I. A Veto Story

On Thursday, March 17, 2011, the UN Security Council voted to impose a no-fly zone over Libya and authorize "all necessary measures" to protect civilians from attacks by Moammar Gadhafi's forces. The vote was 10-0 with five countries abstaining including Russia and China, which have veto power in the council, along with India, Germany and Brazil.

The mention of the veto power, which the five permanent members of the Security Council hold, raises an interesting question. The conventional wisdom is that a country must vote against a resolution in order to exercise its veto power. Well, that’s stretching it a bit.

Chapter V of the UN charter deals with the Security Council. Of interest here are the description of the voting procedures of the Council. Article 27, paragraph 3 says the following:

Decisions of the Security Council on all other [non procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.

No ambiguity here. In order to pass, a decision must be voted for by at least nine Council members including ALL the permanent members. I am not a lawyer, let alone an expert on international law, but the wording of that paragraph is simple and clear - if one or more of the permanent members does not vote for it, a resolution does NOT pass, regardless as to whether the vote was against the resolution or a mere abstention. Lawyers’ specialty is the interpretation or rather the misinterpretation of laws and rules, yet accepting “abstain” as a synonym for “concur” appears to be far fetched even for jurists.

The developments surrounding the veto power of the permanent members of the Security Council reflect the political manipulations common to the international arena. It goes back to the Korean War.

When North Korea invaded South Korea in 1950, the cold war was at its height. The Russians, however, did not want to appear openly supporting the North Korean aggression. When it became obvious that President Truman would be able to railroad the UN to support the US use of force against North Korea, the Russians opted to boycott the Security Council sessions, assuming that without their concurring vote the Council will not be able to pass a resolution calling for an action against North Korea. At the time, the composition of the UN was totally different from what we are used to today, the US had no difficulty to muster majorities for decisions it favored, and it could get away with practically anything. Thus, the small matter of reading “abstain” to mean “concur” did not meet any serious objection. By the time the Russians realized what was happening it was to late. The resolution approving the use of force against North Korea had already passed.

As is always the case in legal matters, once a precedent is established, it stays for good. It was a juristic maneuver worthy of Israel’s Aharon Barak, although it happened many years before his time. It is reminiscent of the legal putsch (מהפיכה חוקתית) carried out by Barak in Israel.

II. From Resolution to Implementation

After a long period of dithering Obama found himself in once again in a situation where rather than being in control he is controlled by the events. Much as he tried to vote “present” rather than make a stand, he had eventually to move. During the election campaign, before he was nominated by the Democratic Party, Hilary Clinton attacked his lack of experience by saying “Imagine that it is 3 am, and the red phone rings at the White House. Who do you want to pick it up to cope with the emergency?” Well, as the Wall Street Journal puts it, that situation arose, the red phone did ring at 3 am in the White House, and who picked it up? Sarkozy. That’s not exactly what the Americans voted for when they elected Obama. An article in the Washington Post - a journal not known for criticizing Obama, describes Obama as being the World’s MC (Master of Ceremonies) rather than the world leader (http://www.washingtonpost.com/opinions/as-global-crises-mount-obama-has-...). For the Israeli readers who may be unfamiliar with the term, MC is the title given to the guy who at parties tells the jokes, invites the different speakers to the podium and is generally responsible to maintain the amicable atmosphere. Not exactly a compliment.

Right now it is not at all clear who calls the shots, and with the US secretaries of Defense and State going out of their way to stress that the US is NOT leading the effort, it appears more like a war conducted by a global committee rather than a concentrated effort with clear objectives. The support of NATO is only half hearted, and the Arab League’s support which was crucial to help overcome reluctance in the West for action in Libya evaporated as soon as the first cruise missiles hit Libyan territory.

Although Obama approved the use of force he was strongly against involving ground forces and limited it to air strikes, which makes sense. The question is whether the use of ground forces can be avoided in the long run. Unlike the situations in Iraq and Afghanistan, in Libya it is a civil war which does not entail any threat to US interests. It is difficult to envisage that war being won by one of the sides solely by air bombardments. If ground forces get dragged in it will be back to the Vietnam era situation. Is Obama aware of all the implications? Another question that comes to mind is what’s the difference between Libya today and Iran two years ago? The potential threat from a nuclear Iran is far more serious than anything that happens in Libya.

III Morality in Turtle Bay

In the wake of the Security Council resolution to use force against Gaddafi, UN Secretary General, Ban Ki-Moon, said that it was based on humanitarian grounds. He referred what is known as Responsibility to Protect (R2P), which he described as a “a new international security and human rights norm to address the international community’s failure to prevent and stop genocides, war crimes, ethnic cleansing and crimes against humanity.”
In 2009, Ban pushed the creation of the International Coalition For The Responsibility To Protect (ICR2P) a group brought together to extend and institutionalize R2P. When Israel conducted operation lead cast, that group declared that “rocket attacks on Israel by Hamas, deplorable as they are, do not amount to an armed attack entitling Israel to rely on self-defense”.

A “new international security and human rights norm” indeed.