Where is the International Law Criticism of the Libya Intervention?

by Julian Ku

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.


20 Responses

  1. Killing the commander-in-chief of the Libyan armed forces wasn’t related to protecting civilians from the Libyan armed forces?  Really?  Were the international forces supposed to only kill foot-soldiers?  Use beanbag guns?

    The idea that Eric Posner cares a whit for the integrity of international law is comical. Normally the Posners of the world attack international law for being too soft and human rights-y.  Now it’s suddenly too tough and violent.  Some people are never satisfied…

  2. Western leaders declared “victory” after the death of Qaddafi. It is clear to me that NATO’s mission was to kill the guy, rather than to protect anyone.

    Posner is not hypocritical, at least. Most of you “international lawyers” remind me of  Plato and his allegory of the cave… you only see shodows. International law does not work for palestinians, syrians, yemenis…

    oh, I almost forgot,  the mess in Lybia after Qaddafi…. I guess you’ll get a chance to write law review articles about..eh… shodows. Yep, some people are never satisfied.

  3. Another lesson for the future: Do not surrender your nuclear weapons.

  4. Yep, it’s definitely international law’s fault that China and Russia and the U.S. can veto the international community’s attempts to address problems like Palestine and Syria…

  5. I’m sure there are some cogent arguments to be made about the Libya intervention but I don’t see much here. Posner’s arguments come down to:

    1. an ‘original intent’ interpretation of the grounds for a Chapter 7 resolution by the UNSC which was overtaken by events long before R2P

    2. a criticism of selective application of R2P that is hardly a novel issue raised by Libya and Syria (Darfur anybody?)

    3. a criticism of NATO for interpreting the resolution in the manner that everyone tacitly expected them to (resulting in a legality-legitimacy tension far more limited than in the case of the Kosovo intervention)

    4. condemnation of the intervention for resulting in foreseeable human rights violations by the rebels, in a situation where – without going into the thicket of extraterritorial applicability of human rights obligations (he doesn’t really either) – the rebels have at least expressed their intention to avoid violations and Khaddafi had previously had forty years to demonstrate a state policy of systematic violations

    5. a rather curious tacit defense of Khaddafi’s apparent summary execution as an ostensibly understandable form of protest against the ICC as such (as if just being really mad over forty years of tyranny would not be enough)

    6. a more cogent argument based on the War Powers Act, but as an afterthought

    I guess one upside is that I can wholeheartedly endorse Dr. Posner’s view that the invasion of international law by twitter-ese (R2P??) is truly obnoxious.

  6. I agree with Kevin. The commander-in-chief is a legal target, as the fellow combatants of the guys killed by drones, can legally bomb the CIA headquarters where the drones are driven, and Obama.

  7. I guess the point of the complaint filed by Gaddafi’s family is that he was already a prisoner when he was killed, which makes the killing a war crime.

  8. @Rhodri

    Posner is just a Machiavellian, who claims that U.S. should do whatever it pleases. I bet he has big poster in his living-room, with quotes by John Bolton, such as:

    “It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so because, over the long term, the goal of those who think that international law really means anything are those who want to constrict the United States.”

    “There is no United Nations. There is an international community that occasionally be led by the only real power left in the world, and that is the United States, when it suits our interest, and when we can get others to go along…The success of the United Nations during the Gulf War was not because the United Nations had suddenly become successful. It was because the United States, through President Bush, demonstrated what international leadership, international coalition building, international diplomacy is really all about… When the United States leads, the United Nations will follow. When it suits our interest to do so, we will do so. When it does not suit our interests we will not.”

    And of course one from George Kennan: “We will have to dispense with all sentimentality and day dreaming and our attention will have to be concentrated everywhere on our immediate national objectives. We should cease to talk about vague and unrealistic objectives such as human rights, the raising of living standards and democratisation. The day is not far off when we will have to deal in straight power concepts. The less we are hampered by idealistic slogans the better.”

  9. Can the Chinese and Russian backlash post-Libya be seen as the system’s response to the unlawfulness of the actual Libya intervention and the manner in which the mandate was so blatantly exceeded? Okay, there are a number of other political factors guiding Chinese/Russian voting on Syria, but a pretty key issue has been the disillusionment post-Libya. NATO exceeded the limits of the lawful authority it was granted, so therefore any legal authority viz a viz Syria is now being withheld.

  10. @Mihai – I had a sense of that but he did rather pose his arguments in IL terms, albeit selective ones. Thanks for the superb quotes!

    @SBR – Can Russia and China credibly claim disillusionment post-Kosovo? The latter not only reflected how far NATO was ready to push things (granted without any advance authorization in that case) but also how difficult it could be to police the compromise formulas adopted in contested UNSC resolutions (e.g. the inexorable path from Res 1244’s invocation of the FRY’s sovereignty and territorial integrity to the UDI). In this case, I expect Russia and China acted tactically to avoid the embarassment of being held responsible for a massacre in Benghazi in the very faint hope that this round of compromise formulation might fare better.

