NATO ‘victory’ in Libya a defeat for international law

With rebels entering Tripoli over the weekend, five months after U.S. and NATO allies began bombing Libya in support of rebel forces fighting to topple Muammar Gaddafi, NATO Secretary General Anders Fogh Rasmussen walked a fine line in his choice of words — skillfully choosing between nuanced legalism and unbridled triumphalism.

“Our goal throughout this conflict has been to protect the people of Libya, and that is what we are doing,” Rasmussen said on Monday. “Because the future of Libya belongs to the Libyan people.”

He seemed to have a hard time, though, towing NATO’s line of emphasizing its specified role in carrying out a limited UN mandate to protect civilians, and resisting the urge to celebrate a victory as a general of a triumphant international army.

“NATO wants the Libyan people to be able to decide their future in freedom and in peace,” he said. “Today, they can start building that future.”

Despite indications that the fighting is far from over, much of the Western media has adopted a celebratory tone in its coverage. In an August 23 editorial, the Boston Globe acknowledged that Gaddafi’s “compound in Tripoli was still being defended by well-armed bitter-enders” and that the dictator’s whereabouts remain unknown.

“But it’s not too early,” the Globe opined, “to credit the leadership of British Prime Minister David Cameron, French President Nicolas Sarkozy, and President Obama for the NATO mission supporting the rebellion, protecting Libya’s civilians, and – after some hesitation about adopting regime change as an explicit goal – driving Khadafy from power.”

The Globe pointed out that NATO fighters flew nearly 20,000 sorties over Libya, severely degrading Gaddafi’s military capabilities. “Without NATO’s support from above, the rebels on the ground would have stood no chance of success,” said the Globe.

It remains to be seen, however, how much of a “success” the rebels on the ground have achieved.

STRATFOR warns that “the fight is not over in Libya, as strongholds of government loyalists remain within Tripoli and elsewhere in the country.” As the global intelligence service reported on Aug. 22:

Gadhafi’s remaining forces will continue fighting. [Mustafa] Abdel-Jalil, [head of Libya’s National Transitional Council (NTC)], said Aug. 22 that the Gadhafi era was over and that the rebels control almost all of Tripoli. However, he conceded that the Gadhafi compound at Bab al-Aziziya “and the surrounding areas” remain unpacified. The NTC has admitted that the fight is not over — not only in Tripoli but in other areas of the country as well.

Jibril warned Aug. 22 that the rebels needed to be aware that some of Gadhafi’s forces were approaching from the east. This was likely in reference to the forces that have been holding the line at Zlitan for several weeks in the face of a westward advance by Misurata-based rebels. During the simultaneous move toward the capital from Zawiya on Aug. 21, the Misurata rebels were able to push Gadhafi’s men out of Zlitan but did not advance much farther west than that. With the capital under siege and Tripoli’s eastern districts experiencing a rash of uprisings, the NTC is concerned that the loyalist forces previously in Zlitan will return to the capital to fight.

Most of Libya is under NTC control, but Gadhafi strongholds remain in Sirte and the Fezzan Desert city of Sabha. Abdel-Jalil addressed this issue directly in an Aug. 22 interview. Sirte is Gadhafi’s hometown and, like Sabha, is a bastion of the Gadhafi tribe, which has relied upon the Libyan leader’s reign for its privileged position. These likely will be the last groups of loyalists to surrender. Abdel-Jalil acknowledged that these areas remain unpacified and voiced an expectation that the inhabitants of both cities would “rise up from within” as the regime’s position continues to weaken. Later in the day, he claimed that Sirte was under siege, while Al Jazeera reported that electricity to the city had been cut and communications disrupted. Multiple senior Gadhafi officials have reportedly taken refuge in Sirte.

According to varying reports from rebel fighters in Tripoli and also Italian Foreign Minister Franco Frattini, Gadhafi’s forces retain control of 10-20 percent of Tripoli. The exact amount of territory under loyalist control is almost as much of a mystery as what became of the Libyan army’s Khamis Brigade.

The International Crisis Group (ICG) has criticized the West’s approach to the conflict, arguing that by insisting on Gaddafi’s departure at such an early stage, NATO allies may have ensured a drawn out, life-or-death struggle that precludes a peaceful political settlement.

