A few days ago, I asked the question (over at the international law blog Opinio Juris), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)? The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond. (You should also check out Jack Goldsmith’s discussion of US domestic law relevant to intervention at Lawfare.)

I. Intra-USG Politics

So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero. Since that almost certainly mirrors US public opinion, that is not a surprise.

But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates). I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties – including, interestingly, even if blessed by the Security Council – is prudentially a terrible idea. The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. (But maybe this is changing and the administration is swinging round to support a no-fly zone, as Jack’s citations to various administration spokespeople might suggest.)

Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East. It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter – now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word).

I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this. However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing. This officer said to me, somewhat tongue in cheek, “Where’s the CIA? Isn’t this what we’ve got a CIA for? Isn’t this what you think the CIA is supposed to do? Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?”

II. The CIA, “Deniable” and “Covert”

Strategypage, as it happens, has an interesting report (H/T Insta) on special forces, commandos, and intelligence personnel on the ground in Libya now – saying in particular that Egyptian special forces teams are assisting the rebels now, and that some US personnel are on the ground, partly for intelligence but also to protect diplomats and other “nationals” assistance. (It would be astonishing, of course, if many countries did not have intelligence agents on the ground in Libya, whether strictly to gather intelligence or to pursue particular country interests.) According to Strategypage:

The rebellion against the Kadaffi dictatorship in Libya has not produced any official outside help, but Egypt has apparently sent some of its commandos in to help out the largely amateur rebel force. Wearing civilian clothes, the hundred or so Egyptian commandos are officially not there, but are providing crucial skills and experience to help the rebels cope with the largely irregular, and mercenary, force still controlled by the Kadaffi clan. There are also some commandos from Britain (SAS) and American (Special Forces) operators are also believed wandering around, mainly to escort diplomats or perform reconnaissance (and find out who is in charge among the rebels).

Part of the question, if you want to intervene at all, is whether to do so with an overt military act such as a no-fly zone (including potentially having to attack air defense, aircraft, bases, etc. to establish it) – or instead to use “non-overt” intelligence agents or special forces. It depends partly on what signal you want to send to other actors internationally. Here are three possibilities (drawn loosely from distinctions I make in my forthcoming (July 2011) book on US-UN relations, Living with the UN, and earlier laid out in an article on the role of the Security Council):

Do it openly (but with SC approval and some form of recognition that SC was legally and politically necessary, rather than merely desirable). You send the signal that the US sees itself as the “muscle” in UN collective security, where the US is the most powerful actor, but still only an actor within the UN security system, dependent upon SC legitimacy to act.

Do it openly (but without SC explicit approval) – because you presumably think it will garner good will with populations the US cares about. But it also sends a signal to others in the world that the US is explicitly back in the ‘global order game’ as a hegemonic player on its own, for its own interests and its own ideals. It announces that the US is not merely a powerful player in a UN-centric “collective security” arrangement in which it is the UN’s muscle, but is operating as it always has, in its “parallel” security system of (very) loose, semi-hegemony. It also sends a signal to other (bad) actors in the world that the SC or the UN cannot necessarily protect them. But then, overreach of the kind that Gates and others in the administration fear is a live possibility.

(The Obama administration, after all, is built of both Gatesean “traditional” realists as well as New Liberal Realists; it is far from being how it is sometimes portrayed on the right, as only a bunch of egghead liberal internationalists for whom Security Council approval genuinely is its own reward. [Note: Because many of the administration’s liberal internationalists are academics, limited by their academic institution’s customary ‘2-year’ rule for being on leave but not giving up tenure, they arguably have less permanent influence because they are not around for an entire administration. This is a hypothesis, not a conclusion, but one I wish someone (not me) would research. The hypothesis would, of course, apply to academics in any administration, not just the Obama administration.])

Do it ‘not-openly’, and of course it will be known that the US is taking part, deniably rather than covertly. In that case, you send still other signals – some of them, depending upon how conveyed, might be understood that the US being unwilling to act openly without SC approval. Alternatively, this might be read as signaling that the US is willing to be much more assertively “realpolitik” in the sense of being willing to rely on “deniability” while using force not just against non-state terrorist actors such as Al Qaeda, but against states.

“Signals” always carry ambiguity in sending and receiving. But the above grafs referred to “openly” and “not-openly,” rather than “covert,” because it points to a gap in the legal categories of action by the CIA. The CIA statute defines “covert,” and it might or might not cover various things that the US might do (or being doing, for all I know) in Libya.

But the bigger legal policy issue in US national security, as with Pakistan and other places, is that the CIA is engaged in actions that are properly described as (perhaps barely) politically “deniable,” but not “covert” in any true operational sense. The statute on covert activities does not distinguish among these possibilities – but perhaps it is time to consider a new legal category, with a different set of reporting and other requirements attached to it in domestic law, a category specifically named for “deniable” operations distinct from “covert” ones. That’s an important discussion with regards to long-term CIA activity, but it is relevant, of course to both Pakistan and Libya today, though I won’t say more here.

