The second problem was procedural. The 15-member Security Council must authorize any military intervention by a three-fifths supermajority -- nine votes. The supermajority requirement poses few obstacles because smaller countries that rotate onto the Council can be easily bullied or bought off, but the permanent members -- the United States, France, Britain, China, and Russia -- possess vetoes. In 1999, China and Russia refused to consent to a military intervention in Serbia to protect Kosovo from ethnic cleansing, forcing NATO to go it alone and violate the law. In 2003, the United States and Britain invaded Iraq without Security Council authorization. Possibly realizing the limited power of their vetoes if Western countries could simply ignore them in the past, and recognizing that Arab states supported the rebels, China and Russia abstained this time, and an authorizing resolution was issued.
But China and Russia appear to have used their bargaining power to secure some concessions. Resolution 1973 did not authorize a full-blown ground invasion, and in fact prohibited a "foreign occupation force." Instead, it established a no-fly zone, and authorized the use of military force to "protect civilians and civilian populated areas under threat of attack." This was not a remit to depose Qaddafi.
Far from adhering to these essentially defensive parameters, NATO took an active part in assisting the rebels' campaign to overthrow the government, with some countries even sending limited ground forces, and undertaking various efforts to assassinate Qaddafi in bombing attacks. None of this was blatantly illegal -- and NATO could point out that protecting civilians required disabling Libyan ground forces and their leadership -- but it was far from the spirit of Resolution 1973, and of the U.N. Charter itself, which was never understood to give powerful states a means to bully small or medium-sized countries that did not comply with their visions of international order.
Another casualty of the military intervention was human rights. To be sure, Qaddafi was a cruel dictator, and his overthrow was a victory for those who care about human rights. But human rights law does not endorse the principle that the ends justify the means -- even if the ends are humanitarian. As Amnesty International reported, the rebel groups "abducted, arbitrarily detained, tortured and killed former members of the security forces, suspected Gaddafi loyalists, captured soldiers and foreign nationals wrongly suspected of being mercenaries fighting on behalf of Gaddafi forces."
That this would happen was surely obvious to the policymakers involved. That this would happen when NATO forces commit themselves to an air war, and refuse to send ground troops that might have imposed some discipline on the rebel forces, should have been even more obvious. But the fact is that a ground campaign was politically impossible. Thus, the choice was between non-intervention, which could have resulted in massacres and the prolongation of Qaddafi's regime, or intervention along with moral, if not necessarily legal, complicity in torture and crimes against humanity by the rebels. International law provides no guidance for making this tradeoff, and thus surely did not influence the decisions of the governments.
The denouement, some six months after the U.N. resolutions, continues the theme. International lawyers and human rights advocates insisted that Qaddafi be captured and tried for his international crimes, either in an international tribunal or in a domestic court that complied with exacting international standards. Indeed, the Security Council had referred the matter to the International Criminal Court, which indicted Qaddafi, his son Saif al-Islam, and brother-in-law and military intelligence chief Abdullah Senussi in June. The rebel forces appear to have executed Qaddafi without a trial, and one wonders whether they did so in part to avoid the nightmare of international criminal adjudication.
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