The Legal Implications of Military Intervention in Libya

03/02/2011 05:44 pm ET | Updated May 25, 2011

As the crisis in Libya deepens there is increasing chatter about the possibility of military intervention. At the moment this is suggested most frequently in the form of a no-fly-zone over Libya, in order to prevent Gaddafi from using the air force against civilian protestors.

A debate is developing over the wisdom of any American or Western military involvement, but as usual there is little being said about the international law principles that would be implicated by such operations. And in the context of the growing unrest throughout the region, perceptions of the legality or illegality of any U.S. military action could have a significant impact on the developing narrative in the Arab world regarding America's role, and how the emerging regimes ought to frame their relations with the U.S. going forward. The law matters in this situation.

The starting point of the legal analysis is the basic prohibition in international law on the use of armed force against the territorial integrity or political independence of any state. The two primary exceptions to the prohibition are self-defense, which is obviously not applicable here, and operations authorized by the United Nations Security Council in response to a threat to international peace and security. There is no question, therefore, that if the U.N. Security Council passed a resolution authorizing the imposition of a no-fly-zone in order to maintain peace and security in and around Libya, as it did in Iraq in the 1990s, the U.S. and its NATO allies could do so with the full imprimatur of international law.

The problems arise if the U.N. Security Council refuses to authorize such operations. France and Russia, both of which are permanent members with vetoes, have already expressed misgivings, and the three Arab members of the Security Council have been even more strongly critical of such a move. But surely, it will be said, the West cannot sit idly by if Libyan civilians are being slaughtered in ever increasing numbers by the Libyan government.

The ghosts of Rwanda continue to haunt us. Humanitarian motives require some kind of intervention to prevent crimes against humanity. And indeed, it has been argued that there is an emerging norm of customary international law in support of humanitarian intervention, as a third exception to the general prohibition on the use of force. This was the claim made in justification of the NATO air strikes against the Federal Republic of Yugoslavia in 1999, to prevent the ongoing atrocities against civilian populations in Kosovo. The claim has been further bolstered since by the development of the "responsibility to protect" principle.

The trouble is that while it may be an "emerging norm," it is not yet an established principle of international law. The bombing of Yugoslavia continues to be characterized as a violation of international law, even if many think it was nonetheless justified. Thus, a unilateral U.S. or NATO intervention in Libya, whether in the form of an imposed no-fly-zone, or surgical strikes against Libyan forces, will run the very high risk of being similarly classified as illegal under international law. Even an overly aggressive involvement in the provision of rebel forces with weapons, money, and other logistical support, such that the U.S. is seen as directing or controlling their actions, could be construed as constituting an unlawful intervention, as the world court held with respect to U.S. support of the Contra rebels in Nicaragua in the 1980s.

These legal issues are not merely academic. While in the case of Yugoslavia it might be said that the illegality was trumped by the greater good, here the perception of illegality could have profoundly negative ramifications for the direction that the entire protest movement in the Middle East takes, and the relationship that the U.S. has with the region going forward. Within the growing policy debate, many are already arguing that any military intervention could taint the rebel cause and feed into narratives of ongoing U.S. interference in the internal affairs of Islamic states.

The questions of legality ought to inform this debate. Regardless of how noble and pure Western motives may be for mounting any humanitarian intervention in this instance, if it is conducted without U.N. Security Council authority, and can be credibly attacked as being unlawful, the risks of blowback are compounded exponentially. In the wake of a what many see as an illegal war of aggression against Iraq, any unilateral action in Libya, another oil-rich Islamic state with a history of conflict with the West, will be spun in ways that will be profoundly inimical to the image of the U.S. in the region.

This of course leaves us with the most agonizing of problems if the scale of the humanitarian crisis does indeed escalate. But unlike the situation in the former Yugoslavia, in which the Serbs had a strong ally in a veto-wielding Russia on the Security Council, there is good reason to believe that the Security Council will act if the Qaddafi regime begins to engage in crimes against humanity. There is breaking news that rebel leaders may themselves call for U.N. authorized intervention. But in the interim, the U.S. government is well advised to proceed very cautiously in its consideration of military options. The unlawful use of force is no way to encourage the emergence of democracies founded upon respect for the rule of law, and it could well undermine the ability of America to influence events in the region over the longer term.