Sunday, March 20, 2011

The Elusive Aim for Regime Change in UNSCR 1973

Just as any thinking person cannot help but identify with the demonstrators for constitutionalism and parliamentary self-government everywhere throughout our Arab Spring, this lover of liberty empathizes with the Libyan rebels who wish to oust the bizarre, sadistic one-man revolution of Colonel Muammar el-Qaddafi. I would have preferred to have seen Qaddafi go relatively peacefully like Ben Ali and Mubarak, I would have preferred to see the Libyan insurrectionists overthrow their tyrannical regime with their own hands. Obviously neither of those scenarios were fated to be, and now apparently the only way to prevent the massacre of rebel forces and Libyan civilians by the Qaddafi loyalists is with some form of foreign military intervention.

The legal internationalist should have been opposed to unilateral U.S. intervention in Libya without a casus belli of self-defense, without authorization by the United Nations as it would have been a violation of international law. Likewise, I would have registered my doubts if France, Britain, or the Arab League were to intervene under such terms. However, now that the Security Council has just passed UNSCR 1973, concerns about illegal warfare should be largely assuaged. So long as the U.S. or any other foreign country wishes to intervene in Libya in accordance with the U.N. mandate, the matter of a no-fly zone is no longer a debate of de jure legality but one of normative politics and logistics. As the U.S. Air Force and Navy intervene, the objective rationalist should hope that they can get the job done with as few casualties and with as little cost as possible. The question remains though; what precisely does this job entail?

Now that the U.N. mission in Libya is a reality, cheerleaders of military intervention would be wise to temper their populist fervor by carefully reading the exact text of United Nations Security Council Resolution 1973. UNSCR 1973 is the follow-up to UNSCR 1970 passed on February 26th which

1) referred the situation in Libya to the International Criminal Court for investigations of war crimes, crimes against humanity and genocide;

2) instituted an embargo of arms transfers to Libya, Libyan arms exports, and the movement of mercenaries to fight in Libya;

3) imposed travel bans 17 Jamahiriyah figures and enacted asset freezes on Colonel Qaddafi and his sons;

4) called on U.N. members states to contribute humanitarian assistance to Libyan civilians.

As far as U.N. sanctions go, even the preliminary USCR 1970 was just about as strong as they come; it essentially revived the bulk of the U.N. sanctions imposed on Libya in UNSCR 748 (1992) and 883 (1993) in the wake of Tripoli’s sponsorship of the Lockerbie bombing and eventually eased from 1998 to 2003.

UNSCR 1973 tightens the screws on Qaddafi a bit further. The Resolution contains a range of operative clauses which authorize limited foreign intervention operations – with the politically neutral, strictly humanitarian objective of reducing civilian casualties. With 1973, the Security Council…

1. “Demands the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians”...

2. Authorizes Member States “to take all necessary measures”… “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…”

6. “Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to protect civilians”... (i.e. flights with a military purpose, explicitly excepting flights with humanitarian passengers or cargo)

8. “Authorizes Member States… to take all necessary measures to enforce compliance with the ban on flights…”9. Calls upon Member States to provide assistance with the implementation of the no-fly zone and protection of civilian populations, including the use of air bases and airspace

13. Calls upon Member States “to ensure strict implementation of the arms embargo” established in UNSCR 1970 by inspecting vessels and aircraft in their seaports, airports and territorial waters bound to or from the Libyan Arab Jamahiriya

16. Calls upon Member States to take action to enforce UNSCR 1970’s ban on the import of mercenaries from their own respective populations or traveling through their territories bound for Libya

17 and 18. ...and to enforce the air embargo on the Libyan Arab Jamahiriyah
UNSCR 1973 calls for enforcement mechanisms of the arms embargo, mercenary embargo, air embargo and financial sanctions previously laid out in UNSCR 1970. UNSCR 1973 strengthens the Security Council’s prior ultimatums to Libya with demands for a cease-fire. And most dramatically, UNSCR 1973 includes a mandate for foreign military intervention, calling for U.N. Member States “take all necessary measures” “to protect civilians and civilian populated areas under threat of attack” and to enforce the no-fly zone. Period.

