Jordan J. Paust, Constitutionality of U.s. Participation in the United Nations-authorized War in Libya

• Citation: Vol. 26 No. 1
• Publication year: 2010

CONSTITUTIONALITY OF U.S. PARTICIPATION IN THE UNITED NATIONS-AUTHORIZED WAR IN LIBYA

Jordan J. Paust*

INTRODUCTION

In March 2011, President Barack Obama decided that the United States would participate with other members of North Atlantic Treaty Organization (“NATO”) in the use of military force in Libya authorized by the United Nations (“UN”) Security Council in Resolution 1973, which “[a]uthorizes Member States . . . to take all necessary measures . . . to protect civilians and

civilian populated areas under threat of attack in” Libya.1 The Security Council

has authority to authorize enforcement measures under Articles 39 and 42 of the UN Charter in response to “any threat to the peace, breach of the peace, or act of aggression.”2 With respect to Libya, the Security Council decided that attacks on and continued threats to civilians and civilian-populated areas in Libya “continue[d] to constitute a threat to international peace and security,”3 and the Council decided to authorize all necessary measures of protective force, including creation of a no-fly zone.4 The Security Council’s decision to

* Mike and Teresa Baker Law Center Professor, University of Houston Law Center.

1 S.C. Res. 1973, ¶ 4, U.N. Doc. S/RES/1973 (Mar. 17, 2011).

1. U.N. Charter art. 39 (“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”); id. art. 42 (“[The Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include . . . blockade, and other operations by air,

   sea, or land forces of Members of the United Nations.”).

2. S.C. Res. 1973, supra note 1, pmbl.

3. Id. ¶¶ 6–8. Eventually, it was reasonably needed to provide support for regime change in Libya in order to effectively protect civilians who were under a series of armed attacks and serious threats of imminent future attacks by the Qaddafi regime. Regarding such measures, see infra note 10. In addition to the UN Security Council authorization to use all necessary measures of protective force, which covered the subsequent

   need for regime change, during later stages of the Libyan armed conflict there was a change in the international legal status of the Libyan rebel-insurgents to belligerents, and they consented to and welcomed

   U.S. and NATO uses of force. See Stefan Talmon, Recognition of the Libyan National Transitional Council, ASIL INSIGHTS (June 16, 2011), http://www.asil.org/insights110616.cfm (describing the Libyan National Transitional Council (“NTC”) as belligerents). Still later, the NTC gained recognition as the legitimate representative of the Libyan people and its consent provided additional independent legitimacy for use of force to support regime change, to provide self-determination assistance to the Libyan people, and to participate in collective self-defense against continuous armed attacks by remnants of the Qaddafi regime. See William Wan

   & William Booth, Libyan Rebels Given Full U.S. Recognition, WASH. POST, July 16, 2011, at A9. Gaining

   authorize the use of force as an enforcement measure was binding on members of the UN under Articles 25 5 and 48 6 of the UN Charter, but because it authorized the use of force and did not require members to engage in such enforcement measures, each member had some discretion whether to join.7

   
   

   On March 19, 2011, military forces of the United States, Great Britain, and France, in conjunction with NATO, initiated Operation Odyssey Dawn and began to destroy numerous military assets of the government of Libya under Muammar Qaddafi.8 Within the first few months, the United States used more than one hundred missiles as well as fighter aircraft and drones to target

   Qaddafi’s tanks, military vehicles, aircraft, anti-aircraft emplacements, artillery, command centers, and other military targets.9 Thereafter, the United

   
   

   recognition in July 2011 by thirty-two countries (including the United States), the NTC became “the legitimate governing authority in Libya.” Fourth Meeting of the Libya Contact Group Chair’s Statement, July 15, 2011, Istanbul, para. 4, http://www.mfa.gov.tr/fourth-meeting-of-the-libya-contact-group-chair_s-statement_-15- july-2011_-istanbul.en.mfa; see also Wan & Booth, supra; Talmon, supra. On the legitimacy of self- determination assistance in certain contexts, see, for example, Jordan J. Paust, Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond, 35 CORNELL INT’L L.J. 533, 547–48 (2002). With respect to recognition of the National Transitional Council of Libya (“NTCL”) and Security Council encouragement of the NTCL to implement its plans, for example, to protect Libya’s population, restore governmental services, prevent violations of human rights, and ensure an inclusive political process involving free elections, see S.C. Res. 2009, ¶¶ 5, 7, U.N. Doc. S/RES/2009 (Sept. 16, 2011) (referring to the NTCL as “the Libyan authorities”).

4. U.N. Charter art. 25 (“The Members of the United Nations agree to accept and carry out the decisions

   of the Security Council in accordance with the present Charter.”).

