Law and Libya again

Published on Halsbury's Law Exchange here and reproduced on Legal Week here

Now that the Libyan conflict seems to be drawing to the end, or at least the end of its present phase, it might be appropriate to consider the legal aspect of NATO’s involvement.


The first question involves the nature of the Western intervention. In this respect, imagine that a Predator drone, controlled by a foreign state, circles above the White House looking for President Obama. It fires a hellfire missile but misses the President and kills a couple of innocent civilians instead. The foreign state then issues a statement saying it is sorry about the civilians but Obama’s position is untenable and the drones will keep coming until he leaves office.

It is not difficult to imagine the response from the White House. President Obama would make a speech evoking the stirring rhetoric of President Roosevelt’s post-Pearl Harbour address, and the television news would soon be flooded with images of American forces setting off to unleash retribution.

Suppose further that the responsible state was not acting alone, but was receiving technical, material and intelligence assistance from another state. If so, that state would also find itself on the Pentagon’s target list.

The ensuing clash of arms might be called many things, but no-one could argue that it would appropriately be called a “war”.

I make that rather laboured point because of the startling position the White House took on Libya. In a detailed document prepared in June, the White House asserted that because the US forces involved were only playing a “supporting role”, they were not engaged in “hostilities”.

Accordingly, the argument ran, the definition of “hostilities” as described under the War Powers Resolution of 1973 had not been met. That resolution, part of the fallout over the Vietnam War, requires Congressional approval for any deployment of US forces in hostilities for more than 60 days. The White House said that its forces in Libya are not engaged in sustained fighting or “active exchanges of fire with hostile forces”.

With the caveat that I am not an American lawyer, that argument seems entirely fallacious. The governments responsible for the intervention made clear early on that Gaddafi’s regime could not continue.

NATO’s operations began after UN Resolution 1973, which was passed when it was thought a slaughter of citizens by Gaddafi’s troops was imminent, the sanctions and other measures brought in by Resolution 1970 having failed to prevent the civil war. Initially the intention was to establish a no-fly zone, then to use “all necessary measures” to defend civilians. In turn the coalition took it to mean that Gaddafi’s regime had to be removed.

We therefore went from attempting to prevent a massacre in a particular time and place to attempting to overthrow a sovereign government by the use of military force. The latter in anyone’s language is a war. The fact that our involvement has been limited to naval blockading and acting as the rebels’ air force is not relevant: we have been deploying armed forces in active operations. Rumour has it that we or our coalition partners have supplied weapons to the rebels as well and it seems a shade implausible that there have been no special forces operations in the area.

The only distinction that the White House offered was that there was no danger to American servicemen. That was a matter of good fortune for them, but to suggest that their operations were not thereby a “war” strains logic beyond breaking point. As I tried to show above it is an argument that would cut no ice in the other direction.

We have therefore been, pace President Obama, and continue to be, at war with the sovereign government of Libya. A number of serious questions then arise. For a start, even if the war is legal, what was the legal imperative for the UK’s involvement? What of all the other states who supported the resolution?

The second question concerns the moral justification. If on the balance of probabilities military intervention would save more lives than it would cost then it might well be justified. Needless to say that is difficult to judge, to say the least.

It is true that the fact that we are selective in our use of force by not intervening in, say, Syria, is not an argument against intervening in Libya: if I fail to save ten drowning people it would still be morally correct to save the eleventh, even though I am being inconsistent by doing so.

Apparently we intervened to stop a massacre of civilians by Gaddafi’s forces in Benghazi. Apparently we succeeded. But it also seems that we have little clue as to what happens next. There was no doubt a hope that Gaddafi would flee once Western air power was deployed against him. That faded quickly, to no-one’s surprise: air power tends not to do that.

However, it now seems that Gaddafi is indeed about to fall. What then are our obligations in international law, having toppled him? What plan is in place for a substitute government? What if an Iraqi-style internecine civil war erupts? I have yet to read reassuring answers to any of those questions.

One can easily understand why our leaders support the notion of “liberal intervention”. It is their best chance of being remembered as a statesman rather than a jobbing politician. It is no doubt more professionally rewarding flying to Washington on a private jet and making speeches at the White House than trying to deal with more mundane matters such as the NHS budget, another bank failure or a school closure. But the executive should also consider that if international law is fraught with uncertainty, military action is too, and inevitably risks the most severe consequences in terms of blood and treasure. And if there is one lesson from Iraq, it is surely that removing dictators is only the very beginning of what might be a long and difficult story. Perhaps there will be a smooth transition from Gaddafi to a democratic government supporting human rights and the rule of law. Or perhaps there won’t be.