So I spent about 15 hours researching and writing a post about the legality of Libya in a serious effort to try to come down on one or the other side of the “It’s like Iraq/No it’s not” debate. I thought I’d made it clear that I was interested in a discussion about why much of the media coverage relates to whether Obama’s actions are moral, humanitarian, or a desire to maintain oil interests, as opposed to whether his actions comported with the UN Charter and principles on the one hand, and US constitutional and statutory law, on the other. And yes, I had a bit of a hissy fit because the comments quickly devolved into poo-flinging and I was butt-tired and cranky, so I deleted the post. I’m rash like that sometimes. Wyminz, mirite?
Certainly I was appreciative of the comments correcting my misstatement about Wilson refusing to join the League of Nations (as opposed to the US refusing to ratify it) and pointing out the dates on which Russia and Germany eventually joined the League of Nations (even though that section of the post was more about why the League failed and how the UN learned from the League’s mistakes, and not about the actual mechanics of who ratified and joined what and when they did so.) And as for my statement about Germany starting World War I, one really must follow the link to another post that I did in order to “get” my irreverence in that regard. My humor isn’t for everyone. Sometimes I crack myself up and usually that’s enough for me. ::shrug::
At any rate, I am loathe to repost this because tensions are running pretty high over here and I don’t want to wade through 200 posts screaming “you’re an Obot!” (tried and true, but what does that have to do with the points I make in the post? I think you’ll find the answer is “not a fucking thing”) nor do I want to wade through multiple posts screaming “your writing sucks ass!” (My writing kicks ass, so I beg your fucking pardon). On the other hand, I don’t want to completely ignore the comment section because I’m hoping folks can bring their knowledge and thoughts on the subject to bear. Maybe folks can help me understand if I’m wrong about the legality of this operation, and if so, why.
It’s a conversation I’m quite interested in having, so here’s what I’m going to do. I’m going to partially repost it, close the comments, and ask you to finish reading the post on my blog, and if you want, join the discussion already in progress over there. I’m hoping this process will weed out the regulars who simply want to get into a pointless slap-fight. If you really want to throw poo and you take the time to fill in the little comment box on my blog, then your poo is welcome. In any event, I’m hoping for less poo and more discussion.
I think I raised some interesting questions and notwithstanding minor historical errors (and in the larger context of my post, the errors are entirely irrelevant), I think it’s a discussion worth having. So, I hope to see you at Angry Black Lady Chronicles, and I hope that the hours I spent writing this beast of a post might open up another avenue of discussion.
A girl can dream.
Various bloggers have already written excellent posts about the legality (and morality) of the Obama Administration’s actions in Libya. [See footnotes below]. As such, I won’t delve too deeply in to technical arguments. I want to point out one thing, however: The situation in Libya – a dictator who is slaughtering his own people by the hundreds if not thousands is precisely the sort of scenario that the United Nations was formed to address, and people need to calm the fuck down. (Ok, fine — that was two things.)
Let’s Walk Through History: The League of Nations and the United Nations
The UN was borne of the inefficacy and resulting collapse of the League of Nations. Think of the UN and the League of Nations as cousins; they are similar in that they were formed because people were tired of World Wars. They are dissimilar because the League of Nations was ineffectual in dealing with disputes between countries because after World War I, most countries were either too broke to be of much military aid, or too dooshy to even be allowed to join the League of Nations.
Woodrow Wilson dreamed up the idea of the League of Nations after being horrified by the shit that went down in World War I. He envisioned an international body, the sole purpose of which was to maintain peace and to sort out international disputes as they occurred. In other words, Wilson was tired of all these motherfuckin’ wars in this motherfucking world. No more slap fights between nations which resulted in one nation saying “That’s it! We’re taking over.” The League of Nations sought to curb this sort of childish behavior by doing the following:
- It could call on the states in dispute to sit down and discuss the problem in an orderly and peaceful manner. This would be done in the League’s Assembly – which was essentially the League’s parliament which would listen to disputes and come to a decision on how to proceed. If one nation was seen to be the offender, the League could introduce verbal sanctions – warning an aggressor nation that she would need to leave another nation’s territory or face the consequences.
