|Although the use of force in Libya is now legally binding due to a UN security council resolution, it may well be an act of imprudence, setting a poor precedent for potential future interventions [GETTY]
Long ago, Gaddafi forfeited the legitimacy of his rule, creating the political conditions for an appropriate revolutionary challenge.
Recently he has confirmed this assessment, referring to his own people as "rats and dogs" or "cockroaches", and employing the bloodthirsty and vengeful language of a demented tyrant.
Such a tragic imposition of political abuse on the Libyan experience is a painful reality that exists beyond any reasonable doubt, but does it validate a UN authorised military intervention carried out by a revived partnership of those old colonial partners – France and Britain – and their post-colonial American imperial overseer? I think not.
Let us begin with the unknowns and uncertainties.
There is no coherent political identity that can be confidently ascribed to the various anti-Gaddafi forces, loosely referred to as 'rebels'.
Just who are they, whom do they represent, and what are their political aspirations. It is worth observing that unlike the other regional events of 2011, the Libyan rising did not start as a popular movement of a spontaneous character, or a specific reaction to some incident as in Tunisia.
It seemed, although there is some ambiguity in the media reports, that the Libyan oppositional movement was violent from the start, and was more in the nature of a traditional insurrection against the established order than a popular revolution inspired by democratic values.
Such a political reaction to Gaddafi's regime seems fully justified as an expression of Libyan self-determination, and likely deserves encouragement from world public opinion.
By and large, the international community did not resort to interventionary threats and actions until the domestic tide turned in favour of Tripoli, which means that intervention was called upon to overcome the apparent growing likelihood that Gaddafi would reestablish order in his favour.
The main pretext given for the intervention was the vulnerability of Libyan civilians to the wrath of the Gaddafi regime.
But there was little evidence of such wrath beyond the regime's expected defence of the established order, although admittedly being here undertaken in a brutal manner, which itself is not unusual in such a situation.
How is this different than the tactics relied upon by the regimes in Yemen and Bahrain, and in the face of far less of a threat to the status quo, and even that taking the form of political resistance, not military action.
A difference in resistance
In Libya the opposition forces were relying almost from the outset on heavy weapons, while elsewhere in the region the people were in the streets in massive numbers, and mostly with no weapons, and in a few instances, with very primitive ones (stones, simple guns) that were used in retaliation for regime violence.
It may have been the case that the Libyan governmental response was predictably brutal and militarist, and that the rebel opposition felt that it had no choice.
But it should have been clear from the experiences in Iraq and Afghanistan that military intervention against a hated and brutal regime is not the end of the story, and before the ending is reached violence cascades to heights far beyond what would have likely resulted had there been no intervention producing heavy civilian casualties and massive displacements among the population.
In effect, overall historical trends vindicate trust in the dynamics of self-determination, even if short-term disasters may and do occur, and similarly underscores the problematic character of intervention, even given the purest of motivations, which rarely, if ever, exists in world politics.
But it can be asked, what about Rwanda and Bosnia (especially, the massacre at Srebrenica)? Are these not instances where humanitarian intervention should have been undertaken and was not? And didn't the NATO War in Kosovo demonstrate that humanitarian intervention does sometimes spare a vulnerable population from the ordeal of genocidal ethnic cleansing?
With respect to Rwanda and Bosnia, the threat of genocidal behaviour was clearly established, and could likely have been prevented by a relatively small-scale intervention, and should have been undertaken despite the uncertainties.
The facts surrounding the alleged genocidal threat in Kosovo remain contested, but there was a plausible basis for taking it seriously given what had happened a few years earlier in Bosnia.
But just as the Libyan rebels raise some suspicion by seeking Euro-American military intervention, so did the KLA in Kosovo engage in terrorist provocations that led to violent Serb responses, allegedly setting the stage in 1999 for NATO's "coalition of the willing".
NATO went ahead in Kosovo without the benefit of a Security Council mandate, as here, for military action "by all necessary means".
But with respect to Libya there is no firm evidence of a genocidal intention on Gaddafi's, no humanitarian catastrophe in the making, and not even clear indications of the extent of civilian casualties resulting from the fighting.
