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Intervention In Libya -- Options For the Obama Administration

Speakers: Matthew C. Waxman, Adjunct Senior Fellow For Law And Foreign Policy, Council On Foreign Relations, and Micah Zenko, Fellow For Conflict Prevention, Council On Foreign Relations
Presider: Deborah Jerome, Deputy Editor, Cfr.Org, Council On Foreign Relations
March 9, 2011
Council on Foreign Relations

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DEBORAH JEROME:  Good morning and welcome to this Council on Foreign Relations media call on Libya, which seems to be heading towards civil war.

My name is Deborah Jerome.  I'm the deputy editor of CFR.org.  I'm here with Micah Zenko and Matthew Waxman.

Micah is a CFR fellow in conflict prevention.  He just wrote an op-ed for Foreign Policy questioning the wisdom of imposing a no-fly zone on Libya.

Matt Waxman is a CFR adjunct senior fellow for law and foreign policy.  He teaches at Columbia Law School and is the author of the Council's Special Report on Intervention to Stop Genocide and Mass Atrocities.

I'd like to kick this off with a question for each of you, and the first one is for Micah Zenko.  As you know, much of the discussion about Libya for for the past week or so has centered on the question of whether the United States and NATO should impose a no-fly zone as a way of stopping attacks on Libyan civilians.  I'd like to know first whether that premise is correct -- that is, how endangered are Libyan civilians right now -- and two, why you've written that a no-fly zone would not be helpful.

MICAH ZENKO:  Well --

JEROME:  Take it, Micah.

ZENKO:  Sure.  I would just point out that according to, you know, one, information and -- you know, any reporting from conflict zones is always difficult to come by.  It's late.  It's incomplete.  Both sides have very strong reasons to portray their side to the international community in the best light.  So this is with all those qualifications.

But, you know, all of the sort of international reporting in the Human Rights Watch and UNHCR and other U.N. entities on the ground suggest that Libya is facing a civil war.  It is an ongoing civil war between paramilitary groups and uniformed military forces representing the government, as well as some former military and paramilitary forces, un-uniformed, representing the rebel groups.

In the course of the fights between both sides, the Libyan air force has used some of its fighter aircraft and helicopters in attack operations against mass rebel groups.  There's been almost no reports -- only a handful of reports -- of these being used demonstrably against civilians.  And in fact, there's more instances of a reporting of bombs being dropped in the middle of the -- in the middle of the desert, repeated sorties over the desert where bombs are dropped, far away from where anybody is located.

So if you look at the actual violence that's happening on the ground, it's with snipers, AK-47s, artillery, long-range artillery, tanks and so forth; people just harassing, setting up checkpoints and mobile checkpoints to try to take down the rebel movement and try to harass and intimidate and coerce noncombatant civilians.

In that -- in that instance, a no-fly zone has absolutely no impact on the primary tactic that's being used to harass and intimidate people on the ground.  So imposing a no-fly zone over Libya might make us feel good, might give us some sort of gratitude without the commitment of actually -- of actually doing anything to impact the situation on the ground.  But it is not relevant to the fight that is going on now in the civil war.

JEROME:  Thanks, Micah.  And Matt, I was wondering if you could broadly define the concept of responsibility to protect and discuss whether you think it applies to Libya.

MATTHEW WAXMAN:  Sure.  So responsibility to protect -- or it's sometimes abbreviated R2P -- is not a legal concept but a political one.  The idea is that when a state is perpetrating or failing to protect its population from large-scale and systemic atrocities, like crimes against humanity or widespread war crimes, the international community should take steps to protect them.  A big issue then becomes a legal one, which is, if in order to protect that population some sort of military intervention is deemed necessary, when is such military intervention legal?

And one option is U.N. Security Council authorization for military intervention, but that doesn't seem likely any time soon.  So instead you have to look for some other legal argument.  And this remains a very, very highly contested area of international law, and I'll be happy to talk about some precedents there.  Kosovo is often referred to as a possible precedent here, because NATO intervened in Kosovo in 1999, also without U.N. Security Council authorization, and that remains a highly contested sort of international legal case.

But I'd also mention, in regard to responsibility to protect, that the context has really shifted here very quickly and dramatically; that when proposals were first being floated for a no-fly zone or perhaps for some sort of intervention, the issue seemed to be primarily one of Gadhafi massacring protesters, civilian protesters.  And the question was:  Should outside powers take some steps to protect those protesters from being massacred?

In just a very short amount of time, that context has shifted to something closer to a full-blown civil war.  So now we'd be talking about military intervention less as an action to protect a group of civilian protesters than to take sides in a situation of open belligerency.  And not only do I think that presents some very complex operational issues, which Micah has already referred to in part, but also raises a different set of legal issues.

JEROME:  Thank you very much, Matt.

We can open up now for questions.  I just would like to tell everyone that Matt Waxman has to leave at 11:40.  So try to get your questions in for him early.  Thanks very much.

OPERATOR:  Thank you.  (Gives queuing instructions.) 

