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Would any of the U.S. presidential candidates not commit war crimes?

nuremberg hanging

If the Nuremberg laws were applied, then every post-war American president would have been hanged. – Noam Chomsky, 1990

In recent days, numerous commentators have criticized irresponsible discourse within the GOP presidential field over whether to reinstate torture and implement other war crimes – such as carpet bombing – as official U.S. policy. The 2008 Republican presidential nominee, Arizona Senator John McCain, even felt compelled to weigh in this week by calling out the “loose talk” in the Republican race.

McCain took the Senate floor Tuesday to condemn remarks by his Republican colleagues regarding the use of torture, stating that “these statements must not go unanswered because they mislead the American people about the realities of interrogation, how to gather intelligence, what it takes to defend our security and at the most fundamental level, what we are fighting for as a nation and what kind of nation we are.”

john mccain gop torture quoteIndeed, with presidential frontrunner Donald Trump calling his chief rival Ted Cruz a “pussy” for hinting that he might show some degree of restraint in the use of torture, it’s clear that on the Republican side, the discussion has gone off the rails. This has led respected human rights groups to remind the U.S. of its moral and legal obligations not to engage in sadistic and cruel practices such as waterboarding.

“Waterboarding meets the legal definition of torture, and is therefore illegal,” recalled Human Rights First’s Raha Walla. “Torture under U.S. and international law means acts that cause severe mental or physical pain or suffering. There’s no question that waterboarding meets that definition.”

Amnesty International’s Naureen Shah also issued a rebuttal to the debate over waterboarding, which she described as “slow-motion suffocation.” She pointed out the obvious that “the atrocities of the armed group calling itself Islamic State and other armed groups don’t make waterboarding okay.” This was in response to statements by Trump and others that since Islamic State terrorists chop off people’s heads, the U.S. is right to respond with its own forms of brutality.

(“Do we win by being more like [the Islamic State]?” George Stephanopoulos asked Trump last Sunday. “Yes,” Trump responded. “I’m sorry. You have to do it that way.”)

Writing in The Guardian Wednesday, human rights lawyer Clive Stafford Smith observed:

There was once a consensus that torture was immoral; even today, any sensible person knows torture is of little use if you want accurate information. Yet the current crop of Republican presidential candidates have been trying to outbid one another with promises of barbarism: Senator Ted Cruz confirmed that he favours simulated drowning, which he classifies as an “enhanced interrogation technique” (EIT) that falls short of torture. (The Spanish Inquisition was rather more honest, and called it tortura del agua.) “The Donald” immediately trumped his rival: he would “bring back a hell of a lot worse than waterboarding”.

In a similar vein, The Intercept’s Murtaza Hussain and Dan Froomkin noted on Tuesday that the GOP is apparently competing over which candidate would commit the worst war crimes, including but not limited to torture and encompassing other atrocities such as carpet bombing. As the journalists pointed out:

In recent months, one candidate or another has promised to waterboard, do a “helluva lot worse than waterboarding,” repopulate Guantánamo, engage in wars of aggressionkill families of suspected terrorists, and “carpet bomb” Middle Eastern countries until we find out if “sand can glow in the dark.”

The over-the-top bombast plays well in front of self-selected Republican audiences — the crowd responded to the description of Cruz Monday night with full-throated chants of “Trump! Trump! Trump!” But such promises of future criminality from potential presidential nominees have outraged many legal experts.

While it is clearly troubling that the leading contenders for the Republican nomination are so eagerly trying to outdo each other on who would be the worst war criminal, what is perhaps equally troubling is that candidates on the Democratic side also seem committed to policies that could in fact qualify as war crimes.

It should be recalled that while the Republicans are speaking about hypothetical war crimes that they would like to commit if elected, there is a leading Democratic candidate who is already guilty of war crimes committed under her watch.

As Secretary of State from 2009 to 2013, Hillary Rodham Clinton was a major proponent of armed intervention and regime change in Libya, which – despite occasional claims to the contrary – was in no way authorized by the UN Security Council, making it a breach of the UN Charter.

When the Libyan civil war began in mid-February 2011, Clinton stated unequivocally that Libyan leader Muammar Gaddafi “must go now, without further violence or delay.”

Despite Arab countries’ reservations about regime change, Clinton helped convince Qatar, the United Arab Emirates, and Jordan that a simple no-fly zone would be insufficient and argued that aerial bombing would also be necessary. Clinton then persuaded Russian Foreign Minister Sergey Lavrov that his country should abstain on the UN resolution authorizing force against Gaddafi, and she was instrumental in getting the rest of the Security Council members to approve Resolution 1973, which established a “no-fly zone.”

With this resolution secured, the U.S. promptly decided to overstep its authority, “interpreting” the authorization as carte blanche to implement a policy of regime change.

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, 2011.

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 it clear that their objective was not simply to protect civilians, but to aid the rebels in the their efforts to overthrow Muammar Gaddafi.

This initial breach of international law was then compounded by subsequent war crimes, as documented by Amnesty International in the war’s aftermath.

“Scores of Libyan civilians who were not involved in the fighting were killed and many more injured, most in their homes, as a result of NATO airstrikes” in the bombing campaign to depose Gaddafi, Amnesty noted. “Regrettably,” continued Amnesty, “NATO has yet to address these incidents appropriately, including by establishing contact and providing information to the victims and their relatives about any investigation which might have been initiated.”

The war also led to an exacerbation of the security crisis in the Middle East and North Africa, fueling the civil war in nearby Syria and facilitating the rise of the Islamic State, as well as directly contributing to the refugee and migrant crisis that began to destabilize Europe.

Besides that disastrous foreign policy blunder, Clinton was also a primary supporter of the 21st century’s first major war of aggression, the 2003 unprovoked U.S. invasion of Iraq.

