Canada’s engagement in Libya: Benchmarks for Success

United Nations Security Council Resolution 1973 and the international community’s engagement in Libya are widely viewed as an example of the application of the doctrine of the Responsibility to Protect (R2P). Canada’s House of Commons passed a unanimously agreed motionⁱⁱ on March 21 supporting Canadian actions to implement Resolution 1973. That Canadian motion called for renewed debate in Parliament in three months in the event that an extension of Canadian Forces involvement proves necessary. Therefore, this (June 2011) debate is both timely and necessary.

The Responsibility to Protect doctrine rests on three pillars: (1) the primary responsibility of states to protect their own populations from genocide, war crimes, ethnic cleansing, and crimes against humanity; (2) the international community’s responsibility to assist a state to fulfill its protection obligations; and (3) the international community’s responsibility to take timely and decisive action, in accordance with the UN Charter, in cases where the state has manifestly failed to protect its population from one or more of the four crimes.ⁱⁱⁱ

The Responsibility to Protect is still an emerging political doctrine. Despite growing NGO interest and a robust academic literature, there is no “Responsibility to Protect treaty,” and very little in the way of a “hard law” foundation for R2P beyond paragraphs 138, 139 & 140 of the 2005 World Summit Outcome Document.^iv While it is hoped that the Responsibility to Protect will give meaning to the promise that “never again” will the international community stand by when populations are threatened with genocide or other mass atrocity crimes, some governments also fear that this new norm compromises traditional notions of sovereignty and will be used by powerful governments to intervene unjustly in the internal affairs of weaker states.

UN SC Resolution 1973 reiterates “the responsibility of the Libyan authorities to protect the Libyan population.” While excluding a foreign occupation force of any form, it mandates the taking of “all necessary measures” to protect civilians and civilianpopulated areas under threat of attack in Libya. Various measures are called for, including a no-fly zone, arms embargo, flight ban, targeted sanctions, International Criminal Court investigations, humanitarian assistance and assistance to refugees.

The World Federalist Movement – Canada supported the passing of UN SC 1973 as an important and necessary measure to prevent imminent mass atrocities in the city of Benghazi. However WFM – Canada also harbors concerns over the permissive language of many of the resolution’s provisions and the manner in which they are being implemented. These concerns include the following:

               1) Ambiguous political goals; incoherent political oversight; uncertain strategy.

Ambiguous goals. The legally mandated goal of the Libya mission is the protection of civilians. However, after initially disavowing that regime change is the purpose of SC 1973, NATO governments implementing the resolution have increasingly taken actions that seem intended to bring about the downfall of the regime or the killing of Colonel Qaddhafi.

Whither political oversight? The United Nations Security Council retains ultimate political responsibility for the implementation of SC 1973. However, divisions on the Council make it difficult to exercise direction of the international community’s engagement. A “Libya Contact Group” brings together governments and international organizations to share information and to facilitate dialogue among stakeholders. Independently, diplomatic initiatives are undertaken by a range of actors, including a UN Special Envoy, the African Union’s High-Level Ad-Hoc Committee, Turkey and Russia. Despite the broad membership in the Libya Contact Group, day-to-day operations have been delegated to NATO. Yet NATO is structurally best suited to undertake military operations, not coordinate a broadly based multi-faceted political strategy.

Strategy on the fly. With incoherent international political direction and national capitals pushing and pulling in different directions, a clear strategy for bringing about democratic transformation in Libya has not emerged. Bombing is not a strategy. As International Crisis Group recently noted, “The assumption that . . . the [Libyan] regime will soon run out of ammunition or fuel or money (or will be decapitated by a lucky bomb or overthrown by a palace coup) similarly substitutes wishful thinking for serious policymaking.” Ultimately, the challenge is political and must be resolved through political dialogue, not the victory of one side in a civil war. A successful strategy in Libya would combine (a) limited military interventions, i.e. those that are essential for the protection of civilians, in conformity with UN SC 1973; and (b) promoting a de-escalation of the conflict leading to a ceasefire and genuine political dialogue.

By engaging stakeholders in a process of dialogue, a ceasefire and commencement of negotiations puts in place the basis for a transitional administration and the seeds of a future stable, hopefully democratic political framework for Libyan governance.

                 2) Implementation of UN SC 1973: Disproportionate use of force? Embargo exceptionalism?

Proportionality. A large part of the legal and intellectual foundation for the Responsibility to Protect relies on international humanitarian law and just war theory. Both of these (not to mention Canadian and NATO military operating procedures) require that the use of force in armed conflict conform with the principle of proportionality. That is, any military attack must not cause incidental loss of life or injury to civilians that would be clearly excessive in relation to the anticipated overall military advantage. There are growing fears that NATO’s bombing is taking an excessive and unnecessary toll in civilian lives.

One-sided embargo. The embargo regime enshrined in Security Council resolutions 1970 and 1973 is, by design, leaky. It prohibits shipments by UN member states to Libya of a long list of military and related equipment, but then allows that these measures shall not apply to certain “arms and related materiel, or provision of assistance or personnel, as approved in advance by the [UN Sanctions] Committee.” NATO has taken advantage of these provisions (and its influence on the Sanctions Committee) to support the rebels based in Eastern Libya, providing the reinforcements of training and equipment needed to sustain their participation in the ongoing conflict.

