Oil, Accountability and Stability in Post-Qadhafi Libya

Posted By Professor Sam Halabi, University of Tulsa College of Law, Nov 26, 2011

            On Sunday, October 23, 2011, in an autopsy performed in the presence of Libyan officials, Dr. Othman el-Zentani confirmed that long-time Libyan leader Muammar Qadhafi had died as a result of a gunshot wound to the head. Qadhafi’s death provided a conclusive end to the civil war that commenced on February 15, 2011 with relatively peaceful protests in the eastern city of Benghazi but quickly escalated with a disproportionate government response and subsequent military intervention authorized by the U.N. Security Council. From the perspective of international law, the episode featured both a uniquely well-administered and organized multilateral response and a more predictable state-level response that nevertheless raised certain contradictions with the multilateral mission.  These contradictions now threaten three interrelated decisions any new government in Libya must face: (1) accountability for atrocities committed; (2) balance in the composition and stability of the new government; and (3) the location of Libya’s oil administration.

            The U.N. Security Council acted with unusual swiftness and consensus with Resolution 1970 in order to hold Libyan civilian and military authorities accountable for their disproportionate response to the initial protests. Resolution 1970 condemned the heavy-handed government response to the legitimate demonstrations in Benghazi; authorized sanctions on Qadhafi and other key administration officials; established the distinction between civilian and combatant as the touchstone for international action; and, for the first time, unanimously referred such a situation to the International Criminal Court (ICC). 

            After U.N. Security Council Resolution 1970, but before adoption of Security Council Resolution 1973, which authorized military intervention, France, to the surprise not only of its allies but also to some of its own higher-ranking diplomats, recognized the opposition in the eastern Libyan city of Benghazi as the legitimate representative of the Libyan people.  Several states followed France’s lead.  As I argue more thoroughly in a forthcoming article (Traditions of Belligerent Recognition: the Libyan Intervention in Historical and Theoretical Context, 27 Am. U. Int’l L. Rev. (forthcoming 2012)), foreign recognition of one competing side to a civil war or the other is neither historically anomalous—nor, under most circumstances—illegal.  In this case, however, former regime participants comprised a significant portion of the then-hardly organized or transparent National Transitional Council.  Credible human rights groups like Amnesty International and Human Rights Watch have documented potential war crimes committed not only by now-overthrown loyalists but also by opposition forces as well.  The U.N. Security Council Resolutions specified the protection of all Libyan civilians as the objective of international action; it will now be more difficult for those who perpetrated crimes on behalf of the Benghazi government to be held accountable.

            We should worry about atrocities committed in the Libyan civil war – whether by loyalist or opposition forces – not only for sake of consistency with U.N. Security Council Resolutions but also for international human rights law.  The leadership based in Benghazi reflects certain geographical and tribal influences, the careful balancing of which will be critical to legitimacy and stability in any new regime.  Libya’s oil extraction facilities and transportation infrastructure, for example, are largely anchored in the eastern part of the country; Qadhafi administered those resources from Tripoli after his 1968 coup d’etat.  The new government is now vacillating between leaving the oil administration in Tripoli and transferring all or part of it to Benghazi.  There are additional economic and political considerations that the new leaders must balance between the overlapping geographic and tribal centers of influence in the country.  Indeed, there are already confirmed reports that rival militias are now engaged in active hostilities.  Bringing all parties who have committed war crimes to account will add an important element of fairness to the national experience, the crystallization of which will play an important role in the post-Qadhafi Libya envisioned by U.N. Security Council Resolutions 1970 and 1973.