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.
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