The Raids in Somalia and Libya – Theories of Self Defense?

by Deborah Pearlstein

As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international law. Here’s a quick first take. Bottom line: Both are probably justifiable under domestic law, but pending some facts, the Al Liby seizure may be deeply problematic under international law.

Al-Liby has been under indictment in the U.S. since 2000 for his suspected role in helping to plan the U.S. embassy bombings in Kenya and Tanzania back in 1998. The indictment, available here, alleges his involvement in the conspiracy (and his participation in Al Qaeda) dates as far back as 1993. The AUMF authorizes the use of force against any organization the President determines responsible for the attacks of 9/11. Core al Qaeda is that organization; al Liby seems by all accounts to have been a central part of it. Assuming the United States moves with reasonable speed to bring al Liby here to stand trial on his criminal indictment, the Supreme Court has been (remarkably but consistently) clear that trial may proceed even if the defendant was effectively kidnapped to bring him here.

On the international law side, it’s trickier. The theory that there is an ongoing non-international armed conflict between the United States and Al Qaeda has never found acceptance outside the United States. Still, the United States has a powerful argument that the attack on its embassies was an “armed attack” within the meaning of UN Charter, art. 51, triggering a U.S. right to resort to military force in self-defense. In this respect, the decision to capture al Liby (and the operation directed in an apparently quite targeted way against him) looks like a quite proportional response. This nonetheless leaves two potentially significant international law problems: (1) If the United States actually lacked Libyan consent to the operation (as Libya seems, at least publicly, to maintain), the United States violated Libyan territorial integrity in carrying out the operation, a breach of UN Charter, art. 2(4). (2) Most scholars recognize an international law requirement that responses in self defense be timely. Whether one sees this as a necessary reading of art. 51 itself (recognizing a right of self defense only until the UN Security Council has had time to act), or a function of customary international law or both, the idea is that while states are certainly permitted some reasonable amount of time to determine an appropriate response and carry it out, a one-time attack doesn’t give a state a right to respond with armed force against the attacker for the rest of geopolitical time. Perhaps under the circumstances here the extraordinary delay is reasonable – it took a long time to find al Liby, and once we did perhaps we first pursued more peaceful efforts to extradite him to the United States. Perhaps. Another set of facts it would be helpful to know. In the meantime, the general question remains: how long could the U.S. plausibly use attacks from 1998, or even 2001, to justify new “self-defense”-related uses of force?

The attack in Somalia is a tougher case domestically. Al Shabaab, born well after 9/11 as a domestic Somali insurgency of sorts, and only recently (and to an indeterminate degree) allied with whatever remains of what is now called Al Qaeda, is not nearly as obviously covered by the AUMF. Does the President have inherent authority under Article II of the Constitution to use armed force in such circumstances? The vast majority of constitutional law scholars recognize the President has at least some right to use force without congressional authorization if he is acting in national self-defense. Here, the New York Times reports the Somalia raid was planned after the attack by al Shabaab at a shopping mall in Nairobi, Kenya, that killed more than 60 people two weeks ago. A handful of American nationals were injured in that attack. Of relevance here is what appears to be the emergent custom in international law to permit limited, proportional uses of force to protect a nation’s citizens under attack abroad. If one embraces the view that the President’s powers under Article II of the Constitution should be at least co-extensive with that force authorized under international law, then the President here might be on reasonable ground. The mere permissibility of a use of force under international law has never been thought to be a substitute for affirmative authority under domestic law. But imagine if the al Shabaab attack in Kenya were still underway; assuming the permission of the Kenyan government, there would seem little doubt the President would have inherent Art. II power to use force in the interest of protecting the U.S. nationals threatened in the attack. Does the brief passage of time here make a difference from this perspective, assuming the U.S. attack was the limited, one-off response it appears to be? Not clear that it does.

For these reasons, the attack on Al Shabaab may be quite a bit easier to justify under international law than is the seizure of al Liby. The issue of Somali consent remains – and it is here likewise unclear what Somalia permitted or not. But given the relative silence so far from the Somalia government, such as it is, it may be they were willing to have the U.S. there.