For years, Clinton was a vocal supporter of this war despite its numerous documented atrocities, defending her 2002 vote as senator to authorize the invasion as necessary to counter Saddam Hussein’s alleged (but ultimately nonexistent) weapons of mass destruction program. It wasn’t until last year – 13 years after the U.S. invasion – that she finally acknowledged that her support for that war had been a “mistake.”

The other Democratic presidential contender, Vermont Senator Bernie Sanders, has been much more consistent in his opposition to both the Iraq war and the Libya intervention, but unfortunately has embraced other policies with questionable status under international law. He has said, for example, that as president, he would be willing to use drone strikes as liberally as President Obama has, despite serious questions about this policy’s legality.

In an interview with NBC’s Meet the Press last October, host Chuck Todd asked Sanders if drones or special forces would play a role in his counter-terror plans.

“All of that and more,” Sanders said. “Look, a drone is a weapon. When it works badly, it is terrible and it is counterproductive. When you blow up a facility or a building which kills women and children, you know what? … It’s terrible.”

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A Yemeni boy (C) walks past a mural depicting a US drone and reading ‘ Why did you kill my family’ on December 13, 2013 in Yemen’s capital Sanaa.

Collateral damage by drones is not only terrible, but the very use of drones has been shown to lower the threshold for use of force, as demonstrated by a recent study by two U.S. academics.

In ‘The Ethics of Drone Strikes: Does Reducing the Cost of Conflict Encourage War?’ James Walsh and Marcus Schulzke report on how public attitudes towards the use of armed force change when unmanned drones are used in comparison to the deployment of other types of force. Analysis of the results show, write Walsh and Schulzke, “that participants are more willing to support the use of force when it involves drone strikes.”

This in turn makes U.S. military intervention more likely, as it does the inevitable collateral damage and war crimes that go along with it.

Besides drone strikes, it also appears that Sanders is committed to a Middle East policy that would empower one of the world’s worst human rights abusers to take a leading role in the region.

Saudi Arabia, despite its record as an egregious violator of human rights both at home and in neighboring countries such as Bahrain and Yemen, has long relied on the United States as its leading arms supplier.

As explained in a Congressional Research Service background paper published earlier this month:

Obama Administration officials have referred to the Saudi government as an important regional partner, and U.S. arms sales and related security cooperation programs have continued with congressional oversight. Since October 2010, Congress has been notified of proposed sales to Saudi Arabia of fighter aircraft, helicopters, naval vessels, missile defense systems, missiles, bombs, armored vehicles, and related equipment and services, with a potential value of more than $100 billion.

Since March 2015, the U.S.-trained Saudi military has used U.S.-origin weaponry, U.S. logistical assistance, and shared intelligence to carry out strikes in Yemen. Some Members of Congress have expressed skepticism about Saudi leaders’ commitment to combating extremism and the extent to which they share U.S. policy priorities. Nevertheless, U.S.-Saudi counterterrorism ties reportedly remain close, and Saudi forces have participated in some coalition strikes on Islamic State targets in Syria since 2014.

Thousands of civilians have been killed by coalition airstrikes since March of last year, according to the UN, and Human Rights Watch field investigations have uncovered evidence that many airstrikes were unlawfully indiscriminate, hitting residential homes, markets, healthcare facilities, and schools where there was no military target.

To make matters worse, Saudi Arabia has been dropping cluster bombs on residential neighborhoods, which HRW describes as “serious violations of the laws of war” due to “the inherently indiscriminate nature of cluster munitions.”

“The deliberate or reckless use of cluster munitions in populated areas amounts to a war crime,” HRW said in a statement last month.

Despite these violations, Sanders has urged Saudi Arabia to become more involved in the fight against ISIS, specifically stating that the brutal dictators of Riyadh should “get their hands dirty” – prompting peace activist David Swanson to ask, “Who has dirtier hands than Saudi Arabia?”

While Sanders is still probably the least likely of the U.S. presidential contenders to embrace war crimes should he win the election this November – and certainly deserves points for calling out Hillary Clinton’s friendly relationship with Henry Kissinger, one of the most notorious American war criminals of the 20th century – he should keep in mind that even enabling atrocities of a third party such as Saudi Arabia can make a president culpable for these crimes.

According to the International Law Commission (ILC), the official UN body that codifies customary international law,

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State” (Article 16 of the International Law Commission, “Articles on Responsibility of States for Internationally Wrongful Acts,” (2001) which were commended by the General Assembly, A/RES/56/83).

Further, the U.S. Foreign Assistance Act stipulates that “no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights” and the Arms Export Control Act  authorizes the supply of U.S. military equipment and training only for lawful purposes of internal security, “legitimate self-defense,” or participation in UN peacekeeping operations or other operations consistent with the UN Charter.

If Sanders wants to truly distinguish himself from Clinton – not to mention the blood-thirsty would-be war criminals on the Republican side – he should make clear that he would not only refrain from torture and wars of aggression, but also the enabling of war crimes by dubious allies such as Saudi Arabia, or for that matter Israel.

To add your name to a petition calling on the United States and other governments of the world to stop providing Saudi Arabia with weaponry until the Saudi government ends its military aggression and abuse of human rights, click here.

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What if there were international repercussions for U.S. aggression?

US-military-and-CIA-intervention

Setting aside for a moment the question of whether there was any justification for the Russian Federation to deploy troops to Ukraine’s autonomous region of Crimea in order to “defend our citizens and our compatriots” as Russian Foreign Minister Sergei Lavrov told UN Secretary General Ban Ki-moon on Monday, the intense international condemnation of that action raises another question: why is there never any comparable response to U.S. acts of aggression? And, if there were threats of genuine international repercussions, would it modify U.S. behavior at all?

Since Russia sent troops into Crimea, the United States and United Kingdom announced boycotts of the Sochi Paralympic Games, European Union leaders called a special summit at which they are expected to suspend talks with Russia on economic cooperation and liberalized visa rules, the U.S. suspended trade negotiations and all military-to-military engagements with Russia, U.S. lawmakers discussed sanctions on Russia’s banks and freezing assets of Russian public institutions and private investors, the Group of Seven major industrialized nations canceled preparations for the G8 summit that had been scheduled to take place in Sochi in June, and there is even talk of expelling Russia from the G8 altogether.