Our first question comes from Martin Klinks (ph) -- (organization inaudible).

QUESTIONER:  Yes, hello.  Hi.  I have a question for both Micah and Matthew.  If you could just elaborate a little bit -- the intervention question.  What possibilities are there, you know, besides the Kosovo option and the Security Council option?  Do we have any precedent for humanitarian intervention on -- which became, you know, legally authorized later on?

WAXMAN:  I'm happy to jump in and provide a partial answer to that, which is that, as I mentioned before, humanitarian intervention -- humanitarian/military intervention outside of the -- a U.N. Security Council mandate, remains a very highly contested area of international law.

And generally what ends up happening -- and Kosovo is an example of this -- is that states contemplating intervention try to build up as much legitimacy and international support for their action, even if they can't rely on an airtight legal argument on behalf of intervention.  And then it becomes a question of sort of lining up some of the factors that are important in building that kind of legitimacy.

In a case like this here -- among those factors would include, what is the objective?  Is this really about protecting civilians, or is this about intervening in internal Libyan politics?  What kinds of regional support do we have for this action?  Is this something that is largely conducted by outsiders, or does this intervention have the support of regional bodies like the Arab League, the African Union and, perhaps, even the support and invitation of some sort of rebel provisional government?  Those would be the kinds of factors that I think would go towards building international support for intervention and also making it more legitimate -- even if the parties contemplating intervention couldn't point to an airtight legal precedent to support their -- to support their actions.

OPERATOR:  Thank you.

Our next question comes from Evelyn Leopold, Huffington Post.

QUESTIONER:  Yes, based at the U.N. here, even China said that they would listen to the Arab nations.  Do you think there's any possibility of lobbying them?

And the second question is, if we don't have any military intervention, what should we do?

ZENKO:  This is -- this is Micah.  I'll jump in on that.  I mean, there are a number of other things you can do short of providing lethal military assistance to the rebels or imposing a no-fly zone or intervening militarily, some of which are already being implemented, according to the White -- according to various White House press releases. 

But the biggest one, I think, is there's just so many critical information requirements that are unfulfilled about what's going on on the ground in Libya.  I think one of the things the administration should continue to do is rededicate and focus its intelligence assets both in terms of collection and analysis -- almost as important as the collection -- to try to understand, you know, what is the net assessment between the rebel groups and the -- and the military; what are the various tribal connections; who are the leadership; who is a legitimate political representative force, you know, are the rebels competent.  That's just on the sort of military side.

Then there's a lot more you could try to know about the humanitarian side.  I mean, the current estimates are, there are something like 220,000 refugees who have left the country.  There are another 600,000 people that UNHCR -- are at risk within the country.  And if you're going to provide either military support to the rebels or humanitarian support in a direct way either in Tunisia or Egypt or in some sort of separate zone within Libya, there's so much more we need to know, because a lot of people who are proposing different military and nonmilitary solutions, like all of us, don't have a clear picture of what's going on on the ground.

WAXMAN:  And I would -- I would just add to that.  This is -- this is Matthew here.  I would just add to that.  I agree with what Micah just said.  It's also important to remember that, you know, so-called sort of light or surgical military options often have a certain allure because they give the appearance of doing something, but they do often carry some important -- they do often entail some serious risks.

One of those risks is that if they end up being ineffective, they may leave us worse off than before, and by undermining our credibility and creating some additional pressure for escalation.  And so one, I think, needs to be careful in taking even small steps about thinking down the road about what kinds of follow-on steps might be -- might be necessary.

I mean, certainly one of the lessons of recent history is that if you go in and part of your intention or expectation is that you're going to depose a regime, you better have a good plan and a backup plan and a backup plan to that for how you're going to build a viable state in its place.

OPERATOR:  Thank you.

Our next question comes from Trudy Rubin, The Philadelphia Inquirer.

QUESTIONER:  Well, I'd like to pick up on the point that Matthew just made.  To all intents and purposes, from what has been discussed so far and also by Micah, there's no indication that a no-fly zone would result in a victory by the opposition.  So what I'm trying to figure out is, if tomorrow there was a decision to establish a no-fly zone, what exactly could it accomplish at this point?  And if it didn't end the fighting, then where would it leave the people who were establishing it, in terms of their further responsibilities?

ZENKO:  Well, I would agree that it would not achieve much.  If you look at how people are actually being killed, both civilians and the rebel groups, it is -- it was almost overwhelmingly with ground assets.  Now, Libya is the size of Alaska.  Ninety percent of the population lives in 10 percent of the geographic territory, which is primarily in the north.  So even if you put a no-fly zone over 10 percent of northern Libya -- that's the size of North Dakota -- it would take a lot of assets operating from Greece, Italy and probably from a(n) aircraft carrier, which we don't have in the Mediterranean right now.  You could sufficiently destroy any planes that tried to maneuver when a no-fly zone was -- when a no-fly zone was enforced.

It's much harder to try to destroy helicopters, just because of how low they can fly and the -- and you put yourself at greater risk to go lower to try to get them.

