Revolution and intervention in the Middle East.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 9:00 a.m., Saturday, March 26, by its moderator, Monica Hakimi of the University of Michigan School of Law, who introduced the panelists: Ali Aujali, former Ambassador of Libya to the United States; Harold Koh, Legal Adviser of the U.S. Department of State; Hussein Hassouna, Ambassador of the League of Arab States to the United States; Mary Ellen O'Connell of Notre Dame Law School; and Catherine Powell of the Secretary of State's Policy Planning Office, U.S. Department of State.


Welcome to this morning's panel entitled "Revolution and Intervention in the Middle East." Over the past couple of months, we have seen a wave of protests throughout the Middle East and North Africa. Most of these protests have been largely peaceful and seem to be motivated by a mix of economic and political concerns that people have with the way in which their governments function. The governments have responded in a variety of different ways. So on one end of the spectrum, we've seen governments implement modest economic or political reforms to appease the protesters' demands.

To give you some examples, in Jordan, the king fired his government, including his prime minister. In Algeria, the government lifted the state of emergency. In Morocco, the president promised significant constitutional reforms. In Oman, the sultan decided to give lawmaking authority to officials outside the royal family, and in Saudi Arabia, the government increased the amount of government handouts.

In the middle of the spectrum, we've seen some actual or anticipated regime change, most obviously in Tunisia and Egypt, but more recently the presidents of Yemen and Sudan have indicated that they are willing to hand over power in the near to medium term.

At the other end of the spectrum, we've seen several governments use violence against the protestors or against their people. Of course, the violence has varied in degree and severity; in some cases, it's been quite serious. The information is imperfect, but from what I've been able to gather, the following countries have used violence against their people: Sudan, Syria, Iran, Bahrain, Libya, Algeria, Iraq, Morocco, Yemen, and Mauritania.

Of course, some governments have used a combination of these measures. As I mentioned, Yemeni President Saleh indicated that be is ready to hand over leadership and responsibility for the government. He also has used violence against his people, likewise in Sudan.

So that's the big picture, and I'm sure the speakers here will refer in the course of their remarks to what's been happening in the Middle East and North Africa generally, but the focus of our discussion today will really be on Libya.

From what I understand, governmental violence against the Libyan people even before the conflict broke out was more excessive than in most other countries, and the protestors relatively quickly took up arms against the government.

The international community responded through several different measures. On February 25th, 2011, the Human Rights Council established a Commission of Inquiry on Libya. On February 26th, the UN Security Council passed Resolution 1970 in which, among other things, it referred the situation in Libya to the prosecutor of the International Criminal Court and established an arms embargo and asset freeze. On March 12th, the Arab League asked the UN Security Council to implement a no-fly zone over Libya. On March 17th, the UN Security Council adopted Resolution 1973 in which, among other things, it demanded a cease-fire in Libya; it established a no-fly zone over Libya with some important exceptions; and, perhaps most importantly, it authorized member states to take all necessary measures to protect civilians and civilian-populated areas under threat of attack in Libya, while at the same time excluding a foreign occupation force on Libyan territory. Shortly thereafter, the United States and other countries engaged in a military air operation in Libya.

So, with that introduction, let's begin the roundtable. We decided to structure the roundtable more as a conversation than a series of formal presentations, and so we will anchor the conversation by some questions that we have developed collectively over the course of the past couple of days.

Let me introduce each panelist briefly. Immediately to my left, Ambassador Ali Aujali, who is the former Ambassador of Libya to the United States; one over, Ambassador Hussein Hassouna, the Ambassador of the Arab League to the United States; one over, Harold Hongju Koh, the Legal Adviser at the U.S. Department of State, on leave from his position as the Martin R. Flug '55 Professor of International Law at the Yale Law School; next, Mary Ellen O'Connell, the Robert and Marian Short Chair in Law and Research Professor of International Dispute Resolution, Kroc Institute at the Notre Dame Law School; and last but certainly not least, Catherine Powell from the Secretary of State's Office of Policy Planning, U.S. Department of State, on leave from her position as Associate Professor of Law at Fordham Law School.

So, Harold, maybe we could start with you if you don't mind just relaying to us the legal justification for the use of force, both under international and U.S. domestic law.

MONICA HAKIMI, Assistant Professor of Law, University of Michigan Law School.


Thank you, Monica. It is always a pleasure and an honor to speak here at the American Society of International Law's Annual Meeting.

As your President, David Caron, noted last night, I am the 22nd American to serve as Legal Adviser of the U.S. Department of State, and I am honored to serve during this, the eightieth year after Congress first created our office by statute. At a conference on the history of the Legal Adviser's Office held at Georgetown Law School earlier this month, I gave a keynote address that took note of the Legal Adviser's historical role as spokesperson for the United States government regarding international law, and of what I called the Legal Adviser's "Duty to Explain": the historical practice of the Legal Adviser publicly explaining the legal basis for United States military actions that might occur in the international realm. It is in that spirit that I appear here this morning to give the following statement.

On March 19, 2011, at President Obama's direction, U.S. military forces began a series of strikes in the national security and foreign policy interests of the United States to enforce UN Security Council Resolution 1973. These strikes will be limited in their nature, duration, and scope.

Their explicit purpose is to support an international coalition as it takes all necessary measures to enforce the terms of Resolution 1973 (adopted on March 17, 2011) as part of an international effort authorized by the United Nations Security Council and undertaken with the support of European allies and Arab partners, in order to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.

U.S. forces are conducting a limited and well-defined mission in support of international efforts to protect civilians, to prevent a humanitarian disaster, and to set the stage for further action by other coalition partners. U.S. military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to continue to carry out the measures authorized by Resolution 1973. The United States has not deployed ground forces into Libya and will not do so. 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. We are working with our allies to transition to NATO and other partners the principal command and control of this effort and to ensure the continuation of activities necessary to realize the objectives of UN Security Council Resolutions 1970 (adopted on February 26, 2011) and 1973.

As Secretary of State Clinton emphasized on March 24:

From the start, President Obama has stressed that the role of the U.S. military would be limited in time and scope. Our mission has been to use America's unique capabilities to create the conditions for the no-fly zone and to assist in meeting urgent humanitarian needs. And as expected, we're already seeing a significant reduction in the number of U.S. planes involved in operations as the number of planes from other countries increase in numbers. [As of Thursday, March 24th, we took] the next step. We have agreed, along with our NATO allies, to transition command and control for the no-fly zone over Libya to NATO. All 28 allies have also now authorized military authorities to develop an operations plan for NATO to take on the broader civilian protection mission under Resolution 1973. As our press spokesman specified yesterday, "[T]his decision to go forward with the planning reflects an agreement in principle by allies that this mission should be integrated into NATO's command and control role, but it will not be formally agreed until allies approve the plan, which will take place likely [either tomorrow] or Monday--Sunday, March 27th or Monday, March 28th."

These U.S. military actions rest on ample international legal authority. Chapter VII of the United Nations Charter grants authority to the Security Council to decide what measures shall be taken to maintain or restore international peace and security where it determines the existence of any threat to the peace, breach of the peace, or act of aggression (Article 39). Articles 41 and 42 further specify that the Security Council may take such action by air, sea, and land forces as may be necessary to maintain or restore international peace and security. Acting under Chapter VII, in Resolution 1973 the Security...

To continue reading