Richard Falk : Libya after Gaddafi-- A dangerous precedent?

From R.A.I.N. mailto: abie=rain.org.za@mail18.us1.mcsv.net

 

http://english.aljazeera.net/indepth/opinion/2011/10/20111022132758300219.html

 

Richard Falk : Libya after Gaddafi-- A dangerous precedent?

 

Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades. His most recent book is Achieving Human Rights (2009).   He is currently serving his fourth year of a six-year term as a United Nations special Rapporteur on Palestinian human rights.

 

The death of a dictator is being celebrated, but foreign intervention could prove problematic in the long-term. 
 
 Al Jazeera    Last Modified: 22 Oct 2011 13:35

 

The fall and death of the despised and despotic leader who had ruled for 42 years naturally produced celebrations throughout Libya, especially in the main cities. Although his end was bloody and vindictive, warning that a violent aftermath could further spoil the outcome of the struggle, we should remember that Gaddafi’s early rants against his own people invited a harsh popular response if their turn came.

 

Recalling WH Auden’s famous line, “Those to whom evil is done/ do evil in return,” it is almost inevitable that when a leader refers to his opponents as "rats" and pledges to hunt them down house by house the stage is set for the kind of violent drama that played out a few days ago in the dictator’s last stand at Sirte.

 

At this time, there seems to be a leadership vacuum in Libya that is not likely to be filled very soon. It is difficult to discern whether tribal loyalties will provide primary political identities now that the unifying effect of hostility to the Gaddafi regime can no longer suppress diverse goals and ambitions. Much of the fighting in the last stages of the struggle was under the semi-autonomous control of militia-like commanders such as Abdel Hakim Belhadj who led the attack on Tripoli or Fawzi Bukatef who seemed to command the assaults on those places where Gaddafi loyalists gathered for their last stand.

 

Such commanders do not usually submit to civilian control, presenting an immediate threat to national coherence. The Transitional National Council has seemed mainly successful so far in lending international credibility to the anti-Gaddafi forces. We will soon learn whether it can also represent the collective will of the Libyan people sufficiently to manage the interim process that will be needed before the establishment of an elected government can be arranged.

 

Worst case scenario

 

Some pessimistic observers have speculated that Libya’s future is prefigured by the chaotic violence that befell Somalia after the overthrow of Mohamed Siad Barre, their dictatorial leader in 1991, and has persisted ever since. Such conjecture represents the darkest version of a Libyan state-building scenario.

More hopefully it is worth observing that unlike Hosni Mubarak, whose overthrow did not by itself alter the structure of power in Egypt, the fall of Gaddafi gives the victorious Libyan opposition a clean slate that is likely to be receptive to democratic state-building. In this crucial respect, whereas the most that Egyptians can hope for at this stage is either modest constitutional reforms or the patience to await a second reckoning in Tahrir Spring that sweeps the old order away. Libyans, by contrast, are presented with this rare opportunity for a genuine revolutionary transformation of their political, economic, and cultural life. In this respect, it could turn out to be helpful that Gaddafi was the Libyan state, and left no institutional infrastructure behind following his departure.

 

From the perspective of avoiding chaos a more favorable assessment of the Egyptian experience emerges-- the Mubarak legacy that included a governing process capable of maintaining order, allowed a relatively smoothe sequel to his overthrow.  Unfortunately, Libya is being deeply challenged from Day One of the new order to produce sufficient order to allow normal life to be resumed. It may prove to be a mission impossible to engage in state-building without a state!

 

Libya has some major advantages, most obviously oil and a relatively small population. An important test in the months ahead is the extent to which the new leadership manages the economy, and especially insulates the national wealth of the country from foreign corporate predators that undoubtedly envision a feeding frenzy in post-war Libya. Of course, in the background is the sense that NATO was integral to the overthrow of Gaddafi and will expect more than a thank you note, but exactly what will remain unclear for some time, as will the extent to which those who run the new government in Tripoli will be effective in defending Libyan sovereign rights.

