Understanding international law is vital to understanding the pitfalls of the Libya policy.
Criminal Law is based on wisdom, while International Law is based on consensus or horse-trading.
Even when apparent contradictions occur, Criminal law is still based on wisdom. So in the case of Smith : A policeman jumped on the bonnet of an escaping car and Smith accelerated until the officer fell under the wheels of the car and was killed. Smith said he had no intention to kill, but only to escape. Without “intent” it could not be murder. The judge ruled that he must have seen death or serious injury as inevitable and therefore it was “intent”. Smith was rightly convicted. Wisdom, not compromise, is pursued.
Compare this to the numerous negotiations to set borders on countries at the end of the age of empire. Would Iraq be one country or three if the people had been consulted? Who has the right to extract oil under the Arctic ice? Would it be Russian on the basis that they planted a flag on seabed, or would there be a negotiation between Canada, America and Russia? Power and bargaining, not wisdom, form the basis of international law.
The understanding of the law used to justify the Iraq invasion and the law to justify the Libyan No Fly Zone is constantly bogged down in arguments about the exact meaning of the words. This would be appropriate for other types of law, but with International Law it would be wiser to look at the intentions of the countries that made the law possible.
In this case, it was the Arab League who made the resolution possible, but now they feel misled. They never intended the resolution to be for Regime Change. They only ever endorsed the humanitarian aspect of the No Fly Zone. The governments who are implementing the policy are publicly discussing whether the wording of the resolution would allow them to assassinate Gaddafi.
It may well be that the rebels quickly take over the country and everyone will be happy. But with Gaddafi’s forces now unable to move between cities without being hit from the air, while the rebel army comes across as a bunch of amateurs, the policy could well be a recipe for a bogged down civil war, a partition, and a new pariah state headed by a previously reformed character. The Arab League would then blame the west for creating chaos in their region.
Even if this worst case scenario was avoided, it may well be that the Arab League would be very cautious about offering endorsement to some future western policy knowing that if they give the west an inch, they’ll lose a mile. This could have implications.
Libya is not the most dangerous regime in this region. Gaddafi is no longer the danger he once was. Syria is by far the greater danger, while Iran is positively frightening.
The reason we find ourselves engaged against Libya is because an opportunity presented itself, rather than because we are following a proscribed policy. This is a country that has a popular revolt led by people who look like a government in the making. Syria has demonstrations but little else. However, if a new potential government did arise in Syria, and we saw an opportunity to help, would the Arab League be as keen to endorse our policy, after the last time?
The UN Security Council is the strangest law making body the world has ever seen. It only represents the major powers, while the general assembly has power only to make recommendations.
As and when laws come out of the Security Council, it is appropriate to remember how they came about and what the consensus was based upon, rather than obsessing with the exact meaning of the words.
We all hope the situation in Libya resolves itself quickly, but if it doesn’t, then the age-old habit of Arab countries, to blame the west as the cause of their suffering, will have a substantive ring of truth about it.