The surprising Mr. Hague

(The surprisingly radical Mr. Hague. Good.)

It’s tempting (and inevitably risky) to give into hyperbole when commentating on current international events – let alone on the concomitant international legal developments: this particular road to perdition is long, wide and well trodden. But in looking at yesterday’s UN Security Council Resolution 1973 (UNSCR 1973 (2011)), I feel a little hyperbole may for once be justified. In fact, there’s every chance that the world changed more than a little bit for the better with the passage of UNSCR 1973.

(Hopefully that’s enough hyperbole for everyone.)

Some background. 

In the words of an American lawyer friend of mine, international law simply doesn’t exist. “Where does it come from? Who enforces it?”, she asks.  Despite her cynicism, International law has several sources. First and foremost, it is created by Treaties – in other words obligations freely assumed by States – by decisions of international judicial bodies, by the UN Security Council operating as a legislature by passing binding Security Council Resolutions, arguably by UN GA Resolutions – e.g. the famous 1950 ‘Uniting for Peace Resolution’, and occasionally through eminent legal scholarship. But the most interesting route of international legal development is through the developments of customary international law.

Of these, customary international law is both the most interesting and most difficult because it is based on State Practice – and as it develops, it becomes binding on all States whether they’ve explicitly adopted it or not if it is accepted by enough States. (This is how the Universal Declaration of Human Rights – widely accepted as customary international law –applies to Saudi Arabia which explicitly rejected the UDHR in 1948.) Custom is challenging because by its nature it is continuously evolving, and because it can bind States without their consent.

The crucial developmental nexus for customary international law occurs when a State acts in a certain manner because it believes that it is legally obliged to do so even though this legal obligation doesn’t exist in Treaty Law, a UNSCR, or an international judgement. This is known as opino juris. And it is in this that the Libyan crisis has been so important in humanitarian intervention, especially in the developing Responsibility to Protect (R2P) doctrine.

British Foreign Secretary William Hague’s commentary to the UK Parliament’s Foreign Affairs Select Committee (FASC) earlier this week was fascinating. Hague explained that his legal advice allowed for a humanitarian exception to Art 2(4) and Art 2(7) in cases of systematic and sustained human rights abuses without explicit authorisation from the UN Security Council. 

 (Sir Daniel Bethlemhem QC. Thank-you very much.)

I’ve don’t recall this argument being advanced by any major power since R2P was outlined in the Conclusions to the 2005 UN World Summit. This is a major step forward – and I salute Sir Daniel Bethlehem QC, the UK Foreign Office Legal Advisor and his team, for taking this courageous but legally accurate and responsible position. Better, this position seems to be shared with France, and (extrapolating wildly) I suspect that this Anglo-Franco position that a further UNSCR was not required would have had a salutary effect on the Council as a whole - and Russia and China in particular. Though both abstained, neither had an interest in allowing R2P outside of the Council's auspices to get too far out of hand (lest it be used against their interests). The result has been that the UN Security Council has mandated the extraordinarily intrusive UNSCR 1973.

UNSCR 1973 is a remarkable document. It starts by defenestrating the legitimacy of the Gaddafi regime in Operative Paragraph 2 (OP2) noting the Security Council:

“Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people”

Other than calls for the end of apartheid in South Africa and denunciation of Ian Smith’s rebel regime in Rhodesia from the 1960s onwards, this is remarkably un-UN language: it explicitly states that a UN Member Sate Government (which, remember, was until recently on the UN Human Rights Council in a grotesque parody of that body’s stated mission) is not responding to the Libyan people’s legitimate demands.

Given that the UN’s position on non-intervention in the affairs of Sovereign States is enshrined in Art 2(7) and one that has been a shibboleth for oppressive regimes worldwide, this is quite remarkable. I’d like to think that the Burmese and Zimbabwean UN Missions understood the implications for their own authoritarian regimes, and wrote telegrams to explain this new and (potentially uncomfortable) point for them. 

OP4 is the meat of UNSCR 1973, authorising

“… Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General …”

This reflects the bias in the 2005 R2P language of the desirability of a leading role for the responsible regional grouping – in the case of Libya, both the Arab League and the Organisation of the Islamic Conference have endorsed a No Fly Zone (NFZ).  But crucially, UNSCR 1973 goes much further authorising Member States:

“… 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 …”

This is not an NFZ, which I argued last week would be a reasonably pointless gesture, as it could see allied aircraft pointlessly burning holes in the sky, impotently watching Gaddafi’s forces’ massacre of the opposition. (Which, after all, is roughly what the good Colonel and his son Saif al-Islam al-Gaddafi* have promised to do.)