- If the states in dispute failed to listen to the Assembly’s decision, the League could introduce economic sanctions. This would be arranged by the League’s Council. The purpose of this sanction was to financially hit the aggressor nation so that she would have to do as the League required. The logic behind it was to push an aggressor nation towards bankruptcy, so that the people in that state would take out their anger on their government forcing them to accept the League’s decision. The League could order League members not to do any trade with an aggressor nation in an effort to bring that aggressor nation to heel.
- If this failed, the League could introduce physical sanctions. This meant that military force would be used to put into place the League’s decision. However, the League did not have a military force at its disposal and no member of the League had to provide one under the terms of joining – unlike the current United Nations. Therefore, it could not carry out any threats and any country defying its authority would have been very aware of this weakness. The only two countries in the League that could have provided any military might were Britain and France and both had been severely depleted strength-wise in World War One and could not provide the League with the backing it needed. Also both Britain and France were not in a position to use their finances to pay for an expanded army as both were financially hit very hard by World War One.
The primary failing of the League of Nations was that countries either were not that jazzed about joining, or were not permitted to join because they were assholes.
For example, The US didn’t join it (even though it was Wilson’s ding dang idea), but at the time, it fit with the US’s isolationist foreign policy. So… that was cool, I guess.
As for Germany, the world was still wary about its capacity to stop acting like such a douche bag all the time (and rightfully so, since Germany decided to be a dick again a few years later); Germany started World War I, and as a result of the Treaty of Versailles, the world gave Germany the finger. People so were not ready to deal with Germany.***
And then there was Russia. Good ol’ communist Russia. Nobody likes commies, so Russia wasn’t invited to the League of Nations Dance. Western Europe was afeared of the Red Menace and was all “uh uh. No way.”
So the USA, Russia, and Germany were out. Britain and France were broke (as a result of WWI) and didn’t really care to get into a bunch of international disputes with countries they didn’t give a shit about. (Kind of like the USA tends to not give a shit about international disputes that don’t involve oil).
Needless to say, the League of Nations was only minimally effective. If two countries got into a pissing match, they were ordered, essentially, to “hug it out, bitches.” If that didn’t work, then it was economic sanctions time. If that didn’t work, the last resort, essentially was a sternly worded letter:
“Hey! Asshole Country! You stop that!”
“Oh yeah, what are you gonna do about it?”
“Erm… well… I don’t know… but JUST STOP IT!”
It was sort of like this:
Sort of bullshit, is what I’m saying.
The League of Nations just wasn’t getting the job done. The UN, having learned from the mistakes of the League of Nations, made sure that it could open up a can of whoop-ass on any Asshole Country which refused to listen to reason – all in the name of peacekeeping, of course. The preamble of the UN Charter sets forth its purpose:
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
• to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
• to regain faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
• to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
• to promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
• to practice tolerance and live together in peace with one another as good neighbours, and
• to unite our strength to maintain international peace and security, and
• to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
• to employ international machinery for the promotion of the economic and social advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS
Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.
It made sense. I mean, after the Hitler douchebaggery, the international community was tired of assholes trying to annex every country they could get their grubby paws on:
So what does this have to do with Libya, is what you’re asking (stop yawning… I saw that).
Fuckin’ UN. How does it work?
First, it is important to understand that the efficacy of the United Nations depends on the commitment of nation-states to the UN Charter, and the commitment of nation-states to follow the rules. Meaning, if shit is going down in another country and that shit violates the principles of the UN (peace, stability, a ponycorn for all) then it is incumbent upon the UN to act; and when it does so, it acts through the Security Council (Chapter V):
1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI [PACIFIC SETTLEMENT OF DISPUTES], VII [ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION], VIII [REGIONAL ARRANGEMENTS], and XII [INTERNATIONAL TRUSTEESHIP SYSTEM].
3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
Now, Chapter VII is where the good stuff is – it’s the section that governs what the Security Council can and cannot do when Asshole Countries Go Wild™:
- Article 39 says that the Security Council has to get together and figure out what to do when an Asshole Country is being an asshole (Like Libya is — well, its leader anyway).
- Article 40 says the Security Council can call upon the assholes to sit down and work the shit out. (Note it says “can call upon the parties,” not “must call upon the parties.”) I think it’s safe to say that, given Qaddafi’s batshit craziness, he wasn’t going to sit down over a spot of tea and talk about his feelings.