So it would -- you're right.  It would have very little impact.  And as I've written about in a book as well as various op-eds, what happened in 1991, when -- in '92, I'm sorry -- when the U.S. imposed a no-fly zone in southern Iraq was a brutal counterinsurgency campaign versus the Shia, the marshland Shia, which went on for a decade, both capturing political control over the area and killing a lot of people.

In August 1996 as well, there was a very brutal armored invasion of Kurdistan by the -- Saddam Hussein's government, which put down a Kurdish rebellion.

And so the question you have to ask is if a no-fly zone is imposed, what are the rules of engagement for the people imposing them?  And then what happens when killings continue on the ground?  Because there's no reason to assume that the Libyan air force would fly if a -- if a no-fly zone was imposed.  And clearly, there would be a rededication and refocus to using ground assets to put down the rebellion and to harass and intimidate civilians.  And then while you're flying above, what are you going to do?

And my -- and unless you're willing to take the next step, which is to physically try to stop ground forces from harassing civilians and killing rebels, then you shouldn't impose the no-fly zone at all.

OPERATOR:  Thank you.  Our next question comes from Ashish Sen, Washington Times.

QUESTIONER:  Thank you both for doing this.  I'm sorry if you covered this in your opening remarks.  I signed on a little late.  But the State Department spokesman yesterday said that because of the arms embargo imposed by the Security Council Resolution 1970 it would be illegal for the United States to provide military assistance to the opposition forces.

Senators McCain and Lieberman put out a statement later saying that the embargo was only on the Gadhafi regime and that there is room to arm these -- (off mic).

Who is correct?  And is there a way that opposition forces can be legally armed by the U.S. or the international community?

WAXMAN:  This is Matthew here.  I'd have to go take another look.  I don't have the resolution in front of me.  I thought -- and so I'm not -- I'm not certain on this -- I thought that the -- that the U.N. Security Council resolution was drafted as an embargo to the -- in a sense, that the territory of Libya, as opposed to being specifically about any particular party.  It was really -- or it was -- or perhaps it was an embargo of arms to the -- to the government, without saying anything one way or another about the rebels.

There's probably some room for interpretation there.  And my guess is that there would be a difference of opinion as to -- as to how to interpret that.  I think -- I think the intention was probably mostly about stopping the flow of arms to the government, but there may be a fair reading of it that would include even the provision of arms to the rebels.  I just don't know enough about the actual text of that resolution, so I'm sorry on that.

ZENKO:  This is Micah.  I just want to jump in.  If you read Paragraph 9 of the resolution, it's very explicit that it prohibits -- it calls on all member states to prohibit the sales of arms or any related materials or types to the territory of Libya.

WAXMAN:  Ah, okay, good.

ZENKO:  And so -- and so this language is very similar to the similar resolutions that were passed in '92 for Bosnia and for Kosovo, for Macedonia, for many other countries, where it explicitly prohibits the sale or related material to any parties to that territory.

So if the U.S. decides explicitly or covertly to arm its rebels -- with somebody with no legal training, it looks to me like we'd be in violation of this resolution.

OPERATOR:  Thank you.  Our next question comes from Matthew Kaminski, Wall Street Journal.

QUESTIONER:  Actually, I wanted just to follow up on that question on the resolution.  Crowley yesterday seemed to suggest that all kinds of military assistance would be deemed illegal.  I assume having special forces in there or bombing the airfields, as John Kerry has sort of floated out there, would also -- is that your understanding of the resolution?  I mean, to what degree does it bind what NATO or we can do militarily in a broader sense just beyond arming rebels?

WAXMAN:  I'm not -- well, I think there would be a range of legal issues that would arise if we were talking about actual military intervention, whether we're talking about, you know, bombing air defense sites or sending in something even stronger, including, you know, special forces or something like that.

But in addition to thinking about the U.N. Security Council resolutions that are in place, there is the general law of the U.N. Charter which prohibits the use of force except in instances where the U.N. Security Council authorizes it, or in self-defense.  Beyond those exceptions to the general prohibition on the use of force, then you're getting into an area of law that, as I mentioned before, is highly contested. 

There are those who argue that there is an exception to the prohibition on the use of force in order, for example, to stop civilian massacres of a certain -- of a certain magnitude.  And because that area of law does remain so highly contested, it comes back to my earlier point about wanting to take steps to build as much legitimacy and international support for those actions as possible; that would mean probably wanting to multilateralize them through requests or even simultaneous actions from, let's say, the Arab League or the African Union and things like that that would endow any military action with additional legitimacy.  Because right now, it appears that the U.N. Security Council itself is very, very unlikely to expressly endorse direct military action or endorse military support to one side or the other in a conflict.

OPERATOR:  Thank you.

Our next question comes from Steve Collinson, AFP.

