Does the Libya Precedent Block a Syria Intervention?

by Julian Ku

Tod Lindberg of the Weekly Standard worries that the “pristine” legality of the Libya intervention (under international law, at least), is preventing the U.S. from taking similar actions again Syria.

As matters stand, intervention in Syria would be anything but a “model.” The real question for the Obama administration, however, is whether Libya has set a standard for intervention so pristine as to render the United States incapable of action in the absence of perfect conditions. Time is running out for the administration to demonstrate otherwise.

Harold Koh offered at the ASIL meeting a nuanced (and somewhat unclear) explanation of the U.S. government’s current policy toward Libya. Here is what I take as his key analysis of the effect of Libya on current policy on Syria:

In so saying, we specifically see no inconsistency between the U.S. approach to Syria and the U.S. approach to Libya. Neither our legal theories, nor our strategic objectives, nor our moral commitments have changed. What is different are the facts. As President Obama observed several weeks ago, in Libya we had “a UN Security Council mandate . . . and we knew that we could execute very effectively in a relatively short period of time.” As difficult as Libya was, the President added, “[t]his is a much more complicated situation. . . . [T]he notion that the way to solve every one of these problems is to deploy our military, that hasn’t been true in the past and it won’t be true now.” With respect to Libya, the Security Council of course adopted two important Resolutions, 1970 and 1973. The proposed Security Council resolutions on Syria have differed substantially from 1970 and 1973 in their terms. Moreover, from a practical perspective, it is by no means clear that the type of actions taken to protect Libyan civilians would have the same effect in Syria.

I don’t know about the practical difference an intervention would make in Syria and Libya. But I notice Koh has elided the (fairly justifiable) complaint by China and Russia that NATO did not exactly stick to “protection of civilians” in its NATO intervention, which suggests they won’t buy that cover story this time.  Which means Lindberg is probably right. There will be no Security Council authorization and therefore there will be no Syria intervention.

http://opiniojuris.org/2012/04/02/does-the-libya-precedent-block-a-syria-intervention/

One Response

  1. Response…
    There may not be a Security Council authorization in the near future, but some have recognized the Syrian free army/rebels/etc. as the legitimate representatives of the Syrian people.  Will this play out like the recognition by (some 60?) countries of the Libyan NTC as the legitimate representative of the Libyan people?  In Libya, the NTC could thereafter consent to collective self-defense against Qadaffi armed attacks on the Libyan people and consent to self-determination assistance by NATO et al against remanants of the Qadaffi forces — and even regime change.  P.S. at a certain point it became reasonably needed to support regime change in order effectively to protect civiians and civilian populated areas from armed attacks against them (which was the S.C. mandate).

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