Stop Bombing Libya

Stop Bombing Libya
By Marjorie Cohn
http://warisacrime.org/content/stop-bombing-libya

Since Saturday night, the United States, France, and Britain have been
bombing Libya with cruise missiles, B-2 stealth bombers, F-16 and F-15
fighter jets, and Harrier attack jets. There is no reliable estimate of
the number of civilians killed. The U.S. has taken the lead in the
punishing bombing campaign to carry out United Nations Security Council
Resolution 1973.

The resolution authorizes UN Member States “to take all necessary
measures . . . to protect civilians and civilian populated areas under
threat of attack in the Libyan Arab Jamahiriya, including Benghazi,
while excluding a foreign occupation force of any form on any part of
Libyan territory.” The military action taken exceeds the bounds of the
“all necessary measures” authorization.

“All necessary measures” should first have been peaceful measures to
settle the conflict. But peaceful means were not exhausted before Obama
began bombing Libya. A high level international team – consisting of
representatives from the Arab League, the Organization of African Unity,
and the UN Secretary General – should have been dispatched to Tripoli to
attempt to negotiate a real cease-fire, and set up a mechanism for
elections and for protecting civilians.

There is no doubt that Muammar Qaddafi has been brutally repressing
Libyans in order to maintain his power. But the purpose of the United
Nations is to maintain international peace and security. The burgeoning
conflict in Libya is a civil war, which arguably does not constitute a
threat to international peace and security.

The UN Charter commands that all Members settle their international
disputes by peaceful means, to maintain international peace, security,
and justice. Members must also refrain from the threat or use of force
against the territorial integrity or political independence of any state
or in any manner inconsistent with the Purposes of the United Nations.

Only when a State acts in self-defense, in response to an armed attack
by one country against another, can it militarily attack another State
under the UN Charter. The need for self-defense must be overwhelming,
leaving no choice of means, and no moment for deliberation. Libya has
not attacked another country. The United States, France and Britain are
not acting in self-defense. Humanitarian concerns do not constitute
self-defense.

The UN Charter does not permit the use of military force for
humanitarian interventions. But the UN General Assembly embraced a norm
of “Responsibility to Protect” in the Outcome Document of the 2005 World
Summit. Paragraph 138 of that document says each individual State has
the responsibility to protect its populations from genocide, war crimes,
ethnic cleansing, and crimes against humanity. Paragraph
139 adds that the international community, through the United Nations,
also has “the responsibility to use appropriate diplomatic, humanitarian
and other peaceful means, in accordance with Chapters VI and VIII of the
Charter, to help protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.”

Chapter VI of the Charter requires parties to a dispute likely to
endanger the maintenance of international peace and security to “first
of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own
choice.” Chapter VIII governs “regional arrangements,” such as NATO, the
Arab League, and the Organization of African Unity. The chapter
specifies that regional arrangements “shall make every effort to achieve
pacific settlement of local disputes through such regional arrangements
. .”

It is only when peaceful means have been tried and proved inadequate
that the Security Council can authorize action under Chapter VII of the
Charter. That action includes boycotts, embargoes, severance of
diplomatic relations, and even blockades or operations by air, sea or land.

The “responsibility to protect” norm grew out of frustration with the
failure to take action to prevent the genocide in Rwanda, where a few
hundred troops could have saved myriad lives. But the norm was not
implemented to stop Israel from bombing Gaza in late 2008 and early
2009, which resulted in a loss of 1,400 Palestinians, mostly civilians.
Nor is it being used to stop the killing of civilians by the United
States in Afghanistan and Pakistan.

There is also hypocrisy inherent in the U.S. bombing of Libya to enforce
international law. The Obama administration has thumbed its nose at its
international obligations by refusing to investigate officials of the
Bush administration for war crimes for its torture regime. Both the
Convention Against Torture and the Geneva Conventions compel Member
States to bring people to justice who violate their
commands.

The United States is ostensibly bombing Libya for humanitarian reasons.
But Obama refuses to condemn the repression and government killings of
protestors in Bahrain using U.S.-made tanks and weaponry because that is
where the U.S. Fifth Fleet is stationed. And Yemen, a close U.S. ally,
kills and wounds protestors while Obama watches silently.

Regime change is not authorized by the resolution. Yet U.S. bombers
targeted the Qaddafi compound and Obama said at a news conference in
Santiago that it is “U.S. policy that Qaddafi needs to go.” The
resolution specifically forbids a “foreign occupation force.” But it is
unlikely that the United States, France and Britain will bomb Libya and
leave. Don’t be surprised to hear there are Western forces on the ground
in Libya to “train” or “assist” the rebels there.

Defense Secretary Robert Gates pegged it when he said that a “no-fly
zone” over Libya would be an “act of war.” Although the Arab League
reportedly favored a no-fly zone, Amr Moussa, Secretary General of the
Arab League, said that “what is happening in Libya differs from the aim
of imposing a no-fly zone.” He added, “What we want is the protection of
civilians and not the shelling of more civilians.” He plans to call a
new meeting of the league to reconsider its support for a no-fly zone.

The military action in Libya sets a dangerous precedent of attacking
countries where the leadership does not favor the pro-U.S. or
pro-European Union countries. What will prevent the United States from
stage-managing some protests, magnifying them in the corporate media as
mass actions, and then bombing or attacking Venezuela, Cuba, Iran, or
North Korea? During the Bush administration, Washington leveled baseless
allegations to justify an illegal invasion of Iraq.

Moreover, Obama took military action without consulting Congress, the
only body with the Constitutional power to declare war. It is not clear
what our mission is there or when it will end. Congress – and indeed,
the American people – should debate what we are doing in Libya. We must
not support a third expensive and illegal war. There is a crying need
for that money right here at home. And we should refuse to be complicit
in the killing of more civilians in a conflict in which we don’t belong.

Marjorie Cohn is a professor of law at Thomas Jefferson School of Law,
past president of the National Lawyers Guild, and deputy secretary
general of the International Association of Democratic Lawyers. Her
latest book is “The United States and Torture: Interrogation,
Incarceration, and Abuse” (NYU Press).

ENDS

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