Up in Smoke

Did the idea of a legal war die along with Muammar al-Qaddafi?

As Muammar al-Qaddafi's corpse rotted in a Misrata meat locker, Barack Obama's gambit on Libya was being widely acclaimed in Washington as a foreign-policy success -- and a politically daring one. The U.S. president's own secretary of defense and key military advisors, after all, were against the operation; many of his Republican critics, meanwhile, had advocated for a more forward American military role, reminiscent of Iraq. Spurning both, Obama opted for a carefully calibrated effort that emphasized the support of key allies, enabling a popular uprising that steadily peeled away support from a loud but teetering dictator. In the end, the effort cost no American lives and less than $2 billion, which Sen. Lindsey Graham reports the Libyans are willing to repay. The future remains unclear about the sort of government Libya will see in Qaddafi's wake -- but it's quite clear that the operation burnished the reputation of the United States with Libya's population, as was evident by the American flags hoisted in Benghazi and Tripoli last week. Compared with the cost and doubtful outcomes in both Iraq and Afghanistan, the Libya campaign looks -- for now, at least -- like a stroke of genius.

But seen through the lens of the law, the victory is a distinctly Pyrrhic one. When he was elected, Obama promised an America that, in a sharp break from its very recent past, would lead by example and reinvigorate its respect for the rule of law, both at home and on the international stage. Obama's conduct of the war in Libya points to a White House that is perhaps more cautious than its immediate predecessor in foreign military exploits, but just as assertive in the area of executive prerogative. It is a gloomy precedent -- and one that will make necessary humanitarian actions in crises such as Syria's less, not more, likely to happen.

The Libya operations have to be assessed at two separate levels of legality. The first is domestic and involves the constitutional interplay between the executive branch and Congress in the realm of war powers. American legal thinking about the respective roles played by Congress and the president can be divided roughly into three camps. The first and more conservative view, dominant among constitutional scholars, holds that the president has the power to respond to an attack on his own or to take urgent steps to defend the country, but that he must secure Congress's consent in some form before using U.S. arms in hostilities abroad on a more sustained basis. To protect its rights against encroachment by the executive, Congress enacted the War Powers Resolution in 1973. Compliance with or circumvention of the resolution continues to this day to be a key field of tension between the White House and Congress.

The second, traditionally liberal view, advanced by Democratic administrations going back perhaps as far as Harry Truman, was presented most concretely in a series of memoranda authored by Walter Dellinger, head of the Justice Department's Office of Legal Counsel (OLC) in Bill Clinton's administration. Dellinger chose not to tackle the traditionalists head-on. Rather, he suggested that there was a species of conflict short of war that was not really covered by the obligation to consult Congress. Dellinger argued that the president could act unilaterally when there was some compelling national interest that militated for action and the deployment would not amount to war in the sense discussed in the Constitution.

The third perspective, associated with Berkeley law professor and George W. Bush-era OLC staffer John Yoo and a number of other neoconservatives, argues that the traditional view is a fundamental misunderstanding of the constitutional order and that the president always has the authority to act unilaterally. The most authoritative statement of this perspective may well be in the OLC memorandum that Yoo wrote to justify Bush's decision to commence hostilities in Iraq in 2003. It's noteworthy that notwithstanding Yoo's opinion, Bush still felt compelled to seek specific votes in Congress to authorize military action in Iraq and Afghanistan. Having obtained these votes, Bush never had cause to put the Yoo theorem to the test. But Yoo's argument does present the ultimate legal pushing of the envelope in the area of presidential war powers.

Obama probably could have secured congressional authority for his operations in Libya at the outset of the conflict -- a fact suggested by resolutions adopted before the commencement of hostilities encouraging him to act -- but he opted not to do so. Instead he relied on a memorandum authored by the OLC's Caroline Krass. Following carefully in the footsteps of the earlier analysis by Dellinger, Krass argued that "preserving regional stability" in North Africa and "maintaining the credibility of United Nations Security Council mandates" were important national interests of the United States that warranted the Libya operations. She also concluded that the nature of the operations -- involving no deployment of ground forces and only a limited measure of U.S. engagement, in concert with NATO and other allies who would bear the brunt of the effort -- supported a conclusion that this was not what the Constitution meant by "war."

