The new Libya: various aspects

[jmm99]

The Law as it reads -

No matter how you cut the doctrinal legal sausage, captured means detain under humane conditions for the duration of hostilities - subject to concurrent trial before a competent tribunal for crimes under domestic and/or international law. Since just before WWI, US military law has prohibited summary executions. Before that, some US authority existed for summary executions if ordered by a field grade officer (e.g., Tony Waller was found not guilty for Samar; at about the same time, Breaker Morant was shot in South Africa for the same thing).

The Law as it (sometimes) is applied -

You all recall the Astan PMC (Don Ayala), bodyguard for Paula Loyd who was burned to death by a Astan villager. After the villager was handcuffed, Ayala executed him. The charge ended up being manslaughter, to which Ayala pled and was sentenced to probation by the Federal judge (post, And he got it ... ; and also, this prior post, Yup,).

The law on the books (doctrinal) is subject to the "law" in the decision-maker's noggin - the "quality of mercy, etc.".

Regards

Mike

[Bob's World]

Originally Posted by jmm99

The Law as it reads -

No matter how you cut the doctrinal legal sausage, captured means detain under humane conditions for the duration of hostilities - subject to concurrent trial before a competent tribunal for crimes under domestic and/or international law. Since just before WWI, US military law has prohibited summary executions. Before that, some US authority existed for summary executions if ordered by a field grade officer (e.g., Tony Waller was found not guilty for Samar; at about the same time, Breaker Morant was shot in South Africa for the same thing).

The Law as it (sometimes) is applied -

You all recall the Astan PMC (Don Ayala), bodyguard for Paula Loyd who was burned to death by a Astan villager. After the villager was handcuffed, Ayala executed him. The charge ended up being manslaughter, to which Ayala pled and was sentenced to probation by the Federal judge (post, And he got it ... ; and also, this prior post, Yup,).

The law on the books (doctrinal) is subject to the "law" in the decision-maker's noggin - the "quality of mercy, etc.".

Regards

Mike

All insurgents are by definition "outlaws."

Once you're on the block for treason, what is the additional penalty for murder?

The rule of law really only serves to deter and guide those who are not already guilty of a capital crime. Not saying I approve of the insurgents summarily executing Qaddafi, but as Mr bin Laden would attest (if still alive), these things happen in such emotionally charged encounters.

I don't think anyone should make too big of a deal out of this, as these things are impossible to control and there is really no one out there without sin to cast that first stone.

[jmm99]

The correct phrase is: All successful insurgents are by definition "the new government".

In the eyes of that new government, our militiaman from Misrata is one of its many conquering heroes - none of whom have to worry about treason charges. That is, until they run afoul of the new government.

The issue is what (if anything) that new government decides to do about its hero - and any others involved in crimes (domestic and/or international) during the course of the successful insurgency.

Regards

Mike

[Bob's World]

Fair enough. The victors write the history. The losers die or flee. Our own founding fathers were far more likely to end up at the end of a rope than revered by a grateful nation founded by their efforts. Insurgency is natural, but it also always a bold gamble, much like the Battle of Britain the many owe so much to so few. If they win, and if they are able to move to something better than what they had before. Perhaps the ultimate human drama.

[Dayuhan]

Originally Posted by Bob's World

Perhaps the ultimate human drama.

Unfortunately observers too easily expect actual human drama to adhere to the dramatic conventions established in works of fiction. It's sunk in our minds that the guys in the white hats fight fair and do right, and it bothers us when they don't live up to standard.

Should the new government seek out and string up the young man who in the heat of the moment perforated the ex dictator... which thousands of others would have done if they'd been in his shoes? Maybe justice - and the desire to live up to the conventions of those who weren't there - would be satisfied if they did. I'm personally not sure it's called for.

Any time a violent domestic conflict ends there's a debate between justice and reconciliation. At some point you have to draw distinctions between people (on both sides) who deliberately organized, ordered, or participated in planned atrocities and barely trained, unsupervised guys who simply pulled a trigger in the heat of a jacked-up moment.

Some very ugly stuff happened and much of it will go unpunished. That may suck, but it's a reality.

[jmm99]

(including COL Jones and Dayuhan).

It is directed against those in my profession in the International Law field (both in the US and elsewhere) who (1) select "justice" where the US is involved - holding it to the strictest legal tests; but who (2) select "reconciliation" where insurgents are concerned - holding them to relaxed legal tests. This dichotomy in applied morality is simply a subset of the mentality that supported the development of the 1977 Additional Protocols and the "direct participation" (transitory guerrilla) doctrine.

Frankly, my dear new Libyan government, I don't really give a damn as to whether you select "justice" or "reconciliation" in this particular case, or in others that will come to light. I am interested in how the International Law Watchdogs will react to those cases. I suspect that "reconciliation" (spelled OIL) will win out in the governmental arena.

