from FPRI:
LIBYA: OUR FIRST COSMOPOLITAN WAR?
by Jeremy Rabkin
May 24, 2011
Jeremy Rabkin is a professor of law at George Mason
University School of Law. His books include Law Without
Nations? (Princeton University Press, 2005), The Case for
Sovereignty (AEI Press, 2004), and Why Sovereignty Matters
(AEI Press, 1998). This essay is based on a presentation to
FPRI's Study Group on America and the West. An expanded
version will appear in the Fall 2011 issue of Orbis.
Available on the web and in pdf format at:
http://www.fpri.org/enotes/201105.rabkin.libya.html
LIBYA: OUR FIRST COSMOPOLITAN WAR?
by Jeremy Rabkin
The killing of Osama bin Laden provoked much cheering --
more than enough to drown out legalistic cavils from Human
Rights Watch and a variety of international law scholars
(notably more in Europe, than in the United States).
NATO, it seems, does not expect the same leniency toward its
intervention in Libya. Though the government in Tripoli has
claimed that members of Gaddafi's family have already been
killed in airstrikes, NATO officials have repeatedly
insisted they are not directly targeting Col. Gaddafi.
A different fate seems to be reserved for the Libyan
dictator. On May 16-nearly two months after the start of
NATO's air campaign-the Prosecutor of the International
Criminal Court announced that he was seeking an indictment
of Muammar Gaddafi for war crimes committed in the current
conflict.
Having sent Navy SEALs to kill bin Laden, do we propose to
deal with Gaddafi by unleashing fierce lawyers at the Hague?
But perhaps that is too fanciful. It is not likely that
NATO air strikes will deliver Gaddafi into the custody of
the ICC.
Still, the ICC Prosecutor's announcement underscores one of
the exceptional features of NATO's campaign. It is arguably
the first military conflict-certainly the first fought by
the leading participants from the West-fought under the
legal supervision of the International Criminal Court.
The ICC's role in the background may explain the
extraordinary restraint so far shown by NATO in its conduct
of this conflict. Or perhaps the involvement of the ICC is
merely a symptom of larger tendencies. It was a February
decision of the UN Security Council that invited the
Criminal Court to take jurisdiction over events in Libya.
Any one of the leading NATO powers (the United States,
Britain and France) could have vetoed that resolution but
they all welcomed the intervention of the international
prosecutor. The United States did insist on excluding itself
(and other non-parties to the ICC treaty) from the
resolution conferring special jurisdiction on the Court.
Other NATO states supported wording that would cover their
own forces in Libya.
Proximate and ultimate motivations may be disputed, but the
consequences are clear. We are now fighting-or at least,
conducting some sort of armed intervention-by very
constraining rules.
NEW RULES FOR WARFARE
The Statute of the International Criminal Court, adopted at
a conference in Rome in 1998, incorporates-usually
verbatim-prohibitions formulated in previous international
treaties on the conduct of war. Some provisions reflect
long-established principles, codified at the Hague Peace
Conference in 1899 and already then considered part of the
ethic of professional soldiers. So, for example, it is a
crime to kill enemy combatants who have already surrendered
or to aim attacks at hospitals or "places where the sick and
wounded are collected."
Other crimes, which can be prosecuted by the ICC, reflect
more recent and more ambitious standards of warfare. The
most important are standards set out in Additional Protocol
I to the Geneva Conventions, negotiated in the mid-1970s.
The conference which adopted these standards was the first
in which developing nations (or as they were then called,
Third World nations) formed the majority of participants. In
the name of humanitarian concern, they imposed severe
constraints on the advantages conferred by air power and
other advanced weaponry-the advantages which less developed
nations, of course, were less able to deploy. By contrast,
guerrilla fighters were accorded new protections, even when
they failed to observe customary and still acknowledged
rules of war, such as the obligation not to conceal
themselves among civilians.
Following AP I, the Statute of the ICC brings within the
definition of "war crimes" not only attacks on civilians but
intentional attacks on "civilian objects"-that is, buildings
or equipment not directly related to military activity.
