Libya & the Law of Unintended Consequences
April 6, 2011
Coming to grips with the North Atlantic Treaty Organization’s (NATO) intervention in the Libyan civil war is a little like wresting a grizzly bear: big, hairy, and likely to make you pretty uncomfortable no matter where you grab a hold of it. Is it a humanitarian endeavor? A grab for oil resources? Or an election ploy by French President Nicolas Sarkozy?
But regardless of the motivations—and there are many—the decision to attack the regime of Muammar Qaddafi will have global consequences, some of them not exactly what NATO had in mind. For starters, forget a nuclear free Korean peninsula and pressing for wider adherence to the Nuclear Non-proliferation Treaty (NPT).
The humanitarian rationale was the one that brought the Arab League and the United Nations on board, although it is not entirely clear that such a crisis existed. Qaddafi’s blood-curdling rhetoric not withstanding, there is no evidence of mass killings of civilians.
UN Resolution 1973 authorized member states “to take all necessary measures…to protect civilians and civilian populations under threat of attack,” while also “excluding a foreign occupation force of any form.” But exactly what that meant depended on who was flying the fighter-bombers and launching the cruise missiles.
The French targeted Qaddafi’s army. The British tried taking out the “Great Leader” with a cruise. The Americans smashed up the Libyan air force, but as to offing Qaddafi, that depended on with whom you talked. President Obama said he wanted him out, his Defense Secretary said that wasn’t the mission, and U.S. Secretary of State Hillary Clinton played coy.
On one level, Operation Odyssey Dawn was what one military analyst called “the attack of the Keystone Krusaders.” It took a week to figure out who was in charge, and cooperation wasn’t helped when French Interior Minister Claude Gueant called the attack a “crusade.” It is not a word that goes down well in the Middle East.
But beyond the snafus is whether Odyssey Dawn is consistent with the U.S. Constitution and the UN Charter and what it means for the future.
According to the Constitution, unless the U.S., “its territories or possessions, or its armed forces” are attacked, only Congress can declare war. The Obama Administration did not consult Congress, nor did it claim Libya had attacked it, thus bypassing both the Constitution and the 1973 War Powers Act.
The UN Charter forbids countries from going to war except in response to an attack by another country. However, in 2005 the UN’s World Summit in New York endorsed a “Responsibility to Protect” (P2P) policy that member states have a responsibility to protect people from genocide, ethnic cleansing, war crimes and crimes against humanity. “P2P” was a response to the 1994 massacre of some 800,000 people in Rwanda.
“P2P,” however, requires that member states first “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial arrangement…or other peaceful means of their own choice.”
But there was no effort to negotiate anything before the French started bombing. So, in strictly legal terms, UN Resolution 1973 is a little shaky. There is no question Qaddafi was killing civilians, but no one has suggested that it reached a level of genocide. One can, however, make a case for crimes against humanity. The problem is that you can make the same case against Israel’s invasion of Gaza in 2008-09, as well as the current crackdown against democracy advocates in Syria, Bahrain, Saudi Arabia, and Yemen, not to mention the 2009 massacre of some 20,000 Tamils in the last weeks of the Sri Lankan civil war.
“The contradictions between principle and national interest,” says Nigerian Foreign Minister Odein Ajumogobia, “have enabled the international community to impose a no-fly zone over Libya, ostensibly to protect innocent civilians from slaughter, but to watch seemingly helplessly [in Ivory Coast] as…men, women and children are slaughtered in equally, even if less egregious, violence.”
There is no question that some supported the intervention for genuinely humanitarian reasons. A brutal thug like Qaddafi is certainly capable of killing a lot of people.
But there were lots of irons in this fire.
“Sarkozy likes nothing better than a crisis, a fight and a gamble,” says Financial Times columnist Peggy Hollinger. “With his approval ratings at an all-time low, this [Libyan intervention] could be just what he needs to revive his faltering popularity at home.” However, in spite of France’s leading role in the attack, the President’s party took a shellacking in the Mar. 28 local elections.
For the U.S., Odyssey Dawn was a coming out party for America’s newest military formation, African Command (Africom). It is no accident that, at the very moment that African oil reserves are becoming a major source for the United States, Washington should create a military formation for the continent. By 2013, African oil production is projected to rise to 11 million barrels of oil a day, and to 14.5 million by 2018. Gulf of Guinea oil will make up more than 25 percent of U.S. imports by 2015.
Is the intervention then over oil? Control of energy resources is always central to U.S. strategy, and, with world reserves declining, the scramble to hold the petroleum high ground is always part of the agenda. Right now Washington is in a resource competition with China, and while the U.S. does not use Libyan oil, its NATO allies do.
A major reason the Obama administration is tolerant of Bahrain’s monarchy is because the U.S. Fifth Fleet is based there, controling the Persian Gulf and the Red Sea, areas that hold the bulk of the world’s oil reserves.
China is currently Africa’s largest trading partner, and accounts for 73 percent of the continent’s oil exports, with the bulk of their purchases from Sudan and Angola. Between Africom and the Fifth Fleet, the U.S. has its thumb on five out of China’s six main petroleum suppliers: Saudi Arabia, Iran, Oman, Sudan, and Angola.
War always has consequences, although not all of them are initially obvious. In war, as Carl von Clausewitz noted, the only thing you can determine is who fires the first shot. After that it’s all fog and plans gone awry.
But some consequences are clear. An unnamed North Korean Foreign Ministry official told Pyongyang’s Korean Central News Agency that “The Libyan crisis” was “teaching the international community a grave lesson…the truth that one should have power to defend peace.”
The official went on to suggest that the West had duped Libya into disarming its nuclear program in 2003 and then attacked it when it could no longer defend itself.
North Korea may be erratic, but there are many other quite sober countries that might draw similar conclusions. While most countries of the world adhere to the Nuclear Non-Proliferation Treaty, the nuclear powers—three of whom are currently bombing Libya—have yet to fulfill their obligations under Article VI to eliminate their arsenals and begin negotiations on general disarmament.
Until that happens, the temptation will be to obtain something that will level the playing field, particularly when some countries are so quick to resort to military power.
That is a world that will be infinitely more dangerous than the one in which we currently live.