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War in Libya

Faculty discuss the challenges facing military action for humanitarian purposes

At the end of an hour's discussion on Libya, a bold prediction:

"I'm willing to bet that in 60 days from now, Gaddafi won't be in power," said Charles Dunlap, visiting professor of law at Duke and a retired major general in the U.S. Air Force.  "There's leverage on all kinds of elements, not least on the individuals around him that are important to the survival of his regime."

The bet brought some laughter from a filled law school classroom, but few takers. If there was a consensus among the five Duke faculty members who spoke at the Duke Law panel discussion Wednesday, it was there are many challenges ahead for NATO and the U.S. policymakers.  

Nearly three weeks into military action, an impending humanitarian crisis has been averted, although thousands are living in desperate conditions. But no resolution seems in sight, and the limits of military action for humanitarian purposes are clear.

The panelists at the session on "Libya's No-Fly Zone: War or Humanitarian Intervention" noted several difficulties.  Law professor Scott Silliman pointed out the language of the U.N. resolution authorizing military action was ambiguous regarding its mission of protecting civilians.  Because the rebel army is loosely organized and can involve different people at different times, the definition of who is a civilian in battle areas is very fluid, he said.  

In addition, the status of the rebel army itself is unclear and what NATO's obligation to civilians in areas under rebel attack ambiguous, he added.  "Theoretically, the rebel army could come in and then out of protected status under the U.N. resolution, depending on the circumstances of the battle," Silliman said.

The role of military action for humanitarian purposes is also complicated, both legally and in practice.  Law professor Madeline Morris noted that the U.N. charter gives the Security Council the ability to call for military action under circumstances in which there is a threat to international peace and security.  Humanitarian concerns are not mentioned at all.

"You can question what is it about a civil war that is a threat to international peace and security.  You can question how protection of civilians and humanitarian purposes relates to international peace and security," Morris said.  But, she added, once the Security Council decides such a threat occurs the decision is final.

Part of why Dunlap's bet might look good is because key members of Gaddafi's inner circle are already defecting.  Panelists said even though some of these people could be brought up before the International Criminal Court (ICC), "this is one area where there may be compromise," said Abdeslam Maghraoui, associate professor of the practice in political science.  

"The only hope for the Gaddafi regime to collapse is within itself," Maghraoui said.  "Prosecuting members of the Gaddafi regime presents a political problem and might lead many of them to stick it out to the last moments.  There may need to be a moral compromise, one that would free them from prosecution but in the long run might save civilian lives."

Other examples are also troubling, panelists said.

"In some ways, the situation is parallel to the situation in Iraq after the first war in 1991," said Duke Law's Scott Silliman. "There was no authorization for regime change, and there was a lot of criticism afterwards toward the U.S. for not going to Baghdad and taking Saddam Hussein out.  But we thought we could do that with covert action, and we were wrong."

Dunlap picked up Silliman's example.  "There are things that can be done to make his regime implode.  Gaddafi's forces are not the Iraqi Republican Guard.  They may be less ragtag than the rebels, but not much less."

The panelists were not eager to follow Dunlap's forecast.  Maghraoui said regime collapse is possible, but stalemate is the most likely outcome.  And Duke Law visiting scholar Georgia Harley was adamant: "The one thing I've learned from watching North Africa these past few months is that it is best not to make predictions."

The panel was sponsored by Duke Law's Student Organization for Legal Issues in the Middle East and North Africa and the school's International Criminal Court Student Network.