5. U.N. Charter art. 48(1) (“The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.”).

6. S.C. Res. 1973, supra note 1 (authorizing, requesting, and calling upon the Member States to participate, rather than requiring them).

7. Mark Townsent, Operation Odyssey Dawn Commences To End Gaddafi Onslaught on Benghazi,

   GUARDIAN (Mar. 19, 2011, 7:29 PM), http://www.guardian.co.uk/world/2011/mar/19/operation-odyssey- dawn-tomahawks-libya.

8. See, e.g., Elizabeth Bumiller & David D. Kirkpatrick, Airstrikes Pound Libyan Forces, N.Y. TIMES,

   Mar. 24, 2011, at A15; John F. Burns, NATO Begins Helicopter Attacks in Hopes of Ending the Stalemate with Qaddafi, N.Y. TIMES, June 5, 2011, at A18; Military Releases Details on Libyan Air Strikes, N.Y. TIMES, June 21, 2011, at A8; NATO Planes Hit Tripoli in the Heaviest Strikes Yet, N.Y. TIMES, May 24, 2011, at A8; Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya Operation, N.Y. TIMES, June 16, 2011, at A16; Charlie Savage & Thom Shanker, As NATO Claims Progress in Libya, a U.S. Deadline Is Put to the Test, N.Y. TIMES, May 21, 2011, at A9 (describing predator drones striking government armed forces in Libya); Charlie Savage & Thom Shanker, Scores of U.S. Strikes in Libya Followed Handoff to NATO,

   1. TIMES, June 21, 2011, at A8; Eric Schmitt, U.S. Gives Its Air Power Expansive Role in Libya, N.Y. TIMES, Mar. 29, 2011, at A13; Thom Shanker, Pentagon Says It Has Kept Up Some Strikes on Libya, N.Y. TIMES, Apr. 14, 2011, at A8; Harold Hongju Koh, Statement Regarding Use of Force in Libya (Mar. 26, 2011) (“U.S. forces have targeted the Qaddafi regime’s air defense systems, command and control structures, and other capabilities of Qaddafi’s armed forces used to attack civilians and civilian populated areas.”), in John R.

      States continued to attack targets in Libya and also provided direct support for continued use of armed force by other countries and NATO that migrated from protection of civilians to include support for rebel forces that led to rebel control of Tripoli and regime change some seven months after Operation

      Odyssey Dawn began.10 Clearly, the United States had been directly involved

      in a massive use of armed force that is classifiable under international law as an international armed conflict or war 11 that had been initiated as a UN Security Council enforcement action.

      
      

      Although the U.S. use of armed force and direct participation with other countries and NATO with respect to their use of armed force against military targets in Libya was authorized by and in compliance with the Security Council resolution and was permissible under international law, was President Obama’s use of armed force and direct participation in use of armed force by other countries and NATO in Libya also permissible under our Constitution

      
      

      Crook, Contemporary Practice of the United States Relating to International Law, 105 AM. J. INT’L L. 568, 605 (2011).

9. See, e.g., Jim Garamone, Situation Fluid, but Gadhafi Regime Nears End, Obama Says, AM. FORCES

   PRESS SERVICE, Aug. 22, 2011, available at http://www.defense.gov/news/newsarticle.aspx?id=65104 (“More than 5,300 American sorties have been flown as part of Operation Unified Protector; 1,210 were strike sorties and 101 were Predator unmanned aerial vehicle strikes. The targets included air defenses, arms caches and ground forces.”); Eric Schmitt & Steven Lee Myers, Sharper Surveillance and NATO Coordination Helped Rebels Race to Capital, N.Y. TIMES, Aug. 22, 2011, at A1 (adding that the U.S. provided intensified aerial surveillance in and around Tripoli during the rebel takeover of Tripoli, coordination existed between NATO and the rebels, and “[t]hrough Saturday, NATO had flown 7,459 strike missions . . . attacking thousands of targets”); Thom Shanker & Eric Schmitt, Seeing Limits of ‘New’ War, N.Y. TIMES, Oct. 22, 2011, at A1 (stating that a U.S. predator drone “helped to guide a French warplane to attack Colonel Qaddafi’s convoy”); Larry Shaughnessy, U.S. Has Nearly Doubled Air Attacks on Libya in Past 12 Days, CNN (Aug. 22, 2011), http://articles.cnn.com/2011-08-22/politics/us.libya.costs_1_attacks-civilians-libyan-mission (stating that “[t]here was an average of 1.7 strike sorties a day from April 1 to August 10, compared with 3.1 strike sorties in the past 12 days,” and that attacks by predator drones have more than doubled). The General in command of NATO’s air operation in Libya has stated that NATO forces left the anti-Qaddafi forces (“AGF”) alone...