- Article 41 says that if the asshole won’t listen, sever diplomatic relations, UN Members will be called on to apply what are (essentially) economic sanctions.
- Article 42 says if the economic sanctions don’t work, “[the Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
- Article 43 primarily talks about making available to the Security Council armed forces and other whatnots and so-forths in accordance with special agreements to be negotiated between nation-states and the Security Council; and, secondarily, requires that the agreements be negotiated ASAP and be subject to ratification by signatory states in accordance with their respective constitutional processes.
“Ah-ha!” I’m sure you’re thinking. “This Libya business wasn’t ratified by the US in accordance with our constitutional processes! Duh and/or hello?! War Powers Act anyone?!” Facially, that’s a good argument. When one delves into the bowels of UN policy, however, it becomes apparent that Article 43 is, essentially, useless.
Articles 43 -47 of the Charter provide for arrangements intended to govern the relationship between the Security Council and the Member States contributing troops for the purpose of maintenance of international peace and security. The Repertoire captures decisions and discussions that touch upon this relationship.
Article 43 – Member States’ obligation to offer assistance in the maintenance of international peace and security
The obligation for United Nations members to undertake to make armed forces available to the Security Council, render assistance and accord relief as necessary for the maintenance of international peace and security exists only in accordance with one or more special agreements. Nevertheless, such agreements were never concluded and no State is obligated to make troops available to the Council in a particular situation. Consequently, the United Nations has to enter into negotiations every time a situation calls for the establishment of an operation.
Article 46 – Assistance by the Military Staff Committee
Article 47 – Composition of the Military Staff Committee
The Military Staff Committee, composed of the chiefs of staff of the five permanent members of the Council, was given responsibility for the strategic coordination of forces placed at the disposal of the Security Council. However, the Military Staff Committee has been of only limited significance in practice. It has, however, continued to meet regularly. In recent years, the possibility of reactivating the Military Staff Committee was raised in connection with the issues of threats to international peace and security and United Nations peacekeeping operations.
So yeah. It’s an Article 42 thing. (Isn’t it? Correct me if I’m wrong. But I’m pretty sure I’m right.)1
Libya is Not Iraq 2: When Kenyans Attack2
I’ve seen a lot of people freaking out about the fact that Obama jumped into this war without seeking Congressional approval, and without polling the American public and HOLY SHITSNACKS WE’RE INVADING THE MIDDLE EAST AGAIN OMFG LOLWTFBBQ!!!!1. You may continue to freak out if you like, and indeed, there is a good reason to. We don’t have a good track record when it comes to inserting ourselves into foreign conflicts. Maybe we go in with the notion that we’re just going to help the people out, and then once we get there, we see a bunch of shit that we totally want for ourselves, so maybe we ought to just go ahead and build a permanent military base and bend the country to our will.
Still, whether or not this Libya business turns out well is a discussion for some time in the future. Whether or not the UN is an efficient “international government” (or as the John Birch Society would put it, the center of the one world government conspiracy), and whether nations should be able to commit their military resources absent authorization from their governments is a different debate. That’s a debate we should have. Our military is taxed – we’re in Afghanistan and I really don’t understand why, and of course Bush fucked us to the tune of seventy-eleven billion dollars spent in Iraq.
I’ve also seen people arguing that our adventures in Iraq preclude us from acting as a moral force for good until – I don’t know when – some arbitrary time when people like Michael Moore stop freaking out, I reckon. This is also a debate we should have.
But for now, if you, like me, don’t need one more thing to freak out about, let’s discuss what’s going on in Libya. And let’s stop pre-freaking out, shall we?
My understanding is that Obama was under no obligation to obtain a resolution or authorization from Congress in advance of deciding to throw the US hat into Libya ring. Why? Because this is not a unilateral action by the United States against Libya. If you have been paying attention to what the Obama Administration is saying (and also to what non-asshatted media (aka foreign media) has been saying), you’ll notice that it’s all about “not going it alone” and “coalitions” and “letting others take the lead”:
There was a recurring rhythm to President Barack Obama’s speech about the no-fly zone over Libya. But it wasn’t a drum beat of war – it was a chorus about consensus, an insistence on internationalism.
