Libya, Test Case for When and How a Government is Deemed Unfit

WASHINGTON – With the unfolding Libya crisis we are witnessing the emergence of “limited sovereignty” as a novel, (and binding?), political as well as international law principle. As the situation in Tripoli evolves, we see a broad-based consensus whereby other governments declared that “Colonel Gaddafi is using force against his own people; and therefore he is unfit to rule and has to leave”.

As US Assistant Secretary of State Crowley (Feb. 28) put it:

“But clearly, we – the President [Barack Obama], the Secretary [of State] have made clear, we believe that Gaddafi himself has lost the legitimacy to rule, and we hope that he will go.”

Aside from the diplomatically soft “we hope that he will go“, we have it from the U.S. Department of State –that is the Government of the United States of America, still the most important economic and military power in the world– that a head of state “has lost his legitimacy to rule“, on the basis of having used violence against peaceful protesters.

When governments lose legitimacy

And so, from all this we glean that if a government seriously misbehaves, not internationally but towards its own people– as it is clearly the case in Libya– then the international community has apparently the right to declare the ruler (Colonel Gaddafi in this case) unfit for the job and thus illegitimate.

Now, this is pretty strong stuff. We are not yet at the point of kicking out the “unfit ruler” with the use of force. In the case of Libya, we do not yet have a United Nations Security Council Resolution authorizing military power against Colonel Gaddafi predicated on his “proven” lack of legitimacy .

Still, even if we are not there yet, we have already progressed quite a bit in narrowing the legal discretionary powers of a sovereign government, by asserting that the international community or some of its key members have the right to dictate what an established government –whatever its own domestic laws– can and cannot do within its own boundaries.

A big change

Now this is a big change. Let’s keep in mind that the way the existing United Nations Charter used to be interpreted supposedly prevented other countries from interfering in the domestic affairs of any other Member of the UN.

Until now, the rules seemed to indicate that, according to the UN Charter, a government has clear international obligations, and thus liabilities in case of violations, only if it engages in actions amounting to threats to the peace. For instance, when Saddam Hussein of Iraq invaded Kuwait in 1990 he broke the UN rules regarding the prohibition of acts of aggression. Thus the international community, acting under United Nations cover, had a clear legal basis for a military intervention aimed at dislodging him. And so we had Desert Storm in January 1991 with the US-led and UN approved coalition that did the job.

Likewise, the US, even though on less clear legal ground, claimed that it had the right to act against Saddam Hussein in 2003, not because he was a dictator, but because it appeared that he had unauthorized weapons of mass destruction (WMDs) that could be used as instruments of aggression against other countries. The US case against Saddam was based on the notion that his regime represented an imminent threat to the security of other countries.

Internal affairs used to be off-limits

However, up until recently, autocrats or totalitarian regimes in theory did not have anything to fear, as long as they did not threaten the sovereignty of other countries. Indeed, Art. 2, paragraph 7 of the United Nations Charter states that:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll”.

And, again the “enforcement measures” under Chapter VII were generally understood to deal with threats to the peace in the form of hostile military action against another country. So, there seemed to be a broad agreement whereby whatever happened within the boundaries of a state is of no concern for the international community. And so, in principle, a repressive dictatorship, as long as it would be peaceful vis-a-vis its neighbors, could be a UN Member in good standing.

Now, domestic acts of government can cause foreign reactions and interventions

But now, it is all different. Dictators and autocrats beware:

We have now a new consensus that enables other governments and UN bodies to determine whether you have gone too far in repressing your own people; this way not only forfeiting your right to stay in office, but also opening yourself to be indicted by the International Criminal Court. In other words, what used to be thought as sovereign acts of government now may drive you out of office and may be put you in jail. Which is to say that sovereignty is no longer unlimited.

Heavy stuff, no more sovereignty the way we thought about it

As I said, this is pretty heavy stuff. We may welcome this development; but we should also acknowledge that as yet we have no credible, standing enforcement mechanism for these new principles, as the hesitation about next steps towards “the unfit ruler” of Libya attests.

