After a week of military action in Libya by the US and its allies aimed at enforcing the Security Council’s Resolution 1973 – which called for the establishment of a “no-fly zone” and authorised UN members to take “all necessary measures” to protect civilians – African states are starting to find their voice. However, the majority of these voices – including those of the Presidents of South Africa and Nigeria, both of whom voted for Resolution 1973 – has been critical of the intervention. While there are undoubtedly a number of arguments to be made against “humanitarian intervention” generally, and this intervention in particular, as a result of their own words and (in)actions African states are precluded from making most of them.
Due to the media and political hype inevitably occasioned by such events, distinct arguments for and against intervention are generally conflated and confused. It is important to distil the arguments in order to understand and respond to them.
The first is empirical. All arguments about humanitarian intervention revolve around the question of whether there are grounds for intervention in the first place (i.e. a humanitarian crisis). If the empirical hurdle can be overcome arguments for or against intervention become arguments about ends or arguments about means.
Arguments against intervention based on the ends accept the empirical basis of intervention (a humanitarian crisis) but either do not accept that saving lives is a worthwhile end, or advance some other end that outweighs intervention. Traditionally the competing end advanced against intervention has been state sovereignty: a foundational norm of the international order and the basis of the principle of non-intervention.
The rise of human rights over the past 60 years and the end of the Cold War has undercut the blunt force of sovereignty as an end. More recently, the advent of the Responsibility to Protect (R2P) doctrine has recast sovereignty, at least rhetorically, from being an absolute, intrinsic right of statehood, to being a “responsibility” to protect one’s citizens from crimes against humanity, genocides and war crimes (and the corollary, that a state not engage in such mass violence against its own people). If this responsibility is deliberately flouted, the R2P doctrine stipulates that the offending state becomes vulnerable to intervention from the international community. In the face of these developments arguments against intervention based on competing ends are rarely made openly; no civilised state would reject the protection of human life as an end worth protecting, and few would explicitly present sovereignty or regional stability or (worse still) regional solidarity as a greater end. As a result,most debates about intervention are not about ends (whether intervention is morally justified), but means.
Arguments about means might accept the humanitarian crisis as an empirical fact and accept that the end of protecting human lives outweighs all competing ends, but would posit that military intervention is not an acceptable means of achieving that end. The argument might run that in general such interventions do not save lives, or that a particular intervention does not result in the protection of human life or that there are some other, better means available to achieve that end. The debate becomes particularly heated where the means employed to achieve the end results in an unnacceptably high number of civilians lives being put at risk (for example, through high-altitude bombing) – precisely because the means itself begins to undermine the end.
The type (or means) of legal response is also at issue. A significant amount of debate regarding humanitarian intervention is about: (i) what legal means are available; and (ii) whether there is any basis for arguing for legitimate intervention outside of those legal means. Generally speaking, most international lawyers and academics would accept that the only legal means for intervening militarily to prevent humanitarian catastrophes (as opposed to self-defence) is through the UN Security Council (as through SC resolution 1973 in Libya), and all other military action would violate the UN Charter’s prohibition on the use of force in article 2(4). It is the acceptance of this uncomfortable reality that led some international law experts to argue that NATO’s intervention in Kosovo in 1999 – without UN Security Council approval – was illegal but legitimate, a perilously conditional argument.
What of the Libyan intervention? At the outset it is important to notice how two fallacious arguments commonly employed by opponents of humanitarian intervention have been dusted off in respect of Libya. The first challenges the intervention’s legitimacy on the basis of its improper motive. Regarding Libya states have attacked the motive of the US and its allies as being about “petro-imperialism”, geo-politics and anti-Islamic sentiment – and those who would defend the intervention are required to defend the intervening countries’ motives for doing so. Zimbabwean President Robert Mugabe for example has decried the intervention as being about “oil, oil, oil”. These arguments however confuse motive with effect. Few people would argue that Libyan lives are protected because the Americans and their allies genuinely intervened to protect them. Those lives are protected (or not) based on the effect of the intervention as a matter of fact. That allied countries may have other motives for intervening does not make this the wrong course of action per se, if it is successful in protecting human lives.
