Libyan NFZ: Hard? Easy?

(F3s off on patrol one last time.....)

No Fly Zones sound impressive. And indeed, they can be! Lots of jets patrolling the skies and stopping nasty dictators (e.g. Saddam Hussein) from using air power to schwack good guys (e.g. Kurds) at little cost and virtually no risk to our servicepeople. Much better than the dirty, dangerous expensive business of putting soldiers on the ground in unfamiliar countries with language and cultural barriers to fight someone else's war. In this sense, the NFZ is the epitome of modern gesture politics - a modern equivalent of sending a gunboat - looks great, little if any risk to us, and satisfies the dangerous disease of "do-somethingitis" that often infects politicians. ("Something must be done!" etc etc)

NFZs for humanitarian purposes are apparently legally convenient: the Northern and Southern Iraqi NFZs were not directly covered by a UN Security council Resolution. UNSCR 688 didn't expressly authorise them, and no-one (with the possible exception of the Iraqi regime) seemed to mind too much, even when it came to so-called "Response Options" which were preplanned attacks in response to Iraqi air-defence activity. Better, over the period of 12 years and more than 180,000 sorties, no manned coalition aircraft were shot down. So, an NFZ appears to provide a low-cost effort for policing - a policy initially proposed by Winston Churchill in the 1920s.

Jolly good.

(S-300PMU-2 / SA-20 GARGOYLE: An issue)

But there are issues. Specifically, there is the Libyan integrated air defence system (IADS), which in all likelihood would have to be deactivated / destroyed before any serious NFZ partoling could get underway. According to Wikipedia the IADS may include S-300PMU-2 / SA-20 GARGOYLE, which is a rather dangerous issue. As in a Corporal Jones "Don't Panic" dangerous sort of an issue....

(Libyan Mi-35 HIND. Bad news if you're a protestor - photo by Chris Lofting)

Second, the real threat to the Libyan civilians /protesters / rebels is from ground forces operating with helicopters much more than jet fighter-bombers (FJs). And as finding and shooting down low-flying helicopters is a non-trivial task, implementing an NFZ that stops helicopters flying requires 24-hour coverage, or the political will to disable or destroy the Libyan AF on the ground.

Third, this means that we're into air attacks against Libyan armed forces targets, so why not be effective by bombing the tanks, artillery and armoured personnel carriers that are being used against the non-Gaddafi forces. Which runs the serious risk - which needs to be acknowledged up front and addressed - that in imposing an NFZ we are on a slippery slope to actual humanitarian intervention on the side of the anti-Gaddafi forces. On this basis, we'd be well advised to just fess up and get on with it robustly - whilst robustly defending the legality of the intervention. More force sooner to remove Gaddafi's regime will save more lives, so if the international community is serious about it, let's get on with it.

 

 ("Now Dave, have you really thought through this 'No Fly Zone' business...?")

All of which seems to have missed British Prime Minister David Cameron when he proposed an NFZ, leading to the humiliation by US Secretary of Defense Bob Gates (seen chatting with "call me Dave" above in 2010) to basically rubbish it as "loose talk" (Ouch!). Why does Gates' view matter? Um, because the UK cannot begin to think about establishing an NFZ without the US. (Especially now after the continuing cuts following the SDSR.) In fact, no-one can - any NFZ will be US-led as only the USAF and the US Navy have the capacity and the capability to do it.

So by all means have an NFZ, preferably under UN, Arab League, African Union or even conceivably OIC auspices. But to be effective in saving Libyan lives by removing this awful regime, invoke the humanitarian exception to the Art 2(4) prohibition on the use of force and attack Gaddafi's instruments of repression.

And do it now.

Libya - a case for R2P?

(F3s finale over Libya? Sadly, probably not. Fuel-to-Noise. Go!)

There's been some talk about setting up a No-Fly Zone (NFZ) over Libya in the last few days. Whether this is a good idea militarily is a debate for others to have, but the legal position is clear enough: if the Security Council passes a Chapter VII resolution under Article 41 or Article 42, then it is legal to use force to enforce it.

If the Russians veto a draft resolution permitting an NFZ, then the questions around humanitarian intervention and R2P will resurface. As I blogged last week, there's a serious discussion to be had, but in my view there is an humanitarian exception and an NFZ is a decent way to start protecting the Libyan people from the depredations of the Gaddafi regime's death-throws. It is unlikely to be enough - Libya is vast and the number of aircraft that would be required to have standing patrols over all of the airfields under Gaddafi loyalist command, along with the SEAD (Suppression of Enemy Air Defences) support to ensure that surface to air missiles stayed on their launch rails, would be immense.

(More heroic F3 turning and burning into the sunset....)

But it would be a start.

Am I my brother's keeper?

(No sign of Muammar. An oversight.)

Cain, Abel and Muammar Gaddafi are perhaps not the most obvious of bedfellows. But Cain's riposte to God after killing the mysterious and unexplained death of Abel (a matter that remains sub judice)* is as pertinent now as it was to biblical author: what responsibility do we carry singly and jointly for the well-being of our fellow human beings? Relatedly, how does this operate in a world in which Article 2(7) of the UN Charter restates the most ancient tenet of international law - non-interference in the internal affairs of another sovereign state? In short, are we the keepers of our Libyan sisters and brothers as they face the threat of annihilation by their own government in a (final) spasm of murderous repression? 