The Obama administration continues to discuss further ways to isolate and punish Russia, with members of the White House’s National Security Council spending more than two hours in the Situation Room on Monday discussing the administration’s options for pursuing additional diplomatic and economic consequences for Moscow.

“I think the world is largely united in recognizing that the steps Russia has taken are a violation of Ukraine’s sovereignty, Ukraine’s territorial integrity; that they’re a violation of international law; they’re a violation of previous agreements that Russia has made with respect to how it treats and respects its neighbors,” Obama said.

In short, the international response to Russia’s intervention could hardly be stronger. But even if this uproar is fully warranted (and there are certainly some doubts whether that is the case), it begs the question of why there has been such little international outcry, relatively speaking, over the decade-plus old war on terror that has violated the sovereignty and territorial integrity of countless countries, including most prominently, Iraq, Afghanistan, Pakistan and Libya. When it comes to the U.S.’s ongoing drone wars, there have been some grumblings from the international community over concepts such as transparency, distinction, proportionality and sovereignty, but nothing along the lines of the international response to Russia’s Ukraine incursion.

It should be remembered that while the world is transfixed on this so far bloodless incursion of Russian forces into Ukrainian territory, the United States military deployed military forces to more than 130 countries last year, in near total secrecy.

As a January 16 report by journalist Nick Turse explained,

In 2013, elite U.S. forces were deployed in 134 countries around the globe, according to Major Matthew Robert Bockholt of SOCOM Public Affairs.  This 123% increase during the Obama years demonstrates how, in addition to conventional wars and a CIA drone campaign, public diplomacy and extensive electronic spying, the U.S. has engaged in still another significant and growing form of overseas power projection.  Conducted largely in the shadows by America’s most elite troops, the vast majority of these missions take place far from prying eyes, media scrutiny, or any type of outside oversight, increasing the chances of unforeseen blowback and catastrophic consequences.

So, the United States is operating in 134 countries around the world (more than half of the total number of UN Member States), and its actions elicit barely a whimper of complaint, but Russia sends forces to one country (arguably on a much firmer pretext and rationale), and the international community reacts as if World War III has just been declared.

The double standards are mind-boggling, and beg the question “why?”

Of course, we all know that the United States is the world’s economic and military powerhouse, but does that fully explain it? Perhaps the U.S. has just been throwing its weight around for so long – invading countries on a whim, disregarding international norms, violating territorial integrity and national sovereignty – that it all seems normal at this point. Or perhaps the U.S. and its allies actually fundamentally agree on the virtue of U.S. military action, and share the same view on Russia: namely that Russia is a negative force in world affairs that must be neutralized at any cost.

If this is the case, it seems that the international community as a whole is just as hypocritical as the United States is, and lacks any sort of guiding principle on what constitutes “normative behavior.” On the other hand, if nations are just afraid of standing up to the bully on the playground, one wonders what might happen if they ever do grow a spine. Perhaps U.S. lawlessness and military adventurism might finally be reined in.

March 19: A day of infamy and unaccountability

NATO bombs Tripoli, Spring 2011 (Reuters)

In a report released today, the first anniversary of the launching of the U.S./NATO bombing campaign against Libya, Amnesty International documents that “scores of Libyan civilians who were not involved in the fighting were killed and many more injured, most in their homes, as a result of NATO airstrikes” in the bombing campaign to depose Libyan leader Muammar Gaddafi.

“The strikes were launched pursuant to UN Security Council (UNSC) resolution 1973 (2011) of 17 March 2011,” the report reads, “which authorized member states ‘to take all necessary measures (…)  to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya’ and introduced a ‘no fly zone’ above Libya.”

But while acknowledging that NATO appeared to have taken certain precautions to minimize civilian casualties of the bombing campaign, the U.S.-led alliance nevertheless killed unacceptable numbers of Libyans and injured many more.

“Regrettably,” says Amnesty International, “more than four months since the end of the military campaign, NATO has yet to address these incidents appropriately, including by establishing contact and providing information to the victims and their relatives about any investigation which might have been initiated.”

The human rights organization said that “adequate investigations must be carried out and full reparation provided to victims and their families.”

Amnesty’s report comes on the heels of another report released in January by a coalition of human rights groups in the Middle East that presented exhaustively researched evidence of war crimes carried out in Libya by the United States and NATO during last year’s intervention.

Basing its work “primarily, and to the greatest extent possible, on information gathered firsthand,” the Independent Civil Society Fact-Finding Mission to Libya found that “a significant percentage of the sites” targeted by NATO “were clearly civilian objects.”

Although NATO had claimed that these sites were converted into military objectives by Gaddafi forces, which in some cases may have used civilian sites as weapons storage or military communications facilities, the report notes that “site investigations conducted by the Mission failed to reveal any traces of weapons, munitions, military or communications equipment, or secondary explosions, other than the remnants of the ordinance used in the destruction of the site.”

Another report, by the International Commission of Inquiry on Libya, established by the United Nations’ Human Rights Council last year, revealed that “all sides on the ground committed war crimes with no mention at all of a potential genocide conducted by the Qaddafi forces,” according to journalist Vijay Prashid.

The UN report also suggests a distinct lack of clarity regarding potential NATO war crimes.

According to Prashid, the UN report demonstrates that “the rush to a NATO ‘humanitarian intervention’ might have been made on exaggerated evidence, and that NATO’s own military intervention might have been less than ‘humanitarian’ in its effects.”

But while the international community calls for independent, impartial and thorough investigations into these allegations, it might be well served to take note of the fact that no comparable investigations have taken place related to another war launched on this date, nine years ago.

On March 19, 2003, the United States and its “coalition of the willing” began bombing Baghdad in an effort to depose its ruler, Saddam Hussein. The bombing began with a limited assault on government targets, and intensified over the next couple days

The violations of international law, however, began even before the initial shock and awe bombing campaign. To this date, no high-ranking officials have ever been held accountable for these actions.

