Traditions of Belligerent Recognition: The Libyan Intervention in Historical and Theoretical Context

I. INTRODUCTIONWho governs Libya? As a practical matter, the answer to that question may remain a mystery for some time. As a legal matter, it became easier to answer on September 16, 2011, when the U.N. General Assembly approved a Libyan delegation presented by Mustafa Mohammed 'Abd al Jalil, President of the National Transitional Council (NTC). It was similarly easy to answer a year earlier when Col. Muammar Qadhaficontrolled the state as he had since 1969.1 Between February 15 and September 16, 2011, the answer was very much in dispute. Even when the United Nations Credentials Committee2 accepted the NTC as Libya's representative, seventeen states rejected that decision and fifteen states abstained.3 Seven months earlier, the NTC was virtually unknown. Even after it was formed, few understood its organization, leadership or intent, other than to overthrow Qadhafi.Indeed, on March 10, 2011, when France first recognized the NTC as the legitimate representative of the Libyan people, not only had it confused its allies, it had created a precarious legal situation for itself, the NTC, Libya in general as well as the U.N. Security Council. The purpose of this Article is to place the transition from Qadhafi led Libya to NTC led Libya within the wider theoretical and historical context of an important intersection of international law and international relations theory: how states manage civil wars so as to minimize the effect of conflict on international order.The Libyan civil war, which commenced with relatively peaceful protests on February 15, 2011, soon deteriorated into an armed confrontation between Libyan military forces controlled by the country's long time ruler, Muammar Qadhafi,4 and a combination of civilian dissidents and military defectors.5 After only eleven days, the United Nations Security Council unanimously adopted Resolution 1970 condemning the measures Qadhafideployed against the protesters and imposing sanctions on his regime.6 International lawyers generally agreed on the legitimacy, if not the wisdom, of the multilateral response coordinated by the U.N. Security Council, which asserted that the principal international concern with the Libyan civil war was international humanitarian law, primarily the protection of civilians. Through a second resolution, the U.N. Security Council authorized states and regional organizations to enforce that mandate militarily.7The international response appeared to be specific, well supported, and unified behind international humanitarian law enforced by the Security Council. Then, on March 10, 2011, France announced that it would recognize the opposition forces based in Libya's eastern city of Benghazi as the lone legitimate representative of the Libyan people,8 even though the rebels did not control all of the state. International lawyers noted the legal problems that recognition raised including treaty obligations, populations for which the opposition may or may not be responsible to say nothing of the cohesiveness or even identity of the "new" Libyan government.9 The Dutch prime minister called the recognition "crazy."10 Yet Italy, Qatar, the United States, the United Kingdom, and others followed, recognizing the Benghazi based opposition, entering into contracts with the new regime including but not limited to agreements for the use of frozen Libyan assets and exploitation of petroleum resources no longer under Qadhafi's control.11This Article argues that, far from "crazy," these states' decisions to recognize the opposition were largely consistent with historical patterns in the recognition of civil war and how it will be managed by third party states. While states might extend equal rights to the parties to a civil war before ultimately recognizing a victorious authority, they are just as likely to abruptly switch recognition or otherwise categorize the conflict in a way that advances their interests.12While some international lawyers attempted to synthesize state practice over the nineteenth and early twentieth century into rules that governed third party state responses, these rules provided no normative guidance; "even those norms which [were] clearly identifiable [were] frequently breached. …