The Interested Third Party? Deciding who Decides in Libya

Libya's Partisans: pro aris et focis?

The outrage of many in the Arab world and the delivery of a UNSC resolution condemning the violence in Libya has resulted in some push-back to the dismissive attitudes that commentators such as myself have heaped upon the idea of intervention. If Arab NGOs and intellectuals seem to want international response, and Libyans are clearly willing to die to remove Gaddafi, then why would Libya have to become a public diplomacy disaster, or a protracted and risky undertaking?

Well, the first problem is that even on theory, on paper, the situation in Libya is messy and complicated. Xavier Rauscher, at the International Jurist, points out the many surprising and provocative elements of Resolution 1970. I’ll only be dealing with a few, so read the rest of his analysis here:

In another mention of interest, the UNSC recalls “the Libyan authorities’ responsibility to protect its population,” which again refers to the “Responsibility to Protect” doctrine that has been much discussed lately regarding Libya. However, and this may or may not be contradictory, the UNSC also reaffirms its “strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libyan Arab Jamarhiriya.” R2P versus sovereignty, or R2P and sovereignty? I am not quite sure what to make of that, even though that paragraph may simply refer to the UNSC’s opposition to any form of secession or division of Libya.

2) Is Libya in a state of armed conflict?

That is another question up for debate, and one that could have an impact on future investigations. The Security Council, in paragraph 2(a) of Resolution 1970, “urges the Libyan authorities to act with utmost restraint, respect human rights and international humanitarian law, and allow immediate access for international human right monitors.“

Does the reference to international humanitarian law, also known as the law of armed conflicts, which as the name indicates regulates the use of force in armed conflicts, mean the Security Council considers the situation in Libya to amount to an armed conflict. Marko Milanovic over at EJIL: Talk! seems to think so.

This is not merely a question for the ICC. The upgrading of the violence in Libya to the status of an armed conflict does have significant implications for the sovereignty of the Libyan government, which the UNSC cannot simply brush over. From a factual standpoint, it does seem that Libya has entered into a civil war, however, the classification of Libya’s turmoil as that of armed conflict has implications beyond mere factual declaration. In addition to opening the conduct of the Libyan civil war to the more expansive protocols of laws which cover organized armed conflict, it implies a degree of recognition of the Libyan opposition as an armed belligerent.

International intervention would only further this trend, to varying degrees. In the case of a no-fly zone, the primary problem would be seeking a body to legitimate the intervention of foreign air forces as a third party. Additionally, because Libyan pilots have defected and many continue to defect, who does the international community coordinate with to prevent the shoot-down of anti-Gaddafi pilots? Does the international community recognize these pilots as agents of a legitimate Libyan government?

Further intervention requires further coordination with Libyan opposition forces in order to be effective. Were the intervening parties to switch to a campaign of bombing in the style of Bosnia or Kosovo, they would need to communicate with Libyan military and opposition forces to identify which targets were loyal to the regime and were most hindering the opposition. The introduction of ground troops to restore order will also face the problem of whether or not to recognize “Free Libya’s” liberated zones in the West as under a legitimate government or not, to say the least.

Is the new interim Libyan government in Benghazi legitimate? Its leader, Gaddafi’s former justice minister, Mustafa Abdel-Jalil, believes he has the support of the international community. His agenda, apparently, is to reconcile with Gaddafi’s family to end the violence, and reconstitute the Libyan government in Tripoli.

However, Abdel-Jalil is hardly the sole voice, and not even the leader, of this Libyan National Council. Other members of the opposition coalition and the National Council oppose any kind of settlement with remnants of the regime, given their butchery of the population. Also in the mix of opposition are Libyan monarchists, the National Front for the Salvation of Libya, the Libyan National Army, and the National Conference of the Libyan Opposition, all with different agendas. Add to the mix recently defected elements of the rather weak Libyan military, which, unlike in Egypt, is probably not powerful enough to serve as an interim government, were that even what we wanted. So what is this National Council we would be supporting with intervention? So far, the Council does not even seem to want our support to begin with!

In fact, said Mr Gouga, the organisation will have no hierarchy with the members, their numbers as yet undisclosed, all having an equal say on policy.

According to Resolution 1970, we are respecting Libya’s sovereignty, but in calling for Gaddafi to step down, the international community is still acknowledging that formal, de jure sovereignty lies with the Gaddafi regime in Tripoli. However, in invoking international laws of armed conflict and suggesting intervention, we are basically conferring an upgrade in the sovereignty of the rebels due to their de facto military influence and effective rule, which has seemingly cornered the Gaddafi regime and its remaining forces around Tripoli. Then, finally, there is the broader idea that we are seeking to reconstitute Libya’s sovereignty on the grounds of its democratic legitimacy, which certainly requires the downfall of the regime, but is hardly identical, from what we can tell, with the triumph of the amorphous, fragmented and partially regime-aligned National Council (and whatever opposition movements may fall outside its purview).

The role of the third party who intervenes thus greatly complicates, and necessarily distorts, the Libyan political situation. As Carl Schmitt writes in Theory of the Partisan:

The autochthonous defenders of the homeland, who are willing to die pro aris et focis…. come under international and supranational control, which helps and supports, but only in its own interests, i.e., completely other-directed, globally aggressive goals, which it either protects or abandons. The partisan then ceases to be essentially defensive…. He simply becomes fired up, and is deceived about why he undertook the struggle and about the roots of its telluric character and the legitimacy of his partisan irregularity.