If the human rights community ever expects a thorough accounting of NATO’s war crimes starting a year ago, it would behoove us all to remember the war crimes commenced eight years beforehand.

As early as January 2003 — three months before the U.S. actually launched its attack — the Pentagon was announcing its plans for the “shock and awe” bombing campaign.

“If the Pentagon sticks to its current war plan,” CBS News reported on January 24, “one day in March the Air Force and Navy will launch between 300 and 400 cruise missiles at targets in Iraq. … [T]his is more than number that were launched during the entire 40 days of the first Gulf War. On the second day, the plan calls for launching another 300 to 400 cruise missiles.”

A Pentagon official warned: “There will not be a safe place in Baghdad.”

The intention of announcing these plans so early — before the UN weapons inspectors had finished their job and before diplomacy in the Security Council had been allowed to take its course — appeared to be a form of psychological warfare against the Iraqi people. If that was not the intent, it was certainly the effect.

A group of psychologists published a report in January 2003 describing the looming war’s effect on children’s mental health.

”With war looming, Iraqi children are fearful, anxious and depressed,” they found. ”Many have nightmares. And 40 percent do not think that life is worth living.”

Shock and Awe

“Shock and awe” began with limited bombing on March 19, 2003 as U.S. forces unsuccessfully attempted to kill Saddam Hussein. Attacks continued against a small number of targets until March 21, 2003, when the main bombing campaign began. U.S.-led forces launched approximately 1,700 air sorties, with 504 using cruise missiles.

The attack was a violation of the UN Charter, which stipulates that “Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” The only exception to this is in the case of Security Council authorization, which the U.S. did not have.

Targeting Civilians

Desperate to kill Hussein, Bush ordered the bombing of an Iraqi residential restaurant on April 7.  A single B-1B bomber dropped four precision-guided 2,000-pound bombs.  The four bunker-penetrating bombs destroyed the target building, the al Saa restaurant block and several surrounding structures, leaving a 60-foot crater and unknown casualties.

Diners, including children, were ripped apart by the bombs. One mother found her daughter’s torso and then her severed head. U.S. intelligence later confirmed that Hussein wasn’t there.

Not Providing Security

After the fall of Saddam Hussein’s regime on April 9, the U.S. action in Iraq took on the character of an occupation, and as the occupying power, the U.S. was bound by international law to provide security. But in the post-war chaos, in which looting of Iraq’s national antiquities was rampant, U.S. forces stood by as Iraq’s national museum was looted and countless historical treasures were lost.

Despite the fact that U.S. officials were warned even before the invasion that Iraq’s national museum would be a “prime target for looters” by the Office of Reconstruction and Humanitarian Assistance (ORHA), set up to supervise the reconstruction of postwar Iraq, U.S. forces took no action to secure the building. In protest of the U.S. failure to prevent the resulting looting of historical artefacts dating back 10,000 years, three White House cultural advisers resigned.

“It didn’t have to happen”, Martin Sullivan – who chaired the President’s Advisory Committee on Cultural Property for eight years – told Reuters news agency. The UN’s cultural agency UNESCO called the loss and destruction “a disaster.”

Cluster Bombs

During the course of the war, according to a four-month investigation by USA Today, the U.S. dropped 10,800 cluster bombs on Iraq. “The bomblets packed inside these weapons wiped out Iraqi troop formations and silenced Iraqi artillery,” reported USA Today. “They also killed civilians. These unintentional deaths added to the hostility that has complicated the U.S. occupation.”

U.S. forces fired hundreds of cluster weapons into urban areas from late March to early April, killing dozens and possibly hundreds of Iraqi civilians. The attacks left behind thousands of unexploded bomblets that continued to kill and injure civilians weeks after the fighting stopped.

Because of the indiscriminate effect of these duds that keep killing long after the cessation of hostilities, the use of cluster munitions is banned by the international Convention on Cluster Munitions, which the United States has refused to sign.

Authorizing Torture

Possibly anticipating a long, drawn-out occupation and counter-insurgency campaign in Iraq, in a March 2003 memorandum Bush administration lawyers devised legal doctrines justifying certain torture techniques, offering legal rationales “that could render specific conduct, otherwise criminal, not unlawful.”

They argued that the president or anyone acting on the president’s orders are not bound by U.S. laws or international treaties prohibiting torture, asserting that the need for “obtaining intelligence vital to the protection of untold thousands of American citizens” supersedes any obligations the administration has under domestic or international law.

“In order to respect the President’s inherent constitutional authority to manage a military campaign,” the memo states, U.S. prohibitions against torture “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”

Over the course of the next year, disclosures emerged that torture had been used extensively in Iraq for “intelligence gathering.” Investigative journalist Seymour Hersh disclosed in The New Yorker in May 2004 that a 53-page classified Army report written by Gen. Antonio Taguba concluded that Abu Ghraib prison’s military police were urged on by intelligence officers seeking to break down the Iraqis before interrogation.

“Numerous incidents of sadistic, blatant and wanton criminal abuses were inflicted on several detainees,” wrote Taguba.

These actions, authorized at the highest levels, constituted serious breaches of international and domestic law, including the Convention Against Torture, the Geneva Convention relative to the treatment of Prisoners of War, as well as the U.S. War Crimes Act and the Torture Statute.

Ongoing Crimes

These are just a few of the more obvious examples U.S. violations of international law from the earliest days of the invasion of Iraq, for which no one has been held to account. Of course, sadly, the crimes against the Iraqi people continued and intensified over the years.

There was the 2004 assault on Fallujah in which white phosphorus – banned under international law – was used against civilians. There was the 2005 Haditha massacre, in which 24 unarmed civilians were systematically murdered by U.S. marines. There was the 2007 “Collateral Murder” massacre revealed by WikiLeaks in 2010.