Similarly, "destroying or seizing the enemy's property" is a
crime unless "imperatively demanded by the necessities of
war." The list of crimes does also include "utilizing"
civilians "to render certain points, areas or military
immune from military operations." But such prohibited
deployment of "human shields" does not relieve the attacker
of responsibility for causing harm to civilians-or even to
"civilian objects": "intentionally launching an attack"
causing harm to civilians or "damage to civilian objects,"
remains a war crime, when such harm or damage "would be
clearly excessive in relation to the concrete and direct
overall military advantage anticipated."
What all of this means is that commanders must focus on
limiting the enemy's immediate military capacities, but not
seek to impose larger costs on the opposing country or
government in the conflict. Does NATO take this seriously?
It seems to take these rules very seriously indeed.
At a parliamentary hearing on April 27-nearly six weeks into
the conflict-Britain's Defence minister, Liam Fox, was asked
about possible judgments against British personnel by the
ICC. He insisted that "we would set our assessment of
acceptable civilian casualties as close to zero as was
possible to be." A British military aide at the hearing
insisted that, when it came to decisions about "deliberate
targeting," "we address very carefully the issues of
necessity, proportionality and legality _ that is done
comprehensively throughout the NATO system. [The "legal
advice" is] delivered at all levels by legal advisers and
fundamentally back to the [UK] Attorney-General."
While there has been very little reliable ground reporting
on NATO air strikes, press statements from NATO give
indications of the restraint. NATO communiqu‚s constantly
speak about military targets. Spokesmen insist that attacks
on Gaddafi compounds are attempts to disrupt "command and
control centers" of military operations, not to threaten
political leaders in Tripoli. On May 10, General Claudio
Gabellini, NATO's chief operations officer for Libya,
explained that air strikes against Gaddafi forces attacking
Misrata were constrained by "the proximity of government
forces to civilian areas." On the same day, Reuters reported
a NATO claim that in enforcing its arms embargo, NATO had
hailed 884 vessels approaching ports in Libya-and "diverted"
five of them. Thus it seems that the overwhelming bulk of
seaborne traffic in and out of ports controlled by Gaddafi
had not been "diverted."
By May 15, General David Richards, Britain's chief of
defense staff, was quoted in the Sunday Telegraph, warning
that NATO must "up the ante" or risk "Gaddafi clinging to
power." "At present, NATO is not attacking infrastructure
targets in Libya," he said. "But if we want to increase the
pressure on Gaddafi's regime then we need to give serious
consideration to increasing the range of targets we can
hit."
Does this restraint simply reflect fear of condemnation by
the International Criminal Court? The ICC has no police.
Even if it tries to indict NATO officials, it cannot arrest
them on its own. It would not be hard even for European
governments to defy the ICC Prosecutor, if that seemed
necessary. But European governments seem determined to show
they are respecting ICC rules.
WHAT COMPELS COMPLIANCE WITH NEW CONSTRAINTS?
Quite apart from the hovering presence of the International
Criminal Court, NATO seems inhibited by its determination to
confine its operations within the bounds of the Security
Council resolution authorizing intervention-Resolution 1973,
which speaks only of protecting civilians. While there is
room for dispute about interpretation of the resolution, it
is generally agreed that it does not authorize outside
powers to remove Gaddafi from power and install a new
government. Attacks on military facilities are readily
justified as reducing Gaddafi's capacity to threaten
civilians. Attacks on Libyan economic assets might increase
pressure on the government to abandon the fight, but are
much more removed from the ostensible mandate of protecting
civilians.
Taking the UN resolution as the limit of NATO authority,
however, presents all sorts of difficulties-some obvious,
some less so. The most obvious is that, so long as the
fighting continues, civilians remain at risk and it is
claimed thousands have already died. With all its efforts to
avoid "collateral damage" to civilians, NATO bombing has
claimed some lives of bystanders. Gaddafi spokesmen insist
the casualties include women, children and Muslim clerics.
Meanwhile, Libyan government forces have used artillery to
bombard rebel towns, seemingly with no concern to avoid
civilian casualties.
