Is diplomacy in Libya delusional?

By Douglas W. KmiecSeptember 1, 2011

How much more death and destruction of Libyans is necessary to protect Libyans?

The rebel forces in Libya — which have yet to be recognized formally and fully by the United States as a new government or as even having control of the nation’s territory — have spurned Moammar Gadhafi‘s request to negotiate a handover of power, calling it “delusional.” Meanwhile, the violence worsens with widespread reports of retaliation killings of rebel detainees by Gadhafi forces and rebel shootings of most anyone with a dark skin on the supposition that the person must be a Gadhafi-hired mercenary. Of course, it is just as likely that the person is simply an irregular migrant from Ethiopia or Somalia or Eritrea who is just trying like hell to get out of the Tripoli firefight.

For now, the NATO bombing operations is indispensable to the ultimate military success of the rebels in Tripoli or elsewhere in the country. Despite the rebel turn-down, is there a diplomatic way out of this messy business?

My diplomatic life is a limited one, but having spent the last several years as the U.S. ambassador to the Republic of Malta, the closest European nation to Libya, I know the Libyan people to be generous of heart and ever hopeful for the peace and security desired by us all.

Gadhafi’s violent response to the call for political reform was and is unconscionable. Gadhafi’s actions necessitated the closing of the U.S. Embassy in Tripoli and the need for my embassy to rescue and evacuate the staff and several hundred other foreign nationals. Since the fighting began, several hundred thousand people have been airlifted to safety in neighboring Tunisia or Egypt.

Gadhafi’s perceived instability, and it may be pretextual — together with France’s unusually rapid decision to back the rebels even before they were fully identified (and they may not be yet) — meant that a “no-fly” zone with supporting military power became the chosen means to end Gadhafi’s senseless repression.

Only at the last minute after the no-fly zone was becoming reality did Gadhafi and his supporters try to negotiate. I know because, as a constitutionally neutral nation, Malta was frequently the recipient of these feelers. Each one, and there were a half-dozen or so, was swatted aside by the world community, including the U.S.

Apparently, Gadhafi had suckered the world once too often — whether it be his role in the Lockerbie bombing or the bogus health release and insulting hero’s welcome of Abdel Baset al-Megrahi, who had been convicted of the 1988 destruction of the Pan Am aircraft killing 270, mostly Americans. Gadhafi had zero credibility to ask for another diplomatic go at it.

The sides hardened, but that was then.

Should NATO press to have the negotiation window reopened? Pope Benedict XVI thinks so, making the reasoned and reasonable case that no one actually “wins” at war. Violence is always a defeat.

So let’s deal with the situation as it exists: Gadhafi remains in power with underlying tribal support, but far more tenuously than he likely anticipated with his usual bluster and bravado; from our side, the Transitional National Council, Libya’s interim anti-Gadhafi government, has shown itself to be a mixed bag of rebel competencies and opposing tribes, with wild-card rumors of outside terror factions, which in these heightened times of instability can be counted on to sniff around the edges of tumult, especially in the Middle East. Thus far the bombing has assiduously avoided any serious damage to Libya’s most bankable asset: its oil operations.

What would be the outlines of a deal? Gadhafi steps aside and is allowed his “hand-off” either by joining wife and children in Algeria, or staying in-country on payment of substantial reparations for his death squad treatment of his political opposition and a promise that he and his immediate family members stay out of politics. The reparations ought not to be difficult for a man who extorted billions from the oil, hotel and retail establishments in his country for the last four decades. The second part — keeping out of his country’s political future — is more difficult to enforce, and might be near impossible, except for matters of international criminal justice. No prosecution for now, but violate the no-political interference pledge, and the hammer drops — not just for current crimes, but all of it, Lockerbie bombing and all.

Admittedly, it may still turn the global stomach to even contemplate expending diplomatic effort. Nevertheless, if our goal is a democratic or at least less repressed Libya, we likely need to find a way to save a good portion of the country from its unnecessary destruction.

And who would govern? As President Barack Obama and Secretary of State Hillary Clinton have said many times: That is for the Libyan people to decide. It is, even if a newly formed government includes some who today remain loyal to Gadhafi. This is what usually happens after armed conflict: Opposing sides, with proper pledges of integrity, become a single body politic. A diplomatic conclusion could make that possible — sooner rather than later.

Douglas W. Kmiec, a former U.S. ambassador to Malta, is a professor of constitutional law at Pepperdine University School of Law. A version of this piece appeared online at the National Catholic Reporter.

Copyright © 2011, Chicago Tribune

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