While each of the above-mentioned crimes should be dealt with in its own way, it is important to remember the words of American jurist Robert Jackson, who led the prosecutions of Nazi war criminals at Nuremberg. In his opening statement before the international military tribunal on Nazi war crimes, Jackson denounced aggressive war as “the greatest menace of our time.”

Jackson noted that “to start an aggressive war has the moral qualities of the worst of crimes.” The tribunal, he said, had decided that “to initiate a war of aggression … is not only an international crime: it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of whole.”

On this ninth anniversary of the unprovoked war of aggression against Iraq, it is worth keeping those words in mind. It is never too late to bring prosecutions against that war’s chief architects, including Donald Rumsfeld, Condoleezza Rice, Dick Cheney, Karl Rove, Richard Perle, Douglas Feith, and the chief war criminal George W. Bush.

And, of course, on the first anniversary of another legally questionable war – this time in Libya – we should apply those same standards to NATO leaders such as British Prime Minister David Cameron, French President Nicolas Sarkozy and U.S. President Barack Obama.

Report details U.S./NATO war crimes in Libya

A new report by a coalition of human rights groups in the Middle East presents exhaustively researched evidence of war crimes carried out in Libya by the United States and NATO during last year’s intervention.

Basing its work “primarily, and to the greatest extent possible, on information gathered firsthand,” the Independent Civil Society Fact-Finding Mission to Libya carried out “an independent and impartial analysis of all parties’ compliance with their obligations under international human rights law and international humanitarian law.”

In regards to the U.S./NATO military intervention, relevant international law includes the Geneva Conventions’ common Article 3, and the United Nations Charter, which provide for protection of civilians in armed combat and the territorial integrity of sovereign states, respectively.

The Mission found that “a significant percentage of the sites” targeted by NATO “were clearly civilian objects.”

Although NATO had claimed that these sites were converted into military objectives by Gaddafi forces, which in some cases may have used civilian sites as weapons storage or military communications facilities, the report notes that “site investigations conducted by the Mission failed to reveal any traces of weapons, munitions, military or communications equipment, or secondary explosions, other than the remnants of the ordinance used in the destruction of the site.”

Acknowledging that the sites may have been cleaned in the months since the strikes, the Mission “regards it as implausible that all Libyan military debris was cleared, particularly in light of the presence of fragments of NATO ordinance.”

While NATO and Libyan rebel forces regularly claimed that the airstrikes resulted in zero civilian casualties based on the fact that advance warnings were given before bombing, “the Mission finds it difficult to believe that such strikes – which often completely destroyed multi-story buildings – consistently resulted in zero casualties.”

The fact-finding mission also explored questions concerning Security Council Resolution 1973, which purportedly authorized the U.S./NATO intervention in Libya. While the resolution provided authorization to states “to take all necessary measures […] to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya,” the Mission noted that “debate exists regarding the precise meaning of the term ‘all necessary measures’.”

“From first-hand information available to the Mission,” the report states, “it appears that NATO participated in what could be classified as offensive actions undertaken by the opposition forces, including, for example, attacks on towns and cities held by Gaddafi forces.”

Further, “the choice of certain targets, such as a regional food warehouse, raise prima facie questions regarding the role of such attacks with respect to the protection of civilians.”

The report also documents systematic murder, torture, expulsion and abuse of suspected Gaddafi loyalists by the NATO-backed rebel forces of the National Transitional Council. It details the forced expulsion of the mostly black-skinned inhabitants of Tawergha and the persecution of sub-Saharan migrant workers by forces allied to the NTC and its transitional government.

With NATO having ended its intervention in Libya last October, claiming that “the Alliance’s job to protect civilians from attack or the threat of attack in Libya had been done,” it appears that attacks on civilians by the NATO-backed forces continue to take place.

The situation has gotten so bad that the international medical aid group Doctors Without Borders is suspending its mission in the prisons of the Libyan city of Misrata, claiming detainees are being routinely tortured and denied medical attention.

The organization has treated a total of 115 detainees who had been tortured and reported all such cases to Misrata authorities demanding an immediate stop to any form of ill treatment of prisoners. But nothing has changed.

“No concrete action has been taken,” said the organization’s general director Christopher Stokes. “Instead, our team received four new torture cases. We have therefore come to the decision to suspend our medical activities in the detention centers.”

As this blog noted last April, just a couple weeks into the Western intervention in Libya, “as we have seen in Iraq, when an intervention is launched in violation of international law, human rights violations tend to proliferate.”

With the new report by the Independent Civil Society Fact-Finding Mission to Libya, it is now clear how prescient those words were.

Massive protests are planned against a NATO-G8 Summit to be held this May in Chicago. To get involved, visit the Coalition Against NATO/G8 War & Poverty Agenda website.

ICC to investigate NATO and NTC crimes in Libya

In his first address to the UN Security Council since Muammar Gaddafi was killed last month, ICC Chief Prosecutor Luis Moreno Ocampo said on Wednesday that the International Criminal Court will probe serious crimes committed during the Libyan civil war both by fighters loyal to Gaddafi as well as NATO and revolutionary forces.

According to Moreno Ocampo’s prepared remarks to the Security Council,

There are allegations of crimes committed by NATO forces, allegations of crimes committed by NTC-related forces, including the alleged detention of civilians suspected to be mercenaries and the alleged killing of detained combatants, as well as allegations of additional crimes committed by pro-Gaddafi forces. These allegations will be examined impartially and independently by the Office.

The Office was informed that the new Libyan authorities are in the process of preparing a comprehensive strategy to address crimes, including the circumstances surrounding the death of Muammar Gaddafi.    In accordance with the Rome Statute the International Criminal Court should not intervene if there are genuine national proceedings. Should the Libyan authorities decide to prosecute Saif al-Islam Gaddafi and Abdullah al Sanussi for the same crimes under investigation by the International Criminal Court, they should submit an admissibility challenge and it will be for the ICC Judges to decide.

