In today's world, the international community has an obligation to protect fellow citizens from governments that forfeit their legitimacy
Opponents of Muammar Qaddafi at a London protest / Reuters
On Libya, this week has seen a bumper crop of interesting pieces (that's what happens when major news coincides with an August lull, particularly for academics). I recommend Joshua Tucker in The New Republic; Daniel Serwer on next steps; and Larry Smith in Huffpost. Many of the opponents of the original intervention have tried to move directly past the rebels' entry into Tripoli and hence effective overthrow of the Gaddafi regime (though it's not over yet) to talk about how difficult the next phase is going to be (not that anyone is arguing that it's going to be easy, as several of my Twitter colleagues pointed out). That is the "do not pass go and do not under any circumstances admit you were wrong strategy." (To those readers who are bound to raise the issue, I have admitted that I was wrong on Iraq and I learned vital lessons from being wrong.) So I have reverted to the earlier debate and lessons learned in a piece published this week in the Financial Times.
But here, I'd like to explore the question not of what the last five months of U.N.-authorized NATO, UAE, and Qatar military action in Libya means for the future of humanitarian intervention but whether it makes sense to keep talking about intervention at all. If we really do look at the world in terms of governments and societies and the relationship between them, and do recognize that both governments and their citizens have rights as subjects of international law and have agency as actors in international politics, then what exactly is the international community "intervening" in?
The nature of sovereignty itself is thus changed
International lawyers know that "intervention" and the "non-intervention doctrine" are swampy and highly disputed areas of the law. Former colonies have many good reasons to insist on "non-intervention" by their former imperialist masters, but what exactly constitutes intervention -- particularly non-military or quasi-military (sending arms, etc) assistance or sanctions -- is often in the eye of the beholder. The UN Charter takes a firm stand: Article 2(7) provides: "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state."
But if an international coalition uses force on the authorization of the Security Council, because the Council has determined that a government has overwhelmingly failed in its responsibility to protect its own people, and because the vast majority of those people with access to free means of expression are asking for force to be used, doesn't it make more sense to say that the citizens of many nations, as represented by their governments, are responding to a call for help from the citizens of a nation unable to compel their government to perform its most basic function?
Note the "closed sphere" assumption reflected in the language of the Charter: spheres defined by a government's control over territory and a defined population. That control is sovereignty, which once meant, in law and theory if never in practice, absolute control without interference from others. The UN Charter dates from 1945; the Universal Declaration of Human Rights was not issued until 1949 and the various core treaties translating the Universal Declaration into law -- the Convention on Civil and Political Rights, the Convention on Economic, Social and Cultural Rights, the Convention against Torture, the Convention against Genocide, the Convention against Discrimination against Women, and others -- all concluded over the next five decades. All of these conventions give citizens defined rights against their governments, with varying degrees of supervision by the international community. And then finally, in the first decade of the 21st century, came the "responsibility to protect." The UN World Summit in 2005, convened by Kofi Annan, adopted an outcome document with the following articles:
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. 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. (cont'd)