responsibility to overthrow: libyan regime change and the politics of intervention

POLITICAL TERRORISM 01:202:311

PROFESSOR LENNOX S. HINDS

RUTGERS UNIVERSITY SCHOOL OF ARTS AND SCIENCES

November 2012

RESPONSIBILITY TO OVERTHROW: Libyan Regime Change and the Politics of Intervention Joseph S. Amditis

POLITICAL TERRORISM 01:202:311

PROFESSOR LENNOX HINDS NOVEMBER 2012

RESPONSIBILITY TO OVERTHROW: Libyan Regime Change and the Politics of Intervention

Joseph S. Amditis

TABLE OF CONTENTS

I. INTRODUCTION.................................................................................1 II. HISTORICAL BACKGROUND..............................................................2

a. Post-Colonial Tensions..............................................................2 b. Gaddafi’s Libya.........................................................................4

III. HUMANITARIAN INTERVENTION.......................................................5 a. Unipolar Intervention................................................................6 b. Potential for Abuse....................................................................7

IV. INCONSISTENCIES IN WESTERN FOREIGN POLICY.............................8 a. Vietnam Invades Democratic Kampuchea...............................10 b. Managed Transition in Egypt..................................................11 c. The World Turns Its Back on Bahrain.....................................12

V. OPERATION UNIFIED PROTECTOR...................................................14 a. Hasty Intervention & Chapter VII Powers..............................14 b. Civilian Distinction & Discrimination....................................16 c. Post-Intervention Human Rights Conditions...........................18 d. The LIFG & Liability Under International Law......................21

VI. CONCLUSION...................................................................................22

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Responsibility to Overthrow: Libyan Regime Change and the Politics of Intervention Joseph S. Amditis*

I. INTRODUCTION

On February 26, 2011, the United Nations Security Council passed Resolution 1970 in response to the violence and ongoing human rights violations being committed against the people of Libya by Colonel Muammar al-Gaddafi and his regime.1 The charges against the Gaddafi regime are numerous, the majority of which predate the February 2011 popular uprisings in Libya. On March 17, 2011, the Security Council passed Resolution 1973, further condemning the use of force against the rebel forces and imposing a number of sanctions and demands on Gaddafi and his regime including a no-fly zone and an arms embargo.2 Citing Chapter VII authority, the Security Council demanded an immediate cease-fire, an end to the violence and all attacks against civilians, and called for member states to “take all necessary measures” to prevent further civilian casualties and enforce compliance with the resolution. This article will illustrate the ways in which NATO’s armed intervention in Libya violated customary norms, standards, and practices of international law. This article will also demonstrate the ways in which, from a broader historical perspective, the bombing campaign in Libya constitutes yet another episode in the ongoing saga of Western hypocrisy and global hegemony. In this context, it becomes clear that, while NATO’s recent actions are wrought with international legal violations and contradictions at the local and individual levels, the underlying premise and motivation render the operation itself illegal on a much broader scale.

Section II of this article will describe the strategic, economic, and geopolitical values of the Libyan territory as seen by competing international entities, and will provide relevant historical context surrounding the relationship between Muammar Gaddafi and the Libyan people. Section III will outline the development of and legal inconsistencies within the modern concept of humanitarian intervention and the doctrine of Responsibility to Protect (R2P). Section IV will review the development of the legal precedent and the rule of law in relation to the recent uses of armed intervention within other countries in the region, as well as the contradictory nature of these interventions. Section V will discuss the implementation of Operation Unified Protector in relation to Resolution 1973, the effects of the aerial bombing campaign on the civilian population of Libya, and allegations of NATO war crimes under international law. This section will also examine the effects of Operation Unified Protector on the humanitarian situation within Libya, provide a comparison between the situation on the ground before and after

* Undergraduate Student, Rutgers, The State University of New Jersey, School of Arts and Sciences, Author. 1 S.C. RES. 1970, U.N. DOC. S/RES/1970 (2011), at ¶ 1. 2 S.C. RES. 1973, U.N. DOC. S/RES/1973 (2011).

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the intervention, and briefly discuss the relationship between the West and the opposition forces.

II. HISTORICAL BACKGROUND

The political scientist, unlike the natural scientist, does not have the luxury of conducting experiments and analyzing data in a controlled environment. Instead, she must use history and precedent as her laboratory, and retrospective analysis as her primary methodology. It is therefore crucial that we examine instances of armed intervention in history to ensure consistency and adherence to the rule of law. Without applying critical hindsight in contemporary policymaking, we are condemned to repeat the mistakes of the past, and we allow the weak to suffer at the mercy of the powerful.

a. Post-Colonial Tensions

For over sixty years since the formation of the United Nations after the end of World War II, the Great Powers have been competing to secure and maintain control over increasing amounts of crucial territory in the Middle East and Northern Africa. Wars have been fought, alliances have been formed and dissolved, and innumerable lives have been both given and taken in the name of imperialism and the lust for expansive territory and precious natural resources. The effects of this ongoing power struggle are often most visible in those areas possessing some crucial strategic significance or economic value. For instance, the Suez Canal offers irresistible strategic and trade advantages by providing a direct route from the Mediterranean Sea to the Indian Ocean.3 By allowing ships to circumnavigate the cumbersome African continent, commercial ocean liners and military naval vessels are able to significantly reduce the excessive drain on resources and time required to make the trip around Cape Agulhas and on to Asia. Conversely, the canal presents a significant security risk if rival powers were to gain unfettered access to its use.4

It became clear to the former colonial powers that, by 1956, Arab nationalism and the creeping presence of communism were two of the biggest threats to Anglo-Franco hegemony in the region. It was later discovered that, in order to prevent such threats from coming to fruition, France and the United Kingdom had conspired to provoke and subsequently take advantage of the growing tensions between Israel and the surrounding Arab nations. The plot was hatched in response to the decisions by Egyptian President Gamal Abdel Nasser to nationalize the Suez Canal and to recognize the People’s Republic of China.5 Nasser’s actions strengthened Egypt’s ties with the Soviet Union and further alienated Egypt from the western camp. In response, France and the United Kingdom antagonized relations between Egypt and Israel in what was called the Protocol

3 See generally, Roger Owen "Suez Crisis," The Oxford Companion to the Politics of the World, 2nd ed. Joel Krieger, ed. OXFORD UNIV. PRESS Inc, (2001) at Ch. 1. 4 Id., at Ch. 2-3. 5 Iain McLean and Alistair McMillan, "Suez crisis," The Concise Oxford Dictionary of Politics, Ed., OXFORD UNIV. PRESS, (2003).

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of Sèvres.6 The former colonial powers played on the tensions between Egypt and Israel, while simultaneously maneuvering to assume control over the territory along the Canal at the first opportunity. When relations between Israel and Egypt finally broke down, Israel invaded and occupied territory on the Egyptian side of the Suez Canal.7 Right on cue, the British and French governments immediately intervened and secured the territory on either side of Canal. To the international community, however, the intervention was justified solely as a humanitarian mission that was necessary to separate the warring states and prevent further human casualties.8

Although there are significant advantages to be gained by maintaining control over Egypt and the Suez Canal, Libya is rife with geopolitical treasures of its own that have long been points of contention between the major international powers. First, Libya shares a relatively large coastal border with the Mediterranean Sea and provides a convenient and welcoming location for military and commercial ships to make port and unload their inventories.9 The low cost of transportation and shipping gives southern European interests unchallenged access to the Libyan oil fields, which were vast and largely unexplored when Libya gained its official independence in 1951. Likewise, there are virtually no geopolitical risks involved in the development of the Libya oil industry. Since the entire network of pipeline can be contained within the boundaries of Libyan territory, the probability of damage or sabotage by foreign powers is significantly reduced.10

