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Conclusion: Critical Remarks - “Legal controversies pertaining to the use of force of the UNSC mandate in Libya”

IndexConclusion: Critical Remarks

Following my analysis, an occasional reader might ask: what is to be done with possible violations of international law? If standards were breached or laws violated, could there be place for State responsibility or any forms of war crime tribunals? Unfortunately I cannot afford answering these questions. Each individual violation might require research, far overstretching the space of this thesis.
In that sense, my research looks at primary rules applicable and not at the consequences of possible breaches of these primary rules. Yet the controversy remains within the fact that of the total amount of breaches being numerous and systematic.
The reason that we need to realize the controversies is that we may find ways to improve our system. Without criticism of our mistakes, we may never start searching for reparation. Ignorance will cause the repetition of the same mistake over and over again.

Connecting the dots. Considering all the controversial factors we may draw a conclusion of what ought to be done in future scenarios.

1. The use of ambiguous terms in any mandate’s terminology ought to be avoided. A ought to be described by exact, agreed upon terms with clear distinction of what is permitted and what is not.
The term “all necessary means to protect civil population” provides for an interpretation, often beyond its original meaning. There is space to assume that some drafting states did not expect the mandate to be exercised in such a wide manner. As some have claimed later on, they expected a no fly zone and a ceasefire leading to dialogue. The assistance to insurgents and a government overthrow was unexpected.
From now on it should be clear that abstract, vague formulations should not be used in mandates. If an exception to the non-permissibility of the use of force is granted, it should be defined exactly, to the slightest detail, where, when how and to what extent. Which groups are to be supported and how, which rules of engagement should be used.

2. A unified, standard approach towards principles of recognition and non-intervention ought to be agreed upon. In this matter, the intervening states will not be given the possibility to cherry-pick the desired standard. The absence of a clear, unified approach, is disorienting and lacks legitimacy. In Libya it was elusive whether some fractions were rebels or insurgents, civilians or belligerents. It was unclear which entity ruled Libya and which status both the Yamahiriya government as the insurgency possessed.

3. The execution of the mandate ought to be described into detail. It should be clear where the purpose of civil protection might be grounded and which fractions in the civil war should be assisted. It should be clear in advance which behavior might constitute violations of IHL, targeting the head of state, training missions and “special ops” troops on the ground.

4. An arms embargo should not be a subject of any form of “exceptions”. Neither grammatically, nor normatively. An arms embargo should be excessive and complete, without exceptions to different belligerent groups. This will reduce violence and chances of escalation of conflict to surrounding regions.

5. The execution of the use of force ought to be undertaken by a centralized entity, under command and control of the UN. This will prevent individual states assisting desired minority fractions and will allow the most democratic solution.

6. Democratization of non-democratic states ought to be undertaken via peaceful means and resolutions. Progressive examples and trade agreements show greater results then missiles and bullets.
Attempting to export democracy by forceful means is perhaps not a rational solution. Using international law for this purpose does not seem to provide better results. As the modern history has shown, none of the recent wars for democratization have given positive results. [134]

7. Before engaging in the use of force, proof of human rights violations and intelligence sources ought to be researched by independent UN inspectors [135]. As numerous cases have shown, the western states are too trigger-happy, often invading without having allowed UN inspectors to do ground finding research. Later on we find out that the reports were forged, but then it is too late- the state is in anarchy and the civilians suffer more then ever.

8. A legal acceptance of non-democratic, non-liberal states should be given. Currently there is a possibility is that weaker states with “non liberal-democratic” government structure will seek for stronger ways of defending themselves against “imperialist invasions”. This may constitute to the increase of WMD and “nuclear terrorism” programs, being the only deterrent factors for self-determination. [136]

9. Clear diplomatic agreements ought to be made amongst the drafting states. Promises ought to be kept. The final result from the Libyan case is the loss of mutual trust between states. In other cases, where prompt, necessary decisions might need to be taken, states will veto by default, fearing the alternative consequences instead of the original intent.
This way, states will turn to private practices, either invading by their own need coalition, without UN permission, or by allowing grave violations, there where these truly happen.
Such result would constitute against the basic purpose of the UN- to become a center of debate and peaceful conflict resolution. The world will be plunged into a new imperialist divide with a possible world war.

As the saying goes- all is fair in love and war. When war is waged, expect rules to be violated or at least bent. Therefore it is natural, that law may not always be clear on the matter of conflicts.
Some scholars have proposed the introduction of the rules of non-democratic or humanitarian intervention [137]. Others have proposed removing the prohibition on the use of force at all or the removal of Veto within the UN SC.
Libya is an important reflection to what may happen in the 21st century, as the energy and resource supplies dwindle and international divide increases. [138] Therefore; unified approach to international law will provide clarity and hinder possibilities of misuse.

Gaddafi, being a controversial figure, did teach us a lesson of consistency; with all the proclaimed “stolen billions” with all the “hired mercenaries” he did not run. He stayed in his hometown and gave a hell of a final stand. Not many western democratic leaders would do this for their values.
Consistency is what should be kept in mind. As the states claim “peaceful democratic values”, then such values ought to be fulfilled in a consistent matter.

"Do you know right from wrong?" [139]

Index





[134] Daniele Archibugi and Mariano Croce “Legality and legitimacy of exporting democracy” Legality and Legitimacy in World Politics, Oxford University Press, Oxford, 2011

[135] The Independent, Africa, Amnesty questions claim that Gaddafi ordered rape as weapon of war, June 24, 2011

[136] Ben Barry, “Libya’s Lessons”, Journal Survival Global Politics and Strategy, International Institute for Strategic Studies, 53(5) October-November 2011

[137] Ryan Goodman, “Humanitarian Intervention and Pretexts for War”, American Journal of International Law, vol. 100, (01)2006

[138] The world is now embarking into the abyss of perpetual war and a period in which the contemplation of the use of nuclear weapons is being made. A stand must be made by individuals of good conscience and will. Mahdi Darius Nazemoraya, “War and the New World Order”, Global Research, August 29, 2007

[139] Muammar Gaddafi’s final words.

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