Instead, UNSCR 1973 explicitly foresees the use of airpower and naval gunfire to protect civilians wherever they are in Libya. Taken at face value, this implies support to the Libyan rebels in attacking and defeating Gaddafi’s forces wherever they are in Libya, and with it the Gaddafi regime. 

 (Look, all I wanted to do was order a pizza. Is that too much to ask?)

Indeed, a narrow black-letter reading could even be used to justify limited foreign ground troops, provided that any foreign ground troops were not a “foreign occupation force of any form”. In other words, theoretically at least, the legality of deploying ground troops is about the intention and duration of their deployment, rather than an absolute bar against foreign troops at all. And this flexibility could be very useful, by, for example facilitating the deployment of liaison staff to the anti-Gaddafi forces – or even the deployment of Forward Air Controllers** to coordinate strike operations. 

In other words UNSCR 1973 is a massive step forward for R2P, giving a coalition of the willing in concert with regional groupings broad authority to protect civilians and to attack a repressive regime to do so. It should also leave the world’s remaining repressive autocracies with another early incentive to commence dialogue with whatever civil society groups they’ve failed to stamp out. One suspects that UNSCR 1973 is one precedent that they’ll be keen to forget in a hurry. Somehow I rather doubt that UNSCR 1973  will slide into obscurity so soon.

(Another F3 shot. Good!)

What is needed now is for the immediate implementation of UNSCR 1973 to save Benghazi and Tobruk, and then roll back the Gaddafi regime’s power. I only wish I was still involved*** to be able to play a small role in implementing one of the greatest humanitarian interventions in the postwar period – done successfully this will in time be seen in the same bracket as Kosovo, DR Kampuchea and East Pakistan.

And unlike these three, it will be explicitly legal.

*As an LSE graduate, I do hope that the School can find a route to strip Saif al-Islam of his LSE PhD. If he cheated, as is alleged, then so much the better.

** Or Tactical Air Control Parties (TACP) or Joint Terminal Air Controllers (JTACs) or whatever the most recent Newspeak is for Forward Air Controllers.

*** As the sign outside 111(F) Sqn Hardened Aircraft Shelters at RAF Leuchars said words to this effect (for the next few weeks) “This Squadron is held at very high readiness to project fighter power worldwide. Are you ready?” Yes! F3s from Luqa, Malta fighting for Libyan liberty would be a fitting finale for the flick-knife of death. Salve, F3.

Libya - a case for R2P?

(F3s finale over Libya? Sadly, probably not. Fuel-to-Noise. Go!)

There's been some talk about setting up a No-Fly Zone (NFZ) over Libya in the last few days. Whether this is a good idea militarily is a debate for others to have, but the legal position is clear enough: if the Security Council passes a Chapter VII resolution under Article 41 or Article 42, then it is legal to use force to enforce it.

If the Russians veto a draft resolution permitting an NFZ, then the questions around humanitarian intervention and R2P will resurface. As I blogged last week, there's a serious discussion to be had, but in my view there is an humanitarian exception and an NFZ is a decent way to start protecting the Libyan people from the depredations of the Gaddafi regime's death-throws. It is unlikely to be enough - Libya is vast and the number of aircraft that would be required to have standing patrols over all of the airfields under Gaddafi loyalist command, along with the SEAD (Suppression of Enemy Air Defences) support to ensure that surface to air missiles stayed on their launch rails, would be immense.

(More heroic F3 turning and burning into the sunset....)

But it would be a start.

Am I my brother's keeper?

(No sign of Muammar. An oversight.)

Cain, Abel and Muammar Gaddafi are perhaps not the most obvious of bedfellows. But Cain's riposte to God after killing the mysterious and unexplained death of Abel (a matter that remains sub judice)* is as pertinent now as it was to biblical author: what responsibility do we carry singly and jointly for the well-being of our fellow human beings? Relatedly, how does this operate in a world in which Article 2(7) of the UN Charter restates the most ancient tenet of international law - non-interference in the internal affairs of another sovereign state? In short, are we the keepers of our Libyan sisters and brothers as they face the threat of annihilation by their own government in a (final) spasm of murderous repression? 

Let's look at the notion of non-intervention, at the doctrine of humanitarian intervention and the notion of an international "Responsibility to Protect", known as R2P in txtspk.

Non-Intervention - the international community's prime directive?

If non-intervention is a cardinal rule, then Cain is right and as long as it happens next door, it's no concern of mine: I am implacably not my brother's keeper.