QUESTIONER:  Hi.  Thank you.  To what extent -- as well as there obviously being tactical and strategic difficulties with mounting a no-fly zone, to what extent do you think U.S. policy is being driven by caution about another sort of intervention in the Middle East with the example -- the recent example of Iraq sort of in -- foremost in everybody's minds, and also the political implications of, you know, interventions in the past, in Somalia and maybe as far back as Beirut?  How much do you think this is sort of playing up on the minds of U.S. policymakers?

WAXMAN:  I'll begin and then Micah might want to jump in.  I'd say all of those examples are certainly -- all of those recent examples or not so recent examples probably do play to some -- to some caution here.  To some extent, it depends a lot, again, on what kinds of international support any intervention receives.  Is it -- is it intervention that's supported, for example, by the Arab League or the African Union which casts any military intervention in a very different light -- especially if there's participation -- heavy participation from states that make up the Arab League or the African Union?

I'd also mention, as I -- as I mentioned before, that a big question with any type of military action is what's -- what are the plans for the next steps?  I'll say this.  You know, I'd like, in general, to see Gadhafi gone too, as many people supporting intervention would.  I would like to see Gadhafi gone.  But what I'm -- but what would fill that power vacuum to me seems very unclear.  Unlike states that are going through some political transitions in that region or some other states that are going through political transitions in that region, Libya is a state that lacks basic political infrastructure of a modern state, effective ministries, civil institutions, political parties, et cetera.  So I for one am quite concerned about what comes next if there is military intervention there.

OPERATOR:  Thank you. 

Our next question comes from Margaret Warner, PBS NewsHour.

QUESTIONER:  Hi, thanks for doing this.

One of the initial aims, it seemed, by the administration was to turn senior military officers against Gadhafi, to either get them to abandon him or to turn on him or even take him out.  That seems -- of course, we don't know what's going on behind the scenes, but that seems less active at the moment.  What does history tell us about the possibilities of doing that and what it takes to do that?

ZENKO:  This is Micah.  I'll make a -- make a stab at this.  One reason that's very unlikely to work here is because, you know, what sort of historians call "coup proofing."  And coup proofing is what a lot of dictatorships implement in terms of their courts and their direct body guards and military forces very loyal to them; is they owe their existence to Gadhafi.

And so senior military officials -- since 1979, Libya has been a state sponsor of terrorism.  They were on the U.S. list from '79 to '06.  So senior Libyan military officials never participated in what's called IMET, the International Military Education Training program, which is where foreign colonels and above come to the United States and go to places like Fort Leavenworth and the Naval War College at Newport, and they develop these military-to-military relationships -- which the United States had very extensively in the case of Egypt, so there were a lot of friends of friends of friends who could pick up a phone and talk to people in the intelligence -- in the Interior Ministry and in the armed forces directly.

Those relationships don't exist with Libya.  There are intel-to-intel relationships sort of at the very most senior levels, in the sort of broader fight to -- against al-Qaida, but there are not sustained relationships between the Pentagon and the Ministry of Defense in Libya.  So it's less likely that this will work, both because there's not a sustained relationship and because of the very careful system in place around Gadhafi directly of the people who report directly to him and control the most competent and well-armed and well-trained forces.

OPERATOR:  Thank you.  Our next question comes from Raghida Dergham, Al Hayat.

QUESTIONER:  Yes, thank you.  I'm wondering, if I hear you correctly, I think you both are not supportive of the no-fly zone or military action.  So what if none was made?  Would that have amounted to over-promising and under-delivering with the Libyan people, as somebody mentioned a little earlier in reference to the Shiites and the Kurds in Iraq?  But at any rate, in that case -- or is it also -- on the other hand, could it be that the threat of the no-fly zone and the military action could serve either in opening up to a deal or for encouraging Gadhafi to go ahead and really be more brutal, since he is now concluding that no one will deliver?  So I'm wondering if there are contours of a deal because of the military set on a no-fly zone, or is it too late and it's now everybody's backed into the corner, but more so Gadhafi is more -- in a better place than the rest of the world.

ZENKO:  I'll -- this is Micah.  I'll take a stab at this.  A lot of people have talked about -- I mean, they use phrases like "signaling" and "sending a message" with the threat of using force.  I think before you think -- you have to really think through the implications and whether or not you have done the contingency planning, as Matthew has been correct to point out, about actually using force.

If you signal to use force on behalf of a(n) armed rebel group, and that group does not succeed in its objectives, then are you willing to, in order to save face, escalate further and remove Gadhafi from power primarily by U.S. or Western forces, in order to not signal to the world again that you've failed in living up to your objectives?

You know, my own opinion is that removing from -- nobody said on February 15th that it was in the U.S. national interests to remove Moammar Gadhafi from power.  There has been sort of improved relationships between the United States and Libya, including, you know, Libya renouncing its WMD and ballistic missile program, and providing a lot of the information about the A.Q. Khan network.  They also signed the IAEA additional protocol.  Libya was removed from the State Sponsor of Terrorism List in '06.  In '08, we came to -- Condoleezza Rice accepted an agreement with the Libyan government, taking $1.5 billion under the Libya claims settlement agreement, which went to serve as compensation for victims of terrorism directly related to the Libyan state.

