03/09/2011versione stampabileprintinvia paginasend

Nato revs its engines, but diplomacy is hard at work searching for a legal balance to underpin an eventual mission


written for us by
Francesca Borri


As we well know, international law is still at a rudimental stage in its development. Its legal basis is often vague. Above all it lacks the one aspect which in national jurisprudence distinguishes criminal law from a moral ruling, namely the tools to enforce its application.

In the final analysis, everything depends on the will of individual states. And if, as Hersh Lauterpacht has written, "international law is the vanishing point of law, then the law of war is at the vanishing point of international law"... in other words, the point where law surrenders to strength: it may succeed in mitigating it, but not in restraining it. And the situation in Libya can only be described as a civil war: the vanishing point of all vanishing points. Not many years have passed, in fact, since the ex-Yugoslavia tribunal succeeded in establishing the principle that everything that constitutes a war crime when committed in an international conflict also constitutes a war crime in an internal conflict. Although this might appear a simple example of logic, it still remains a conquest in need of consolidation and wider acceptance, because nation states have always done everything possible to guarantee themselves freedom of action and freedom of repression within their own borders. Saddam Hussein was forbidden to use chemical weapons against Iranians, but not against Kurdish Iraqis.

At the moment, international law rests on three pillars which are not always easy to reconcile among each other: the right to self-determination of peoples and the upholding of basic human rights, the banning of the use of force and the peaceful resolution of conflicts, and the equality between different states and respect for each state's sovereignty through the rule of non-interference in the internal affairs of other states. For the United Nations, peace is the highest of all priorities, but in the sixty years of its existence many things have changed: above all, the attention paid to protecting individuals, not only their lives but also their rights, has progressively come to threaten the total autonomy of nation states. Often, for example, peace has turned out to merely mean stability, the preservation of the status quo, as was the case with the Arab regimes exposed to popular protest in recent weeks. Consequently there has been a notable reduction of the so-called reserved dominion, where article 2.7 forbids the UN from intervening: in other words, the field of issues held to be the exclusive internal competence of individual states.

Over the years, the Security Council - the principal entity responsible for keeping the peace - has increasingly come to qualify as threats to peace not only conflicts between different states but also any kind of large scale violation of human rights: up to the point of formulating (under Kofi Annan) the concept of sovereignty as responsibility... as a complex of powers but also of obligations towards a state's own population. From here it is only a short leap to the theory of the "responsibility to protect", which ends up being an updated version of the medieval idea of "just war"... no longer in defence of Christianity, but of human rights. And sometimes, if necessary - as in the case of the Kosovo conflict - actually against the will of the Security Council. Even unilaterally.

Along with the definition of terrorism and the limits of the principle of self-defence, this is currently the area of international law most under discussion and development. The existing principles are surrounded by a series of inconsistent practises where it's not always easy to distinguish between positive evolution and negative violation. Much of the time it's a question of interpretation: and those who interpret the law, as Carl Schmitt has reminded us, are generally also those who make the political decisions... and above all, when information is unreliable or situations unclear, as in Libya today, dangerous opportunities open up for invasive justice, which in the final analysis can turn into the justice of the victorious.

According to International law, at the moment those opposing Gaddafi are insurgent elements, rebels against law and order. In other words they are not legitimate combatants, and if captured are not prisoners of war but simply common criminals who can be tried for sedition. At this point, other nations can do no more than offer them humanitarian aid.

In this situation, the Security Council has now passed a Resolution - number 1970 - establishing an arms embargo, the freezing of all assets traceable to the Gaddafi family, and a ban on any of the leading exponents of the regime leaving the country. And above all, as well as these sanctions, the Security Council has authorised the International Criminal Court (ICC) to initiate investigations on war crimes and crimes against humanity... measures which do not implicate the use of force, ex article 41 of the UN charter.

The reason for this is that, unless it has received a specific mandate, this tribunal only has jurisdiction over crimes committed within the territory of a state consenting to such action or by a citizen of a consenting state, and even such jurisdiction is merely complimentary to that of national courts, and therefore only applicable if these are unwilling or unable to bring matters to trial. In contrast to the traditional labyrinthine verbal hedging of UN pronouncements, this time the Resolution n° 1970 openly denounces the widespread and systematic violations of human rights taking place in Libya, therefore already anticipating the findings of the ICC Prosecutor Moreno Ocampo. Here, the establishment - from Nuremberg onwards - of the principle of individual responsibility for this kind of crime, alongside that of national responsibility, represents one of the most important conquests of international law... and yet today, by a singular quirk of history, one third of the member states of the Security Council responsible for requesting the intervention of the International Tribunal (five out of fifteen) have not actually ratified that organism's founding statute.