Some countries argue that non-intervention is the cornerstone of the international system, and that this has been the case for centuries. This is, of course, palpably risible nonsense. Advocates of non-intervention generally mean that they are in favour of non-intervention in their affairs; it is therefore no surprise that the strongest and most persistent advocates of the non-interventionist mantra include PR China, North Korea, Saudi Arabia, Cuba, Sudan and Zimbabwe, all of which have human rights records that they would wish to protect from outside scrutiny or interference. 

It is also important to note both that history is based around countries intervening in each others' internal affairs, and that intervention spans a much wider ambit than simply the use of force - sanctions, consumer boycotts, trade agreements reflect power realities and are used by stronger states to coerce weaker ones. Try asking an Irish or Greek politician about the amount of non-intervention that they’ve had to accept in their internal affairs in the form of a financial bailout – and no shots were fired. In other words, intervention in the internal affairs of other states is the norm, and the non-interventionist language in Article 2(7) is the aberration. 

 (Do we protect them? If not you, who? If not now, when?)

Humanitarian Intervention

Back in the early 1970s the International Law Association (ILA) created a framework for humanitarian intervention** which was picked up over the next decade led by Fernando Teson, an Argentine lawyer proposed along with some American lawyers a doctrine of humanitarian intervention. As a legal proposition, humanitarian intervention proposes an exception to the ban on the use of force in Article 2(4) of the UN Charter in cases of genocide, crimes against humanity or massive human rights abuses where there is no option due to time or because the Security Council is deadlocked. 

All good. (Except that Teson and his proto-neo-conservative American chums decided that not being a democracy was a gross violation of human rights, and then used this to propound the deeply problematic notion of "pro-democratic wars"; Teson's supporters tended to find themselves on the hawkish/paranoid Republican right, some of whom went so far as to suggest a NATO invasion of central Europe to drive out the Soviet totalitarians. No prizes from your blogmaster for guessing the likely outcome of that particular policy choice if you'd tried to implement it.)

In one of those strange historical oddities,*** Teson's champions today are on the left, under the banner of solidarism. Nicholas Wheeler's "Saving Strangers" is the classic exposition of the need for a framework for where there should be an exception to the UN Charter rules on non-intervention and bars on the use of force. As Wheeler shows, the three classic Cold War interventions that could have been presented as humanitarian interventions (India in East Pakistan/Bangladeshi War of Independence, 1971; Tanzania in Uganda, 1978; Vietnam in Kampuchea, 1979) never claimed any humanitarian rationale at the time. Kosovo in 1999 is a partial example of humanitarian intervention, but some structural elements were not in accord with the ILA's 1974 blueprint. Similarly, UK/US/FR extending UNSCR 688 to (and arguably beyond) breaking point for Operation Provide Comfort with the Northern and Southern No-Fly Zones over Iraq.

(Op Northern Watch - aka heroic Jags over northern Iraq. Ahh....)

So under humanitarian intervention, you can present yourself as your sister's keeper, but you don't always get a chance to do anything about it - and if you do want to do something about it, then you need to make sure you work through the ILA check list, and crucially, you need to make explicit that it is a humanitarian intervention at the time that you do it. 

Bottom line: humanitarian intervention provides an optional route for States that want to intervene - if the world is indifferent, humanitarian intervention doctrine does not require the community of nations to do anything about massive human rights violations. Just ask Jim Hacker - he explains it far more eloquently than me; the Russians were indeed too strong...

Responsibility to Protect (R to P, R2P)

The 2005 UN World Summit outcomes document specifically recognised the need for a responsibility for collective action to stop "genocide, war crimes, ethnic cleansing and crimes against humanity" - which are all defined in the ICC Rome Statute. This is the genesis for Responsibility to Protect - a key turning point in international law. 

Paragraph 139 of the 2005 World Summit outcomes states in part:

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. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 

Which is a real drafting hodgepodge, betraying the lack of unanimity in the international community. The answer appears to be that there is no unilateral right of intervention, the Security Council should do the right thing but there may be a regional organisation get out clause. Or not. 

So R2P is not clear yet: NGOs are pushing for clarity and for the world to move towards a Responsibility to Protect. Let's see how we're getting on. We need to speak clearly that the international community does have responsibilities and Libyan-style repression is a crime, pure and simple.

* This is a legal blog. You get legal jokes - bear with me, some of them are even funny.

**The ILA's Third Interim Report of the Subcommittee on the International Protection of Human Rights by General International Law, New Dehli, 1974

***For example the manner in which the British Conservatives have moved from being the principal supporters of British membership of the EEC to being dominated by anti-EU forces, whereas the British left moved from visceral anti-EEC agitation based on the notion that the EEC was an anti-worker capitalist plot to being broadly in favour of the EU as a method of promoting workers' interests.