Schmitt was writing in the context of the Cold War and the partisan as resistance to foreign occupation or the imposition of a hostile government. However, in the case when the opposition itself is not unified, the choice to intervene, and who we intervene for and alongside with, does have serious implications. As Schmitt writes in The Nomos of the Earth, “Any recognition that a great power gives to another state’s insurgents intensifies, in a very effective way, the moral, juridical, propagandistic, and military fighting potential of these insurgents, traitors, and saboteurs.”

In the rush of commentators to place the United States or other intervening powers on the right side and history and democratic principles, we must recognize that there is a serious difference between supporting a specific faction, a partisan group amongst partisan group, and supporting democracy. Democracy is a system, an institution, maintained by actors and sustained by elite consensus, popular support, and a monopoly on force. Are we “handing over Libya” to the government’s most recent defectors, a coalition of military and ministerial leaders? Or the exiled Libyan opposition groups? A National Council which so far only seems to be dealing with the day-to-day issues of governing “Free Libya?” Intervention will empower the fortunes of certain opposition groups over others, depending on who we decide we will coordinate with, and whose fortunes the political situation we create lends the most advantage to. If the National Council does not appear to support our intervention, then our actions empower those factions which choose to accept it, creating a new political situation, and certainly not one friendly to democracy.

The friend/enemy distinction in such a conflict is not simple. The intervention of the “interested third party,” as Schmitt writes in Theory of the Partisan, is a necessary but potentially dangerous element for the ultimate aims of the telluric partisan:

From a longer perspective, the irregular fighter must be legitimated by the regular, and this means two possibilities are open to him: recognition by an existing regular power, or achievement of a new regularity through his own power. That is a difficult alternative.

Those calling for intervention in the West are speaking from the perspective of the third party, rather than the partisan. Unlike the third parties of the Cold War, who saw a concrete enemy in their rival, who had invaded or perhaps imposed friendly rule in the partisan’s home, Gaddafi is not, by any means, a “real enemy” in the means Schmitt would identify. He does not present a threat to the real interests of the United States, at least, and his presence does not threaten the broader strategy of the United States.

Commentators demanding intervention have made Gaddafi our enemy, presumably as the concrete stand-in for the more abstract principle of autocracy and dictatorship. So, who then, is our friend? Schmitt dreaded, in Nomos of the Earth, the extension of the American political idea, that “only governments that were legal in the sense of a democratic constitution were recognized,” in “terms defined, interpreted, and sanctioned by the United States.” Schmitt was speaking of US policy in the Monroe Doctrine, which he basically supported, but within the page laments its destabilizing potential transposed onto a broader global order.

The United States should not seek to act as a revisionist power in a political situation where the endgame is so far from being clear. Not only does it complicate the questions of friend, enemy, and sovereignty which Libyans must resolve themselves for any sort of durable government, democratic or not, it also needlessly raises the global stakes of what occurs in the Middle East. As Schmitt correctly points out, providing early recognition to a belligerent elevates their status and degrades the status of the government in power. If our interest is creating a democratic Middle East, should it really be our policy to confer greater recognition, either de facto or de jure, on a belligerent before its democratic credentials are proved?

Alternatively, if our interest is stability, we should tread carefully before making it a policy that civil war or bloodshed will trigger a favorable foreign intervention. Bosnia, however morally urgent, opened the US to manipulation from the KLA, which were hardly great people and took advantage of reciprocal atrocities to goad the US into intervention. Signals sent are not always signals received, particularly when it comes to the politics of third parties in partisan struggle.

Nor do international political precedents lead to expected conclusions when it comes to great power politics. If the revolts and protests in the Middle Easts are only the beginning, it would be better not to make it the site of any grand experiments in international law or international policy. US policy in the post-Soviet sphere had some nasty echoes and responses in Russia’s treatment of Georgia. Apparently, the US did push for the use of force in the UNSC resolution on Libya, and unsurprisingly, Russia shot it down (note the additional danger of the US trying to authorize force while avoiding the ICC proceedings the UNSC hopes to bring to bear against Gaddafi). This would only make the negative international consequences of a military intervention more unpredictable.

As a recent Guardian piece from 30 miles outside Tripoli article makes clear, we are not facing a simple war where the rebels are advancing on the capital and it’s all over except for the trials, executions, and elections. Who we support to win the civil war may not be who we should support to build a democratic Libya, which means that we run the risk of stifling Libyan democracy or entangling ourselves in protracted tension. Thus far, out of Libya’s disparate groups, none seem to support an intervention – which is well and good, because to establish one’s own sovereignty is, in all likelihood, a sounder course for the long-haul. However, should some voice call for it, the US, or other actors, unless compelled by some vital interest, ought not go along with them – to do so would merely serve to elevate one faction over another and undermine the creation and legitimation of Libya’s new sovereign system. The better option for those partisans who hope to establish an indigenously legitimate Libyan government, and for a third party, the United States, that is not necessarily “interested” in the Libyan outcome, should be for the partisans to establish “a new regularity through [their] own power.”

The international community should do what it can to provide aid, comfort, and safety to Libyans and other nationals who have fled. It should prevent the influx of more arms and mercenaries into Libya. But it should not undertake intervention if, in the process of intervening, it must decide who decides in Libya – to answer the question of who or what should reign sovereign in Libya’s borders. If an international community with no vital interest at stake intervenes in what is now a civil war, particularly in the name of a form of sovereignty it cannot institute except on its own terms, and a people who do not want it, their action will not serve any raison d’etat, and it will only complicate the difficult questions Libyans themselves will have to resolve in restoring order and sovereignty to their country.