The allure of Libyan oil quickly proved irresistible to international political and commercial powers. In 1959, before the United Kingdom of Libya had existed for even a decade, the United States had already spent more than $100 million on Libya, “making the country the single biggest per capita recipient of US largesse in the world.”11 In the years following World War II, the tensions of the Cold War continued to intensify the already bitter rivalries between the West and the Soviet Union. The United States soon joined France and Great Britain in their efforts to prevent the Soviet Union from securing 6 See generally Avi Shlaim, The Protocol of Sèvres, 1956: Anatomy of a War Plot, 73 International Affairs 3, 509-530 (1997). 7 See McLean & McMillan, “Suez crisis,” supra note 5. 8 See Barry Turner, Suez 1956: The First Oil War, Hodder, (2007), at 21-24. 9 See Henry Serrano Villard, Libya: The New Arab Kingdom of North Africa, Ithaca, NY: CORNELL UNIV. PRESS, (1956); Majid Kadduri, Modern Libya: A Study in Political Development, Baltimore: THE JOHNS HOPKINS UNIV. PRESS, (1963). 10 See Dirk Vandewalle, A History of Modern Libya, CAMBRIDGE UNIV. PRESS, (2006), at 55-56, (“Libya’s location also proved to be an important asset. Situated close to the European market, Libyan oil commanded an important advantage over Middle East oil: lower transportation costs, particularly to the southern European ports. [...] Similarly, Libya would not have to ship its oil through the Suez Canal, a lesson that was not lost on the oil companies when the canal was closed after the 1967 Middle East War.”). 11 Id., at 45, (“The independence of Libya in 1951 and its subsequent economic development also politically pulled the country inexorably into the western camp. The country was created at the behest of the western powers [...] In particular, warm relations between the United States and Libya served the interests of both parties, and US companies would assume a leading role in developing the country’s oil industry.”).


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any significant or lasting influence along the coastlines of northern Africa and the Mediterranean.12

b. Gaddafi’s Libya

After participating in a bloodless coup d’état to overthrow the anachronistic and stagnating monarchy of King Irdis al-Sanusi, a young and ambitious Muammar Gaddafi assumed power over what he described as an ongoing revolutionary struggle against the corrosive influence of the West and the oil companies.13 The purported aim was to pursue President Nasser’s dream of a pan-Arabic nationalism by uniting Libya against Western imperialism.14 Gaddafi presented lofty and often simplistic solutions to complex geopolitical problems, but he spoke with a passion and represented the unspoken sentiments of many leaders in the region who were growing weary of repeated failures to achieve self-sufficiency under the shadow of Western power.15

During the years leading up to the 1986 bombings of Tripoli and Benghazi by US forces, Libya had been placed on the newly created list of state sponsors of terrorism by the US State Department.16 Relations between Gaddafi and the West continued to deteriorate, leading to sanctions as well as embassy closures in Libya and the United States. A complex trade embargo was subsequently implemented against Libya after the Jamahiriyya participated in the OPEC oil embargo against the US in the 1970s.17 After a series of economic and strategic exchanges between Washington and Colonel Gaddafi, the relationship seemed to come to a head after the US shot down Libyan aircraft over what Gaddafi claimed to be Libya’s territorial waters. After another exchange of attacks, two Libyans were accused of being involved in the 1988 bombing of Pan Am 103 over Lockerbie, Scotland.18

Most Libyans were accustomed to generations of tribal and familial governance of the colonial years and during the subsequent rule of the al-Sanusi monarchy. Frustrated by the politically apathetic attitude common to Libyan culture, Gaddafi hoped to expedite the realization of his dreams for a united Libya governed by the people. The answer came from the creation and dramatic unveiling of Al-Wathiqa al-Khadra al-Kubra lil-Huquq

12 Id., at 40. 13 See Vandewalle, supra note 10, at 80, (Gaddafi said, “Tell President Nasser we made this revolution for him. He can take everything of ours and add it to the rest of the Arab world’s resources to be used for the battle [against Israel, and for Arab unity].”). 14 Ibid. 15 Ibid. 16 Id., at 152. 17 See Significant Events in U.S-Libya Relations, Office of the Spokesman, U.S. DEPT. OF STATE, September 2, 2008. 18 The judicial process that followed the Lockerbie incident would not be concluded until August 2009 when Abdelbaset al-Megrahi, the only suspect convicted, was released from prison on the grounds that he had less than three months to live due to Megrahi’s terminal prostate cancer; see Vandewalle, supra note 10, at 152; see also Alan Cowell & A. G. Sulzberger, “Lockerbie Convict Returns to Jubilant Welcome,” N.Y. TIMES, August 20, 2009.


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al-Insan fi ‘Asr al-Jamahir (The Great Green Charter of Human Rights in the Era of the Masses) in 1988.19

As time passed it became clear that, despite Gaddafi’s constant praises of egalitarianism and popular rule, the Great Green Charter provided Libyans with little in the ways of real economic or political freedoms. The structure of the Charter was such that political opposition or public expression, along with many other civil or political rights, had no place in the Jamahiriyya.20 The rationale behind the prohibitions stemmed from the fact that, according to the Charter, the right to expression could be freely exercised at the Popular Congress meetings. But, since the Popular Congress and Committees technically represented the people, any opposition to the regime or its policies was instead considered opposition to the people.21

Eventually, as Colonel Gaddafi continued to impose his vision for a “state of the masses” on the people, certain groups of young educated Libyans who were opposed to the Jamahiriyya began to organize and conspire against the Colonel and his regime. This was due in large part to the fact that, in 1977, Gaddafi significantly tightened his political grip on Libya. He began “regulating every aspect of life, from religion to economic to education, in entirely new and often incomprehensible ways.”22 One such opposition group called itself the Libyan Islamic Fighting Group (LIFG). The LIFG was one of the many Islamic opposition groups that began to appear in the early 1980s in response to the actions of various repressive and corrupt governments in the region.23 Several of these groups, specifically the LIFG, would come to play a vital role in the fall of the Gaddafi regime and the eventual restructuring of Libya.24

III. HUMANITARIAN INTERVENTION

Humanitarian intervention is not a new concept in international law. Many countries throughout history have espoused moral, humanitarian, and other similar justifications in defense of aggression and the use of force.25 Advocates of today’s so-

19 Vandewalle, supra note 10, at 144, (“The Green Charter, if fully implemented, would in effect have put a halt to, and reversed, the arbitrariness and unpredictability of the country’s revolutionary decade.”). 20 Id., at 147. 21 Id., at 144-145. 22 See Delivered Into Enemy Hands: US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya, HUMAN RIGHTS WATCH, September 2012, at 3, [hereinafter Delivered Into Enemy Hands]. 23 Id., at 2-3. 24 The LIFG and other Islamic opposition groups have been frequently supported and utilized by both US and UK covert and intelligence agencies to achieve various foreign and economic policy objectives. Most notably and relevant to this article is the MI6-backed assassination attempt on Colonel Gaddafi in the mid-1990s; see Mark Curtis, Secret Affairs: Britain’s Collusion with Radical Islam, Updated Ed., SERPENT’S TAIL, an imprint of PROFILE BOOKS LTD., (2012), at 225-231; see also Section V, infra. 25 For a more comprehensive history of the concept of humanitarian intervention, see Ryan Goodman, Humanitarian Intervention and Pretexts for War, 100 AM. J. OF INT’L L. 107, (2006).


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called “just wars” have simply adjusted their rhetoric to accommodate the particular moral panic of the time. Today, the primary method involves the use of force by the West – overwhelmingly by NATO and the US. Interventions are said to fulfill moral or ethical obligations, often to prevent alleged atrocities from being carried out against local civilian populations.26 The most recent exercise of this extrajudicial foreign policy tool was NATO’s aerial bombing campaign in Libya, which has been hailed as the poster child for humanitarian intervention.27 This section will explore the use of humanitarian claims to justify violations of national sovereignty and other illegal uses of force as a means to further Western economic and foreign policy goals.

a. Unipolar Intervention

After World War II and the introduction of the UN Charter, the competing interests of the Great Powers created a balance of power that essentially prevented any single major power from imposing its own set of justifications for intervention.28 Additionally, the Security Council veto gave the permanent member states the power to intercept and obstruct any action taken by the Council “when their own ‘vital interests’ are at stake.”29 This had the effect of shielding them from any punitive measures arising as a result of their own violations of international and humanitarian law. Thus, the veto power found in Article 27 (3) gave the permanent Council members virtual immunity to the prohibition against the use of force found in Article 2(4) and Article 2(7) of the Charter, rendering the entire premise of the Charter all but obsolete.30 The structural inconsistency found in Article 27 illustrates the fundamental contradiction at the heart of every humanitarian intervention operation. Consequently, the very legitimacy of the practice must be questioned under any pretext, irrespective of appeals to a higher moral authority by the intervening parties.

