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Libyan No-Fly Zone

Posted by Don McLenaghen on March 18, 2011

Peace Prize Roulette

Last week we talked about the popular uprising in Libya and the possibility that world powers would erect a no-fly zone over Libya to level the battle field between the heavily armed forces of Gadhafi and those of the newly recognized government in Benghazi. I mentioned that the US (and any western power) was in a kind of catch 22 – they enforce the no-fly zone and people says it’s another attempt by the west to secure Arab oil (although the Arab League last Saturday announced its support for the zone)…or they don’t and people say that the west doesn’t care if ‘brown people’ die.

Well, as it turns out there is an international law…well a UN protocol, that provides support for the UN to enforce a no-fly zone provided it meets certain criteria, called The Responsibility to Protect[1]. It has three main clauses[2]:

A State has a responsibility to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing (mass atrocities).

If the State is unable to protect its population on its own, the international community has a responsibility to assist the state by building its capacity. This can mean building early warning capabilities, mediating conflicts between political parties, strengthening the security sector, mobilizing standby forces, and many other actions.

If a State is manifestly failing to protect its citizens from mass atrocities and peaceful measures are not working, the international community has the responsibility to intervene at first diplomatically, then more coercively, and as a last resort, with military force.

So, the first one says, a state has the responsibility not to kill large portions of its own population, the second one states that if a state needs help to prevent the killing of large portions of its population, the international community may step in to help. Lastly, when a state is killing large portions of its own population, the international community has the responsibility to protect that population from its own government. It seems clear, to me at least, that this is the situation in Libya; that although it may look bad, lives are being lost and the world has the responsibility to act.

Okay, that’s the political speech…now let’s get skeptical. First, the rules claim genocide or ethnic cleansing…is this the case? Well, Libya is very tribal and the fighting does appear to be along largely tribal lines, however there does not appear to be any attempt to ‘remove or kill an ethnic group from a geographical area’. It’s factional fighting but so far, limited to combat and political reprisals, but not genocide.

Okay, what about crimes against humanity?

The cost of delay...

What are crimes against humanity[3]…simply they are acts that violate basic human rights on a grand scale. Acts, such as murder, committed as part of a widespread or systematic attack directed against any civilian population. Acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. They are NOT sporadic or isolated…that is a few people here or there have their human rights violated is a bad thing but only when it is a large population does it qualify as a crime. I am unclear if Libya qualifies, well at least for this current event, because crimes against humanity are largely assessed in times of peace or occupation; neither seems to be completely applicable here. Yet the ICC has made precedent that it does qualify.

Okay, what about war crimes?

What IS the law of war is not well defined. The best example I could find is International Humanitarian Law[4]…the Geneva conventions for those of us not law professors. Of these the only one that seemed applicable was: Captured combatants and civilians must be protected against acts of violence and reprisals. Now some, including myself, are not sure if the rules of warfare apply to civil wars but there is historical precedent. The breakup of Yugoslavia resulted in charges of war crimes in the world court. UN war crimes tribunal has charged Charles Taylor for civil-war war crimes and the International Criminal Court (ICC) currently has indicted 11 people for civil-war type war crimes. Based on the ICC, it seems both War Crimes and Crimes against humanity have occurred in Libya thus making active intervention necessary.

Now this must be limited to the idea of responsibility to protect; that is intervention to stop mass killing and then to step back and allow ‘civil and democratic’ process to resolve the conflict. Failures in the past can be traced to three main faults: one, delaying action to the point where intervention served no purpose (the damage was already done…this I fear is what is currently happening in Libya); two, too little intervention so that crimes can still persist (this is what happened in Iraq in the 90’s, where intervention served only to make the life of the civilians worse and solidify the control of the dictatorship); and third, too much intervention (this is what happened in Iraq in 2k3; where instead of stopping crimes, the ‘coalition’ attempted to replace the government with one of their own making).

Lost Opportunity

Currently the delays and inaction by the UN (which was always going to be handicapped by anti-interventionist nations like China and Russia), NATO (which has a moral responsibility but technically Libya is outside its jurisdiction) and the Arab League (which lacks the ability to enforce a no-fly zone) makes it all the more likely that the totalitarian regime of Gadhafi will re-assert itself over Libya (likely leading to a genocide of those tribes that supported the revolution). Although legal issues made this delay likely and politics made it inevitable, it strikes me as a sad indictment of the so-called ‘moral democracies’ that we hide behind technicalities while allowing

Proving Critics Right

thousands of people to die…who died in the name of democracy. The USA…NATO…and yes, as ineffectual as it may have been, even Canada has a prime opportunity to show the world that it could use military force to defend the principle it CLAIMS to be defending in Iraq and Afghanistan…defend them in a meaningful and useful way; instead the opportunity may have slipped through our Noble Peace Prize winning (why again did Obama win?) ‘leader of the free world’ hands and the world is much worse place because of it.

<UPDATE>

The UN has just approved a No-Fly Zone and Canada IS sending planes to help…that is good but was it too late?

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