Libya and the Laws of War: Interview with Michael Mandel

With respect to international law, in what ways does this intervention in Libya differ from those carried out in Afghanistan and Iraq?

The intervention in Afghanistan, despite protestations to the contrary, was not authorized by the Security Council, whose relevant resolutions did not even mention Afghanistan, let alone authorize “all necessary means.”  That was because the United States didn’t want authorization.  They wanted to use a broad and legally baseless notion of preventive self-defense, the so-called “Bush doctrine,” which they panned to deploy against all their adversaries.  Their “hit list,” shown to General Wesley Clark in November 2001, included not only Afghanistan, but Iraq, Iran, Sudan, Lebanon, Syria and Libya.  With respect to the attack on Iraq, the common consensus is that there was no authorization from the relevant Security Council Resolutions.  This made both the attacks on Afghanistan and Iraq the “supreme international crime” of aggression.

What realistic measures could the UN Security Council take to prevent the civil war from deepening in Libya?

Whatever they might be, this isn’t one of them.  It is meant to take sides in a civil war on the far weaker side and is therefore itself likely to deepen the conflict.  If Iraq and Afghanistan are any guide, even the defeat of the pro-Ghaddafi forces would be more likely than not to prolong the conflict by many years and to require a massive infusion of foreign forces.  Peace seems not to have been a concern of the American and European interventionists as the dissenting members of the Security Council (5 out of 15) complained when they asked why political solutions had not even been pursued.

Is there any indication in commentary about this intervention and about intervention in the Middle East recently of a change in the attitudes towards ‘humanitarian intervention’?

That would clearly be the case if this were a unilateral humanitarian intervention, that is one not authorized by the Security Council, such as the war against Yugoslavia in 1999 over Kosovo.  The Kosovo war was meant to establish a precedent but failed, because it was not accepted by the vast majority of states.  But as this attack on Libya was authorized by the Security Council it doesn’t really break new legal ground.  On the other hand, practically speaking, the apparent cowing of opponents on the Security Council, including the Permanent Members Russia and China who have a veto and were prepared to exercise it in prior wars, suggests that the practical limits to this kind of adventure may indeed be weakening.

Do you see any promising developments for curbing illegal behaviour by powerful states and state actors and making international law more effective?

Frankly, no.  If this resolution would have been vetoed, I would have said yes, because I agree with the dissenting members on the Security Council that the case had not been made that this attack was “necessary to maintain or restore international peace and security” as the UN Charter requires.  Furthermore, the fact that the United States and the United Kingdom and their accomplices in NATO were never sanctioned for their “supreme international criminality” in Kosovo, Afghanistan and Iraq, where hundreds of thousands of civilians were in effect murdered (illegally killed), is not promising.  Nor is the fact that all of the institutions set up to prosecute illegal behaviour, the Yugoslavia and Rwanda tribunals as well as the International Criminal Court, have turned out to be the lap-dogs of the West.

Michael Mandel is Professor of Law at Osgoode Hall Law School, York University, Toronto.  Amongst his published works is How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press, 2004).  Thomas Kollmann is an independent journalist based in London.  The above is an excerpt from an interview published by New Left Project on 3 April 2011 under a Creative Commons license.  Cf. Charles Levinson, “Rebel Chief Asks for Timely Strikes, Helicopters” (Wall Street Journal, 4 April 2011).

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