Military Action Against Libya Is Not Illegal, Not About Democracy and Very Limited 59


I was much attacked, especially by “Liberal interventionists”, in comments across the blogosphere when I broke the news four days ago that:

A senior diplomat in a western mission to the UN in New York, who I have known over ten years and trust, has told me for sure that Hillary Clinton agreed to the cross-border use of troops to crush democracy in the Gulf, as a quid pro quo for the Arab League calling for Western intervention in Libya.

I must be wrong, it was widely opined, because the US was against military intervention in Libya; a number of quotes from Clinton and Gates to that effect were thrown around. Well, I was telling the truth and they were lying. The Arab League support was essential to getting the Security Council Resolution passed. The Security Council Resolution 1973 contains this preambulatory paragraph:

Taking note also of the decision of the Council of the League of Arab States of 12 March 2011 to call for the imposition of a no-fly zone on Libyan military aviation, and to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in the Libyan Arab Jamahiriya

As part of the US deal with Saudi Arabia, the Arab forces which are going to be used as poster boys for the action against Libya will come largely from the Gulf Cooperation Council, ie precisely the same organisation which the US and Saudi are using to put down democracy in Bahrain. So whatever this is about, it is not about support for democracy.

I have no pretence to omniscience, or great judgement. But I was a pretty senior diplomat, I do have a reputation to protect, and when I say I know for sure that something is happening in the diplomatic world, I do know it for sure.

There is no doubt that SCR 1973 does authorise military action against Libya. That is understood by the phrase “All necessary means”, which is precisely the phrase that Bush and Blair tried and failed to get into resolutions on Iraq. So unlike Bush and Blair, in launching attacks against Libya, Obama and Cameron will not make themselves guilty of the war crime of launching an illegal war of aggression.

That is not a minor point. International law is extremely important, and has to be rebuilt after the Bush/Blair demolition of the concept.

But for action to be legal it must stay within the confines of SCR1973, which are much more constrained than the warmongering media is putting over.

SCR 1973 SPECIFICALLY DOES NOT AUTHORISE GROUND INVASION
SCR 1973 SPECIFICALLY DOES NOT AUTHORISE VIOLENT REGIME CHANGE
SCR 1973 SPECIFICALLY DOES NOT AUTHORISE ARMING OF REBEL FORCES

SCR 1973 SPECIFICALLY DOES NOT AUTHORISE GROUND INVASION

Operative Paragraph 4
4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), 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;

SCR 1973 SPECIFICALLY DOES NOT AUTHORISE VIOLENT REGIME CHANGE

Operative paragraphs 1 and 2:
1. Demands the immediate establishment of a ceasefire and a complete end to violence and all attacks against, and abuses of, civilians;
2. Stresses the need to intensify efforts to find a solution to the crisis which responds to the legitimate demands of the Libyan people and notes the decisions of the Secretary-General to send his Special Envoy to Libya and of the Peace and Security Council of the African Union to send its ad hoc High-Level Committee to Libya with the aim of facilitating dialogue to lead to the political reforms necessary to find a peaceful and sustainable solution;

SCR 1973 SPECIFICALLY DOES NOT AUTHORISE ARMING OF REBEL FORCES

Operative Paragraph 13
“13. Decides that paragraph 11 of resolution 1970 (2011) shall be replaced by the following paragraph : “Calls upon all Member States, in particular States of the region, acting nationally or through regional organisations or arrangements, in order to ensure strict implementation of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect in their territory, including seaports and airports, and on the high seas, vessels and aircraft bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, calls upon all flag States of such vessels and aircraft to cooperate with such inspections and authorises Member States to use all measures commensurate to the specific circumstances to carry out such inspections”;

On the arms embargo, the scope is simply geographic, the Libyan Arab Jamahiriya being the official name of the country as recognised by the United Nations. Other provisions within SCR 1973 make it plain that phrase is simply used to denote the whole country.

Furthermore the initial UK draft of the Security Council Resolution contained a provision to exempt the rebels from the arms embargo. It read:

“to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), 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”

The phrase highlighted was dropped in the negotiating process. As paragraph 9 of SCR1970 institutes the arms embargo, the proposal would in effect have exempted the rebels from the arms embargo justified as protection of civilian populated areas. That has been dropped in negotiation and it is therefore explicit that the arms embargo applies to all of Libya.

So military action against Libya is legal provided and only provided it stays within the strict parameters of SCR 1973. I continue to believe it may prove unwise, and am most concerned at the civilian casualties that will certainly accrue from air strikes which the media will lie to us were incredibly targeted and precise. But this is not full scale illegal war of the Iraq kind.

