F-16 IN RECONNAISSANCE OVER THE DESERT
NATO free-hand in the former Libyan Jamahiriya (1977-2011) marked the culmination of a series of duel-tier interventions designed to safeguard civilian populations and stabilise the international climate. Comprising Kosovo (1999), Afghanistan (2003) and now Libya (2011), the alliance has expanded its security coverage over an array of state and sub-state elements as part of an overhaul of its raison d’état in the aftermath of the liquidation of the Soviet Union. Though the morality of the NATO-spearheaded intervention cannot be contested, its legality has been subject to controversy. Mainstream international law (ius inter gentes) sanctioned the use of ‘all necessary measures’ (via Chapter VII Security Council Resolution S/RES/1973) to safeguard civilians. As the Security Council effectively monopolises the legal use of force, the Resolution suffices as a legal basis for the intervention. Yet there is a substantive conflict with humanitarian intervention and a fundamental legal contour in international law; that of sovereignty. Both sovereignty and the principle of non-intervention form an integral part of customary international law (ius gentium). Reconciling this contradiction will not only enhance the saliency of humanitarian intervention for the future but also alleviate fears that NATO has contravened its international obligations.
NATO alignment in favour of the Benghazi rebels (and their political counterpart the National Transitional Council) in lieu of neutrality was viewed by many as incompatible with international law. Both the African Union and several Libyan tribal myriads encompassing the Magarha, Qaddafha and Warfallah, expressed indignation for NATO’s manoeuvres, in what they considered essentially a neo-colonial enterprise (1). The notion that intervention is illegal is founded, inter alia, on the seminal case of Nicaragua 1984, where the ICJ held that the ‘United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State’ (2). Supplanting Nicaragua for Libya and the Contras for the Libyan rebels, it appears that prima facie, favouring the centripetal insurrection was a customary legal breach both as it vitiated Libyan territorial integrity and selectively favoured the rebels over the general population. This is aggravated by the fact that general intervention is proscribed both by article 2(7) of the UN Charter and provisions of the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation between States, which NATO states are party to (3). Notwithstanding allegations of arms ferrying to the rebels (in breach of the arms embargo) and deployment of troops,(in breach of the no foreign occupation forces provision), it appears that at first sight, NATO sorties were de facto incompatible with the non-intervention norm and thereby in conflict with customary international law.
However, customary international law is saturated with lacuna conferring substantial latitude to circumvent the norm and thereby allay NATO’s legal standing. In the same case an, the ICJ stipulated that “[r]eliance by a State on a novel right or an unprecedented exception to the principle [such as humanitarian intervention] might, if shared in principle by other States, tend towards a modification of customary international law’ (4). S/RES/1976 was not vetoed d was entertained by the BRIC Group and Germany with quiescence. In the context of international law, neutrality of this nature is interpreted as a passive form of consent. The ICJ further intimated that intervention by a coalition of states in contravention of the norm of non-intervention could only be justified if there was a “reference to a new right of intervention or a new exception to the principle of its prohibition.” This ‘new right of intervention’ is the R2P mechanism (Responsibility to Protect) inaugurated by the 2005 World Summit and that formed the normative framework of S/RES/1976 that authorised NATO’s feat accompli in the Maghreb. Similarly, objections levied by the African Union against intervention hold no legal effect as it was the very same organisation that endorsed the R2P mechanism in 2005 during the Ezulwini Consensus. Thus, though customary international law would traditionally uphold the 1648 Westphalian formula, the combination of unique circumstance (the Arab Spring) and neutrality by third-party states, coupled with the capability to inculcate humanitarian intervention into international law, overrides the non-intervention norm and expiates NATO’s action.