http://opiniojuris.org/2013/10/06/raids-somalia-libya-theories-self-defense/

8 Responses

  1. I sent the following in an email to my Il class and seminar on use of force, etc.:
    Subject: U.S. captures

    The capture of al-Libi and attempted capture of a leader of al-Shabab last Saturday raise issues concerning “law enforcement” versus “self-defense” captures. The U.S. has claimed a right to capture those who have been engaged in armed attacks on the U.S., its embassies (al-Libi), its military abroad, and other U.S. nationals abroad (al-Shabab), since it can kill such persons in self-defense if otherwise reasonably needed and the use of force is proportionate. Capture is less injurious than killing in self-defense. The claim relates to U.N. Charter, art. 51.
    However, “law enforcement” as such in foreign state territory must be engaged in with the consent of the highest level of the foreign govt. E.g., Restatement (Third) of the Foreign Relations Law of the U.S., sections 432-433 (1987) [which the IL class will address later, in Chapt. 3, esp. in connection with the S.Ct. case of Alvarez-Machain and Notes & Questions thereafter — one of which notes that in 1992 the U.S. claimed a right to engage in limited self-defense captures).
    Note also that al-Libi is reported to be on a U.S. naval vessel and is being interrogated. The U.S. naval vessel is the equivalent of U.S. territory under international law and the U.S. Const. undoubtedly applies.
    This is such a “hot” topic that I thought it would be useful to make these points at this time.
    AND, with response to Deborah’s quick first take, the 15-year period is an interesting issue.  However, I accept the point that the U.S. must be permitted time to find him and then time to try to obtain consent of the govt. of Libya even though that is not required with respect to lawful measures of self-defense. E.g., 19 J. Transnat’l L. & Pol’y 237 (2010), http://ssrn.com/abstract=1520717  Self-defense with respect to al-Shabab is certainly clearly permissible.  Moreover, these efforts at self-defense capture may have been with the consent of the govt. of Libya (which it has reason domestically to not disclose — but may come up at trial) and Somalia.  Self-defense captures are recognizably permissible (see 19 J., supra at 258-59, 262-63 & n.61, and authors cited, etc.).
    The President does not need an authorization from Congress to engage in lawful measures of self-defense or, alternatively, lawful measures of force that are not among the three that are expressly proscribed in U.N. Article 2(4).  The President has express constitutional authority to faithfully execute the Laws, U.S. Const. art. II, sec. 3.  International law is among such Laws and the duty to execute actually enhances the authority of the President to execute a competence under treaty-based or customary international law.  E.g., 26 Emory Int’l L. Rev. 43 (2012), at http://ssrn.com/abstract=2061835
    If it is claimed that the S.Ct. decision in Alvarez-Machain precludes inquiry into a transnation “abduction,” I disagree — because that issue ws expressly not addressed (because of incompetence of counsel re: raising it on appeal).  Therefore, cases like U.S. v. Toscanino and the Rest. secs. 432-433 are relevant (but I wouold argue, not determinative in view of the propriety of self-defense captures as well as, alternatively, probable consent of the foreign states invovled).  Defense counsel for al-Libi will raise this “law enforcement” issue if he/she/they is/are competent.
    Another issue invovles the time that interogation will take place on a U.S. naval vessel, where the U.S. Const. applies.  Since FBI as well as CIA and other govt. agencies are involved, I assume that at least FBI will insist on compliance with applicable constitutional restraints in order to “save” the pending prosecution of al-Libi in a federal district court (which, by the way, I applaud, given the serious violations of international law that still pertain with respect to the Obama military commissins at GTMO — e.g., http://ssrn.com/abstract=1997478 ).

  2. My comments are made under the assumption the the U.S. cannot be at “war” with al Qaeda as such and that the self-defense paradigm is nevertheless applicable.  Someone emailed me noting that the 15 year passage of time is problematic (the “writer” concluding that it necessarily means that self-defense is out). I note that it is a problem, but that some periods of time are tolerated if needed for identification and location, if not consent from a state.
    Someone else raised another issue.  Assuming that the laws of war apply and that al-Libi is a pow (which I would not assume b/c he would be an unprivileged fighter in the “civilian” category, under the Geneva Civilian Convention and possibly art. 5), the ICRC Commentary re: GPW states that pows cannot be housed on a vessel.
    And another issue: I saw a prof. on CNN stating that there would be no constitutional protections until al-Libi arrived in U.S. territory.  I obviously disagree, esp. in view of the rationale in Boumediene re: sovereign power (or even Scalia’s soverign territory preference); the recognitions in Reid v. Covert, U.S. v. Tiede, Ex parte Milligan; Toscanino, Balzac v. Porto Rico, etc.; and rulings in some of those cases and in Murphy v. Ramsey, addressed in Boumediene.
    Good exam question in the making? [my students: not necessarily, but apt]

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