Sure, there was an ultimatum, the threat of military action. Those are the headlines. And there was an explanation why America might have to fight.
Left unchecked, we have every reason to believe that Gaddafi would commit atrocities against his people. Many thousands could die. A humanitarian crisis would ensue. The entire region could be destabilised, endangering many of our allies and partners. The calls of the Libyan people for help would go unanswered. The democratic values that we stand for would be overrun. Moreover, the words of the international community would be rendered hollow.
But the subtext is more important. Read the last sentence in that quotation again. In a speech of just over three pages he repeats this point. Not once:
The US has worked with our allies and partners to shape a strong international response.
The US is prepared to act as part of an international coalition. American leadership is essential, but that does not mean acting alone.
Not three times:
It is not an action that we will pursue alone. Indeed, our British and French allies, and members of the Arab League, have already committed to take a leadership role.
So I have taken this decision with the confidence that action is necessary, and that we will not be acting alone.
So you might have gathered, the US is not going it alone. Throughout his declaration Mr Obama makes it clear how different this is to the Iraq war. Not only the international consensus, but the limits on action.
I also want to be clear about what we will not be doing. The US is not going to deploy ground troops into Libya. And we are not going to use force to go beyond a well-defined goal — specifically, the protection of civilians in Libya.
The limits he sets out are not just practical, they are limits to ambitions and objectives.
I want to be clear: The change in the region will not and cannot be imposed by the US or any foreign power; ultimately, it will be driven by the people of the Arab World. It is their right and their responsibility to determine their own destiny.
Mr Obama is only a reluctant convert to action, and you could argue he’s merely disguising his feet-dragging with noble rhetoric about the international community. It’s certainly noticeable that he didn’t mention the killings in Yemen (although he earlier issued a statement condemning them) or the unrest in Bahrain, stiffer tests of American power and resolve.
But I think we are seeing something new. He is using a crisis thrust upon him to set out an Obama doctrine of sorts, to make a statement about America’s relationship with the world. While he is in charge, he is saying, America will not go it alone, will set limits on what it does, and won’t impose its will. Some will not like this, and the world will find it difficult to adapt to a president who almost seems determined to lead from behind.
The Obama doctrine is a tightrope walk: Acting, but within limits, leading only as a first among equals.
So yeah — this isn’t Iraq.
Battered Bush Syndrome
Let me say that again: This is not Iraq. If it turns out that Obama is lying through his pretty white teeth, I will eat a big pile of crow, and then I will promptly join you in your freakoutery. But for the time being, it seems advisable to look at what is going on with this particular situation without throwing all our Iraq emotional baggage into the mix.
We as a nation need to go to therapy to deal with our Acute Battered Bush Syndrome. The Bush years were really hard on us. We have a long history of imperialist misadventures. This country doesn’t seem able (or willing) to remove its mouth from Mother Earth’s oil nipple. And yes, UN peacekeeping missions often turn into clusterfucks. So we certainly have a responsibility to pay attention to what we’re being told versus what’s going on. (To that end, I suggest you stop reading American newspapers and stick to foreign rags like BBC, Guardian, Al Jazeera, and Spiegel. You’ll find that these newspapers have, like, actual news in them, rather than pages and pages of op-eds from assclowns I wouldn’t trust to take care of my dog.)
Our trepidation and even our fury is understandable. You see, Iraq was all about WE HAZ TO ATTACK BECUZ ZOMG THEY HAVE WEAPINZS OF MATH DEDUCTION AND THEY ARE GOING TO KILL US EVERYBODY PICNICK!!!11one. People in the Know all agree that Iraq was bullshit; Bush was gung-ho about invading Iraq, got Tony Blair to bend to his cowboy will, and in the process severely weakened the UN as a governing force:
The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.
A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process – arguments made by Ed Miliband in his inaugural speech to the Labour conference.
Ralph Zacklin, the British-born UN assistant secretary general for legal affairs at the time, has told the inquiry that the attorney general, Lord Goldsmith, failed to strike a proper balance “between the underlying political concerns of the government and respect for the rule of law” in adopting the view that a fresh UN security council resolution was not needed. Goldsmith’s interpretation of previous UN resolutions was “self-serving”.