  11. Julian, There was lots of debate on EJIL:Talk! earlier this year about the legality of NATO’s action in Libya.  Issues raised and discussed included the interpretation of SC Res 1973 and in particular what sorts of actions that resolution authorised. There was much discussion about the mandate provided by the Security Council and whether it permitted the removal of Gaddafi and assistance to the then rebels in Libya. You can find relevant EJIL:Talk! posts at http://www.ejiltalk.org/tag/libya/

  12. @Rhodri
    “The discretion of the Security Council The scope of the discretion granted to the Security Council, in discharging its duties within the ambit of the Charter of the United Nations, is very wide. A comparison between Article 39 and Article 51 of the Charter highlights the Council’s freedom of action. … Conversely, in keeping with Article 39, collective security can be brought into action whenever the Security Council determines that there exists a threat to the peace, a breach of the peace or an act of aggression. An unambiguous bifurcation ensues in respect of lawful use of inter-State force consonant with the Charter… On the other hand, the Council is empowered to employ force in the name of collective security, and the degree of latitude bestowed upon it by the Charter is well-nigh unlimited. The Council may wield force to counter any type of aggression, not necessarily amounting to an armed attack, and it may even respond to a mere threat to the peace. Since the Charter seems to give the Security Council a carte blanche in exercising its authority in pursuit of collective security, the Council is not just free to decide whether and how to use force, but it is also at liberty to determine when to do so and against whom.”, Y. Dinstein, The conduct of hostilities under the law of international armed conflict. Cambridge, UK; New York: Cambridge University Press, 2005, p.283.

    “But the expression ‘threat to the peace’ is elastic enough to stretch away from a contemplated use of force and beyond inter-State relations. A determination of a threat to the peace is not contingent on any (past, present or future) use of force. Nor is it linked even to any breach of international law. ‘It is completely within the discretion of the Security Council to decide what constitutes a ‘‘threat to the peace’’.’ The Council is free to deal with ‘remote threats’: it can go as far ‘upstream’ as it desires in identifying a threat to the peace. Indeed, a threat to the peace is not necessarily a state of facts: it can be merely a state of mind; and the mind that counts is that of the Council. It may opt to stigmatize as a threat to the peace a situation that does not appear to anyone else as disturbing the equilibrium of international security. In other words, ‘a threat to the peace in the sense of Article 39 seems to be whatever the Security Council says is a threat to the peace’.”, ibid., p.284.

    Therefore Posner has to prove that SC acted outside its powers (ultra vires). Did he prove that?

  13. @Rhodri
    It seems that there are a bunch of precedents:
    “Since 1990, however, the SC has made use of art.42 in a significant number of cases… Another large-scale operation was mounted in 1992 when the SC empowered member States to take military action in support of the peacekeeping force in Somalia, and, in the following year, conferred enforcement powers on the peace-keeping force itself. During the Bosnian War, the SC first confined its authorization of the use of force to the facilitation of the delivery of humanitarian assistance, and then expanded it to the enforcement of economic sanctions and of a no-fly zone. Later it included the use of force in defence of ‘certain safe areas’, which led to significant air strikes in 1995.
    In 1994, another large-scale use of force was authorized in order to ensure the return of the elected president to Haiti after economic sanctions and a maritime blockade had proved unsuccessful…towards the end of the 1990s, the SC again came to authorize larger operations on the basis of art.42. In 1997, it endorsed the intervention of ECOWAS in Sierra Leone and, under art.53, … When ECOWAS decided to withdraw its forces from Sierra Leone in 1999, the SC established a large peace-keeping operation, endowed with powers to use force that reached far beyond self-defence. In the same year, it authorized an international civil and security presence in Kosovo, likewise empowered to take forceful action on the basis of Chapter VII of the Charter and consisting of both multinational forces and a UN peace-keeping operation. For East Timor, the SC established a similar transitional authority, this time entirely run by the UN, after a multinational force operating on the basis of a Chapter VII mandate had provisionally restored peace and security in the territory. In 2000, the SC endowed the UN observer mission in the Democratic Republic of Congo with the right to use force in order to protect not only itself, but also civilians under imminent threat and, in the end of 2001, it used Chapter VII to authorize an international force for the assistance of the Afghan Interim Authority in the maintenance of security in Kabul.

    Later State practice confirms the view that the SC can authorize member States, in groups or individually, to use force despite the lack of agreements under art.43. The SC followed this path in the cases of Somalia, Bosnia, Haiti, Rwanda, Eastern Zaire, Albania, the Central African Republic, Kosovo (KFOR) and East Timor… Moreover, in some of these cases, in particular in Somalia and Rwanda, no other legal basis for the use of force, such as self-defence or consent of the State concerned, was available. Thus, by accepting the legality of the operations as such, States implicitly accepted the legality of the authorization practice of the SC.”, Simma, The Charter Of The United Nations: A Commentary 2Nd Edn 2002, Vol.1, pp.751-758.

