Intervention in Libya in the Context of International Humanitarian Law

The Context of the Conflict

 On March 19, 2011 the United States and other international actors responded to what they saw as a humanitarian crisis unfolding in Libya. Long time Libyan leader, Muammar Gaddafi, was seen as a extreme threat in the eyes of the United States as he made thundering speeches vowing to “cleanse” every house and village in Libya of what he saw as a nefarious movement aiming to topple his regime.

 Disregarding the impassioned rhetoric coming from Gaddafi and the US, in times like this it is always instructive to examine the facts, articulate what these facts illustrate about the motives of each participant, and demonstrate how these motives measure up to firmly established principles of international law.

 From the outset of the uprising in Libya, it was apparent that a large portion of the population felt that the Gaddafi regime was illegitimate. Thousands of Libyan citizens flooded the streets of Benghazi demanding the dissolution of the presidents 42 year rule. Much like the protestors in neighboring Egypt, the Libyan people were emboldened by the democratic tide sweeping across the Middle East and North Africa.

 Gaddafi’s reaction to these exercises of civil disobedience was not only swift but brutal. Just days into the protests, images began to surface online portraying dismembered bodies and mortally wounded corpses. By February 23rd, a mere six days into the protests, Human Rights Watch published a report stating that over 300 people had been killed. Certainly, these were flagrant violations of international law and therefore required a decisive response from the international community.

 But should this response have been a military response, a diplomatic one, or one that employs both diplomacy and force? The aim of this essay is not to advocate any particular response on the part of the international community. Rather, the aim of this essay is to illustrate the response that was taken and how this response fits (or doesn‘t fit) within the framework of international humanitarian law.

The Framework

 First and foremost, it is important to lay out the legal norms under which the US intervention in Libya is taking place. This legal groundwork will help us to better understand what’s unfolding in Libya and more importantly our role in the conflict. 

 Central to the philosophy of international humanitarian law is, what’s called in legal scholarship, the “principle of reciprocity”. This guiding principle was recently articulated by Adam Roberts, a Senior Research Fellow at the Centre for International Studies and Professor of Politics and International Relations at Oxford University. In a lecture titled The Equal Application of the Law of War: A Principle Under Pressure he says “under the [principle of reciprocity], the laws of war . . . apply equally to all those who are entitled to participate directly in hostilities . . . it is not relevant whether a belligerent force represents an autocracy or a democracy, nor is it relevant that it represents the government of a single country or the will of the international community.” In short, there can be no excuse (not even that of a humanitarian crisis) that can be invoked to violate obligations of equal treatment under international law. This obligation deserves close attention especially considering the fact that many of the rebels of the Libyan opposition are untrained in the use of military equipment which seriously calls into question their “entitle[ment] to participate directly in hostilities” and our description of what’s happening as a “civil war”.

Now that this central tenet of reciprocity is understood it is also important to understand other principles which are connected with this notion of equal application. One of the more important advancements in the arena of international law as it relates to civilian populations rebelling against their governments is the Additional Protocol I to the Geneva Conventions of 1977. The preamble of this document states, “every State has the duty, in conformity with the Charter of the United Nations, to refrain in its international relations from the threat or use of force against the sovereignty, territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”

 Furthermore, Assistant Professor of Law at Harvard Law School, Gabriella Blum, cited Protocol I as a document that “greatly expanded the legal recognition of irregular forces fighting colonial domination, alien occupation, or racist regimes.” Interestingly, the United States has not ratified this document. Effectually, the US denies these “irregular forces” the recognition of the law. Moreover, the US rejects, in principal, the idea that they must not use force to interfere with the “territorial integrity of [a] State.” These principles of territorial integrity and political independence are the same principles that our President professes to support so deeply in his riveting speeches about the rights of the Libyan people. We believe in the equal application of the law unless you are a non-state actor in which case the law loses its symmetry (the state can break the law against civilians but not vice versa). Contradictions of this kind, between Presidential rhetoric and the legal record, should not be taken lightly as they give us deeper insight into the real character of our activities abroad.

 Most importantly, any examination of our adventure in Libya would be incomplete without a understanding of UN Resolution 1973. This resolution is the resolution cited for our intervention in Libya and the objectives of this intervention. At the core of this resolution is the aim to establish a no-fly zone. This no-fly zone is to be carried out “in order to help protect civilians” and it also seeks to employ “all necessary measures to enforce compliance with the ban on flights.” This latter qualification to take all necessary measures stands out in glaring contrast to President Obama’s assurance that the US will only be acting in a limited capacity. This contrast is magnified to an even greater extent when one takes a glance at what’s actually happening on the ground in Libya.

What’s Happening on the Ground

 In the earliest days of the Libyan intervention President Obama assured the international community that the US would not be taking the lead in this adventure and that regardless of the military operations needed to establish the no-fly zone, “no boots would be on the ground.” This statement that no “boots” would be on the ground was just that, a mere statement.

In a March 31st article in the Wall Street Journal titled CIA Operatives are Aiding Rebels it is revealed that “the Central Intelligence Agency has placed covert operatives on the ground in parts of Libya” to “undertake unspecified covert operations with White House approval.” Trying to square this reality with the President’s vow not to have “boots on the ground” would only bring one up against the stark reality that President Obama and his associates have no qualms about lying to the American people. In fact, the report goes on to point out that these CIA agents had been on the ground “for weeks” thanks to the “secret order” signed by the President earlier this month.

 In addition to this outright deception propagated by the Obama administration, other statements made by high ranking individuals like the retired army Lieutenant General James Dubik reveal the ideological disconnect which exists between the Libyan citizens and the forces that are professing to protect them. In another article in the Journal titled Gadhafi Push Tests Allies Dubik asserts “it‘s safe to say what the rebels stand against, but we are a long away from an understanding of what they stand for.” Dubik even went as far as describing the opposition as “not a force at all” and “just guys with guns”, a notion if accepted by the Obama administration would gravely restrict their ability to exercise military force because civilians are not subject to the same “rules of war” as rebels. 

 Collectively, the refusal to recognize the “territorial integrity” of the Libyan people under Protocol I, the deployment of CIA agents on Libyan soil, and the general contempt for governmental transparency draws some rather ominous pictures of what we are trying to achieve in this North African country. How do we reconcile this self proclaimed care for human rights and democracy with our historical rejection of Palestinian self-determination, a stance which manifested itself most recently in our rejection of a resolution introduced by the United Nations Security Council that would have brought an end to Israeli settlements on Palestinian land, a resolution that the US blocked against 14 other member states? How can we reconcile President Obama’s affirmation that the US “does not turn a blind eye” to atrocities when we are doing exactly that in places like Bahrain, Saudi Arabia, and Yemen. Incidentally, all three of these countries are loyal allies to the United States. None more than Yemen’s president, Ali Abdullah Saleh, who has allied himself with the US to the point that he was willing to take the blame for US drone strikes in 2010.

 Indeed, these unpronounceable facts have the ability to introduce deadly contaminants into the deceptively sterile tradition of American ideological norms. Nonetheless, under the rubric of international humanitarian law unsettling realities like these are needed to put forth a cogent analysis of what’s happening in Libya and what it means for the future of the embattled state. Without a doubt, we should take these facts seriously as careful criticism of conventional wisdom could mean the difference between humanitarian intervention and agression, democratic openings and autocratic repression, the end of a civil war and the brutal beginning of a war against civilians. 

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