Let's look at the notion of non-intervention, at the doctrine of humanitarian intervention and the notion of an international "Responsibility to Protect", known as R2P in txtspk.

Non-Intervention - the international community's prime directive?

If non-intervention is a cardinal rule, then Cain is right and as long as it happens next door, it's no concern of mine: I am implacably not my brother's keeper.

Some countries argue that non-intervention is the cornerstone of the international system, and that this has been the case for centuries. This is, of course, palpably risible nonsense. Advocates of non-intervention generally mean that they are in favour of non-intervention in their affairs; it is therefore no surprise that the strongest and most persistent advocates of the non-interventionist mantra include PR China, North Korea, Saudi Arabia, Cuba, Sudan and Zimbabwe, all of which have human rights records that they would wish to protect from outside scrutiny or interference. 

It is also important to note both that history is based around countries intervening in each others' internal affairs, and that intervention spans a much wider ambit than simply the use of force - sanctions, consumer boycotts, trade agreements reflect power realities and are used by stronger states to coerce weaker ones. Try asking an Irish or Greek politician about the amount of non-intervention that they’ve had to accept in their internal affairs in the form of a financial bailout – and no shots were fired. In other words, intervention in the internal affairs of other states is the norm, and the non-interventionist language in Article 2(7) is the aberration. 

 (Do we protect them? If not you, who? If not now, when?)

Humanitarian Intervention

Back in the early 1970s the International Law Association (ILA) created a framework for humanitarian intervention** which was picked up over the next decade led by Fernando Teson, an Argentine lawyer proposed along with some American lawyers a doctrine of humanitarian intervention. As a legal proposition, humanitarian intervention proposes an exception to the ban on the use of force in Article 2(4) of the UN Charter in cases of genocide, crimes against humanity or massive human rights abuses where there is no option due to time or because the Security Council is deadlocked. 

All good. (Except that Teson and his proto-neo-conservative American chums decided that not being a democracy was a gross violation of human rights, and then used this to propound the deeply problematic notion of "pro-democratic wars"; Teson's supporters tended to find themselves on the hawkish/paranoid Republican right, some of whom went so far as to suggest a NATO invasion of central Europe to drive out the Soviet totalitarians. No prizes from your blogmaster for guessing the likely outcome of that particular policy choice if you'd tried to implement it.)

In one of those strange historical oddities,*** Teson's champions today are on the left, under the banner of solidarism. Nicholas Wheeler's "Saving Strangers" is the classic exposition of the need for a framework for where there should be an exception to the UN Charter rules on non-intervention and bars on the use of force. As Wheeler shows, the three classic Cold War interventions that could have been presented as humanitarian interventions (India in East Pakistan/Bangladeshi War of Independence, 1971; Tanzania in Uganda, 1978; Vietnam in Kampuchea, 1979) never claimed any humanitarian rationale at the time. Kosovo in 1999 is a partial example of humanitarian intervention, but some structural elements were not in accord with the ILA's 1974 blueprint. Similarly, UK/US/FR extending UNSCR 688 to (and arguably beyond) breaking point for Operation Provide Comfort with the Northern and Southern No-Fly Zones over Iraq.

(Op Northern Watch - aka heroic Jags over northern Iraq. Ahh....)

So under humanitarian intervention, you can present yourself as your sister's keeper, but you don't always get a chance to do anything about it - and if you do want to do something about it, then you need to make sure you work through the ILA check list, and crucially, you need to make explicit that it is a humanitarian intervention at the time that you do it. 

Bottom line: humanitarian intervention provides an optional route for States that want to intervene - if the world is indifferent, humanitarian intervention doctrine does not require the community of nations to do anything about massive human rights violations. Just ask Jim Hacker - he explains it far more eloquently than me; the Russians were indeed too strong...

Responsibility to Protect (R to P, R2P)

The 2005 UN World Summit outcomes document specifically recognised the need for a responsibility for collective action to stop "genocide, war crimes, ethnic cleansing and crimes against humanity" - which are all defined in the ICC Rome Statute. This is the genesis for Responsibility to Protect - a key turning point in international law. 

Paragraph 139 of the 2005 World Summit outcomes states in part:

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. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 

Which is a real drafting hodgepodge, betraying the lack of unanimity in the international community. The answer appears to be that there is no unilateral right of intervention, the Security Council should do the right thing but there may be a regional organisation get out clause. Or not. 

So R2P is not clear yet: NGOs are pushing for clarity and for the world to move towards a Responsibility to Protect. Let's see how we're getting on. We need to speak clearly that the international community does have responsibilities and Libyan-style repression is a crime, pure and simple.

* This is a legal blog. You get legal jokes - bear with me, some of them are even funny.

**The ILA's Third Interim Report of the Subcommittee on the International Protection of Human Rights by General International Law, New Dehli, 1974

***For example the manner in which the British Conservatives have moved from being the principal supporters of British membership of the EEC to being dominated by anti-EU forces, whereas the British left moved from visceral anti-EEC agitation based on the notion that the EEC was an anti-worker capitalist plot to being broadly in favour of the EU as a method of promoting workers' interests.