraq and the language Bush used lead to more questions about whether or not R2P is a norm, or whether it is better classified as an idea-in-progress. As we have established that R2P is not a norm, but rather an idea in the process of being shaped, it is instructive to look at R2P’s conception and implementation on the international stage.

The next problem draws heavily on the theoretical implications of R2P and how it is implemented. As Pattison states, while the report has articulated a responsibility to protect, it has failed to provide the capability to provide such decisive action . This was one of the failures revealed in Kosovo 1999, and has continued to be a failure of the policy. Regardless of the UN capability to act, what is manifested in the doctrine is a collective action problem . Those with the capability will likely refrain from acting because the costs of intervention are not cheap. This kind of concern is one of the more potent explanations for the inconsistency of action in regards to intervention. As Obama stated in his March 28th address, “It’s true that America cannot use our military wherever repression occurs. And given the costs and risks of intervention, we must always measure our interests against the need for action.”  Clearly, the problem of consistency is a collective action problem and the lack of UN capability to enact the responsibility continues to compound and complicate the formation of R2P as a norm.

This brings us to one of the fundamental problems that is inherent with the R2P itself. Both the conception and perception of R2P and the collective action problem relate to the fact that R2P is a normative conception and relies on compliance. As Welsh mentions, the mechanics of normative change are not yet fully explained, and thus it is hard to articulate R2P as a fully formed norm , clearly it is not. The larger debate alluded to in Bellamy et al. relates to the normative nature of R2P as we know it: the cases against intervention draw primarily from the failure of R2P and intervention as general normative doctrines into sharp focus . Objections to responsibility to protect and humanitarian intervention cross all lenses of analysis and call into question the actions responsible for implementing R2P. Not only are questions being asked regarding the intentions of actors, but also their interpretations of R2P. As pointed out by Bellamy and Wheeler, consensus on a policy does not necessarily mean action, and even action is agreed upon, the nature of those actions may be different . How these intentions and interoperations translate into action may not live up to the normative conception of action and constitute the biggest stumbling block for the future of R2P as a set of policy tools.

While this may not be encouraging news, it is important to reference the process of norm creation again. Norms on the international stage are internalized through a long process, and their normative power is established incrementally. As Helleiner alludes to regarding the economic system , there is never a single moment in which new norms crystallize and are internalized. Such processes are always the result of some political process that progresses incrementally, sometimes slower than we wish. Additionally, it is important to remember that norms, whether in formation or already internalized, are always mediated through the lens of analysis. It is only through effective implementation of norms that they gain legitimacy and strength to become internalized, and eventually become subject to codification in international law.

Now we turn to the specific case of Libya and how the responsibility to protect may be relevant. There are two considerations regarding Libya that lend it as a case for R2P to apply. First,  R2P defines  sovereignty as a responsibility of the sovereign power, with that responsibility including the protection of citizens. This is one of the basic principles of the doctrine, and it is through this conception of sovereignty that actions can be taken against states that have failed to provide such protections. As the doctrine states, a state that is unable or unwilling to provide for the security of its own people constitutes a case for the responsibility to protect . In the case of Libya, Colonel Gaddafi has turned his national security apparatus on his own citizens. Not only has he been using ground forces to attack his own citizens, but has also used the air force to provide more leverage in the operation against them. Because the state in the case of Libya is failing to provide for the protection of citizens, there is clearly a violation of the principle of sovereignty as responsibility. As such, the implementation of a no-fly zone against Libyan aircraft is entirely consistent with the responsibility to protect. According to the just cause threshold, there must be a large-scale loss of life, either actual or apprehended, regardless of intent, to justify an intervention. As Gaddafi’s regime has alluded, it will pursue those that defy the government with vigor which will result in a large scale loss of life . In the words of the just cause threshold, it is imminently likely that a large-scale loss of life will occur if no intervention is taken. Additionally, it is telling that the local regional authority has also made a case for R2P. The Arab League, a regional multilateral organization, has said as much regarding Gaddafi’s sovereignty, relying heavily on the R2P interpretation of sovereignty as a responsibility. The Arab League claims that Gaddafi no longer has sovereign right in Libya due to the actions against Libyan citizens . As the Arab League is a local organization, the fact that it took ownership and called for a no-fly zone is paramount to the case for action, and for the legitimacy of the operation. Second, one must consider the concept of right authority as defined in R2P. It is impossible to deny that there is a general consensus that something must be done, but similarly, the specifics of the intervention are much murkier given the apprehension of Germany and others to participate . However, by allowing the United Nations to take the point on this issue, there is clearly deference to the right authority by those seeking to implement R2P in Libya. While the EU’s inaction was primarily due to their lack of capability, there is deference to the right authority of the UN Security Council, which needed to be invoked. The case in Libya is clearly enshrined in the responsibility to react, and the moral impetus for action is obvious. Because of those circumstances, intervention in Libya has been agreed upon by the UNSC, the Arab League, and other nations in the North Atlantic region . Such international cooperation is a large step forward for R2P as an international norm-in-progress.