The Security Council resolution specifically prohibits
"occupation forces" which NATO spokesmen have treated as a
prohibition against ground troops. The resolution also
imposes an arms embargo, which NATO interprets as limiting
aid to rebel forces, excluding all but limited defensive
equipment, such as body armor. NATO spokesmen indeed insist
that NATO is not taking sides in what is plainly an ongoing
war between government forces and rebels. Neither the United
States nor the United Kingdom have actually recognized the
rebel council in Benghazi as the rightful government of
Libya (or even as the de facto governing authority in
eastern Libya).
What makes these inhibitions all the more strange is that
the Obama administration and the British and French
governments have openly and repeatedly acknowledged that
they do wish to see Gaddafi removed from power. Yet they
still insist that this is not the aim of their military
operations. Given the aim of removing Gaddafi, it is
understandable that NATO has repeatedly rejected offers from
Gaddafi for some sort of cease-fire or some agreement on
limiting attacks. Gaddafi has been accused of continuing to
launch attacks even while offering to stop the fighting.
But if Gaddafi can't be trusted now, how he can be trusted
later, especially if civilian rebels remain in the field?
How can NATO claim to have assured safety to civilians if it
cannot remove Gaddafi from power? How can it hope to ensure
Gaddafi's removal from power, if it insists on observing
very constraining rules of engagement?
In most wars, continuation of fighting risks escalation of
war aims and war methods. That provides an incentive for the
weaker side to stand down earlier. Here, NATO seems to have
tied its hands from the outset.
It may be that the Security Council resolution is merely a
legal formality, behind which stands the fragility of the
actual coalition. NATO leaders have pointed to the
diplomatic value of the intervention's initial support from
the Arab League. But only Qatar has supplied actual
fighting personnel to the NATO campaign (and a rather token
contribution, at that). More prominent Arab government have
expressed doubts and concerns about the widening and
protracted NATO campaign. It is not obvious that keeping
Qatar in the coalition adds very much. Kuwait's support for
the toppling of Saddam Hussein in 2003 did not deter most
Arab governments from denouncing the British and American
involvement the subsequent fighting in Iraq.
There is, finally, President Obama's particular problem. At
the outset of American intervention, the White House
released a memo from the Office of Legal Counsel in the
Justice Department, arguing that the operation would be very
limited in scope and duration and therefore did not require
authorization from Congress. The 1973 War Powers Act does
acknowledge that presidents may be justified in committing
U.S. forces to an external conflict for up to 60 days
without congressional authorization. When the 60-day limit
expired on May 20, the White House issued a letter insisting
that U.S. involvement was too peripheral to count as a
"war," since NATO had taken responsibility for strategic
direction in April and most sorties since then have been
flown by British and French pilots.
This posture encapsulates the oddness of the whole venture:
the humanitarian crisis in Libya was, by this reasoning,
sufficient to justify military intervention-but not
sufficient to justify the level of commitment that might
prove necessary for successful intervention. It is unusual
in military history for nations to declare so openly that
they regard a war as a mere speculative venture, which they
are quite prepared to lose, if its costs exceed a certain
low ceiling. But such self-imposed restraints may go in a
package with the idea of "humanitarian war."
CAN THERE BE VICTORY IN COSMOPOLITAN WAR?
It may all seem logical from a certain perspective-a
comforting perspective for human rights advocacy groups and
a broad current of opinion gaining strength in Europe. Legal
analysts for the International Committee of the Red Cross in
Geneva insist that international humanitarian law-the term
they prefer for describing the accumulating body of rules
supposed to govern the conduct of armed conflict-should be
seen as merely a branch of international human rights law.
As the world now has treaties guaranteeing every person
basic rights against his (or her) own government, so the
world has rules and standards that guarantee constraint in
warfare.
What is supposed to be true for all wars might seem
especially appropriate for a war authorized by the United
Nations on humanitarian grounds. Just as police operate
under constraints in quelling domestic disturbances, so, on
this view, in a humanitarian intervention, military
operations must remain bound by carefully limited rules of
engagement.
