Nonstopdrivel
14 years ago

Allan Gerson > Lawyer and former Counsel to the US Delegation to the United Nations
Posted: March 15, 2011 04:06 PM
Libya: Deal with the Devil We Don't Know? 

The Obama administration wants to go with the tide of history, but there is no certain shore. Our allegiance is with democracy. Our allegiance is with stability. We were born of revolution and tempered by civil war. But interventions abroad have sobered our ambitions. Between these opposing pulls, we flail about in the Libya crisis.

Secretary of State Hillary Clinton is dispatched to Europe to meet with Libya's rebels. Yet, even as she does so, the administration provides no clear endorsement of their primal request: imposition of a no-fly zone. We seek to hedge our bets as if this is a stock portfolio that can be diversified, when in fact we are left with few choices except to pick one side or another, or abstain for the time being.

Repeatedly it is said on both sides of the aisle that Gaddafi is a born killer: witness his downing of Pan Am 103, his support of terrorist activities worldwide, and his proclivity to decimating his own nationals. Yet, until very recently, there has been bipartisan support in heralding him as an example of how a rogue state can be turned around, citing his compliance with UN Security Council resolutions in renouncing terrorism and compensating the families of the victims of Pan Am 103, and his surrender of weapons of mass destruction. Once this was done, Gadhafi was greeted with outstretched arms, proclaimed rehabilitated, and ready for resumption of normal diplomatic and economic relations.

Now that cozying up has come to an abrupt end. Indeed, prominent voices on both sides of the political spectrum urge not only intervention for humanitarian relief, but for regime change. Often the two goals are treated as interchangeable. The underlying mantra is: "It is better to deal with the devil that we do not know than the devil we know."

This is an astounding expression of intellectual abdication of the experience of our times in favor of the triumph of hope. Have we not learned that the devil that we do not know can be far worse than the "devil" that we know? Indeed, a new devil may incorporate the worst of Gaddafi, leading to a dysfunctional Somalia-like anarchic entity on the shores of the Mediterranean. This is not to say that this will happen should the rebels succeed. Everyone would hope that the end result would be a marvelous mix of pluralism, democracy, allegiance to the rule of law, and economic prosperity. But it is to acknowledge that prudence dictates that we not easily rest with the unknown.

In navigating through this morass, it would be useful to look to the guidelines that international law provides. Strangely, other than reference to UN Security Council pronouncements and the suggestion that Gaddafi be referred to the ICC (to which the United States does not belong), the proponents of intervention in Libya have been silent on the requirements of the UN Charter and generally accepted international law.

Here's what such a review of international law would tell us:


Intervention in civil wars: Long established principles of international law prohibit intervention on behalf of the rebels unless they have established "effective control" over substantial territory. Clearly, this has not yet occurred.

Resort to force: International law (Article 2:4 of the UN Charter) prohibits resort to force against the political independence or territorial integrity of another state unless there is an imminent "armed attack." Thus, for example, Iraq's 1991 invasion of Kuwait created a clear basis for intervention whereas the threat of WMD weapons in 2004 hardly met that test. There is nothing in the Libya situation which resembles an armed attack against its neighbors or the United States.

Sovereign equality: Article 1:1 of the UN Charter guarantees each state nonintervention, regardless of the nature of their political systems -- whether democratic, authoritarian or despotic. And, Libya continues to be a member in good standing of the United Nations.

Humanitarian intervention: The trend in international law, although spottily followed in practice, is for intervention on behalf of victims of potential genocide and gross human rights abuses. Thus, intervention in Bosnia or in Rwanda fell into the permissible side of the ledger. If our monitoring of the Libya situation shows that an attack is imminent against the civilian population (not rebel fighters), intervention to block such an attack through jamming equipment or any other available means would be appropriate. Ideally, there would be prior authorization from the UN Security Council or regional body, but the exigencies of the moment may call for immediate action with a subsequent explanation to the governing multilateral or regional bodies.

International criminal prosecution: The International Criminal Court calls for prosecution of those responsible for gross human rights violations. But this occurs after the termination of hostilities.



The reality of the UN system is that whatever the UN Security Council deems permissible is deemed legitimate. Thus, were the UN Security Council to explicitly permit military intervention -- presumably on strictly humanitarian grounds, all other international law constraints would fall by the wayside. At present it seems that neither Russia nor China would provide the consensus needed for such a green light.

Does this mean that the United States or other countries are powerless to act to prevent an impending humanitarian disaster in Libya? No. As the struggle for civil rights in the United States demonstrates, the black-letter law can give way to the moral imperatives of the moment. The United States is not compelled to stand by with its hands folded behind its back. But, as a nation dedicated to the rule of law (so what we do in Libya is not simply the flavor of the month), it is obligated to explain why it was compelled to disregard norms of the UN Charter which would apply in less exigent circumstances. Here we should be careful not to cloud humanitarian intervention with regime change, unless we are prepared to argue that the two are one and the same: that only regime change can halt the looming humanitarian crisis.

Allan Gerson, a Washington, DC lawyer, was Counsel to the US Delegation to the United Nations in the Reagan Administration. He instituted the initial lawsuit against Libya for the bombing of Pan Am 103. This article is written in his personal capacity.


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Zero2Cool
14 years ago
Your thoughts?
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Wade
  • Wade
  • Veteran Member
14 years ago
My thoughts: Either the Libyans are barbarians or they're not. If they are, they're a waste of scarce US resources. If they aren't, then "assisting regime change" can work. Successful regime changes (Germany, Japan, our own in 1775-1789) have all been done by people who are already well on the road to civilization.