That second point is, of course, by far the more problematic, considering the notorious difficulty at the outset of any conflict of gauging the level of effort ultimately required. However, on this point, Krass was borne out by the facts: Although the United States took the lead in the first weeks, its role did in fact recede as the conflict wore on, with France and Britain taking center stage. Disorganized rebels assembled under the banner of the National Transitional Council, which steadily expanded its authority over the bulk of Libya's territory and accumulated international recognition.

However, the first prong of the Krass analysis couldn't be more doubtful. The notion that "preserving regional stability" in North Africa was a matter of U.S. national interest was squarely rejected by Defense Secretary Robert Gates and other senior Pentagon brass and can't be squared with prior authoritative statements of policy towards the region; the best argument that Krass could muster was the suggestion that Italy and other U.S. allies in southern Europe would have to cope with waves of refugees from Libya. Recent reports have suggested, moreover, that Krass's criteria were marginal at best in the actual decision-marking. As Rolling Stone's Michael Hastings reported in a recent lively portrait of the Obama administration's internal debate over Libya, concerns that a Qaddafi victory would deflate the Arab Spring movement, coupled with a sense that the revolutionaries' success could be ensured with a minimal commitment of blood and treasure, was at the core of Obama's call. There is thus a disconnect between the conjectural reasons used to justify the OLC memo and the actual reasons that reportedly drove Obama's decision to support the venture.

The Obama team also stepped around the War Powers Resolution. It issued brief reports to Congress after hostilities had been commenced, but it did not recognize the resolution as being applicable to the Libya campaign. The Obama view was not, as Republican administrations since Nixon have asserted, that the resolution was an unconstitutional intrusion on presidential prerogatives. Rather, it took aim at the resolution's definition of "hostilities" -- a term consciously adopted to include actions far short of war -- and argued that the operations in Libya could not be viewed as covered. State Department Legal Advisor Harold Koh advanced this view in a hearing before Congress on June 15, the same date on which the Obama team delivered its report on actions in Libya.

At this point, U.S. involvement in the Libyan campaign consisted of "occasional strikes by unmanned Predator UAVs," the report argued. The administration was trying to saddle the term "hostilities" with the relatively narrow constitutional sense of the word "war," but Congress plainly opted to use "hostilities" in order to capture a far wider array of military actions. As various scholars have noted, "hostilities" has a well-established meaning in international humanitarian law: "the (collective) resort by the parties to the conflict to means and methods of injuring the enemy." House Speaker John Boehner and Senate Majority Whip Dick Durbin shared the same assessment: The notion that lethal drone strikes are not "hostilities" under the War Powers Resolution "doesn't pass a straight-face test."

Obama's engagement with the Constitution and domestic law thus consisted of a rubber-stamp legal opinion from the OLC that made policy assumptions publicly contradicted by senior administration national security spokesmen, and a series of cute word games to deny application of the War Powers Resolution. Congress, moreover, failed to stand up for its prerogatives either by explicitly authorizing the campaign or by challenging it. Congressional leaders were too obsessed with partisan gamesmanship and too indifferent to the fate of their own constitutional powers to do either. The Libya campaign thus turns into another vindication of executive war-making powers, and a demonstration of Congress's institutional lack of gravitas when dealing with minor foreign conflict.

