United Nations Security Council Resolution 1973 and the Future of the Responsibility to Protect Doctrine

Sam Fitzpatrick, Vol. 36 Associate Editor

On March 17, 2011, the United Nations Security Council (“UNSC”) adopted Resolution 1973, providing the legal framework for the subsequent NATO led military intervention in Libya.[1]  The resolution established a “ban on all flights in the airspace of [Libya] in order to help protect civilians” and authorized member states to “take all necessary measures to enforce compliance with the ban.”[2]  NATO forces implementing this resolution, including troops from the United Kingdom, France and the United States, conducted 9,000 strike sorties in Libya over the course of the next six months, resulting in the collapse of the Qaddafi regime.[3] Resolution 1973 set a new precedent for the UNSC by authorizing military intervention based on the “responsibility to protect.”[4]  The doctrine of responsibility to protect (RtoP) places an affirmative burden on the international community to protect civilians, with force if necessary, when individual nations fail to do so.[5]  Specifically, responsibility to protect doctrine justifies international military intervention to protect civilians from human rights abuses such as genocide, ethnic cleansing or atrocities.[6]  In recent years, the doctrine of responsibility to protect had been steadily gaining traction, particularly among scholars and commentators.  Post-Libya Opposition to the Responsibility to Protect After Resolution 1973, however, the doctrine of responsibility to protect lost substantial support from the international community.  Critics of Resolution 1973 expressed two major concerns.  First, critics argue that responsibility to protect does not justify regime change.  Instead, it is a narrow mandate to prevent gross human rights abuses.[7]  And second, critics argue that even when the responsibility to protect doctrine is a legitimate basis for military intervention, Western nations cannot be trusted to implement limited military intervention based on responsibility to protect.[8]  Many nations accept that the international community has a responsibility to protect civilians; fewer nations accept that this responsibility confers an unlimited power on the international community to violate traditional notions of state sovereignty.[9]  Fewer nations still are willing to accept a responsibility to protect doctrine that grants broad legal authority to implementing nations to intervene whenever and wherever civilians are in danger, fundamentally uprooting the Westphalian notion of state sovereignty.[10]  For example, Brazil, Russia, China, India and South Africa, among other nations, have expressed resolute opposition or deep skepticism to the notion that the responsibility to protect doctrine confers unlimited power to intervene in a state’s internal affairs.[11] In addition, as a result of Resolution 1973, Western powers lost international credibility to implement military interventions justified by the responsibility to protect doctrine.  Even if legally sound, many states do not trust the West to implement the doctrine according to a narrow legal scope.[12]  Many states that supported Resolution 1973 believed that the resolution only authorized purely defensive measures – a no fly zone – to shield the civilian population from the Qaddafi regime.[13]  Many nations perceived NATO’s implementation as dramatically exceeding this mandate by introducing ground forces, arming rebel groups and conducting a six month long bombing campaign targeting tanks, artillery, command and control centers, Qaddafi’s palace and perhaps Qaddafi himself.[14] Conversely, Western nations argue that successful interventions must be decisive and robust, and that half-measures or indecisive interventions are doomed to failure.  Regardless, NATO’s expansive reading of the Resolution struck many nations, including the Arab League, as an overreach, or hijacking of a fundamentally defensive mandate.[15]  After Resolution 1973 and the UN intervention in Libya, many nations perceive the responsibility to protect doctrine as nothing more than a politically convenient pretext for full-scale Western military intervention.[16] The Responsibility to Protect in Syria In Syria, the unfortunate legacy of Resolution 1973 resulted in diminished support for the doctrine of responsibility to protect and skepticism regarding the true purpose and scope of military intervention authorized under its auspices. Although the spectacle of international inaction in the face of genocide in Bosnia, Rwanda and Darfur bolstered the moral case for the responsibility to protect[17], much of that support has waned in the aftermath of Resolution 1973.[18]  The humanitarian disaster in Syria tragically highlighted international opposition to any measure that might justify intervention under the responsibility to protect doctrine.[19] Only months after supporting Resolution 1973, the UNSC blocked a relatively mild US/European draft UN resolution condemning violence in Syria.[20]  Russia and China opposed the resolution, concerned that the resolution might be used to legitimize regime change.[21]  The draft also failed to secure votes from India, Brazil, South Africa and Lebanon.[22] The Future of the Responsibility to Protect Doctrine Responsibility to protect will not form a legitimate basis for military intervention until the Security Council reaches consensus regarding the appropriate scope of military intervention to protect civilians.  Military intervention under responsibility to protect must be broad enough to decisively eliminate the threat while at the same time serve an essentially limited defensive purpose. When the Security Council and implementing nations achieve consensus on how to strike this difficult balance, the international community will be ready to implement the doctrine of responsibility to protect again.

[1] S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).

[2] Id. at para 6, 8.
[3] Paul R. Williams & Colleen (Betsy) Popken, Security Council Resolution 1973 On Libya: A Moment of Legal & Moral Clarity, 44 Case W. Res. J. Int’l L. 225, 228 (2011).
[4] Catherine Powell, Libya: A Multilateral Constitutional Moment?, 106 Am. J. Int’l L. 298, 298 (2012).
[5] Id. at 299.
[6] Id.
[7] Tamar Hostovsky-Brandes & Ariel Zemach, Controlling the Execution of a Security Council Mandate to Use Force: Does the Council Need a Lawyer?, 36 Fordham Int’l L. J. 657, 658 (2013).
[8] Id. at 658-59.
[9] Id.
[10] Id.; see Powell, supra note 4, at 300, 301, (Powell acknowledges that collective action/collective assistance based solely on Responsibility to Protect is not “established law” and “not binding international law.”)
[11] Chris Keeler, The End of the Responsibility to Protect?, Foreign Pol’y J., (Oct. 12, 2011), http://www.foreignpolicyjournal.com/2011/10/12/the-end-of-the-responsibility-to-protect/.
[12] Hostovsky-Brandes, supra note 7, at 660.
[13] See Hostovsky-Brandes, supra note 7, at 658, (noting that China and Russia considered NATO operations to “grossly exceed[] the mandate provided by Resolution 1973.”); Alex De Waal, African Roles in the Libyan Conflict of 2011, 89 International Affairs 365, 367-68 (2013).
[14] Williams, supra note 3, at 241-42.
[15] Louis Fisher, Military Operations in Libya: No War? No Hostilities?, 42 Presidential Studies Quarterly 176, 178 (March 2012).
[16] Fisher, supra note 15, at 178; Hostovsky-Brandes, supra note 7, at 661; De Waal, supra note 13, at 368; Keeler, supra note 11.
[17] See Jon Western & Joshua S. Goldstein, Humanitarian Intervention Comes of Age: Lessons from Somalia to Libya, 90 Foreign Affairs 48, 53-54 (2011).
[18] Keeler, supra note 11.
[19] Hostovsky-Brandes, supra note 7, at 661.
[20] Keeler, supra note 11.
[21] Id.
[22] Id.