Michael Mandel is Professor of Law at Osgoode Hall Law School, York University, Toronto. Amongst his published works is How America Gets Away With Murder: Illegal Wars, Collateral Damage And Crimes Against Humanity (Pluto Press, 2004). In this exchange with Thomas Kollmann he discusses legal and moral aspects of the intervention in Libya.

Is the imposition of a no-fly zone over Libya and the subsequent military intervention and its Western allies legal, and is it an act of war?

In international law terms it’s both legal and an act of war. It’s legal because it has been explicitly authorized by the Security Council of the United Nations, whose decisions, by agreement of all the member states of the UN are binding on all members. The Charter of the United Nations bans war except in self-defense or when authorized by the Security Council as “necessary to maintain or restore international peace and security.” One can disagree with this characterization, as did the five dissenting members, but there is no body capable of reviewing the decisions of the Security Council and that’s a good thing in my view.

The no-fly zone is actually a secondary aspect of the Resolution 1973, which authorizes “all necessary means” not only to protect civilians but also “civilian populated areas.” The only check provided in the resolution is that attacking states have to be “acting in cooperation with the Secretary-General.” The effectiveness of this check depends on the independence and backbone of the Secretary-General. Boutros Boutros-Ghali stood up to the United States over Bosnia and was denied a second term by them for it. Ban Ki-moon has not given any indication that he is made of the same stuff as Boutros-Ghali.

In American domestic law terms, a completely separate matter and one without any significance for international law, the question is whether the President has complied with the Congressional consultation requirements of the War Powers Resolution of 1973. It seems to me that President Obama has complied, in that he informed Congress of his actions and their rationale.

Why do you feel it is a good thing that there is no body to review Security Council decisions?

This is a complicated question. I guess, what I am really against is the notion that the Security Council’s authorization or lack of authorization of an armed intervention can be legally disregarded by a state or body that disagrees with it. It’s hard to think of an existing body concerned with these questions that has more democratic credentials than the Security Council, 10 of the 15 members of which are elected by the General Assembly which represents virtually all of the independent countries in the world. Perhaps the General Assembly itself, but it doesn’t purport to question the legality of decisions of the Security Council. I’m more worried about individual states, such as the United States in Kosovo and Iraq, saying it doesn’t matter what the Security Council says because their lawyers tell them otherwise. Hence, I think it best to regard the Security Council as having the last word on legality. That doesn’t mean you can’t oppose its decisions, just not on legal grounds. And if you are a state, you are bound by the Charter of the United Nations to comply. There is an important presumption against war in the Charter. It takes a 9/15 majority of the Security Council to authorize it, with no permanent member exercising a veto. I think that is a valuable safeguard and I wouldn’t want to call it into question just because I disagree in any given case.

Does international law override the relevant domestic laws in this case?

This is also complicated. Generally speaking domestic law prevails in domestic courts and international law prevails in international courts. If Gheddafi or Sarkozy or Obama were ever to be hauled before an international court, their domestic law would not avail them.

With respect to international law, in what ways does this intervention differ from those carried out in Afghanistan and Iraq?

The intervention in Afghanistan, despite protestations to the contrary, was not authorized by the Security Council, whose relevant resolutions did not even mention Afghanistan let alone authorize “all necessary means.” That was because the United States didn’t want authorization. They wanted to use a broad and legally baseless notion of preventive self-defense, the so–called “Bush doctrine,” which they panned to deploy against all their adversaries. Their “hit list,” shown to General Wesley Clark in November 2001, included not only Afghanistan, but Iraq, Iran, Sudan, Lebanon, Syria and Libya. With respect to the attack on Iraq, the common consensus is that there was no authorization from the relevant Security Council Resolutions. This made both the attacks on Afghanistan and Iraq the “supreme international crime” of aggression.

What realistic measures could the UN Security Council take to prevent the civil war from deepening in Libya?

Whatever they might be, this isn’t one of them. It is meant to take sides in a civil war on the far weaker side and is therefore itself likely to deepen the conflict. If Iraq and Afghanistan are any guide, even the defeat of the pro-Ghaddafi forces would be more likely than not to prolong the conflict by many years and to require a massive infusion of foreign forces. Peace seems not to have been a concern of the American and European interventionists as the dissenting members of the Security Council (5 out of 15) complained when they asked why political solutions had not even been pursued.

Is there any indication in commentary about this intervention and about intervention in the Middle East recently of a change in the attitudes towards ‘humanitarian intervention’?

That would clearly be the case if this were a unilateral humanitarian intervention, that is one not authorized by the Security Council, such as the war against Yugoslavia in 1999 over Kosovo. The Kosovo war was meant to establish a precedent but failed, because it was not accepted by the vast majority of states. But as this attack on Libya was authorized by the Security Council it doesn’t really break new legal ground. On the other hand, practically speaking, the apparent cowing of opponents on the Security Council, including the Permanent Members Russia and China who have a veto and were prepared to exercise it in prior wars, suggests that the practical limits to this kind of adventure may indeed be weakening.

Do you see any promising developments for curbing illegal behaviour by powerful states and state actors and making international law more effective?

Frankly, no. If this resolution would have been vetoed, I would have said yes, because I agree with the dissenting members on the Security Council that the case had not been made that this attack was “necessary to maintain or restore international peace and security” as the UN Charter requires. Furthermore, the fact that the United States and the United Kingdom and their accomplices in NATO were never sanctioned for their “supreme international criminality” in Kosovo, Afghanistan and Iraq, where hundreds of thousands of civilians were in effect murdered (illegally killed), is not promising. Nor is the fact that all of the institutions set up to prosecute illegal behaviour, the Yugoslavia and Rwanda tribunals as well as the International Criminal Court have turned out to be the lap-dogs of the West.

Thomas Kollmann is an independent journalist based in London.