Enter Resolution 1973, which the Security Council adopted on March 17. There were three provisions at the core of the resolution: a call for an immediate ceasefire and an end to violence against civilians; the establishment of a no-fly zone over Libya; and authority to use "all necessary force" to protect civilians and civilian-populated areas while prohibiting the deployment of a "foreign occupation force." As the resolution was adopted, forces loyal to Qaddafi were preparing an assault on Benghazi, the rebel stronghold. Qaddafi himself made statements threatening the violent taking of the city and the "house-by-house" extermination of anti-government protesters. His comments were sufficiently unhinged, and the threat of a bloodbath sufficiently clear, that the Arab League lined up in support of the resolution and even Russia and China -- which had threatened a veto of the resolution -- switched their position to abstain instead. Qaddafi embraced the ceasefire call, but his forces continued their attacks on civilians unabated -- satisfying the resolution's preconditions for the use of military force.

While much of the military operations in Libya were plainly within the mandate of Resolution 1973, some aspects exceeded it. For instance, attacks fairly early in the conflict targeted command-and-control centers of the Qaddafi regime. Such steps would be routine in wartime and would plainly be authorized under the laws of armed conflict. But it's not so clear that they were authorized by Resolution 1973, the authority of which rested on the doctrine of "responsibility to protect" (R2P): the notion, adopted by the U.N. in 2005, that intervention is justified to protect a civilian population from harm, even at the hands of its own leaders. After all, strikes were mounted against military positions far away from the attacks on civilians and with no apparent linkage to them. Moreover, as the war progressed, the posture of the fading Qaddafi regime became increasingly defensive. The final weeks of the campaign put this in sharpest perspective, as Qaddafi and his final core group of retainers withdrew to his hometown of Sirte, ultimately fleeing in a convoy that was fired upon by NATO aircraft and an American Predator drone, destroying two vehicles. Libyan authorities have denied an independent autopsy that might show conclusively the cause of Qaddafi's death -- which may have been shots fired after he surrendered and was in rebel custody -- but the role played by NATO in his final moments points to the near perfect inversion of the mission. Instead of protecting civilians from attack by Qaddafi and his forces, they were attacking a fleeing and clearly finished Qaddafi.

At this point, some members of the Security Council clearly feel they got suckered. They voted for a resolution to protect the people of Benghazi from slaughter and saw their authority invoked to depose Qaddafi and install a new government. That will have consequences for future humanitarian crises. Russia and China have now blocked Security Council resolutions targeting Syria. Russian President Dmitri Medvedev has made clear that Russia supports demands for reform in Syria and abhors the use of violence against demonstrators, but has been equally clear that Russia cannot risk a repeat of the Libyan example.

NATO's operations in Libya began as a valid demonstration of the use of military force to protect civilians. But they evolved quickly into an exercise in regime change. In the wake of Libya, the Security Council is unlikely to embrace another R2P operation anytime soon. And that is bad news for the people of Damascus and Hama, as well as for advocates of the responsibility to protect.

Majid Saeedi/Getty Images


Outside the Law

From flawed beginning to bloody end, the NATO intervention in Libya made a mockery of international law.

The execution-style killing of Muammar al-Qaddafi by a mob of gunmen in the ruins of Sirte last week put an end to NATO's six-month military intervention in Libya. Unless the country descends into anarchy or an equally abhorrent dictator succeeds Qaddafi, the Libya intervention will be regarded as a victory for the West, for the United States, and for that reluctant but surprisingly fierce warrior, President Barack Obama. And it's a victory that came on the cheap. It is rare thing indeed for the Pentagon to spend as little as $1 billion on a successful military campaign, without losing ten times that amount in the sofa cushions.

But if the Libya intervention turns out to be a political and moral victory, it also illustrates once again the motto, inter arma silent leges -- in times of war, the law falls mute. Both international and U.S. law took a drubbing alongside Qaddafi's ragtag army, casting further doubt upon the already tenuous notion that international military actions can be conducted on a legal basis.

The basis for the intervention under international law was dubious from the start. Libya is a sovereign state and, as a matter of international law, NATO cannot bomb it without a legal justification. The rebels' request for military intervention could not override the government's quite understandable, if regrettable, refusal to give its consent to be bombed. So, the United States and NATO turned to the U.N. Security Council, which enjoys the power under the U.N. Charter to authorize military interventions in foreign countries.

