Libya and the War Powers Act

One is left with the horrible feeling now that war settles nothing; that to win a war is as disastrous as to lose one.

? Dame Agatha Christie (1890-1976)

As the North Atlantic Treaty Organisation’s (NATO) war on Libya entered its 100th day, the United States legislature decided to assert itself. In 1973, Congress enacted the War Powers Act in response to the runaway war-making by the White House during the Johnson and Nixon years (the specific war was against Vietnam). If the President sends the military into operation without congressional authorisation or without a declaration of war, then the President must submit, within 48 hours, a report on why such action was necessary. Congress then has 60 days to declare war or to support the action by a congressional resolution. If Congress does not act, the President must remove the troops in 30 days. The calculation is simple. Obama seems in violation of the War Powers Act.

Hastily, the State Department’s legal counsel, Harold Koh, went before the Senate Foreign Relations Committee to argue that “the situation in Libya does not constitute a war”. This is so for four reasons: there are no ground troops in Libya, there are no U.S. casualties, there is a limited risk of escalation, and there is a limited use of military means. The term “hostilities”, which was the main trigger for the War Powers Act, was “an ambiguous legal term of art”, said Koh, and it did not apply to Libya. Such a remarkably narrow understanding of “war” and “hostilities” would provide cold comfort for Libya, which is being slowly bled by a war of attrition, amplified by the massive aerial bombardment by NATO. With reports by the French that it has armed the rebels (and so violated the terms of United Nations Resolution 1970, the one before Resolution 1973), the situation will certainly escalate. Furthermore, to decline to consider aerial bombardment as “hostilities” or “war” is certainly going to befuddle international legal experts: is it only a war when an American dies?

The U.S. House of Representatives had tried to clarify things in early June, when liberal Congressman Dennis Kucinich put forward a Bill to end combat operations in Libya. Anti-war Democrats and libertarian Republicans joined with those Republicans who simply have an allergy to Obama (such as presidential hopeful Michelle Bachmann) to support this resolution. The Republican leadership scrambled to undermine the Kucinich resolution, put an anaemic one of its own before the floor and yoked its members to vote for it.

Kucinich’s Bill went down 265-148 (87 Republicans voted for it, along with 61 Democrats). The Republican leadership won back their caucus (but for 10 Republicans and 45 Democrats) to produce what appeared to be a criticism of the President but in fact was a “backdoor authorisation” (as a congressional staffer put it) to the entire Libyan campaign. The Senate’s Foreign Relations Committee backed the President and sent its measure to the full Senate for approval.

The clearest statement of principle came from the Virginia Democrat, Senator Jim Webb: “When you have an operation that goes on for months, costs billions of dollars, where the United States is providing two-thirds of the troops, even under the NATO fig leaf, where they’re dropping bombs that are killing people, where you’re paying your troops offshore combat pay and there are areas of prospective escalation ? something I’ve been trying to get a clear answer from with this administration for several weeks now, and that is the possibility of a ground presence in some form or another, once the Qaddafi regime expires ? I would say that’s hostilities.” But even this statement was remarkably parochial. Nowhere in the record is there any consideration for the Libyan people.

Military mindset

To consider the Libyans is to find a way to stop the conflict. NATO is trapped in a military mindset. There is no political dimension to its mission short of the removal (by armed means if necessary) of Qaddafi. NATO’s lack of any forward motion is precisely why Dutch Defence Minister Hans Hillen called NATO’s strategy “naive”. Aerial bombardment would not force Qaddafi to leave, Hillen said, and NATO should restrict its mission to the protection of civilians.

Strikingly, the International Criminal Court’s (ICC) lead prosecutor, Luis Moreno-Ocampo, has now issued arrest warrants for Qaddafi and members of his family. Moreno-Ocampo began his investigation into Qaddafi on March 3, which was before the U.N. Resolution 1973 (March 17), and he has aggressively made statements as if of fact about alleged war crimes by the Qaddafi regime (for instance, Moreno-Ocampo stated that Qaddafi’s regime was giving Viagra to its troops, a view now debunked by a detailed investigation conducted by Amnesty International’s Donatella Rovera).

