Scribblings: Legal Consequences
Mar 29, 2011 | Tzvi Fleischer
As I write this, the US, France, Britain and others are using military force against the forces of eccentric Libyan dictator Muammar Gaddafi, pursuant to a UN Security Council resolution passed on March 18. The US Administration was reluctant to make such a move, and only did so after it became clear that the alternative was Gaddafi re-conquering the country, instituting a bloodbath in rebel areas, and probably returning to his old pre-2003 tricks of pursuing WMD and supporting terrorism. Faced with this unpalatable choice, the Administration made the right decision.
However, it seems likely that the US and other players at the UN Security Council increased the likelihood of having to confront this unpalatable choice in mid-March via mistakes made in their earlier resolution of Feb. 26.
That resolution looked pretty tough on paper – it imposed an arms embargo, an asset freeze and a travel ban on regime leaders, and called on the International Criminal Court (ICC) to investigate regime attacks “against the civilian population [which] may amount to crimes against humanity.”
But what incentives did these measures create for Gaddafi? The arms embargo and asset freeze are measures that could only bite over the long term – meaning, they were unlikely to affect the immediate fighting between Gaddafi and the rebels. In fact the only way they could do so was to disadvantage the rebels. The US Administration argued that supplying arms to the rebels, who had much less military hardware than the regime, was banned by the resolution.
Furthermore, while the resolution placed little immediate pressure on the Gaddafi regime, it did provide a powerful reason for Gaddafi not to flee the country but to stay and fight to the finish. This was the ICC investigation, which was likely to dog Gaddafi all his life if he fled, but which he could laugh off if he remained Libya’s dictator. In other words, this is the message the resolution gave to a self-interested despot like Gaddafi – we hate you, but we are not going to seriously harm your chances of retaining your dictatorship. If you do flee, however, we will hound you and attempt to lock you up.
It is, of course, quite likely Gaddafi would have fought to the end anyway, given his profile, but the Feb. 26 resolution helped make it a sure thing.
Why was this well-meaning but counter-productive decision made? I would argue because of the seductions of international law. People imagine international law is the ideal solution to international problems. After all, the rule of law works great domestically. So let’s get international law to prohibit people doing bad things, and prosecute those that do, and this will at least drastically curtail people doing those things. And then we won’t need wars or sanctions or other morally troubling actions.
Only, as law professor Greg Rose points out in this edition, international law is different. It does not contain the elements of the “rule of law” we experience in Australia or other democracies. There are no police, there is no legislature, there are only limited and contested judicial authorities to interpret the law, and there are no checks and balances on its application. The ICC may investigate Gaddafi, but has no means to arrest and try him as long as he rules Libya. So his incentive was not to stop doing things which might lead to his prosecution – such as killing his political opponents – but to keep doing so as a means to avoid being deposed and thus subject to arrest.
In fact, Libya aside, attempting to apply international law to solve problems of war and conflict almost always risks perverse incentives. For instance, as Rose points out, the law of armed conflict attempts to forbid acts which target or harm civilians in war. This is a vital principle, but in fact, as written and interpreted, international law can create perverse incentives which actually makes such harm more likely in many conflicts.
Such laws are only likely to be observed by relatively open, democratic and professional armies. For insurgent groups fighting such armies from a position of weakness, these laws create incentives to both target civilians, and to hide amongst civilians – thus gaining both a military advantage in battle, and a public relations advantage in likely forcing your opponent into a position where civilians will get killed and he will be tarred as a war criminal. The illegality of its own actions would likely not worry a terrorist or insurgent group at all.
Further, those who see international law as the solution to international conflict tend to react to the above perverse reality by urging ever more vigorous enforcement to stop supposed war crimes and by re-interpreting the law ever more restrictively. This only increases the perverse incentives to violate such laws.
International law is useful. But to use it properly, the differences from domestic law must be recognised, along with the dangers of creating perverse incentives. In the case of the laws of armed conflict, this means, as Greg Rose suggests, re-writing them to recognise the perverse incentives they create for terrorist and insurgent groups, or dictators like Gaddafi.
Readers may have noted the story on March 6 that Libyan rebels had captured eight British special forces soldiers in Libya, apparently there to establish contact with rebel leaders. What they may not have noted is one detail – the soldiers were reportedly carrying forged foreign passports from four different countries.
Why is this significant? Because Britain made a huge stink last year over Israel’s alleged use of forged British passports during the assassination of Hamas operative Mahmoud al-Mabhouh in Dubai in January 2010 formally expelling an Israeli diplomat (as did Australia).
Interestingly, they did nothing similar when it was revealed last July that a Russian spy ring in the US was using a forged British passport.
Now it seems clear that the British actually use such passports themselves. The vehemence of the British reaction was clearly hypocritical, prompted not by the misuse of passports, but simply by the fact that Israel-bashing is popular in Britain.