And so we end up with an armed intervention that is not
fought like a war. If it is a humanitarian intervention,
however, it must be acknowledged to have been a preemptive
intervention. After rebel risings in February, it was feared
that Gaddafi would unleash massacres on civilians in
Benghazi and other rebel strong-holds. But he had not yet
done so (at least on any large scale) when the intervention
began in late March. NATO intervention did not put an end to
conflict and casualties. Quite the contrary.
Estimates of Libyan casualties since the start of NATO
intervention range from 2,000 to 10,000 in only two months.
To put those figures into perspective, the most reliable
estimates put the civilian death toll for six years of
fighting in Iraq (2003- 2009) at about 100,000, in a country
with six times the population of Libya. In proportionate
terms, the Libyan conflict has, in two months, achieved a
level of fatalities that is between one quarter and one half
of what Iraq endured over six years. If the conflict in
Libya continues much longer, it will not look like a clear,
clean victory for humanity, even if NATO claims to be
scrupulous in its adherence to humanitarian rules of combat.
But the humanitarian toll in Libya is far from the only
consideration. Domestic police can afford to exercise
restraint, because most of the population is assumed to be
generally law-abiding, or at least compliant with police
directives. The world cannot be assumed to show a similar
degree of compliance with international law or the
pronouncements of UN bodies. What happens in Libya will
inevitably affect the calculations of governments in future
conflicts. A long, inconclusive struggle will make NATO
think twice before mounting such an intervention in the
future. More importantly, it may generate still stronger
doubts in other countries about NATO's future resolve.
American authorities may think they are holding to special
constraints here, because it is "only" a humanitarian
mission. The distinction may not seem at all so clear to
others-even in NATO countries. The Statute of the
International Criminal Court, for example, makes no
distinction between rules that apply in well-meaning
interventions as compared with other conflicts. What we have
embraced in Libya is a set of rules that make effective war-
making very difficult.
There is a fundamental point in the background, which seems
to exert some gravitational influence, even if it is rarely
acknowledged. Much as we would welcome respect for human
rights around the world, the world in which we now live is
not organized to protect the rights of humanity at large.
National governments wield decisive force in our world. The
United Nations and the International Criminal Court have no
force of their own. They remain, in terms of force
projection, entirely parasitic on the forces of member
states. In our world, the protection of human rights depends
on the strength of states which respect human rights-and
their first priority must be protecting the rights of their
own citizens. In the last resort, that may require war. War
is not a police intervention but a struggle between states
or at least between political communities. War is not merely
an effort to disarm opponents but to coerce them, for which
many tools may be relevant.
To see how far we have come from traditional understandings,
one need only glance at the UN Charter. True, it seems
premised on the highly optimistic assumption that,
notwithstanding the veto power granted to each of its five
permanent members, the Security Council will be able to
order decisive action to suppress "breaches of the peace"
and even "threats to the peace." But the framers of the
Charter still assumed that dealing with threats required a
good deal of force. The Council was authorized to enforce
"blockades" by air, sea and land, without any stipulation
that civilians must not be hurt. The Council was authorized
to unloose an international bomber force, without any
stipulation that bombs must not impose civilian casualties
(let alone "damage to civilian objects").
Our current notions seem to reflect the cosmopolitan notion
that we must care about everyone equally. In 2005, one of
the leading theorists of cosmopolitan ethics, David Held of
the London School of Economics, defined it this way:
"Humankind belongs to a single moral realm in which each
person is regarded as equally worthy of respect and
consideration." If you take this seriously enough, you will
find it very hard to fight a successful war.
It is ironic-but hardly a mere coincidence-that Prof. Held
served as the dissertation advisor for Saif al-Islam
Gaddafi, while the dictator's son was writing about global
governance at the London School of Economics. Libya provided
the LSE with some $2 million while the younger Gaddafi was
there.
At the start of the current conflict, the LSE announced that
it would take no more funding from the Gaddafi government.
It remains to be seen whether the influence of cosmopolitan
pieties-which no doubt made it much easier for an
institution like LSE to embrace support from a mad dictator
like Gaddafi-will be as easily curtailed, when western armed
forces face more serious challenges than Gaddafi's Libya.
----------------------------------------------------------
Copyright Foreign Policy Research Institute
(http://www.fpri.org/).
