This dilemma, which highlighted the absence of standing UN armed forces — notwithstanding the original intent of the framers of the Charter — was initially overcome through the willingness of the British, French and the US to commit forces to the initial implementation and enforcement of the mandated Libyan no-fly zone.

The real significance of this UN response to the Libyan crisis is that, for the first time, it represents and implements the responsibility to protect (R2P) concept. The concept emerged in 2001 from the report of the International Commission on Intervention and State Responsibility, which the former Australian Foreign Minister Gareth Evans co-chaired. The report was completed against the backdrop of the international community’s failure to prevent mass atrocities in Rwanda and Srebrenica in the 1990s, and the ‘successes’ of the 1999 interventions in Kosovo and East Timor.

The basic tenet of R2P is that national authorities have the primary responsibility to protect their own citizens from mass atrocities, but that responsibility will shift to the international community when national authorities are manifestly failing to protect their citizens. This idea was officially endorsed in the 2005 World Summit Outcome, in which world leaders affirmed their commitment to the responsibility to protect populations from mass atrocities. Since then, the language of R2P has informed mediation efforts by the former UN Secretary-General Kofi Annan in Kenya, and the deployment of a UN-African Union hybrid mission in Darfur based on the consent of the Sudanese government.

Given this background, what made the Libyan situation move the international community to eventually agree to military enforcement of R2P? A key trigger was Gaddafi’s use of the Libyan Air Force against his people. Deploying the Air Force to engage in the strafing of protesting civilians is a crime against humanity and this was the initial finding, albeit a political and not a legal one, by the Security Council when it adopted Resolution 1970. Since then, the Prosecutor of the International Criminal Court confirmed on 3 March that an investigation had commenced into the commission of crimes against humanity in Libya.

Another factor that motivated the UN was the threat of the Libyan regime to seek vengeance against the rebels and their supporters who had dared to back the uprising against Gaddafi. This no doubt created a dilemma. Should the UN sit back and await clear and compelling evidence of the commission of mass atrocity crimes in Libya, or should it proactively intervene when all the evidence pointed to a high probability that this was what was about to occur? Perhaps, in the case of Libya, that judgment was made just a little easier because of the Gaddafi regime’s past record.

This development has shown a bright and dark side to the implementation of R2P by military means. The bright side is that R2P has been applied against a government manifestly failing to protect their own citizens. For the first time in history, the Security Council authorised member states to take all necessary measures, except for occupying forces, with the primary objective of protecting civilians and civilian populated areas under threat of attack in Libya.

The dark side is that the consequences of this military action were not carefully thought through. It was not only China and Russia, but also Brazil, Germany and India which abstained in adopting Resolution 1973 because of the possibility of large-scale loss of civilian lives, the danger of being drawn into protracted military confrontation, and the unintended effect of exacerbating tensions on the ground. Coalition leaders were quick to emphasise the limit of the operation solely for the purpose of protecting civilians. Yet, glimpses of the political interest in ousting Gaddafi’s regime have been seen from the beginning, which limited the policy options available to prevent mass atrocities. Now, the rebels are still struggling to win against the military superiority of Gaddafi’s forces, raising questions as to whether the Coalition should arm the rebels, an option US Secretary of State Hilary Clinton said was within her interpretation of the resolution — but this is contentious.

The humanitarian cause for deciding to save lives, even by military means, is to be applauded. The legal authority to authorise the military action was also rightly sought and secured on this occasion. However, ill-informed action and mishandling of the situation can easily turn the moral legitimacy of the intervention and its political support upside-down. A serious failure here, therefore, could have significant consequences for the futures of both R2P and the people of Libya.

Dr Hitoshi Nasu and Professor Donald R. Rothwell teach International Security Law at the ANU College of Law, Australian National University.