And there are more "barbarians" left in the world than the optimists would believe.

I don't know enough about Libya and its history to say whether they're non-barbarians. I'm skeptical -- I tend to think the worst of Middle East and African "nations."

And I'm more than skeptical of the ability of the present administration to determine which is which, or even understand the importance of the distinction.

IMO, its worth hoping for something better than Qaddifi. But the key is not what the USA does or does not do. The key is whether the Libyans show themselves to be moderns....or another set of barbarians.
And do not be conformed to this world, but be transformed by the renewing of your mind, that you may prove what is that good and acceptable and perfect will of God.
Romans 12:2 (NKJV)
IronMan
14 years ago
Lots of hypocrites on both sides of this. The conservatives that couldn't wait to bomb the shit out of Iraq are bashing Obama. And the liberals that bashed George W. Bush are praising Obama. Love it.
Porforis
14 years ago

Lots of hypocrites on both sides of this. The conservatives that couldn't wait to bomb the shit out of Iraq are bashing Obama. And the liberals that bashed George W. Bush are praising Obama. Love it.

"IronMan" wrote:



Welcome to politics. Everything's justifiable if you agree with the ends.
Blitz
14 years ago
We bombed him back under his rock when I was stationed in Germany in '87. Looks like it's time to do it again.
"... There.. is.. your.. dagger..!! "
Since69
14 years ago

Lots of hypocrites on both sides of this. The conservatives that couldn't wait to bomb the shit out of Iraq are bashing Obama. And the liberals that bashed George W. Bush are praising Obama. Love it.

"Porforis" wrote:



Welcome to politics. Everything's justifiable if you agree with the ends.

"IronMan" wrote:



Welcome to politics. Liberals and cons bashing each other, regardless of issue. GOP and Dems bashing each other, regardless of issue. We are a house divided, despite all the wisdom and good intentions of our forefathers. Time to start over. We were a much better country when it was "us against the world" and not "us against the other side of the aisle".
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Dulak
14 years ago

Lots of hypocrites on both sides of this. The conservatives that couldn't wait to bomb the shit out of Iraq are bashing Obama. And the liberals that bashed George W. Bush are praising Obama. Love it.

"Since69" wrote:



Welcome to politics. Everything's justifiable if you agree with the ends.

"Porforis" wrote:



Welcome to politics. Liberals and cons bashing each other, regardless of issue. GOP and Dems bashing each other, regardless of issue. We are a house divided, despite all the wisdom and good intentions of our forefathers. Time to start over. We were a much better country when it was "us against the world" and not "us against the other side of the aisle".

"IronMan" wrote:



I got to agree - I used to think the republicans were just a bunch of war hungry peeps that gave tax breaks to the rich ... but now I see the democrats acting in ways that IMO do not suit the country the best either.

I just want to know when someone in office will take over and do what is right not what votes they can or will get or what makes them look good.

Here are some easy ones ...
Fix immigration, end the iraq scandal, fix the banking scams ...
now do it without concern for votes or pressure but on what should be done.
Wade
  • Wade
  • Veteran Member
14 years ago

Lots of hypocrites on both sides of this. The conservatives that couldn't wait to bomb the shit out of Iraq are bashing Obama. And the liberals that bashed George W. Bush are praising Obama. Love it.

"Dulak" wrote:



Welcome to politics. Everything's justifiable if you agree with the ends.

"Since69" wrote:



Welcome to politics. Liberals and cons bashing each other, regardless of issue. GOP and Dems bashing each other, regardless of issue. We are a house divided, despite all the wisdom and good intentions of our forefathers. Time to start over. We were a much better country when it was "us against the world" and not "us against the other side of the aisle".

"Porforis" wrote:



I got to agree - I used to think the republicans were just a bunch of war hungry peeps that gave tax breaks to the rich ... but now I see the democrats acting in ways that IMO do not suit the country the best either.

I just want to know when someone in office will take over and do what is right not what votes they can or will get or what makes them look good.

Here are some easy ones ...
Fix immigration, end the iraq scandal, fix the banking scams ...
now do it without concern for votes or pressure but on what should be done.

"IronMan" wrote:



Methinks you'll see me on a hot date with Jessica Biel long before you see such happening.
And do not be conformed to this world, but be transformed by the renewing of your mind, that you may prove what is that good and acceptable and perfect will of God.
Romans 12:2 (NKJV)
Cheesey
14 years ago

Lots of hypocrites on both sides of this. The conservatives that couldn't wait to bomb the shit out of Iraq are bashing Obama. And the liberals that bashed George W. Bush are praising Obama. Love it.

"IronMan" wrote:


I guess i must be the exception. I don't disagree with trying to do something in Libya. Dictators are never good, for their own country, or for the world. Hitler made that VERY clear. Had someone taken him out before he got so strong, millions of innocent lives could have been spared.

I stated (i think in a different thread) how the ones that were bashing George Bush about Iraq are quiet about Obama doing what he's doing. Not a peep out of them. Same thing as the Ted Thompson bashers that haven't shown their faces since the Packers won the super bowl.
My Dad used to say "It takes a bigger man to admit that he's wrong".......my Dad was right.
I have been wrong many times, and pride makes it hard to face it sometimes. But i try to do so when it's (painfully) obvious i was wrong.
I'm not bashing Obama on this at all. I just don't understand the silence by the Obama lovers Bush haters.
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