More Thoughts on the Scope of UNSCR 1973

Chimène Keitner is Associate Professor of Law at the UC Hastings College of the Law.

The American Society of International Law’s 105th Annual Meeting just wrapped up in Washington, DC. As one of the meeting’s co-chairs, I am tremendously grateful to the speakers for their thoughful and timely remarks. I also appreciate the editors’ invitation to contribute some of my thoughts on the evolving situation in Libya to this forum.

Last week, Dapo offered an assessment of the legality of targeting Muammar Gaddafi under the terms of U.N. Security Council Resolution 1973. I would like to reflect on another aspect of that resolution that came up in the comments on Dapo’s post, namely, what the resolution means when it authorizes member states to take all necessary measures “to protect civilians and civilian populated areas under threat of attack.” Dapo’s view of the resolution as a whole is that it “it is really be about stopping Gaddafi’s forces from winning the civil war in Libya.” I tend to agree with this assessment, which carries potentially momentous implications for a system that, as Dapo indicates, was not originally designed to deal with internal conflicts.

Much of the current debate has focused on whether or not the coalition in fact has the ultimate goal of regime change. It certainly could be said that some of the principals “doth protest too much” in disavowing such an aim. Although the Obama administration’s rhetoric of democracy promotion is more restrained than that of its predecessor, Robert Shrum recently opined in The Week that the situation in Libya represents precisely the convergence of American values and interests that warrants overthrowing Gaddafi, and that the current administration knows this. 

Presumably, under the Security Council resolution, the “civilian populated areas” that member states are authorized to protect may contain both civilians and those participating directly in hostilities against the government (i.e., rebel strongholds such as Benghazi). Whether the conflict in Libya is characterized as a civil war, a democratic uprising, or both, the tension between principles of external intervention and internal self-determination seems manifest.

This tension was even more evident during the U.S.-led invasion of Iraq, which is perhaps one reason that Resolution 1973 expressly excludes “a foreign occupation force of any form on any part of Libyan territory” from the ambit of authorized measures. I explore this tension at greater length in my book on The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation Building, and I deal explicitly with the U.S. invasion of Iraq in Chapter Six. One can only hope that the coalition’s current efforts in Libya will prove less counterproductive than the earlier intervention in Iraq.

As Hamas’s 2005 victory in Gaza shows, the outcomes of popular elections are not always in the perceived national security interest of the United States or its allies. At the same time, the support for dictators that characterized U.S. foreign policy during the Cold War is morally untenable and, at least in its overt forms, decreasingly politically feasible. When, as in Libya, the object of protecting civilians appears to require removing an intransigent leader, simply eliminating foreign military occupation from the toolbox will not avoid a quagmire.