This piece was originially published as an Opinion piece in theÂ Irish Times on 12 March 2011
THE CRISIS in Libya presents new Minister for Foreign Affairs and Trade Eamon Gilmore with many urgent and pressing questions. As yet, the international community has failed to respond effectively to this unfolding humanitarian crisis. Disagreement at the United Nations Security Council and the threat of veto from both Russia and China is continuing to limit the possibility of a concerted collective response to the crisis. A draft resolution imposing a no-fly zone has been prepared by the UK and France, apparently ready to be formally presented if Libya commits an â€œegregious actâ€.
Egregious acts are, however, already occurring, and it is not clear that, even in such an event, consensus would be forthcoming.
Sadly, for observers of the security council, such disagreement and paralysis in the face of mass atrocity is all too familiar.
In the 1990s, the UNâ€™s failure to intervene in Rwanda and Srebrenica contributed directly to the deaths of hundreds of thousands of innocent civilians, and led finally to the recognition that the UNâ€™s role in protecting civilians was in need of urgent and dramatic reform.
Many international law commentators have pointed to the parallels between the Libyan and Kosovan crises. In 1999, inaction on the part of the Security Council in the face of widespread human rights violations in Kosovo ultimately led to unilateral action by the North Atlantic Treaty Organisation (Nato), without security council authorisation.
The independent Commission on Kosovo, established by the UN secretary general in the wake of the Nato action, concluded that the intervention was â€œillegalâ€, but legitimate. The spectre of inaction in the face of a humanitarian crisis could not be countenanced.
Following quickly on the Kosovan crisis, the security council authorised intervention in East Timor, but only when it had secured an invitation from Indonesia, and only after Indonesian and militia forces had run amok, killing, raping and pillaging with impunity.
In his essay â€œTwo Concepts of Sovereigntyâ€, then UN secretary general Kofi Annan called on the international community to reach consensus â€“ not only on the principle that massive and systematic violations of human rights must be checked, wherever they take place, but also on ways of deciding what action is necessary, and when, and by whom.
The Responsibility to Protect (R2P) Doctrine, developed through a series of high-level meetings of heads of state and governments in the early years of the new millennium, sought to address the past failings of the UN. At the heart of the R2P doctrine is the commitment by the international community, acting through the UN, to take collective action, in a timely and decisive manner, to protect populations from genocide, crimes against humanity and war crimes.
The crisis in Libya represents precisely the kind of situation envisaged by the R2P doctrine. The possibility of effective action by the UN, however, faces the hurdles of realpolitik and the self-interested disengagement by Russia and China, mindful no doubt of the potential for Jasmine revolutions to extend beyond this Arab Spring.
The security council has taken a first step towards a decisive response to the crisis. Security council Resolution 1970, adopted on February 26th, imposed a targeted regime of sanctions, and, reflecting the commitment to pursue accountability, the security council referred the situation in Libya to the International Criminal Court.
Significantly, the resolution was adopted unanimously, with support from the US. This support reflects the Obama administrationâ€™s policy of positive engagement, a welcome reprieve from the Bush administrationâ€™s open and hostile opposition to the court.
The swift referral of the situation to the court is remarkable, given the delays that usually accompany negotiations on the role of the court. The referral of the situation in Libya is not without its difficulties, however. Libya is not a party to the Statute of the International Criminal Court, and Col Gadafy has been a vocal opponent, along with other African heads of state, of the courtâ€™s role in Africa, calling in particular for a deferral of the arrest warrant against Sudanâ€™s President Omar al-Bashir.
All of the situations and cases currently before the court concern African states, raising questions as to the impartiality of the court and doubts as to why similar referrals did not occur in the context of Israelâ€™s attacks on Gaza in 2009, for example.
For the moment, African states have not opposed the security councilâ€™s actions against Libya, though South Africa (a non-permanent member of the security council), is reported to be sceptical of the proposed no-fly zone and possible military action.
The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, has now officially opened the investigation into the Libyan crisis, warning that crimes against humanity may be occurring, and that those responsible will be held accountable.
While these developments are to be welcomed, sanctions and the pursuit of accountability are not enough. Judicial remedies, while important, will not, and are not, deterring Col Gadafy and his forces from committing mass atrocity against innocent civilians. It now seems unlikely the US will support or lead any unilateral action against Libya. Nato continues to discuss its possible role in imposing a no-fly zone.
The doctrine of humanitarian intervention recognises the possibility of unilateral action, when a stateâ€™s actions against its own civilians are â€œso brutal as to shock the conscience of mankindâ€.
The actions of Gadafyâ€™s forces have clearly met this threshold, shocking and distressing all those watching.
On accepting the Nobel Peace Prize, Obama spoke eloquently of the idea of a just war. He also called for the strengthening of the international institutions and international law. Over the last decade, both the US and the UK have invoked the doctrine of humanitarian intervention to support military action, when the UN failed to act. Over-extended now by conflict in Afghanistan and Iraq, and chastened by the errors of past administrations, neither look likely now to act without UN support.
The UN must respond. It is imperative that the security council fulfils its responsibility to the people of Libya, if it is not to be rendered irrelevant yet again in the face of a grave humanitarian crisis. Decisive action, including the immediate authorisation of a no-fly zone, is required.