To conclude, from Salon's Daniel Williams, The murder brigades of Misrata - Gadhafi's demise was just a part of a vast revenge killing spree (28 Oct 2011):

MISRATA, Libya — If anyone is surprised by the apparent killing of Moammar Gadhafi while in the custody of militia members from the town of Misrata, they shouldn’t be.

More than 100 militia brigades from Misrata have been operating outside of any official military and civilian command since Tripoli fell in August. Members of these militias have engaged in torture, pursued suspected enemies far and wide, detained them and shot them in detention, Human Rights Watch has found. Members of these brigades have stated that the entire displaced population of one town, Tawergha, which they believe largely supported Gadhafi avidly, cannot return home. ... (more in article)

As much as I lack fondness for Human Rights Watch, at least it so far is being consistent in this case.

Regards

Mike

[Bob's World]

I for one am a big fan of justice, certainly see it as superior to and very distinct from the rule of law. Great to have both, but if you can only have one, justice is most important.

I also am a big fan or reconciliation. In stable countries, such as the US, with such tremendous philosophical divides between the left and the right, "reconciliation" is still difficult if measured by how well the two sides work together following a shift of power. That's something we should work on. In a country where violent, illegal means are necessary to effect a change of government reconciliation is every bit as important to moving forward, but so much harder to achieve when blood is spilled.

If oil is what lubricates the reconciliation process in Libya, then thank god for oil.

As to the "new government of Libya" and the men who took out Qaddafi; they are really one and the same, two distinct aspects of the same movement for change. I hope that those who are scrambling for power positions do not throw those who are elevating them through physical action to those positions under the bus. History shows that some degree of violent retaliation is sadly universal (though largely written out of US history books, the Loyalists suffered). Often it is horrific, and no culture or religion is immune from this aspect of human nature. This will be messy, but if they stay focused on shifting the focus from punishing the old to one of building the new as soon as possible they will have a chance at both justice and reconciliation in a new Libya.

[davidbfpo]

A timely reminder by an Indian observer of how Gadafy upset the Middle East way back:

In 1978, Musa Sadr, Lebanese Shia Imam mysteriously disappeared during his visit to Libya. Archibald (Archie) Roosevelt, who was the first US intelligence officer posted in the Maghreb has given a vivid account of the power play in Lebanon in the 1960-70s in his book "For Lust of Knowing" (1988). The Lebanese Shia community, who generally welcomed the Israelis to get rid of the hated PLO, was then led by Musa Sadr, the founder of Amal. The US was hoping to utilise Amal to stabilise Lebanon since Musa Sadr was quite popular with the Christians. He was last seen on 31 August 1978, in Libya before his scheduled meeting with Gaddafi. Libyan authorities claimed that he had gone to Rome with his delegation. However, a former colonel in the Libyan army said that he was killed under Gaddafi's orders.

Link:http://www.sunday-guardian.com/analy...ended-in-libya

Seems a long time ago and I do recall references to the incident, not the context or details.

[davidbfpo]

Hat tip to the Australian think tank, Lowry Institute, for identifying this fact and oh yes, it is the UK who did it.

From the start of current operations in Libya up till 1 September 2011, UKforces have employed around 1,100 precision guided munitions, 110 direct fire weapons, 4,100 rounds of direct fire 30 mm cannon rounds, and around 240 high explosive or illumination rounds from 4.5 inch naval guns. Therefore, excluding 30 mm cannon rounds, 76% of weapons employed were precision guided. We carefully select the type of weapon in every engagement to ensure the most appropriate munition is used to deliver the required effect, while minimising the risk of civilian casualties.

The precision guided munitions used include Dual Mode Seeker Brimstone, Enhanced Paveway II, Paveway IV, Storm Shadow missiles and Tomahawk Land Attack Missiles. Direct fire munitions include Hellfire missiles and CRV-7 rockets.

Link:http://www.thinkdefence.co.uk/2011/0...eptember-2011/

[davidbfpo]

A BBC Newsnight report, with a nine minute film clip on:http://www.bbc.co.uk/news/world-africa-16624401

Yes, I know most SWC cannot access this; the written and more detailed report is on; which opens with:

British efforts to help topple Colonel Gaddafi were not limited to air strikes. On the ground - and on the quiet - special forces soldiers were blending in with rebel fighters. This is the previously untold account of the crucial part they played.

Link:http://www.bbc.co.uk/news/magazine-16573516

The role of Qatar, not to overlook Emirates and Jordanian elements, is mentioned:

This Gulf emirate had taken a leading role in backing the NTC, and its defence chief was by June brokering an agreement with the UK and France to provide material back-up as well as training for the NTC....