So unless you're willing to -- unless for some reason something happened since February 15th that you now want Gadhafi to go, and you're willing to make the full commitment to see it through, including boots on the ground, you should be very careful about all these different signals, between threatening to use force or using limited force at a distance.

WAXMAN:  And this is Matthew.  I would just jump in.  I agree with that, and would just make a couple of additional points.

In terms of sort of where I would come out on some of these proposals, including a no-fly zone, I'd put -- I'd sort of cast my own view less in terms of opposition than as somebody who's undecided, because I haven't heard answers to the important questions that I would want answered before I'd endorse a proposal.  That is, I've heard from many quarters strong support for military intervention from -- but what I haven't heard from those advocates is answers to a lot of the follow-on questions, including what would be the next steps if, for example, our initial efforts to force Gadhafi to back down or to limit his military reach fail -- what would be the next steps if those steps -- if those initial actions were wildly successful and aided the rebels in making great gains and possibly even deposing Gadhafi.  Until I have good, clear answers to some of those follow-on questions, I'm very reluctant to say that these seemingly small surgical or signaling uses of force are viable and productive. 

I mean, as Micah was also suggesting, you know, using limited uses of force, like no-fly zones, in order to signal or demonstrate resolve is great when it works, because when it works, you don't even actually have to use very much force.  You've deterred an antagonist to back down.  It's great when it works.

But what often happens in these situations, especially when that adversary knows that you -- that you're reluctant to escalate, knows that you're -- that you're willing to use a no-fly zone but reluctant to put boots on the ground, et cetera, that an adversary in that case is very likely to test your resolve and see whether you're willing to escalate.

So again, if we're not willing to escalate beyond some initial military action, I'm -- I'd be, again, quite cautious in promising some initial steps.

JEROME:  I just want to jump in for a second.  It's Deborah Jerome.  I just want to remind everyone that Matthew Waxman has to leave at 11:40.  It's now 11:32.  So if you have questions for him, you should get them in now.

OPERATOR:  Thank you.  (Gives queuing instructions.) 

Our next question comes from John Marcario, SEAPOWER Magazine.

QUESTIONER:  How will the increased and persistent fighting affect the maritime industry in terms of shipping to, from and around Libya?

ZENKO:  This is Micah.  It's hard to -- I don't really know a good answer, other than to say I'm sure it will be built into whatever insurance is required to ship in and around those areas.  There's no evidence that Libya has used its relatively small navy forces to harass or interdict rebel shipments going in and out of Libya.  So I -- without knowing anything more about the situation, it's unlikely that it would have any major impact.

OPERATOR:  Thank you.

Our next question comes from Julie O'Connor, The Star-Ledger.

QUESTIONER:  What are the potential consequences if the U.S. and other Western countries, you know, do nothing and take no military action?

WAXMAN:  Well -- this is Matthew -- I think there are -- there are a couple.  You know, one of them is severe humanitarian consequences; that I -- Gadhafi and his forces are very brutally suppressing rebel forces, and so there are some immediate humanitarian consequences of that.

Another consequence is that Gadhafi does manage to maintain his hold on power and consolidate it, we'd be very worried about what kinds of foreign policy that the emergent Gadhafi regime would be interested in pursuing.

And then finally, you know, there are some credibility consequences at this stage to doing nothing, that we have -- we have in a sense already given some signals that we -- that we're going to take steps to force Gadhafi down.  And if we -- if we don't follow through on those, then that does -- then that does diminish our credibility in the future and especially with regard to other regimes in the -- in the region. 

It's also important to remember that, you know, one of the interesting aspects of the U.N. Security Council resolution that was passed last week is that it -- and this was an impressive feat of diplomacy in that a very complex resolution was drafted, completed and approved in very quick time.  It does include a referral of the case of Libya to the International Criminal Court.  And especially if that investigation does result in ICC indictments of Gadhafi and his regime, then there -- certainly Gadhafi will be quite isolated politically, and then it will be a question of what steps will the international community take to follow through on perhaps someday arresting Gadhafi and bringing him to justice. 

Now, those are questions sort of deep into the future.  There's a long time before we get there.  But these are some of the -- sort of the possible future follow -- possible futures that might follow.

ZENKO:  And just to -- just to jump in real quickly, we know from the history of mass atrocity and genocide committed against civilians that it's almost always committed in the camouflage of a wider internal civil war.  And so there is the great worry that the Libyan state, as a tool to harass and oppress and coerce civilian populations and rebels, turns towards using mass killings against them. 

There's also the slight possibility, which has gone highly under-reported in the press, according to Human Rights Watch in the latest U.N. High Commission Refugees Report, is there are many cases of harassment and intimidation against black Africans, including violence against black Africans who are perceived by the rebel groups as being part of mercenary forces, many of whom were just simply day laborers for a long time.  So this gets to my earlier point about critical information requirements, which is, we need a much clearer picture on the ground, because when we have people on the ground providing video, bearing witness, it's less likely that atrocities will be committed.  But as long as we're sort of blind going in, using the cover of a civil war for civilian violence is the norm is most instances of mass atrocity and genocide.

