Lessons for International Law from the Arab Spring

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state;1 in Libya, the anti-Qaddafimovement has fractured along tribal and factional lines;2 in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces.3 Throughout the Middle East-from Egypt, Libya, and Syria to Yemen, Tunisia, Bahrain, and elsewhere-the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations.4 The Arab Spring brought both progress and turmoil, and its longterm impact remains uncertain.For international law, the import of the Arab Spring is similarly ambiguous. On the one hand, as Juan Mendez and others have argued,5 the Arab Spring can be viewed as the world's first true human rights revolution: the young protesters of the Arab street spoke the language of democracy and human rights, and the international community responded in the same lexicon, with references to human rights law and international criminal law, and referrals to the institutions that help sustain them (such as the UN Human Rights Council and the International Criminal Court ("ICC")).6 Many human rights advocates rejoiced when the UN Security Council referred the situation in Libya to the ICC and when the Libya intervention was justified in terms of the international "responsibility to protect" ("R2P").7 To the optimist, these developments reflect the renewed vitality of international legal institutions and will further speed the development of human rights- related international legal norms.On the other hand, the Arab Spring demonstrated equally the limits and dangers of these same institutions and norms. At the outset, it's probably worth noting the early irrelevance of international law and institutions to the Arab Spring. For most of the last few decades, international law and institutions did little or nothing to improve conditions in the Arab World. Indeed, the repressive regimes of the Middle East were always asterisks to the global trend toward democratization; even as autocratic regimes in Latin America, Russia, and Eastern Europe tumbled, oil-rich Arab political leaders clung to power, with little protest from the United States or other powerful nations. As long as the oil flowed, few wealthy states were inclined to push too hard for reform. It's unsurprising, then, that change ultimately came from within, not from without. The starring roles in the Arab Spring have been played not by international actors but by the citizens of the Arab World themselves-by street vendors, students, tech entrepreneurs, and other ordinary people. International institutions-and certainly powerful nations such as the United States-have been followers, not leaders.When changing facts on the ground meant that the Security Council and its five permanent members could no longer ignore the Arab Spring, their response was equivocal. The Council referred Libya to the International Criminal Court8 but provided no additional resources to assist the already-overwhelmed prosecutor with his investigations, making effective ICC action difficult. Blessed by the Security Council, NATO intervened militarily in Libya to protect the civilian population from predation by Qaddafi's forces,9 but the international community showed little interest in providing substantial financial or governance assistance to the Libyan opposition once Qaddafiwas overthrown.10The Security Council has shown even less interest in using military force to protect civilians in Bahrain or Syria: in Bahrain, U.S. security considerations militate against anything that could threaten the Bahrain-based headquarters of the Navy's Fifth Fleet,11 while in Syria, Russian opposition and U.S. concerns about military overextension have so far squelched serious discussion of using force to protect Syrian civilians. …