The International Criminal Court is a virtually untested institution. It has conducted a handful of trials over its ten-year existence; only one of them, that of former Congolese rebel leader Thomas Lubanga, is even close to completion. The ICC was supposed to replace the ad hoc tribunals that had been used for Rwanda and Yugoslavia, which were chiefly famous for the expense and length of their trials, and hence their very limited achievements in terms of international justice. For international lawyers and human rights advocates, the delays and ambiguity are a small price to pay for the catharsis of an international criminal conviction that would vindicate international law. For advocates, every international criminal trial is supposed to regularize and promote international law, so each trial helps establish a new international legal order. In pursuit of this utopian goal, advocates disregard the needs of the people they purport to help, which are put to the side for the sake of an imaginary future in which international law finally prevails over power.
What were these needs in Libya? It must have been obvious to Libyans that an endless international trial in a faraway country -- the Netherlands -- would not serve their immediate political needs, to say nothing of their sense of justice, which required death. (The ICC is not permitted to impose the death penalty since many countries -- including its main sponsors -- regard the death penalty as contrary to international law.)
A trial would have been pointless as well. In the real world, trials are designed to establish the truth; but who doubts that Qaddafi terrorized his people, and had to be removed from the scene if Libya was to move forward? The facts of his reign are not in dispute, but are also, in a way, irrelevant because no one wanted him to retain power. A grandstanding Qaddafi at trial over a course of years could hardly have contributed to political stability in Libya. Indeed, a Qaddafi who remained alive even for a short time after his capture may well have been a threat to stability. If the Libyan rebels executed Qaddafi to avoid this outcome, it was surely a sensible thing to do, whatever international law might require.
The irregularity of the Libya intervention from the standpoint of international law has a domestic counterpart: the illegality of U.S. military participation under U.S. law. Obama sent U.S. troops to war without congressional authorization and in violation of the War Powers Resolution, which requires the president to withdraw troops from "hostilities" if he does not secure congressional consent within 60 days of the start of hostilities. In June, the Justice Department advised Obama that he would have to withdraw American forces under the War Powers Resolution, but Obama disregarded this advice, relying instead on tendentious advice from elsewhere in the government that the bombing campaign in Libya, which ultimately involved more than 7,000 sorties involving U.S. aircraft, did not count as "hostilities," and thus did not trigger the resolution. A better explanation is that the War Powers Resolution is a dead letter. President Bill Clinton violated it as well in 1999 when Congress refused to authorize the intervention in Serbia -- and generally speaking presidents have given it only lip service since its enactment in 1973.
Both domestically and internationally, then, the dogs of war have escaped the well-meaning efforts to subject them to legal frameworks. When unpopular wars fall afoul of the law, policymakers and advocates believe themselves justified in redoubling their efforts to build up the law, so as to prevent a recurrence. A "good war" that runs afoul of the law, however, presents more significant obstacles, for it suggests that lawmakers are incapable of setting out rules that sensibly authorize the use of military force when it is warranted and restrain its use when it is not.
It is possible, indeed likely, that if countries had complied with international law, and the U.S. government had complied with domestic law, Qaddafi would still be in power, while thousands of Libyan civilians would be in torture chambers or graves. A similar conundrum confronted governments in the 1999 Serbia war, leading an international commission to declare that the war was "illegal but legitimate" -- a near contradiction which comes close to saying that governments should disregard law when they have, or think they have, legitimate moral or political aims. But given that governments always believe that their aims are legitimate, what force can law possibly have when it comes to arms?
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