The Stars Aligned: The Legality, Legitimacy, and Legacy of 2011’s Humanitarian Intervention in Libya
Rachel Elizabeth VanLandingham
Stetson University College of Law
Valparaiso University Law Review, Vol. 46, No. 3, 2012
Stetson University College of Law Research Paper No. 2012-24
The legitimacy of governments intervening to prevent human rights violations in other nations is fraught with complex issues of international law and policy. Gaining international consensus to intervene is further complicated by previous unsanctioned aggressive actions by individual states as well as historic inaction by the United Nations Security Council. United Nations Security Council Resolution (UNSCR) 1973, passed in March 2011, authorizing military force in Libya on humanitarian grounds, highlights the impact such situations can have on international peace and security if left unchecked, as well as the reinvigorated role of the United Nations. Critically, this Article suggests that post-UNSCR 1973, humanitarian intervention will be more difficult to mount without such an imprimatur from the Security Council.
This Article explores how a confluence of several developing doctrines, including the "responsibility to protect “ theory, has promoted a moral responsibility to intervene on humanitarian grounds. It highlights a new legal norm which allows the U.N. Security Council to authorize humanitarian intervention within the sovereign territory of one state via characterization of such humanitarian crises as threats to international peace and security. Furthermore, Professor VanLandingham argues that UNSCR 1973’s precedential value may paradoxically result in fewer such uses of force as the U.N. fulfills its intended role.
The U.N. Charter’s inception inspired dreams that it would serve as the arbiter of all uses of armed forces by states, for purposes of maintaining international peace and security, and thereby promote collective security. However, states’ realpolitik maneuverings in light of the Cold War often prevented these dreams from becoming reality. In addition to Cold War dynamics, following the U.N. Charter’s birth, the human rights field experienced incredible growth via the establishment of new treaties and courts; these new tools demonstrated a heightened concern regarding human rights atrocities occurring solely within one state.
The 1990s experienced reinvigorated hope for the Charter’s collective security paradigm following the end of the Cold War, as demonstrated by the U.N.’s authorization of force in response to the Iraqi annexation of Kuwait and its authorization of Chapter VII peace enforcement military interventions on humanitarian grounds in Somalia, Haiti, and Bosnia. However, the U.N.’s failure to effectively address genocides in Rwanda and Yugoslavia dampened earlier hope that the U.N. could effectively respond to both traditional acts of aggression by a state as well as to intrastate human rights crises. The successful l military action in 1999 by the North Atlantic Treaty Organization (NATO) to prevent further human rights atrocities in Kosovo, without Security Council approval, led to much debate regarding whether non-U.N.-sanctioned military force by regional organizations is a legitimate, and perhaps even legal, course of action in future such instances of humanitarian crisis — despite the U.N. Charter’s stated prohibition of such action without Security Council approval.
In light of this historical context, UNSCR 1973 signals a seminal moment. By authorizing military intervention in Libya, Professor VanLandingham argues that the U.N. has re-asserted its role as the appropriate international authority to authorize collective military action for any reason, including for humanitarian purposes. UNSCR 1973 ends the debate whether unilateral use of armed force to for humanitarian purposes is legal or legitimate; it is not. If the Security Council fails to authorize humanitarian intervention into a state by other states, UNSCR 1973 also makes it politically much more difficult to garner support for unilateral action because of its precedential value. As of October 2012, the world is witnessing this dynamic as the international community grapples with the grave humanitarian crisis in Syria. Normatively, whether the Security Council’s failure to authorize military force to end this crisis is a systemic failure of the U.N. Charter versus a good example of why its design is necessary (to limit use of armed force by states to a very narrow range of circumstances) remains an open question.
Number of Pages in PDF File: 33
Keywords: human rights, violations, United Nations Security Council, Libya
JEL Classification: K3, K33Accepted Paper Series
Date posted: December 6, 2012 ; Last revised: December 18, 2012
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