 

Precedents for intervention

 

Looking at the Libyan experience from international perspective raises several additional concerns. The appraisal of the intervention as a precedent will be mainly shaped by whether what emerges in Libya seems stable, democratic, and equitable, and this will not be fully knowable for years. There are some aspects of the NATO undertaking that already make the Libyan experience a troubling precedent for the future. The UN Security Council, which authorized force under the rubric of ‘the responsibility to protect,’ was either duped or complacent, possibly both.

 

The authorising resolution, Security Council Resolution 1973 was framed by reference to the establishment of "a No Fly Zone" with the justification for force at the time focused upon protecting the threatened population of Benghazi. Yet this limited mandate from the UN was disregarded almost from the outset.

 

NATO forces were obviously far less committed to their supposed protective role than to ensuring that the balance of forces within Libya would be tipped in the direction of the insurrectionary challenge. If this intention had been revealed from the outset, it seems almost certain that Russia and China would have used their veto to block approval for any forcible interference under UN auspices. As it was these two states expressed their misgivings about encroaching on the sovereign independence of Libya during the debate and by abstaining when the vote was taken, and were joined by India, Brazil, and Germany as abstaining Security Council members.

 

It should be extremely disturbing that a restricted UN mandate to use force should be totally ignored, and then no action taken by the Security Council to reconsider the original mandate or to censure NATO for unilaterally expanding the scope and nature of its military role. It is not surprising that a Chinese representative speaking at a General Assembly discussion devoted to the freedom of religion should say, “human rights should never be used as an excuse for intervention”. If such a sentiment persists it could defeat even an urgently necessary protective initiative in the future. By ignoring limits the NATO undertaking may have destroyed the prospects for future responsible uses of the responsibility to protect principle.

 

The role of force

 

There are several dimensions of this concern. To begin with, the UN Charter is drafted to minimise the legitimate role of force in world politics, making war a last resort. To this is added the secondary undertaking of the Charter that is to assure that the UN itself is bound in Article 2(7) to refrain from intervening in matters essentially within the domestic jurisdiction of states unless necessary for maintaining international peace and security. The NATO intervention seems impossible to reconcile with these two core principles of the UN Charter, which is the constitutional framework that is supposed to guide the behavior of the organisation.

 

It is true that as international human rights has emerged as a strong dimension of world order, these principles have been eroded by practice, although they still remain operative as guidelines. In this regard, it might have been legally and morally acceptable to mount in response to developments in Libya the narrowly conceived protective mission that had apparently been agreed upon in the Security Council, although even then in an atmosphere of skeptical approval either because some members distrusted the pro-interventionist reassurances of the United States and its European partners or anticipated that the pressures on the ground would inevitably produce a massive mission creep.

 

This experience also casts doubts on the responsibility to protect norm as a basis of principled action by the UN on behalf of a vulnerable people endangered by their own abusive government. Some doubts already existed about the selectivity of the Libyan application of the norm, especially given the failure to lift a UN finger on behalf of the beleaguered civilian population of Gaza, long suffering the ordeal of the long and punitive Israeli blockade. But beyond this geopolitically delimited contour of double standards is the sense that in Libya responsibility to protect was transformed into an opportunity to oust!

 

In the end, what becomes obvious is that such protective undertakings to achieve credibility in the future must be detached from geopolitics. The best mechanism for reaching such a goal would clearly involve the establishment of a UN Emergency Force that could be activated by a two-thirds vote in either the Security Council or General Assembly, and not be subject to the veto. Such UNEF would need to be funded independently, possibly by finally imposing some sort of UN revenue raising tax on international flights or currency transactions. Of course, such an arrangement will not be easy to bring into being precisely because its existence would threaten current geopolitical prerogatives. And it could be misused. There are no guarantees, but at least there would be a greater prospect that a framework of authorising guidelines would be respected, and that compliance would be supervised.

 

In the meantime, we can only hope that the Libyans seize the occasion given to them to establish a viable and independent democratic state that is respectful of the human rights of all Libyans, and energetic in its efforts at reconstructing the country without being overly hospitable to foreign investors and companies! The NATO countries are also challenged to stand aside, and allay neo-imperial suspicions. Having waged a devastating air campaign, it is now NATO’s duty to exhibit respect for the exercise of Libya’s inalienable right of self-determination.