Apr. 25, 2011
Libya resolution must be political, not military, say faculty
When soldiers backing Libyan leader Muammar Qaddafi fired on protesters in Tripoli in March, a tangle of legal questions, challenges and conundrums was born.
Among the more vexing issues: Can the International Criminal Court (ICC) prosecute Qaddafi or the opposition forces for war crimes -- when it was Qaddafi's own actions that forced the otherwise peaceful demonstrators to become combatants in that war?
Law professors Michael Dorf, the Robert S. Stevens Professor of Law, Muna Ndulo, professor of law and director of the Institute for African Development, and Jens Ohlin, assistant professor of law, discussed that paradox and others in Myron Taylor Hall's Saperstein Student Lounge April 19.
The questions only multiplied when the United States joined the international military intervention, Dorf said.
International law allows outside governments to use armed force with prior authorization by the United Nations Security Council, Dorf said -- and the unanimously approved Security Council Resolution 1973 granted that authorization. But the legality of U.S. participation is less clear under domestic law.
"The U.S. Constitution gives Congress the power to declare war, but it gives the president the power to be the commander-in-chief of the armed forces," he said. That duality raises questions about a series of U.S. military interventions, including the invasions of Granada and Panama in the 1980s and participation in the 1999 intervention in Kosovo.
Of the last five presidents, Dorf noted, the only one to comply with domestic constitutional law on military intervention was George W. Bush. (Bush clearly violated international law by invading Iraq, he added.)
In theory, courts could take up the issue, he said -- but so far, they've been reluctant to do so.
As constitutional scholars debate those questions, the ICC is considering the best strategy for launching a criminal case against Qaddafi and other Libyan government officials, Ohlin said.
The strongest case will likely focus on the earliest hours of the conflict, when government forces fired on unarmed protestors, he said.
The attacks were not against a particular ethnic, racial or religious group and so probably don't qualify as genocide. But if the court can link Qaddafi conclusively with soldiers and mercenaries who fired on civilians, he could be prosecuted for using Libyan security forces to indirectly perpetrate crimes against humanity.
"If I were a betting man, I would place my money on that organizational argument," Ohlin said.
And as the NATO-led military intervention continues, Ndulo said, politicians and diplomats must work together to resolve the conflict and establish peace.
"We have to explore a political solution, because there's not going to be a military solution," Ndulo said.
That process should be led by the U.N. to avoid accusations of Western interference, he said, and it must include close consultation with the Arab League and the African Union.
Building a consensus will not be easy, he added, and the international community must be vigilant against opportunists who try to hijack the process for their own gain.
"The peacekeeping mission will be very complex," he said. And it can't begin in earnest until the fighting stops -- and that may not happen anytime soon.
"There can be no peacekeeping," he said, "unless there is peace to keep."
The event was sponsored by the Briggs Society of International Law and the Cornell Law Students Association.