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Jules Lobel: UN Security Council has authority to declare no-fly zone but practice is very dangerous

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Washington. Events continue to unfold in Libya as NATO continues to meet to decide whether or not to create a no-fly zone in Libya. The Arab League has called for one. Officials in the United States, and particularly in Europe, have said there may be one, but they won’t do it without authorization of the UN Security Council. There seems to be a general understanding that it wouldn’t be legal without it. But is it legal with it? Now joining us to talk about the issues of international law and the no-fly zone in Libya is Jules Lobel. He’s vice president of the Center for Constitutional Rights and a professor of law at the University of Pittsburgh Law School. Thanks for joining us, Jules.


JAY: How do you see the issues of international law here? Just to paint the picture, Gaddafi’s forces are moving towards Benghazi. It seems rather clear that the vast majority of the people in Benghazi would like to see regime change. They’d like to see the downfall of Gaddafi. They certainly don’t want to rejoin an old version of Libya. And the people in Benghazi have called for two things in massive demonstrations. One, they’ve called for a no-fly zone. Two, they’ve said they want no other kind of foreign intervention. They don’t want any foreign troops on their soil. But they’ve distinguished between this no-fly zone and direct foreign intervention. So what does international law tell us?

LOBEL: First, international law says that it would be unlawful for another country, or even a set of countries, like NATO, to intervene militarily, either through a no-fly zone or through the introduction of foreign troops, without the authorization of the UN Security Council. Article 2, Section 4 of the UN Charter prohibits other countries, as I said, including NATO, the United States, Britain, from using military force against another state–in this case Libya–except in self-defense. And there’s no argument here that there’s any self-defense. So the only way that this would be legal under international law would be for the UN Security Council to authorize it. Now, Chapter VII of the UN Charter does allow the UN Security Council to authorize, in certain cases, military intervention.

JAY: Let me read Article 41 and 42 so people know just what we’re talking about. Article 41 says: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 42 says: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” Jules, the controversial issue here is to–it says to maintain international peace and security. So this provision usually is meant to be conflict between states, not inside a specific country.

LOBEL: That’s correct. However, by the 1990s that provision was interpreted in a number of instances to reflect the notion that even civil conflicts within a nation often have international consequences, as you’re seeing in Libya, namely, hundreds of thousands of refugees, which cause tensions with other countries. And therefore–for example, in the situation of Haiti in the 1990s–the Security Council believed that it was not only international conflicts with one state against another, but also conflicts or problems within a state, to the extent they caused for international tensions and caused for problems of peace and security, that could allow the Security Council to use force against another country. The real question here is both the legitimacy of using other force and the advisability. I do think the Security Council has the authority to use force. And in Somalia, for example, the Security Council authorized the use of force, even though it was an internal conflict, as it did in Haiti.

JAY: But what’s the justification for when it’s an internal conflict? There has been this kind of thesis developed of humanitarian intervention. If there seems to be loss of life at such a scale the word genocide sometimes gets used, just when and how does the UN decide such a thing?

LOBEL: Well, the UN has, really, plenary power to make that decision. The UN’s decision really is not reviewable. But what the UN has said in other cases is that where a conflict reaches–an internal conflict reaches such a scale and such a magnitude so it’s not just a localized conflict between two competing forces in a particular country, but it reaches such a scale in magnitude both to have dramatic humanitarian implications for the entire region and also to create refugees, which then create tensions with other countries within the region, that can then invoke the provisions of Article 41 and Article 42.

JAY: Well, you’ve had an argument kind of emerging from France, which said they no longer recognize the Gaddafi government and they recognize the–I think what is being called the Libyan National Council. The Arab League that called for a no-fly zone said that Gaddafi has lost his right to sovereignty. I mean, how do–on what basis can they say such things?

