Rearming foreign rebels is it violation of Law?

This issue has been brough to light by UN Seccurity Council Resolution 1973.

1973 was voted by all non permanent members, including Portugal (currently serving one year), and abstentions of Russia and China (which doesnt veto the procedural voting matter). This decision to implement an air haven against lybian pro regime air strikes on their own populations, is only short of an invasion, as it is configured in the Resolution, since it allows to use any means necessary to prevent or help sustain a wave of humanitarian crisis.

The US, through Sec Clinton, already admited in London, that it is the US reading of this UN Council Resolution, that the US reserves itself the right to consider arming the civil populations against the regime forces, whether or not the situation of need arises.

This UN Resolution is actually coherent with the Principle of Self Defense and legitimate Defense in the name of third parties. Much like the same principle that presided the US intervention in Bosnia and Kosovo in 1999.

In some national constitutional regimes, this is further developed under the Principle of State of Necessity, to enhance to prevention for a further crisis to demand bigger measures or incur in bigger losses.

Whether this arming process may or may not go against the rigidity of arms embargo imposed by the same Council and supported by at least 9 out of 15 Members, is another question. UK PM Cameron was accused to continue selling arms to the Gaddafi regime right after the outbreak of violence. Berlusconi reinstated his cumplicity with Gaddafi up until when hostilities broke up and Sarkozy, being France a long firm ally of all the Magrebian countries, with particular focus on ex french protectorates, also kept a very low profile in taking sides before the US started calling for an international coalition, outside NATO. Merkel in Germany, one of the current non memebr states in the UN Council, strongly supported the Res 1973 but opted out the Coalition, in a realistic stance of budgetary constraints, setting an example in Southern Europe, of whom Germany is and has always has been the major donor and financial banker.

So the question is:

1- is 1973, according to the US interpretation, a violation of the arms embargo general prohibition?

2- are citizens an actor of international law outside the state, Humanity (Sea Law and Heritage) and without necessarily being so only while resorting to international institutions for their individual rights of petition and redress?

3- Outside the democratic control, in a humanitarian crisis, Media, NGO’s, Observers and Intelligence are to be taken in? And if not will the UN get legitimacy to interfere directly or indirectly in a sovereign country policy, after Gaddafi declared that any military retaliation had been stopped after Res 1973 ? (UN Criminal Court cannot start an investigation before 12 months after a case has been refered to it by the UN Council).  

4-Should the US create a bigger gap between Congress and the Senate, when the budget deficit discussions are reaching a breaking point (Brazilian subsidies for drilling and the middle east crisis against rising oil prices and dollar depreciation) and when theres no clear leadership about what to expect from the US and its role on the Lybian crisis? Is NATO out finally? Is UN Peacekeeping too expensive? Is the Arab League resourceless and the European Union powerless to limit this to a regional affair?

5- Will a foreign intervention taint the legitimacy rolling in the Middle east toppling regimes or even create a false sense of security among other states in the region for rebellion?

To any of these questions, one thing remains obvious. The US did not rush into interveining in Somalia or the Ivory Coast a few months back, not even after another piracy attack was made on one american boat, against american citizens recently.

Would the US participate in a task force against Saudi Arabia, if the protests extend to there and grow up to a point of no return?

In what sense does this role of the US as a international power for democracy and capitalism, in a volatile OPEC region, might hurt China and Russia oil and gas contracts and their respective role as growing economies, against the always controversial green economy projected by democrats, but hated by libertarians and liberals in the GOp and Tea party?

What changed in this operation, where European forces seem to be active and the majority in the theatre of war?

It seems to me that the international community is very efficient in the first phase of containing the conflict by securing sanctions, providing for evacuation of foreign nationals from the conflict area, impose travel and financial bans whenever diplomatic efforts fail, trade embargos, arms boycot, etc.

But when the situation is such that not all international community members are on the same side or opt out from taking things to the last consequence, or simply refuse to work alongside, this shows the weaknesses of international law, legitimizing the revolutionary actor to bend rules or ignore them altogether.

During Cold War the stakes were high enough that both SuperPowers could not afford to wait on a case-by-case to depend upon the international institutions, thus the containment in the US threatening mutual assured destruction if vital targets or allies were tampered with, with a substantially more conservative and yet dynamic iron curtain or sanitary chord from the other side in a counter cycle dynamic of expanding/abandoning positions from Europe to Africa, to Cuba, forcing the US to revise their foreign policy to a Roll Back doctrine until Reagan played the ultimate bluff with the Strategic Defense Initiative and won over the russians.

Now that the balance of powers seems to be much more difuse, its still unclear whether International Law is to play the biggest part in international relations, when States still have the monopoly of violence in the anarchiq international system of power struggle.

Until all the world trade is made without tariffs and contingents, across the globe, meaning: all 5 continents and outter spaces are the prerrogative of a supranational political organ, by region, we will still be citizens without international personality and capacity beyond simple petition, right of freedom of association (in some countries).