26 See Garth Evans, Viewpoint: ‘Overwhelming’ Moral Case for Military Path, BBC NEWS, (Mar. 8, 2011), (advocating for Western intervention in Libya). 27 See Paul R. Williams & Colleen (Betsy) Popken, Security Council Resolution 1973 on Libya: A Moment of Legal & Moral Clarity, 44 CASE W. RES. J. INT’L L. 225, 225-226 (2011), [hereinafter Moral Clarity], (“...humanitarian intervention has often been handicapped by narrow legal mandates and weak implementation. But in Libya, the world got it right.”), also at 227 (“[W]hen the international community does determine that humanitarian intervention is the right course of actions, Resolution 1973 and its implementation provides a model framework to successfully protect civilians.”). 28 See Hans Köchler, The Use of Force in the New International Order: On the Problematic Nature of the Concept of Humanitarian Intervention, (presented at the international conference, Interventionism against International Law: From Iraq to Yugoslavia, Madrid, 20 November 1999), INTERNATIONAL PROGRESS ORGANIZATION, (2000), at 2. 29 Ibid. 30 See Hans Köchler, Humanitarian Intervention in the Context of Modern Power Politics: Is the Revival of the Doctrine of the “Just War” Compatible with the International Rule of Law?” INTERNATIONAL PROGRESS ORGANIZATION XXVI, (2001), 13-14, [hereinafter Modern Power Politics].


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Following the collapse of the Soviet Union, the balance of international political power underwent a major shift. The bipolar equilibrium at the end of the Cold War31 was replaced by a system of unipolar dominance by the US and NATO within the context of the “New World Order.”32 After the restructuring of international political power, humanitarian concerns have been cited to justify interventions in at least 17 different target nations since 1990.33 In virtually every instance of intervention, the operations have resulted in increased suffering for the local populations, and numerous allegations of war crimes are often directed against the invading forces.34 The United States in particular has been accused of using prohibited weapons,35 torture,36 indiscriminate and disproportionate targeting practices, and numerous other violations of human rights and humanitarian law during intervention campaigns since the 1990s.37

b. Potential for Abuse

Many in the international community have pointed out the seemingly irresistible temptation for powerful states to abuse the practice by framing acts of aggression as lawful acts of humanitarian intervention.38 In the past, most states have vehemently opposed intervention by third states on any basis whatsoever, even when the local population or government has directly requested intervention.39 For instance, the intervention in the Democratic Republic of Congo (which was predominantly justified

31 Id., at 10, (“During the Cold War period, characterized by an order of bipolarity, respect for [the principle of nonintervention] effectively prevented the outbreak of a major confrontation between the two rival superpowers.”). 32 George H. W. Bush, “Remarks at the United States Military Academy in West Point, New York,” January 5, 1993, PUBLIC PAPERS OF THE PRESIDENTS: George Bush (Washington, D.C.: OFFICE OF THE FEDERAL REGISTER, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, 1993), 2:2228-32. 33 See Williams & Popkin, Moral Clarity, supra note 27, (“...at least 17 humanitarian interventions have taken place since 1990 – including northern and southern Iraq, East Timor, Bosnia, Somalia, and Kosovo...”). 34 See Köchler, Modern Power Politics, supra note 29, at 16. 35 US Army Admits Use of White Phosphorous as Weapon in Iraq, CENTER FOR RESEARCH ON GLOBALIZATION, November 10, 2005. 36 Jeremy Brecher & Brendan Smith, “Command Responsibiliy?” Foreign Policy in Focus, January 10, 2006. 37 NATO/FEDERAL REPUBLIC OF YUGOSLAVIA: “Collateral Damage” or Unlawful Killings? Violations of the Laws of War by NATO During Operation Allied Force, AMNESTY INTERNATIONAL, (June 2000). 38 See M. Sornarajah, Internal Colonialism and Humanitarian Intervention, 11 GA. J. INT’L & COMP. L. 45, 64-65 (1981). 39 See Sean Lynch, An Invitation to Meddle: The International Community’s Intervention in Libya and the Doctrine of Intervention by Invitation, 2 Creighton Int’l & Comp. L. J. 173 (2011-2012), [hereinafter Invitation to Meddle].


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based on requests for intervention from the ‘Government of Congo’40) has received criticism concerning the legitimacy of the motives for the operation.41

While some have come to the “inescapable conclusion that if ever there was a case for the use of forcible self-help to protect lives, the Congo rescue operation was it,”42 this should not be considered a sufficient justification for invading another sovereign nation. The mere existence of local groups that favor armed intervention does not supersede Article 2(4) of the UN Charter, nor does it constitute a legitimate exercise of self-defense under Article 51.

The intervention in the Congo demonstrates one of the ways in which justifications for armed intervention based on the requests of local factions or organizations are as equally susceptible to abuse as justifications based solely on alleged humanitarian interests.43 It is important to remember that, during any armed conflict, there will always be someone who is eager to receive strategic and military assistance from powerful external actors to assist in the fight against opposing forces. The intervening power can simply coordinate with groups on the ground “to set up a puppet government and to extract an invitation to intervene.”44 Like the Congo, similar claims were used to garner support for intervention in Libya. Western powers rushed to recognize the National Transitional Council (NTC) as the legitimate authority on the ground, leading to increased tensions and violence within Libya’s civilian population.45

IV. INCONSISTENCIES IN WESTERN FOREIGN POLICY

The United States and its allies have taken multiple actions without explicit approval or support from the international community.46 The moral prestige of intervention for the protection of human rights over the principle of sovereign equality of states, however, stands in direct contrast to the policies and statements of the Great

40 Id., at 65, n. 102, (“The Tshombe government was not recognized by many states and did not possess sufficient control at the time of the invitation to be characterized as the ‘Government of Congo.’”). 41 Id., at 65, citing HUMANITARIAN INTERVENTION AND THE UNITED NATIONS, Conference Proceedings at 68, note 6 (H. Lillich ed. 1973). 42 Higgins, International Law and Civil Conflict, in THE INTERNATIONAL REGULATION OF CIVIL WARS 169, 176 (E. Luard ed. 1972). 43 See Sornarajah, supra note 38, at 64-65, citing Ian Brownlie, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 342, (1963), (“Brownlie suggested that the legality of the intervention was not based on the principle of humanitarian intervention but on the fact that the operation took place ‘with the authorization of the ‘Government of Congo.’”). 44 Id., at 65, (This concept is especially relevant to Operation Unified Protector and the intervention in Libya and will be discussed in more depth in SECTION VI, infra). 45 See SECTION V(c), infra. 46 For an in-depth analysis of US unilateralism see Bradley F. Podliska, Acting Alone: A Scientific Study of American Hegemony and Unilateral Use-of-Force Decision Making, (Lanham, MD: Lexington Books) ISBN 978-0-7391-4251-6, (2010), [hereinafter US Unilateralism].


