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.