In a June 2011 report on the situation in Libya, the ICG warned that insisting on Gaddafi’s departure as a precondition for any political initiative would prolong the military conflict and deepen the crisis.

“To insist that he both leave the country and face trial in the International Criminal Court is virtually to ensure that he will stay in Libya to the bitter end and go down fighting,” said Hugh Roberts, ICG’s North Africa Project Director. “That would render a ceasefire all but impossible and so maximize the prospect of continued armed conflict.”

As the ICG explained in its report “Popular Protest in North Africa and the Middle East: Making Sense of Libya,”

Unlike events in neighbouring Tunisia and Egypt, the confrontation that began in mid-February between the popular protest movement and Qaddafi’s regime followed the logic of civil war from a very early stage. This owes a great deal to the country’s history and chiefly to the peculiar character of the political order Colonel Qaddafi and his associates set up in the 1970s. Whereas Egypt and Tunisia had been well-established states before Presidents Mubarak and Ben Ali came to power in 1981 and 1987 respectively, such that in both cases the state had an existence independent of their personal rule and could survive their departure, the opposite has been true of Libya. As a result, the conflict has taken on the character of a violent life-or-death struggle.

Eight years after overthrowing the monarchy in 1969, Qaddafi instituted the Jamahiriya (“state of the masses”) that is very much a personal creation largely dependent on his role. A constitutive principle of the Jamahiriya is the axiom, proclaimed in Qaddafi’s Green Book, that “representation is fraud” and that no formal political representation is to be allowed. Whereas all other North African states have at least paid lip-service to the right to political representation and have permitted political parties of a kind, however unsatisfactory, in the Jamahiriya there has been none at all, and attempts to create parties have been considered treason. The consequence of this radical refusal of the principle of representation has been to stunt the development of anything approaching effective, formal institutions or civil society. Notably, the articulation of diverse ideological outlooks and currents of political opinion, which other North African states have allowed to at least some degree, has been outlawed.

A corollary of this low level of institutionalisation has been the regime’s reliance on tribal solidarities to secure its power base. Strategic positions within the power structure – notably command of the security forces’ most trusted units – have been held by members of Qaddafi’s own family, clan and tribe and of other closely allied tribes. At the same time, and especially since the late 1980s, the regular armed forces have been kept weak, undermanned and under-equipped, the object of mistrust.

These various features of the political order help explain why the logic of civil war set in so quickly after the first demonstrations.

It could also be said that these various features not only help explain why the logic of civil war “set in so quickly,” but also why it could very well drag on for some time. This would explain why world leaders are urging the rebels and the NTC to show restraint if and when they finally succeed in toppling Gaddafi.

As Fred Abrahams, a special adviser at Human Rights Watch, coordinating the organization’s coverage of the Libya crisis, wrote today:

Daunting tasks face the transitional leadership, the National Transitional Council, in the days and weeks ahead, particularly in the area of human rights. How they tackle those challenges will set the tone in Libya for years to come.

First is the responsibility to avoid revenge. Fighters with the council should treat all of their detainees humanely, from members of the Gadhafi family to captured fighters on the streets. They should turn the page on the old regime’s standard use of torture and abuse. …

Government arms depots also need securing to ensure that Gadhafi’s vast military arsenal does not fall into private hands, fueling an insurgency and perhaps get smuggled outside the country. In other parts of Libya, Human Rights Watch has seen large, unguarded depots with land mines, Grad rockets, anti-tank missiles and handheld SA-7 Grail surface-to-air missiles capable of shooting down a civilian airplane.

The concerns expressed by the international community and civil society do not take place in a vacuum. As this blog has pointed out since the intervention began last spring, the UN-mandated intervention has overstepped its legal boundaries nearly from day one.

When Resolution 1973 was adopted by the UN Security Council, it was pitched to the public as the “establishment of a no-fly zone.” The Security Council’s press release on March 17 began,

Demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Qadhafi regime and its supporters.

Initially, it appeared that Muammar Gaddafi was complying with the resolution’s first demand, “the immediate establishment of a ceasefire and a complete end to violence and all attacks against civilians,” as he instantlydeclared a ceasefire following the vote.