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Powers in the early years of the United Nations throughout the end of the Cold War.47 The right to intervene in the domestic affairs of another sovereign nation has been vehemently opposed by the United States and the major Western powers.48 The United Nations General Assembly has also strongly condemned all forms of intervention by third party states, irrespective of moral, legal, or humanitarian concerns.49

History exposes a strong correlation between the geopolitical and commercial value of the target state and Western support for intervention.50 States that receive significant amounts of Western aid, and those who possess valuable strategic or economic properties are often sheltered from significant punitive measures resulting from violations of international law and sovereignty.51 Conversely, the West frequently condemns the actions of nonaligned countries or geopolitical rivals who commit similar violations. In the latter cases, states are often sanctioned, embargoed, labeled as state-supporters of terrorism, or simply invaded if their actions run contrary to Western interests.52 This principle is further illustrated when certain states – Libya, for one – are placed on terror sponsor lists if their actions do not comport with Western interests,53 and are then conveniently removed from those lists when the West has seeks to pursue trade or security partnerships, absent any changes in the leadership, goals, or behavior of the former ‘sponsor of terror.’54

This pattern of selective intervention undermines the international rule of law and “gradually leads to a state of global anarchy among the self-declared champions of just causes, whichever the criteria of their definition may be.”55 Denis Touret writes, if the “government does not respect the principle of sovereign equality of states, how can it

47 See Julius Stone, Hope and Loopholes in the Definition of Aggression, 71 AM. J. OF INT’L L. 224, 233-234 (1997), [hereinafter Hope and Loopholes], (“The license of ‘peoples’ to use force against states under whose sovereignty they lived, and of third states to assist them in this, was strongly denied [...] especially Western states...”). 48 Id., at 238, (“The United States wished to stigmatize not only the sending but also the organization of, assistance to, and knowing acquiescence in the activities of not only armed bands, groups, irregulars, or mercenaries, but also ‘volunteers.’”). 49 See Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, GA Res. 2131(14), U.N. DOC. A/RES/2131/13. December 21, 1965. 50 See Asli Bâli & Aziz Rana, American Overreach: Strategic Interests and Millennial Ambitions in the Middle East, 15 GEOPOLITICS 210, 224-30 (2010), (“Two competing strategies have been deployed in international responses to the Arab uprisings...”). 51 Christine Chinkin, “The State That Acts Alone: Bully, Good Samaritan, or Iconoclast,” II European Journal of International Law 36, 37 (2000). 52 Asli Bâli & Aziz Rana, Pax Arabica?: Provisional Sovereignty and Intervention in the Arab Uprisings, 42 CAL. W. INT’L. L. J. 321, (2012), [hereinafter Pax Arabica]. 53 See SECTION II(b), supra. 54 See SECTION V(d), infra. 55 See, Köchler, Modern Power Politics, supra note 29, at 32.


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invoke such a principle against third parties? One cannot invoke a principle which one refuses to respect.”56

a. Vietnam Invades Democratic Kampuchea

In 1979, the Khmer Rouge violently attacked a series of Vietnamese communities. The assault destroyed 25 townships and 96 villages, leaving roughly 257,000 Vietnamese without a place to live.57 Despite Vietnam’s justifiable claim of self-defense under Article 51, both the US and the UK were quick to denounce the Vietnamese invasion of Democratic Kampuchea. The United Kingdom pointed to the hypocrisy of the invasion in light of Vietnam’s own record of human rights violations.58 Both reaffirmed their commitments to the sovereign equality of independent states and demanded a withdrawal of Vietnamese troops from Kampuchean territory, reminding the Assembly that respect for the territorial integrity of “is one of the corner-stones of the Charter and of the United Nations system.”59

The United States went even further, claiming that several of the highest principles of international law had been violated. According to the US, although “some of the worst violations of human rights in recorded history have taken place [within Kampuchea itself],”60 the most important facts were:

“The troops of one country are now occupying the territory of another and have imposed a new government upon it by force of arms. The fact leads us to the conclusion that the solution to the problem we are discussing is clear: Viet Nam must immediately withdraw its armed forces from Kampuchea, must make credible its intention to respect the territorial integrity of other States in the region. It must respect those principles [of international law] which have been stated, reiterated and amplified countless times by every member of the Council.”61

The irony of this statement is illustrated by the increasing number of US-led interventions and attacks carried out in violation of those same sacred principles of sovereign equality and territorial integrity.62 In its condemnation of Vietnam’s actions in Cambodia, the US denied the legitimacy of the recently installed Salvation Front. Because the Salvation Front accepted Vietnamese assistance, the US declared, “There can be no question that Viet Nam has conquered its neighbour. [sic] The use of Vietnamese troops, weapons and supplies, supported by Vietnamese aircraft”63 expedited

56 Denis G. Touret, Terrorism and Freedom in International Law, 2 HOUSTON J. OF INT’L L. 363, 373 (1980). 57 See UN SCOR, 24th sess., 2110th mtg., UN DOC. S/PV.2110 (1979). 58 Id., at 6-7. 59 Ibid. 60 Id., at 7. 61 Ibid. 62 See generally Paul F.J. Aranas, Smokescreen: The US, NATO and the Illegitimate Use of Force, (Algora Publishing: New York) ISBN: 87586-894-3, (2012), Ch. 4-7. 63 See UN DOC. S/PV.2110, supra note 57, at 7.


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the fall of the Kampuchean government, thus rendering it an illegitimate administration that “rules thanks to Vietnamese bayonets” and has made “no effort to determine the wishes of the people of Cambodia.”64

On the other hand, the same statements could be used to make the case against US/NATO actions in Libya simply by replacing the relevant proper nouns. The US passion for national sovereignty, however, is conspicuously absent from the discussions concerning NATO’s choice to arm, support, and supply the NTC, which undoubtedly “expedited the fall of the [Libyan] government.”

b. Managed Transition in Egypt

The revolution in Egypt illustrates the first of two distinct types of reactions by the international community to the suppression of dissent in the 21st century.65 Contrary to the standard humanitarian rhetoric, Egypt provides a clearer picture of what actually triggers Western intervention in the Middle East. The positions taken by the Obama administration during the uprising against Hosni Mubarak in Egypt were closely in line with the policies of former US administrations during popular resistance to US-backed dictators.66 As demonstrated by US relations with dictators in the Dominican Republic, Vietnam, Nicaragua, Cuba, Brazil, Chile, and Argentina,67 the US generally adopts a “managed transition” approach68 when confronted with social and political revolt within US client states and protectorates.69 This also allows the incumbent regime to flatter the “idealized view of itself as a rational, orderly, and organized force trying to impose order on an inherently disorderly civilian political area.”70 In reality, however, the incumbent regime is supported by various countermovement actors and is able to maintain existing power relationships despite the political makeover.71 Reva Siegel has called this process “preservation-through-transformation.”72

After roughly three weeks of support for a regime accused of using live ammunition against peaceful protestors and ordering the assassination of political

64 Ibid. 65 The second type is illustrated by the events in Bahrain, see SECTION IV(c), infra. 66 See James Petras, The Arab Revolt and the Imperialist Counterattack, (Clarity Press: Atlanta, Georgia 2011), at 15. 67 Id., at 16. 68 Adrian Oroz, Transformation in Egypt: With or Without Mubarak? – Middle East Quartet Meets in Munich, MUNICH SECURITY CONF. (Feb. 6, 2011), (In Munich, former ambassador Frank Wisner insisted that Mubarak stay to preside over the transition at a gathering of the Middle East Quartet.). 69 See Petras, The Arab Revolt and the Imperialist Counterattack, supra note 66, at 16. 70 Richard Snyder & James Mahoney, “The Missing Variable: Institutions and the Study of Regime Change,” 32 Comparative Politics 103, 111 (1999). 71 See Petras, The Arab Revolt and the Imperialist Counterattack, supra note 66, at 15. 72 Jessica L. Roberts, To Have and To Uphold: The Common Language of Status-Preserving Countermovements, 21 NAT’L BLACK L. J. 122, 122-23 (2009); see also Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997).


