Humanitarian intervention has always been more popular in theory than in practice. In the face of unspeakable acts, the desire to do something, anything, is understandable. States have tended to be reluctant to act on such desires, however, leading to the present situation in which there are scores of books and countless articles articulating the contours of a right—or even an obligation—of humanitarian intervention, while the number of cases that might be cited as models of what is being advocated can be counted on one hand.

So is Libya such a case? It depends on why one thinks that precedent is important. From an international legal perspective, debates have tended to focus on whether one or more states have the right to intervene in another for human protection purposes. From the standpoint of international relations and domestic politics, the question is whether states have the will to intervene. From a military angle, a key dilemma is whether states have the ability to intervene effectively. This essay considers these three issues in turn. The legal significance of Libya is minimal, though the international response does show how the politics of humanitarian intervention has shifted to the point where it is harder to do nothing in the face of atrocities. At the same time, however, military action to the end of May 2011 suggested a continuing disjunction between ends and means.

Law

For an international lawyer, the intervention in Libya is interesting but not exactly groundbreaking. Security Council Resolution 1973 (2011) was consistent with resolutions passed in the heady days of the immediate post–cold war era. As early as December 1992 (Somalia) and April 1993 (Srebrenica) the Council had authorized the use of “all necessary means” to establish secure conditions for humanitarian relief and create safe havens in situations of internal conflict.Footnote ¹ Though there are nuances of difference, such as those pointed out by Alex Bellamy in his contribution to this roundtable, the question of consent to an operation is not legally significant when it is authorized under Chapter VII of the UN Charter.Footnote ² Tellingly, there was no need to include language that the situation was “unique,” “exceptional,” or “unique and exceptional”—phrases used in resolutions in the early 1990s to ensure abstentions by China and others on resolutions that significantly broadened the Security Council's international peace and security mandate.

From a legal standpoint, then, Resolution 1973 was hardly groundbreaking. Yet the complications of implementing those two resolutions of the early 1990s—in Somalia and Srebrenica—suggest that the problems have never been limited only to what the law allows, but also include what politics permits and what is militarily possible.

This is not to say that the emergence of the “responsibility to protect” (RtoP) has not been normatively important. In order to get consensus in the commission that coined the term and the UN General Assembly that embraced it, however, compromises were necessary. First, as Tom Weiss observes, the 2001 International Commission on Intervention and State Sovereignty (ICISS) sandwiched the military question between the “white bread” of prevention and postconflict peacebuilding.Footnote ³ Second, by the time RtoP was endorsed by the World Summit in 2005, its normative content had been emasculated to the point where it essentially provided that the Security Council could authorize, on a case-by-case basis, things that it had been authorizing for more than a decade.Footnote ⁴

There is evident hesitation on the part of the Council to embrace the RtoP doctrine fully. Resolution 1973 refers only to the “responsibility of the Libyan authorities to protect the Libyan population.”Footnote ⁵ This is consistent with earlier Council resolutions that had used variants of the phrase, but limited it to that first pillar of RtoP, national protection.Footnote ⁶ Two later resolutions went further, touching on the responsibility of the international community, but confined themselves to “reaffirming” the provisions of the 2005 Outcome Document.Footnote ⁷ (Interestingly, a series of resolutions on Georgia beginning in 2002 “recalled” that the Abkhaz side bore “a particular responsibility to protect” returnees.Footnote ⁸ This was arguably distinct from RtoP, but was repeated in subsequent extensions of the United Nations Observer Mission in Georgia [UNOMIG]. Perhaps coincidentally, the phrase was dropped in the eight resolutions on UNOMIG adopted after the 2005 World Summit.)

Nonetheless, the significance of RtoP was never, in a strict sense, legal. Rather, it was political—and, importantly, rhetorical. The ICISS was funded in significant part by Canada and Britain, both of which had participated in military action in Kosovo in 1999 that appeared to violate the UN Charter. Article 2(4) of the Charter prohibits the threat or use of force against member states. There are only two exceptions: self-defense and action authorized by the Security Council.Footnote ⁹ Neither applied to Kosovo; and the dubious possibility of a General Assembly resolution in support of intervention—which would have required the support of two-thirds of member states and, for all that, would not have been binding—had been rejected by Britain.Footnote ¹⁰

It is noteworthy that in Kosovo—and virtually every other case of so-called humanitarian intervention—states were reluctant to justify their actions in legal terms. In particular, states chose not to articulate a legal argument that might be used by other states to justify other interventions. In relation to Kosovo, for example, the German government atypically used the phrase “humanitarian intervention” but emphasized that Operation Allied Force should not be a precedent for further action.Footnote ¹¹ U.S. Secretary of State Madeleine Albright stressed that the air strikes were a “unique situation sui generis in the region of the Balkans.”Footnote ¹² British Prime Minister Tony Blair retreated from his initial enthusiasm for the intervention to emphasize the exceptional nature of the air campaign.Footnote ¹³ Kosovo was also unusual in that it was a case of alleged humanitarian intervention that actually made it to the International Court of Justice. In proceedings brought by Yugoslavia against ten NATO members, however, only Belgium presented a formal legal justification for the intervention.Footnote ¹⁴ The case was ultimately dismissed on technical grounds.

