U.S. Prepares for Retaliatory Military Strike Into Libya

by Julian Ku

As I suggested earlier, the President has ample legal authority to strike back at those responsible for the deaths of U.S. Ambassador to Libya Christopher Stevens and three other Americans in Libya. The NYT reports that the Pentagon is preparing to exercise this legal authority:

The American military’s top-secret Joint Special Operations Command is preparing detailed information that could be used to kill or capture some of the militants suspected in the attack last month in Libya that killed Ambassador J. Christopher Stevens and three other Americans, senior military and counterterrorism officials said on Tuesday.

There are a variety of international legal objections that might be raised to such a strike that depends on whether the Libyan government would consent to a strike. If no consent is forthcoming, there is the interesting problem of whether retaliation is a justified act of self-defense under the UN Charter’s Article 51.  But putting aside these legal issues, I would not be surprised to see a strike go forward, even during election season (maybe especially during the U.S. election season).


8 Responses

  1. What exactly is interesting about the self-defense question?  No matter what test you adopt, self-defense is forward-looking (to stop an attack in progress or to prevent future attacks), not backward-looking (to punish those who have committed an attack).  There is no evidence that the attack on the ambassador was the first of many planned attacks on Americans in Libya; indeed, according to the Washington Post, the US doesn’t even believe AQIM directed the attack.  So there would be no self-defense justification whatsoever for an armed attack on Libya without the government’s consent.

  2. Prof. Ku,
    Please correct me if I’m wrong, but the denial of justice (in this case, failing to adequately go after and/or prosecute the offenders) for an assault against an ambassador is one of the main reasons why we have the ATS in this country, is it not?
    Wasn’t the fear that if such a mechanism did not exist, then an offended foreign power like France or Britain would have adequate justification under the law of nations to invade?

  3. Can you say “October Surprise”?

  4. Mr Heller:

    Pure retaliation is indeed wrong (morally, although perhaps not legally). Post hoc action is nevertheless valid self-defense:

    1. preventing future action by a person or group that has demonstrated both intention and capability of killing representatives of the United States.

    2. deterrence. 

  5. A historical clarification: the killing of an ambassador was expressly condemned as pretty much the worst offense against the law of nations (since it disabled the possibility of mutual intercourse and public peace).  Pufendorf put it in the class of natural law violations.  It appears to have been generally accepted until the twentieth that any country could conduct reprisal against a sovereign that killed an ambasador, not just the sending country.  It was so important to the early US that there is a criminal law and claims arising from hurt to ambassadors was vested in the Supreme Court’s original and exclusive jurisdiction, not ATS.  (I explain this is my post to Meir Feder’s comment re Kiobel). 

  6. International lawyer,

    This may shock Kevin, but I have to more closely agree with Dr Heller than yourself. Criminal law exists to deal with the two points you riase; and if not the criminal law, then the United Nations system. However, if you have any legal authoirty to support your points, particularly point 2, that would be very interesting.

  7. Mr Henderson:

    Criminal law is irrelevant. The Charter of the United Nations (assuming it applies) affirms a member’s inherent right of self-defense (which it does not define) if an armed attack occurs against it, which of course it has.

    The burden is on one asserting a limitation on sovereign power. So I turn the question around:

    Do you have any authority that a state — and, in particular, the United States — is not permitted to deter armed attack against its citizens and consular personnel? Not permitted to prevent persons with the intention and capability to kill its citizens and consular personnel?

    I mean actual law, not assertions of professors.

  8. “Do you have any authority that a state — and, in particular, the United States — is not permitted to deter armed attack against its citizens and consular personnel”

    But we are not talking about deterring and armed attack. The attack has already occurred. There is nothing to defend against. Even under the Caroline Affair doctrine, there must be an imminent attack that needs averting.

    The situation we are talking about is quite different… Unless they could establish that the armed attack was part of an ongoing effort, with more attacks incoming very soon, then it does not meet even the loosest definition of anticipatory self defense.

    Also, no one has pointed out, the UN Charter provisions deal with UN Members… Independent nations. The people who committed the attack were not a government. Can we really justify striking inside Libya without its consent to punish wrongdoings that it didn’t even commit? Well, we probably can, but only because powerful entities can sweep the law under the rug whenever they feel like it.

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