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dissidents,73 the US facilitated a soft military takeover by members of the former regime’s armed forces.74 The Supreme Council of the Armed Forces (SCAF) was permitted to assume control of the government with a guarantee that the new regime would remain “committed to all regional and international obligations and treaties."75 This managed transition approach allowed the status quo to remain unchanged in Egypt, where US interests have been highly concentrated for several decades.76

As stated above, the reaction to violent suppressions of dissent by US and Western powers varies according to the type and level of US involvement with the offending state.77 In Egypt, the Obama administration insisted on a policy of restraint and managed political reform, rather than immediate NATO intervention, as in the case of Libya.78 Therefore it should not come as a surprise that US agencies have been closely tied to the former Egyptian government.79 As the fate of the dictator became clear, however, claims that the Mubarak regime was merely “looking for ways to respond to the legitimate needs and interests of the Egyptian people”80 were reluctantly replaced by calls for institutional and political reform.81

c. The World Turns Its Back on Bahrain

In addition to the Egyptian model, the second type of international response to gross human rights violations was illustrated during the violence against unarmed civilians in Bahrain. Contrary to the armed or reformative Western responses in Libya and Egypt, the militarized suppression of scores of unarmed protestors in Bahrain generated a harrowing silence from the US and its allies.82 In fact, President Obama actually voiced his support for the actions of the Bahraini government and went so far as to accuse Iran of attempting to “take advantage of the turmoil.”83

73 George Sadek, Pending Charges Against Former President Mubarak and Potential Legal Ramifications, Charges and Penalties, LIBRARY OF CONGRESS, (2011). 74 Matt Spetalnick, Obama Urges Egyptian Army to Ensure Democratic Change, REUTERS (February 11, 2011). 75 Army Council: Egypt Is Committed to All Treaties, EGYPT ST. INFO. SERVICE, (February 13, 2011). 76 See SECTION II (a), supra. 77 See SECTION IV, supra. 78 See SECTION V, infra. 79 Gregory Viscusi & Thomas Penny, Mubarak’s Top Spy Suleiman Rejected by Cairo Streets as Protestors March, BLOOMBERG February 1, 2011, (quoting cables released by Wikileaks that illustrate the depth of the relationship between the CIA and Omar Suleiman, Mubarak’s long-time head of intelligence services and envoy to Israel and the West who was eventually designated as heir apparent to Mubarak.). 80 US Urges Restraint in Egypt, Says Government Stable, REUTERS, January 25, 2011. 81 Hillary Rodham Clinton, Sec’y of State, “Remarks with Jordanian Foreign Minister Nasser Judeh After their Meeting,” January 26, 2011. 82 See Asli Bâli & Aziz Rana, Pax Arabica, supra note 52, at 335. 83 Id., at 336, n. 31, citing President Barack Obama, Remarks by the President on the Middle East and North Africa, May 19, 2011.


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Some have disputed whether the Egyptian uprising was truly a nonviolent revolution,84 and others have questioned the liability of lower-level officials for allegations of the regime’s suppression of protestors.85 There is little question, however, surrounding the level of brutal violence perpetrated against nonviolent, and indeed mostly unarmed protestors in Bahrain.86 Large-scale peaceful protests throughout February and March of 2011 resulted in widespread attacks and the massacre of demonstrators, aided by the armed forces of the Gulf Cooperation Countries (GCC).87

The President sought to justify the actions of the Bahraini government on the basis of the government’s “legitimate interest in the rule of law.”88 He continued to espouse claims of Iranian involvement, and called for a dialogue between opposition forces and the government.89 This creates the illusion that the two sides are operating on equal footing, and carries the subtle but significant implication that the actions of the Bahraini government were valid exercises of police power in response to the demonstrations. Once again, this creates an “idealized view of [the Bahraini government] as a rational, orderly, and organized force trying to impose order on an inherently disorderly civilian political area.”90

In a July 2011 report, Human Rights Watch (HRW) revealed some of the chilling details concerning tactics used by the Bahraini government, which included “widespread arbitrary arrests, credible allegations of torture and ill-treatment, apparently coerced televised ‘confessions,’ unfair trials, and attacks on healthcare professionals and injured protesters, as well as politically-motivated mass dismissals of workers from jobs and students from university.”91 The Bahrain Independent Commission of Inquiry also later concluded that “the Bahraini authorities had used torture and excessive force during its crackdown on pro-democracy protesters,” had abducted civil activists, and tried civilians using military tribunals.92 Furthermore, despite President Obama’s accusations, the Commission, “headed by the well-respected international jurist Cherif Bassiouni, concluded that there was no evidence of Iranian involvement in the uprisings.”93

In the case of Bahrain, as in the cases of Egypt and Democratic Kampuchea, the reaction of the US and its allies adheres to what seems to be a policy of rational inconsistency. Historical precedent accurately predicts ardent support for rapid armed intervention and attempts to portray NATO powers as the champions of human rights and 84 See Abdul-Rahman Hussein, Was the Egyptian revolution really non-violent?, Egyptian Independent, January 24, 2012. 85 See “Mubarak-era stalwarts acquitted of Tahrir Square camel assault,” Middle East Online, October 11, 2012. 86 INTERNATIONAL CRISIS GROUP, Middle East/North Africa Report No. 111, Popular Protest in North Africa and the Middle East (VIII): Bahrain’s Rocky Road to Reform, (2011), at i. 87 Bahrain: An Unfolding Human Rights Crisis, HUMAN RIGHTS WATCH, July 5, 2011. 88 Ibid. 89 Ibid. 90 See Snyder & Mahoney, The Missing Variable, supra note 70. 91 Bahrain’s Human Rights Crisis, HUMAN RIGHTS WATCH, July 5, 2011, at 1. 92 Kristian Coates Ulrichsen, Bahrain’s Uncertain Future, FOREIGN POLICY, November 23, 2011. 93 Ibid.


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self-determination, as long as regime change aligns with Western geopolitical interests. When US-supported dictators or regimes come under international scrutiny, however, the response from the West typically involves calls for restraint, diplomacy, respect for the sovereign equality of states, or, as illustrated in Bahrain, moral and political apathy.94 In general, the state of humanitarian affairs within the offending state appears to have very little influence on the decision of whether or not intervention is required. This is further illustrated by the fact that the events in Bahrain took place at virtually the same time as the uprisings in Libya, but provoked completely different reactions from the international community.

V. OPERATION UNIFIED PROTECTOR

On February 26, 2011, in the midst of widespread revolutionary tumult throughout the Middle East and Northern Africa (commonly referred to as the “Arab Spring”), the UN Security Council passed Resolution 1970, condemning the actions of the Libyan Arab Jamahiriyya against anti-Gaddafi demonstrators, and calling for an end to the violence.95 Unlike the reaction from the West in regard to uprisings in other parts of the region,96 Resolution 1970 was followed shortly thereafter by the passage of Resolution 1973, which was interpreted as authorization from the Council to use force.97 Taken together, the major provisions established a no-fly zone over Libyan airspace,98 called for an arms embargo,99 and authorized members states to use “all necessary measures” to ensure the protection of civilians and civilian-populated areas.100 This section will analyze the justifications and methods for implementing the UN Security Council resolutions, examine the allegations of war crimes committed over the course of Operation Unified Protector, and discuss the effectiveness of OUP by comparing the humanitarian situation in Libya before and after the NATO intervention.

a. Hasty Intervention & Chapter VII Powers

On the very first page of Resolution 1970, the Security Council references resolution A/HRC/S-15/2, released by the UN Human Rights Council (UNHRC) one day before the passage of Resolution 1970.101 The UNHRC called for the launch of a

94 See Asli Bâli & Aziz Rana, Pax Arabica, supra note 52, at 335, (“The United States has significant assets in Bahrain, where its Fifth Fleet is based, and so as with events in Egypt, beltway policymakers perceived the anti-regime uprisings as a threat to their interests in the region.”). 95 See UN Security Council Resolution 1970, supra note 1, at 1-2. 96 See Asli Bâli & Aziz Rana, Pax Arabica, supra note 52, at 338. 97 Ibid,, (“This strategy has been reserved for those regimes in the region that are perceived as adversaries of pax Americana. [...] Here, the convergence of a number of key factors [...] facilitated the first ever internationally-sanctioned [sic] militarized ‘humanitarian’ intervention under the doctrine of responsibility to protect.”). 98 See UN Security Council Resolution 1973, supra note 2, at ¶6-12. 99 Id., at ¶ 13-16. 100 Id., at ¶ 4. 101 See U.N. HUMAN RIGHTS COUNCIL, Situation of human rights in the Libyan Arab Jamahiriya, U.N. DOC. A/HRC/S-15/2, February 25, 2011.


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commission of inquiry to investigate numerous allegations on both sides of the conflict.102 Each side alleged gross human rights violations by the other’s forces, and the Council made it clear that the facts and details of the developing conflict still needed to be established in order to properly identity the alleged perpetrators.103 The conditions necessary for the authorization of force found in Articles 41 and 42 of the UN Charter require the Security Council to exhaust all other forms of nonviolent conflict resolution prior to authorizing the use of force.104 Only after this condition has been met, and all nonviolent options have proven ineffective, may the Council consider armed intervention or other violent measures.

