As negotiations continue for the surrender of the few cities where deposed tyrant Col. Muammar el-Qaddafi could be hiding, how peaceful the endgame turns out to be may impact the rhetoric surrounding President Obama’s decision to enter the fray in the first place. Part of that discussion will undoubtedly concern the War Powers Resolution (“WPR”), the post-Vietnam legislation that promised to hold future presidents accountable to Congress when engaging in international conflicts. The law has been largely ignored by past commanders in chief, and no Congress has ever enforced the act. Although Obama has claimed that the WPR does not apply to US involvement in Libya, a successful intervention could make the legislation even less potent than it is now. Continue reading “Could Qaddafi’s downfall be the last nail in the coffin for the War Powers Resolution?”
Written by Zsofia Young, American University National Security Law Brief, with editorial assistance from Aileen Thomson.
Muammar Qaddafi by all accounts was a terrible man. A ruthless dictator for over forty years, he debilitated his country’s infrastructure, repressed any kind of political opposition, and committed egregious human rights violations. But did he deserve to die? Under any applicable legal regime, whether it be human rights or the law of armed conflict, Qaddafi deserved a fair trial. A trial would have served the interests of justice and would have bolstered the nascent Libyan government’s legitimacy in its democratic endeavor. Unless specific circumstances exist, taking a life – whether that of a nun or a notorious dictator – is illegal. It was the new Libyan government’s obligation to prosecute Qaddafi for his alleged crimes. Now, it has a duty to prosecute those responsible for Qaddafi’s murder.
When earlier this year, the Libyan population protested against his repressive regime, Qaddafi’s forces responded with violence. On February 27, 2011 the National Transitional Council (NTC) was established, creating the first serious political and military opposition to Qaddafi. Months of internal conflict ensued.
The international community was more than supportive of deposing Qaddafi: in March, France recognized the Council as the legitimate representative of the Libyan people; the United Nations Security Council sanctioned the establishment of a no-fly zone and the use of “all means necessary” to protect civilians within Libya; NATO launched attacks in support of the rebels. Qaddafi had to go.
In the interest of maintaining international peace and security, the Security Council referred the situation in Libya to the International Criminal Court (ICC). By the end of June, the ICC had issued arrest warrants for Qaddafi, his son, and his intelligence chief charging them with committing crimes against humanity. The Prosecutor of the ICC met with the leader of the NTC to discuss cooperation and potential surrender of the suspects if captured.
The rebels were winning. Qaddafi’s forces were cornered. It was only a matter of time before this infamous dictator was captured and either surrendered to the ICC or tried domestically. The State Department allegedly discussed the options of surrendering Qaddafi to the ICC or bolstering the judicial system in Libya to facilitate a fair domestic trial. From a political perspective, the advantages of a trial are obvious: it would bring legitimacy to the new government and show that even powerful dictators are held accountable for their crimes. Legally, it was the only viable option. Unless engaged in combat with Qaddafi or acting in self-defense, under no applicable legal regime could the NTC fighters choose to kill him without violating either the laws of armed conflict or human rights law. For these reasons, a trial – whether in The Hague or in Libya – was imminent.
On October 20, 2011, Qaddafi was killed, rendering all discussions of a trial moot. The NTC celebrated. The shooter may receive a million pound award. President Obama, Secretary Clinton, Prime Minister Cameron of the UK all omitted mention of the option of a trial in their speeches after Qaddafi’s death was confirmed.
On the day of his death, Qaddafi was traveling in a convoy near his hometown. The convoy was blown up by NATO planes. Qaddafi, severely injured, crawled into a drainpipe to hide. He was subsequently found and dragged out of the pipe by NTC fighters. There are conflicting accounts about what happened next, but judging from the available video footage, the most plausible scenario is the following: Qaddafi was injured and hiding; he had guns with him, but he was not trying to defend himself. He was captured by the NTC fighters, his weapons were taken away and he was immobilized. The fighters taunted him, beat him with their guns, kicked him, and then killed him with one shot to the abdomen and one to the head.
The question is why should we care? Should we not just be happy that an old dictator is dead? Does this not open up the path for a more democratic future in Libya? Trials are expensive, international criminal trials are fraught with political issues, Qaddafi was undoubtedly a terrible man who had committed innumerable crimes. Is it not just simpler for everyone that he is dead?
