Legal opinions on UN 1973 and NATO bombing of Libya
Explaining Why NATO's Attack on Libya Is Illegal
Q & A by Mary W Maxwell, PhD, May 2011
1. Q. What is the presumed ‘legal basis’ for the attack on Libya?
A. It is Resolution 1973 (of March 17, 2011) of the United Nations Security Council.
2. Q. Who has the right to vote in the UN Security Council?
A. The UNSC has 15 members, of which 5 are permanent and hold veto power: US, UK, France, China, Russia, and ten others that are elected to two-year terms.
3. Q. How many votes are required to pass a UNSC resolution?
A. Any nine votes suffice, but if one of the Big Five casts a veto, the resolution fails.
4. Q. Did Resolution 1973 pass ‘unanimously’?
A. Technically yes, because no one voted against it. There were 9 yes’s. Two of the Big Five abstained, namely Russia and China, and three of the others: Germany, Brazil, and India.
5. Q. Which nations cast the yes votes?
A. Technically it is not nations but ‘states,’ i.e., governments, that vote. The yes’s were: US, UK, France, Portugal, Bosnia and Herzegovina, South Africa, Gabon, Lebanon, Nigeria, and Colombia (Colombia is the current chair of the UNSC).
6. Q. Did any Arab states object?
A. No. Only one Arab state sits on the Security Council, Lebanon. The Security Council received written encouragement from the Arab League.
7. Q. What does Resolution 1973 say?
A. It demands such things as a ceasefire and “a complete end to violence and all attacks against, and abuses of, civilians….” It imposes a no fly zone over Libya, and an arms embargo. It calls for a freeze on the assets of certain Libyans. It does not offer evidence as to what Libya had allegedly done.
8. Q. Was there a lead-up to this Security Council Resolution?
A. Yes and No. On February 26, 2001, Resolution 1970 mentioned such things as “concern at the plight of refugees” and “the need to respect the freedoms of peaceful assembly and of expression, including freedom of the media.”
9. Q. Where does the United Nations get the authority to use force against a member?
A. Article 39 of the UN Charter says “The Security Council shall determine the existence of any threat to the peace… or any act of aggression and shall…decide what measures shall be taken in accordance with Articles 41 and 42.”
10. Q. What is the content of those Articles, 41 and 42?
A. Article 41 is about measures that can be taken that do not involve the use of armed force, such as sanctions. Article 42 says: “Should the Security Council consider that measures provided for in Article 41 would be inadequate… It may take such action by air, sea, or land forces… to maintain and restore international peace and security.”
11. Q. Does this mean that the UN will call out its troops?
A. The UN doesn’t have troops. Article 48 says: “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.”
12. Q. Who has provided the military force against Libya?
A. NATO, which is headquartered at Boulevard Leopold in Brussels, Belgium.
13. Q. What is NATO?
A. The North Atlantic Treaty Organization. It was an alliance formed during the Cold War, ostensibly against the Soviet threat. But following the 1990 collapse of ‘world communism,’ NATO has started to look like the mailed fist of World Government.
14. Q. How did the United States become part of NATO?
A. It joined when a two-thirds senate vote ratified the NATO treaty, sometimes called the Washington Treaty, in 1949. Lately, some former Communist states have joined, e.g., Albania and Bulgaria.
15. Q. Legally, how does NATO relate to the UN?
A. NATO’s Article 1 says: “The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered….”
16. Q. What about the rights of a nation that is being attacked?
A. NATO’s Article 4 says: “The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security if any of the Parties is threatened.”
17. Q. Isn’t the territorial integrity of Libya is being threatened today?
A. Yes, but Libya is not a ‘Party”; the member states of NATO are European countries plus the US and Canada.
18. Q. As a member of the UN, is Libya entitled to protection from attack?
A. Yes. The quotes above from Articles 39, 41, 42, and 48 of the UN Charter have only to do with extraordinary Security Council action. Earlier in the UN Charter we find the famous Article 2(4), which says: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Such an obligation to refrain from international aggression is best conveyed in the opening words of the UN Charter’s preamble: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…. “
19. Q. So the UN Charter implies in one breath that members can expect protection from attack, and in the next breath it makes the Security Council itself an attacker?
