Libya Resolution Part 1: Parsing the Text
By Mike Dorf
Absent unexpected intervening events, I'm devoting my three blog posts this week to U.N. Security Council Resolution 1973 (2011), which authorized the establishment of a no-fly zone over Libya and the use of "all necessary measures" to protect Libyan civilians. Today's post will highlight potential difficulties in the text of the resolution. Tomorrow, I'll look at the factors that appear to go into a Security Council decision to authorize force in a case like Libya but not in other, seemingly similar cases--including Bahrain, Yemen, and Syria right now, and the Darfur region of the Sudan very recently. On Wednesday I'll broaden my focus to ask whether the U.N. system for authorizing warfare makes sense.
Precisely what measures does Resolution 1973 authorize? The issue was nicely framed by Russia. According to the official summary in the U.N. press release:
The no-fly zone itself is probably the most straightforward substantive piece of the resolution. It pretty clearly authorizes airstrikes against Libyan air defenses of the sort we've already seen carried out. The potential ambiguity here concerns who carries them out. The Resolution authorizes enforcement of the no-fly zone by "Member States . . . acting nationally or through regional organizations or arrangements . . . ." It contains additional language requiring notification and urging consultation but as I read the Resolution, U.S., British, and/or French carrier-based fighter planes and helicopters could take off from the Mediterranean (thus avoiding the need to obtain permission to fly through foreign airspace) and hit Libyan targets even in the face of opposition from other countries, should they sour on the mission. Only Security Council repeal of Resolution 1973 would revoke this authorization, and the U.S., Britain or France could prevent such a repeal because each has veto power in the Security Council.
To be sure, the notion that the U.S., Britain or France would persist in enforcing the no-fly zone over Libya in the teeth of a change of heart by, say, the Arab League, may seem far-fetched. But it's worth remembering that the Security Council Resolutions that began and ended the first Gulf War were invoked over a decade later by the Blair government and the Bush II administration as providing authorization for the 2003 invasion of Iraq, even in the face of pretty clear opposition within the Security Council to any new authorization for force. The Blair/Bush argument for the invasion's legality was very weak (as I noted at the time), but it was enough of a fig-leaf to provide some legal cover for the Iraq invasion. Given the differences in language, under changed circumstances, Resolution 1973 could be used to provide stronger grounds for unilateral action against Libya. I don't think that's likely, but one should recall that Qadaffi could remain in power for another decade or longer, and that U.S. actions purportedly under Resolution 1973 could be carried out by a different administration.
Nonetheless, all things considered, I regard the risk that Resolution 1973 would become a Frankenstein's monster authorizing unilateral force as quite small. The larger risks concern what happens on the ground. Had Resolution 1973 issued two weeks earlier, when the rebels had some momentum, air power alone might have been enough to propel them to victory over Qadaffi. One might have expected that all but hard-core loyalists and foreign mercenaries would have seen the writing on the wall and defected to the rebels. But in the intervening time, Qadaffi's forces rallied, so that what was originally proposed as a mission to aid a democratic revolution has instead become a protection mission. How, exactly, will that be accomplished? Paragraph 4 of the Resolution
The best-case scenario would be a short burst of power in aid of the rebels, which proves to be enough to allow them to re-group and receive arms and training (neither of which is expressly authorized or forbidden by the resolution). That might then lead to a negotiated exit for Qadaffi and his inner circle, with the rebels quickly implementing free and fair elections. But there are any number of less rosy scenarios in the cards, including protracted civil war, de facto partition of Libya, and its becoming a failed state. Given the role that the international community would have played in facilitating that state of affairs, the international community (including the U.S.) would then have a responsibility to "fix" Libya under the Powell/Pottery Barn doctrine of "you break it, you own it."
Is it fair to say that the international community will have broken Libya? Not entirely. Under any fair accounting, Qadaffi himself broke Libya, through his megalomaniacal rule and brutal repression of what began as a peaceful democratic protest. But to paraphrase Donald Rumsfeld, you don't go to war against the enemy you wish you had.
Absent unexpected intervening events, I'm devoting my three blog posts this week to U.N. Security Council Resolution 1973 (2011), which authorized the establishment of a no-fly zone over Libya and the use of "all necessary measures" to protect Libyan civilians. Today's post will highlight potential difficulties in the text of the resolution. Tomorrow, I'll look at the factors that appear to go into a Security Council decision to authorize force in a case like Libya but not in other, seemingly similar cases--including Bahrain, Yemen, and Syria right now, and the Darfur region of the Sudan very recently. On Wednesday I'll broaden my focus to ask whether the U.N. system for authorizing warfare makes sense.
