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

By Marjorie Cohn

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.

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 Qadaffi
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 a professor of law at Thomas Jefferson School of Law,
past president of the National Lawyers Guild, and deputy secretary
general of the International Association of Democratic Lawyers. Her
latest book is “The United States and Torture: Interrogation,
Incarceration, and Abuse” (NYU Press). See www.marjoriecohn.com.