"Bad cases make bad law." This axiom of jurisprudence can as easily apply to the use of force. What is happening in Libya at the moment is a "bad case" in three ways: military intervention in its civil war does not derive from well-established precedent, does not draw on unambiguous principle, and may not set a course or parameters for future conduct of various nations and institutions in similar — or roughly similar — cases. This conclusion will be tested the next time the U.S., its European and Canadian allies, and others are faced with a situation that seems to cry for outside intervention.
This is not to say that decisions on Libya taken in Paris, London, Washington and other capitals, plus at NATO headquarters in Brussels, came out of nowhere. They were based on a resolution of the UN Security Council (under Chapter VII enforcement provisions of the UN Charter). That has been important in the past to NATO's European members and to some other countries, although not always a necessary condition. Witness the NATO air campaign to stop Slobodan Milosevic's ethnic cleansing in 1999 in Kosovo. (In that situation, in the absence of a Security Council resolution authorizing intervention, each ally assumed the responsibility for choosing its own juridical basis for approving NATO military action decisions, a precedent that may prove appropriate in some future circumstances.)
In a further step toward formulating some doctrine of humanitarian intervention, the World Summit of the UN General Assembly in September 2005 backed calls for the elaboration of a new doctrine called Responsibility to Protect — an idea for protecting civilian populations from atrocities by their own leaders that was pushed by Bernard Kouchner, until recently France's foreign minister. Then in January 2009, the UN Secretary General issued a document relating to its implementation. The "R2P" doctrine is not definitive in its remedies, but what Libya's Col. Gaddafi has reportedly been doing to thousands of his people clearly falls within its intent.
This is the latest phase of a long process of nibbling away at the classic notion of state sovereignty, which was codified following the end of the 30 Years War in 1648. The doctrine is named after Westphalia, Germany, where much of the diplomacy took place. The Westphalian Doctrine — that states are responsible for events inside their frontiers, with no basis for intervention in their domestic affairs by other states — still governs most interstate behavior regarding civil wars. The 1948 Universal Declaration of Human Rights began cutting into Westphalia. For Europe, the Helsinki Final Act of 1975 sanctioned some limited interference by outsiders in its signatory states. Indeed, the Final Act and the organization set up under it, the Conference on Security and Cooperation in Europe, arguably hastened the end of the Cold War, the collapse of the Soviet empire, and the Soviet Union. (Russia and China remain opposed in principle to outside intervention into any sovereign country's domestic affairs.)
The United States and its allies and partners have applied the developing quasi-doctrine in a selective manner under pressure for outsiders to act against clearly outrageous actions by autocrats against their own people, and to stop civil conflict that reaches the level of genocide. Therein lie clues to lessons resulting from current events in Libya. The United States responded to a UN request and intervened in Somalia in 1992, but withdrew promptly following the brutal killing of 19 American soldiers in Mogadishu that humiliated the U.S. and rattled the White House. A movie, Blackhawk Down, added to that visibility. In August-September 1995, NATO (finally) conducted air strikes to stop the conflict in Bosnia, but outsiders did little to stop the genocide in Rwanda and have done nothing to stop the slaughter of people in Zimbabwe at the hands of Robert Mugabe.
Judging by experience in recent years, some elements of a new, limited "doctrine" may be emerging, at least for the U.S. and European states. It contains the following elements:
- The crisis must include major killing of civilians and perhaps threaten to rise to the scale of a serious threat of genocide or other war crimes.
- If possible, there needs to be a UN Security Council Resolution.
- At least one nation needs to take the lead in seeking action. In the case of Libya, France took the lead, with Britain second and the United States (uncharacteristically) following behind.
- The conflict into which Western powers consider entering needs to be reasonably close to the territory of NATO and the European Union — a sort of benign Brezhnev Doctrine.
- A failure to act would need to call into question the value of NATO and perhaps even the EU in undertaking other tasks, as was clearly true in impelling their action in Bosnia and Kosovo and, to a lesser but still consequential degree, in nearby Libya.
- Unless the contemplated intervention is immediately adjacent to NATO and EU territory, the participation of regional states (Arabs, in the Libyan case) can be important to secure political support, both at home and abroad.
- The use of force needs to be limited to the willingness of public opinion and parliaments in the Western states to accept the costs of intervention.
- The conflict must not pose a major tension between humanitarian motives and enduring notions of promoting "stability" or securing other "interests." This can be seen in the downplaying of events in Bahrain and Syria. In both cases, Western capitals hope that protests, along with repression by the authorities, do not reach the point of looking like the strife in Libya. If so, these capitals could face a choice between doing little or nothing, and thus seeming to apply a double-standard, and intervening in some way that could undercut the Western interest in stability in the Near East and the Persian Gulf. In Bahrain, for example, so far the US and its allies have chosen stability over support for human rights.
All these criteria, hedged as they are, fall well short of a new doctrine, but do form the basis for debate about what the U.S. and its allies and partners will be willing to do in future circumstances that resemble Bosnia, Kosovo, or Libya. The criteria also underscore the need for NATO and the EU to consider their own future roles to prepare for taking decisions, perhaps in ambiguous circumstances, with more alacrity than in Libya. There, precious time was lost. Even now, there is no agreement on the end game of current operations in Libya, a fact that could end up vitiating the good intentions of the original military engagement.
All these future considerations are already emerging as lessons learned from Libya. One thing is clear: what has been happening in North Africa this year, in what seems to be the leading edge of a great wind of change sweeping the Arab world, will require the Europeans (along with the U.S. and others) to be deeply and durably engaged there — economically, politically and in humanitarian terms.
This will be a challenge to NATO's future. Even more, it will be a challenge to the EU's ambitions to become serious in the realm of security and foreign policy beyond Europe. The EU's Common Security and Defense Policy (CSDP) was created specifically to enable the EU to play a lead role in security issues other than aggression against one or more of its member states (in which case all the Europeans agree that responsibility would devolve on NATO.) In fact, under the December 2002 Berlin-Plus Agreement between NATO and the EU, the latter can "borrow" military assets from NATO for its military actions in circumstances where NATO — meaning, in practice, where the U.S. declines to act.
This crisis in Libya was tailor-made for CSDP. But despite the leadership of France, a great champion of independent EU military activity, the EU did not take up the cause. One reason was the reluctance in Germany, even under a conservative-led coalition with center-right liberals, to be engaged or complicit in such a major EU decision about the use of force. The implications for the EU's security ambitions are obvious. France's Le Monde newspaper took this to the logical conclusion of its own point of view announcing that "European Defense: Dead and Buried in Libya".
The EU can redeem itself by getting involved as an institution in North Africa with non-military assets, given that its members have the relevant tools and skills in abundance to make a profound difference in the lives of Tunisians, Egyptians and, when the fighting stops, Libyans.
For all of these states and institutions, the requirement for sustained engagement in North Africa derives from a combination of humanitarian principle and self-interest, a powerful combination. NATO, the EU, and all of their member states must accept that inescapable responsibility.
Robert Hunter is a former U.S. ambassador to NATO and is currently a Senior Advisor to the RAND Corporation, a non-profit non-partisan organization.
This commentary originally appeared in European Affairs on April 10, 2011.