This resolution authorizes an agenda which should satisfy the self-ascribed humanitarian interventionists whose objective begins and ends at the prevention of civilian casualties. The no-fly zone applies to the Qaddafi loyalists as well as the Benghazi rebels alike – technically. But obviously it was intended to be enforced against the only faction in the Libyan Civil War which is employing Air Force bombers and heavy artillery against civilian populations. UNSCR 1973 was quite patently constructed for enforcement against only one side to the dispute, and it would be a fair bet to assume that there will be little to no incidence of coalition air strikes against Libyan rebels who might be in violation of the so-called cease-fire.

Though this Resolution might yet tilt the civil war in the rebels’ favor, let’s not get carried away to think that the Security Council has just authorized regime change in Tripoli. UNSCR 1973 does not authorize Member States to take action against Libyan military targets unrelated to the enforcement of a cease-fire, the implementation of the no-fly zone or the protection of civilians. It does not authorize France to bomb Libyan Army barracks full of soldiers engaged in calisthenics training. It does not authorize Britain to provide air cover for a rebel offensive on loyalist-held territory; it does not allow anyone to fight the Benghazi rebels’ civil war for them. Just as the George H.W. Bush administration refrained from marching onto Baghdad as such a move would have exceeded Operation Desert Storm’s narrow U.N. mandate to eject Iraqi forces from Kuwait, the coalition amassing to intervene in Libya cannot legally expand its objective to regime change in Tripoli.

Yet for some reason (perhaps these same Neoconservative interventionists’ dissatisfaction with the outcome of the first Gulf War) I don’t think that the present day Libya hawks would sit content with an endgame that leaves Colonel Qaddafi in power.

John McCain – one of the first major outspoken proponents of a no-fly zone – makes no bones about its final cause: “If you want Qaddafi to go, then one of the steps – among many – would be to establish a no-fly zone…”

Joe Lieberman conflates the objective of preventing civilian casualties with supporting the rebels and regime change:

“The president has made clear that Gadhafi’s got to go; he’s no longer the legitimate leader of Libya, and the question is what are we going to do to help make sure that Gadhafi goes as quickly as possible because the danger here is that this is going to become a bloody stalemate, a civil war, a bloody civil war...”
Iraq War architect Paul Wolfowitz calls for not just a no-fly zone in Libya, but for the U.S. to recognize the National Council in Benghazi as the legitimate government of Libya, providing the rebels with arms, supplies and direct military intervention:

Recognizing the new National Council would affect the psychology of both Gadhafi's cronies and his brave opponents. Ending the mixed signals sent by U.S. hesitation over recognition would end any possibility of rehabilitating Gadhafi if he wins. Absurd as that may sound to us—particularly after President Obama has declared that Gadhafi must go—this is probably the outcome that Gadhafi's cronies hope for, and that his opponents most fear.
David Frum – who wrote some of the Bush administration’s seminal speeches on regime change in Iraq and who himself laid the case for regime change in Iran and Syria – draws the argument for intervention directly to the need to oust the Libyan government:

“Gadhafi’s departure from power in other words is not just a requirement of humanity and decency. It’s not only justice to the people of Libya. It is also essential to American credibility and the stability of the Middle East region.”
My intent in harping upon this point is not to draw a straw man argument but to elucidate the U.S. Libya hawks’ intentions. It seems that there are two camps in this present discourse who have been clamoring for a no-fly zone. The first camp would be the liberal humanitarians who are concerned exclusively with the prevention of civilian casualties, who could be content with the Libyan rebels putting down their arms and the partition of Libya into a provisional rebel territory based in Benghazi and a Qaddafi rump state in Tripoli. The second faction for a no-fly zone is that of the Neoconservative hawks who embrace the language and purported objectives of the liberal humanitarians but make it clear that they do intend for the U.S. to take sides in this conflict, and that a no-fly zone is only the preliminary action that ought to be taken as part of a larger campaign to oust Qaddafi. This is notable because UNSCR 1973 explicitly only authorizes foreign military intervention to attain the goals of the liberal humanitarians, and the broader goals of regime change and democratization in the Arab world which the Neocons espouse – as desirable as they might be – go far beyond the scope of the U.N. mandate.