“The damage to the UK and credibility of the security council was very significant”, he told the Guardian today. “It was pretty clear [Goldsmith] was under a lot of pressure”.
Zacklin said the way Jack Straw, then foreign secretary, dismissed the advice of his own lawyers was particularly shocking. Chilcot has heard that Sir Michael Wood, warned Straw that “to use force without security council authority would amount to a crime of aggression”.
In a separate submission, a group of 23 lawyers describe the government’s argument that it could rely on previous UN resolutions to invade as untenable. “The decision to use force against a sovereign state is so monumental … it can only be taken by the security council.”
It bears repeating: The decision to use force against a sovereign state is so monumental that it can only be taken by the security council.
The 2003 land-invasion of Iraq was not sanctioned by the Security Council. Bush was chomping at the bit to go into Iraq and argued that the resort to force was implied in this or that or the other UN resolution. The Bushies made various arguments, using previous resolutions related to the Iraq/Kuwait conflict to prop up its INVADE IRAQ NOW PLEASE stance, but those arguments were kitchen-sink arguments. Indeed, Richard Perle, the hawkiest of war hawks conceded that the war was illegal, stating that international law got in the way of what the Bush Administration believed to be right:
In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: “I think in this case international law stood in the way of doing the right thing.”
President George Bush has consistently argued that the war was legal either because of existing UN security council resolutions on Iraq – also the British government’s publicly stated view – or as an act of self-defence permitted by international law.
But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that “international law … would have required us to leave Saddam Hussein alone”, and this would have been morally unacceptable.
French intransigence, he added, meant there had been “no practical mechanism consistent with the rules of the UN for dealing with Saddam Hussein”.
Mr Perle, who was speaking at an event organised by the Institute of Contemporary Arts in London, had argued loudly for the toppling of the Iraqi dictator since the end of the 1991 Gulf war.
What’s happening in Libya is exactly not that. (In fact, the “Obama is a pussy” meme is already circulating because Obama didn’t act quickly enough.) What’s happening in Libya is the same as what happened in Tunisia and Egypt (and what’s happening in Bahrain and Yemen) except that Qaddafi is a crazy asshole who is bombing and shooting the shit out of his own people with reckless abandon (and it doesn’t seem that Bahrain and Yemen have gotten that bad yet (typed with irony or sarcasm or whatever). Qaddafi is such a nutjob that some of his own military have taken up arms against him and refuse to carry out his orders. Nonplussed, Qaddafi went and hired a bunch of mercenary thugs to slaughter people. These actions directly undermine the purpose of the UN which is — if you’ve been paying attention — to keep the peace.
Check out Security Council Resolution 1674 (adopted in 2006) if you don’t believe me. 1674 states that it is the UN’s responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, even in cases where the civilians in need of protection are smack dab in the middle of an armed conflict. (Like Libya.)
With Iraq? Well who the fuck knew why we were in Iraq. We had our suspicions but it was hard to keep up with the moving target. WMDs, no wait, democracy… no wait… 9/11… no wait, we don’t like Hussein’s mustache and beret. Whatever the reasons trotted out, they were each bullshit. As such, it is perfectly understandable that we are all suffering Battered Bush Syndrome.
Bush lied to the UN about the threat that the US was facing — ZOMG! mushroom cloud!! — so that he could Shock and Awe and declare “Mission Accomplished” while wearing a super-sweet bomber jacket. He got Colin Powell — everybody trusts Colin Powell! — to lie his black ass off in front of the UN.
The Bush Administration lied and lied and lied until half the country believed the lies, while the other half looked on, aghast at the fuckery. Those of us with brains kept wondering why we were bombing Iraq instead of tracking bin Laden’s ass down. But Bush wasn’t worried about bin Laden. He said as much. The only time bin Laden got thrust into the collective consciousness was when it was election time, or when it was time to pass some ridiculous legislation, or when it was time to ask Congress for more money for the war chest. Only then would a new bin Laden tape appear, and only then would the terror threat be raised to YOU’RE PROBABLY ON FIRE RIGHT NOW! And of course, the vast majority of the country lost its collective shit.
So, yeah — I get it. But again, this isn’t Iraq.
[read the rest and comment here]