The whirlwind process by which the international community, ranging from the Arab League, European Union, and, most critically, the United Nations, laid the legal foundations approving the military intervention in Libya is nothing short of breathtaking. The adoption of Resolution 1973 on March 17 by the United Nations Security Council (which notably was not vetoed by either Russia or China), has invoked the particularly difficult legal territory under the Responsibility to Protect, raising some unprecedented debates of what it might entail for the future.
An interesting discussion is already underway over at the legal blog Opinio Juris, questioning whether or not Resolution 1973 extends the legal right to personally target Col. Gaddafi (it does), and the Constitutional Law aspects in the U.S. (which would prohibit such targeting). There’s a lot of focus on the language in paragraph 4 of the Resolution, specifically the authorization of “all necessary measures” to protect not just civilians, but civilian-populated areas.
While I would prefer to give a more substantial analysis, it will have to wait until I have more than 10 minutes in between meetings. The question of whether or not Gaddafi can be or should be targeted as a solution to the conflict is indeterminate in my opinion. What struck me as immensely important and so far relatively unmentioned, was that the Resolution referred to the ICC inquiry on two separate occasions, “stressing that those responsible for or complicit in attacks targeting the civilian population, including aerial and naval attacks, must be held to account.”
Already it is clear that the possibility of future accountability before international tribunals has military leaders making specifically constrained decisions, which may not always coincide with the orders of the often shaky and uncertain politicians.
The issue has already created divisions between the British government the Army, as General Sir David Richards, Chief of the Defence Staff, insisted that a direct strike against the Libyan leader was not permitted by last week’s United Nations Security Council resolution.
What international law does is actually impose tremendous duties all the way down the command line. It delegates decisions, and each player has to make their own assessment, which is going to have an impact, potentially changing how war is conducted. When you add these factors to the citation of the ICC in the Resolution, with the UNSC using it as leverage, we’re dealing with a whole new ballgame; something we’ve never had before the international law framework guiding military intervention and inter-state conflict.
So not only has the Arab Spring proven itself pivotal to the spread of democracy, it is also pivotal to a whole new era of the legalization. So far, 2011 is proving to be quite an interesting year indeed.