OPERATOR:  Thank you.

Our next question comes from Matthew Lee, the Inner City Press.

QUESTIONER:  Yeah, thanks a lot.  I wanted to -- you were mentioning the ICC referral, and I wanted to ask a couple things.  One is, if there were military action without Security Council approval -- I mean, if that were considered illegal, where -- you know, where would that be raised, in what kind of tribunal and by whom; and also, whether you think that any countries that are members of the ICC, you know, feel themselves constrained to engage in an intervention that wasn't sponsored by the -- by the Security Council, in the sense of like -- I know they're discussing something called the "crime of aggression."  Do you -- not to say it would be a war crime, but do you think that that's played any role at all?

And also, the carve-out in the resolution:  There's this -- there's an ICC referral but it doesn't apply to, let's say, U.S. forces or any country that's not a member of the ICC.  Do you -- do you think that will play any role in the decision making on whether to proceed without a council -- a Security Council resolution?

WAXMAN:  Sure, a few questions in there.  As to whether -- sort of what would be the consequences of -- legal consequences of acting without a U.N. Security Council authorization, there probably will not be any direct legal consequences in that their -- the ICC does not, as of yet, have any jurisdiction over a crime of aggression, though it may in the future depending on whether states parties ratify that proposal to expand its jurisdiction.

It is -- it is probable, though, that a failure to get a good sort of legal foundation for intervention is going to make some possible coalition partners in this reluctant to participate.  It's not that they're going to fear probably any direct legal action in terms of ICC prosecution or something like that.  It's more going to -- it's more going to result, I think, in a reluctance to participate in multinational military operations.

Now, that said, even in the absence of U.N. Security Council authorization for military force, there are other steps -- like getting the support from these other regional bodies, the African Union, the Arab League and others -- which, while not strictly in a strict legal sense providing a direct alternative to a U.N. Security Council authorization, would endow intervention with sufficient legitimacy that I think many states would feel comfortable participating in military action like a no-fly zone, even in the absence of a -- of a U.N. Security Council authorization.

By the way, just to get back to Micah's previous point about atrocities, I completely agree that, you know, that as a -- as a historical matter, tragically, it's often in these kinds of civil war situations that we see the worst mass atrocities; and that especially in a situation like this, in which Gadhafi is going to want to not only try to defeat a rebel force but also consolidate his long-term hold on power, we could very well see the kinds of massacres that we've seen elsewhere in the region as a way of clearing out populations, of intimidating other populations into submission, and et cetera.

And I apologize; I'm going to have to jump off now, but I've enjoyed speaking with all of you.  And feel free to e-mail if you'd like.  You can find my e-mail address on the Columbia Law School website on my faculty webpage.  And I appreciate the opportunity to speak with you. 

JEROME:  Thanks very much, Matt.

WAXMAN:  You bet.

OPERATOR:  Thank you.  Our next question comes from Garrett Mitchell, The Mitchell Report.

QUESTIONER:   Thanks very much for doing this.  And I should preface it by saying that I signed on a little bit late and had to step away for a minute or two, so if I'm asking a question that covers territory you've been over, I'll just, you know, take a pass and take the next question.

The question has to do with social media, which, you know, has been both identified as critical to the (free ?) movements in the Arab spring, and equally put down as having been significantly overrated in any of those cases.  And I'm curious to know, A, to what extent do we know about whether there is the capacity in Libya for the social media?  I don't have any idea about how wired they are and what their cell phone penetration is, et cetera.  But I'm just curious to know whether and to what extent we know about whether social media has played some or any role in this thus far.

ZENKO:  I can only make some semi-educated assessments of that.  Since '96, most of Libya has been covered by mobile/cellular phone service.  But it is state-controlled and state-directed, and there's been wide reports of mobile phone services and hard-line phone services being shut off sort of intermittently and at various times as a way to sort of keep the population in the dark.  So I have no doubt that they're willing to do that and capable of doing that, and will have done so and will continue to do so.

As the -- as the sort of uprisings in Tunisia and Egypt showed, the United States intelligence agencies have a -- don't do a very good job at interpreting and analyzing social media, especially as it happens in real time.  If you go back and look at the testimony of Leon Panetta and James Clapper both to the House and Senate Intelligence Committees about a month ago, you know, it wasn't until 2007 that this was an issue that they really even collected on.  And there is, one, not enough people who can do the foreign-language translation, there's not enough people who really understand.  And so, you know, if you wanted to know what was going on in Libya, you probably picked about 10 good Twitter feeds and people who might be posting things on Facebook.

So, you know, undoubtedly they are using social media, and we're trying to follow the sort of rebel groups as they do so.  But we're not very good at that yet, and we shouldn't assume that it will have much of an impact at rallying sort of rebel and civilian populations as an uprising matter, because the telephone system and all communications systems are controlled by the state.

