March 28, 2011

Why the Attack on Libya is Illegal

by Curtis Doebbler

THE FACTS: Unlike the non-violent demonstrations in Egypt, Tunisia, Bahrain, Yemen, Saudi Arabia and elsewhere in the Arab world, the demonstrations that began in Libya on 17 February had deteriorated into a civil war within days. Both sides had tanks, fighter jets, anti- aircraft weapons, and heavy artillery. The government's forces consisted of mainly trained military, while the armed opposition consisted of both defecting soldiers and numerous civilians who had taken up arms.

Indications of the level of force each side has at its disposal were shown by claims on Saturday, 19 March, that both a Libyan government fighter and a fighter jet flown by the opposition had been shot down near Benghazi. As the civil war increased in intensity, the international community contemplated action in support of the armed opposition. On 17 March, the UN Security Council adopted Resolution 1973. And within 42 hours an attack on the troops of the Libyan government, aimed, according to the British Defence Minster William Hague, at killing the Libyan leader, had begun.

At around 12:00 noon local time in Washington, DC, on Saturday, 19 March, French fighters launched attacks against targets described as tanks and air defence systems. A few hours later, US battleships began firing cruise missiles at Libyan targets.

. . . The Libyan government did not have a representative present at the meeting after its nominated ambassador, former President of the General Assembly Ali Abdel-Salam Treki was denied admission to the United States. Nevertheless, although officially relieved of his duties more than a week ago for defecting to the opposition, former deputy permanent representative Ibrahim Dabbashi was on hand at the Security Council media stakeout Wednesday to make a statement and take questions.

. . . Paragraph 8 is unusual in that is appears to authorise the use of force under Chapter VII without applying any of the safeguards for the use force that are stated in Article 41. There is no determination made that measures not involving the use of force had failed. In fact, Resolution 1973 was adopted after the UN Security Council, the UN Human Rights Council and the African Union had decided to send missions to contribute to a peaceful solution, but before any of these missions could visit Libya. Moreover, Resolution 1973 was adopted after an offer by the Libyan leader to step down and leave the country with his family had been rejected by the armed opposition without room for negotiation.

. . . Perhaps the most fundamental principle of international law is that no state shall use force against another state. This principle is expressly stated in Article 2, paragraph 4, of the UN Charter. . . .


Curtis Doebbler is a prominent US international human rights lawyer.

[At one and the same time:
- the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;
- all other means of putting an end to it must have been shown to be impractical or ineffective;
- there must be serious prospects of success;
- the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.--"Just War Doctrine,", March 8, 2011

[St. Augustine and St. Thomas Aquinas are our main sources for understanding classical just war theory. There are three main components to this theory, all of which must be met for any war to be just. First, a war must be conducted by an agent that has the authority to declare war. It is not right for private individuals or lower authorities to wage war since they can legitimately appeal to a higher authority. Secondly, there must be a just cause. As you might expect self defense is a just cause, but it is not the only one. Augustine and Aquinas both seem to argue that a war fought to end a moral wrong being perpetrated by a nation or its citizens is also just. Aquinas makes the broad statement under this second principle, that "a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault". Finally, the motive for going to war must be just. In other words, no matter what the cause - even if attacking the most evil of regimes - there can be no motives ulterior to attacking that evil.--Chris Walker, "Iraq and Just War: How Christians should consider the morality of war in Iraq," The Evangel Society, October 8, 2004]

Ola Galal, Mariam Fam and Alaa Shahine , "Libya War Prompts Chavez, Arab Mediation Offer Amid Attacks," The Wisdom Fund, March 3, 2011

Enver Masud, "Libya Oil Grab Disguised As Humanitarian Assistance," The Wisdom Fund, March 8, 2011

PETITION: "Letter to President Obama about Libya," Center for the Study of Islam & Democracy, March 14, 2011

Enver Masud, "Revealed: America's Hidden Hand Behind The UN Resolution For A No-fly Zone Over Libya," The Wisdom Fund, March 19, 2011

Enver Masud, "Reply to CSID's Open Letter Opposing the No-fly Zone," The Wisdom Fund, March 22, 2011

[It is only when peaceful means have been tried and proved inadequate that the Security Council can authorize action under Chapter VII of the Charter.--Marjorie Cohn, "Another Illegal Campaign of Aggression,", March 22, 2011]

["The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

So said constitutional scholar and Senator Barack Obama in December 2007 - the same man who, this weekend, ordered U.S. air and missile strikes on Libya without any authorization from Congress.--Patrick J. Buchanan, "A Foolish and Unconstitutional War,", March 23, 2011

Dennis J. Kucinich, "Reply to President Obama's letter regarding the commitment of U.S. Armed Forces to Libya," Congress of the United States, March 24, 2011

George F. Will, "Scrubbing the blemishes of regime changes,", March 24, 2011

"Head of African Union: UN blocked mediation efforts in Libya," Jeune Afrique, March 24, 2011

Pepe Escobar, "Libya Endgame: Divide, Rule And Get The Oil," Asia Times, March 25, 2011

Peter Dale Scott, "Who are the Libyan Freedom Fighters and Their Patrons?," Global Research, March 25, 2011

Michael Snyder, "Libyan Rebels Have Already Established A New Central Bank Of Libya,", March 25, 2011

Chris Adams, "New rebel leader spent much of past 20 years in suburban Virginia," McClatchy Newspapers, March 26, 2011

"Testimony of Russia Doctors in Libya: The Destruction of a Country. The Bombing of Civilian Targets," Global Research, March 28, 2011

Paul Craig Smith, "Obama Raises American Hypocrisy To A Higher Level,", March 28, 2011

Dorian Jones, "Turkey Steps Up to Mediate in Libya Crisis,", March 28, 2011

Chris McGreal, "Libya's rebel government in waiting - and in hiding," Guardian, March 29, 2011

Andrew Levine, "On Libya, Who Does Obama Think He is Fooling?,", March 29, 2011

Keith Weir and Andrew Quinn, "World powers raise pressure on Gaddafi to go," Reuters, March 29, 2011

[ . . . the French and the United States government came in and attempted to, I think, transform the Arab spring to their advantage.