We await events with apprehension.

Meantime the leader of the opposition and six other prominent dissidents in Bahrain have been thrown into jail, along with four hundred supporters, and foreign armies patrol the streets. Where is the Security Council Resolution about that? I repeat, this all has nothing to do with promoting democracy. It is about promoting US interest, controlling and directing pro-democracy movements where they cannot be stopped, but more widely clamping down on them with brutal force in favour of US client tyrants.

The media has now gone into full war gaming mode, and western public attention will be diverted in a false cloud of war patriotism from the vicious activities of western allies in Bahrain, Yemen, Saudi Arabia, Jordan and elsewhere. The blogosphere now has a vital role to play in keeping truth available to those who wish to find it.


59 thoughts on “Military Action Against Libya Is Not Illegal, Not About Democracy and Very Limited

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  • Courtenay Barnett

    Speaking on Libya on Saturday, Secretary of State Hillary Clinton said “we will stand with the people of Libya and we will not waver [in our effort] to steal the Libyan people's oil.”

  • Andrew Watt

    Craig,

    I believe your analysis is incorrect.

    UK military intervention in Libya is unlawful since it is unlawful in UK Law.

    UNSCR 1973 only removes the standing prohibition against military force in International Law. It does not make legal something that is illegal in UK Law.

    I set out the basis for considering UK military intervention in Libya to be illegal in an Open Email to David Cameron and Dominic Grieve, entitled "Open Letter to David Cameron and Dominic Grieve re Illegality of UK military intervention in Libya" here: http://westminsterscheatingus.blogspot.com/2011/0….

  • talkingbacktocspan

    Does enactment of UNSCR 1973 mean that UNSCR 1970 and all its terms are no longer in force?

    If one believes that an Israel corporation, with the approval of the Israeli state, is, indeed supplying mercenaries to support Qaddafi, then provisions of SCR 1970 exempt those mercenaries from prosecution before the International Criminal Court, while SCR "DECIDED that Libya WOULD be required to comply with demands of ICC. Libya is a signatory but did not ratify the ICC, which means that but for the demands of SCR 1970, Libya must only "refrain from acts which would defeat the object and purpose of the treaty."

    If one views the Libya conflict as a civil war, then SCR 1970 exempts foreign mercenaries from ICC prosecution but submits them only to the level of prosecution of their state of origin — ie. the same level of accountability that pertained to IDF re Mavi Marmara. But Libyan soldiers defending the Libyan state against a rebellion would be subject to prosecution by the ICC.

    If SCR 1970 is no longer in effect, then all the above accountability issues are off the table. Yet, under SCR 1973, the defenders of the Libyan state who are defending the state against rebels are required to observe a cease fire, but rebels are, apparently, no so enjoined.

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  • sabretache

    The thing I find most curious and of potentially vast significance about the Libyan situation is the Chinese and Russian abstentions on the UNSC resolution when either could have vetoed it. I would be very interested to hear Craig's take on that.

    The first overt sign of Chinese and Russian subservience to the Western Imperial Project (for want of a better description) was their failure to veto further sanctions against Iran last year – and now this. I really do struggle to see how they could judge their interests to be best served by allowing it to pass. IOW, there appears to me to some kind of co-option to the 'Unipolar' world view that Putin was at such pains to expose as dangerous back in 2005 (as I recall).

    Also interesting to note that there appears to be a serious rift developing between Putin and Medvedev on the issue – see these tow links:

    Putin likens Resolution to 'Crusade Call'
    Medvedev rebuts Putin over Libya

    As Craig says something big is afoot in the diplomatic world.

  • Suhaylsaadi

    Yes, all that is very odd, Sabretache – maybe there is some kind of power struggle in this regard going on in Russia, or perhaps Putin's comment is for domestic consumption – to reinforce his hardman stance in Russia: Medvedev and Putin, the dramatic duo: Good cop, bad cop. I wonder whether it is simply that a subservient and divided Middle East is in Russia's interests; they don't want to see an independent Arab/Iranian oil and gas cartel. As for China, they keep their powder dry. They own most rare earth metals in the world – essential for all modern technology. They are doing trade deals across Africa and South America. Their aim is not to get involved, either way, in the West's military adventurism. Avoiding foreign military adventures (and confrontation over those of other great powers) has been a major plank in China's foreign policy since their disastrous war with Vietnam during the late 1970s.

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