LIBYA: OUR FIRST COSMOPOLITAN WAR?
by Jeremy Rabkin
May 24, 2011
Jeremy Rabkin is a professor of law at George Mason
University School of Law. His books include Law Without
Nations? (Princeton University Press, 2005), The Case for
Sovereignty (AEI Press, 2004), and Why Sovereignty Matters
(AEI Press, 1998). This essay is based on a presentation to
FPRI's Study Group on America and the West. An expanded
version will appear in the Fall 2011 issue of Orbis.
Available on the web and in pdf format at:
http://www.fpri.org/enotes/201105.rabkin.libya.html
LIBYA: OUR FIRST COSMOPOLITAN WAR?
by Jeremy Rabkin
The killing of Osama bin Laden provoked much cheering --
more than enough to drown out legalistic cavils from Human
Rights Watch and a variety of international law scholars
(notably more in Europe, than in the United States).
NATO, it seems, does not expect the same leniency toward its
intervention in Libya. Though the government in Tripoli has
claimed that members of Gaddafi's family have already been
killed in airstrikes, NATO officials have repeatedly
insisted they are not directly targeting Col. Gaddafi.
A different fate seems to be reserved for the Libyan
dictator. On May 16-nearly two months after the start of
NATO's air campaign-the Prosecutor of the International
Criminal Court announced that he was seeking an indictment
of Muammar Gaddafi for war crimes committed in the current
conflict.
Having sent Navy SEALs to kill bin Laden, do we propose to
deal with Gaddafi by unleashing fierce lawyers at the Hague?
But perhaps that is too fanciful. It is not likely that
NATO air strikes will deliver Gaddafi into the custody of
the ICC.
Still, the ICC Prosecutor's announcement underscores one of
the exceptional features of NATO's campaign. It is arguably
the first military conflict-certainly the first fought by
the leading participants from the West-fought under the
legal supervision of the International Criminal Court.
The ICC's role in the background may explain the
extraordinary restraint so far shown by NATO in its conduct
of this conflict. Or perhaps the involvement of the ICC is
merely a symptom of larger tendencies. It was a February
decision of the UN Security Council that invited the
Criminal Court to take jurisdiction over events in Libya.
Any one of the leading NATO powers (the United States,
Britain and France) could have vetoed that resolution but
they all welcomed the intervention of the international
prosecutor. The United States did insist on excluding itself
(and other non-parties to the ICC treaty) from the
resolution conferring special jurisdiction on the Court.
Other NATO states supported wording that would cover their
own forces in Libya.
Proximate and ultimate motivations may be disputed, but the
consequences are clear. We are now fighting-or at least,
conducting some sort of armed intervention-by very
constraining rules.
NEW RULES FOR WARFARE
The Statute of the International Criminal Court, adopted at
a conference in Rome in 1998, incorporates-usually
verbatim-prohibitions formulated in previous international
treaties on the conduct of war. Some provisions reflect
long-established principles, codified at the Hague Peace
Conference in 1899 and already then considered part of the
ethic of professional soldiers. So, for example, it is a
crime to kill enemy combatants who have already surrendered
or to aim attacks at hospitals or "places where the sick and
wounded are collected."
Other crimes, which can be prosecuted by the ICC, reflect
more recent and more ambitious standards of warfare. The
most important are standards set out in Additional Protocol
I to the Geneva Conventions, negotiated in the mid-1970s.
The conference which adopted these standards was the first
in which developing nations (or as they were then called,
Third World nations) formed the majority of participants. In
the name of humanitarian concern, they imposed severe
constraints on the advantages conferred by air power and
other advanced weaponry-the advantages which less developed
nations, of course, were less able to deploy. By contrast,
guerrilla fighters were accorded new protections, even when
they failed to observe customary and still acknowledged
rules of war, such as the obligation not to conceal
themselves among civilians.
Following AP I, the Statute of the ICC brings within the
definition of "war crimes" not only attacks on civilians but
intentional attacks on "civilian objects"-that is, buildings
or equipment not directly related to military activity.