OPERATOR:  Thank you.  Our next question comes from Trudy Rubin, Philadelphia Inquirer.

QUESTIONER:  Just a couple of follow-ups.  One on the question that was asked by Margaret about splitting the military.  Even if the military is very loyal to Gadhafi, are there steps that could be taken that could peel away some military?  I mean, for example, we know a couple of pilots defected to Malta.  Could there be more of an open invitation to pilots to defect?  Could there be a promise of no persecution or confiscation of assets of military officers who defect?  Is there anything along those lines, you think, that could work?

And then secondly, if this thing goes on into a stalemate and you have some kind of a provisional government in part of the country, what then would be the legal issues and, do you think, the wisdom of recognizing a provisional government in part of a country?  Would that play into a civil war?  Or is that something that might help?

ZENKO:  To the first question, I assume all of that is being done already.  Making as many connections as you can with military officers or intelligence officers who are on the side of the state to both offer positive inducements for them to leave or provide intelligence -- which is more likely what they're asking them to do is stay in place and please provide intelligence. 

As I mentioned, there's all these instances of bombs going off in the middle of the desert, which suggests that either the pilots aren't really in the fight or perhaps they're being -- they're -- you know, there's money exchanging hands or promises being made to do so.

There are also, as President Obama has threatened, negative inducements -- or negative sort of pressures, which is saying, if you participate in state activities that demonstrably kill civilians, you will be brought to bear -- you will be brought to justice for having done so within the ICC, or potentially some other international legal tribunal.  So I assume all that's going on already.

But, as I mentioned, because of the way that the regime carefully -- a regime of this types (sic) carefully selects and cultivates its key senior leadership, that's going to be very hard to do, and we shouldn't expect it to have an impact -- long-term impact on the ground.

An issue of recognizing non-state or provisional governments in other parts of the territory, that's something the international community tried to avoid.  In Somalia, for example, there is a completely separate government in the north called Puntland, and no -- the international community does not recognize them, even though they're about as effective -- or certainly more effective than the nominal government in Mogadishu.  So I think that would be the least likely scenario, that the international community would recognize a movement that maybe controlled half of -- the eastern part of the state.

OPERATOR:  Thank you.  Our next question comes from Evelyn Leopold, Huffington Post.

QUESTIONER:  Sorry, the question's been answered.  Thank you very --

OPERATOR:  Thank you.  Our next question comes from Martin Klingst, Die Zeit.

QUESTIONER:  Yeah, hi, Micah, and just a short question.  You know, if you were asked to the White House today, what advice would you give, you know?  I see all the obstacles to the no-fly zone and to military means, and I know that we don't know enough about the facts on the ground.  But, you know, knowing that massacres are going on on the ground, and being in the tough position or situation that the president is in, what advice would you give him?  What could the government do at this moment?

ZENKO:  Well, as I've mentioned, one, the continued rededication of information intelligence, assessment -- collection and assessment to try to understand the situation on the ground.  But second, there's just massive staging that needs to go on in terms of logistics for humanitarian crises, which can be done in Egypt, in Tunisia, in Libya, in Chad.  You need to be doing sort of the political-military relationship-building with these countries to permit forces to be placed in those areas to do so.  So all of that should be going on as well now.

I mean, as I mentioned, there's 220,000 refugees and 600,000 people in country who need assistance.  And, you know, this is the Saharan Desert and 90 percent of the country is desert, but temperatures still dip below 50 degrees at night, and for, you know, vulnerable populations, that puts them at risk.  So they will need shelter if they are exposed for long periods of time.

And then the other thing you might want to do is just provide communications equipment, secured communications for civilian populations, for various rebel groups, for various NGOs, so at the least you can do is communicate with them and be explicit about what you can do on their behalf and what you will not do on behalf, like limited surgical strikes or a no-fly zone, because if you can communicate with them, at least you can get some better sense -- you can collect on intelligence on what they're intending to do, and you can be explicit about what you will do and what you will not do.

OPERATOR:  Thank you.  Our next question comes from Margaret Warner, PBS "Newshour."

QUESTIONER:  Just following up on what the U.S. can do here, co you see -- I mean, it's pretty clear that they're thinking of using military assets, particularly the naval assets that we have in the Mediterranean, to deliver aid, not only on the Egyptian and Tunisian sides of the border but perhaps even within Libya itself in the east.  Do you see that as a slippery slope?  Or do you think that's sort of perfectly appropriate and can be done without being drawn into more engagement in the actual conflict?

ZENKO:  It is potentially a slippery slope because there are not clear lines.  There are no clear fronts in this fight, right?  There are forces taking on the government, both to the east and to the far east of Tripoli and to the immediate west of Tripoli and some areas south.  So there are many fronts where there is potential that civilians can -- civilian internally displaced persons could find themselves.  So you may have to set up what's sort of called commissary containment areas to provide aid in different parts of the country, and you don't set those up within Libya unless you're willing to protect them and dedicate the resources to do so.