Last October the Chief of the Qatar Defence Staff revealed that "hundreds" of his troops has been on the ground in Libya. British sources agree Qatar played a leading role - and accept it put more soldiers in than the UK - but question whether the number was this large.

The UK CDS has openly complimented the three Arab partners role in the Libyan campaign, in a speech at RUSI:

Integrating the Qataris, Emiratis and Jordanians into the operation was key. Without them and their defence chiefs' leadership, especially the huge understanding they brought to the campaign, it is unlikely that the NTC's militias could have successfully acted as the land element without which the right outcome would have been impossible.

Link:http://www.rusi.org/events/past/ref:E4EA01B5272990/

The role of Qatar more widely features in this article, headlined 'Here comes Qatar' and sub-titled:

Suddenly, the tiny Gulf emirate is the Middle East’s superpower

Which is not black & white, as the author concludes Qatar plays a double role:http://www.spectator.co.uk/essays/al...es-qatar.thtml

[jmm99]

This weekend, the NYT ran an analysis, NATO Sees Flaws in Air Campaign Against Qaddafi (by ERIC SCHMITT, April 14, 2012), in part addressing the scope of the US involvement in NATO's air campaign.

According to the Obama Admin's position, the predicate for US engagement was that the United States, following the initial air attacks in March 2011, would transfer responsibility for operations in Libya to NATO and thereafter play only a secondary, supportive role: Pres. Obama letter to Congress - March 21, 2011; Pres. Obama speech - March 28, 2011; DoJ (OLC) opinion in support of the legality of the Libya intervention - April 1, 2011; and Harold Koh’s testimony on the War Powers Resolution - June 28, 2011.

Because Congress elected not to engage the Executive in a constitutional debate, the Presidential decision to engage in Libya (whether right or wrong) could not be raised as a legal question, but stood as a political question - obviously subject to political debate then and now. Goldwater v Carter (1979) (esp. Justice Powell's opinion):

Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority.... The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict. If the Congress, by appropriate formal action, had challenged the President’s authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve the issue.

The remainder of this post seeks guidance on one such political question based on military considerations.

At the time, the Wash. Post ran an article, NATO runs short on some munitions in Libya (by Karen DeYoung and Greg Jaffe, April 15, 2011), which made the following claim (emphasis added):

European arsenals of laser-guided bombs, the NATO weapon of choice in the Libyan campaign, have been quickly depleted, officials said. Although the United States has significant stockpiles, its munitions do not fit on the British- and French-made planes that have flown the bulk of the missions.

Britain and France have each contributed about 20 strike aircraft to the campaign. Belgium, Norway, Denmark and Canada have each contributed six — all of them U.S.-manufactured and compatible with U.S. weaponry.

Since the end of March, more than 800 strike missions have been flown, with U.S. aircraft conducting only three, targeting static Libyan air defense installations. The United States still conducts about 25 percent of the overall sorties over Libya, largely intelligence, jamming and refueling missions.

Now fast-forward a year to the NYT analysis in my opening paragraph, which is based on the confidential 28 Feb 2012 "lessons learned" report of NATO’s
Joint Analysis & Lessons Learned Centre (JALLC). The NYT makes this claim re: NATO & US munitions:

The report also spotlights an important issue for the alliance that dates to the Balkan wars of the 1990s: that the United States has emerged “by default” as the NATO specialist in providing precision-guided munitions — which made up virtually all of the 7,700 bombs and missiles dropped or fired on Libya — and a vast majority of specialized aircraft that conduct aerial intelligence, surveillance and reconnaissance missions, or I.S.R. in military parlance.

Four possibilities here:

1. The WP story errs - US bombs and missiles can be fitted to British and French planes; or

2. The JALLC report errs - US bombs and missiles made up far less than "virtually all of the 7,700 bombs and missiles dropped or fired on Libya"; or

3. Belgium, Norway, Denmark and Canada flew a lot more missions than they are credited; or

4. US planes were directly involved in a lot of bombing missions.

Is there anything open-source that can can reconcile these claims ? Or, should we look at Libya as our friend Jack Goldsmith has this Sunday at Lawfare, NATO’s Role in Libya was a Joke ?

Regards

Mike

[davidbfpo]

The UK-based Quilliam Foundation, with an ex-LIFG member as an analyst, has drawn attention in a short briefing note 'Quilliam Briefing : Rising Jihadism in Libya: the Abdul Rahman Brigade’s goal in Attacking Western Targets':http://www.quilliamfoundation.org/co...s-releases/942

I do wonder how the Jihadist viewpoint has gained traction, after the Western intervention to help and protect their national interests, has so quickly waned that attacks are made. Quite clearly Libya has many problems to resolve, notably an ineffective government and too many people with guns.