LOBEL: Of course countries have the right to politically say on their own, or the Arab League has the right to say, this government no longer has legitimacy and we’re going to de-recognize it, or we’re not going to recognize it anymore. But they don’t have the right to authorize the use of military force, including a no-fly zone. Only the Security Council has that right. But the fact that there are all of these governments in these–in different countries which are creating tensions with Libya I think would give at least the United Nations the plausible rationale that a no-fly zone would be legal. The problem here is that I don’t think the Security Council has exhausted all peaceful options, and I think that the problem is in general that the concept of humanitarian intervention, as we pointed out before, is very politicized, it’s used very selectively, and it has in history been used by great powers only in those countries where they have some particular interest where they want to use armed force. So I think the world and the Libyan people should be very suspicious about either a no-fly zone or any other form of military intervention here.

JAY: The problem now seems to be is that the international law seems to be what the Security Council says it is. So if the big powers can decide in a certain situation–like, [in] Libya they can intervene with a no-fly zone; and then they can’t agree on Israel and Gaza, so they don’t. It sort of means there almost is no international law anymore. And am I reading it correctly?

LOBEL: Well, it–no, there is international law, but it’s enforced by a very politicized body. Now, in fact, in this case, as has often happened, China and Russia have refused to countenance any intervention or military intervention. And therefore the restraint is the fact that you need the agreement of all five permanent members of the Security Council, which I think they’re unlikely to get here. So I think as a matter of international law it’s unlikely that a no-fly zone will be approved. But if it is, I still think it would be a mistake in this situation, because it would introduce Western intervention into a situation where I think this has to be resolved by the Libyan people. And I certainly hope that the Libyan people oust a dictator who’s been oppressing them. But to say that it should be done by the force of foreign arms or by US planes bombing and enforcing a no-fly zone I think would be a mistake.

JAY: So what happens if we’re looking at a situation where Gaddafi’s forces are about to bomb Benghazi, where the vast majority of people have clearly said they don’t want to live under this regime, they do want a no-fly zone, but they don’t want foreign troops? But if we start to see the bombing or a real onslaught on Benghazi, what would you say?

LOBEL: Well, I think the pressure, obviously, then would mount, and to the extent that the casualties became a humanitarian, genocidal situation, there might be more justification for intervening. However, even then I would say that there’ve been many situations where internally, from the perspective of the internal forces, people have been able to beat back a dictator. And hopefully the United States and other countries could find other ways of aiding the forces that are for democracy in Libya without resorting to military force.

JAY: Okay, just quickly on Bahrain, the government there has asked the Saudis to send, apparently, 1,000 policemen to put down the protesters. What does international law tell us about this?

LOBEL: Well, international law has generally allowed a government to request aid from neighboring governments, and that’s what they’ve done. So, generally, it would be permissible under international law, as long as it hasn’t reached the situation of a civil war, at which point, traditionally, international law required that all foreign powers stay out of it, both intervening on the side of the rebels or on the side of the government in both situations. But at this point I assume that Bahrain says, we haven’t reached a situation of a civil war, and therefore it’s lawful for us to ask the Saudis for aid. But the situation in Bahrain simply emphasizes the dangers of foreign intervention, because in one case, politically, you might use it to aid the Libyan opposition; in other cases, you’re going to be using it to aid a royalty, or in the Saudi case, if there was protests in Saudi–to aid the kingdom of Saudi Arabia. And there the Security Council, with the–because of the United States’ and Britain’s support for Saudi Arabia, would take a totally different position.

JAY: I mean, in Libya you could argue it’s a civil war, in which case they should stay out.

LOBEL: Exactly. Exactly. I think that there’s a good argument in Libya that they should stay out of the situation. But it shows the politicized nature of this whole humanitarian intervention, both–certainly when individual countries, like Saudi Arabians or the United States does it, but even when the Security Council does it. And that’s what it–why it makes me and many of the people at the Center for Constitutional Rights very wary and very skeptical about this whole development of humanitarian intervention.

JAY: Thanks very much for joining us, Jules.

LOBEL: Thank you.

JAY: And thank you for joining us on The Real News Network.

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Jules Lobel is vice president of the Center for Constitutional Rights, and a professor at University of Pittsburgh school of Law. He is an editor of a text on civil rights litigation and of a collection of essays on the U.S. Constitution, "A Less Than Perfect Union" (Monthly Review Press, 1988). He also the author of numerous articles on international law and foreign in several publications including the Yale Law Journal and Harvard International Law Journal.