The short answer is a resounding no. Democratic societies – like the one the NTC claims to want to establish in Libya – are founded on the rule of law. Due process and fair trials are necessary ingredients to successful enforcement of the rule of law. A government will never have legitimacy when the cruel treatment of captured persons and extrajudicial killings are commonplace. One may argue that right now this was the smartest political move the NTC could make to bolster domestic support. But such a decision can only result in short term successes and comes at a major long term cost. More was lost here than the opportunity to prosecute Qaddafi: the new Libya lost the chance to prove that it intended to establish a democratic society based on principles of fairness, equality and the rule of law. The extrajudicial killing of an injured dictator as well as the execution of dozens of Qaddafi loyalists marks the birth of the new Libya with violence and impunity.
Why are these killings extrajudicial when there was clearly an ongoing internal conflict? The international legal implications of the NTC’s actions are not negligible. Pursuant to the law of armed conflict (international humanitarian law), the nature of the conflict in Libya is a non-international armed conflict, which determines the applicable legal regime. It was initially a conflict between government forces and a non-state actor, the NTC. Later the roles changed, arguably, the NTC became the government and Qaddafi’s forces were the non-state actor. However, this does not change the nature of the conflict and applicable legal regime. The NATO air strikes against Qaddafi loyalists are unlikely to internationalize the conflict. However, if one were to argue that the conflict was indeed of an international character, a more generous legal regime would apply, providing for even more protections for potential prisoners of war.
In a non-international armed conflict, as in Libya, the protections prescribed in Common Article 3 to the Geneva Conventions and Additional Protocol II are applicable (Libya ratified the Protocol in 1978). Common Article 3 provides protections for persons hors de combat, taking no active part in the hostilities, while Additional Protocol II elaborates on protections provided specifically for victims of non-international armed conflict.
By all accounts, Qaddafi was hors de combat due to his wounds when he was captured. Pursuant to Common Article 3, Qaddafi should have been treated humanely after being seized. “Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” are prohibited with respect to persons who are hors de combat. In addition, “outrages upon personal dignity, in particular humiliating and degrading treatment” is also prohibited. Article 7(1) of Additional Protocol further elaborates and provides that “all wounded [. . .] whether or not they have taken part in the armed conflict, shall be respected and protected.”
The NTC’s actions were also illegal with regards to the dozens of Qaddafi loyalists who were found executed in Sirte. Pursuant to Article 3(1)(d) of Common Article 3, “[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court” is prohibited. In this legal regime, the NTC forces breached Common Article 3 by murdering an already captured and disarmed Qaddafi and executing his supporters. Once they had him in custody, the NTC had a duty to treat him in a humane manner and subsequently provide him with a fair trial.
On demands from the international community, the NTC has stated that it will establish a committee to investigate any potential crimes that may have been committed by its forces. It seems safe to be at the very least skeptical about the outcome of such an investigation. Especially considering that the leader of the NTC has suggested that Qaddafi may have in fact been killed by his own supporters as they were the only ones who had an interest in avoiding a trial. Videos of the capture indicate that this scenario is highly unlikely.
While some of this analysis may seem hypothetical, it is important
to identify violations of the laws of armed conflict. These laws have developed over the centuries to protect civilians and persons who are no longer fighting. While too many violations go unpunished, it is beneficial to raise the attention and understanding of the international community by pointing out violations in hopes that one day they may be prosecuted. In the case of Libya, this possibility is not so remote: the new government is determined to hold a trial for the recently captured Seif Al Islam, Qaddafi’s son. The ICC continues to have jurisdiction over the situation though it appears most likely that Libya will challenge the admissibility of the case arguing that they are conducting national proceedings. It is too late to try Qaddafi now, but his son is in custody and his murderers continue to be at large. The situation should be investigated on both sides and if crimes have been committed, the perpetrators should be prosecuted and punished.
As international efforts to create a no-fly zone over Libya continue, debates continue to grow over the UN Resolution itself, along with the role the United States should play in protecting civilians under attack from Libyan leader Muammar al-Qaddafi’s government. UN Security Resolution 1973 authorizes a no-fly zone over Libya as well as “to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack.” Thus far, President Obama has taken on what has been called a “Goldilocks military plan”: Not too much, not too little, not too unilateral, not too American. Indeed, Obama’s approach to the events in Libya could, in a word, best be described as moderate. He remains cautious and opposed to leading Libyan operations, stressing that while humanitarian intervention is necessary, command will be transferred to the leadership of other countries shortly. It seems that neither side is pleased: Supporters of the resolution feel Obama remains too cautious, while those who oppose further U.S. involvement in the Muslim world feel that Obama is acting recklessly.