The US might be right that Lybia does not have an army and that mercenaries will not take over after the dictator Gaddafi, but how is a 40 years oppressed population, without a true sense of nationality, without free media, without civil society, where tribal clans are all corrupted by gaddafi and bordering volatile countries, like Algeria and Sudan, how can all this be armed and how will this prevent war crime and and the worsening of the situation altogether. Is the US seeking a lait motif to invade?

thoughts of Berhard Zand from Der Spiegel

(…) ” These countries probably stand the worst chance of stabilizing in the foreseeable future, because men like Gadhafi and Yemeni President Saleh will not even leave behind the basic framework of a power structure that someone else would be capable of filling. These countries could benefit the most from direct intervention by the West to prevent a Somalia-like governmental collapse, be it humanitarian aid from the international community, assistance with the establishment of a civil society or even military intervention.”(…)”Only one of Nasser’s legacies could prove to be of value in the current upheavals in the Arab world: the militarization of many Arab societies and the tradition of the strong army. As poorly prepared for war as Egypt and Tunisia presumably were, during the revolution the military leadership in both countries behaved prudently and intelligently, not allowing themselves to be misused to suppress the revolt” (…) ” It appears that al-Qaida was as caught off-guard by the Arab popular uprisings as the Arab autocrats themselves.” (…)”The West’s fixation on the Islamist threat since the 9/11 attacks distorts its view of the fourth and probably most acute sickness that has afflicted the Middle East, the conditions that triggered the current wave of uprisings in the first place: poverty and social injustice, and the inability of Middle Eastern regimes to find a response to the economic consequences of globalization.”.(…)

“The boom, triggered in part by rising oil prices following the Iraq war, had attracted hundreds of thousands of Egyptians, Moroccans, Palestinians and Lebanese to the Gulf. Many were young men like IT specialist Wael Ghonim who, as a Google employee, was to play a key role in the Egyptian revolution.(…) “For years, all that guest workers brought home from Saudi Arabia were religious robes and fanatical ideologies,” said Youssef Ibrahim. “But from Dubai they bring home blue jeans for their wives, tank tops, mobile phones and the knowledge of how to make money.”.

(…)”Indeed, the most urgent question of the hour is not whether the Islamists or secular parties come to power in Egypt, Tunisia, Libya and later perhaps Syria and Jordan. The most urgent question is: Who will solve the enormous economic problems of these countries, and who will close the gaping prosperity divide?” (…)”In addition to the rich oil-producing countries, the West, and particularly neighboring Europe, should step up to the plate”(…) “When the United States looked to the devastated old continent after World War II” (…)” To tackle the challenge, Washington created the Marshall Plan, the biggest civil aid program of all time. In 1948, the US Congress approved a four-year budget of $13 billion for the program”(…)

(…) ”

Two years ago, at the instigation of the Club of Rome, a consortium of German, French, Italian and British companies founded a giant infrastructure project called Desertec. The goal of what is probably today’s most ambitious energy project is the construction of solar thermal power plants in the Middle East and North Africa that would produce electricity for the region and, in the long term, meet Europe’s energy needs, as well.

Precise cost estimates have been made for the project. The German Aerospace Center anticipates a total investment of €400 billion by 2050 — Europe’s Marshall Plan for North Africa.”(…)”

“Prince Hassan Bin Talal, the uncle of Jordan’s King Abdullah II, calls for a project of similar dimensions, a regional fund to which the super-rich sheikhs of the Gulf, among others, would contribute. Alms, says the prince, are part of the cultural bedrock of Islam. The fund would promote uniform development of the entire region, which is precisely what the Marshall Plan achieved in Western Europe after World War II.”.

the triade of solution to the war in Lybia

Lybia is currently presented with three viable ways of getting out of the civil unrest and undeclared but obvious civil war:

The first would be to simply get an informal agreement with a secret clause between the 5 permanent members of the Security Council to simply let the protests take their course without international interference in the political or military levels. This would seriously compromise the safety of the Lybians and is not credible that would last more than a few weeks, if that..

The second would be to promote a humanitarian military intervention, as defended by former UK Embassador to Lybia, in which there would either be a UN peace enforcement operation, or the US would get a mandate from the Security Council in the name of NATO (which would need to enlarge its area of operation, review its strategic chart again..). Clearly this would totally undermine the arab countries will to emancipate and take over this issue as their own. So, considering that Egipt and Tunisia were 100% arab revolutions (theres no evidence to deny it yet), the West would be more than willing to accept an arab solution, even because Russia might be pushing the no fly zone to high up into the US real desire to agree to that: This could stop Gaddafi alledged air strikes on his people but would stop defecting pilots from keeping the conflict regional, by including third countries, namely European Union members, that have a security interest in the area.

The third option, or the west withdrawl for the arab league to take over, could empower the Muslim brotherhood in Egipt to come to the rescue of the Lybians through humanitarian aid, as they have done in the past internally, mostly in Egipt, against natural calamities and military campaigns. It is not probable that the military in Lybia should take over in the case where Gadaffi and his prol retreat. Military has no structure in Lybia, its more like a bunch of militias that if insured power would likely just withold the democratic transition, if nothing else.

Most leaders of opposition who defected and are in exile, are most likely too involved with the ruling clan and will have difficulties convincing anysupporters to their side.

The congress of members, whom Gadaffi leaded in 69 to overthrow the king, have been in Gaddafi s payroll ever since. Thise are supposed to represent different clans and tribe leaders.

Right now China, Korea and other authoritarian regimes, who have a heavy energy dependence and many have recent commercial and trade agreements with northern African regimes, seem to be panicking, afraid that the arabian wave of protests, may come to their shores soon, especially North Korea who s getting ready for a dinasty like power transition, much like in the magrebian tradition. Its unlikely that China will pass a UN intervention in the Security Council. The European Union is unlikely to take the lead on any diplomatic initiatives, since the UK and particularly Italy and France have long stood as Gaddafi’s allies and declared friends since 2003, namely Berlusconi. The US also recognises the need for a non direct involvement, especially after Iraq and the dark days ahead in terms of the alienation of electoral support to endeavour another intervention abroad with a tight budget problem and a moral deficit and nationwide crisis.

Gaddafi is theatrical and will probably count on many friends to avoid being brought in to the International Penal Court in Hague. He will have many sanctuaries to chose from, namely Saudi Arabia, or Venezuela, where he can remain in relative seclusion for a few years until issued a diplomatic Passport and roam free within certain circles.