Although the UN authorization is based on the premise that civilians are under attack, clearly, the rebels are armed and an armed conflict is underway. The Libyan government has the right, as a sovereign nation, to put down the armed rebellion, even if it did not have the right to kill the innocent protesters.1
It’s actions should be guided by the principle of proportionality. That is, efforts must be made to minimize the harm to innocent people, or collateral damage, as it is known in the West. The Libyan opposition are classified as rebels. They cannot be not considered insurgents, due to short length of time they have been in conflict, their lack of control over significant territory, and other factors, such as a lack of military structure, uniforms, and so forth. As such – and whatever one may think of the justness of their cause – they have no special legal status and may be treated by the Libyan government as criminals.
Unlike the invasion of Iraq, this military operation was approved by the UN Security Council, which may, under Chapter 7 of the UN Charter, authorize the use of force when it finds, under Article 39 of the Charter, the existence of a threat to peace, a breach of the peace or an act of aggression that puts the lives of people at risk. The UN’s enforcement powers, under either Chapter 7, or Articles 42 et seq, were meant only as extrema ratio – that is, as a last resort. The so-called “ethic of responsibility,” in other words, is that the remedy should be no worse than the evil, as wars quite often are.2
The new age we appear to be in, of liberal wars in pursuit of a humanitarian agenda, has created wars of choice rather than wars of necessity.3 The basis for such interventions has been, more often than not, sheer power rather than law, and the results are often not good. They are a return to the medieval concept of a bellum justum (morally justified war), which was replaced by the concept of the bellum legale (legal war) long ago.4 It is just the kind of thing the UN was designed to prevent. As Vladimir Putin recently observed, the concept of a “just war” can easily take on the aspect of a crusade, and in the case of Iraq, a rather disingenuous one.5 It is almost beyond argument that the 2003 invasion of Iraq was an illegal war of aggression, in that legal grounds for the attack, such as self-defense or Security Council authorization, did not exist. The “coalition,” then, can at least be given credit for playing by the rules this time in Libya. The actions taken by the US and its coalition have been, at least up to this point, legal.
It’s important to note, though, how limited the mandate of the UN Security Council is. It is to ensure peace, not to pass judgments on governments or to replace bad governments with better ones. The UN’s mission is not to spread democracy. According to the UN Charter, its role is “the maintenance of international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of peace, and to bring about, by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace …” Article 39 of the Charter states that its purpose is not to maintain or restore law, but merely to maintain and restore peace.6
So, when US Secretary of State Hillary Clinton says that “the first and overwhelmingly urgent action is to end the violence,” but that “a final result of any negotiations would have to be the decision by Colonel Gaddafi to leave,” it should be clear this exceeds the UN’s authorization to end the conflict, and is in pursuit America’s own objective of eliminating an old adversary.
This is, of course, to take America’s motives at face value. It must be said that most of the Libyan population lives in the western part of the country, and most of the oil is in the east. Oil and gas account for 97 percent of Libya’s export earnings and 90 percent of government revenue, according to the International Monetary Fund. American and British media are already referring to eastern Libya as “disputed territory.” However, there is no legal dispute over this territory, and no legal argument for the partition of the Libyan people from their oil. The UN’s mandate is to prevent “violations of the territorial integrity of states,” not to facilitate them. The partition of Libya would create yet another place in the world destined for permanent war.
What else is wrong with this picture? Well, the coalition are backing a very weak side in a civil war. How can this possibly be an act of pacifism? The Wall Street Journal reported on Friday that “Egypt’s military has begun shipping arms over the border to Libyan rebels with Washington’s knowledge.” Quoting U.S. and Libyan rebel officials, the newspaper said the shipments were mostly of small arms such as assault rifles and ammunition.
Under Article 53(1) of the Charter, the UN Security Council can utilize regional organizations for enforcement action under its authority or authorize them to take action. Likewise, the Security Council may authorize individual Member States to resort to armed force. However, Egypt has no such authorization. Under traditional principles of international law, while aid to an incumbent government does not fall under the scope of international legal norms prohibiting intervention, aid to rebels certainly does.
Military intervention of one state in the affairs of another state, even on humanitarian grounds, is directly opposed to the territorial integrity of states. For example, in the case of Pakistan, Indian intervention resulted in the secession of East Pakistan/Bengal, and the permanent impairment of the territorial integrity of the Pakistani state. In the cases of Cambodia and Uganda, interventions resulted in the violent overthrow of the governments of those countries. The idea that a government can be so bad that foreign intervention is justified, and forcible overthrow is legitimate, is extremely dangerous, and would make the existence of various governments around the world dependent on the judgement of their adversaries.
What is in doubt at this time in history is whether the world will over time assume a more humane character or will be characterized by militarism, neoliberal globalization, and imperial forms of coercive control. Such a view of foreign policy, based on ethical principles, depends upon the realist / Machiavellian consensus being discredited as a basis for the conduct of international relations. The crisis in Libya is just the latest test.
- Richard Falk, “Perspectives on Global Justice,” in Between Cosmopolitan Ideals and State Sovereignty, Ronald Tinnevelt et al. eds., (Palgrave 2006); Fernando Teson, The Moral Basis of Humanitarian Intervention, in Between Cosmopolitan Ideals and State Sovereignty. [↩]
- See Force and Legitimacy in World Politics, David Armstrong, ed. (Cambridge Univ Press 2005). [↩]
- Menno T. Kamminga, Inter-State Accountability for Violations of Human Rights (Univ of Pennsylvania Press, 1992). [↩]
- See Mohammad Taghi Karoubi, Just or Unjust War (Ashgate Publishing Co., 2004). [↩]
- Tarcisio Gazzini, The Changing Rules on the use of force in international law (Manchester Univ Press, 2005). [↩]
- UN General Assembly Declaration on Friendly Relations 2625 (XXV) of 1970, adopted unanimously. (“No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.”); GA Res. 45/150 (1990) (on non intervention). [↩]