As for yours truly, I could not help but empathize with the Wolfowitz, McCain, et al.’s dream of establishing constitutional monarchies, republican and parliamentary regimes which derive their moral authority to lead from the popular will from Kabul to Baghdad to Tripoli. I agree with the liberal sentiment that the blossoming of democracy and free markets in repressed authoritarian societies should sow the seeds for peaceful change and political moderation, that the demise of states like Qaddafi’s nightmarish Jamahiriyah should lead to the stabilization of the region, undercut the appeal of Islamic fundamentalism and reduce the threat of anti-American terrorism in the long run. And by the way, regime change in Tarabulus is what a good plurality the Libyan people apparently want – it is certainly a desirable end. Regardless, there is no way to read the relevant documents of international law (namely the United Nations Charter, UNSCR 1970 and UNSCR 1973) and conclude that signatory U.N.O. Member States such as the U.S. can simply declare war on Libya and overthrow Colonel Qaddafi on a whim.

It would be perfectly plausible for the Obama administration to heed Wolfowitz’s advice and follow the lead of France and Portugal in recognizing the National Council in Benghazi as the legitimate government of Libya. Such a move would allow the administration to abide by myriad U.S. restrictions on military and economic aid to the Benghazi regime – though it would not make it any easier for the U.S. to exercise decisive force on Tripoli to bring a quick end to the Qaddafi regime. So long as the United Nations recognizes the Jamahiriyah as the legitimate government of Libya and Muammar el-Qaddafi as its legitimate ruler, the United Nations Charter stands in the way of a legal NATO-Arab League operation to subvert the Tripoli regime.

Though imagine if the following events – all perfectly plausible – were to precipitate in New York, Cairo and Benghazi over the course of this week:

1) After recommendation from the Security Council, the Arab League and the African Union member states were to sponsor a General Assembly resolution calling for the expulsion of the Great Socialist People’s Libyan Arab Jamahiriyah from the U.N.O. – which they can do according to Chapter II, Article 6 of the United Nations Charter. It passes.

2. Those same Arab League, African Union countries sponsor a second General Assembly resolution calling for the recognition of the National Council in Benghazi as the legitimate government of Libya. It too passes.

3) The newly-recognized Libyan government in Benghazi were to appoint a new Ambassador to the U.N. (perhaps Mohammad Shaghash, the Ambassador who recently defected from Tripoli)

There is something of a precedent for this. The Republic of China led by Chiang Kai-Shek joined the United Nations Organization as one of its founding members in 1945, the U.N. continued to recognize the R.O.C. governmentin Taiwan as the rightful representatives of all of China until 1971. By that time when the Chinese Civil War had been long settled in favor of Mao Tse-tung and his Red Army, the General Assembly passed Resolution 2758, which concluded:

"the representatives of the Government of the People's Republic of China are the only lawful representatives of China to the United Nations and that the People's Republic of China is one of the five permanent members of the Security Council,"
Furthemore, the General Assembly decided:

"to restore all its rights to the People's Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-Shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it.”
UNGAR 2758 effectively stripped the R.O.C. from membership in the U.N.O. and transferred its General Assembly and permanent Security Council seats to the People’s Republic of China.

If the General Assembly were to expel the Great Socialist People’s Libyan Arab Jamahiriyah from the U.N.O. and replaced with representatives of the regime in Benghazi, as far as international law goes, we’d be talking about a whole new ballpark. If the provisional government in Benghazi is recognized by the U.N. as the legitimate government of all of Libya, Qaddafi’s armies would then be just another non-state militant group with no legal standing akin to the I.R.A., P.L.O., the Janjaweed, etc. which Tripoli propped up at one time in the past. Perhaps the Qaddafi-loyalist Libyan Army, Libyan Navy and Libyan Air Force could even be classified as terrorist organizations (as the U.S. now classifies the Iranian Revolutionary Guards) and thus any government aiding or abetting them financially or otherwise could be designated as a State Sponsor of Terrorism…

If – under such circumstances – the Libyan Ambassador to the U.N. were to call upon the aid of fellow Member States to come to his nation’s protection, there would be very little in the wide corpus of international law standing in our way to shower Benghazi with guns, ammunition, tanks and artillery. The legitimate Libyan government could call upon U.N., Arab League and African Union member-states to come to its aid against an existential threat just like Saudi Arabia and Kuwait did in 1990. A joint NATO-Arab League-African Union coalition could perfectly legally and with the fully nationalist legitimacy of the pan-Arabist, pan-Africanist regional organization defend the rightful Libyan government in Benghazi and help them to quash the “rebellion” in the Tripolitania.

