Legal Commentary

Due credit to Obama for negotiating an advantage at the U.N.S.C., but brickbats for not using it

By Beldar

I have been supportive of the Obama Administration's original announced goal of forcing Kadafi out of Libya, but I have been highly critical of most aspects of its implementation of that goal. Nevertheless, I will give a gold star to whoever was responsible for the wording of the key paragraph in U.N. Security Council Resolution 1973. In pertinent part, it ?

Authorizes Member States ... to take all necessary measures ... to protect civilians and civilian populated areas under threat of attack in [the state of Libya], while excluding a foreign occupation force of any form on any part of Libyan territory ....

The obvious success was in getting broad authorizing language ? "all necessary measures" ? which is inherently subjective but intentionally open-ended. There is no civilian anywhere in Libya who's not at least "under threat of attack" by Kadafi each and every minute he stays in power.

The more impressive success, however, is non-obvious: The definitional scope and power of the resolution are helped a great deal, actually, by the specific exclusion. Sometimes a very bright line, definitively placed on a far-away horizon, is useful to remind you of just how much space you can cross before you even get close to the line. Anything which isn't "a foreign occupation force of any form" can be argued very persuasively to be within "all necessary measures." So if it doesn't involve setting up a new chow hall anywhere on Libyan dirt, it's authorized. I'm pretty sure the Joint Chiefs can work with that.

As I've pointed out before, Resolution 1973 certainly includes within its potential scope all forms of regime change, including decapitation. And indeed, if we could pull it off, regime decapitation would be the single most effective way to protect threatened civilians at the lowest cost in Libyan or coalition blood and treasure.

I vehemently deny that the U.S. has any obligation to get U.N. or U.N.S.C. approval to take steps in its legitimate national interest, but neither do I fault Obama for consulting with the U.N. And certainly whenever we're successful in gaining support there ? as we have been here! ? we should make good use of that support.

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That's why it continues to baffle me that Obama is treating Resolution 1973 as if it limits the previously announced Obama Administration policy of regime change for Libya. It just doesn't.

Rather, since the Obama Administration obviously planned and fought for, and won, U.N.S.C. approval for approval of anything up to (but not including) an occupation force, we should certainly stop talking and acting as if we're somehow shackled by Resolution 1973. Can we maybe find whoever it was who negotiated that language, and let him or her run the show while Obama goes back to playing golf and watching basketball? Because what he's saying in public doesn't make a damn bit of sense, and this bit of Turtle Bay diplomatic agility has been about the only sign that anyone in the whole Administration has managed to buy a clue.

And I can't figure out who Obama is trying to please by pretending that we're not really engaged in regime change. The only people I can think of would be pacifist absolutists and, I guess, the entirety of Obama's Hard Left base, including MoveOn.org and Code Pink and those folks. So we're to put Libyans' and coalition warriors' lives at continuing grave risk, rather than choose the quickest, safest solution, just to make sure the Hard Left won't stay home on Election Day 2012? That is an ugly possibility to contemplate, and I'd really like some "progressive" to point me to another, better explanation.

The American government needs to be making urgent, quiet plans for what to do as Kadafi leaves and after he's gone. That bad men bid to follow him we must expect and beware, so we'll have to plan for that now, and deal with that too in its time. But let's leave for another day the argument at the U.N. about post-Kadafi Libya. And let's quit wasting the authorization we've already gotten there, and get things right with our own Congress, and then deal with Kadafi once and for all.

Full post as published by BeldarBlog on March 28, 2011 (boomark / email).