Obama’s missteps on Libya cement Gaddafi’s advantage

In diplomacy, as in medicine, the cardinal principle in any crisis is to first do no harm. The Obama administration’s approach to Libya has violated this principle in at least two respects. Having made matters worse for Libya’s democratic opposition, the administration now must be willing to reverse the damage it has done.

First, there’s the arms embargo, imposed by the U.N. Security Council with strong U.S. support two weeks ago. Initially advertised as a measure that would weaken the Gaddafi regime by preventing it from acquiring additional weapons, the State Department this week revealed its view that the U.N. embargo also makes it illegal to provide defensive arms to the opposition.

An evenhanded arms embargo might make sense if the Libyan conflict were between two equally armed sides and we were indifferent to which side won. But the Gaddafi regime is infinitely better-armed than the rag-tag opposition that, having freed half the country, now faces a withering counterattack from the regime’s artillery and combat aircraft. The Obama administration professes to want the opposition to prevail, but by prohibiting arms transfers to both sides, it has almost guaranteed that Moammar Gaddafi will win a drawn-out conflict.

It is as if the administration learned nothing from the U.N. experience in the Balkans two decades ago. Serbian President Slobodan Milosevic was determined to dominate and ethnically cleanse much of Bosnia and Croatia. In 1991, the United Nations tried to tamp down the conflict by imposing an arms embargo on all of the former Yugoslavia. Because Milosevic’s army had inherited most of the Yugoslav military arsenal, he was able to crush the lightly armed Bosnians and Croats. Far from penalizing Milosevic, the U.N. arms embargo perpetuated the vulnerability of his victims.

Tens of thousands died as Serbian forces advanced unimpeded. The Muslim population of Bosnia was particularly victimized, leading Muslims the world over to view the West as complicit in Milosevic’s ethnic cleansing. It took the massacre of 8,000 Muslim civilians at Srebrenica in July 1995 to finally bring about the end of the arms embargo. And it was not the Clinton administration nor the United Nations that forced the issue but, rather, Congress, which in August 1995 approved legislation by veto-proof margins to compel the United States to disregard the embargo.

We can only hope that this new U.N. arms embargo does not come to be seen as the policy that guaranteed Gaddafi’s survival and led to another Srebrenica for Libya’s democratic opposition.

The second Obama administration misstep was its support for the U.N. decision to give the International Criminal Court (ICC) jurisdiction to prosecute Gaddafi and his lieutenants for war crimes. The administration did this to send a powerful message to the Gaddafi regime, but the signal sent was not the one intended.

The democratic revolutions in Tunisia and Egypt ended with the former rulers giving up power and, respectively, heading into foreign exile and internal exile. Once these rulers stepped down, violence subsided, and both societies are now trying to build democracy. The real message to Gaddafi of the ICC referral is that Libya will not be afforded this option. Instead, he and his lieutenants are left with just two choices: surrender to international justice or fight it out in Tripoli. Clearly they have no interest in surrendering, so Libya is now locked into a civil war that will rage until one side wins.

Hopes continue to be expressed that a negotiated exit for Gaddafi can be worked out. Such an exit would probably require Gaddafi to believe that he will be allowed to peacefully retire. Anyone who suggests this is still possible does not understand the design of the ICC. Under the court’s charter, once the Security Council activates the court’s jurisdiction, the council is powerless to permanently turn it off. At most, that charter permits the Security Council to grant a one-year “deferral of investigation or prosecution.”

Such deferrals can be renewed annually. But how likely is Gaddafi to believe that a majority of the U.N. Security Council (including all five permanent members) is going to vote once a year for the rest of his life to defer his prosecution for yet another year?

Essentially, what the United Nations has done in Libya is deny Gaddafi any attractive alternative to fighting to the death with his opposition, while locking in Gaddafi’s overwhelming military advantage in that fight.

To get itself on the right side of history, the Obama administration needs to immediately correct these mistakes. If the administration can’t find a way to exempt the Libyan opposition from the U.N. arms embargo, it should offer the opposition other forms of assistance, such as humanitarian aid, a no-fly zone and intelligence support. And if it wants Gaddafi to yield power peacefully, it needs to explore options for the Security Council to trump provisions of the ICC charter that make negotiated solutions in cases like this virtually impossible.

By Stephen Rademaker, an assistant secretary of state from 2002 to 2006.

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