He did not provide details of possible crimes by NATO forces but said his office will examine all allegations “impartially and independently.”

In the final weeks of the war, the Gaddafi regime alleged that 85 civilians were killed in a NATO air strike near town of Ziltan. General Khaled Hemidi filed a lawsuit in a Belgian civil court against NATO for killing his wife and three children in a June airstrike near the town of Surman.

The announcement that ICC would be investigating possible NATO crimes may have come as a surprise to the Security Council, which referred the case of Libya to the ICC on  February 26, 2011 in Resolution 1970. The U.S. State Department has referred to Resolution 1970 as “a comprehensive resolution to respond to the outrageous violence perpetrated by Muammar Qadafi on the Libyan people.”

The language of the resolution, however, does not specify that the Court’s mandate is limited to investigating violence perpetrated by Gaddafi, instead generally “condemning the violence and use of force against civilians.”

Regarding its referral of the situation in Libya since February 15, 2011 to the ICC, the Council recognized that States not party to the Rome Statute that established the Court had no obligations to it, but urged all governments to cooperate fully with the Court’s prosecutor.

When Moreno Ocampo, announced on May 16 that he would seek an arrest warrant for Muammar Gaddafi, the U.S./NATO alliance intensified its bombing campaign against the beleaguered North African nation.

As CNN reported,

Crowds in Tripoli gathered Tuesday morning outside two burning buildings, the aftermath of what a Libyan official said were NATO airstrikes on government facilities. Spokesman Musa Ibrahim said the buildings housed the Ministry of Popular Inspection and Oversight – a government anti-corruption body – and the head of the police force in Tripoli.

“Is this NATO’s protection of civilians or terrifying civilians,” a Gaddafi loyalist asked CNN reporters. “This is a civilian neighborhood. … Residents are terrified.”

Ironically, NATO leaders used the ICC’s arrest warrant against Gaddafi as a sort of tacit authorization for NATO to intensify its bombing campaign in the country.

The Christian Science Monitor reported on May 17, “The potential that the International Criminal Court (ICC) could issue an arrest warrant for Libyan leader Muammar Qaddafi … could give NATO more latitude to target the dictator directly.”

“So far,” the Monitor reported,

NATO airstrikes have focused on military targets – this morning they hit two government buildings in Tripoli, including the Interior Ministry. However, the head of Britain‘s military said on Sunday that NATO needed authorization to also strike infrastructure targets. There is speculation that the ICC warrants could justify NATO efforts to target Qaddafi, rather than simply to “protect Libyan civilians under threat of attack.”

Now that Gaddafi has been killed an apparent extrajudicial execution, the ICC is preparing “to withdraw the warrant against Muammar Gaddafi and to end the case against him,” according to Moreno Ocampo. But to the ICC’s credit, the investigation is still open into other war crimes that may have been committed by NATO and its allies in the Libyan National Transitional Council.

NATO mission in Libya ending, despite ongoing attacks on civilians

Anti-Gaddafi rebels rejecting foreign intervention in the early days of the civil war

The hypocrisy of the seven-month U.S./NATO mission in Libya is being laid bare by the announcement to end the mission in spite of ongoing attacks against civilians — in this case civilians who are considered loyal to the Gaddafi regime.

As Human Rights Watch reported on Sunday,

Militias from the city of Misrata are terrorizing the displaced residents of the nearby town of Tawergha, accusing them of having committed atrocities with Gaddafi forces in Misrata, Human Rights Watch said today. The entire town of 30,000 people is abandoned – some of it ransacked and burned – and Misrata brigade commanders say the residents of Tawergha should never return.

Human Rights Watch interviewed dozens of Tawerghans across the country, including 26 people in detention in and around Misrata and 35 displaced people staying in Tripoli, Heisha, and Hun. They gave credible accounts of some Misrata militias shooting unarmed Tawerghans, and of arbitrary arrests and beatings of Tawerghan detainees, in a few cases leading to death.

Despite these abuses against civilians, NATO’s mission ends tonight at one minute to midnight local time, following a unanimous vote in the UN Security Council on Thursday to lift the no-fly zone and terminate the mandate for NATO’s mission in the North African country.

Voice of America, the official external broadcast of the U.S. government, reported last week that the mandate was expiring amid sharp Security Council divisions “over NATO intervention in a civil war that went on much longer than Western nations had expected.”

The Security Council had authorized NATO seven months ago “to enforce a no-fly zone and take ‘all necessary measures’ to protect Libyan civilians from government forces as then-leader Moammar Gadhafi moved to crush a growing uprising against his rule,” VoA reported.

This, however, is not entirely true.

The Security Council resolution purportedly authorizing NATO’s intervention did not, as Voice of America claims, specify anywhere that it was intended to “protect Libyan civilians from government forces.” The language instead authorized Member States,

to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council; …

Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians;

Despite the call “to protect civilians and civilian populated areas under threat of attack,” now that civilians are coming under attack by the forces that NATO has supported for the past seven months, the civilians are apparently on their own.

This behavior follows a pattern in which the U.S. and NATO allies from the onset of the Libyan civil war construed their authority to intervene in Libya as synonymous with authority to overthrow Gaddafi.

In a joint op-ed, U.S. President Barack Obama, French President Nicolas Sarkozy and UK Prime Minister David Cameron wrote,

[S]o long as Qaddafi is in power, NATO must maintain its 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. In order for that transition to succeed, Qaddafi must go and go for good.

Further, although they were mandated to “protect civilians” from the earliest days of the conflict, they dismissed any reports of civilian casualties on the part of NATO bombing as simply propaganda from the pro-Gaddafi side, and unilaterally declared that Gaddafi must be overthrown in order to “protect civilians.”

Now that it is becoming increasingly clear that the side that NATO has been supporting in this civil war is perhaps just as guilty of carrying out atrocities against civilians, there is relative silence from the Western powers.

