CYIL 2015

250 / 464

236
RALPH JANIK CYIL 6 ȍ2015Ȏ
regime change or regime change on the basis of other, less fundamental human rights
violations despotic regimes commit on a daily basis or mass atrocities that have taken
place long ago, can not be expected to receive the same endorsement.
It follows that, as soon as a regime faces a singular state or an armed coalition
that intervenes in the name of humanity , it will, at least in theory, have a hard
time to uphold its continuing existence – just like the intervening state(s) will be
under pressure to ensure the sustainability of any operation and stretch every possible
legal and moral justification to its limits. This was particularly obvious in the recent
intervention in Libya. Theoretically, a strong case could be made that the Security
Council resolution should have been applied and interpreted in a rather restrictive
fashion. Most importantly the authorization can be understood as having a rather
short timeframe, as it aimed at preventing attacks on civilians.66 After all, it included
a reference to the city of Benghazi, which was under rebel-control and that time
was said to have been under an imminent threat by Gaddafi’s forces;67 furthermore,
several Security Council members were concerned over the possibility of a lengthy
entanglement in the conflict and excessive use of force from the very start.68 Most
crucially, the fact that the clear and repeatedly emphasized goal of the resolution was
the protection of the civilian population has important ramifications.69 This effectively
required a minimum proximity between the military targets and the protection of
civilians.70 Assisting the rebels in their struggle to topple Gaddafi from power thus
stretched this explicit intent too far, since it was by no means clear that a stalemate
would not have achieved this result. After all, civilians living in the Gaddafi-controlled
areas were basically safe, at least as long as they refrained from protesting in public or
taking forcible action. Going even further, the resolution would have also allowed for,
and consequently even required, taking actions against the rebels, since their territorial
advancements put the civilians living in these parts of the country in great danger.
Proponents of the responsibility to protect doctrine and the general ambition
to protect civilians by military force seem to be aware of the risk involved with
establishing a close link to regime change. Hence, they argue that regime change was
66 Brad R. Roth, ‘Sovereign Equality and Non-Liberal Regimes’ (2013) 43 Netherlands Yearbook of
International Law 25, 48.
67 Qaddafi Warns of Assault on Benghazi as U.N. Vote Nears, New York Times, 17 March 2011, http://
68 S/PV.6498, Mr Wittig (Germany), 5; Mr Singh Puri (India), 6; Mr Viotti (Brazil), 6; Mr Churkin
(Russian Federation), 8.
69 Dapo Akande, ‘Does SC Resolution 1973 Permit Coalition Military Support fort the Libyan Rebels?’,
31 March 2011,
for-the-libyan-rebels/; see also Philippe Sands, ‘UN’s Libya resolution 1973 is better late than never’,
18 March 2011,
70 See the comment by Malcom Shaw in The Guardian, ‘Libya: The legal case for deployment’, 21 March
2011,