III. Legal Rationales, For and Against Intervention

The (necessarily brief) responses at Opinio Juris to my question on legal arguments around humanitarian intervention, for and against, were illuminating and thoughtfully expressed. I would break them down into the following broad categories:

A. Security Council permission required for humanitarian intervention.

This legal view argues that if intervention of any kind was to be undertaken, it had to be under the Chapter VII (of the UN Charter) authority of the Security Council. It could not be by any particular country, itself or in coalition. Moreover, the Security Council itself would have to make certain findings under Chapter VII, viz., the existence of a threat to international peace and security. This would, in effect, deny that the NATO action in Kosovo in 1999 was a legally sustainable precedent for action in Libya. Those taking that position point to the General Assembly resolution adopted at the conclusion of the 2005 UN reform summit – the so-called “Outcome Document” – which, on the one hand, recognized the existence of a “responsibility to protect,” but then cabined it with requirements for Security Council authorization, on the other. As an observer of that 2005 process, it seemed to me quite plain that the General Assembly understood itself to be repudiating the Kosovo precedent.

B. Security Council permission not required for humanitarian intervention.

This legal view argues, contrary to the foregoing, that humanitarian intervention continues to be an available option for states acting even without Security Council authorization. Insofar as this is supposed to be about “humanitarian” intervention, it then says, consistent with what NATO said at the time of Kosovo, it might not be within the literal language of the Charter under Article 2(4). A defender of this view then has two basic options:

(i) “Extra-legal, but legitimate”

One is to acknowledge that one is “extra-legal,” and then go with a popular (among academics of NATO countries, but not with Russia, China, or the rest of the world, I think I would say) justification of saying, “not legal, but legitimate.” This is a peculiar formulation, to say the least, for international law academics who otherwise take pride in being within the four corners of the Charter. But it is a position argued by otherwise impeccable liberal internationalists such as Anne-Marie Slaughter, who has consistently followed it, so far as I understand, in her calls for action in Libya.

This legal approach harks back to the long tradition of international law as understood at the State Department. Viz., what we are pleased to call “international law” is genuinely law – contra the radical skepticism from, for example, Eric Posner – but equally it is law intertwined in a “pragmatic” way (drawing on Michael Glennon’s excellent new book on this topic) with politics and diplomacy. The politics and diplomacy support the “law” in good faith, but inform, alter, and shape it according to changing circumstances in the world. If one is “pragmatic” in that way, then “not legal [technically], but legitimate [politically]” makes perfectly good sense, whether one agrees with it as an approach to international law or not. It might not be one’s preferred approach to international law, but it is a plausible one – and anyway, the one followed by the United States and many other powerful state actors over the long run.

However, it bears noting that this position of “legitimacy,” despite formally not meeting the Charter language of 2(4), is not the same as at the time of Kosovo. After all, the 2005 Final Outcome document was apparently intended to be a repudiation of the legitimacy of just such extra-legal action (and of course what is here blandly called “extra-legal” might be better characterized as “illegal”). Someone like me would shrug and say, a General Assembly resolution is not binding, per the terms of the Charter – but it is perfectly correct to respond to that and say, we’re not talking here about legally binding, but about your own preferred term of political legitimacy. The GA resolution is important beyond its formal legal status, precisely because it denies such Kosovo-type actions political legitimacy, at least from here going forward.

(ii) R2P ‘legal’ as an extension of self-defense or defense of others

The second path, if one assumes ‘no Security Council authorization’, is to argue not just that’s it’s legitimate, but that it is actually legal. In rough terms, this means appeal to self-defense (including the defense of others who can’t defend themselves) from aggression as an on-going customary law right, including under the Charter. The legal argument then runs to a point crucial in many justifications of humanitarian intervention under “Responsibility to Protect” (R2P). Self-defense, or defense of others, can run not just to defending a state, but to defending a state’s own people. Including – this is the crucial R2P move – defending a people from their own state.

The background argument in this version of R2P is that sovereignty resides in the people, and that when a state undertakes mass atrocities against its own people, the state – which is merely trustee of the people’s sovereignty – loses the legal attributes of that sovereignty. Outsiders thus gain the right, and perhaps the responsibility, to intervene on behalf of the (sovereign) people as against their own state, in order to protect them. If any of the foregoing is accepted as a legal proposition, then the intervention does not violate sovereignty. I’m not suggesting that this is easily reconciled with the UN Charter, simply that it is an argument for why R2P is not necessarily inconsistent with the law of sovereignty.

In that case, as regards Libya, the lack of Security Council authorization (the GA resolution notwithstanding as it is not legally binding, and we are here concerned with law, not legitimacy) is not dispositive of the legal situation. Self-defense; extended to defense of others; extended to defense of the sovereign people even against their own (‘de-sovereigntized’, if I can call it that) government that, finally, is sufficient legally to cover the humanitarian intervention. Good faith is required, and it cannot be a means to territorial conquest or acquisition, but it is (arguably) legal.

( I leave aside in this whole discussion how one should, or might plausibly, interpret the actions or inactions of the Security Council, or the effect of its limited actions to date – including the referral to the ICC prosecutor and sanctions regimes – in relation to going further than them to actual armed intervention or not.)

