Recently he has confirmed this assessment by referring to the disaffected portion of his own citizenry as “rats and dogs” or “cockroaches,” employing the bloodthirsty and vengeful language of a demented tyrant. Such a tragically criminal imposition of political abuse on the Libyan experience is a painful reality that exists beyond any reasonable doubt, but does it validate a UN authorized military intervention carried out by a revived partnership of those old colonial partners, France and Britain, their post-colonial American imperial overseer, as well as some regional states that were induced to join this “coalition of the willing,” which has morphed into a NATO operation, but with continuing participation from several Gulf states?
From a personal perspective, my hopes are with the Libyan rebels, despite uncertainties about their political identity and doubts about their capabilities. Many credible exile Libyan voices agree that a rebel victory would benefit the people of Libya and would be a huge step in the right direction for the region, especially the Arab world. But a question remains. Does this prospect justify support for a Western-led military intervention even if it is backed by the United Nations? I believe not.
Unknowns and certainties
Let us begin with some unknowns and uncertainties. It is worth observing that unlike the other regional events of 2011 the Libyan rising did not last long as a popular movement of a spontaneous character, or unfold as a specific reaction to some horrific incident as in Tunisia. It seemed, although there is some ambiguity in the media reports, that the Libyan oppositional movement was armed and reliant on military force almost from the start, and that its political character seems more like a traditional insurrection against an established order than a popular revolution in the extraordinary manner of Tahrir Square. There is no doubt that this violent political reaction from within to Gaddafi’s regime seems fully justified as an expression of Libyan self-determination.
The movement deserves encouragement from world public opinion and international institutions, including support by way of such soft power instruments as diplomacy, boycott, divestment and maybe UN sanctions. The international community did not resort to military intervention threats and actions in Libya until the domestic tide turned in favor of Tripoli, which means that intervention was deemed necessary to overcome the apparent growing likelihood that Gaddafi overwhelm the rebels and reestablish order in his favor. It is misleading to think of this intervention as motivated primarily by an effort to protect Libyan civilians. It was undertaken to avoid the defeat of the rebels, and to get rid of the Gaddafi regime.
If the protection of the civilian population was truly the explanation of the Libyan intervention, then would have found support for doing the same thing in Yemen and Bahrain where similar violence against the civilian opposition was evident. Beyond this, it should have been clear from experiences in Iraq and Afghanistan that military intervention against a hated and brutal regime is never the end of the story, and quite likely before any ending is reached violence cascades to heights far beyond what would have likely resulted had there been no intervention. In the process heavy casualties are inflicted and massive displacements occur causing immense suffering for the entrapped and innocent population. Overall historical trends suggest that military intervention rarely exerts a positive effect on an internal conflict, and instead vindicates trust in the dynamics of self-determination. Disillusioning disasters may and do occur from time to time if the internal balance of forces is allowed to work itself out, yet overall during the last 75 years nonintervention seems wiser and far less problematic than intervention.
But it can be asked, what about Rwanda, Bosnia (especially, the massacre at Srebrenica)? Are not these instances where humanitarian intervention should have been undertaken and was not? And didn’t the NATO War of 1999 in Kosovo demonstrate that humanitarian intervention does sometimes spare a vulnerable population from the ordeal of genocidal ethnic cleansing? With respect to Rwanda and Bosnia, the threat of genocidal behavior was clearly established, and could likely have been prevented by a relatively small-scale intervention, and should have been undertaken for such a limited goal despite the uncertainties. The facts surrounding the alleged genocidal threat in Kosovo remain contested, but there was a plausible basis for taking it seriously given what had happened a few years earlier in Bosnia.
A complex debate
The internal American debate on the use of force was more complex than usual, and cut across party lines. Three positions are worth distinguishing: realists, moral interventionists, moral and legal anti-interventionists. The realists, who usually carry the day when controversial military issues arise in foreign policy debates, on this occasion warned against the intervention, saying it was too uncertain in its effects and costs, that the US was already overstretched in its overseas commitments, and that there were few American strategic interests involved. The moral interventionists, who were in control during the Bush II years, triumphantly reemerged in the company of hawkish Democrats such as Hilary Clinton and Joseph Biden, prevailing in the shaping of policy partly thanks to a strong shove from London and Paris, the acquiescence of the Arab neighbors and the loss of will to oppose on the part of Moscow and Beijing. These opponents of intervention against Gaddafi were outmaneuvered, especially at the United Nations and in the sensationalist media that confused the Gaddafi horror show for no brainer/slam dunk reasoning on the question of intervention, treating it almost exclusively as a question of an easy “how,” rather than a difficult “whether.”
Finally, there arises the question of the UN authorization itself by way of Security Council Resolution 1973. The way international law is generally understood, there is no doubt that the Security Council vote, however questionable on moral and political grounds and in relation to the charter text and values, resolves the legal issue, at least within the UN system. An earlier World Court decision, ironically involving Libya, concluded that even when a UN Security Council contravenes relevant norms of international law, its decisions are binding and authoritative. Here, the Security Council has reached a decision supportive of military intervention that is legal, but in my judgment not legitimate, being politically imprudent and morally confused. The states that abstained acted irresponsibly, or put differently, did not uphold either the spirit or letter of the charter. The charter in Article 2(7) establishes a prohibition on UN authority to intervene in matters “essentially within the domestic jurisdiction” of member states unless there is a genuine issue of international peace and security present. True, the hitherto untested Responsibility to Protect norm was relied upon to provide a legal rationale for military intervention, but why here and never before, such as during the Israeli attacks on Gaza that lasted for three weeks after their initiation on Dec. 27, 2008. In the Gaza setting the civilian population was completely victimized by the attacks, enduring severe harm without having any relevant military protective force, and yet no government raised the relevance of a responsibility to protect.
Using a slightly altered language, the UN Charter embedded a social contract with its membership that privileged the politics of self-determination and was heavily weighted against the politics of intervention. Neither position is absolute, but what seems to have happened with respect to Libya is that intervention was privileged and self-determination cast aside. It is an instance of normatively dubious practice trumping the legal/moral ethos of containing geopolitical discretion in relation to obligatory rules strictly limiting the use of force and the duty of non-intervention. We do not know yet what will happen in Libya, but we already know enough to oppose such a precedent that exhibits so many unfortunate characteristics. It is time to restore the global social contract between territorial sovereign states and the organized international community, which not only corresponds with the outlawry of aggressive war but also reflects the movement of history in support of the soft power struggles of the non-Western peoples of the world.
If ordinary citizens were allowed to have foreign policy doctrines mine would be this: Without an exceptionally strong consensus supportive of a proposed course of military action, the UN should never agree to allow states to engage in violent action that kills people. The abstainers from Resolution 1973 deprived the interventionists of a strong consensus, and to go ahead anyway is to reinforce the impression that when it comes to peace and security issues the UN is more a creature of geopolitics than of the rule of law.
*Richard Falk is a professor emeritus of international law and practice who taught at Princeton University for 40 years.