Nevertheless, now that a truly multilateral military intervention in Libya has explicit Security Council authorization and de jure legality, this blogger is still concerned about the doctrinal repercussions. Yes we can intervene, but why ought we intervene in Libya? Is it because the international community has an obligation to strike against states in order to prevent gross human rights abuses and crimes against humanity? If that is the case, what makes the atrocities in Libya worthy of a U.N.-enforced no-fly zone – but not the atrocities in Darfur or the Gaza Strip? Let’s suppose that the people of Bahrain and Yemen were to call upon the U.N. to send peacekeeping forces to protect their nonviolent demonstrations from being massacred by their own totalitarian states – under what doctrine of protecting civilians must the U.N. intervene in Libya but not Bahrain and Yemen?

The established doctrines of military intervention might need some significant revision in the wake of newly-christened Operation Odyssey Dawn – especially if the Obama administration were to heed the advice of Wolfowitz, Lieberman, et al. and wholeheartedly take the side of the Benghazi rebels in the Libyan Civil War. The U.S. has conducted regime change under the ostensible rationales of containing thwart Communist aggression and preventing state-sponsored terrorist attacks. Though in this circumstance there isn’t the slightest pretense of intervening in order to prevent acts of aggression against American national security interests. G.A. Resolution 2785 only recognized the outcome of the Chinese Civil War 22 years after the fact. Is the United States now obligated to intervene in every single conflict between an undemocratic regime and a popular movement opposed to it and to always side with the latter? Is the Arab League, the African Union, NATO and United Nations? Or are we only obligated to take sides in civil wars against dictators like Qaddafi whom we have always disliked?

If the Obama administration were to invoke the international law of the United Nations Charter and the Universal Declaration of Human Rights, exert our political sway before the General Assembly and Security Council, exercise the power of the United States Armed Forces and our treaty alliances in order to replace Qaddafi’s dictatorship in Libya with some form of constitutional self-government, we would be entering a brave new doctrinal tomorrow. Would the United States be henceforth bound to some sort of Obama Doctrine which extends the Monroe Doctrine all the way to the Sahara Desert and establishes a universal doctrine for the United States to intervene on behalf of every popular movement in Africa and the Middle East? If we were to back the National Council in Benghazi to subvert Qaddafi’s dictatorship in Tripoli, we would be establishing a foreign policy more Wilsonian than anything Woodrow Wilson could have fantasized, a foreign policy which would interpret the promise of the Declaration of Independence as an affirmation of global human rights including a right to government by multiparty elections and the right of revolution against undemocratic regimes? Personally, I don’t think that sounds half bad…

However, if the Obama Doctrine formulated to justify intervention in Libya is going to have any moral bearing this precedent for intervention must be applicable to other comparable cases. If the impending humanitarian catastrophe in Benghazi is sufficient reason for the international community to take a forceful stand against the war criminal regime in Libya, then we must go through the Security Council to intervene on behalf of the people of Côte d’Ivoire, Zimbabwe, Guinea, the Congo, Sudan and Eritrea against their respective war criminal regimes. On the other hand, if the doctrinal precedent is meant to be “limited to the present circumstances”, inapplicable to any future cases because our interests are not threatened by these police states’ genocides and political massacres, then it would demonstrate that our principles of intervention are either nonexistent or false. Libya could only be a singularity designated for regime change if the capacity of unmitigated evil were limited to the persona of Muammar al-Qaddafi. If the millions of victims of Robert Mugabe, Laurent Gbagbo and Omar Hassan al-Bashir are deemed somehow less worthy of our intervention than the thousands of victims of Colonel Qaddafi, our inaction would prove ipse facto that the liberal case for intervention in Libya is just a humanitarian fig leaf for our discomforting, venal interests in the makeup of the Libyan regime; U.S. hegemony over North Africa and the petroleum which lies beneath her sands.

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