In Libya, however, the Security Council failed to meet this requirement and authorized the use of “all necessary means” by member states within 19 days of Resolution 1970, “without attempting any diplomatic overture to the Libyan authorities.”105 The expedited authorization suggests that the Council did not fulfill its obligation to conduct a thorough investigation in accordance with the rules of the UN Charter. This is further evidenced by the fact that, in a subsequent report issued by the UNHRC in June 2011 (nearly three months after the passage of Resolution 1970), the UNHRC was still unable to confirm the data from reports concerning the actions of Libyan security forces.106

The hasty actions of the Security Council violate the requirements set out in the Report of the International Commission on Intervention and State Sovereignty, also known as the Responsibility to Protect (R2P).107 In the report, the Commission requires a meticulous planning stage with comprehensive contingency scenarios.108 It also calls for the intervening party to devote a substantial amount of time and resources to finding alternative nonviolent solutions to the conflict before even considering the use of force.109 Although there were obvious human rights violations being committed in Libya, this can be said of both sides of the conflict. The fact that the Security Council opted to impose coercive measures against the Gaddafi regime as its initial course of action rather than a last resort constitutes a violation of the R2P doctrine,110 the Council’s obligations under Chapter VII of the UN Charter,111 and is therefore also a violation of Article 2(4) of the

102 Id., at ¶ 11. 103 Ibid. 104 See CHARTER OF THE UNITED NATIONS, 1 UNTS XVI, October 24, 1945, [hereinafter UN CHARTER] ARTS. 41, 42. 105 See Asli Bâli & Aziz Rana, Pax Arabica, supra note 52, at 339. 106 U.N. HUMAN RIGHTS COUNCIL, Report of the international commission of inquiry to investigate all alleged violations of international law in the Libyan Arab Jamahiriya, U.N. DOC. A/HRC/17/44, June 1 2011. 107 See Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect (R2P), INT’L COMM’N ON INTERVENTION AND STATE SOVEREIGNTY, December 2001, [hereinafter THE RESPONSIBILITY TO PROTECT]. 108 Id., at 58, § 7.8. 109 Id., at 57, § 7.3. 110 Ibid. 111 See UN CHARTER, supra note 104, ARTS. 41, 42.


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UN Charter.112 In addition, by rushing to condemn and threaten the Gaddafi regime before compiling all of the necessary data, the resolutions may have actually facilitated an increase in violence by opposition forces, as the rebels would have likely interpreted the recognition by the Security Council as validation of their cause from the international community.113

b. Civilian Distinction & Discrimination

It is highly unlikely that, even after accounting for the lack of reliable data, the human rights situation in Libya would have been amongst some of “the worst violations of human rights in history,”114 as was the situation in Democratic Kampuchea when the US condemned the Vietnamese intervention. The interventions in Libya and Kampuchea do, however, share similar end results. According to the United States, “There is little doubt that [several] provisions of key importance to the international community have been violated. One country has been attacked by another; its Government has been overthrown.”115 More specifically, there have been numerous allegations of war crimes and violations of international law committed by NATO forces during the aerial bombing campaign after the Libyan government was overthrown as a part of Operation Unified Protector.116 Although the bombing was purported be in the “humanitarian” interests of the Libyan civilian population, the results of the aerial assault have forced several observers to come to a different conclusion.117

Human Rights Watch has documented at least eight separate sites at which a total of at least 34 innocent civilians were killed as a result of NATO bombing.118 Several of the sites contained evidence showing a lack of military presence or objective,119 raising questions concerning the legitimacy and military necessity of the targets.120 Other contained indications of sniper locations and possibilities for other similar military uses.121 Even if that were the case, however, questions remain concerning the necessity and legality of destroying an entire building for such an ostensibly minimal strategic benefit, especially considering the disproportionate effects the attacks may have had on

112 Id., at ART.. 2(4). 113 See Bâli & Rana, Pax Arabica, supra note 52, at 339. 114 See UN DOC. S/PV.2110 (1979), supra note 57, at 7. 115 Ibid. 116 See Report of the Independent Civil Society Fact-Finding Mission to Libya, ARAB ORGANIZATION FOR HUMAN RIGHTS (AOHR) et al., Independent Civil Society Mission to Libya, (January 2012), [hereinafter AOHR FACT-FINDING REPORT]. 117 See Lynch, Invitation to Meddle, supra note 39; see also Curtis Doebbler, The Use of Force Against Libya: Another Illegal Use of Force, JURIST: LEGAL NEWS & RESEARCH (March 20, 2011). 118 Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya, HUMAN RIGHTS WATCH, (2012), [hereinafter Unacknowledged Deaths]. 119 Id., at 54. 120 See CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIMES OF WAR, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GENEVA CONVENTION IV], ART. 3. 121 See Unacknowledged Deaths, supra note 118, at 53.


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the civilian population as a result.122 It is important to remember that it is the probability of civilian harm by which the actor is judged, not merely the end result.123

Under international law, parties to a conflict must apply principles of distinction and discrimination,124 and take action to avoid civilian casualties at all times.125 Some of the sites contained evidence that NATO pilots conducted secondary follow-up attacks as locals were attempting to retrieve and care for the wounded.126 If true, NATO’s actions amount to grave breaches of humanitarian law and may even constitute war crimes.127

Although NATO undoubtedly took steps to mitigate some of the effects of its bombing campaign on civilians, it failed to fulfill its obligation under international law to follow up and investigate allegations pointing to violations of the laws of war.128 In November 2011, NATO Secretary General Anders Fogh Rasmussen even denied the existence of civilian casualties as a result of NATO actions in Libya.129 Eventually, the story began to change and a NATO spokesperson said, “It appears that innocent civilians may have been killed or injured, despite all the care and precision."130 NATO’s lessons learned process also failed to include a section designated to the review of civilian casualties tied to the campaign.131

The actions of NATO in Libya have also been compared to the actions taken in Afghanistan in the early stages of the US-led operation.132 In Libya, as it was in 122 Ibid. 123 Libya: Civilian deaths from NATO airstrikes must be properly investigated, Press Release, AMNESTY INTERNATIONAL, March 19, 2012. 124 See CONVENTION REGARDING THE LAWS AND CUSTOMS OF WAR ON LAND (HAGUE II), ART. 43, July 29, 1899, 32 Stat. 1903 T.S. 403 [hereinafter HAGUE II]; see also GENEVA CONVENTION IV, supra note 120, at ARTS. 3, 4, 27, and 33. 125 GA RES. 2444 (XXIII), U.N. DOC. A/RES/2444, December 19, 1968; GA RES. 3318 (XXIX), U.N. DOC. A/RES/3318, December 14, 1974. 126 See AOHR FACT-FINDING REPORT, supra note 116, at 44-46. 127 GENEVA CONVENTION IV, supra note 120, at ART. 3, (The GENEVA CONVENTION IV defines ‘grave breaches’ as “willful killing, torture or inhumane treatment... willfully causing great suffering or serious injury to body or health... and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”). 128 See Customary International Humanitarian Law, INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC), at Ch. 44, Rule 158, (“States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.”); see also BASIC PRINCIPLES AND GUIDELINES ON THE RIGHT TO A REMEDY AND REPARATION FOR VICTIMS OF GROSS VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW (Basic Principles on the Right to a Remedy and Reparations), adopted and proclaimed by GA RES. 60/147, December 16, 2005, ART. 4. 129 See AOHR FACT-FINDING REPORT, supra note 116, at 23. 130 Ibid. 131 Id., at 25. 132 C. J. Chivers & Eric Schmitt, “In Strikes on Libya by NATO, an Unspoken Civilian Toll,” N.Y. Times, December 17, 2011.