We should be asking why did Russia signal its intention to veto such authorisation in relation to Kosovo, but not with respect to Libya.
Perhaps, the Russian sense of identification with Serb interests goes a long way to explain its opportunistic pattern of standing in the way or standing aside when interventionary forces gather a head of steam.
Debating the use of force
One of the mysteries surrounding the Libyan intervention is why China and Russia expressed their opposition by abstaining rather than using their veto, why South Africa voted with the majority, and why Germany, India, and Brazil were content to abstain, yet seemed to express reservations sufficient to cast 'no' votes, depriving the interventionist of the nine affirmative votes that they needed to obtain authorisation.
Generally the veto is used promiscuously, as recently by the United States, to shield Israel from condemnation for their settlement policy, but here the veto could have prevented a non-defencive and destructive military action that at this stage seems imprudent and almost certain in the future to be regarded as a poor precedent.
The American debate on the use of force was more complex than usual, and cut across party lines.
Three positions are worth distinguishing: realists, moral interventionists, and moral and legal anti-interventionists.
The realists, who usually carry the day when military issues arise in foreign policy debates, on this occasion warned against the intervention, saying it was too uncertain in its effects and costs, that the US was already overstretched in its overseas commitments, and that there were few American strategic interests involved.
The moral interventionists, who were in control during the Bush II years, triumphantly reemerged in the company of hawkish Democrats such as Hilary Clinton and Joseph Biden, eventually prevailed in the debate, probably thanks to the push from London and Paris, the acquiescence of the Arab neighbours, and the loss of will on the part of Moscow and Beijing.
It is hard to find a war that Republicans do not endorse, especially if the enemy can be personalised and demonised as Gaddafi has been, and there is some oil in the ground!
The anti-interventionists, who doubt the current effectiveness of hard power tactics, especially under Western auspices, were outmanoeuvred, especially at the United Nations and in the sensationalist media that confused the Gaddafi horror show for no brainer/slam dunk reasoning as to the question of intervention, treating it as a question of 'how', rather than 'whether', again failing to fulfil their role in a democratic society by giving no attention to the anti-intervention viewpoint.
Finally, there arises the question of the UN authorisation.
Upholding the charter
The way international law is generally understood, there is no doubt that the Security Council vote, however questionable on political grounds, resolves the legal debate within the UN.
An earlier World Court decision, ironically involving Libya, concluded that even when the UN Security Council disregards relevant norms of international law, its decisions are binding and authoritative.
Here, the Security Council has reached a decision supportive of military intervention that is legal, but not legitimate, being neither politically prudent nor morally acceptable.
The states that abstained acted irresponsibly, or put differently, did not uphold either the spirit or letter of the Charter.
The Charter in Article 2(7) accepts the limitation on UN authority to intervene in matters "essentially within the domestic jurisdiction" of member states unless there is a genuine issue of international peace and security present, which there was not, even in the claim, which was supposedly motivated solely to protect the civilian population of Libya.
But such a claim was patently misleading and disingenuous as the obvious goals, as manifest from the scale and character of military actions taken, were minimally to protect the armed rebels from being defeated, and possibly destroyed, and maximally, to achieve a regime change resulting in a new governing leadership that was friendly to the West, including buying fully into its liberal economic geopolitical policy compass.
Using a slightly altered language, the UN Charter embedded a social contract with its membership that privileged the politics of self-determination and was heavily weighted against the politics of intervention.
Neither position is absolute, but what seems to have happened with respect to Libya is that intervention was privileged and self-determination cast aside.
It is an instance of normatively dubious practise trumping the legal/moral ethos of containing geopolitical discretion with binding rules governing the use of force and the duty of non-intervention.
We do not know yet what will happen in Libya, but we do know enough to oppose such a precedent that exhibits so many unfortunate characteristics.
It is time to restore the global social contract between territorial sovereign states and the organised international community, which not only corresponds with the outlawry of aggressive war but also reflect the movement of history in support of the soft power struggles of the non-Western peoples of the world.
Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).
He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.