True, on Libya we have had the quick and unanimous passing of UN Security Council Resolution 1970. But, without real enforcement teeth, (read: a mandate to mount a military action), sanctions and investigations will do little to change the balance of forces on the ground.

Libya, easy test case

In all this, bear in mind that to use Libya as a test case is almost too easy, as we can all agree that Gaddafi is an exception even among autocrats. He is essentially a bizarre thug, awash in oil money, masquerading as head of state. But, if beyond Libya and the outrageous Gaddafi, this becomes a new principle, how egregious needs the behavior of a ruler be in order to disqualify him from governing?

Definition of this new idea of limited sovereignty?

I am not sure that the exact legal boundaries of this “limited sovereignty doctrine” have been defined. This is really uncharted territory. But it is clear that, whatever will happen regarding Libya and possible actions, including military actions, against Tripoli, there is now a much broader political, (if not legal), acceptance of a new principle whereby a ruler is alright as long as he governs with consent and as long as he allows people to protest peacefully to air grievances.

The old Soviet interpretation, gone along with communism

In the past, in the good old days of the Cold War and the Warsaw Pact, Moscow showed us the enforcement of its own version of a “limited sovereignty doctrine”. Simply stated, the satellite countries of Eastern Europe were not allowed to stray from the established and Moscow-enforced ideological and political orthodoxy. Through military invasions in Hungary in 1956, in Czechoslovakia in 1968 and then through various actions in Poland in the 1970s and 1980s the Soviets and their proxies made that point.

We had to get to the end of the Soviet Empire in 1989 for this doctrine to be finally set aside. Without Soviet enforcement, the Empire fell apart –rather quickly, as the images of happy people dancing on the ruins of the Berlin Wall remind us.

Today, a “New Era”

But now we have entered a “New Era”. We saw parts of this new consensus emerging during the bloody crisis and civil war in Bosnia. We saw it in Kosovo, a crisis that would have been labeled “domestic” in earlier times, as Kosovo was legally part of Serbia. We have seen attempts at enforcing it in some cases in Africa.

The Arab Spring

And today, with these unprecedented popular uprisings in North Africa and the Middle East, we have reached new levels. In the cases of Tunisia and Egypt the international community eventually applauded what appeared to be the acceptance of popular grievances.

Old autocrats finally relinquished power, ushering in (we hope) a new era of constitutional reform leading to real participation and inclusiveness. As these two countries decided to accept popular demands dealing with transparency and accountability, they get a pass and there is no need to intervene against them.

Likewise, in Jordan and Bahrain, monarchs seem to have accepted the need for broader reforms. And so, for the moment at least, they also get a pass. In Yemen, the situation is fluid and it may get worse. Stay tuned.

Limited sovereignty in Libya and beyond

But in Libya, almost from day one it became clear that Gaddafi was not at all prepared to either implement reforms or quit. Protest rapidly morphed into open rebellion and Gaddafi tried to crush it using the old-fashioned instruments of violent repression. And, with that, apparently, he lost his qualifications to be regarded as a legitimate ruler.

The open question now is: “If this “principle” applies to Gaddafi’s regime on the basis of his use of violence against his own people, have we just opened a huge can of worms? How can we say that whatever applies to Libya does not apply in Belarus, the Ivory Coast, Sudan, Zimbabwe, Venezuela, Cuba, North Korea, Syria or Iran?

Oppressed people beyond the Middle East will take notice

The Arab uprisings of 2011 put on the table the people’s right to vote for their rulers, to free expression and to request a government accountable to them, elevating them to the status of “universal rights“. I believe that it is important that these basic principles, taken for granted in all democracies, are now strongly reaffirmed; thus probably giving more courage to other societies living under repression that believed to be forgotten and isolated in their misery. Well, if now people in Africa or Latin America want to protest, they have a wider, worldwide sympathetic audience.

How do we enforce these lofty principles?

However, the real thorny question, regarding Libya and beyond Libya, is how the international community intends to adjudicate which government is fit or unfit and what to do about those deemed to be unfit. Libya is the first test case of this new era; but it will not be the last. Thus, adequately preparing for the consequences of what we have unleashed would be wise –as we have indeed unleashed the “New Era of Internationally Accountable Governments”.