While international consensus on action is now clear, there are a few shortcomings with the action in Libya that are just now being addressed. The shortcomings are a related to the fact that the doctrine of Responsibility to Protect is still a developing international norm and has not yet had the chance to be implemented. As a result there are specifics of the Libyan case that point to some problems with the implementation of R2P. On a larger scope, there is clearly a failure of the principle of prevention. While this principle is now not of concern, it is important to consider how the lack of prevention may speak to the potential moral bankruptcy of the West in following any of the other aspects of R2P . Second, there are two specific areas of concern regarding R2P. Within the specific scope of reaction, there is clearly a failure to implement some of the precautionary principles as well as a failure to adhere to the operational principles as defined by R2P. In taking a look at the actual intervention of Libya, we can see that while the nature of the intervention is consistent with the responsibility to protect, what has been realized is, at best, a mixed implementation and interpretation of R2P. Some aspects of R2P have been implemented while others are missing. First and foremost, it would be apt to point out that the intervention option is prescribed by R2P as the last resort. It is unclear at the moment whether or not other avenues were pursued other than sanctions against Libya. While it is possible to argue that there was a reasonable expectation that Gaddafi would have continued to terrorize his own people if given more options, the claim is questionable at best. Only now, are the Western nations getting an asset freeze, so as to make it harder for Gaddafi to pay his army. Only now, are offers to extradition or exile being offered seriously, and only now are there face to face meetings between the rebels and Gaddafi’s regime itself . The recent defections by high-level Gaddafi supporters brings into question whether such defections could have been obtained through other, less coercive means . While an intervention was needed because of the situation at hand, there was opportunity to avoid such a rapid escalation of violence by Gaddafi in the first place through alternative means of action. It seems as though the UNSC was unwilling to pursue other options , and thus appears to have failed to take into account one of the primary precautionary principles enshrined by R2P. Second, the principle of proportional means, it seems, has not been adhered to. The Arab League in supporting the no-fly zone had a different interpretation of what a no-fly zone would mean in practice compared to the actions taken by the United States and its European allies. This can be seen in the denunciation by the Arab League of the scale of attacks by the United States and Britain in disabling Libyan targets. “What we want is the protection of civilians and not the shelling of more civilians”, Amr Moussa, the Arab League’s Security General, is quoted regarding the scale of operations in Libya . The quote also reveals that the principle of reasonable prospects, which states that intervention should be a positive experience, is in question. In the case of Libya, it appears so far, that the intervention has not had a negative impact, and indeed has helped to protect the citizens of Libya from Gaddafi .

Other aspects of the doctrine that are not being followed include the operational principles. Here, it is clear that the intervention failed to live up to the normative standards R2P’s reaction aspect. First, there has not been “a clear objective with a clear and unambiguous mandate at all times”. The French, for instance, has recognized the Libyan rebels as the legitimate sovereign of Libya . Other member countries involved in the operation do not feel the same way, and in fact, the French drew criticism for suggesting so. In fact, due to the fragmented nature of the response so far, there are no clear objectives or timelines regarding the military intervention that has already taken place . In addition to protecting civilians, the bombing of Gaddafi’s compound speaks to the ambiguous scope and objective of the air campaign over Libya . Also in question is the fact that the intervention, up until NATO was involved, was largely an ad hoc attempt by several countries to achieve some ambiguous goal . This is a clear violation of the second operational principle, which states that an intervention should have “common military approach among involved parents; unity of command; clear and unequivocal communications, and chain of command.” Clearly, this was not the case, as we have witnessed in Libya. Until NATO takes over the operation, there is simply no unified goal or command structure. Without clear and defined command, the principle regarding rules of engagement and objectives is also ambiguous. If the goal of the intervention is regime change, then targeting of Gaddafi’s compound takes on different meanings than if the goal of the intervention is strictly protection of the Libyan people, as the UNSC resolution stipulates. All the operational principles rely on there being an unambiguous and clear set of objectives for any intervention, and the case Libyan operations has clearly failed to generate such succinct goals . Failure to apply the doctrine as a whole speaks to the problem of normative doctrines as they are implemented. Above all, the operation in Libya demonstrates a massive failure of prudence on the part of the international community and has the potential to reduce the legitimacy of action in Libya, and of action under the scope of R2P in the future. The failure of implementation may also have negative effects on the formation of international norms based on the ideas presented in R2P. In addition to the stakes for R2P itself, there are men and women on the ground in Libya at the moment with an uncertain future.

