What is immediately striking about the bipartisan call in Washington for a no-fly zone and air strikes designed to help rebel forces in Libya is the absence of any concern with the relevance of international law or the authority of the United Nations.
None in authority take the trouble to construct some kind of legal rationalisation. The 'realists' in command, and echoed by the mainstream media, do not feel any need to provide even a legal fig leaf before embarking on aggressive warfare.
It should be obvious that a no-fly zone in Libyan airspace is an act of war, as would be, of course, contemplated air strikes on fortifications of the Gaddafi forces.
The core legal obligation of the UN Charter requires member states to refrain from any use of force unless it can be justified as self-defence after a cross-border armed attack or mandated by a decision of the UN Security Council.
Neither of these conditions authorising a legal use of force is remotely present, and yet the discussion proceeds in the media and Washington circles as if the only questions worth discussing pertain to feasibility, costs, risks, and a possible backlash in the Arab world.
The imperial mentality is not inclined to discuss the question of legality, much less show behavioural respect for the constraints embedded in international law.
Cannot it not be argued that in situations of humanitarian emergency 'a state of exception' exists allowing an intervention to be carried out by a coalition of the willing provided it doesn't make the situation worse? Was not this the essential moral/political rationale for NATO's Kosovo War in 1999, and didn't that probably spare the majority Albanian population in Kosovo from a bloody episode of ethnic cleansing at the hands of the embattled Serb occupiers?
Hard cases make bad precedents, as is well known. But even bad precedents need to find a justification in the circumstances of a new claimed situation of claimed exception, or else there would a strong reinforcement for the public impression that the powerful act as they will without even pausing to make a principled argument for a proposed departure from the normal legal regime of restraint.
With respect to Libya, we need to take account of the fact that the Gaddafi government, however distasteful on humanitarian grounds, remains the lawful diplomatic representative of a sovereign state, and any international use of force even by the UN, much less a state or group of states, would constitute an unlawful intervention in the internal affairs of a sovereign state, prohibited by Article 2(7) of the UN Charter unless expressly authorised by the Security Council as essential for the sake of international peace and security.
Beyond this, there is no assurance that an intervention, if undertaken, would lessen the suffering of the Libyan people or bring to power a regime more respectful of human rights and dedicated to democratic participation.
The record of military intervention during the last several decades is one of almost unbroken failure if either the human costs or political outcomes are taken into proper account.
Such interventionary experience in the Islamic world during the last fifty years makes it impossible to sustain the burden of persuasion that would be needed to justify an anti-regime intervention in Libya in some ethically and legally persuasive way.
An issue with credibility
There are also serious credibility concerns. As has been widely noted in recent weeks, the US has had no second thoughts about supporting oppressive regimes throughout the region for decades, and is widely resented for this role by the various anti-regime movements.
Gaddafi's crimes against humanity were never a secret, and certainly widely known by European and American intelligence services. Even high profile liberal intellectuals in Britain and the US welcomed invitations to Tripoli during the last several years, apparently without a blink of conscience, accepting consulting fees and shamelessly writing positive assessments that praised the softening authoritarianism in Libya.
Perhaps, that is what Joseph Nye, one of the most prominent of these recent good will visitors to Tripoli, would call a private use of 'smart power', commending Gaddafi for renouncing his anti-West posture, for making deals for oil and weapons, and most of all for abandoning what some now say was at most a phantom nuclear weapons program.
Some Beltway pundits are insisting on talk shows that the interventionists after faltering in the region want to get on the right side of history before it is too late. But what is the right side of history in Libya seems quite different than it is in Bahrain or Jordan, and for that matter throughout the region. History seems to flow according to the same river currents as does oil!
Elsewhere, the effort is to restore stability with minimal concessions to the reformist demands, hoping to get away with a political touch up that is designed to convert the insurrectionists of yesterday into the bureaucrats of tomorrow.
Mahmoud Mamdani has taught us to distinguish 'good Muslims' from 'bad Muslims', now we are being instructed to distinguish 'good autocrats' from 'bad autocrats'.
By this definition, only the pro-regime elements in Libya and Iran qualify as bad autocrats, and their structures must at least be shaken if they cannot be broken.
What distinguishes these regimes? It does not seem to be that their degree of oppressiveness is more pervasive and severe than is the case for the others. Other considerations give more insight: access and pricing of oil, arms sales, security of Israel, relationship to the neoliberal world economy.
What I find most disturbing is that despite the failures of counterinsurgency thinking and practise, American foreign policy gurus continue to contemplate intervention in post-colonial societies without scruples or the slightest show of sensitivity to historical experience, not even the recognition that national resistance in the post-colonial world has consistently neutralised the advantages of superior hard power deployed by the intervening power.
The most that has been heard is a whispered expression of concern by the relatively circumspect secretary of defence, Robert Gates, that it may not be prudent at this time for the US to intervene in yet another Islamic country.
The past ignored
The absence of any learning from Vietnam, Afghanistan, and Iraq is startling, underscored by the glorification of general David Petraeus who rose to military stardom soon after he was credited with refurbishing the army's approach to counterinsurgency, which is the Pentagon jargon for pro-regime intervention.
Major current illustrations are Afghanistan, Iraq, and several other places in the Middle East. Technically speaking, the proposed intervention in Libya is not an instance of counterinsurgency, but is rather a pro-insurgency intervention, as has also been the case with the covert destabilisation efforts that continue in Iran.
It is easier to understand the professional resistance to learning from past failure on the part of military commanders as it is their life work, but the civilian politicians deserve not a whit of sympathy.
Among the most ardent advocates of intervention in Libya are the last republican presidential candidate, John McCain, the supposedly independent Joe Lieberman, and the Obama democrat John Kerry.
It seems that many of the republicans focused on the deficit although cutting public expenditures punishes the poor at a time of widespread unemployment and home foreclosures would not mind ponying up countless billions to finance acts of war in Libya.
There exists a worrying readiness to throw money and weapons at an overseas conflict, seemingly as to show that imperial geopolitics is not yet dead despite the growing evidence of American decline.
In the end, I suppose we have to hope that those more cautious imperial voices that base their opposition to intervention on feasibility concerns carry the day!
What I am mainly decrying here in the Libyan debate are three kinds of policy failure:
- The exclusion of international law and the United Nations from relevance to national debates about international uses of force;
- The absence of respect for the dynamics of self-determination in societies of the South;
- The refusal to heed the ethics and politics appropriate for a post-colonial world order that is being de-Westernised and is becoming increasingly multi-polar.
Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished 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, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).
He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.