The latest reports from Human Rights Watch come just a week after the human rights group found 53 decomposing bodies outside of a hotel in Sirte, the last Gaddafi stronghold to fall to the rebel forces. The victims, all apparent Gaddafi supporters, had been bound and summarily executed the previous week.

The State Department urged an investigation, but the point appeared to be lost that these sorts of human rights violations may be the direct result of an intervention launched arguably in violation of the resolution that purportedly authorized it.

The Arab League, which had tentatively lent support to Resolution 1973, promptly objected to the bombing campaign, the day after it began. “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.

In abstaining from the Security Council resolution authorizing the “no-fly zone” back in March, the Brazilian ambassador explained her government’s rationale: “We are not convinced that the use of force as provided for in operative paragraph 4 of the present resolution will lead to the realization of our common objective — the immediate end of violence and the protection of civilians,” said Maria Luiza Riberio Viotti.

The ambassador added that Brazil was also concerned that the measures approved might have the unintended effect of exacerbating the current tensions on the ground and “causing more harm than good to the very same civilians we are committed to protecting.”

Perhaps next time the U.S. is clamoring for intervention in a foreign land, these voices of reason will be listened to rather than ignored.

Libyan human rights violations a predictable result of U.S./NATO intervention

With the bodies of dozens of Muammar Gaddafi loyalists found at a hotel in the Libyan city of Sirte after apparently being executed en masse, Human Rights Watch (HRW) is calling on Libya’s National Transitional Council (NTC) to launch an investigation into the apparent mass execution in order to bring those responsible to justice.

“We found 53 decomposing bodies, apparently Gaddafi supporters, at an abandoned hotel in Sirte, and some had their hands bound behind their backs when they were shot,” said Peter Bouckaert, emergencies director at Human Rights Watch, who investigated the killings. “This requires the immediate attention of the Libyan authorities to investigate what happened and hold accountable those responsible.”

HRW said the victims died about a week ago. The atrocity, however, has been overshadowed by the killing of Muammar Gaddafi himself, in what looks increasingly like a blatant extrajudicial execution.

HRW has also called for an investigation into the death of Gaddafi, saying that the NTC “should promptly open an independent and impartial investigation with international participation into the deaths of the former leader Muammar Gaddafi and his son Muatassim Gaddafi.”

“There is ample evidence to open a credible investigation into the deaths of Gaddafi and his son Muatassim,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Finding out how they died matters. It will set the tone for whether the new Libya will be ruled by law or by summary violence.”

It is apparent though that despite the pleas of the human rights community, there is little sympathy in the West — and the U.S. in particular — for any sort of inquiry into the violations of international law that may have occurred in the process of overthrowing the Gaddafi regime. U.S. Secretary of State Hillary Clinton was even captured on video laughing about the execution of Gaddafi, saying, “we came, we saw, he died.”

The U.S. attitude expressed by its highest diplomat is emblematic of the attitude expressed from the beginning of this intervention, which was initially justified by a UN Security Council Resolution that authorized NATO to implement a no-fly zone to protect civilians. This authorization was then construed by Western leaders to justify a policy of regime change, even though this was decidedly not authorized by the UN Security Council.

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.

Two weeks after this op-ed was published, on April 30, NATO attempted to take out Gaddafi with a missile attack on a residence in Tripoli, which killed his youngest son Saif al-Arab and three of his grandchildren. Gaddafi and his wife were apparently in the home, but survived the attack. Saif al-Arab was reported to be a 29 year-old student and a civilian.

In response, Ohio Congressman Dennis Kucinich said that “NATO’s leaders have blood on their hands.”

NATO’s airstrike seems to have been intended to carry out an illegal policy of assassination. This is a deep stain which can never fully wash. This grave matter cannot be addressed with empty words. Words will not bring back dead children. Actions must be taken to stop more innocents from getting slaughtered.

Today’s attack underscores that the Obama Doctrine of so-called humanitarian intervention appears to be a cover for regime change through assassination and murder.

After months of bombing and fighting, NATO and the anti-Gaddafi armed rebels finally took control of Tripoli in late August, but it soon became clear that Gaddafi loyalists still had a holdout in the country, in Sirte, Gaddafi’s birthplace.

As ex-British Ambassador Craig Murray noted at the time, NATO further twisted the United Nations’ mandate “to protect civilians” in Libya into an excuse to not only remove Gaddafi from power but also kill his supporters, both military and civilian. Murray wrote at Consortiumnews that this Orwellian logic was then used for crushing of the town of Sirte, the last Gaddafi stronghold:

There is no cause to doubt that, for whatever reason, the support of the people of Sirte for Gaddafi is genuine. That this means they deserve to be pounded into submission is less obvious to me.

The disconnect between the UN mandate “to protect civilians” while facilitating negotiation, and NATO’s actual actions as the anti-Gaddafi forces’ air force and special forces, is startling. …

It is worth reminding everyone something never mentioned, that UNSCR 1973 which established the no-fly zone and mandate to protect civilians had “the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution.”

That is in Operative Para 2 of the Resolution.

Plainly the people of Sirte hold a different view than the “rebels” as to who should run the country. NATO has in effect declared being in Gaddafi’s political camp a capital offence.

There is no way the massive assault on Sirte is “facilitating dialogue.”  It is rather killing those who do not hold the NATO approved opinion. That is the actual truth. It is extremely plain.

In August, the United Nations began speaking against the NATO assault, especially following the bombing of a television station.

UN official strongly condemned a NATO airstrike targeting the headquarters of Libyan State TV, in a bombing that Libyan officials say resulted in the deaths of journalists and civilians.

“I deplore the NATO strike on Al-Jamahiriya and its installations,” UNESCO Director-General Irina Bokova said following the attack.

“Media outlets should not be targeted in military actions,” she said. “U.N. Security Council Resolution 1738 (2006) condemns acts of violence against journalists and media personnel in conflict situations.”

Bokova said the NATO bombings were “contrary to the principles of the Geneva Conventions,” which she said have established the civilian status of journalists in times of war, even if they engage in propaganda. She noted that the NATO strikes killed three journalists and wounded 21 others.

