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

3.3.1.2.2 The Right of Humanitarian Intervention

The right of intervention, could be say, exists only for the benefit of a unilateral organism and not for the benefit of States acting individually. By conferring the right to intervene exclusively to the Council, the Charter excludes the States from an individual action. Therefore, the defense of universal values as fundamental human rights still reserved to a universal organization which is the United Nations.^193(*)

It is also important to recall that the supporters of the doctrine of the right of humanitarian intervention consider that collective armed intervention has its justification on UN Charter and may take place where there are mass violations of humanitarian law. On the other hand, other authors considered that the defense of rights also important as well as those human rights could be made only by a community of States. The Charter of the United Nations provides a suitable solution for serious violations of human rights carried out within a State by allowing the Security Council to intervene and put an end to them. However, the passivity of the Security Council has been often questioned despite the large number of technical means it detains.^194(*)

In practice, this disproportion between the existing technical means and the absence of their use by the Council will exist regardless of the proposed collective security method. In addition, it has already shown that precedents where States unilaterally claimed humanitarian interests rarely corresponded to a need to intervene militarily to defend human rights.^195(*)

Indeed, article 43 of the Charter, which provides that the Member States undertake at the disposal of the Council their armed forces, has never been applied. Actually, United Nations don't possess any armed force that could be set up to conduct military operations. Until now, whenever the Council decides to intervene militarily, it performs a kind of delegation of the exercise of its right, allowing its members to act in his name.

In this regard, the Security Council by its resolution 1973 March 17, 2011, authorized the Member States "to take all necessary measures to protect the population and civilian areas under threat of attack in Libyan Arab Jamahiriya (...) »^196(*). In this case, the Security Council has decided to use force and resorted to the technique of the delegation of the exercise of its right.

It should be noted that this technique is not a delegation of the right to act militarily itself. Only the Council can take a decision and the action of the Member States is strictly limited to the terms hereof. In the context of the operations under the resolutions, the own responsibility of the Member States may be instituted. The Member States are not free to act according to their interests, but they have an obligation to put at the disposal of the Commission necessary means to achieve its objectives provided for in the Charter. The discretion to conduct military action is therefore to the Security Council. In addition, other interventions may take place with the consent of the Victim State.^197(*)

* ¹⁹³ Chris Brown, `Selective Humanitarianism', in Dean Chattejee and Don Scheid (eds), Ethics and Foreign Intervention (New York: Cambridge University Press, 2003, p. 83.

* ¹⁹⁴ CHARVIN, R., op. cit.128, at p.49.

* ¹⁹⁵ David D. Laitin and James D. Fearon, `Neo Trusteeship and the Problem of Weak States',International Security 28(4), Spring 2004, pp.5-43.

* ¹⁹⁶ 1973 resolution by the Security Council of March 17, 2011, paragraph 4.

* ¹⁹⁷ Ibid.