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Libya and the Laws of War

By Henry “Chip” Carey

As events were unfolding in Libya, President Obama met with Congressional leaders, just like his predecessors did in prior conflicts: Reagan (Lebanon, Libya), Bush 41 (Iraq), and Clinton (Serbia). However, Obama appears to be the first American president to invoke war powers under the War Powers Act, a piece of legislation from 1973 that allows the executive to send U.S. armed forces into a conflict without a Congressional War Declaration or authorization, if notification is provided in the first 48 hours if the United States is already under attack. Previous presidents either denounced the law as unconstitutional or simply ignored it. The law requires that U.S. troops be withdrawn within 90 days from the start of the conflict, unless Congress, in a joint resolution, authorizes them to stay within the first 60 days of U.S. force deployment. 

Some argue that sending U.S. troops to Libya without an attack on the United States violates the War Powers Act. Others argue that particular law does not apply to the Libyan conflict since it is an air war and troops are not in harm’s way. Still others would counter that war powers are vested in Article I, Section 8, which lists the powers of Congress and mandates legislative authorization.  Conversely, Article I, Section 8 allows Congress, under the War Powers Act, effectively to order troops out of Libya without presidential signature, by declining to authorize within the 60 day limit. Still others argue that the War Powers Act is unconstitutional because it does not require a presidential signature.

What Obama may have legally established, however, is that American troops are in harm's way—air war or not. That contrasts with Reagan's claim that Marines in Lebanon would not be subjected to the danger of bullets, which in his view made the legal requirements of the War Powers Act irrelevant. 

Supreme Court cases have clearly stated the president does not need either a War Declaration or an authorization to start a war. In the 18th and 19th century, American presidents consistently used force before Congressional authorization was provided. This power was upheld in the Prize cases (67 U.S. 635, 668 [1863]), in which the US Supreme Court upheld President Lincoln’s blockade on the South, including both defensive and offensive measures, because of the preceding Confederate attack on Fort Sumpter. By the 20th century, American presidents began using force before the United States itself was attacked, though in all cases there at least had to be an armed threat against the country. 

However, a process of deliberation with Congress is probably wise to gain an evaluation of and legitimacy for a sustained war campaign. If Congress participates, then blame can be shared between the two branches if things go south. Should Congress choose not to participate, the president must withdraw within 90 days, even if things go poorly. Obama can no longer ignore the War Powers Act the way Reagan, Bush 41 and Clinton did. 

However, one could argue that any action taken under the U.N. Security Council Resolution 1973, which authorized the no-fly zone, also requires an authorization from Congress. The U.N. Participation Act of 1945 does give the President the power to carry out a U.N. Charter Chapter VII, UN Security Council authorization of force. However, Section 6 of that UN Participation Act requires the President to come to Congress for advance authorization whenever he plans to support a U.N. military action, such as the one ongoing in Libya. 

By invoking the War Powers Act for the first time, President Obama appears to be suggesting that this more recent law has superseded Section 6 of the U.N. Participation Act, or that an air war does not constitute a military action. Under international law, the more recent or the more specialized treaty governs. However, that logic may or may not apply to American domestic law. If that legal argument did not convince a hypothetical court, then the Obama administration would argue that without troops on the ground, the U.S. attacks are only designed to stop the killing of civilians and are not effectively involved in “military action.” Based on Reagan’s interpretation of the War Powers Resolution, American troops are not involved in armed conflict until they are attacked. So far, the major American mishap came from an airplane malfunction, not from combat, and the pilots were rescued.  Incredibly, in both the 1995 and 1999 attacks on Bosnia and Serbia, there were no American casualties, though pilots were rescued.

Still, the terms of engagement in Security Council Resolution 1973 are limited to a no-fly zone. Those terms have obviously been exceeded tactically by bombing targets that have nothing to do with air flights. The Resolution appears to have been violated as well, by the President’s stated goals of removing or inducing the rebels to remove Libyan leader Moammar Gaddafi, a goal that violates Article 2(4) of the UN Charter. These international legal arguments may not impress many in Congress, but in a multilateral, internationalized mission, it may be wise to try to comply. 

The real difficulty is that a no-fly zone is not the best method to save lives in a humanitarian intervention. That would have and probably will require troops on the ground, something that the Obama Administration has pledged not to do. In the Kosovo conflict with Serbia in 1999, President Milosevic did not agree to a cease-fire until NATO troops were preparing to invade on the ground.

Security Council Resolution 1973 also prohibits a foreign occupation force from forming in any part of Libya, which prohibits ground forces from controlling the country, but not from attempting to save and protect lives. However, it is difficult to save lives so long as Libyan government forces have not been defeated or stop fighting. This currently is not the Obama plan, though one can imagine an occupation force becoming necessary if neither the UN Security Council, France nor the UK want to lead a post-Gaddafi military operation.

So far, we do not know how to bridge the gap or reconcile American goals and methods with those stated in Resolution 1973. While the language is not precise about what means are legally sanctioned, it is unusual if not unprecedented to authorize force to stop violent state repression and terror. The measures necessary to protect civilians and civilian infrastructure are unclear.  Still, one can argue that the allied coalition has already exceeded these limits in the Resolution in this case. In the past, the phrase in Security Council resolutions, “all means necessary” was used to defeat or remove the enemy. In this case, removal of the enemy is not an officially specified U.N. goal.

While the end of the war is conceivably the end of Gaddafi, it might not violate Resolution 1973 if his removal were the unintended consequence of protecting civilians and civilian areas. How far up the Libyan chain of the command can civilian-protecting attacks be directed? If Gaddafi is ordering loyalists to kill civilians, then he might become a legal military target. That evidence, however, would have to be very clear.

Henry “Chip” Carey is an associate professor of political science at Georgia State University.

[Above: The USS Barry fires Tomahawk cruise missiles at targets in Libya. Photo courtesy of the U.S. Navy.]

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