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Afghanistan, investigations into allegations of civilian deaths and disproportionate uses of force have been met with repeated statements of denial and disputed figures surrounding the nature and gravity of the civilian death toll.133 Additionally, third-party states engaged in the hostilities in Libya have been accused of disproportionate attacks, misreporting of casualties, and the targeting of civilian objects and sites despite a lack of military objective or necessity.134

c. Post-Intervention Human Rights Conditions

The intervention in the Libyan Arab Jamahiriyya came at a time when Colonel Gaddafi had recently approved a $24 billion investment fund for local housing development in response to earlier protests.135 Gaddafi had also significantly lowered taxes on food136 in response to one of the largest spikes in global market prices, a factor proven to fuel outbreaks of violence and protest.137 He proposed the doubling of government employees’ salaries, and released 110 members of opposition groups from prison as a measure of good faith to opposition leaders. Gaddafi had also been traveling around Libya to meet with tribal leaders, discuss grievances, and campaign for their support. It is also relevant to note that, under Gaddafi, Libya enjoyed the lowest infant mortality rate, the highest life expectancy,138 and the highest overall Human Development Index (HDI) on the continent.139 The literacy rate jumped from 10% to over 90% during his rule and, before the intervention, Libya maintained the highest gross domestic product (GDP) at purchasing power parity (PPP) in Africa.140 Libyans also had access to subsidized education and fuel during Colonel Gaddafi’s reign.141 Ironically, Libyan citizens even enjoyed a malnutrition rate of less than 5%, which was lower than the United States.142

There is also a tendency to assume that the aggregate of the civilian population in Libya supported the uprising against the regime, when in fact the reality is much more complicated. Putting aside the fact that Libyans have not been able to establish a truly coherent system of government since the early tribal disputes between the regional

133 Id. 134 See AOHR FACT-FINDING REPORT, supra note 116, at 43. 135 See Rabat, Libya sets up $24 bln fund for housing, REUTERS, January 27, 2011; see also CNN Wire Staff, Timeline: Six remarkable days in Libya, CNN, February 20, 2011. 136 Libya axes custom, tax duties on food, REUTERS, Tripoli, January 12, 2011. 137 Ronald Trostle, Why Another Food Commodity Price Spike?, ECONOMIC RESEARCH SERVICE, US DEPT. OF AGRICULTURE, 9 AMBER WAVES 3, 18-24 (2011). 138 World Population Prospects: The 2006 Revision, POPULATION DIVISION, DEPT. OF ECONOMIC AND SOCIAL AFFAIRS, UNITED NATIONS, New York, (2007). 139 The Real Wealth of Nations: Pathway to Human Development, UN HUMAN DEVELOPMENT REPORT 2010, UNITED NATIONS (2010), statistical annex, at 144. 140 Alan Heston, Robert Summers & Bettina Aten, Penn World Table Version 7.1, CTR. FOR INT’L COMPARISONS OF PRODUCTION, INCOME AND PRICES, UNIV. OF PENN., (2012). 141 David Rothscum, World Cheers as the CIA Plunges Libya into Chaos, GLOBAL RESEARCH, CENTRE FOR RESEARCH ON GLOBALIZATION, February 27, 2011. 142 F. William Engdahl, Creative Destruction Part II: Libya in Washington’s Greater Middle East Project, GLOBAL RESEARCH, CENTRE FOR RESEARCH ON GLOBALIZATION, March 26, 2011.


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provinces of Fezzan, Cyrenaica, and Tripolitania (as illustrated by Libya’s long history of political apathy and its sporadic, anti-state atmosphere),143 there were in fact large portions of the population which fully supported Gaddafi and even fought for him against the rebels.144 The predicament of the pro-Gaddafi portion of the civilian population following NATO’s “humanitarian” bombing campaign is nothing short of a disaster. Echoing the warnings of human rights groups and third party observers who spoke out against supporting the armed opposition groups, the situation on the ground in Libya is now teeming with violence, reprisals, and widespread human rights violations as the victorious rebel factions exact their revenge on those who supported Gaddafi.145

According to Human Rights Watch, the NTC rejected the jurisdiction of international human rights monitors, including the ICC, and recently enacted “shockingly bad laws, mimicking Qaddafi [sic] laws criminalizing political dissent and granting blanket immunity to any crimes committed in ‘support’ of the revolution."146 The development of a new criminal justice system in post-Gaddafi Libya has been neglected, and is reported to be largely dysfunctional,147 indicating that the NATO has abdicated yet another of its obligations under the doctrine of R2P, specifically the responsibility to rebuild.148

The calls for an investigation into the death of Colonel Gaddafi from the United Nations149 and Human Rights Watch have been largely ignored.150 Reports of torture151 and arbitrary detention of former Gaddafi supporters have been pouring out of Libya since NATO forces left the area under the command of the NTC. Mass executions have been reported,152 along with accounts of lynching, and other abuses committed in the later months of 2011.153 Revenge killings and violent terror attacks have become

143 See generally Vandewalle, supra note 10. 144 See Richard Seymour, “Gaddafi is stronger than ever in Libya,” THE GUARDIAN, July 29, 2011. 145 See Libya: NTC must take control to prevent spiral of abuses, AMNESTY INTERNATIONAL, September 13, 2011. 146 See Sarah Leah Whitson, Libya’s Human Rights Problem, HUMAN RIGHTS WATCH, May 15, 2012. 147 Fred Abrahams, “Don’t Forget Those ‘Other’ Libya Issues,” HUMAN RIGHTS WATCH, November 16, 2012. 148 See THE RESPONSIBILITY TO PROTECT, supra note 107, at XI(3)(c), (“The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.”). 149 Joe Sterling et al, “U.N. calls for Gadhafi death investigation,” CNN.com, October 21, 2011. 150 Libya: Investigate Deaths of Gaddafi and Son, HUMAN RIGHTS WATCH, Middle East and North Africa Division, October 22, 2011. 151 Kim Sengupta & Soloman Hughes, “Leaked UN report reveals torture, lynching’s, and abuse in post-Gaddafi Libya,” THE INDEPENDENT, (November 2011). 152 Libya: Apparent Execution of 53 Gaddafi Supporters, HUMAN RIGHTS WATCH, Middle East and North Africa Division, October 24, 2011. 153 See Sengupta & Hughes, supra note 151.


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common against Libyans living in “loyalist” cities like Tawergha,154 and immunity has been granted to those who committed the atrocities, provided that they were done in the name of the “revolution.”155

A representative from the NTC has said that, even several months after the commencement of Operation Unified Protector, Libya is still at war.156 When questioned about laws suppressing political dissent in Libya, he was quoted saying “In conditions of war, there is a prison sentence for any person who spreads information and rumours [sic] which disrupt military preparations for the defence of the country, spread terror or weaken the citizens' morale.”157 In addition to the crimes against civilians, there are also issues concerning attempts to secure the large weapons caches that were apparently left over after NATO’s decision to arm rebel groups and opposition forces.158 Reports from HRW have also documented the use of white phosphorous (WP) ammunition on civilians and Gaddafi supporters by rebel and opposition forces during the NATO intervention, as well as the existence of several locations containing unsecured weapons depots with stockpiles of WP rounds and napalm scattered across Libya.159

An investigation has also been requested over an incident that occurred in March of 2011, during which a disabled boat, full of refugees trying to escape the violence in Libya, was allegedly left drifting out in the Mediterranean for two weeks.160 Human Rights Watch, along with several other non-governmental organizations (NGOs), issued a joint letter to the Italian Minister of Defense requesting an investigation into the incident.161 HRW has also issued a similar request to NATO and called for officials to conduct an investigation, noting that 63 of the 72 passengers onboard died despite many alleged attempts to contact NATO and Italian vessels for assistance.162

In addition to the mounting human rights concerns, the fate of Libyan assets in the wake of the OUP illustrates the neo-imperialist reality that lies beneath the lofty rhetoric of humanitarian intervention. In an ironic twist of fate, Italy now maintains full control over all of Libya’s frozen assets. Italy – Libya’s former colonizer – has graciously agreed to give 20% of those assets back to the Libyan people, but has decided that Libya will

154 Libya: Militias Terrorizing Residents of ‘Loyalist’ Town, HUMAN RIGHTS WATCH, Middle East and North Africa Division, October 30, 2011. 155 “Libya Immunizes ‘revolutionaries’ from prosecution for war crimes,” MIDDLE EAST ONLINE, March 5, 2012. 156 Ibid. 157 Ibid. 158 Libya: Transitional Council Failing to Secure Weapons, HUMAN RIGHTS WATCH, Middle East and North Africa Division, October 25, 2011. 159 Steve Goose & Bonnie Docherty, “White phosphorous: the new napalm?” HUMAN RIGHTS WATCH, June 8, 2012. 160 NATO: Investigate Fatal Boat Episode, HUMAN RIGHTS WATCH, May 10, 2012. 161 Joint NGO Letter to Italian Minister of Defense Regarding Investigations into Boat Incident from March-April 2011, HUMAN RIGHTS WATCH, March 26, 2012. 162 See NATO: Investigate Fatal Boat Episode, supra note 160.


