“No-Fly Zone"? Senator Kerry, the UN Charter Is Supreme Law

Surely no one has been surprised to see Senator McCain engaged in what Defense Secretary Gates has rightly called "loose talk" about the use of US military force in Libya.

But to see Sen. John Kerry, the Democratic head of the Senate Foreign Relations Committee - the man who as a Vietnam veteran joined other anti-war veterans in asking who would be the last American to be asked to die in Vietnam - engage in such "loose talk" - that is a more painful cut.

Of course, this is the same Senator Kerry who voted to authorize the US invasion of Iraq in October 2002, even though such action was never authorized by the UN Security Council, and was, therefore, a major war crime in international law - the crime of aggression. And this is the same Senator Kerry who, as a presidential candidate in August 2004, stood by his vote for the war.

Here is a basic fact about the world that mainstream US media - and politicians like Kerry - generally find distasteful to acknowledge. The Charter of the United Nations rules out the use of military force by one UN member state against another except in two cases: self-defense against armed attack and actions approved by the UN Security Council.

Obviously, Libya has not attacked the United States, and there is no realistic prospect that it will do so.

Therefore, because it is an act of war, in order to be legal under international law, the imposition of a no-fly zone over Libya must be approved by the UN Security Council. There is no way around it.

The United Nations Charter is not an obscure document that can be safely ignored when it is convenient to do so. It is the founding document of the United Nations. It is the Constitution of the world.

And it is legally binding on the United States because it is a treaty obligation. According to the US Constitution, treaty obligations are "the supreme law of the land."

So, a no-fly zone over Libya must be approved by the UN Security Council. For anyone to claim otherwise is to use the same argument that the Bush administration used when it ignored the UN to invade Iraq. If it was illegal for the US to invade Iraq - and it was - then it is illegal for the US or NATO to unilaterally impose a no-fly zone over Libya.

If a no-fly zone must be approved by the UN Security Council, then it must be approved by Russia and China. This is not a mistake. It is not an accident of history. The framers of the UN Charter gave the power to approve military action to the Security Council, and gave five countries a permanent veto, because approving military action was supposed to be hard. The Soviet Union and the United States each held one of the five vetoes. In this sense, the world isn't different than it was in 1945. Getting UN approval for military action is supposed to be difficult. It's supposed to require a broad consensus.

So, any external military action, to be legal, has to get the approval of Russia and China. This is a good thing. It means that anyone who wants to get authorization for external military action has to build consensus, working through institutions like the Arab League, the African Union and the Organization of the Islamic Conference - these are organizations likely to sway Russia and China - and that means that other concerns, so far largely ignored by much of Washington, have a chance to be taken into account. A proposal for action should be a proposal that can meet the concerns of Russia and China and other countries on the Security Council.

Here are some concerns that Russia, China, and others should raise at the UN Security Council, before approving any UN Security Council resolution that authorizes a no-fly zone, or any other external military action.

The imposition of a no-fly zone over Libya, especially over parts of the country currently controlled by the Libyan government, would require bombing. Bombing causes civilian casualties. Therefore, authorization of a no-fly zone over Libya, especially over parts of Libya controlled by the Libyan government, means authorizing external military forces to bomb Libya, causing civilian casualties.

Most of the violence now taking place has little to do with air power, and air power, unless it is used for bombing that would produce civilian casualties, would likely do nothing to reduce the current violence, and would be more likely to exacerbate it. So, in general, the prospects of a no-fly zone are: little potential for good, much potential for harm.

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However, if the international political pressure for a no-fly zone becomes too great - some reports have indicated that a resolution is being tabled at the Security Council, and Avaaz is demanding that a no-fly zone be approved - there is a way to do it that would minimize the likely harm, and maximize the potential benefit.

If I were advising Russia and China and other members of the Security Council, and the pressure for approving a no-fly zone were great, I would point out that the danger of civilian casualties as a result of a no-fly zone could be greatly ameliorated by restricting a UN-authorized no-fly zone to areas of the country already under uncontested rebel control and far away from Libyan government forces, like Benghazi. Furthermore, any no-fly zone should have a short expiration date, so that the matter will have to come back before the Security Council for an early review.