Supporters: Supporters of USCNR 1973 consider the resolution a victory under the Responsibility to Protect (R2P) doctrine, unanimously adopted by UN member states in 2005 as a response to the international community’s difficulty stopping and preventing genocides (such as those in Bosnia and Rwanda). The doctrine states that the international community has a responsibility to protect the citizens of a State against “genocide, war crimes, ethnic cleansing, and crimes against humanity . . . through appropriate and necessary means” if the State fails to protect its own citizens. Thus, supporters believe that it is the U.S.’s responsibility to aid in protecting the citizens of Libya against its own government.
While many opponents to U.S. involvement in the no-fly zone argue that the U.S.’s time and money interests could be better utilized elsewhere – the governments of Yemen and Bahrain have also turned violent against protesters, one million people per year die from malaria, and three times that die from hunger – supporters argue that having other areas to assist does not preclude helping another country in the midst of a humanitarian crisis. Stewart Patrick of the Council on Foreign Relations explained that geopolitical factors and the complexity of national interests at stake factor into U.S. involvement. According to Patrick, “Just because the international community can't or chooses not to act everywhere doesn't mean that it shouldn't act anywhere when there is sufficient political will to be mobilized.”
Opponents: Opponents to U.S. involvement in the no-fly zone over Libya argue that the U.S. does not know who it is helping in its involvement with Libya. Thomas Friedman commented that the U.S. “should be doubly cautious of intervening in places that could fall apart in our hands, a là Iraq, especially when we do not know, a là Libya, who the opposition groups really are — democracy movements led by tribes or tribes exploiting the language of democracy?” Al-Jazeera, in its lengthy argument against intervention written prior to the passing of UNSCR 1973, stated, “The fact that we know so little about the domestic context among non-regime actors in Libya is precisely the reason that the types of external intervention currently taking place are likely to backfire.” Opponents are cautious, and naturally
so, to involvement in a State on the basis of what they consider insufficient intelligence, frequently drawing on the U.S.’s experience with Iraq. China’s newspaper, the People’s Daily, has gone so far as to say that the U.S. is violating the UN Charter and the rules of international relations by using military means to address the crisis.
At the end of the day, the debate over U.S. intervention in Libya seems to fall on the role of the United States on the international stage. Whether the U.S. should take a stance of helping when able to or abstaining from intervening in the internal disputes of other States is an issue currently under the microscope that will likely not resolve itself anytime soon.
Each day new information regarding the extent of US involvement in Libya is released. Recently we found out about CIA agents present on the ground in Libya. Apparently there have been CIA operatives on the ground for several weeks now after President Obama signed a secret finding authorizing the CIA to support Libyan rebels; it has been reported that no weapons have yet been sent to Libya. Additionally, it has been released that the US approved the use of spy planes and drones to track movements of troops, eavesdrop and intercept communication and determine coordinates.
On March 28 President Obama made remarks on the situation in Libya and how the United States has responded. He defined as “part of our interests, our national interests”. Two days later, Defense Secretary Gates and Adm. Muller, answered Congress’ questions about the Libya campaign. Americans remain skeptical of US intervention in light of the wars already being waged in Afghanistan and Iraq. When questioned, Gates said that US involvement would be limited but then later said there was no time frame for Qaddafi’s removal.
Another reason for concern is the lack of Congressional involvement in decision-making. When pressed about why Congress was not aware or consulted about US intervention Secretary Gates said that the President decided less than 48 hours before about his plan of action and essentially had no time to consult Congress. However, when Secretary Clinton was asked about this she replied that under the War Powers Act, the administration did not need Congressional approval and they would not be seeking it.
Criticism is profuse regarding the cost and viability of the operation. The cost of US intervention in Libya is currently estimated at $40 million per month in addition to the $550 million the US spend up until now. Many question whether arming Libya’s rebel leaders is the best option for the US to be engaging in considering the possibility of arming rebels who could later turned against us. Another criticism is that the administration chose to intervene in Libya but not other humanitarian efforts like Darfur, as promised during the 2008 elections, revealing inconsistency. Critics opine that intervention in Libya over Sudan is based on the presence of oil.