Even from a theoretical vantage, the intervention in Libya was commensurate with Chapter VII rationale to “restore international peace and security” (5). One of the preliminary articles proposed by Kant for perpetual peace is that “No state shall by force interfere with the constitution or government of another State’ (6)-a necessary contour to sustain amity in the international comity and a source of inspiration for the UN. However Kant places a caveat to his own article that is fruitful in vindicating NATO partisanship- ‘But it would be quite different if a state, by internal rebellion, should fall into two parts each of which pretended to be a separate state making claim to the whole. To lend assistance to one of these cannot be considered an interference in the constitution of the other state (for it is then in a state of anarchy)’ (7). By this token, favouring the NTC was legitimate. NATO intervention was initiated on the 19 March 2011, only after the Benghazi-based NTC had issued a statement (5 March 2011) declaring itself to be the “only legitimate body representing the people of Libya and the Libyan state” (8). As the Libyan state had effectively lapsed into two competing factions (originally Benghazi-Tripoli then Benghazi-Sirte), NATO alignment in favour of the rebels conformed even to Kantian ideals.
Having thus harmonised humanitarian intervention with international law, it is imperative to highlight potential side-effects. Customary international law is liable to sensitive dependence on initial conditions (the butterfly effect). Acclimatising states to novel norms of this nature may subsequently jeopardise global security if founded on miscellaneous grounds and emulated with less bona fide intent for private ends (lucri causa) under the pretext of humanitarian intervention. This notion, supported by the FCO in 1986, is still valid today-“contemporary legal opinion comes down against the existence of a right of humanitarian intervention/ on prudential grounds that the scope for abusing such a right argues strongly against its creation’. (9) Similarly, the fusion of humanitarian sensibility with the use of force can lead to the sublimation of international aggression. Sublimation is a psychological phenomenon whereby one renders one’s natural impulses and instincts into socially acceptable outcomes. This has a multitude of tangible benefits for NATO as a military alliance but can have a malign effect on general interstate interface. Due to the expiration of its original purpose, NATO is in need of a rationale to revitalize and support its military outlook. By associating NATO action with humanitarian action it renders its continued existence more palatable to its citizens, placating the democratic and liberal contours it was founded on during the 1949 Washington Treaty. However, affiliating in this fashion can also distort the true nature of interstate violence. Caution is therefore necessary in ensuring that humanitarian intervention is not used as a pretext for aggrandisement and as a smokescreen concealing the genuine nature of international force.
The Libyan intervention has blurred the Mogadishu line, the subtle delimitation between diplomacy (such as the no fly-zone), war (NATO air strikes) and international law. But unlike domestic law whose provisions are stable, international law is labile and capable of habituating humanitarian intervention. The sedition in Libya was not only an opportunity for NATO to redeem itself, but also the opportunity to foment the seeds of a new legality, one that would place conditions on sovereignty and modify the status quo. But the success of future humanitarian intervention and in particular, the R2P mechanism, is contingent on end-user felicity. Only time will tell if humanitarian intervention was fruitful in Libya and if it will eventually evolve into a full-fledged legal contour.
BY RAYMOND ABOU-MANSOUR [PELECANOS] FOR TRANSNATIONAL CRISIS PROJECT
FOOT NOTES -
(1) An encyclical was published by a Warfalla headed- Libyan Tribal Council on the 26 July 2011 condemning NATO action. Retrieved from http://www.afrik53.com/Libye-manifeste-du-Conseil-Tribal-Libyen_a6094.html (in french)
(2) The principle of non-intervention is also supported by UNSC Resolution 2131 (XX) 1965, containing the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and augmented by Resolutions 31/91 of 14 December 1976, 32/153 of 19 December 1977, 33/74 of 15 December 1978, 34/101 of 14 December 1979 and 35/159 of 12 December 1980 on non-interference in the internal affairs of States.
(3) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
(4) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
(5) http://www.un.org/en/documents/charter/chapter7.shtml
(6) Kant, Immanouel, 1795 essay, “Perpetual Peace: A Philosophical Sketch” (Zum ewigen Frieden. Ein philosophischer Entwurf).
(7) Kant, Immanouel, 1795 essay, “Perpetual Peace: A Philosophical Sketch” (Zum ewigen Frieden. Ein philosophischer Entwurf).
(8) The Interim Transitional National Council Decree 3, published 5 March 2011 Retrived from http://www.ntclibya.org/english/founding-statement-of-the-interim-transitional-national-council/
(9) United Kingdom Foreign Office, Pol’y Doc. No. 148, reprintedin 1986 BRIT. Y.B. INT’L L. 614,619
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