Also rather singular is the clause that establishes that, according to these paladins of human rights, the Tribunal will not in this case have any jurisdiction over non-Libyan citizens - i.e. mercenaries - holding passports issued by states which have not recognised its statute: translated, this refers above all to the American contractors already at work in the Bengasi area. And perhaps it is not irrelevant to make a note in the margins of Resolution 1970 that the Security Council which has so far acted with such rapidity and determination is the same as that which - despite the explicit recommendation of the UN Goldstone Commission, and many clearly documented crimes - has avoided asking for the intervention of the International Criminal Court for the 1,422 victims of Israel's ‘Operation Cast Lead'.

It's important to remind ourselves that the Hague Tribunal is still a very imperfect instrument, much at risk of political contamination. Important above all because Resolution 1970 was voted in reference to chapter VII of the UN Charter, which refers to "the existence of a threat to peace, a violation of peace or an act of aggression": in this hypothesis, measures not implying the use of force, such as the sanctions already approved ex article 41, are frequently merely the premise for measures under article 42, which do imply the use of force. And so, things can quickly slip towards the variegated universe of the so-called Peace Missions.

In recent days many voices have been raised in favour of humanitarian intervention. The very term is something of an oxymoron since, as Gino Strada has said, war violates the first of all possible human rights, namely the right to stay alive, and tends to imply something like the operation in Kosovo: a war set in motion without the authorisation of the UN Security Council, justified at the time by the need to defend human rights without incurring Russia's veto... but nonetheless, in technical terms, a war of aggression in explicit defiance of the United Nations charter. Against Gaddafi, the model would probably refer to peace enforcement: an intervention possibly approved by the Security Council, but certainly not by the Libyan government.

But it's difficult to foresee things clearly. The so-called peace missions have all been very different from one another, and can be structured in very different ways and for very different ends. And even if we abstain from every moral judgement on their justification (and Gino Strada is not alone: even back in the 1980s the International Court of Justice (ICJ), in relation to Nicaragua and the US support for the Contras, affirmed that the pretended defence of human rights is incompatible with the use of force) we can undeniably indicate that the one common denominator of the dozens of "peace missions" so far implemented is their inefficiency. The most inefficient have undoubtedly been Somalia and Ruanda, which were exactly the same kind of peace enforcement without the consent of the countries being "aided" which is today being proposed for Libya. But then again, as so many august institutions teach us, the model to be followed is that of the first mission in the Lebanon: such an exemplary success that thirty years later the blue berets are still there, together with all the reasons for the original conflict.

Despite this, at the moment the chief obstacle to military intervention consists of military considerations... with the forces committed in Afghanistan and Iraq there are simply insufficient resources to open a third front. As though forgetting that even when "sufficient resources" have been available, military intervention has always been a failure. And also forgetting Hannah Arendt's warning: "given that the results of human actions can never be accurately predicted, the means employed usually end up being more important, for the world of the future, than the goals they were employed for."

When street-by-street fighting is taking place, as at this moment in Libya, there's no point hiding the truth: these are the moments when international law can indicate or guarantee little or nothing. And these are also the moments when the difference between opportunity and opportunism is most difficult to ascertain. The lessons of history are undeniably clear: ever since the days of "the white man's burden" the concept of humanitarian action has shown itself to be insidiously suitable for imperialistic ambitions. As Carl Schmitt has warned, those who talk about humanity are usually trying to deceive you.

Of course, to entertain suspicions that the unanimity behind Resolution 1970 is cemented by petrol and gas more than by concern for human rights does not mean one is taking sides with Gaddafi. But it is important to highlight, as an important footnote to the West's noble principles, that Libya's crimes against humanity are not the only ones taking place currently: widespread and systematic violations of the principle forbidding mass expulsion or non-refoulement, one of the pillars of the right to asylum, are also being perpetrated today. International law does not in fact have a statute establishing the right to asylum, but it does establish the right to request asylum. This means the right to reach a border and present a personal request for asylum that can be individually processed and decided upon: something very different from being collectively and anonymously rammed or boarded in international waters. And it means above all the right, if a request for asylum is not granted, to avoid being forcibly returned to a country where a person's basic human rights seriously risk being violated. If the current priority really were the life and liberty of Libyan citizens, the Hague Tribunal would need to carry out its investigations on both the southern and northern shores of the Mediterranean.