A. The UN Charter condemns forcible measures, but justifies them in instances where “it determines [fairly or otherwise] the existence of any threat to the peace, breach of the peace, or act of aggression.” However, before military force can be used, other means such as conciliation or sanctions must be tried.
20. Q. Is Libya attacking other nations?
A. No. Resolution 1973 alleges only internal conflict. The UNSC says it is “Expressing grave concern at the deteriorating situation, the escalation of violence, and the heavy civilian casualties… Reiterating the responsibility of the Libyan authorities to protect the Libyan population … Condemning the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions… Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity ...”
21. Q. Does ‘crimes against humanity’ mean that “international humanitarian law’ is being invoked?
A. Not exactly. Some treaties, such as the Geneva Conventions, regulate certain acts of war. This is known as International Humanitarian Law. Based on the Rome Statute of 1998, a person accused of war crimes and/or ‘crimes against humanity’ can be hauled before the International Criminal Court at The Hague, as was the Serbian leader Slobodan Milosevic. In fact, the UN Security Council, which is the body that asks the ICC to indict a criminal, has already referred Muammar Qadhafi to the ICC.
22. Q. What happened to Milosevic?
A. He died in jail at The Hague, Netherlands, awaiting trial.
23. Q. Has NATO ever forcibly attacked a nation for supposedly humanitarian reasons?
A. Yes. For example, in the late 1990s it attacked Serbia, which was part of the Federal Republic of Yugoslavia. The basis for its current role in Afghanistan is unclear.
24. Q. What legal basis was there for NATO’s attack on Serbia?
A. None has yet come to light. NATO did not go through the UN Security Council. The US construed its participation as having been a creature of ‘presidential policy.’
25. Q. How is that the United States is legally bound to follow UNSC’s orders?
A. The US joined the United Nations in 1945 by signing a treaty, namely, the UN Charter. The Constitution of the United States says in its Article VI: “… all treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…anything in the Constitution or Laws of any state to the Contrary notwithstanding.”
26. Q. Does that mean that the constitutional requirement for Congress to declare a war could be overruled by way of a treaty?
A. No. Changing the Constitution of 1787 can only be done by amendment and none has ever been proposed that would change the Legislature’s allocation of power. Congress, back in days when it was jealous of its turf, passed legislation, The UN Participation Act (1945), to underscore the need for Congress to approve of any use of American troops under Article 42 of the UN Charter.
27. Q. What exactly does the US Constitution say about Congress declaring war?
A. Article I, Section 8 says: “The Congress shall have Power… to declare War….”
28. Q. Does the President also have that power?
No. The part of the Constitution that lays out the powers of the Executive branch, namely Article II, does not say anything about a power to declare war. It does say: “The President shall be Commander in Chief of the Army and Navy of the United States,” meaning that once a war is declared he or she is on charge of it. See the website of Louis Fisher, the US’s most ‘with-it’ constitutional scholar: www.loufisher.org.
29. Q. Do you mean Congress would have to legislate, to authorize participation of American Military in any action requested by the UN or by NATO?
A. Yes. A joint resolution by the House and Senate would be the ticket.
30. Q. Has Congress in fact approved of the attack on Libya?
A. No. Two members proposed a bill to prevent it; most of the other 433 representatives are playing dumb. Ten senators opposed it: Susan Collins, Snowe, DeMint, Ensign, Johnson, Lee, Moran, Sessions, Toomey, and Paul.
31. Q. Without Congress’s formal approval, is the US attack on Libya illegal?
A. Yes. Domestically it is illegal. Senator Barack Obama stated the law correctly when interviewed by the Boston Globe in 2007, during the presidency of George W Bush : “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.”
32. Q. But in international law is the United States bound to attack Libya?
A. Of course not. As Professor Alfred Rubin clearly shows in his 1997 book, “Ethics and Authority in International Law,” no such subjection of one sovereign state to another, or to a multilateral group, is legally possible.
