October 21, 2011

Professor Jason Ralph (University of Leeds)
interviewed by
Dr Jack Holland (University of Surrey)

On the 9^th of November, Professor Jason Ralph will visit the School of Politics and the Centre for International Intervention at Surrey to deliver a lecture on: International law, liberal interventionism and centre-left British foreign policies after Iraq.  In light of the recent death of Muammar Gaddafi in Libya, Cii decided to interview Professor Ralph to gain some insights on events from the perspective of international law.  As well as international law, Professor Ralph has research interests in international society, American foreign policy, human rights and the war on terror.  He is the author of two previous books: Defending the Society of States and Beyond the Security Dilemma, as well as the forthcoming Law, War and the State of the American Exception with Oxford University Press. Professor Ralph is also a regular commentator on current affairs and has previously written on the death of Osama bin Laden on his blog: http://theamericanexception.wordpress.com/

“Jason, how similar are the deaths of Osama bin Laden and Muammar Gaddafi?”

I think we have to preface all this by saying we don’t know the exact details of both cases, but it seems to me there are some obvious differences that warrant comment. First Gaddafi’s death took place in the context of an ongoing non-international armed conflict, which has all the hallmarks of an civil war regulated by Common article 3 of the Geneva Conventions.  (I know there’s international involvement but there’s grounds for saying this is a traditional civil war).  And in this sense it was to be expected and accepted that Gaddafi’s enemies would target him with lethal force.  There is a longstanding debate, however, on whether the US can, in any legal sense, be at war with a transnational network of terrorists.  Those that argue it cannot tend to argue that the targeting of OBL was unlawful because he was not in any sense an enemy combatant. The US therefore had an obligation to try to arrest him.

“How legal or illegal are both deaths? Does it matter if ‘local forces’ kill an enemy, or if it’s carried out by American/coalition troops? Does the NATO role in the killing (French airstrikes on vehicles carrying his closest and final supporters) equate to complicity or equal ‘guilt’ in Gaddafi’s death?”

Lots there, and I’m not a criminal lawyer.  But it seems to me that the issue of ‘local forces’ is legally irrelevant, even though it clearly is politically crucial.  If I’m right that this is a state of armed conflict covered by the Geneva Conventions then neither local nor international forces can kill an enemy prisoner of war.  The footage I saw on the BBC suggested Gaddafi was alive and in custody and a threat to no one.  He was a prisoner of war and a wanted war criminal.  I would have expected British, French, US, NATO, forces to have fulfilled their humanitarian obligations under the Geneva Conventions, which meant tending to Gaddafi’s wounds and then delivering him to justice before a Court.  There is an apologist view out there, (see Peter Popham in today’s Independent) which says, well you didn’t have to put up with Gaddafi, it is understandable if the rebels fighters executed Gaddafi.  Understandable? maybe.  Excusable? Not if they’re fighting for human rights and democracy.  I don’t know the exact facts of the case (we need the investigation that the UN has called for) but it seems to me the airstrikes were part of combat.  It’s the fact that Gaddafi was captured alive, was hors de combat, and in NTC custody when he died that is problematic.

“Why do you think the general public (in the UK at least) have been slower to condemn Gaddafi’s killing than they were Osama bin Laden’s? There’s no sign of Martin Luther King quotes going viral this time… Is it because Libyans are perceived to have killed Gaddafi? Or is it because of David Cameron’s argument that Gaddafi is guilty of murder in the UK?”

Possibly all these. I don’t really know. I think it relates to the point I make above, which is that Gaddafi’s death is not unexpected because there’s a clear case of armed conflict in Libya and people, including leaders, die in war.  That was not the case in Abbatobad and so people may wonder more why OBL wasn’t arrested.  That does not escape the fact that law preventing the execution of prisoners still applies in wartime and we must remember that, regardless of what we think about the person who has been captured.

“While there are obvious differences between the two killings (e.g. the location of Bin Laden’s death and the unilateral nature of the American’s decision), my concern is that the Libyan model will be read as the correct application of the original ‘Afghan model’: indigenous forces, supported by overwhelming air power (and Special Forces), killing their hated leader. In short, I’m concerned about the impact of framing Gaddafi’s demise as ‘a good death’.  Is this a concern that you share?”

I think you’re right Jack and that’s why I was disappointed in the Prime Minister’s reaction. I thought Obama was a little more measured.  There’s a couple of moves you make in this comment.  The first is independent of the way Gaddafi died, and that is to suggest the Libyan operation a model for future liberal interventions.  I think there’s a realism at work which is guarding against this.  David Miliband spoke at Leeds yesterday and separated Libya from Syria on realist grounds; and Rory Stewart is a constant advocate of a prudent, case-by-case approach.  But even if you accept Libya was a good war, (and this is the second move) you could still disagree that Gaddafi’s demise was ‘a good death’.  There’s a jus ad bellum and a jus in bello distinction here and the two need not (I’d argue must not) be conflated.  In my opinion Cameron would have looked much more statesmanlike if he had been more measured in his comments, remained silent, or backed the UN’s call for an investigation.