CYIL 2015

YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? … not on the agenda 71 of the Libya intervention but became a necessity the longer the conflict lasted. It was not the character of the Libyan regime as such but the escalation of violence and the behaviour of Gaddafi and his forces that required the end of his legacy. 72 Regime change was presented as inevitable in order to secure lasting and sustainable peace and not a mere postponement of mass atrocities. To make matters clear: while regime change is not the goal of the responsibility to protect doctrine and the general ambition to intervene when civilian lives are in danger, it may well constitute an incidental by-product. 73 From the standpoint of just war theory as outline above, however, it had always been clear that the mere decision to use force for humanitarian purposes necessarily implied regime change; the only question thus being ‘when’, not ‘if.’ Contrary to what had been publicly stated, legitimacy was not ‘lost’ 74 as a result of the conduct of Gaddafi’s regime but rather never existed in the first place. Thus, the civil war in Libya merely provided a perfect and welcomed opportunity to finally get rid of a despotic regime. This also explains why various states and international organizations, most notably the EU, effectively prejudged the final outcome of the war when they recognized the Transnational Council in Libya as the legitimate representative body or even the representative government of Libya long before they had taken effective control over significant parts of the Libyan territory. 75 Seen in this light, the Security Council resolution must not be read at face-value. On the contrary, the stated aim to protect civilians rather seems as nothing more than a political and diplomatic concession. Behind closed doors, even China and Russia, the most prominent critics of the way the NATO operation unfolded in the months that followed the resolution, were arguably well aware of the ultimate outcome from the very beginning, 76 an assumption that is further supported by the fact that they refrained from proposing a resolution that would have e.g. declared the air campaign as excessive. In light of Libya, the question 71 See, e.g. , Barrack Obama’s Address to the Nation on Libya, 28 March 2011, http://www.whitehouse. gov/the-press-office/2011/03/28/remarks-president-address-nation-libya. 72 Kerstin Odendahl, ‘Regimewechsel und Interventionsverbot: die Elfenbeinküste und Libyen als Fallstudien’ (2012) 50 Archiv des Völkerrechts 318, 340-41. 73 Alex J. Bellamy, ‘The Responsibility to Protect and the Problem of Regime Change’, http://www. responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/3697-alex-bellamy the-responsibility-to-protect-and-the-problem-of-regime-change-?format=pdf. 74 See the statement of Sir Mark Lyall Grant (United Kingdom), Security Council Meeting 6491, 26 February 2011, S/PV.6491, 4, or Hillary Clinton already at the end of February http://m.state.gov/ md157412.htm 75 Odendahl ( supra n 72), 232; see also Dapo Akande, Recognition of Libyan National Transitional Council as Government of Libya: http://www.ejiltalk.org/recognition-of-libyan-national-transitional council-as-government-of-libya/ 76 Erik Voeten ‘How Libya Did and Did Not Affect the Security Council Vote on Syria’, http://www. washingtonmonthly.com/ten-miles-square/2012/02/how_libya_did_and_did_not_affe035256.php; Erik Voeten, ‘Why Did Russia and China Veto?’, http://www.washingtonmonthly.com/ten-miles square/2012/02/why_did_russia_and_china_veto035219.php.

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