Libya: Deal with the Devil We Don't Know?

The Obama administration wants to go with the tide of history, but there is no certain shore. Our allegiance is with democracy. Our allegiance is with stability. We were born of revolution and tempered by civil war. But interventions abroad have sobered our ambitions. Between these opposing pulls, we flail about in the Libya crisis.

Secretary of State Hillary Clinton is dispatched to Europe to meet with Libya's rebels. Yet, even as she does so, the administration provides no clear endorsement of their primal request: imposition of a no-fly zone. We seek to hedge our bets as if this is a stock portfolio that can be diversified, when in fact we are left with few choices except to pick one side or another, or abstain for the time being.

Repeatedly it is said on both sides of the aisle that Gaddafi is a born killer: witness his downing of Pan Am 103, his support of terrorist activities worldwide, and his proclivity to decimating his own nationals. Yet, until very recently, there has been bipartisan support in heralding him as an example of how a rogue state can be turned around, citing his compliance with UN Security Council resolutions in renouncing terrorism and compensating the families of the victims of Pan Am 103, and his surrender of weapons of mass destruction. Once this was done, Gadhafi was greeted with outstretched arms, proclaimed rehabilitated, and ready for resumption of normal diplomatic and economic relations.

Now that cozying up has come to an abrupt end. Indeed, prominent voices on both sides of the political spectrum urge not only intervention for humanitarian relief, but for regime change. Often the two goals are treated as interchangeable. The underlying mantra is: "It is better to deal with the devil that we do not know than the devil we know."

This is an astounding expression of intellectual abdication of the experience of our times in favor of the triumph of hope. Have we not learned that the devil that we do not know can be far worse than the "devil" that we know? Indeed, a new devil may incorporate the worst of Gaddafi, leading to a dysfunctional Somalia-like anarchic entity on the shores of the Mediterranean. This is not to say that this will happen should the rebels succeed. Everyone would hope that the end result would be a marvelous mix of pluralism, democracy, allegiance to the rule of law, and economic prosperity. But it is to acknowledge that prudence dictates that we not easily rest with the unknown.

In navigating through this morass, it would be useful to look to the guidelines that international law provides. Strangely, other than reference to UN Security Council pronouncements and the suggestion that Gaddafi be referred to the ICC (to which the United States does not belong), the proponents of intervention in Libya have been silent on the requirements of the UN Charter and generally accepted international law.

Here's what such a review of international law would tell us:

1. Intervention in civil wars: Long established principles of international law prohibit intervention on behalf of the rebels unless they have established "effective control" over substantial territory. Clearly, this has not yet occurred.
2. Resort to force: International law (Article 2:4 of the UN Charter) prohibits resort to force against the political independence or territorial integrity of another state unless there is an imminent "armed attack." Thus, for example, Iraq's 1991 invasion of Kuwait created a clear basis for intervention whereas the threat of WMD weapons in 2004 hardly met that test. There is nothing in the Libya situation which resembles an armed attack against its neighbors or the United States.
3. Sovereign equality: Article 1:1 of the UN Charter guarantees each state nonintervention, regardless of the nature of their political systems -- whether democratic, authoritarian or despotic. And, Libya continues to be a member in good standing of the United Nations.
4. Humanitarian intervention: The trend in international law, although spottily followed in practice, is for intervention on behalf of victims of potential genocide and gross human rights abuses. Thus, intervention in Bosnia or in Rwanda fell into the permissible side of the ledger. If our monitoring of the Libya situation shows that an attack is imminent against the civilian population (not rebel fighters), intervention to block such an attack through jamming equipment or any other available means would be appropriate. Ideally, there would be prior authorization from the UN Security Council or regional body, but the exigencies of the moment may call for immediate action with a subsequent explanation to the governing multilateral or regional bodies.
5. International criminal prosecution: The International Criminal Court calls for prosecution of those responsible for gross human rights violations. But this occurs after the termination of hostilities.

The reality of the UN system is that whatever the UN Security Council deems permissible is deemed legitimate. Thus, were the UN Security Council to explicitly permit military intervention -- presumably on strictly humanitarian grounds, all other international law constraints would fall by the wayside. At present it seems that neither Russia nor China would provide the consensus needed for such a green light.

Does this mean that the United States or other countries are powerless to act to prevent an impending humanitarian disaster in Libya? No. As the struggle for civil rights in the United States demonstrates, the black-letter law can give way to the moral imperatives of the moment. The United States is not compelled to stand by with its hands folded behind its back. But, as a nation dedicated to the rule of law (so what we do in Libya is not simply the flavor of the month), it is obligated to explain why it was compelled to disregard norms of the UN Charter which would apply in less exigent circumstances. Here we should be careful not to cloud humanitarian intervention with regime change, unless we are prepared to argue that the two are one and the same: that only regime change can halt the looming humanitarian crisis.

Allan Gerson, a Washington, DC lawyer, was Counsel to the US Delegation to the United Nations in the Reagan Administration. He instituted the initial lawsuit against Libya for the bombing of Pan Am 103. This article is written in his personal capacity.