More Questions of Legality? Again, the Answer: "No, It's Not."

July 22, 2011

From: "U.S. Recognition of Libyan Rebels Raises Legal Questions." The Atlantic, July 18 2011.

The Obama administration's announcement July 15 that the United States will now "recognize" the Libyan opposition as the legitimate government of Libya, while welcomed by those who have advocated this step, goes farther than many other countries have been willing to go and raises difficult questions under international law.

Meeting in Istanbul, Turkey, the thirty-two-country "Libya Contact Group"--which includes the United States--announced that "the Qaddafi regime no longer has any legitimate authority in Libya and that Qaddafi and certain members of his family must go." The statement went on to say that "until an interim authority is in place, participants agreed to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya." The fact that the statement says Contact Group members agreed to "deal with"--rather than "recognize"--the NTC as the legitimate government of Libya indicates that there remains disagreement among Contact Group members about the issue of recognition.

U.S. Secretary of State Hillary Clinton went further, stating that the United States will "recognize" the NTC as the legitimate governing authority for Libya, though she noted that "various legal issues remain to be worked through." This recognition allows the United States to unfreeze certain Libyan assets in U.S. banks and allow them to be used by the NTC.

In trade all they ask is the rebels' follow-through on this "democratic reform that is inclusive geographically and politically," (no beating opponents and burning their houses down) and to "disburse funds in a transparent manner," and "to address the humanitarian and other needs of the Libyan people."

Well, they already just f***ed that up the last part in Qawalish, looting it to the bone to prevent life there, on top of their past abuses. But expect a second chance, and a third ...

Recognition by the United States (and other countries) of the NTC as the "legitimate governing authority" of Libya is especially unusual under international law because the NTC does not control all of Libyan territory, nor can it claim to represent all of the Libyan people. Indeed, as a general rule, international lawyers have viewed recognition by states of an insurgent group, when there is still a functioning government, as an illegal interference in a country's internal affairs.

Recognition of the NTC while the Qaddafi regime still controls extensive territory and exercises some governmental functions also raises other legal and practical problems, such as which group bears the responsibility for Libya's treaty obligations. [...] No doubt these are among the "various legal issues" that Secretary Clinton says the State Department is working through.

The legal question about this campaign started as soon as the campaign did, when NATO exceeded the no-fly-zone to protect civilians into air support for civilian advances into other civilian areas, taking sides in the civil war. Then NATO bombs killed a minor son and three infant grandchildren of col. Gaddafi's while clearly aiming for him. Such assassinations are illegal, but all NATO had to do, aside from being untouchable, was declare the house a "command, control, and communications" facility. If there's a phone there, and someone you want to kill who might have issued some order, that may be adequate. The guidelines aren't clear.

Then there was the freezing tens of billions of dollars in its government assets, itself an unprecedented move, legally speaking. Further yet was the effort to thaw that money out and give it to the rebels to use against the people of Libya, a move that it was acknowledged "poses legal problems," which lawyers were working on answers to. Collectively, they said "screw the spirit of the law, how can we play with words?"

Then there's the breaking of the arms embargo on Libya, by at least two of the European countries who first called for it. First, it was revealed that France had spent June air-dropping medium weapons to rebels in the Nafusah mountains. (Russia called it illegal, while France and the U.S. called it legal, required to defend civilians. They defended themselves from not being in charge of nearby weapons depots, which they took using these weapons, expanding the arsenal and using it to kill more and conquer more towns, like Qawalish, where they looted, abused, and killed yet more.

Then Italy was found to have likely armed the rebels with a huge cache of weapons the Navy had held for over a decade after seizing them during the Balkans wars. These weapons were stored on an island until moved in late April or May, and shipped south on a commercial ferry. PM Berlusconi blocked an investigation of this on national security grounds. The supplies included, per the Guardian:

30,000 Kalashnikov AK-47 automatic rifles, 32m rounds of ammunition, 5,000 Katyusha rockets, 400 Fagot wire-guided anti-tank missiles and some 11,000 other anti-tank weapons.

The anti-Gaddafi coalition of states, in their mad rush to live up to their rhetoric of a new Libya, keep doing things that are illegal as well as grossly immoral. And then, each time, they act perplexed at the legal complications they face while just trying to do what they insist is the right thing.'