So there is the potential for a slippery slope.  Fortunately, it looks like most people now are moving, you know, east and west -- although, it is a long way between -- for example, just from Benghazi to Tripoli is 1,000 kilometers.  So if you have a car, that's 13, 14, 15 hours.  If you don't have a car, you're in a lot of trouble and you'll need assistance multiple times, many, many times along the way to get to the border area.

So, yes, there is a potential for a slippery slope.  But these are things that sort of the Marine Expeditionary Units that are located there have thought through, I'm sure, very carefully, and will do their best, both to signal the intentions of what the -- what the aid is to do to the rebels and to the government.

And then, if the government intervenes to prevent the delivery of humanitarian aid, you have further decisions to make.  So you shouldn't provide the aid or make the aid explicit until you're willing to think about the lethal force you're willing to use to supply it should the government get in the way of its delivery.

OPERATOR:  Thank you.  Our next question comes from Jim Dingman, INN World Report.

QUESTIONER:   Yeah, hi.  Do you have any idea as to the relative strengths of the rebels versus the government?

And also, if one is going to launch an air campaign -- and I do apologize, I missed your beginning on this -- you know, I think of how the Gulf War air campaign was designed, with two sorties per node.  And so you're talking about, if you look at the Libyan OB, even though it's not particularly strong in terms of actual aircraft off the ground, you're still talking about the need, I would think, for several carrier groups.  So you're talking about a really massive use of air force to assure dominance.  And I'm wondering what your assessment is of, first, the strengths on the ground of both opposing sides and how they fluctuate; and secondly, just a logistical problem of mounting such an operation.

ZENKO:  To get to your first question, I don't think anyone has an answer.  I mean, we have estimates of the size.  The active army is something like 75,000 people, very small navy, relatively small air force.  They have over 300 militarily capable aircraft and about three-dozen attack helicopters, which could be -- which could be utilized.  So there are a lot of assets at the ready for the -- for the state.  There are also something like a million and a half military-age males within Libya, a lot of sort of -- the country is pretty awash in small arms, especially to protect tribal interests.

So there is enough capabilities on behalf of the state, I think, to defend themselves from anything that the -- that the rebels have.  The rebels have been able to get at some of the arms depots that once belonged to the state.  But as many people have pointed out, in eastern Libya, apparently, for good reasons at protecting his own regime, Gadhafi did not allow the most modern and most capable resources to be deployed there.  So what they have is very -- it's going to be very unlikely to be able to remove Gadhafi from power.  It's very unlikely to do so.

You know, the question about how hard a military intervention is is one that a lot of people have thought about.  As -- you know, as I mentioned before, 90 percent of the population lives in 10 percent of the territory.  So just the north 10 percent is the size of North Dakota.  So you don't have to intervene in the bottom sort of 80, 90 percent, but you might have to go after assets in the north. 

And if you -- and so that will take -- you know, a carrier can put up about 150 sorties a day.  It can spike to about 200 for short periods of time.  And we can assume that there will be flights from Italy and Greece, although both of those states have said they will not support a no-fly zone or any military intervention unless there's a U.N. Security Council resolution endorsing it.

I would also add that, in the case of the no-fly zones over Iraq, there were very explicit and constraining rules of engagement placed upon U.S. planes that flew out of Turkey, for example, versus U.S. planes that flew out of Saudi Arabia.  So national governments will often put very explicit rules of engagement on the types of lethal force you can use when you fly out of their territory.  So if that becomes too much of a problem, then yes, you're back stuck with flying only off carriers.

But, you know, the Bosnian no-fly zones, which were enforced for about three years, they averaged, if you include the sort of fighter aircraft, the air defense systems and the -- and the refueling systems in the air, they averaged about 100 sorties a day for three years.  That's in a territory that's about a quarter as big as the top -- the upper 10 percent of Tripoli. 

So -- well, I say, one, the U.S. Air Force is more competent at destroying air defenses than it was in '92 to '95, so they're probably better at it now.  But it still is in the order of potentially hundreds of sorties a day to enforce it, should the Libyans decide to challenge it, which is -- which is the big -- the big, big question.  And if they do decide to challenge it, they have something like 650 surface-to-air missiles.  They have 500 anti-aircraft guns, which can -- are (towed ?), are self-propelled and can be moved around and concealed and dispersed in lots of different tricky ways to put at risk your air assets.

So it is a more -- I think a more difficult, logistically difficult operation than people think.  But it's not an issue just of capabilities.  It's also an issue of potential political constraints that will be put on the United States that enforces it or decides to use force.

OPERATOR:  Thank you.  There are no more questions at this time.

JEROME:  Well, we've pretty much reached the top of the hour anyway.  Before we hang up, I'd like to remind everyone on the line that you can access more information about Libya online at cfr.org.  Thanks to all of you for calling in, and thanks, Micah.

ZENKO:  Thank you very much.

JEROME:  All right.  Bye-bye.

ZENKO:  Bye now.

 

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