[davidbfpo]

A first-hand account of the situation, albeit a few weeks ago, by Peter Oborne and what better illustration of the lack of government:

..we visited a detention centre at Gharyan an hour’s drive south of Tripoli. The inmates were blacks, most of whom had been caught sneaking into Libya from sub-Saharan Africa in search of work. The thoughtful and engaging camp commander, a former English teacher called Emad Sagar...explained that he received no help of any kind from the government, that his militia fighters were untrained as prison guards, and that the only way he could feed the prisoners was by stealing from local businesses at gunpoint.

Link:http://www.spectator.co.uk/issues/2-...libya-notebook

Elsewhere he wrote:

The government is offering payments of £10,00 to each fighter in an effort to persuade them to return to civilian life. It has reportedly already paid out around a billion pounds in this way, but that hasn't bought stability. At another roadblock, furious militiamen say they haven't been paid yet and vow to fight on.

Link:http://www.channel4.com/programmes/u...2012/episode-7

[Dayuhan]

Originally Posted by jmm99

Before that, some US authority existed for summary executions if ordered by a field grade officer (e.g., Tony Waller was found not guilty for Samar; at about the same time, Breaker Morant was shot in South Africa for the same thing).

Not quite the same thing: Morant killed people with white skin, Waller killed people with brown skin. There was once a big difference; some would say there still is.

[davidbfpo]

Dr. Omar Ashour an astute observer of matters Arabic and with time on the ground has written a short (8 pgs) Brookings paper 'Libyan Islamists Unpacked: Rise, Transformation, and Future':

The policy briefing is divided into three parts. The first section identifies the main Islamist forces in Libya and briefly overviews their backgrounds. The second part attempts to understand the salient issues facing Libyan Islamists and the effect they have on Islamist political behavior. The final section concludes with policy implications for the international community.

Link:http://www.brookings.edu/research/pa...2-libya-ashour

[davidbfpo]

At last some insight that explains what has happened:

Early electoral results indicate that the liberal, secular-leaning National Forces Alliance of Mahmoud Jibril, the former wartime Prime Minister of the rebels’ National Transitional Council (NTC), has swept the majority of the country’s new parliament.

Link:http://world.time.com/2012/07/10/why...#ixzz20UIxPP3N

Libya is clearly not in the same league as Egypt within the Arab World, but after a violent change of governance (NATO & US aided) one hardly expected to see the labels 'liberal, secular-leaning' forming a majority.

[Dayuhan]

Foreign Affairs piece on the aftermath:

http://www.foreignaffairs.com/articl...spawn_4-072612

Not a particularly optimistic view.

Of course even if "liberal, secular-leaning" groups do take over government, they may or may not be able to regain control of the country. A great deal will depend on getting back at least some of the money the old regime stashed outside, and ob being able to put together a credible enough armed force and a solid enough re-integration program to force the militias to demobilize. None of that will be easy and there's certainly a chance for a full-scale meltdown.

On the other hand, the voter turnout and the generally peaceful election, as much as the results, suggests that there is a real constituency for rebuilding. We'll see.

Items like the one cited above will inevitably lead to suggestions that some sort of controlled demolition of the Gaddafi regime would have been superior. That assumes, of course, that it would have been possible. When a long-standing dictator chooses to fight it out in the face of insurrection and the armed forces (or a large part of them) remain loyal, there's rarely going to be an orderly or attractive solution.

[davidbfpo]

All the nuance you want on the Libyan election and what may follow:http://www.opendemocracy.net/alison-...m-deeper-story

Which ends with:

Whatever happens on 8 August and beyond, it cannot be assumed that Libya has turned its back completely on Islamism - either now or for the future.

[davidbfpo]

Not exactly a title US audiences would expect this week, Dr. Omar Ashour, a regional analyst, has provided insight on what happened this week; the full title is 'The nature of Libya’s post-revolution armed Islamist forces is by no means straightforward'.

Link:http://www.yourmiddleeast.com/opinio...-minority_9544

Some key sections:

Salafi jihadism is not an organization, but an ideological trend based on the core belief that armed tactics of all kinds are the most effective – and, in some versions, the most legitimate – method of bringing about social and political change.....

The tragic death of Stevens and his colleagues has engendered wide public outrage in Libya, adding to the isolation and de-legitimization of the armed groups. Dozens of Libyan activist groups have uploaded videos paying tribute to Stevens, as well as issuing statements against terrorism and Al Qaeda. One of the Muslim Brothers’ Web sites includes such a statement, and Libya’s Grand Mufti, Sheikh Sadeq al-Gheriani, also condemned the attack....

Collective punishment and targeting the innocent is forbidden in the Koran in more than 20 verses: “That no burdened person (with sins) shall bear the burden (sins) of another” (The Star Chapter 53:18).

There is a main thread on Libya, so this will be merged there another day.

[carl]

David:

Where is the main thread on Libya? I can't find it.