. . . the United States has already committed ground forces. These may not be boots on the ground, but they're the AC-130 aircraft and the A-10 aircraft, which are both low-flying ground troop support aircrafts. These are not to create a no-fly zone; these are to attack ground troops.--"A Debate on U.S. Military Intervention in Libya: Juan Cole v. Vijay Prashad,", March 29, 2011]

[In addition to the C.I.A. presence, composed of an unknown number of Americans who had worked at the spy agency's station in Tripoli and others who arrived more recently, current and former British officials said that dozens of British special forces and MI6 intelligence officers are working inside Libya. The British operatives have been directing airstrikes from British jets and gathering intelligence about the whereabouts of Libyan government tank columns, artillery pieces and missile installationsMark--Mazzetti and Eric Schmitt, "CIA Agents in Libya Aid Airstrikes and Meet Rebels,", March 30, 2011]

Enver Masud, "LIBYA TALKING POINTS," The Wisdom Fund, April 1, 2011

[In his March 26 radio address, Obama said the United States acted because Gadhafi threatened "a bloodbath."

. . . these are outlandish scenarios that go beyond any reasonable interpretation of Gadhafi's words. He said, "We will have no mercy on them" - but by "them," he plainly was referring to armed rebels ("traitors") who stand and fight, not all the city's inhabitants.

"We have left the way open to them," he said. "Escape. Let those who escape go forever." He pledged that "whoever hands over his weapons, stays at home without any weapons, whatever he did previously, he will be pardoned, protected."--Steve Chapman, "Did Obama avert a bloodbath in Libya?," Chicago Tribune, April 3, 2011]

[As neither the United States, nor its citizens, nor any U.S. ally had been attacked or imperiled, Webb asked, what was the justification for the U.S. attack on Libya, whose government, Gadhafi's government, the State Department still recognizes as the legitimate government of Libya?

"To protect lives," was Ham's response.

Yet, as last week brought news of the slaughter of 1,000 civilians by gunfire and machete by troops loyal to Alassane Ouattara, the man we recognize as the legitimate president of the Ivory Coast, a question arises: Why was a real massacre in West Africa less a casus belli for us than an imagined massacre in North Africa?--Patrick J. Buchanan, "Was Obama Stampeded Into War?,", April 13, 2011]

[Human Rights Watch has released data on Misurata, the next-biggest city in Libya and scene of protracted fighting, revealing that Moammar Khadafy is not deliberately massacring civilians but rather narrowly targeting the armed rebels who fight against his government.--Alan J. Kuperman, "False pretense for war in Libya?,", April 13, 2011]

["We see a clear commitment on the part of NATO and the U.S. for regime change - exactly what the U.N. resolution was not designed to do."--"Phyllis Bennis: U.K. Sends Troops Into Libya as International Coalition Expands Mission to Include Regime Change,", April 19, 2011]

Toby Harnden, Washington and Robert Winnett, "Libya: western leaders call for Nato to target Gaddafi,", April 24, 2011

[Last March 19, President Obama initiated war against Libya without congressional authorization as mandated by Article I, section 8, clause 11 of the Constitution ("the War Clause"). Moreover, the president proclaimed that the White House is empowered to unilaterally commence war not only to play Good Samaritan to the Milky Way, but also to advance "regional stability" or the "credibility" of the United Nations Security Council. That unprecedented principle would justify endless presidential wars anywhere, including South Ossetia, Chechnya, Tibet, Zimbabwe, North Korea, Iran, Syria, Saudi Arabia, Kashmir, the South China Sea, etc. Unless repudiated by the political leadership of the United States, the principle will lie around like a loaded weapon ready for invocation by some future self-deified Caligula to justify martial law.--Bruce Fein, "Libya: western leaders call for Nato to target Gaddafi,", April 25, 2011]

[That NATO forces may have killed four members of Gadhafi's family who had no ties to the government or military will likely renew questions about the legality and legitimacy of the international effort here, sanctioned by a United Nations resolution to protect civilians from a Gadhafi attack.

Throughout the month-long air campaign, NATO members who abstained from the resolution vote have said they were concerned that resolution was instead a subversive attempt by the U.S. and Europe to topple the regime. China called the strikes a violation of international law; Russia, India and Turkey have also condemned various NATO strikes here.--Nancy A. Youssef and Shashank Bengali, "Was Gadhafi the real target of strike that killed his son?,", April 30, 2011]

Daniel Howden, "Gaddafi's hidden billions may be used to fund the fighters of the resistance," Independent, May 6, 2011

[The U.S. intervention in Libya's civil war, intervention that began with a surplus of confusion about capabilities and a shortage of candor about objectives, is now taking a toll on the rule of law. In a bipartisan cascade of hypocrisies, a liberal president, with the collaborative silence of most congressional conservatives, is traducing the War Powers Resolution.--George F. Will, "Is Obama above the law,", May 27, 2011]

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