Gaddafi’s son, Saif al-Islam, further promised that government troops would not try to enter the rebel stronghold of Benghazi, backing away from earlier threats, Agence France-Presse reported.

The United States, however, called the ceasefire announcement insufficient, demanding that the regimeimmediately pull all of its forces out of eastern Libya, which apparently Gaddafi failed to do in time.

The next day, the bombing began. In announcing the attacks, President Obama said,

Today I authorized the armed forces of the United States to begin a limited military action in Libya in support of an international effort to protect Libyan civilians. That action has now begun.

In this effort, the United States is acting with a broad coalition that is committed to enforcing United Nations Security Council Resolution 1973, which calls for the protection of the Libyan people. …

Even yesterday, the international community offered Muammar Gaddafi the opportunity to pursue an immediate cease-fire, one that stopped the violence against civilians and the advances of Gaddafi’s forces. But despite the hollow words of his government, he has ignored that opportunity. His attacks on his own people have continued. His forces have been on the move. And the danger faced by the people of Libya has grown.

The Arab League, which had tentatively lent support to Resolution 1973, promptly objected to the bombing campaign. “What is happening in Libya differs from the aim of imposing a no-fly zone, and what we want is the protection of civilians and not the bombardment of more civilians,” said Arab League Secretary General Amr Moussa on March 20.

Despite the narrow limitations placed on the U.S. and NATO forces by the Security Council to enforce a no-fly zone in order to protect civilians, the Western powers soon made clear that their objective was not simply to protect civilians, but to aid the rebels in the their efforts to overthrow Muammar Gaddafi.

As the L.A. Times reported on March 24, leaders of the rebel opposition were making regular contacts with allied military officials to help commanders identify targets for the U.S.-led air assault.

“There is communication between the Provisional National Council and UN assembled forces, and we work on letting them know what areas need to be bombarded,” rebel spokesman Ahmed Khalifa said.

Less than a month later, President Obama and his French and British counterparts made public their objective of regime change, which was specifically not authorized by Resolution 1973. In a  joint op-ed published on April 15, Barack Obama, David Cameron and Nicolas Sarkozy wrote:

So long as Gaddafi is in power, Nato and its coalition partners must maintain their operations so that civilians remain protected and the pressure on the regime builds. Then a genuine transition from dictatorship to an inclusive constitutional process can really begin, led by a new generation of leaders. For that transition to succeed, Colonel Gaddafi must go, and go for good.

The U.S., for its part, has said that it will not be sending ground troops to Libya, but that it supports the decision to do so by European allies.

“The President, obviously, was aware of this decision and supports it, and believes it will help the opposition,” White House Press Secretary Jay Carney said on April 21. “But it does not at all change the President’s policy on no boots on the ground for American troops.”

But while claiming to exclude the possibility of “boots on the ground,” the New York Times reported on March 30 that the U.S. has “small groups of C.I.A. operatives [that] have been working in Libya for several weeks as part of a shadow force of Westerners that the Obama administration hopes can help bleed Colonel Qaddafi’s military.”

The UK and the U.S. seemed from the beginning to be parsing words very carefully regarding how an “occupation” is defined. Under international law, a territory is considered occupied when it is placed under the authority of a foreign power.

Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

The International Committee of the Red Cross cites common Article 2 of the four Geneva Conventions, which apply to any territory occupied during international hostilities.

The ICRC, which is considered the world’s foremost authority on the Geneva Conventions, says,

The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.

The question of “control” calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC’s Commentary to the Fourth Geneva Convention (1958).

An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.

Regardless of whether one accepts the more narrow view of how an occupation is defined or the broader view embraced by the ICRC, the decision to send ground forces into Libya – even as advisers – appears to violate the letter and the spirit of Resolution 1973, which excludes “a foreign occupation force of any form on any part of Libyan territory.”

For the moment, President Barack Obama continues to insist that no U.S. boots will be placed on the ground in Libya. Standing by his earlier pledge that “we will not – I repeat – we will not deploy any US troops on the ground,” the White House says that the president’s position that there will be no U.S. boots on the ground in Libya is unchanged.

Only time will tell.

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