The Libyan War and the reinterpretation of Sovereignty; Whose sovereignty?

I

The use of force between members of the international community has always been a contentious issue; since the beginning of time, the decision to attack a foreign land has been filtered through lawyers or priests. Maybe in an ode to some memory from our collective unconscious, statesmen have always striven to have right on their side before they deployed their might.

 In ancient Rome, the decision to declare war was shared between the senate and the fetiales, an order of priests. Even after a formal declaration of war by the Roman Senate, it still fell upon the shoulders of the fetiales to sanctify the decision. And if they were in agreement that Rome was indeed justified to seek redress for wrongs through the use of force, it was customary for the most senior of their number, the pater patratus to carry to the enemies' frontiers a blood-smeared spear tipped with iron which he hurled into the enemies territory formally declaring war. As far as Rome was concerned, they were right before the law and before the gods; their cause was just so victory would be theirs.

The Fetiales have long been consigned to the history books, however the principle remains, any decision to use violence to sort out disputes between nations has got to have legal sanction. The Fetiales of today is the Security Council of the United Nations and the pater patratus is the permanent five, the equivalent of the iron tipped spear flung into the territory of the offending power is the resolution assented to by the Security Council under Chapter seven of the UN Charter. 

The decision to use force to bring Gadaffi to heel is not in dispute, in as far as the legal dynamics go, force was sanctioned under the laws that govern the use of force in international relations. The far more contentious issue has been, and continues to be, the interpretation of the ideas of sovereignty and noninterference in the internal affairs of a member state of the international community. Was the issue of egregious human rights violations a colorable pretext for war? Was the initial premise false? Did Gadaffi not have the rights to maintain his grip on power against armed rebels?  Or more concisely, did the actions of the UN and NATO interfere with the internal affairs of the Libyan state and by extension infringe violate the sovereignty of the Libyan State?

II

Did the actions of the UN and NATO violate the sovereignty of the Libyan state? The short answer to this question is NO.

Why do I say no?  Because the concept of sovereignty is a fluid one that by and large reflects the prevailing mood of international politics and international society. At the time sovereignty came into common usage it represented attempts by the European states to limit the interference of the Pope in their internal affairs. In the time leading up to the peace of Westphalia in 1648, wars in Europe were distinctly religious in nature and represented on a micro scale the much larger conflict between the Protestantism and Catholicism.  Thus, a key article feature of the Treaty of the Osnabruck which ended the Wars in Europe was the complete noninterference in the internal affairs of the parties to this treaty.

And with several strokes of several pens, the state system, synonymous with the ideas of sovereignty and noninterference was born. The state system was based on a specific territory in which there is a sovereign who enjoys supreme political authority, and exercises the monopoly over the legitimate use of force within his territory and is recognized by other governments as an independent entity entitled to freedom from external intervention.

The world has changed since 1648 and with it the concept of sovereignty.  A careful analysis of several legal texts the UN charter, the universal declaration of human rights the various conventions against torture, discrimination, the rights of the children and women show there was a strong inclination towards universality of rights, rights not contingent upon the state.

With the end of the cold war and the broadening of the concept of security away from a state-centric model to a more people-centric model brought to the fore the fact that the safety of people was not synonymous with security of the people within the state.

The culmination of this was the fruition of the idea of ‘The Responsibility to Protect’. The result of several years’ work it stated in part;

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. 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.

Perhaps in a break from the past the African Constitutive Act in article 4 subsection h states ‘The right of the union to intervene in a member state pursuant to the decision of the assembly in grave circumstances namely war crimes, genocide and crimes against humanity’ The African bloc, one of the strongest proponents of the old definition of sovereignty tacitly agreed that there were situations in which the veil and sovereignty and noninterference would have to be ripped away.

 As has been argued by Anne Marie Slaughter former Dean of the Woodrow Wilson School of International Affairs, Princeton University, the first time, international law and the great powers of international politics have recognized both the rights of citizens and a specific relationship between the government and its citizens: a relationship of protection. The nature of sovereignty itself is thus changed: legitimate governments are defined not only by their control of a territory and a population but also by how they exercise that control. If they fail in that obligation, the international community has the responsibility to protect those citizens.

Did the Libyan regimes actions meet the threshold for crimes against humanity? I submit they did as argued in the final text of the Arab league meeting of 12/03/2011 which formalized the Arab position it stated ‘After deliberating the outcome of the dangerous situation in Libya and its implications, and the crimes and violations being perpetrated by the Libyan authorities against the Libyan people, in particular the use of military aircrafts, mortars and heavy weaponry against the civilians’ It further states, the Arab league decides to call on  the Security Council to bear its responsibilities towards the deteriorating situation in Libya, and to take the necessary measures to impose immediately a no-fly zone on Libyan military aviation, and to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in Libya, while respecting the sovereignty and territorial integrity of neighboring States’

III

I do not see the Libyan conflict in terms of imperialist powers versus the rest, nor do I buy into the Oil theory as a wit once put it ‘ Oil producing powers have to sell their oil, they cannot drink it’. In this way the arguments about the need to control Libya’s oil fall flat more so when one considers the fact that Libya had opened up its oil sector to whoever could pay for an exploration bloc.

The animate and changeable nature of sovereignty and the manner in which it reflects the disposition of international politics is a phenomenon that which cannot be ignored. In attacking his citizens, Gadaffi affronted humanity; he could not hide behind the veil of sovereignty because the veil was no longer available to him.

The Fetiales spoke, retribution must be made, the cause was right under the law and just before the god’s, allegorical Rome arose and asked for retribution for wrongs committed against her Pater Patratus  hurled the spear into the Odyssey Dawn. 

