Military Intervention and Diplomatic Engagement in Libya: a Collage of Policy, Force, and Law
Total Page：16
File Type：pdf, Size：1020Kb
American University Washington College of Law Digital Commons @ American University Washington College of Law Contributions to Books Scholarship & Research 2014 Military Intervention and Diplomatic Engagement in Libya: A Collage of Policy, Force, and Law Paul Williams American University Washington College of Law, [email protected] Anna Triponel Follow this and additional works at: https://digitalcommons.wcl.american.edu/facsch_bk_contributions Part of the International Law Commons, and the Military, War, and Peace Commons Recommended Citation Williams, Paul and Triponel, Anna, "Military Intervention and Diplomatic Engagement in Libya: A Collage of Policy, Force, and Law" (2014). Contributions to Books. 193. https://digitalcommons.wcl.american.edu/facsch_bk_contributions/193 This Book Chapter is brought to you for free and open access by the Scholarship & Research at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Contributions to Books by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. 1 CASE STUDY MILITARY INTERVENTION AND DIPLOMATIC ENGAGEMENT IN LIBYA: A COLLAGE OF POLICY, FORCE AND LAW By Anna F. Triponel and Paul R. Williams∗ Introduction In February of 2011, Colonel Muammar Qadhafi violently cracked down on Libyans protesting in Benghazi—Libya’s second largest city. By the end of February, an armed conflict between Qadhafi’s forces and opposition forces was well underway, with much of eastern Libya including Benghazi controlled by anti-Qadhafi forces. By Thursday, March 17, Qadhafi was preparing to retake the city of Benghazi, broadcasting that his forces would show “no mercy and no pity” to those who would not give up resistance. This likely would include a ruthless attack by Qadhafi’s force on all Libyan citizens opposed to his regime, including women and children. On March 19, a British-French led coalition launched an air campaign designed to protect the people of Libya against Qadhafi’s forces. Ultimately, Qadhafi was captured and killed, and a transitional national authority assumed control of Libya. Nine days after military operations had begun in Libya, President Obama described the operations in Libya to the American people from a podium at the National Defense University. President Obama noted that: Confronted by [Colonel Muammar Qadhafi’s] brutal repression and a looming humanitarian crisis, I ordered warships into the Mediterranean. European allies declared their willingness to commit resources to stop the killing. The Libyan opposition and the Arab League appealed to the world to save lives in Libya. And so at my direction, America led an effort with our allies at the United Nations Security Council to pass a historic resolution that authorized a no-fly zone to stop the regime’s attacks from the air, and further authorized all necessary measures to protect the Libyan people . We knew that if we waited—if we waited one more day, Benghazi, a city nearly the size of Charlotte, could suffer a massacre that would have reverberated across the region and stained the conscience of the world. It was not in our national interest to let that happen. I refused to let that ∗Anna F. Triponel is Senior Counsel and Director of the New York office of the Public International Law & Policy Group (PILPG). Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University. He is also the co-founder and President of PILPG. The authors would like to thank Viki Economides, Shabnam Mojtahedi, Lee Tucker and Christopher Valvardi for their excellent research assistance. 2 happen. And so nine days ago, after consulting the bipartisan leadership of Congress, I authorized military action to stop the killing and enforce UN Security Council Resolution 1973.1 U.S. Secretary of State Hillary Clinton declared American engagement in Libya to be “an unfolding example of using the combined assets of smart power, diplomacy, development, and defense to protect our interests and advance our values.”2 She could have appropriately added domestic and international law to her list of tools being employed. This case study chapter provides an opportunity for students to examine the role law plays in decisions relating to highly complex operations—how it enables, shapes and constrains political-military options and policy approaches. Five key political-military decision points will be examined relating to the case of Libya. First, should the United States join France and Great Britain in using force to protect the people of Libya? Second, what is the extent of military force that could be used to accomplish this objective? Third, to what extent should Congress be involved in the decision to use force? Fourth, should the United States recognize the National Transitional Council as the legitimate government of Libya? Finally, should the United States and its allies seek a negotiated settlement if the military campaign failed to adequately protect civilians or to prompt a regime change? Each section below will address one of these decision points. Each section will first place the applicable legal questions in the context of the civilian, policy and military questions faced by the key decision makers. Each section will then undertake a brief review of the applicable underlying legal principles and norms, as well as prior United Nations (UN) practice. Each section will conclude with a review of how the international and domestic law enabled, shaped or constrained the political and military decision- making process in the case of Libya. Should the United States join France and Great Britain in using force to protect the people of Libya? In seeking to determine whether or not the United States should join France and the United Kingdom in using force to protect the people of Libya, the President and his political and military advisors considered a number of questions. Was the use of force likely to succeed in protecting the people of Libya? Would this set a precedent for humanitarian intervention in other conflicts? Would it spark a full-blown civil war? Would military intervention lead to large-scale loss of life and cause more harm than good? How long would the campaign last? Would it become a protracted military conflict? A quagmire? What could be the unintended consequences of the intervention? Did the U.S. and its allies have sufficient military resources to successfully intervene? Would this intervention cause damage to the relations with other important powers, such as Russia and China? And, was there an international legal basis for the use of force? 3 The conventional underpinnings of sovereignty, political independence and territorial integrity require that states have a clear legal basis for using force against another state. While states have often used force without a clear legal basis, or in direct violation of international law, the United States and its key allies universally seek a legal basis before using force. The case of Libya was no exception. Legality of Use of Force War has been prohibited since the adoption of the 1928 General Treaty for the Renunciation of War (also known as the Kellogg-Briand Pact). Prior to this, the 1919 Covenant of the League of Nations had added certain conditions to the nineteenth century thinking that the use of military force was permissible. Following World War II, the United Nations Charter of June 26, 1945 (UN Charter) embodied a prohibition on the threat or use of force and created specific methods for ensuring that this prohibition be respected.3 The regime for the use of force is thus found in the UN Charter, complemented by customary law and several declarations of the UN General Assembly. Today, the general rule under international law is that the threat or use of force by one state against another is prohibited. This general prohibition covers all armed hostilities, whether or not a war has been declared. The exceptions are that the threat or use of force is allowed if: (i) used for a state’s self-defense, (ii) authorized by the UN Security Council pursuant to Chapter VII of the UN Charter, or (iii) used for humanitarian intervention.4 Under customary international law, states have a right of self-defense. This enables states to resort to the use of force when “the threatened attack is imminent, no other means would deflect it and the action is proportionate.”5 A debate exists among policy makers as well as among the international legal community as to whether pre- emptive or anticipatory self-defense measures—taken in anticipation of a non-imminent or non-proximate attack—are legal. Although these measures are not provided for in the UN Charter, proponents of anticipatory self-defense measures refer to customary law as the basis for their legality. While the practice of states has generally been opposed to anticipatory self- defense, the U.S. government has used this basis as a legal justification for recent military actions. For instance, in the wake of the 9/11 terrorist attacks on the territory of the United States, the Bush Doctrine of 2002 relied upon a right of ‘pre-emptive self-defense’ against potential adversary states, whether or not an imminent attack could be proven.6 The legality of the Bush Doctrine has generally been rejected by international lawyers. More recently, the anticipatory right to self-defense has been relied upon to justify the legality of U.S. drones targeting terrorist suspects in Pakistan, Somalia and Yemen. The legality of these attacks has also been contested. In addition to the use of force for self-defense, the UN Security Council can authorize military force under Chapter VII of the UN Charter. Resolutions adopted under Chapter VII are binding on all UN member states, as opposed to resolutions adopted 4 under other chapters of the UN Charter.