Similarly, "destroying or seizing the enemy's property" is a
crime unless "imperatively demanded by the necessities of
war." The list of crimes does also include "utilizing"
civilians "to render certain points, areas or military
immune from military operations." But such prohibited
deployment of "human shields" does not relieve the attacker
of responsibility for causing harm to civilians-or even to
"civilian objects": "intentionally launching an attack"
causing harm to civilians or "damage to civilian objects,"
remains a war crime, when such harm or damage "would be
clearly excessive in relation to the concrete and direct
overall military advantage anticipated."
What all of this means is that commanders must focus on
limiting the enemy's immediate military capacities, but not
seek to impose larger costs on the opposing country or
government in the conflict. Does NATO take this seriously?
It seems to take these rules very seriously indeed.
At a parliamentary hearing on April 27-nearly six weeks into
the conflict-Britain's Defence minister, Liam Fox, was asked
about possible judgments against British personnel by the
ICC. He insisted that "we would set our assessment of
acceptable civilian casualties as close to zero as was
possible to be." A British military aide at the hearing
insisted that, when it came to decisions about "deliberate
targeting," "we address very carefully the issues of
necessity, proportionality and legality _ that is done
comprehensively throughout the NATO system. [The "legal
advice" is] delivered at all levels by legal advisers and
fundamentally back to the [UK] Attorney-General."
While there has been very little reliable ground reporting
on NATO air strikes, press statements from NATO give
indications of the restraint. NATO communiqu‚s constantly
speak about military targets. Spokesmen insist that attacks
on Gaddafi compounds are attempts to disrupt "command and
control centers" of military operations, not to threaten
political leaders in Tripoli. On May 10, General Claudio
Gabellini, NATO's chief operations officer for Libya,
explained that air strikes against Gaddafi forces attacking
Misrata were constrained by "the proximity of government
forces to civilian areas." On the same day, Reuters reported
a NATO claim that in enforcing its arms embargo, NATO had
hailed 884 vessels approaching ports in Libya-and "diverted"
five of them. Thus it seems that the overwhelming bulk of
seaborne traffic in and out of ports controlled by Gaddafi
had not been "diverted."
By May 15, General David Richards, Britain's chief of
defense staff, was quoted in the Sunday Telegraph, warning
that NATO must "up the ante" or risk "Gaddafi clinging to
power." "At present, NATO is not attacking infrastructure
targets in Libya," he said. "But if we want to increase the
pressure on Gaddafi's regime then we need to give serious
consideration to increasing the range of targets we can
hit."
Does this restraint simply reflect fear of condemnation by
the International Criminal Court? The ICC has no police.
Even if it tries to indict NATO officials, it cannot arrest
them on its own. It would not be hard even for European
governments to defy the ICC Prosecutor, if that seemed
necessary. But European governments seem determined to show
they are respecting ICC rules.
WHAT COMPELS COMPLIANCE WITH NEW CONSTRAINTS?
Quite apart from the hovering presence of the International
Criminal Court, NATO seems inhibited by its determination to
confine its operations within the bounds of the Security
Council resolution authorizing intervention-Resolution 1973,
which speaks only of protecting civilians. While there is
room for dispute about interpretation of the resolution, it
is generally agreed that it does not authorize outside
powers to remove Gaddafi from power and install a new
government. Attacks on military facilities are readily
justified as reducing Gaddafi's capacity to threaten
civilians. Attacks on Libyan economic assets might increase
pressure on the government to abandon the fight, but are
much more removed from the ostensible mandate of protecting
civilians.
Taking the UN resolution as the limit of NATO authority,
however, presents all sorts of difficulties-some obvious,
some less so. The most obvious is that, so long as the
fighting continues, civilians remain at risk and it is
claimed thousands have already died. With all its efforts to
avoid "collateral damage" to civilians, NATO bombing has
claimed some lives of bystanders. Gaddafi spokesmen insist
the casualties include women, children and Muslim clerics.
Meanwhile, Libyan government forces have used artillery to
bombard rebel towns, seemingly with no concern to avoid
civilian casualties.