Amidst the uncertainty of US actions in Libya and the controversy over why the US intervened in the first place, Libya has become a crucial national security issue. It remains to be seen whether the US intervention into Libya was based on national interests, as President Obama explained in his speech.
“We use Facebook to schedule the protests, Twitter to coordinate, and YouTube to tell the world.” –Anonymous Cairo Activist
Twitter, Facebook and YouTube, among a host of other popular social media platforms, have significantly altered the ways by which individuals communicate and share information with each other on a daily and, in fact, constant basis. Now, the free access and exchange of user-generated content over the internet has proven not only its ability to connect individuals in Japan with individuals in Sweden, but also its ability to dramatically influence the geopolitics of the Middle East, North Africa and elsewhere around the globe. In Tunisia, Egypt and Libya, users of social networking sites have displayed a profound proficiency for organizing demonstrations and other peaceful protests in the face of autocratic, and often brutal, regimes. Although pluralistic unrest directed at undemocratic and unpopular leaders has considerably increased recently, (see Oman, Bahrain, Yemen, Iraq, Mauritania, Iran, Jordan, Algeria, Djibouti, Kuwait, Sudan, Syria, Morocco, Palestine, et cetera), the insurrections in Tunisia, Egypt and Libya offer many of the most noteworthy examples of the role and influence of social media in the modern era.
Tunisia: In Tunisia, demonstrators adamantly demanding basic economic and social reforms, and later advocating for the complete ouster of embattled President Zine El
Abidine Ben Ali, initially relied heavily upon email and Facebook accounts to prepare for and organize rallies in Sidi Bouzid and throughout the country. Tunisian authorities quickly sought to censor the increasing dissent propagating from within the country’s borders and commenced an elaborate and far-reaching “phishing” operation in order to not only silence the critique, but to also target the individuals responsible for initiating the unrest. Government officials succeeded in rendering many of these channels of communication inoperable or hazardous to users because of censorship and monitoring campaigns intended to subdue dissent. Activists, however, soon turned to Twitter, which is largely immune to many of the tactics that were employed by the Ben Ali regime. Twitter became the primary tool of communication for anti-government activists once other access to other methods of online communication such as blogs, email and Facebook were diminished. Twenty-eight days after the first protests began, having already fled the country, Ben Ali officially announced his resignation.
Egypt: In Egypt, Facebook provided a fairly natural outlet for the disaffected to demonstrate popular dissent and organize protests against economic and social injustices committed by the government, particularly for workers and youth. Before the recent popular uprisings which succeeded in toppling former Egyptian President Muhammad Hosni Sayyid Mubarak, Facebook had been used successfully to organize mass strikes against poor working conditions. The “April 6 Youth Movement” and “We are all Khaled Said” Facebook pages garnered tens of thousands of followers, often in impressively short periods of time. When Egyptian authorities attempted to censor the public’s access to the internet, Twitter ingeniously established a service which allowed Egyptians to post to Tweet via telephone. With the use of these and other platforms, the protests that began on 25 January grew seemingly exponentially until the eventual resignation of Hosni Mubarak eighteen days later. Wael Ghonim, a prominent Egyptian activist involved in the recent uprising, went so far to as to say that “[t]his revolution started online. This revolution started on Facebook.”
Libya: At the time of this writing, the insurrection in Libya has yet to decisively culminate either in favor of Libyan protestors or supporters of the government, while Muammar Muhammad al-Gaddafi bitterly continues to cling to power and threatens to use escalating force against peaceful demonstrators and anti-government activists who dare even to leave their homes. And although Libyan society is and has been much more isolated to the rest of the world than Tunisia or Egypt, for example, reports from inside the country indicate that social media networks such as Facebook and Twitter have been utilized in order to organize many of the nationwide demonstrations that have so far claimed much of the country. Tweets and YouTube videos have escaped from within the country and have exposed international audiences to the atrocities that have been committed by Colonel Qaddafi’s regime. Because of this exposure, the international community has begun to implement or at least consider options including enforcing a no-fly zone over Libyan air space, freezing assets of the regime, implementing weapons and economic embargoes, and perhaps even military action. Time will tell whether the revolt in Libya will be successful or not, but one can already draw the conclusion that social media will undoubtedly play an important role in the outcome. The national security community within the United States must be prepared to follow technological trends such as these, as well as learn how to properly utilize and understand them if U.S. interests are to be maintained in the Middle East and Northern Africa.