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only “receive the remaining 80% through in-kind purchases of Italian goods and services.”163

d. The LIFG & Liability Under International Law

The NATO intervention in Libya was the first time the Security Council openly authorized and condoned the use of force to support bands of armed and violent rebels in their quest to overthrow the government of a sovereign nation.164 In doing so, the United States underwent a complete reversal in policy compared to 1979, when the US wished to “stigmatize not only the sending but also the organization of, assistance to, and knowing acquiescence in the activities of not only armed bands, groups, irregulars, or mercenaries, but also ‘volunteers.’”165 The position of the United Kingdom was particularly clear, “whatever is said about human rights in Kampuchea, it cannot excuse Viet Nam for violating the territorial integrity of Democratic Kampuchea, an independent State Member of the United Nations.”166 Yet this is precisely what NATO did in Libya when they armed and supported the rebel factions, especially key members of the Libyan Islamic Fighting Group.

By arming and supporting key members of the LIFG, NATO successfully facilitated the rise of a group that had recently been labeled as a “Foreign Terror Organization” in 2004 by the US Bureau of Counterterrorism.167 Additionally, the UK placed the LIFG on their list of “Proscribed Terrorist Organisations” in 2005.168 Even the UN Security Council has expressed serious concerns about the LIFG.169 The Council designated the LIFG as an affiliate of al-Qaeda in 2001, and acknowledged the group’s formal merger with al-Qaeda as late as 2007.170

The US and the UK have had an ongoing relationship with the former member and head of the LIFG, Abdelhakim Belhadj.171 The US detained Belhadj while he was fighting with members of the LIFG against US and coalition forces in Iraq and Afghanistan.172 His rendition was one in a series of extraordinary renditions conducted by the US and the UK. Belhadj, along with other LIFG members, was imprisoned,

163 Cherif Bassiouni, Keynote Address at UCLA Journal of International Law and Foreign Affairs Symposium, February 17, 2012. 164 See Bâli & Rana, Pax Arabica, supra note 52, at 338. 165 See Stone, Hope and Loopholes, supra note 47, at 238. 166 UN DOC. S/PV.2110, supra note 57, at 6. 167 See BUREAU OF COUNTERTERRORISM, Foreign Terrorist Organizations, US DEPT. OF STATE, Washington, DC, September 28, 2012, (LIFG added on December 17, 2004). 168 See Proscribed Terrorist Organisations, UK HOME OFFICE, London, July 6, 2012. 169 See QE.L.11.01. Libyan Islamic Fighting Group, UNITED NATIONS SECURITY COUNCIL AL-QAIDA SANCTIONS COMMITTEE, August 23, 2010. 170 “Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities,” S.C. RES. 1267, U.N. DOC. S/RES/1267 (1989); S.C. RES. 1989, U.N. DOC. S/RES/1989 (2011); S.C. RES. 1333, U.N. DOC., S/RES/1333, (2001), at ¶ 8(c). 171 See Delivered Into Enemy Hands, supra note 22, at 8-12. 172 Ibid.


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interrogated, and tortured by the CIA and MI6 at different locations, including Thailand and Guantanamo Bay.173 He was subsequently rendered back to Gaddafi in Libya shortly before UK Prime Minister Tony Blair made amends with Gaddafi in 2004, despite strong evidence that suggested he would be tortured upon returning.174 In 2011, when NATO decided to continue their quest to overthrow Muammar Gaddafi, they looked to Belhadj and the LIFG to lead the opposition effort, and Belhadj eventually took a position as the head of the Tripoli Military Council, from which he later resigned to pursue political interests.175 This is a subject that demands further inquiry to determine the actual depth of the relationship between the West, Gaddafi, and groups like the LIFG. In light of these facts, it may be necessary to reexamine the statements made by Colonel Gaddafi at the beginning of the 2011 uprisings, when he claimed the protests were in fact the actions of “terrorists.”176

While it is unlikely that NATO will be held directly responsible for the actions of rebel and opposition forces during OUP, it can be argued that the principle of superior liability177 would apply to high-ranking NATO and NTC officials for the commission of offenses against the peace and security of mankind, also known as “war crimes,”178 by opposition forces. By deciding to arm, advise, and support the opposition forces in their quest to overthrow Gaddafi, NATO commanders and superior officers in charge of overseeing the operation in Libya may be held accountable,179 especially in cases where crimes falling under jus cogens180 may have been committed.

VI. CONCLUSION

The long and complex history of imperialism and exploitation cannot be overlooked or understated when examining the recent uprisings and revolutions have swept across the Middle East and Northern Africa. The deep internal conflicts and issues throughout the region require the utmost sensitivity, and special consideration must be given to the fate of the civilians in the region. Local populations have endured unimaginable suffering as a result of the constant turmoil and violence in Africa. The arrogance and naivety in assuming that bombs and bullets can somehow solve these complex societal issues speaks to the numerous logical contradictions within the concept of humanitarian intervention. By allowing such flimsy justifications to conceal the true nature and intentions of 173 Id., at 8-9 174 Id., at 9-10 175 See “Libya’s Belhadj quits military post for politics,” BBC NEWS, Africa, May 15, 2012. 176 Ian Black, “Libya rebels rejects Gaddafi’s al-Qaida spin,” The Guardian, March 1, 2011. 177 Mr. Doudou Thiam, Special Rapporteur, FOURTH REPORT ON THE DRAFT CODE OF OFFENCES AGAINST THE PEACE AND SECURITY OF MANKIND, International Law Commission, A/CN.4/398, 11 March 1986 at CH. I, PART II, ART. 8(1)(a). 178 Id., at CH. I, PART I, ART. 1, “Definition,” (1986), [hereinafter DRAFT CODES]. 179 Id., at CH. I, PART II, ART. 9. 180 The term jus cogens is the technical term given to those norms of general international law, that are argued as hierarchically superior, the literal meaning of which is compelling law. These are, in fact, a set of rules, which are peremptory in nature, and no derogation from them under any circumstances is, therefore allowed. See Kjell Follingstad Anderson, Jus Cogens, DICTIONARY OF GROSS HUMAN RIGHTS VIOLATIONS, International Criminal Law (2007).


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destructive military campaigns like Operation Unified Protector, we consign the people of Africa to a life of senseless violence and endless suffering.

Unfortunately, NATO’s intervention in Libya will likely continue to enjoy the praise of media pundits and Western policymakers. Many will continue to hail OUP as the model for humanitarian intervention and the enduring political farce known as the Responsibility to Protect. Rather than discuss the morbid reality of Operation Unified Protector as it pertains to those who truly needed protection, it seems as if many in the media and academia would instead prefer to focus on the strategic merits and political victories of the operation.181 This is cause for concern, but it is certainly no reason to abandon the pursuit of international justice and the rule of law. Michael Stohl once wrote, “Condemnation and disgust do not solve problems; they are merely a luxury of the distant noncombatant.”182 His words remind us that, while demanding peace and justice is certainly a good place to start, such indignation is but the first of many steps on the path to a society that is truly grounded in the principles of equality and human rights.

181 See Hugh Roberts, “Who said Gaddafi had to go?” 33 LONDON REV. OF BOOKS 22, November 17, 2011. 182 Michael Stohl, “Myths & Realities of Political Terrorism,” The Politics of Terrorism, Marcel Dekker, Inc., New York (1983).

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