The Security Council resolution specifically prohibits
"occupation forces" which NATO spokesmen have treated as a
prohibition against ground troops. The resolution also
imposes an arms embargo, which NATO interprets as limiting
aid to rebel forces, excluding all but limited defensive
equipment, such as body armor. NATO spokesmen indeed insist
that NATO is not taking sides in what is plainly an ongoing
war between government forces and rebels. Neither the United
States nor the United Kingdom have actually recognized the
rebel council in Benghazi as the rightful government of
Libya (or even as the de facto governing authority in
eastern Libya).
What makes these inhibitions all the more strange is that
the Obama administration and the British and French
governments have openly and repeatedly acknowledged that
they do wish to see Gaddafi removed from power. Yet they
still insist that this is not the aim of their military
operations. Given the aim of removing Gaddafi, it is
understandable that NATO has repeatedly rejected offers from
Gaddafi for some sort of cease-fire or some agreement on
limiting attacks. Gaddafi has been accused of continuing to
launch attacks even while offering to stop the fighting.
But if Gaddafi can't be trusted now, how he can be trusted
later, especially if civilian rebels remain in the field?
How can NATO claim to have assured safety to civilians if it
cannot remove Gaddafi from power? How can it hope to ensure
Gaddafi's removal from power, if it insists on observing
very constraining rules of engagement?
In most wars, continuation of fighting risks escalation of
war aims and war methods. That provides an incentive for the
weaker side to stand down earlier. Here, NATO seems to have
tied its hands from the outset.
It may be that the Security Council resolution is merely a
legal formality, behind which stands the fragility of the
actual coalition. NATO leaders have pointed to the
diplomatic value of the intervention's initial support from
the Arab League. But only Qatar has supplied actual
fighting personnel to the NATO campaign (and a rather token
contribution, at that). More prominent Arab government have
expressed doubts and concerns about the widening and
protracted NATO campaign. It is not obvious that keeping
Qatar in the coalition adds very much. Kuwait's support for
the toppling of Saddam Hussein in 2003 did not deter most
Arab governments from denouncing the British and American
involvement the subsequent fighting in Iraq.
There is, finally, President Obama's particular problem. At
the outset of American intervention, the White House
released a memo from the Office of Legal Counsel in the
Justice Department, arguing that the operation would be very
limited in scope and duration and therefore did not require
authorization from Congress. The 1973 War Powers Act does
acknowledge that presidents may be justified in committing
U.S. forces to an external conflict for up to 60 days
without congressional authorization. When the 60-day limit
expired on May 20, the White House issued a letter insisting
that U.S. involvement was too peripheral to count as a
"war," since NATO had taken responsibility for strategic
direction in April and most sorties since then have been
flown by British and French pilots.
This posture encapsulates the oddness of the whole venture:
the humanitarian crisis in Libya was, by this reasoning,
sufficient to justify military intervention-but not
sufficient to justify the level of commitment that might
prove necessary for successful intervention. It is unusual
in military history for nations to declare so openly that
they regard a war as a mere speculative venture, which they
are quite prepared to lose, if its costs exceed a certain
low ceiling. But such self-imposed restraints may go in a
package with the idea of "humanitarian war."
CAN THERE BE VICTORY IN COSMOPOLITAN WAR?
It may all seem logical from a certain perspective-a
comforting perspective for human rights advocacy groups and
a broad current of opinion gaining strength in Europe. Legal
analysts for the International Committee of the Red Cross in
Geneva insist that international humanitarian law-the term
they prefer for describing the accumulating body of rules
supposed to govern the conduct of armed conflict-should be
seen as merely a branch of international human rights law.
As the world now has treaties guaranteeing every person
basic rights against his (or her) own government, so the
world has rules and standards that guarantee constraint in
warfare.
What is supposed to be true for all wars might seem
especially appropriate for a war authorized by the United
Nations on humanitarian grounds. Just as police operate
under constraints in quelling domestic disturbances, so, on
this view, in a humanitarian intervention, military
operations must remain bound by carefully limited rules of
engagement.