UN Secretary General Ban Ki-Moon weighed in on Aug. 11, offering some of his strongest remarks on the NATO operation in Libya, saying through a spokesperson that he was “deeply concerned by reports of the unacceptably large number of civilian casualties.”

“The Secretary General calls on all parties to exercise extreme caution in their actions, in order to minimize any further loss of civilian life,” the statement said.

On August 23, following the rebels’ takeover of Tripoli, Fred Abrahams, a special adviser at Human Rights Watch coordinating the organization’s coverage of the Libya crisis, wrote:

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. …

It is clear today that many in the “newly liberated” Libya are now fearful of their new leaders, and unhappy with the way they disposed of Gaddafi without even a trial:

While human rights groups may now express surprise, shock and disappointment that the U.S./NATO-led intervention in Libya is leading to unintended consequences, and may even represent a step back for human rights in the beleaguered North African nation, none of it should come as a surprise.

As this blog noted last April, just a couple of weeks after the U.S. and NATO intervened in the Libyan civil war, “when an intervention is launched in violation of international law, human rights violations tend to proliferate.”

Click here for more of the Compliance Campaign’s Libya coverage.

Questions grow over legality of NATO’s war in Libya

Increasing numbers of commentators are coming to the realization that the U.S./NATO intervention in the Libyan civil war exceeds the UN mandate that originally authorized the establishment of a no-fly zone in order to protect Libyan civilians, and is therefore illegal. As veteran war correspondent Chris Hedges — who initially supported the efforts to stop Gaddafi forces from entering Benghazi six months ago —  writes today at Truthdig,

The NATO airstrikes on the city of Sirte expose the hypocrisy of our “humanitarian” intervention in Libya. Sirte is the last Gadhafi stronghold and the home to Gadhafi’s tribe. The armed Libyan factions within the rebel alliance are waiting like panting hound dogs outside the city limits. They are determined, once the airstrikes are over, not only to rid the world of Gadhafi but all those within his tribe who benefited from his 42-year rule. The besieging of Sirte by NATO warplanes, which are dropping huge iron fragmentation bombs that will kill scores if not hundreds of innocents, mocks the justification for intervention laid out in a United Nations Security Council resolution.

The U.N., when this began six months ago, authorized “all necessary measures … to protect civilians and civilian populated areas under threat of attack.” We have, as always happens in war, become the monster we sought to defeat. We destroy in order to save. Libya’s ruling National Transitional Council estimates that the number of Libyans killed in the last six months, including civilians and combatants, has exceeded 50,000. Our intervention, as in Iraq and Afghanistan, has probably claimed more victims than those killed by the former regime. But this intervention, like the others, was never, despite all the high-blown rhetoric surrounding it, about protecting or saving Libyan lives. It was about the domination of oil fields by Western corporations.

Former British Ambassador Craig Murray recently noted at Consortiumnews that NATO’s attack on Sirte, a city where leader Muammar Gaddafi still has widespread support, calls into question the very basis for the Western intervention:

There is no cause to doubt that, for whatever reason, the support of the people of Sirte for Gaddafi is genuine. That this means they deserve to be pounded into submission is less obvious to me.

The disconnect between the UN mandate “to protect civilians” while facilitating negotiation, and NATO’s actual actions as the anti-Gaddafi forces’ air force and special forces, is startling. …

It is worth reminding everyone something never mentioned, that UNSCR 1973 which established the no-fly zone and mandate to protect civilians had “the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution.”

That is in Operative Para 2 of the Resolution.

Plainly the people of Sirte hold a different view than the “rebels” as to who should run the country. NATO has in effect declared being in Gaddafi’s political camp a capital offence.

There is no way the massive assault on Sirte is “facilitating dialogue.”  It is rather killing those who do not hold the NATO approved opinion. That is the actual truth. It is extremely plain.

Belgian philosopher Jean Bricmont recently stated on RT America that as it pertains to the Libyan conflict, “international law is dead.”

As Bricmont and Diana Johnstone recently wrote at Counterpunch.org,

On March 17, the UN Security Council adopted Resolution 1973 which gave that particular “coalition of the willing” the green light to start their little war by securing control of Libyan air space, which was subsequently used to bomb whatever NATO chose to bomb. The coalition leaders clearly expected the grateful citizens to take advantage of this vigorous “protection” to overthrow Moammer Gaddafi who allegedly wanted to “kill his own people”.  Based on the assumption that Libya was neatly divided between “the people” on one side and the “evil dictator” on the other, this overthrow was expected to occur within days.  In Western eyes, Gaddafi was a worse dictator than Tunisia’s Ben Ali or Egypt’s Mubarak, who fell without NATO intervention, so Gaddafi should have fallen that much faster.

Five months later, all the assumptions on which the war was based have proved to be more or less false. Human rights organizations have failed to find evidence of the “crimes against humanity” allegedly ordered by Gaddafi against “his own people”.  The recognition of the Transitional National Council (TNC) as the “sole legitimate representative of the Libyan people” by Western governments has gone from premature to grotesque.  NATO has entered and exacerbated a civil war that looks like a stalemate.

With nearly a thousand people killed in Gaddafi’s home town of Sirte in recent days, it is becoming increasingly clear that an even greater bloodbath may loom. Ali Tarhouni, a senior official of the NATO-backed rebels, was quoted by the Associated Press as saying “Sometimes to avoid bloodshed you must shed blood – and the faster we do this the less blood will be shed.”

NATO’s rebels set a four-day deadline for Gaddafi’s remaining strongholds, including Sirte, to surrender or face a final crushing military strike.

The deadline for surrender came and went yesterday with no signs of a truce, and fighters began planning to enter the towns of Sirte and Bani Walid, the last pro-Gaddafi strongholds. Whatever lays in store for the future, it is safe to assume that with international law cast aside from day one, human rights and international norms will not be high on the list of priorities.

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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