The second argument points to the selectivity of interventions historically to challenge the legitimacy of a specific intervention, and is captured in the refrain “why now and not then”. Ugandan President Yoweri Museveni has criticized the intervention in Libya on the basis that Western Leaders “turn a blind eye to the very same conditions or even worse conditions” in “other areas where there are pro-Western regimes”. Similarly, Nigerian Foreign Minister Odein Ajumogobia reportedly criticized the action in Libya on the basis of inaction in the case of the Ivory Coast. Again, these claims miss the point. These are arguments for other interventions, not against this one.
Bearing the above in mind, the question becomes what arguments the AU and its members can plausibly raise in respect of the UN-sanctioned intervention in Libya.
As far as empirical arguments are concerned, there is an overwhelming acceptance from the international community that there is some form of humanitarian catastrophe in Libya. For one, all states (including South Africa, Nigeria and Gabon) that accepted the need for a no-fly zone effectively accepted first, that there is a threat to civilians emanating from Colonel Ghadaffi’s regime and second, that the threat involves the use of air power against them, making it a serious one. In the face of the facts, there have to date been few arguments challenging the empirical basis for the intervention.
What, then, is the AU’s underlying reasoning? As noted earlier few arguments against intervention that involve competing ends are made explicitly. What is more, by its own standards the AU has little margin for denouncing intervention. Since it replaced the Organization of African Unity in 2001 the AU has tried to position itself at the forefront of the normative shift from state sovereignty to human security. Its founding charter’s “humanitarian provision” – which enshrines “[t]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” – is the most progressive of its kind. The founding instruments of Africa’s numerous sub-regional groupings such as the Great Lakes Protocol, ECOWAS Protocol and SADC, contain similar provisions.
In the end the only arguments the AU might plausibly raise against the intervention in Libya are ones relating to means. (i.e. that intervening generally, or this intervention in particular, is not an appropriate means of achieving the end of protecting human life). However, once again the AU’s own standards make arguments against intervention based on means difficult to swallow.
First, UN Security Council Resolution 1973 means that the legal arguments about intervention are not available to the AU. In the lead up to Resolution 1973 many African states were arguing that the only legal means of intervening in Libya was with Council-approval, presumably relying on the (seemingly) predictable veto of Russia and China to do their dirty work by killing the Resolution come voting time. Second, and in any event, on more than one occasion the AU has asserted that it does not require Security Council authorisation to undertake interventions under its own “humanitarian provision”. The AU’s legal advisor Ben Kioko has opined that through the inclusion of this provision “[African] leaders have shown themselves willing to push the frontiers of collective stability and security to the limit without any regard for legal niceties such as the authorization of the Security Council”. Up until the evening of 17 March when the Security Council passed Resolution 1973, many African states sought refuge in those niceties.
Therefore, African states are forced to argue against intervention on some other basis. Absent legal niceties, in order for the intervention to be the wrong course of action the AU must show either: (a) that it does not result in the protection of human life, or (b) that there was some other means available that better protects human life. In the case of other interventions there have been strong arguments that (a) is in fact true. However, at the time the decision was taken to intervene in Libya it seems that concrete action did in fact save lives, at the very least those of the citizens of Bhengazi.
That leaves (b), the argument that at the time the intervention was undertaken there was some other means available that better protects human life. For example, it might be argued that some form of non-coercive political solution or, failing that, an intervention force that did not consist of the US, France and the UK – three historically compromised actors in the region – would have been a more appropriate means of protecting the people of Libya. The problem is that the African Union was best placed to undertake both of those courses of action and it did not. Not even the AU’s founding instrument - crafted ironically by Colonel Gadaffi and ratified by all African states – was relied upon to intervene to prevent the attacks on civilians. In fact, numerous calls were made for regional action to be taken in respect of Libya. However, all the body could mustre was hand-wringing, politically finessed communiqués and a belated and compromised five-man mediation panel.
One may thus rightly conclude that the AU’s humanitarian provision is nothing more than a paper commitment. However, even to those who would argue that regional stability and solidarity are comparable to or even greater ends than protecting human lives, the Union’s limp response to the crisis in Libya further undermines its credibility. African states missed the rarest of opportunities to make these ends meet: to strike a blow against perceived “petro-imperialism” and for human rights simultaneously.