U.S. Ambassador to Libya is Killed; What Responses are Legal?

by Julian Ku

[I posted this originally at the same time as Duncan, so it is a bit repetitive, but I'll leave its content basically as is].

Sad and startling news:  U.S. Ambassador to Libya Christopher Stevens was killed yesterday in a rocket attack on the U.S. Consulate in Benghazi.  This is an addition to another violent attack on the U.S. Embassy in Cairo.

Violent attacks on diplomatic compounds and officials, needless to say, are not only terrible but also plainly illegal under international customary and treaty law.  From the Vienna Convention on Diplomatic Relations:

Article 22
1. The premises of the mission shall be inviolable. The agents
of the receiving State may not enter them, except with the consent of
the head of the mission.
2. The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.

Article 29
The person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving State shall
treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.

Plainly, both Egypt and Libya have massively failed to live up to their duties on these and other relevant provisions.  The question is: what legal responses could the U.S. take?

Under U.S. constitutional law, the President has long been understood to possess the authority to respond to attacks on U.S. citizens and government missions with the use of military force.  He can do this without first seeking the consent of Congress.  See Durand v. Hollins, 8 F. Cas. 111 (CCSDNY 1860).  In that case, a bottle was thrown at a U.S. diplomat in Nicaragua, and the court endorsed the legality of a “calculated retaliation after the fact” arguing that the nature of the response to such an attack rested with the discretion of the President.  (The U.S. Navy bombarded the town in retaliation).

Of course, the legality under international law today  of such a “calculated retaliation” is less clear.  Indeed, my guess is that the typical response would be for the U.S. to demand punishment of the perpetrators, reparations to the U.S. and perhaps to the families of those injured, and an assurance of non-repetition.  Failing such a response by Libya and/or Egypt, the U.S. could in theory try to bring the parties to the ICJ (but that didn’t accomplish a whole lot back in 1979 against Iran).  And of course it could threaten to retaliate against the Egyptian and Libyan governments.  It seems the best case for military force would be if the U.S. believed it was necessary to protect the safety of U.S. citizens and diplomats.

I doubt that there are any plans to use military force here, but I do think it is worth considering whether and how such a response would be appropriate and legal.

http://opiniojuris.org/2012/09/12/u-s-ambassador-to-libya-is-killed-what-responses-are-legal/

9 Responses

  1. Response…
    Durand actually involved self-defense measures against a non-state actor maruading mob.  See 19 J. Transnat’l L. & Pol’y 237, 245-46 (2010), available at http://ssrn.com/abstract=1701992 .  Constitutionally, the President has the authority to faithfully execute international law on behalf of the United States with respect to such measures of self-defense and, as Justice Nelson remarked, “protection” (although it is interesting that Nelson dissented later in The Prize Cases).  See also Constitutionality of U.S. Participation in the United Nations-Authorized War in Libya, 26 Emory Int’l L. Rev. 43 (2012), available at http://ssrn.com/abstract=2061835  
    What types of response: (1) working with the Libyan authorities to identify, find, and bring to justice those who planned, authorized, abetted, and perpetrated the international crime of killing an internationally protected person (and it seems obvious that it was planned in view of the fact that the date was 9/11 and the yootube film was published way back in the summer, etc.), and (2) engage in selective measures of self-defense (not a “reprisal” because those are illegal under international law) in response to the non-state actor armed attacks and in an effort to stop continual attacks on our nationals (mixed motives do not obviate permissibility of lawful measures of self-defense).  The measures of self-defense may take weeks and some may be relatively “silent” (and may or may not involve use of drones for more than intel). These are not matters for “amateurs.” Stay tuned.

  2. I’m not sure we have any recourse we really wish to pursue, since the Libyan government doesn’t seem to have intentionally committed the offense.
     
    Jordan is no doubt correct about what will actually happen.

  3. “Plainly, both Egypt and Libya have massively failed to live up to their duties on these and other relevant provisions.”

    That’s the kind of statement you really need to substantiate.  As Duncan explained, the obligation is not one of result – the fact that Amb Stevens was killed does not automatically mean that Libya has breached its obligations.  Libya would be responsible if it were either involved in some way with the carrying out of the attack, or if it failed to ‘take all appropriate steps’ to prevent the attack.

    Also, the legality under international law of any ‘calculated retaliation’ is far from unclear.  UN Charter Art 2(3) and 2(4) are very clear, and an argument based on self-defence is a very long bow to draw in this case, particularly if Libya were not involved in the attack.

    From a practical perspective I’m not sure what utility a military response would serve, beyond satisfying our primitive and visceral desire for revenge.  More generally, why is it that the military option is the first to spring to mind to solve seemingly any problem? 