Such reticence was emulated in two major commissions on the topic. Richard Goldstone's Kosovo Commission obfuscated the issue by concluding that NATO's action was, in the now famous phrase, “illegal but legitimate.”Footnote ¹⁵ The ICISS report acknowledged that, as a matter of “political reality,” it would be impossible to find consensus around any set of proposals for military intervention not authorized by the Security Council, but questioned where the greater harm lay: in the damage to international order if the Council is bypassed, or in the damage if civilians are slaughtered while the Council stands idly by.Footnote ¹⁶ The commissioners pointedly failed to answer that question.Footnote ¹⁷ From a legal standpoint, then, neither RtoP in general nor Resolution 1973 in particular have changed the standing prohibition on the use of force outside self-defense and Security Council–authorized enforcement action.

Politics

As Anne Orford has argued, however, although RtoP does not create rights or impose legal obligations, it may nonetheless be understood as conferring public power and allocating jurisdiction.Footnote ¹⁸ Seen through such a lens, the vague formulations embraced by the 2005 Summit do not invoke “responsibility” in the strict legal sense of an obligation to act in a specific way, but rather in the sense of an allocation of responsibility to respond to a situation. This may be compared to the function played by Article 99 of the UN Charter, which allows the UN secretary-general to bring to the attention of the Security Council “any matter which in his opinion may threaten the maintenance of international peace and security.”Footnote ¹⁹ It is no coincidence that much of the energy behind the adoption and, now, implementation of RtoP has come from the office of the secretary-general.Footnote ²⁰ Much like Article 99, the true significance of RtoP is not in creating new rights or obligations to do “the right thing”; rather, it is in making it harder to do the wrong thing or nothing at all.Footnote ²¹

Such a dynamic appears to have had some success at the international level, facilitated by the unusual clarity of the situation in Libya. State leaders are usually more circumspect in the threats they make against their populations than was Qaddafi; impending massacres are rarely so easy to foresee. Combined with the support of African states and the Arab League for intervention, this left most states on the Council unwilling to allow atrocities to occur—and others unwilling to be seen as the impediment to action.

Such clarity of intent influenced the Obama administration in particular. Within a twenty-four-hour period the United States pivoted from skepticism about intervention in Libya to forceful advocacy. That change of policy was partly driven by external events—in particular the imminent possibility of thousands being killed by Qaddafi's troops—but also by the internal advocacy of Secretary of State Hillary Rodham Clinton, Ambassador to the UN Susan Rice, and National Security Council staffer Samantha Power.Footnote ²² Rice in particular had used her first statement in the UN Security Council to endorse RtoP;Footnote ²³ Power, who also served as a special advisor to the president, is the author of the Pulitzer Prize-winning book A Problem from Hell: America and the Age of Genocide.Footnote ²⁴

Nevertheless, when President Obama articulated the reasons for the United States acting in Libya—at a time of upheaval in many other countries across the Arab world—those reasons were carefully confined to the Libyan case. As he noted:

Such a pragmatic assessment of individual cases can hardly be described as a “doctrine,”Footnote ²⁶ and it was swiftly condemned by some for its passivity or naïveté.Footnote ²⁷ The unfortunate quote from an administration official that the United States was “leading from behind” came to be a subject of ridicule—particularly when a lead role in the initial air strikes was assumed by France and the entire operation was later handed over to NATO, with operational command in the hands of a Canadian.Footnote ²⁸ Bluster aside, however, and after a decade of belligerent and unsuccessful leadership from the front, the cautious policy implied by such a phrase seemed more closely tied to U.S. capacities and interests at a time when its relative power is declining, and when in certain parts of the world the United States continues to be reviled.Footnote ²⁹

On the Ground

The lingering question, of course, is the military one. Jennifer Welsh rightly points out in her contribution to this roundtable that the disjunction between stated political objectives and available military means would have Clausewitz turning in his grave. As in many previous cases, the commitment of leaders to confining their countries’ involvement to air strikes alone and for a limited duration was transparently a political rather than military decision.Footnote ³⁰ The commencement of military action, as in many previous cases, swiftly showed that air strikes alone were unlikely to be effective. The potential tragedy of Benghazi soon devolved into farce as the Libyan rebels were revealed to be a disorganized rabble.Footnote ³¹

The sixteenth-century proverb about the road to Hell is frequently invoked by critics of humanitarian intervention. The intentions behind the decision to intervene in Libya were good—as they were in Somalia, in Srebrenica, and in other efforts to respond to mass atrocity. Yet the difficulty in following through on those intentions in Srebrenica allowed the killing of 8,000 men and boys, and severely undermined the credibility of NATO; the decision to withdraw from Somalia led to the failed, pirate-ridden state of today, and indirectly to the mass graves of Rwandans, where genocide took place less than a year later.

Do something, do anything, is not a military strategy. At this writing, it is far from clear how the Libyan conflict will play out, but that outcome will have consequences that reach far beyond Libya itself. RtoP may have made it harder to say no, but what happens next will clearly affect the likelihood of whether future leaders will say yes.