Libya - a legal approach.

The United States, France, and Great Britain managed to get a resolution passed in the United Nations that called for a no fly zone. This was indeed an impressive diplomatic accomplishment and I would very much like to learn how it was done. Whatever magic was applied, the coalition obtained abstentions rather than opposition in the crucial Security Council vote from Russia, China, India, Brazil and Germany. Now, however, there is a rising tide of concern about the way in which the coalition is implementing the UN resolution. Coalition aircraft are attacking government ground units even when they are in retreat. We already have special operators on the ground with Gaddafi's opposition and are considering arming the rebels. Libyan government spokespersons are asking how those actions are consistent with the terms of a no fly zone. Coalition spokespeople take the position that they must destroy the Libyan capability to harm Gaddafi's domestic opponents else they are not protecting civilians in the long term. The inescapable logic of this rationale is regime change - something about which we continue to equivocate.

This type of debate is analogous to the litigious nature of our approach to problem resolution here in the United States. President Obama, a former law professor, has assigned the United Nations the authority to sanction military action. He has obtained a judgement from that international body and is in the process of implementing it. As questions arise, he quibbles with the words in true lawyerly fashion. There are a number of substantive problems with this approach. The ten members that voted for the resolution included the United States, France, Great Britain, Bosnia and Herzegovina, Colombia, Lebanon, Portugal, South Africa, Nigeria, and Gabon. This is not an impressive list of international supporters. In addition, the United States, France and Great Britain managed to get a favorable decision in support of a no fly zone from the Arab League. The Arab League is composed of a number of regimes that are under attack by their own people thus weakening the authority of that body. In addition, it is important to note that the coalition failed to get the support of the G8 even though the United States, France and Great Britain make up more than a third of that organization.

Another problem that I have with this policy is that President Obama saw fit to seek the authority of the United Nations, but he did not see it necessary to more fully discuss this action with the American people or our elected representatives in Congress. He did not act unlawfully here, but in my view he should have done more to seek public and congressional support before he acted. I am sure that he will argue that he did not have time to do more before he had to take off on his Latin American trip, but I would argue that he did have time and should have postponed his trip for a variety of reasons including the need for a more fulsome discussion here at home.

It may well be that the United Nations will someday take over responsibility for determining what is right and what is wrong in international affairs, but we are not yet at that point. In order to get there we would have to subordinate our own sovereignty to that of the United Nations. The idea that the UN is seen by anyone to be a real authority in this world is naive. There is no question that it is a useful forum to organize coalitions, but it is not the final authority to decide much of anything - certainly not the fate of Gaddafi. In the real world that authority comes from the weight of the coalition assembled and the determination of the members to accomplish a specific goal. We do not have a formidable coalition and we have not clearly articulated our goal. At best, we look confused. At worst we look like lawyers playing with guns.

The world is, unfortunately, still a morass populated with good and bad actors. Much as we wish it were not true, there are few, if any, real legal limits to the old adage that might makes right. The United States wants to do the right thing in Libya, but we are going about it too tentatively. In my view, we should have decided what needed to be done regarding Gaddafi a long time ago. If we decided that he had to go, we should have discussed this with our allies and developed a plan to accomplish it without requiring conventional military action. Among other things, this would have resulted in far fewer Libyan civilian casualties and would have cost much less in lives and treasure. Such an action would have also included a post Gaddafi plan that would have guaranteed British and French oil interests and might even have started the country on the road toward real democracy. Granted, we would have been criticized for illegally interfering in another sovereign country, but I see that as inevitable. Certainly the present approach is generating a great deal of serious criticism and I expect more to follow.