C. Recognition of belligerency in a civil war

Perhaps the most interesting legal view on how one might undertake humanitarian intervention in Libya was that offered by international law professor Jordan Paust. He suggested that there might be a recognition of belligerency in a civil war, and that the US and others could recognize the belligerency as a legal matter and then side with the rebels as the legitimate legal government of Libya. This is coupled with a legal justification about self-determination. (His argument is more complicated legally than that, and I refer experts who can unpack the shorthand to his comments and more generally to the articles he cites.)

I found this particularly interesting because, unlike the positions described above, this one is not premised in the first place on humanitarian intervention as its own justification for action. It is premised explicitly on belligerency and its recognition in a civil war – and humanitarianism as a motive is then wrapped into something that is not legally necessarily about it in the first place. How this squares with the role of the Security Council and the Charter is another matter, if one assumes that there is no Security Council authorization forthcoming. And, as commentators noted at OJ, the International Court of Justice’s Nicaragua decision. I won’t try to answer those questions (nor do I want to suggest that I’ve fully or correctly reconstructed Professor Paust’s position; treat this as my reconstruction of a possible position derived from it).

This position has the rhetorical and legal disadvantage of not being explicitly about humanitarianism, intervention explicitly to protect the population. It seems unlikely that very many governments, the Obama administration or the Bush administration or any US administration, would really want to proceed down a path that doesn’t take “above the fold” advantage of humanitarian reasons for their own sake for an intervention.

On the other hand, this approach has the corresponding virtue of clarifying that one is genuinely taking sides in a struggle over regime determination that is only partly about humanitarianism and partly a judgment about the nature of the Qadaffi regime as such. Self-determination is not neutral humanitarianism, after all. And arguing that one is intervening not because one fully supports the rebel cause as such (in order to replace the existing regime, because it is against US ideals and interests both) but instead only on the limited grounds of neutral humanitarianism for the sake of the population because it is under attack, might lead to very bad policies. Lead, that is, to the bad policies of NATO, the US and the UN in Bosnia, in which there was no intervention on one side or the other ostensibly, but only referees supposedly to protect the civilians. Proportional responses regarding humanitarian violations that turned out merely to ratify the violence, freeze it in a status quo, and all the many other objections that critics like David Rieff raised at the time.

This seems to me in the Libya situation today as wrong-headed as it was in Bosnia, but I am not expert in Libya, so that’s mostly a holdover reaction from my dislike of how Bosnia was handled. We disfavor a side – Qaddafi. Do we favor the other side, if there is one with which to deal? If so, then (perhaps; I only want to sketch out the form of an argument which I am not sufficiently expert to answer regarding Libya-in-fact) we ought to recognize that side, argue for self-determination, and favor them with assistance, whether overt or covert or deniable.

(To be clear, in case it’s not. I have never thought the ICJ’s Nicaragua decision either persuasive or binding precedent for the US, which naturally colors what I say here. The more interesting legal question, of course, is how one might fit this within the Nicaragua decision, if one does not share my view.)

IV. The limits of humanitarian neutrality

There is a broader point here, on which I’ll end. The international community persists in an inchoate but, I think, widely shared view that the “highest” moral position is that of “neutral” humanitarianism. Anyone else is “interested” and “partial” and thereby not “universal.” I have strenuously argued that this cannot be morally right – the highest moral position cannot attach to the (mere) neutrals in the world. At most they are a residual category – crucial for a certain moral purpose, the humanitarian protection of innocents – but this moral position cannot be the “highest” one to which all the rest must aspire. As I put it in several articles – though not to wild applause within the international law community, to the modest extent anyone noticed – there is a problem morally if everyone wants to be the International Committee of the Red Cross and no one wants to be Churchill. Humanitarianism

may require neutrality as a condition of its very existence. But that hardly means that neutrality is the highest virtue, the most admirable moral position, in conditions of conflict. While neutrality may make humanitarianism possible, it will always be a derivative virtue in a world containing evil, a deliberate and knowing suspension of public moral judgment for the sake of another moral good, such as the relief of suffering. But if evil is not to triumph, we cannot all be neutral. Someone must fight for what is right: If there is to be a Red Cross, there must also be a Churchill.

That is part of the problem here. The international community instinctively wants to reach to justifications for humanitarianism rather than nakedly taking sides, because we have talked ourselves into thinking that only neutral humanitarianism expresses our highest reasons for using force. But we don’t actually mean that. We – at least the United States and its friends, not the masses of countries of the General Assembly – do actually mean to take sides here. If we are not prepared to take sides, we are at least prepared to declare against a side, as such, and not solely on the humanitarian grounds that the regime is attacking its people.

When the US government says that the Qaddafi regime has lost its legitimacy, that might not be an endorsement of the rebels as a government – but it is far more than simply asserting a humanitarian concern. If a no-fly zone were to be imposed, that is not merely an action in support of humanitarian action; it is an attack upon a side in a conflict, and – objectively speaking, as we residual marxists say – in support of the other side. It is often better to acknowledge one’s commitments to one side or at least against the other openly, and not hide behind an anodyne “humanitarian” concern.