And so we end up with an armed intervention that is not
fought like a war. If it is a humanitarian intervention,
however, it must be acknowledged to have been a preemptive
intervention. After rebel risings in February, it was feared
that Gaddafi would unleash massacres on civilians in
Benghazi and other rebel strong-holds. But he had not yet
done so (at least on any large scale) when the intervention
began in late March. NATO intervention did not put an end to
conflict and casualties. Quite the contrary.
Estimates of Libyan casualties since the start of NATO
intervention range from 2,000 to 10,000 in only two months.
To put those figures into perspective, the most reliable
estimates put the civilian death toll for six years of
fighting in Iraq (2003- 2009) at about 100,000, in a country
with six times the population of Libya. In proportionate
terms, the Libyan conflict has, in two months, achieved a
level of fatalities that is between one quarter and one half
of what Iraq endured over six years. If the conflict in
Libya continues much longer, it will not look like a clear,
clean victory for humanity, even if NATO claims to be
scrupulous in its adherence to humanitarian rules of combat.
But the humanitarian toll in Libya is far from the only
consideration. Domestic police can afford to exercise
restraint, because most of the population is assumed to be
generally law-abiding, or at least compliant with police
directives. The world cannot be assumed to show a similar
degree of compliance with international law or the
pronouncements of UN bodies. What happens in Libya will
inevitably affect the calculations of governments in future
conflicts. A long, inconclusive struggle will make NATO
think twice before mounting such an intervention in the
future. More importantly, it may generate still stronger
doubts in other countries about NATO's future resolve.
American authorities may think they are holding to special
constraints here, because it is "only" a humanitarian
mission. The distinction may not seem at all so clear to
others-even in NATO countries. The Statute of the
International Criminal Court, for example, makes no
distinction between rules that apply in well-meaning
interventions as compared with other conflicts. What we have
embraced in Libya is a set of rules that make effective war-
making very difficult.
There is a fundamental point in the background, which seems
to exert some gravitational influence, even if it is rarely
acknowledged. Much as we would welcome respect for human
rights around the world, the world in which we now live is
not organized to protect the rights of humanity at large.
National governments wield decisive force in our world. The
United Nations and the International Criminal Court have no
force of their own. They remain, in terms of force
projection, entirely parasitic on the forces of member
states. In our world, the protection of human rights depends
on the strength of states which respect human rights-and
their first priority must be protecting the rights of their
own citizens. In the last resort, that may require war. War
is not a police intervention but a struggle between states
or at least between political communities. War is not merely
an effort to disarm opponents but to coerce them, for which
many tools may be relevant.
To see how far we have come from traditional understandings,
one need only glance at the UN Charter. True, it seems
premised on the highly optimistic assumption that,
notwithstanding the veto power granted to each of its five
permanent members, the Security Council will be able to
order decisive action to suppress "breaches of the peace"
and even "threats to the peace." But the framers of the
Charter still assumed that dealing with threats required a
good deal of force. The Council was authorized to enforce
"blockades" by air, sea and land, without any stipulation
that civilians must not be hurt. The Council was authorized
to unloose an international bomber force, without any
stipulation that bombs must not impose civilian casualties
(let alone "damage to civilian objects").
Our current notions seem to reflect the cosmopolitan notion
that we must care about everyone equally. In 2005, one of
the leading theorists of cosmopolitan ethics, David Held of
the London School of Economics, defined it this way:
"Humankind belongs to a single moral realm in which each
person is regarded as equally worthy of respect and
consideration." If you take this seriously enough, you will
find it very hard to fight a successful war.
It is ironic-but hardly a mere coincidence-that Prof. Held
served as the dissertation advisor for Saif al-Islam
Gaddafi, while the dictator's son was writing about global
governance at the London School of Economics. Libya provided
the LSE with some $2 million while the younger Gaddafi was
there.
At the start of the current conflict, the LSE announced that
it would take no more funding from the Gaddafi government.
It remains to be seen whether the influence of cosmopolitan
pieties-which no doubt made it much easier for an
institution like LSE to embrace support from a mad dictator
like Gaddafi-will be as easily curtailed, when western armed
forces face more serious challenges than Gaddafi's Libya.
----------------------------------------------------------
Copyright Foreign Policy Research Institute
(http://www.fpri.org/).
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