Libya raid: US tells the world, I’m the law

By Ameen Izzadeen
To hell with the others, I must survive. This appears to be the doctrine that shapes the foreign policy of the United States. Libya is in a political mess and its prime minister was kidnapped briefly yesterday by a rebel group in an incident connected to the United States’ gung-ho policy. The situation is no better in Afghanistan and Iraq, though the incumbent at the White House is a Nobel Peace laureate.
As the names of this year’s Nobel Prize winners roll out from the secret chamber at the Norwegian Nobel Institute, the award of the 2009 Nobel Peace Prize to US President Barack Obama has once again been called into question. The committee cannot ignore criticism that Obama, far from bringing about a positive change in international politics in keeping with the hopes of the Nobel Committee, has perpetuated the anarchy that his predecessor George W. Bush had reduced the world order into.
Certain international acts of Obama make one wonder whether trigger-happy Bush is in the White House as a fourth-term president. A law professor before he became a Senator and the President, Obama shows scant respect for international law and he appears to know how to violate it and justify it — as last Sunday’s special operations carried out by US commandos in Libya and Somalia show.
But those who would like to bring some order into the anarchy in the international political system may see the US action as a shattering blow to the very foundation of international law. It was a clear case of violating state sovereignty. The impunity and the arrogance with which the US violates state sovereignty of other countries, the regular recurrence of such violations and the absence of punitive action against the violator have given rise to fears that the bad precedent being set by the United States could soon become part of international customary law.
Article 38 (1) of the Statute of the International Court of Justice (ICJ) defines customary international law as “evidence of a general practice accepted as law”. This is generally determined through two factors — the general practice of states and what states have accepted as law.
Since the end of World War II and the setting up of the ICJ in 1946, no country has violated sovereignty of other states with impunity as the US has done. The violations have virtually become what the law defines as “general practice”. The victim states, often painted by the US brush as rogue states, cannot find justice even at the United Nations Security Council where the US has veto power.
Even a quick glance at the post-WWII US history may show that violating other countries’ sovereignty runs through the veins of the US body politic. Although the US behaviour in the post-WWII era has been one of military hubris, the rot started with President Ronald Reagan, who probably understood the rule of law (international law) as use of force. Acting on mere allegations that Libya was behind a discotheque bomb in Berlin in 1986, Reagan bombed Tripoli and Benghazi, killing among others, the little daughter of Libyan strongman Muammar Gaddafi.
Reagan also mined the territorial waters of Nicaragua and refused to accept the verdict of the World Court which found the US guilty of violating Nicaragua’s sovereignty. Reagan’s successors — Presidents George H. Bush, Bill Clinton and George Bush — simply followed the Reagan policy of ‘what the US thinks is right’ and punished states which were militarily too weak to hit back. Years before the so-called war on terror began in September 2001, US bombs and missiles created havoc in Sudan, Somalia, Serbia, Kosovo, Iraq and Afghanistan.
Not to be outdone, President Obama, with his Nobel Peace Prize adorning some shelf in the White House, regularly violates the sovereignty of Pakistan and Yemen — and now Libya and Somalia. Mind you, Pakistan, Yemen, Libya and Somalia are friends of the US and they are ruled by governments that listen to the dictates of Washington.
The regular drone attacks that kill more civilians than anti-US militants and the daring raid on the Abbotabad hideout of al-Qaeda leader Osama bin Laden in May 2011 have raised questions whether Pakistan has anything called state sovereignty. This week’s US Delta Force derring-do in Libya also raises similar questions about Libya’s sovereignty.
Though al-Shabaab militants repulsed the US commandos who attempted in Somalia to capture their target, in Libya, the Americans succeeded in kidnapping al-Qaeda’s Libyan leader Nazih Abdul-Hamed Ruqai alias Anas al-Liby, a prime suspect in the 1998 bomb attacks on the US embassies in Nairobi, Kenya and Darussalam, Tanzania. Liby was taken to a US war ship in the Mediterranean from where he is expected to be flown to the US to face charges.
Libya’s Prime Minister Ali Zeidan cried foul, just as the conniving Pakistani rulers played innocent victim in the aftermath of the US violation of the country’s sovereignty during the Abbottabad raid in May 2011 while the people were furious, highly embarrassed and deeply humiliated.