But two problems arose. The first was the legal justification for intervening. The Charter gives the Security Council authority to take actions to promote peace and collective security. But Libya did not threaten its neighbors or any other country. The purpose of the intervention, according to the resolution that authorized it, was to protect Libyan civilians from their government.

Some commentators claimed that the Libyan intervention was justified by the Responsibility to Protect (obnoxiously known as "R2P"), a principle formally endorsed by U.N. members in 2005. The Responsibility to Protect requires all countries to protect their own civilians, and may permit the international community to intervene if they do not. However, the Responsibility to Protect never achieved the status of international law because states were not willing to embody the principle in a binding treaty. As a principle or norm, it has been applied selectively, to say the least. No one seems interested in protecting Syrian or North Korean civilians from their governments. The truth is that the Responsibility to Protect is too capacious a norm to regulate states: It can be cited to justify virtually any intervention in the type of country that the West might want to invade, while it can also be evaded on grounds that it is not formal law, so countries can avoid intervening in a crisis when intervention does not serve their interests.

The second problem was procedural. The 15-member Security Council must authorize any military intervention by a three-fifths supermajority -- nine votes. The supermajority requirement poses few obstacles because smaller countries that rotate onto the Council can be easily bullied or bought off, but the permanent members -- the United States, France, Britain, China, and Russia -- possess vetoes. In 1999, China and Russia refused to consent to a military intervention in Serbia to protect Kosovo from ethnic cleansing, forcing NATO to go it alone and violate the law. In 2003, the United States and Britain invaded Iraq without Security Council authorization. Possibly realizing the limited power of their vetoes if Western countries could simply ignore them in the past, and recognizing that Arab states supported the rebels, China and Russia abstained this time, and an authorizing resolution was issued.

But China and Russia appear to have used their bargaining power to secure some concessions. Resolution 1973 did not authorize a full-blown ground invasion, and in fact prohibited a "foreign occupation force." Instead, it established a no-fly zone, and authorized the use of military force to "protect civilians and civilian populated areas under threat of attack." This was not a remit to depose Qaddafi.

Far from adhering to these essentially defensive parameters, NATO took an active part in assisting the rebels' campaign to overthrow the government, with some countries even sending limited ground forces, and undertaking various efforts to assassinate Qaddafi in bombing attacks. None of this was blatantly illegal -- and NATO could point out that protecting civilians required disabling Libyan ground forces and their leadership -- but it was far from the spirit of Resolution 1973, and of the U.N. Charter itself, which was never understood to give powerful states a means to bully small or medium-sized countries that did not comply with their visions of international order.

Another casualty of the military intervention was human rights. To be sure, Qaddafi was a cruel dictator, and his overthrow was a victory for those who care about human rights. But human rights law does not endorse the principle that the ends justify the means -- even if the ends are humanitarian. As Amnesty International reported, the rebel groups "abducted, arbitrarily detained, tortured and killed former members of the security forces, suspected Gaddafi loyalists, captured soldiers and foreign nationals wrongly suspected of being mercenaries fighting on behalf of Gaddafi forces."

That this would happen was surely obvious to the policymakers involved. That this would happen when NATO forces commit themselves to an air war, and refuse to send ground troops that might have imposed some discipline on the rebel forces, should have been even more obvious. But the fact is that a ground campaign was politically impossible. Thus, the choice was between non-intervention, which could have resulted in massacres and the prolongation of Qaddafi's regime, or intervention along with moral, if not necessarily legal, complicity in torture and crimes against humanity by the rebels. International law provides no guidance for making this tradeoff, and thus surely did not influence the decisions of the governments.