Moreno-Ocampo has yoked the ICC to the NATO strategy and has undermined the independence of the ICC in the process. He has not opened any investigation into the alleged war crimes of NATO, whether in Afghanistan or Libya. Most of his prosecutions have been set in Africa, and despite the properness of them, it is remarkable that he has no ongoing prosecution of any actions of the North Atlantic powers (nothing on Iraq, for instance, where there is documentary evidence of war crimes, both in the prisons and on the streets).

NATO has no elaborated exit from the violence in Libya, and nor does the U.S. by itself. Since NATO is a party to the conflict, it is unable to be a mediator between the two sides of what is patently a civil war. Nor can the Arab League, which has invalidated itself both in its initial rush to support the military intervention by the U.S. and later NATO, and then by the vacillation of its head, Amr Moussa.

An errant Moussa was then chastised by his financial backers in the Gulf and made to stand with U.N. Secretary-General Ban Ki-moon and offer his full support of the aerial bombardment. Times have changed. Moussa told The Guardian on June 21 that “you can’t have a decisive ending” in the Libyan conflict. “Now is the time to do whatever we can to reach a political solution.” But since he is to leave office and is now running for the Egyptian presidency, Moussa’s own remarks are not with foundation in the League.

The BRICS-A.U. approach

A far more credible role is to be played by the African Union (A.U.) and, behind it, by the BRICS (Brazil-Russia-India-China-South Africa) formation. China recently indicated that it wanted to play a greater political role in the Libyan imbroglio. This is of special significance because it signals a shift in the Chinese reticence to claim leadership in international conflict situations.

At Hainan, the BRICS summit in April indicated that all political options must be explored. It is to this end that one of the BRICS members, South Africa, has offered leadership in the African Union’s Libyan Panel to push both Tripoli and Benghazi to mediation. They have called for an immediate ceasefire to assess the degradation of the civilian infrastructure and to provide humanitarian aid.

This will be monitored by a combination of U.N. and A.U. peacekeepers, with every indication that if this plan is allowed to go into place, other BRICS countries might provide material and logistical support. At that point, the A.U., with BRICS pressure, would start to find a political solution between the two parties. The BRICS-A.U. approach is currently blocked by NATO, which insists that Qaddafi must leave as a precondition to negotiations. This is tantamount to obstructing a productive process.

The BRICS-A.U. position is that there should be no such precondition, but it is possible that as an outcome of the negotiations, Qaddafi might find himself in a new role, including as an exile. But the fate of Qaddafi would need to be in the balance, not already decided upon in Brussels, Washington and Paris (as well as, but from a subordinate position, in Benghazi). President Obama has said that Qaddafi “needs to go”, which is a maximalist position that does not inspire confidence in Qaddafi to agree to negotiations.

Libya is a test case for the powerlessness of war. It creates destruction, but is often too blind to its futility. Since 1973, U.S. presidents have routinely ignored the War Powers Act, in Somalia, Afghanistan and Iraq, for instance. Each of these cases demonstrates to us how states are destroyed by the overwhelming aerial power of the U.S. and by the failure of the U.S. and NATO to consider the long-term political and social consequences of their testosterone-filled interventions. There is no humanitarian outcome that is good, and it is perverse that these operations are conducted in the name of humanitarian relief.

The BRICS offer an alternative platform for the near term, a more polycentric worldview that seems to rely more on political negotiation than on military intervention. Of course, this is all very well on the planetary scale. It would help the credibility of the BRICS states if they put these very values into operation within their own states. That would make their claim to planetary leadership all the more robust. As it is, the BRICS states might have the better plan for Libya’s future, but they will not be able to be in a stronger moral position until they withdraw their own armies of internal occupation.

Vijay Prashad is the George and Martha Kellner Chair of South Asian History and Director of International Studies at Trinity College, Hartford, CT His most recent book, The Darker Nations: A People’s History of the Third World, won the Muzaffar Ahmad Book Prize for 2009. The Swedish and French editions are just out. CounterPunchers in the Boston area can hear Prashad live  here on July 7. He can be reached at: vijay.prashad@trincoll.edu

This article was originally published by India’s Frontline.


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Vijay Prashad’s most recent book is No Free Left: The Futures of Indian Communism (New Delhi: LeftWord Books, 2015).

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