  14. What more could legal and policy analysts possibly wish for than the broad authority of UN Security Council Resolution 1973? If this authorized intervention is “outside the law” (Posner) or makes a farce out of a “legal war” (Horton), what additional authorizing supports are needed? UN Security Council unanimous support? Rules of engagement that explicitly reiterate IHL persmissable targeting practices, including a belligerent’s commander? A history lesson about the bloody nature of civil wars, particularly ruinious to civilians (hence the Leiber Code), and a species of non-international armed conflict unlikely to be resolved while both regimes prevail?

    Regardless of the Obama legal team’s policy-based definition of “hostilities,” this de facto armed conflict has preceeded within  appropriate ad bellum frames and authorities. Moreover, critics would be hard pressed to suggest that NATO and Member States involved have exceeded the broad language (“to take all necessary measures to protect civilians and civilian populated areas under threat of attack”) of their mandate. Last, since IHL/jus in bello rules operate in situations of armed conflict (IHRL supplementally) Gaddafi and other nationalist force commanders are, of course, lawful targets by rebel and NATO forces, with NATO seeking not only to protect civilians against their unlawful targeting but to implement the cessation of hostilities.

    See Scott Horton’s similar, if far more nuanced case: http://www.foreignpolicy.com/articles/2011/10/25/up_in_smoke?page=0,2&showcomments=yes

  15. @Kenneth first post
    I think the issue here is not whether to target the commander-in-chief as opposed to libyan forces on the battle field, but rather the question whether the use of force against any libyan military target at that time was covered by the UN mandat and as such in compliance with international law.

    To meet the mandats prerequisites, the attack on the convoy would have had to be necessary to “protect civilians and civilian populated areas under threat of attack”.

    Was the libyan poopulation still under threat of being subject to atrocities by the libyan army as of October 2011?

    Judging by the facts , the answer has to be NO:

    NATO General / French Army Chief of Staff Jean-Paul Palomeros on March, 30 2011:

    “The objective in Libya was to stabilize the tragic situation and to protect the populations; this has been achieved”

    Lets face it – the objective in killing Qaddafi’s was clearly not a human rights one.

    Of course there is also the (more interesting) question of whether the mandat itself was in compliance with international law’s prohibiton of force principle …

  16. Indeed, I feel that often insufficient credit is given to the fact that, on the one hand, the relevant Security Council resolutions provided only limited operational and legal guidance and, on the other hand, that the mandate they set out had to be carried out in a dynamic environment.

    Putting these two points together, it really should not come as a surprise to find that the Security Council resolutions concerned raise serious questions of interpretation. For better or worse, open endedness is one of their design features.

    When criticising NATO for its interpretation of the resolutions, it should be borne in mind that the Security Council effectively outsources the interpretation of these documents.

  17. As Dapo and others have pointed out (but Julian and Eric, among others, don’t seem to know) the questions of the scope of SCR 1973 and the compatibility of measures of this kind with Ch VII have been extensively canvassed by competent scholars, and not – as Julian’s comment title suggests – uncritically.
    Eric’s article, by contrast, and again as others have said, simply reiterates his fervent, or at least endlessly and loudly repeated, belief that international law is a utopian fiction, which he seeks to support on the basis of examples of international law sometimes not working or not working well. Leaving aside the more elementary criticism that, by that standard, contract, criminal, corporate, tort or even – at least under the previous administration – constitutional law are utopian fictions too, the fact that, here, sovereign governments did engage robustly with the Security Council process might – as with countless other examples – give a reasonable scholar some pause, but that’s probably asking too much in his case. There is also the interesting question of whether the participating states subsequently placed reliance on the consent of the NTC, but that doesn’t get a mention from either Julian or, of course, Eric.
    There is also, in answer to Julian’s query, a fairly basic distinction between reliance on the specific and timely wording of SCR 1973, which expressly authorised intervention, and the purported reliance on SCR 1441, which did not. This “grousing”, to use Julian’s rather odd term for the subject-matter of, for example, the Chilcott inquiry, has also been well canvassed – including in a discussion of the shortcomings of the Bybee and Yoo opinions on the point in EJILTalk.

  18. I have to agree with Kevin, this isn’t a good faith critique. It’s an effort to take some of the more interesting questions about the scope of the delegated model of Chapter VII resolution interpretation and enforcement, and the nascent R2P norm, and purpose them into cheap strawman arguments and snarky shots at so-called utopianism.

    But Posner never actually makes his case. He doesn’t show that the alleged academic silence actually exists, and nor does he defend the softer, more sensible version of that claim, that lesser umbrage exists, from arguments that the two cases are clearly incommensurably different. Given how easy it is to differentiate between the two cases based on how they comport with, confirm, develop or threaten collective security norms, this is a shabby effort.

  19. Well, some of you commenting here—you know who you are—better go look up quickly in an introductory logic book the fallacies of reasoning. In particular one called: ad hominem.

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