Precisely what measures does Resolution 1973 authorize? The issue was nicely framed by Russia. According to the official summary in the U.N. press release:
VITALY CHURKIN (Russian Federation) said he had abstained, although his country’s position opposing violence against civilians in Libya was clear. Work on the resolution was not in keeping with Security Council practice, with many questions having remained unanswered, including how it would be enforced and by whom, and what the limits of engagement would be. His country had not prevented the adoption of the resolution, but he was convinced that an immediate ceasefire was the best way to stop the loss of life. His country, in fact, had pressed earlier for a resolution calling for such a ceasefire, which could have saved many additional lives. Cautioning against unpredicted consequences, he stressed that there was a need to avoid further destabilization in the region.It is easy to doubt the sincerity of Russian and Chinese arguments against the resolution. (China raised similar questions.) Both countries have long worried that international authorization for the use of force against countries that are themselves using force against "internal" enemies would come back to bite them--primarily in the Caucasus for Russia and in Tibet and Xinjiang for China. But however flawed each country might be as a messenger, the message of wariness is nonetheless worth considering.
The no-fly zone itself is probably the most straightforward substantive piece of the resolution. It pretty clearly authorizes airstrikes against Libyan air defenses of the sort we've already seen carried out. The potential ambiguity here concerns who carries them out. The Resolution authorizes enforcement of the no-fly zone by "Member States . . . acting nationally or through regional organizations or arrangements . . . ." It contains additional language requiring notification and urging consultation but as I read the Resolution, U.S., British, and/or French carrier-based fighter planes and helicopters could take off from the Mediterranean (thus avoiding the need to obtain permission to fly through foreign airspace) and hit Libyan targets even in the face of opposition from other countries, should they sour on the mission. Only Security Council repeal of Resolution 1973 would revoke this authorization, and the U.S., Britain or France could prevent such a repeal because each has veto power in the Security Council.
To be sure, the notion that the U.S., Britain or France would persist in enforcing the no-fly zone over Libya in the teeth of a change of heart by, say, the Arab League, may seem far-fetched. But it's worth remembering that the Security Council Resolutions that began and ended the first Gulf War were invoked over a decade later by the Blair government and the Bush II administration as providing authorization for the 2003 invasion of Iraq, even in the face of pretty clear opposition within the Security Council to any new authorization for force. The Blair/Bush argument for the invasion's legality was very weak (as I noted at the time), but it was enough of a fig-leaf to provide some legal cover for the Iraq invasion. Given the differences in language, under changed circumstances, Resolution 1973 could be used to provide stronger grounds for unilateral action against Libya. I don't think that's likely, but one should recall that Qadaffi could remain in power for another decade or longer, and that U.S. actions purportedly under Resolution 1973 could be carried out by a different administration.
Nonetheless, all things considered, I regard the risk that Resolution 1973 would become a Frankenstein's monster authorizing unilateral force as quite small. The larger risks concern what happens on the ground. Had Resolution 1973 issued two weeks earlier, when the rebels had some momentum, air power alone might have been enough to propel them to victory over Qadaffi. One might have expected that all but hard-core loyalists and foreign mercenaries would have seen the writing on the wall and defected to the rebels. But in the intervening time, Qadaffi's forces rallied, so that what was originally proposed as a mission to aid a democratic revolution has instead become a protection mission. How, exactly, will that be accomplished? Paragraph 4 of the Resolution
[a]uthorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory . . . .One measure taken so far consists of bombing raids on Libyan troops positioned outside Benghazi. But "all necessary measures" presumably include the use of ground forces as well. Although President Obama has stated that he would not introduce American ground forces into Libya, the Resolution clearly permits the U.S. and other powers to do so if deemed necessary to protect civilians. Should Qadaffi's troops carry out attacks on rebel positions within cities, air power alone would be largely ineffective. Perhaps air power will be enough to drive Qadaffi's forces from Benghazi--as already appears to be happening--but those Qadaffi forces could well move back in once foreign ground troops left. Accordingly, there will be pressure for foreign troops to remain, and these troops would look very much like the "foreign occupation force" that the Resolution excludes.
The best-case scenario would be a short burst of power in aid of the rebels, which proves to be enough to allow them to re-group and receive arms and training (neither of which is expressly authorized or forbidden by the resolution). That might then lead to a negotiated exit for Qadaffi and his inner circle, with the rebels quickly implementing free and fair elections. But there are any number of less rosy scenarios in the cards, including protracted civil war, de facto partition of Libya, and its becoming a failed state. Given the role that the international community would have played in facilitating that state of affairs, the international community (including the U.S.) would then have a responsibility to "fix" Libya under the Powell/Pottery Barn doctrine of "you break it, you own it."
Is it fair to say that the international community will have broken Libya? Not entirely. Under any fair accounting, Qadaffi himself broke Libya, through his megalomaniacal rule and brutal repression of what began as a peaceful democratic protest. But to paraphrase Donald Rumsfeld, you don't go to war against the enemy you wish you had.