Can the Coalition Lawfully Target Gaddafi?

by Kenneth Anderson

Can the coalition forces using force in Libya under the Security Council’s authorizing resolution lawfully target Gaddafi personally?  This question has provoked some heated back and forth among political leadership of several coalition countries, including the US and the UK:

Yesterday a war of words erupted between the U.S. and Britain after the U.K. government claimed Muammar Gaddafi is a legitimate target for assassination. U.K. government officials said killing the Libyan leader would be legal if it prevented civilian deaths as laid out in a U.N. resolution. But U.S. defence secretary Robert Gates hit back at the suggestion, saying it would be ‘unwise’ to target the Libyan leader adding cryptically that the bombing campaign should stick to the ‘U.N. mandate’.

Here is my very quick take.  The international law questions are two; followed by a US domestic law question (and not the Constitutional law, separation of powers question being hotly debated):

First, under the laws of war generally, would targeting Gadaffi personally be lawful?  Quick answer: Yes. As commander of Libya’s armed forces (which might be the case whether he is a civilian or a military officer), as a matter of status as well as operational fact, Gaddafi is a lawful target.  There are many difficult questions of when it is lawful to target a person — status, participation in hostilities, etc.  Some of them involve hard questions of interpretation of law; others include hard questions of what is the proper, or most plausible, understanding of the law itself.  But it is not necessary to jump into those issues to find that Gaddafi can be targeted; his does not appear to be a hard case.

Second, under the terms of the Security Council’s authorizing resolution to use force, is it lawful  to target Gaddafi personally?  Quick answer: Yes. The text of Security Resolution 1973 (2011) reads with reference to protection of civilians (and repeats the same language with reference to the no-fly zone), and under the mandatory authority of the Council under Chapter VII:

Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, totake all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi … (emphasis added).

The resolution thus protects a category of persons, “civilians,” and a geographical status, “civilian populated areas that are under threat of attack.”  It does so by permitting “all necessary measures.”  Does this permit the targeting of the political and military leadership at the top that is attacking or threatening to attack civilians or civilian areas?  “Necessary” could be read here as a term of limitation, but it is joined to “all,” which effectively runs the other way (it does not say “only,” for example).  Additionally, however, “necessary” itself can also be read as a term of authorization — viz., the Council has issued not merely an invitation, but a mandate, to end the attacks and threats of attacks.  In that sense, “necessary” can be understood plausibly as an instruction to accomplish the mandate by the means necessary.

Each of these is a plausible reading, and indeed each contains an element of what seems to be intended by the resolution, limitation and expansion.  On that basis, then, it seems quite plausible to read the language permissibly to undertake whatever the coalition military authorities conclude is prudentially required, all other legal issues being equal, to end the attacks and threats of attacks.  The permissive notion of “necessary” here carries an element of the prudential aspects of “military necessity,” conceptually though not in a strictly legal sense.  As in the first, general laws of war question, above, it is easy to make a case that the most efficient route for ending the current regime’s ability to attack civilians is to end the regime’s current leader.  It is equally easy to make that case for ending the regime’s ability to threaten civilians, whether immediately or into the future.  Indeed, one might well argue that at this juncture, it is the only way; that conclusion is not foreclosed by the text of the resolution.

Third, as a matter of US domestic law and regulation, would US forces targeting Gaddafi personally constitute a violation of the US executive order that prohibits “assassinations”?  Quick answer:  No. The executive order — revisable by a new order by the President, and not a statute — does not define assassination and has remained controversial as to its scope.  State Department Legal Advisor Harold Koh, as well as his predecessor from the time it was promulgated, Abraham Sofaer, have each given authoritative statements as to how the executive branch sees the executive order, and its meaning is highly restrictive in their interpretations.

However, it is not necessary to enter those discussions in this case.  No one in any position of authority, so far as I am aware, has ever suggested that the ban would apply to a person otherwise lawfully targetable in an international armed conflict under the laws of war.  Irrespective of the conflict’s status for Constitutional purposes, it is an interstate, international armed conflict for purposes, governed by that body of law’s rules on targeting.  If the analysis of the first question is correct, Gaddafi is a lawful target; no authority of which I am aware has ever argued that in the midst of an armed conflict, the targeting of a lawful target would violation the assassination ban.

[Thanks for the correction on my question two, commenters!]

Update:  I see that Dapo Akande has weighed in with an analysis well worth reading over at EJILTalk!

http://opiniojuris.org/2011/03/23/can-the-coalition-lawfully-target-gaddafi/

9 Responses

  1. Yes he can be targeted under the SC.  I do not read Gates as saying anything more than it would be unwise and understand the debate.  I imagine the typical necessity and proportionality rules apply.  In addition, I believe Gates is seeing far beyond the legalities to the complicating dimensions of such a targeting at this time when the rebels appear not to be crysallized as a sufficiently effective group to take over the county (at least for everyone except France). He is dealing with the whole Iraq situation for a number of years here and I respect his prudence.
    Best,
    Ben

  2. Ken,

    With regard to point two, don’t you mean that killing Gaddafi is lawful, not unlawful?

  3. Yes, thanks Kevin! Corrected in original. Let me add that, like Ben, I am not offering a view on the prudence of any of that in this post.

  4. No only is the targeting of a Head of State (or for that matter) any individual in a civil war illegal under international law, likely the use of force is illegal in Libya. This, of course, includes he significant civilian casualties being widely reported in the Arab press (Western press, such as the BBC, have sometimes intentionally misreported the extent of civilian casualties…having been to Libya recently In know this first hand and from eyewitnesses).

    In any event, the UNSC is bound by the UNC and articles 24 and 25 effectively prohibit the UNSC from acting contrary to the UNC or if it does the Member States are not bound to honour its decisions. If the do, they risk their own State responsibility.

    State responsibility under general international law, international humanitarian law, and international human rights law is not erased by a UNSC resolution (especially one that is contrary to the the purposes and principles of the Charter).

    The killing of civilian persons by the use of force in violation of general international law is prima facie a violation of the human right to life and the prohibition of the willful killings (a grave breach) according international humanitarian law.

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    Prof Anderson,
     
    In terms of the executive order on assassinations and the authority to target under the UNSC resolution – I agree completely with your analysis, but – you mention that “under the laws of war generally” the US may lawfully target Gadaffi…

    I believe that we are indeed, technically at war with Gadaffi, but:

    1) the President has fiercely contended that we are not at war with Libya: http://www.politico.com/news/stories/0311/51767.html ; and

    2) Congress has not declared war on Libya; and

    3) the President does not have authority to wage war on Libya for any period of time under the War Powers Resolution (no declaration of war, no statute, and no national emergency created by an attack by Libya http://www.law.cornell.edu/uscode/50/usc_sec_50_00001541—-000-.html )

    - thus, because the President is acting unlawfully (under domestic law) by attacking Libya, perhaps the general “laws of war” (and the Constitution) do not authorize such action? I.e., since the kinetic military actions/war against Libya is unlawful under US law, wouldn’t it follow that any actions undertaken in furtherance of the illegal war are also unlawful?

  6. Apologies for the odd formatting and code in my post! Dragged it from MS Word and it looked normal in the comment box.

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