Where is the International Law Criticism of the Libya Intervention?
Eric Posner points out the NATO intervention into Libya appeared to violate numerous norms of international law (and maybe domestic U.S law as well). He suggests that it is further evidence that legal norms don’t really matter much for international military actions.
But if the Libya intervention turns out to be a political and moral victory, it also illustrates once again the motto, inter arma silent leges — in times of war, the law falls mute. Both international and U.S. law took a drubbing alongside Qaddafi’s ragtag army, casting further doubt upon the already tenuous notion that international military actions can be conducted on a legal basis.
Posner makes a number of great points that I had been wondering about myself. For instance, I am struck by the utter silence from the leading U.S. international law commentators on the legality of the Libya intervention under the U.N. Charter. After all the grousing about the U.S. interpretation of its authority under prior U.N. Security Council Resolutions to invade Iraq (see this exchange Chris and I had back in 2005 about Iraq), there is nary a peep in the U.S. international law academy about NATO’s rather creative interpretation of its Security Council mandate.
4. 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, to take 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, ….
Uh…did NATO really stick to this mandate? There are reports that a U.S. drone strike was made on Qaddafi’s convoy shortly before his eventual capture and killing. Why exactly was his death necessary to “protect civilians and civilian populated areas under threat of attack.”? It is hard to see how this mandate was obeyed, without the type of interpretive stretching that most international law scholars typically condemn. I would be interested to hear from any folks who have offered a legal defense of the NATO campaign in Libya under the U.N. Charter.