Probably in a bid to appease the angry Libyans, Zeidan sought explanation from the US. But it was a futile effort because by then the US Secretary of State John Kerry had said the Libyan government was informed of the impending raid.
As expected, the raid has also angered Libyan militant groups, many of whom still refuse to disarm though more than two years have passed since they ousted Gaddafi in a violent uprising. Conflicting reports were emerging yesterday as to who was behind the kidnapping of the prime minister. Some said it was the anti-corruption militia while others pointed to an al-Qaeda linked group that was responsible for the attack on the US consulate office in Benghazi last year.
A group calling itself the Operations Room of Libya’s Revolutionaries claimed responsibility yesterday and said that Zeidan’s “arrest comes after the statement by John Kerry about the capture of Abu Anas al-Liby, after he said the Libyan government was aware of the operation.” The group which released the picture of the prime minister being taken away to a secret location also vowed that it would pursue all other people who had collaborated in the US operation to kidnap Liby, a key player in the Libyan revolution that ended the 40-year Gaddafi era. However, the prime minister was later released after the intervention of pro-government militias.
The lawlessness in Libya apart, as far as the US domestic law in concerned, the Obama administration can take cover behind a draconian Bush era law called the Authorisation to Use Military Force Act for its international law violations in foreign countries. The Act authorises the US President to use all “necessary and appropriate force” against those whom he determined “planned, authorised, committed or aided” the September 11th attacks, or who harboured them.
But international law has little recognition for domestic arrangements. The principle is that domestic law is supreme in domestic courts while international law is supreme in international courts. Thus in an international court, the US has virtually no defence against the charge that it has violated the sovereignty of Libya and Somalia. But the question is: Will the puppet regime in Libya go before the World Court? Unlikely.
Meanwhile, US Defence Secretary Chuck Hagel said the Libya raid had sent a strong message to the world that the United States “will spare no effort to hold terrorists accountable, no matter where they hide or how long they evade justice.” His statement was reminiscent of Bush’s statement in the aftermath of the 9/11 attacks: “We will find those who did this, we will smoke them out of their holes, we will get them running, and we will bring them to justice.”
Just like the Bush officials, Obama’s men and women are also not too keen to know that such gung-ho doctrine, on the one hand, has no place in international law and, on the other, threatens international peace.
One may argue that the practice of one state cannot be construed as a trend-setter in international law. But the post-World War II international order has seen Israel, Russia, Ethiopia, Kenya and even the world’s largest democracy India – remember the food drop over Sri Lanka in 1987? — violating state sovereignty with impunity under different pretexts such as fighting the war on terror and intervening in terms of the Responsibility to Protect (R2P) doctrine. But should not the norm be non-intervention in the internal affairs of other sovereign states?
Black’s online law dictionary defines state sovereignty as “The possession of sovereign power; supreme political authority; paramount control of the constitution and frame of government and its administration ; the self-political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.”
With the development of international law, the inviolability of state sovereignty is a myth today. Countries agree to respect international law because they feel their national interest is served better only if there is world peace with an international order based on justice. But today, for some powerful states, international law has become a hindrance to their national-interest-based goals while for weaker states, international law has become a threat to their state sovereignty.
However, powerful states such as the United States take immense care not to let their sovereignty be undermined by international law or their commitment to international treaty obligations. The US will accuse other countries of committing war crimes but it does this finger pointing by insulating itself from international scrutiny. The US is one of the few countries which have not ratified the Rome Statute that set up the International Criminal Court to try war crime suspects.
(This article first appeared in the Daily Mirror, Sri Lanka)

About ameenizzadeen

journalist and global justice activist
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