Limiting a UN-authorized no-fly zone to areas of uncontested rebel military control far away from Libyan government forces, such as Benghazi, would enable such a no-fly zone to be maintained entirely by Arab military forces. This would assuage Arab concerns about non-Arab foreign military intervention. It would also serve as a check on overreach by an implementing force, because the actions of such a force would be subject to scrutiny by Arab public opinion. A no-fly zone that can't be maintained by Arab military force is a no-fly zone that's too big.

Such a UN-authorized no-fly zone could have the effect of putting it beyond dispute that the Libyan government will not retake Benghazi by force, therefore implying that the political forces backing Qaddafi will have to negotiate with the political forces backing the opposition if they want to reunify the country.

Conversely, limiting a no-fly zone in this way could signal to the armed opposition to the Libyan government that there is a definite limit to how far external military force is willing to go: willing to deter threats to completely annihilate them by Qaddafi's forces, but not willing to help them conquer Tripoli militarily. Thus, if the political forces backing the armed opposition want to reunify the country, they will likely have to negotiate with the political forces backing Qaddafi, since it seems clear that the armed opposition does not have the military strength to take Tripoli by force.

That would be a good thing. So far, the armed opposition seems largely opposed to any negotiations - although there are conflicting reports - perhaps in part because the armed opposition has been encouraged to think that foreigners will help them take Tripoli by force.

Opposition to any negotiations is a bad thing, because if no negotiations are possible, then the only likely resolution to the conflict is the likely conquest of one side by another after a protracted civil war that produces many civilian casualties.

Even if you are willing to accept the civilian casualties - and why should you be, if they are unnecessary? - the prospect of the conquest of one side by another, particularly as a result of US action, should trouble you. Because the government side doesn't just consist of one guy named Qaddafi. It consists of a lot of Libyans, including Libyan tribes, that back the government, and have a reasonable and legitimate fear that they will get the short end of the stick if the current Libyan government is replaced by one dominated by the tribes that back the armed opposition in Benghazi, as The New York Times documented here.

We've been down this road before. When the US invaded Iraq, it replaced a government in which Sunnis were disproportionately represented with one from which Sunnis were disproportionately excluded. When the US invaded Afghanistan, it replaced a government in which Pashtuns were disproportionately represented with one from which Pashtuns were disproportionately excluded. In both cases, the exclusions were a recipe for protracted violent conflict. If the US intervenes militarily on the side of the armed rebels in Libya, instead of insisting on a negotiated transition that represents a new Libyan political consensus, the US risks repeating this mistake of its interventions in Iraq and Afghanistan: ensuring a transition in which folks that have been disproportionately represented and excluded change places, a recipe for continued conflict.

Because military support for Libya's armed opposition runs the risk of simply switching the ins and outs, the Security Council should exact a political price from the political representatives of the armed opposition in exchange for any no-fly zone over Benghazi: they should be required to embrace negotiations toward a transition that gives all the Libyan stakeholders a seat at the table.

Moreover, the political representatives of the armed opposition should be required to embrace measures - which the UN should render every assistance to support - to protect civilians in the areas of rebel control. A recent article in The Los Angeles Times showed why this is needed.

Across eastern Libya, rebel fighters and their supporters are detaining, intimidating and frequently beating African immigrants and black Libyans, accusing them of fighting as mercenaries on behalf of Qaddafi, The Los Angeles Times reported. In areas under rebel control, several accused mercenaries have been killed recently, said Peter Bouckaert of Human Rights Watch. There have been "widespread and systematic attacks" on Africans and black Libyans by rebels and their supporters as they attempt to root out suspected mercenaries, he said. "Thousands of Africans have come under attack and lost their homes and possessions during the recent fighting," Bouckaert said. "A lot of Africans have been caught up in this mercenary hysteria."

In the best possible scenario, a no-fly zone approved by the UN Security Council would be a largely symbolic political act that does not kill anyone and pushes forward, rather than impedes, the prospect of a negotiated political resolution to the conflict. If Russia, China, and other countries on the Security Council can use their leverage in this situation to push for a consensual political resolution of the conflict, then the intent of the framers of the UN Charter in vesting this power in the Security Council - that the Security Council be a force for peace - will, in this case, have been fulfilled.

Robert Naiman is policy director at Just Foreign Policy and president of Truthout's Board of Directors.

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