U.S. Dispatches Military to “Hunt” Militants in Libya

by Julian Ku

Here it comes: President Obama is exercising his Commander-in-Chief powers, a la Durand v. Hollins:

The U.S. responded to the assault by dispatching two Navy destroyers, dozens of Marines, federal investigators and intelligence assets to Libya to protect Americans and hunt the suspected religious extremists who carried out the attack late Tuesday. U.S. officials described the attack that killed Ambassador Christopher Stevens as complex and possibly premeditated.

The assault, along with a protest at the American embassy in Cairo, created a crisis atmosphere in Washington just as the presidential campaign is hitting its stretch run and fueled a harsh exchange between President Barack Obama and Republican Mitt Romney.

Mr. Obama said the U.S. will work with the Libyan government to bring attackers to justice, but he and other officials didn’t rule out a unilateral U.S. strike. “Make no mistake, justice will be done,” the president said.

Emphasis added.

Without knowing the facts on the ground, it is hard to say whether it would be appropriate or legal for the U.S. military to launch a unilateral military strike.  But President Obama seems to ready to launch such an attack.

http://opiniojuris.org/2012/09/12/u-s-dispatches-military-to-hunt-militants-in-libya/

14 Responses

  1. At a conference without access to materials, but an attack on an ambassador would seem to invoke art. 51 UN Charter self-defence in much the same way as an attack on a State’s warship. So, is the attack concluded or are measures in self-defence now necessary?

  2. Response…
    And, Ian, if the non-state armed attackers have attacked U.S. nationals before, one can understand that there has been a process of armed attacks that the U.S. can respond to by targeting the leader(s), planners, directors, instigators, etc. of the attacks.  Some are checking to see whether there are even links with al-Qaeda.
    I can envision a circumstance where a targeting takes place in Libya with the special consent of Libya, although that is not required under Article 51 of the Charter, and a targeting in some other country.  I would imagine that Libya might even request assitance by the U.S. in what would be collective self-defense, and I do not think that Article 51 should be read to exclude self-defense engaged in by a state (like Libya) against non-state actors within its own territory, e.g., there does not seem to be a geographic limit to 51 self-defense.
    Julian: it would not technically be an “attack” by the U.S., but a responsive measure in self-defense against continual armed attacks on U.S. nationals and consulate and/or embassy compounds.

  3. “Without knowing the facts on the ground, it is hard to say whether it would be appropriate or legal for the U.S. military to launch a unilateral military strike.”

    Actually, it is quite easy to say.  Without Security Council authorisation, the use of force is generally accepted to only be permissible as a valid exercise of self-defence (although a growing body of scholars do suggest other exceptions including the Responsibility to Protect doctrine, or to prevent the proliferation of weapons of mass destruction).

    In order for measures taken in self-defence to be legal, they must be both necessary and proportionate (the so-called ‘Caroline test’).  I’d welcome suggestions on how a unilateral military strike (as opposed to an effective criminal investigation with the cooperation of the Libyan authorities, which so far appears to be forthcoming) fits both these requirements.

  4. Response…
    how about there have been other attacks as well by the non-state actors involved (who are still to be identified), i.e., there is a process of armed attacks that needs to be responded to as a matter of self-defense.
    p.s.  see comments in a post below re: art. 2(4) and see art. 52 that addresses permissible “regional action,” such as that authorized by the O.A.S. during the Cuban Missile Crisis and NATO during Kosovo, according to some.

  5. ‘Instant, overwhelming, leaving no choice of means and no moment of deliberation.’  That is the standard that would apply here.

    On those points, the immediate attack has abated (for now, though there will likely be continued instability).  Further, the Libyan government has offered its cooperation and seems so far to be genuinely willing to bring the perpetrators to justice.  They also appear to be welcoming US participation in the investigation.  There are therefore alternative (and arguably more suitable) means available for dealing with this matter before escalating to a unilateral strike.

    Finally, any unilateral action would also need to be proportionate to the threatened harm.  I don’t know what military options are being considered, but given the very speculative nature of any ongoing threat (now that security has been increased and the Libyan authorities suitably energised), I’m not sure how much military force would be proportionate.

    On your Art 52 point, any regional action must be consistent with the Purposes and Principles of the United Nations – ie Arts 1 and 2 of the Charter (per Art 52(1)).  Thus regional action must still comply with the Charter prohibition on the use of force.

  6. An interesting thought experiment:

    The Iranians drop a bomb on a senior MEK leader during a Washington rally.  No Americans are injured (surprising, given the presence of so many retired generals and senior political figures) and no American property damaged.  The Iranians justify their action as an exercise of the right of self-defence, given the ongoing assassination campaign against Iranian nuclear scientists, in which the MEK has been implicated.  They argue that the US has been unable and unwilling to prosecute the MEK and those who support them, and that Iran is left with no choice but to take unilateral action.