Continuing to arm one side in a civil war leads to a more divided Libya. As casualties mount and divisions deepen, the eventual and inevitable task of post-conflict reconstruction and nation-building becomes all the more difficult.

Parliamentary debate: key benchmarks

In view of the evolving and uncertain military and political circumstances, Canadian parliamentary debate and oversight is warranted and welcomed. It is to the credit of all parties, and Canadian democratic process, that Canadian parliamentarians monitor and debate implementation of SC resolution 1973 and our involvement in Libya.

The World Federalist Movement – Canada identifies the following “benchmarks” for consideration by individual parliamentarians, and for discussions leading to a possible motion renewing support from members of Canada’s House of Commons.

1) Civilian protection. Canada and NATO should adhere closely to SC 1973’s protection of civilians mandate. While most people, especially most Libyan citizens, believe that Libya would be better off with Colonel Qaddhafi removed from power, Security Council 1973 does not mandate regime change in Libya. Members of Parliament and any House of Commons motion should reflect an understanding of the mission that is consistent with the goal of civilian protection.

2) Support diplomacy. Canada and NATO should be more forthcoming in support of diplomatic initiatives aimed at quickly achieving a ceasefire and genuine political dialogue, particularly the efforts of UN Special Envoy, Abdel-Elah Mohamed Al-Khatib. All armed conflicts end, sooner or later, through a diplomatic negotiation. Members of Parliament and any House of Commons motion should address the need for a ceasefire and genuine political dialogue.

3) Humanitarian relief. The Libyan conflict is generating a growing humanitarian crisis. Food, shelter and medical supplies are needed, in various parts of Libya. UN agencies have called for additional financial resources to meet the growing need. At the same time, the flow of refugees to neighboring countries has increased. Members of Parliament and any House of Commons motion should address the need for Canada to commit needed financial resources to assist UN humanitarian and refugee agencies.

4) Post-conflict peace operations. The Libyan conflict will end, sooner or later, with a ceasefire and deployment of a peacekeeping force, likely under a UN mandate, to monitor and guarantee the ceasefire while further political negotiations take place. Members of Parliament and any House of Commons motion should address the need for Canadian support for UN post-conflict peace support and reconstruction operations.

5) Human rights and international criminal responsibility. Security Council resolution 1970 referred the situation in Libya to the International Criminal Court. Investigations are ongoing. At the same time, the UN Human Rights Council has tasked an International Commission of Inquiry to investigate alleged violations of international human rights law in Libya (with a Canadian, Philippe Kirsch, as one of three Commissioners). Adherence to international human rights and humanitarian standards now helps create the conditions for a post-conflict political order that enables greater adherence to human rights norms and the rule of law. Members of Parliament and any House of Commons motion should support the work of the ICC Prosecutor and the Human Rights Council.

6) Continued Canadian parliamentary oversight. Canada and NATO’s engagement in Libya came about, necessarily, in haste. Political, military and diplomatic goals and strategy continue to evolve. Any June 2011 House of Commons motion should reaffirm arrangements for ongoing consideration by the Standing Committee on Foreign Affairs and International Development and the Standing Committee on National Defence. A June 2011 House of Commons motion should also determine arrangements for parliamentary debate again, in the near future.

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ⁱ The World Federalist Movement – Canada (WFMC, www.worldfederalistscanada.org) is a longstanding Canadian civil society organization supporting the progressive development of global governance in order that it become more democratically accountable and based on the rule of law. WFM – Canada has for ten years been closely involved with the development of the Responsibility to Protect. WFMC’s international parent body, the World Federalist Movement-Institute for Global Policy, www.wfmigp. org) is also the host agency for the International NGO Coalition for R2P (ICRtoP, www.responsibilitytoprotect.org).

ⁱⁱ House of Commons Motion, March 21 2011, verbatim text:
That, in standing in solidarity with those seeking freedom in Libya, the House welcomes United Nations Security Council Resolution 1973; that the House deplores the ongoing use of violence by the Libyan regime against the Libyan people; acknowledges the demonstrable need, regional support and clear legal basis for urgent action to protect the people of Libya; consequently, the government shall work with our allies, partners and the United Nations to promote and support all aspects of UNSC Resolution 1973, which includes the taking of all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya and to enforce the no-fly zone, including the use of the Canadian Forces and military assets in accordance with UNSC Resolution 1973; that the House requests that the Standing Committee on Foreign Affairs and International Development and the Standing Committee on National Defence remain seized of Canada’s activities under UNSC Resolution 1973; that should the government require an extension to the involvement of the Canadian Forces for more than three months from the passage of this motion, the government shall return to the House at its earliest opportunity to debate and seek the consent of the House for such an extension; and that the House offers its wholehearted support to the men and women of the Canadian Forces.

ⁱⁱⁱ Report of the Secretary-General, Implementing the Responsibility to Protect , United Nations General Assembly, A/63/677, January 12, 2009.

^iv United Nations General Assembly, World Summit Outcome, A/60/L1, September 15, 2005. Juin 2011