                                                                          

Till Death us do part

On the morning of January 5^th, the day after Muhammad Bouazizi died, the bell tolled for three men whose combined term in power was nearly a century. Muammah Gadaffi 42 years and counting, reading the day’s papers in his vast tent probably never gave it more than a passing thought. To the west of Libya , Ben Ali 24 years and counting reading about the events from his palace in Tunis and Mubarak 30 years and counting at the helm of Egypt from his villa in Sharm El Sheikh may have over looked the story entirely.

Completely detached from the ordinary lives of the peoples they ruled it was almost certainly impossible for either of the three minds to conceive the desperation of the ordinary man, the desperation that made a young man choose the unspeakable pain of self-immolation rather than live another day under the yoke of poverty, or the incessant mocking of his dashed aspirations.

Bouazizi lit two fires, the deliberate one which consumed his body and the inadvertent one which consumed the souls of the millions of people in the Maghreb. In the weeks and the months that followed, first Ben Ali, then Mubarak and finally Gadaffi have all gone up in the flames that were lit that day.

As I write this Ben Ali is in exile in Saudi Arabia, Mubarak is undergoing the long drawn out humiliation of a trial and Gadaffi is MIA, AWOL, whereabouts unknown, the only indication he is still alive is the vitriol laden messages he sends out electronically.

What happened?

For the three men, the events of late last year and early this year must have come as a surprise; these men had ruled their countries for longer than many marriages last. To the extent that some wit commented that for many of these leaders, the oath of office did not end so help me God, as much as till death us do part.

In writing about marriage former chief Rabbi of the UK Jonathan Sachs said ‘My marriage is absolute but not necessarily universal’. The point he was making was this, what is accepted in a marriage is what is agreed upon by both partners in the marriage. If an outsider does not agree they should accept the fact that these are the terms that have been agreed upon by the partys to the marriage.

What happens though, when one party to the marriage has their needs transformed and the other party will not change? Will not adapt?  Without adaptation, without an acknowledgement of the other party’s needs, the relationship is heading towards catastrophic rapture.

Ephesians 5: 22-33

For anyone who has been to a Christian wedding, the aforementioned verses will not be alien to them. The love submission dialectic has been focal point of debate between men and women as to who has a greater duty, the one who does the submission or the one who does the loving. Lately that argument has morphed, would a woman be right to stop submitting if her husband stopped loving her?

The aforementioned is akin to the theorizing of the liberal political philosophers like John Locke who posited that political leadership and more importantly political stability rests on the perceived legitimacy of the ruling system, once the ruled decided the rulers no longer possessed this legitimacy it could be withdrawn and the system would become unstable. What is the duty of the rulers vis-à-vis the ruled? Can the ruled withdraw their support if the ruler no longer meets his obligations to them?

In the case of Gadaffi, his legitimacy, his perceived right to rule was anchored on his revolutionary credentials. The coup against King Idriss, the expulsion of American and British forces from the air bases in Libya, the nationalization of Libya’s oil reserves and his association with various shades of revolutionaries around the world were manifestations of his revolutionary ideals.

This may have made sense within the context of the cold war and its sharp ideological divide; however things had changed, dramatically.  After forty two years the number of people who had any real experience of the revolutionary and ideological wars that punctuated the sixties and the seventies and to some extent the eighties were few and far in between.  It follows that the number of people who questioned Gadaffi’s right to rule based on his revolutionary credentials were far more that those who believed in his right to rule based on same said credentials.

Consider this, the median age the Libyan population is twenty four years, the bulk of the population is in an age cohort which has no real experience of the foundation his revolutionary credentials.  Furthermore, with a median age of twenty four, the vast majority of the population would have attained some kind of political awareness in the post-cold war era, a time in which democracy; individual freedom, a marked divergence between regime and state security and a more accountable government were the ideological underpinnings of political discourse. This would have been diametrically opposed to the paternalistic autocratic model along which Gadaffi run Libya.

Revelations 2:4-5

It is a fact that the history of these men will be written largely by those who have deposed them. There were those who were opposed to Gadaffi from the get go, even before it was fashionable to oppose him. As a child many a time we argued with the passion only youth can garner, about the merits of Gadaffi’s rule. Even now, I smile as I think about how we believed his army was capable of taking on the combined armies of sub Saharan Africa and winning.

In the words of St John the Divine, Gadaffi forgot his first love, like a husband or wife who begins to take their partners for granted and begins to take liberties with them Gadaffi seemed to have forgotten the reason he assumed power.

His political reality was formed by four key events; the struggle against Colonialism, the formation of the state of Israel universally referred to as an Nahba the tragedy in Arab social consciousness, Gamal Abdel Nasser and the Suez crisis of 1956 and its effect on Arab nationalism and the 1967 Arab Israeli war referred to as An Naksa in Arab Consciousness.

When he assumed power, Gadaffi’s stated aim was to build an Islamist society with power, wealth and weapons in the hands of the people. In his defense he can always argue he never specified which hands and which people, but what he ended up building was a semi-secular society with power and wealth and weapons concentrated in the hands of a few people.

In verse five St John admonishes and warns, he says Consider how far you have fallen! Repent and do the things you did at first. If you do not repent, I will come to you and remove your lampstand from its place. 

Gadaffi famously decreed that revolutionaries never retire, true that may be but, there is a distinct possibility that they could have power forcefully taken from them, which is exactly what happened in his case. While there has been a lot of chatter about the role of foreign intervention in the Libya, and our latter day pan Africanists have wheeled out the old and not particularly scary bogey man of neo–colonialism, reminding  us about what Gadaffi has done for Africa (but not what he has done for his people, his cardinal responsibility) they have been unable to address the fact that the internal contradictions of Libyan society were the real cause of the rebellion and  if Gadaffi had not forgotten his first love (his mission to create a more just society)  maybe just maybe I would not be writing this.