  4. Response…
    Actually, it would be self-defense against some non-state actor(s), not against a state, and quite permssible if they have been involved in prior attacks or ongoing attacks.  Also, U.N. art. 2(4) raises questions re: interpretation: (1) one view, unsubstantiated by the text as such) is that all uses of armed force against a state are impermissible, and (2) another view is that the article only expressly prohibits three types of force, two types against a state and a third category.  Using the latter approach to interpretation, it may be that some U.S. use of force is not against a state as such and would in any event not be “against” the “territorial integrity” or the “political independence” of some state and, on balance, would be generally serving of the various purposes of the Charter identifiable, for example, in Articles 1 and 55 of the Charter (with or without the consent of the state of Libya, for example, and whether or not self-defense is permissible under Article 51).

  5. That is quite a tortured interpretation of Art 2(4).  Most IL scholars take the view that these ‘territorial integrity’ and ‘political independence’ elements are mere surplusage, and don’t operate to limit the scope of the prohibition.  Any use of force by one state in the territory of a second state (regardless of the actual targets or objectives of the attack) is almost universally understood to be a breach.

    Using force on the territory of another state (for instance, a Mexican army unit pursuing a drug gang into US territory) may not (on your interpretation) be a use of force against the state itself, but it would certainly be an infringement of Article 2(4) absent the state’s consent.

    Unfortunately, the Charter prohibition on the use of force is not tailored to the kinds of non-state security threats we now seek to manage.  That fact arguably calls for some reconsideration or tweaking of the prohibition, but like it or not this is how the provision works as things currently stand.

    I am somewhat sympathetic to (though do not accept) the notion that a state can legally act in self-defence against a non-state actor on the territory of another state, if that second state is unwilling or able to take reasonably necessary measures to alleviate the threat posed by the non-state actor to the first state.  This is supposedly one legal justification for ongoing operations in NW Pakistan (though in that particular case the Pakistanis have given considerable assistance and almost certainly their tacit consent). So far the Libyans seem to be genuinely shocked and outraged, and more than willing to cooperate.

    Second, the idea that supporting the ‘general spirit’ of the Charter can override its explicit terms is quite an audacious claim, and not one I’d be brave enough to use.  A useful exercise in this context might be to consider what our view would be if the positions were reversed, and the Libyans sought to avenge the killing of one of their diplomats on American soil.

  6. Response…
    Query “almost universally.”  And, unavoidably, the text and the ordinary meaning of its terms are clearly viewed as part of the meaning of a treaty.  Art. 31, Vienna Conv. on the Law of Treaties.  In the case of Art. 2(4), the drafters knew how to use the phrase “all  threats or uses of force,” but did not do so.  Instead, they put in the qualifier “against” as well as the qualifiers “integrity” and “independence.” 
    If we also consider the object and purpose of the U.N. Charter (which is an interpretive aid under Art. 31 of the Vienna Conv. as well), it is evident that the preamble and Arts. 1 and 55 provide several, and that these are not self-applicative but have to be considered in context and with reference to each other as well as the actual text of  Art. 2(4).  Therefore, it can be argued, for example, that a given use of force may be threatening to peace in the short run but serving of peace in the long run, serving of security, serving of self-determnation of a relevant people being attacked by their own govt., serving of human rights, etc. and not actually be “against” the territorial “integrity” of a state or “against” the political “independence” of a state when serving self-determination and human rights of the people of the state, and so forth.
    In any event, I find this discussion useful and informing and hope that the “readers” do as well.
    Clearly, that is a benefit from Opinio Juris, and thanks to Julian for starting this one off.

  7. ‘Query “almost universally”‘.  Unfortunately my local law library is now closed, so I’ll have to park this one for the moment.  (Please don’t judge me for considering hitting up the law library on a Friday night).

    On your second point, I’d suggest that the overriding ‘object and purpose’ of Art 2(4) is to set some very strict limits on the use of force, and that accordingly it should be strictly interpreted in pursuit of that object.  The principles underlying the prohibition have been elaborated on in subsequent resolutions and practice of the Security Council and General Assembly, most notably the Friendly Relations Declaration and the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States.  

    Thanks also to Opinio Juris and Julian, and to Jordan for prompting me to reconsider my position on some of these points.

  8. Response…
    That’s a good shift to object and purpose of 2(4), which begs the very question at stake, since the real focus of art. 31 of the Vienna Conv. on the Law of Treaties is on the object and purpose of the treaty (thus, all those others in the Charter that are specifically identified as such in art. 1 and otherwise elsewhere).

  9. Art 1 aspires to an international order in which disputes are settled by peaceful means, in which such forceful measures as are necessary are taken collectively, and in which international cooperation and friendly relations are accorded due respect.  Expanding the narrow exceptions to Art 2(4) does not (in my view, at least) serve these aims.

    In any case, one must also (per VCLT Art 31(3)), in considering the context of a term, have reference to any subsequent practice or agreement as to the interpretation or application of the provision.  That provides ample justification for considering the resolutions I mentioned above, among other sources. 

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