The dangers involved with the Libyan mission, at this point, amount to informed speculation. While there is a real sense of danger for the ideational foundation of the report and doctrine, any of the physical dangers that could manifest themselves are just that: possibilities. When it comes to dangers regarding the physical capabilities of states involved, it is helpful to leverage the realist lens of analysis. At this level of analysis, the dangers of the war can be directly related to the question of defining goals and consequently how states should go about implementing the responsibility to protect. At the moment, the intervention is opened ended, but has already started to affect some change. Some argue that such intervention had been overwhelmingly positive , others argue otherwise .  As articulated, certain aspects of the responsibility to protect have not been clearly followed, and such failure has resulted in a fear regarding the expansion of goals (and costs) in Libya. On this point specifically, it is clear that a limited scope military intervention is the only option acceptable to the wider international community, considering the domestic environments that these governments find themselves . In this issue, we see the collective action problem inherent in R2P; however, what arises from this issue is arguable even more of a danger. Without a wider scale intervention, there may not be a reasonable chance of affecting important and effective change. Because the operation in Libya failed to consider most of the precautionary and operational procedures, the questions are being asked now, after intervention has been implemented. Interestingly, there has not been any official talk of post-intervention action on the international stage. As R2P does include, as part of its three prongs, the responsibility to rebuild, there is an open question as to whether the international community will commit, as the doctrine asks, to such responsibility.  This relates directly to the fear of mission creep, and is a good indication that certain aspects of R2P, while noble, may not be implemented. Without going into too much detail, the responsibility to rebuild is one of the most problematic portions of R2P when dangers are concerned. State building, regardless of intervention, is a task that requires immense resources. Ignatieff states as much in his article, saying that the balance of the responsibility to rebuild is hard to attain: “Taking responsibility without confiscating it is the balance international administrators have to strike.”  In the responsibility to rebuild, the compound problems inherent in R2P are manifested: (1) the collective action problem, and (2) the problem of normative prescription being implemented in a physical and political reality .

Another problem that the Libyan case brings up is the credibility of the international community, the UN, and the doctrine itself. Primarily, it is an issue of consistency. As Gagnon pointed out in her article, it is impossible to argue that the West is in an enviable moral position. Clearly, if R2P is the justification for intervention in Libya, then why is that the situation in some other Middle Eastern countries has yet to constitute a case of the responsibility to protect ? The question is a reasonable one, and serves to delegitimize all three parties involved in this operation: the international community, the UNSC, and NATO. Because there is a lack of consistency, there have been questions raised as to the intent of nations that have intervened in the Libyan case. Again, the differences of analytical lenses reveal how different perceptions can be achieved from the same actions, and indeed, there have been accusations of national interest driving involvement in Libya. Another interpretation of the situation relates to the constructivist approach of international relations. Here, the argument is that France and Britain are leading the calls into Libya precisely because it is an opportunity to regain credibility on the international stage . With increasing marginalization in UN foreign policy, the chance to implement and lead a major international operation would restore some of the credibility of Britain and France as political forces in their own right. In either case, there are immense questions of intent and consistency that risk the credibility of the whole operation, and the future of the doctrine itself . As the UN is vested heavily in the creation and encapsulation of this norm as law, it is extremely important that what happens in Libya proceeds according to the doctrine. The danger to the responsibility to protect, in this sense is large, as well as the danger to the states involved due to the huge political and financial burden such commitments take. The issue underpinning these political considerations is the collective action problem as defined in R2P. Credibility does not necessarily buy action. In the face of France and the UK, it is clear they lack the capability to effectively act. Again, the normative nature of R2P and physical and political reality of these states fails to line up .

Finally, one of the dangers of the Libyan case relate to how the operation was started. As mentioned earlier, because of the eagerness to act, many of the precautionary principles were not followed. The primary danger in this accelerated process is that the tools of intervention before military will increasingly become marginalized or deemed ineffective. The responsibility to protect clearly defines military intervention as the last resort. The Libyan case has set up a dangerous precedent in the implementation of the doctrine, and pose a danger for future situations in which the responsibility to protect could be utilized to prevent egregious violations of human rights.

While the moral case presented by the responsibility to protect applies in Libya without question, there are many things to give someone pause regarding the Libyan case. As articulated, there is a large gap between what is conceived and what is happening on the ground. Without adhering to all the principles of the responsibility to protect, it is impossible to say that Libya exemplifies a case of the doctrine in action; however, it is clear that the international community has much to learn when it comes to humanitarian action. As alluded to in the criticisms of R2P itself, it is clear that the international community has failed to learn the lessons of Kosovo. While the doctrine’s moral underpinning remains relevant, the collective action problem was manifested in the response to Libya, and resulted in the partial implementation of R2P itself. While this event may affect not affect the credibility of R2P itself, it has the potential to address the lack of capability and willingness to address problems at the UN level.

 

[Ed: A less rigorous follow-up can be found here.]