The prospect of international intervention legitimacy: case study of 2011 libyan armed conflict

4.2.2.2. Consequences of a Military Intervention

Estimating a humanitarian outcome of military interventions on the local population is a complex problem whose results proved to be very much dependent on the adopted conceptualization of the humanitarian outcome. In spite of the fact that there has been a couple of studies attempting to quantify the broader effects of warfare on normal social dynamics and societal systems.^268(*)

There are many possible ways how to capture impact of military intervention on the humanitarian situation in the country. One possible extreme how to measure the humanitarian outcome would be by looking merely at the changes of mortality in the battle field or alternatively conflict duration, while completely ignoring the impact of the intervention on the civilian population. The second extreme would be an adoption of the Johan Galtung's approach that a mere cessation of violence without removing the roots of conflict is not a sufficiently positive outcome, claiming that a successful intervention should achieve a positive peace without presence of any indirect and structural violence.^269(*)

4.3. Occupation and Exit Strategies

It therefore gives a brief outline of the law on occupation, followed by an evaluation of the importance of exit strategies in military interventions. A researcher has also examined the elements of a sound exit or transitional strategy together with common obstacles which stand in the way of devising such a strategy.

Primo, following the horrors and devastation throught by the Second World War, the international community came together and agreed to prohibit the unilateral threat or use of force by states in order to create a world characterized by peaceful coexistence rather than aggression and conflict. This new world order was enshrined in the Charter of the United Nations ("the Charter"). It was signed by fifty states in San Francisco on 26 June 1945 and provided the basis for the international legal system regulating the use of force. The intervening states are signatories to the Charter and are thus bound by all of its provisions including the prohibition on the use of force.^270(*)

Secundo, the United Nations through the collective security system does however provide a means by which military force can be employed to address threats to international peace and security. This has not however always proved effective due to the highly politicized nature of the international system and this has resulted in military intervention being withheld in the face of humanitarian catastrophes or taken unlawfully outside of the international system, neither of which is an acceptable nor sustainable state of affairs.^271(*)

Tertio, it has become increasingly apparent in the post Cold War era that the international legal framework regulating the use of force between states, as codified within the Charter, is unable to respond effectively to modern threats to international peace and security including the widespread proliferation of increasingly sophisticated and deadly chemical, biological and nuclear weapons, large scale violations of human rights including crimes against humanity and genocide and the presence of well organized and armed non-state actors including terrorist groups and militias.^272(*) The The human rights discourse has gathered significant peace over the past years and it is now widely accepted by the international community that sovereign states have an obligation to protect their peoples from gross human rights violations and consequently to refrain from perpetrating such violations. The notion of state sovereignty has arguably shifted away from an absolutist conception where the state is the sole master of its internal affairs and towards one whereby the right to sovereign status, and the associated rights of non-interference, is predicated upon the effective undertaking of responsibilities expected of a state, as determined by the international community, including the protection of the fundamental human rights of its peoples.^273(*)

Quartos, Where a state fails to discharge its responsibilities the international community is required to react and take the necessary steps, which may ultimately include the use of military force, to prevent gross human rights violations occurring and to restore international peace and security. As a result there exists a clear tension between the prohibition on the use of force against states, the principle of non-interference in states internal affairs and the promotion and protection of human rights. This is a tension which has not been fully reconciled by the international community and this is reflected by the wide ranging disagreements about, and criticism of, the current state of international law in this area.^274(*)

Finally, in light of the foregoing it is clear that the decision about whether or not to take military intervention against another state, or a non-state actor, is a very difficult and complex one which includes a multitude of legal, political, financial, logistical and moral considerations for a state to weigh in the balance when formulating policies and making decisions about military intervention.^275(*)

As the researcher observation, when single states and coalitions of states seem to resort to the use of force primarily motivated by their own interests and not so much for the benefit of the international community and of the people that are affected by military intervention, any assessment of the intervention will always be ambivalent, regardless of the fact that the intervening states acted with the blessing of the UN Security Council and, therefore, under the banner of international legality.

It is very important to note that the humanitarian intervention should occur without United Nation Security Council authorization when it is at last resort. It is this Centre's opinion that the «Responsibility to Protect» doctrine could provide a foundation on which a legal right to intervene in states for humanitarian purposes could be developed and established in international law. Whilst, as has been discussed, the current conception of Responsibility to Protect does not provide scope for intervention out with the Charter, the researcher consider that it should do and that the intervening countries could take the lead in advancing a legal basis for intervention within the Responsibility to Protect framework.

* ²⁶⁸ Cranna R., op. cit., p.92.

* ²⁶⁹ Galtung R., The Necessity of Achieving a Positive Peace With the Absence of any Indirect or Structural Violence., Lonon, 2000, p. 72.

* ²⁷⁰ A. Cassese, `Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?' European Journal of International Law 23 at 25, 1999.

* ²⁷¹ Richard Caplan, Exit Strategies and State Building (Oxford University Press 2012): 3-16.

* ²⁷² A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, 2^nd December 2004, UN. Doc. A/59/565.

* ²⁷³ NATO Doc. AR 295 SA (1998), quoted in Simma NATO, The UN and the Use of Force: Legal Aspects EJIL 10 (1999), 1-22, 16

* ²⁷⁴ Honig, J.W. Avoiding War, Inviting Defeat: The Srebrenica Crisis, July 1995 (Journal of Contingencies and Crisis Management, vol 9 n^o 4 Dec 2001), 2001, pp. 200-210.

* ²⁷⁵ Thomas M. Franck, "Who Killed Article 2 (4)? Or: Changing Norms Governing the Use of Force by States", American Journal of International Law 64 (1970) 810 in Ian Hurd, "Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World", Ethics and International Affairs, 25 no. 3 (2011) pp 293-313