The denouement, some six months after the U.N. resolutions, continues the theme. International lawyers and human rights advocates insisted that Qaddafi be captured and tried for his international crimes, either in an international tribunal or in a domestic court that complied with exacting international standards. Indeed, the Security Council had referred the matter to the International Criminal Court, which indicted Qaddafi, his son Saif al-Islam, and brother-in-law and military intelligence chief Abdullah Senussi in June. The rebel forces appear to have executed Qaddafi without a trial, and one wonders whether they did so in part to avoid the nightmare of international criminal adjudication.

The International Criminal Court is a virtually untested institution. It has conducted a handful of trials over its ten-year existence; only one of them, that of former Congolese rebel leader Thomas Lubanga, is even close to completion. The ICC was supposed to replace the ad hoc tribunals that had been used for Rwanda and Yugoslavia, which were chiefly famous for the expense and length of their trials, and hence their very limited achievements in terms of international justice. For international lawyers and human rights advocates, the delays and ambiguity are a small price to pay for the catharsis of an international criminal conviction that would vindicate international law. For advocates, every international criminal trial is supposed to regularize and promote international law, so each trial helps establish a new international legal order. In pursuit of this utopian goal, advocates disregard the needs of the people they purport to help, which are put to the side for the sake of an imaginary future in which international law finally prevails over power.

What were these needs in Libya? It must have been obvious to Libyans that an endless international trial in a faraway country -- the Netherlands -- would not serve their immediate political needs, to say nothing of their sense of justice, which required death. (The ICC is not permitted to impose the death penalty since many countries -- including its main sponsors -- regard the death penalty as contrary to international law.)

A trial would have been pointless as well. In the real world, trials are designed to establish the truth; but who doubts that Qaddafi terrorized his people, and had to be removed from the scene if Libya was to move forward? The facts of his reign are not in dispute, but are also, in a way, irrelevant because no one wanted him to retain power. A grandstanding Qaddafi at trial over a course of years could hardly have contributed to political stability in Libya. Indeed, a Qaddafi who remained alive even for a short time after his capture may well have been a threat to stability. If the Libyan rebels executed Qaddafi to avoid this outcome, it was surely a sensible thing to do, whatever international law might require.

The irregularity of the Libya intervention from the standpoint of international law has a domestic counterpart: the illegality of U.S. military participation under U.S. law. Obama sent U.S. troops to war without congressional authorization and in violation of the War Powers Resolution, which requires the president to withdraw troops from "hostilities" if he does not secure congressional consent within 60 days of the start of hostilities. In June, the Justice Department advised Obama that he would have to withdraw American forces under the War Powers Resolution, but Obama disregarded this advice, relying instead on tendentious advice from elsewhere in the government that the bombing campaign in Libya, which ultimately involved more than 7,000 sorties involving U.S. aircraft, did not count as "hostilities," and thus did not trigger the resolution. A better explanation is that the War Powers Resolution is a dead letter. President Bill Clinton violated it as well in 1999 when Congress refused to authorize the intervention in Serbia -- and generally speaking presidents have given it only lip service since its enactment in 1973.

Both domestically and internationally, then, the dogs of war have escaped the well-meaning efforts to subject them to legal frameworks. When unpopular wars fall afoul of the law, policymakers and advocates believe themselves justified in redoubling their efforts to build up the law, so as to prevent a recurrence. A "good war" that runs afoul of the law, however, presents more significant obstacles, for it suggests that lawmakers are incapable of setting out rules that sensibly authorize the use of military force when it is warranted and restrain its use when it is not.

It is possible, indeed likely, that if countries had complied with international law, and the U.S. government had complied with domestic law, Qaddafi would still be in power, while thousands of Libyan civilians would be in torture chambers or graves. A similar conundrum confronted governments in the 1999 Serbia war, leading an international commission to declare that the war was "illegal but legitimate" -- a near contradiction which comes close to saying that governments should disregard law when they have, or think they have, legitimate moral or political aims. But given that governments always believe that their aims are legitimate, what force can law possibly have when it comes to arms?