    Would we apply the same legal gymnastics and thereby conclude that the Iranian action was justified and legal?

  7. AGW,

    Your point is a valid one: as long as you could show that the MEK leader was involved in planning or supporting some kind of attack against Iran in the future (and no need to show a close temporal connection, because the US has insisted that “necessity” has to be defined very expansively in the age of terrorism), such an attack would be completely legitimate under the “unwilling and unable” test that the US has embraced (wrongly, as I have pointed out on the blog before).

    That said, the US would, of course, condemn any such attack.  The use of force by the US against another state is per se “self-defence”; the use of force by another state against the US is per se “aggression.”  Consistency is not a particularly American virtue.

  8. AGW: just to be sure, R2P as adopted in the World Summit Outcome actually requires UNSC authorization. In that sense R2P is nothing new, the only innovation being that intervention is no longer an option for bystander States, but a (debatable) legal obligation. Any intervention without UNSC approval would amount to humanitarian intervention, and this is certainly not so widely accepted as the concept of R2P. As “the probihibition on the use of force in a manner incompatible with the Charter” can be seen as ius cogens, any new rule that would allow humanitarian intervention would have that same status as well (as per the VCLT’s articles on changing peremptory norms). 

  9. RJ1983 – thanks for the clarification.

  10. Response…
    AGW: you quote Webster, who was focusing on the method and means of self-defense, having admitted that the Brits (who controlled Canada) had a general right of self-defense.  Once you are under a process of armed attack, it has become quite necessary to respond.  The primary focus then shifts to proportionality (e.g., in the Caroline incident, the U.S. was using a standard that is not the standard today with respect to the means of response but had a good point in any event regarding the fact that the Brits, in the early 19th Century, could have waited until the vessel Caroline came back into Candadian waters).  I recall that a British participant in the interchange stated that all agreed that the Brits could have targeted an artillery emplacement located on the shores of N.Y. (in the U.S.) as a matter of self-defense if it had been firing across “the border” into Canada in support of non-state actor insurgent armed attakcs that had been continuing (but I can’t find the cite for such at this time). Self-defense might also be with the consent of the Libyan govt., or even collective self-defense.
    In your hypo, Iran might have a valid claim if the nonstate actor targeted was directly participating in ongoing armed attacks against Iran (a DPAA, direct participant in armed attacks) and, as your hypo seems to surmise, the method and means was proportionate.
    And 52 “regional action” in compliance with arts. 52 and 53 is an exception to 2(4), whether or not 2(4) prohibits all uses of armed force [but the text expressly covers merely three types].

  11. The Caroline test reflects customary international law – see Shaw 6th ed at 1131 (I’d quote Brownlie, Dinstein and others as well, but Shaw is closest to hand).  It is the applicable standard for a valid exercise of self-defence.

    Similarly, the preponderance of scholarly opinion supports the view that the ‘territorial integrity’ and ‘political independence’ elements of Art 2(4) are not limitations, though I do accept that quite a number take the opposite view.  That said, I have a hard time believing that dropping bombs or a SEAL team in the middle of Benghazi would not infringe Libya’s territorial integrity or political independence.

    Respectfully, regional action under Art 52 is not an exception to Art 2(4).  Again I quote Shaw (at 1273-4, emphasis mine): ‘Article 52 provides that nothing contained in the Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to international peace and security as are appropriate for such arrangements or agencies, providing that these are consistent with the Purposes and Principles of the UN itself…. Without the authorisation of the Security Council, regional enforcement action is not possible‘.

  12. But what if the Iranians then decided to move on the financiers and supporters of the MEK, including a number of high-profile politicians and retired military officers?  How would you respond to a Quds force team whisking away Rudy Giuliani in the middle of the night?

  13. Response…
    AGW: re: your last Q, they are not DPAA (or in a war context, DPH), and “supporters” is far too broad potentially and Rudy? he does not seem to be a direct participant in much of anything anymore.
    Re: UN art. 52, you did not quote it correctly and you left out the important phrase “regional action.”  Regional action, like that of the OAS in the past and NATO in the past, can be consistent with the many purposes of the Charter.

  14. Jordan – sorry, my quote was from Shaw, not the text of Art 52.  Apologies if I was unclear.

    Regarding my latest hypothetical, I think you’re right – I just wanted to see how far you’d be prepared to extend the concept of self-defence.

    Anyway, I think I might call off the debate for the moment.  Pleasure arguing with you.

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