33. Q. Does anything legally prevent Congress from authorizing an attack on a nation that has not ‘deserved’ it?
A. If we look only at Article I of the Constitution, the answer would be: “Congress can declare war against any nation anytime.” However, Article VI is a reminder that if the US has signed a treaty to restrain itself from attacking – as indeed it did in Article 2 of the UN Charter, that puts a restriction on Congress’s freedom. The treaty is the supreme law of the land “any Thing in the Constitution…. to the Contrary notwithstanding.”
34. Q. But doesn’t Professor Rubin say “Nothing restricts the United States”?
A. He means no one outside can do the restricting, but the Constitution itself does the restricting, domestically. Such is the main point of ‘rule of law.’
35. Q. Does anything in the 1945 treaty known as the United Nations Charter go against the kind of attack now being made on Libya?
A. Yes. Article 2(7) of that Charter says: “Nothing contained in the present Charter shall authorize the United Nations to intervene on matters which are essentially with in the domestic jurisdiction of any state…” This ‘2(7)’ item was called the ‘Stay out of my backyard principle’ and was virtually sacred from 1945 to the 1990s. Granted, that item does end with the phrase “but this principle shall not prejudice the application of enforcement measures under Chapter VII” (Chapter VII being Articles 39 – 51). But Article 24, which sets out the role of the Security Council, reminds it to “act in accordance with the Purposes and the Principles of the United Nations.” The SC is not a tribunal with a mandate to judge the behavior of sovereign states.
36. Q. What about the fact that Resolution 1973 condemns torture, yet certain other nations do the same? Isn’t that a double standard?
A. It is up to individuals to maintain cerebral ground against such double-standard talk, as the diplomats steadfastly treat language as something to be ‘called into service.’
37. Q. UNSC Resolution 1973 mentions: “Reiterating the responsibility of the Libyan authorities to protect the Libyan population.” Isn’t that a ‘Stay out of my backyard’ sort of thing?
A. Yes, it is a surprisingly clear example of flouting 2(7). Years ago it would have been considered unwise for powerful nations to put such a remark in writing lest it come back to haunt them.
38. Q. UNSC resolution 1973 calls for a freezing of the assets of Libyan authorities. Is that normal? Could it constitute plain theft?
A. Courts have allowed it, as with some of the wealth of the Philippines leader Ferdinand Marcos. Domestically, the US has legislated for seizing the property of Americans in many circumstances, known as ‘asset forfeiture.’ It is a bit surprising, however, that in the order to freeze the assets of “Muammar Qadhafi” one of the justifications given is his “Responsibility for ordering repression of demonstrations…”
As to the question of ‘plain theft,’ it is noteworthy that the UNSC has not tried to show how the freezing of assets would restore peace. The SC appears to be ultra vires, going beyond its authority, in naming specific people who should be deprived of their property. The SC also names some who are to be placed under a travel ban.
39. Q. Let’s say Qadhafi felt aggrieved. To whom could he make his plaint?
A. One possibility is for him to bring a lawsuit. Qadhafi may not succeed in a US Court, in so far as his suit, for the US killing of his adopted daughter Hanna, was dismissed as frivolous. (Her death occurred in 1986 when President Reagan ordered a retaliatory strike for the bombing of a disco in Germany, allegedly by Libyans, in which two American soldiers were killed. The UN General Assembly passed a resolution condemning that retaliatory strike as “a violation of the Charter of the United Nations.”)
As a state, Libya can always go to the International Court of Justice to sue other states.
40. Q. At that court, can Libya sue the collective entity known as NATO, or even sue the United Nations Security Council?
A. Either of those would make an interesting exercise. At the very least, Libya could ask the ICJ for an advisory opinion about Article 39 with regard to aspects of the current situation. In 1996, the General Assembly put a question to the ICJ, about nuclear weapons, and got an advisory opinion. Qadhafi would need to hurry, though, as the outside powers are discussing ‘regime change,’ and the ICJ will only listen to the ‘state of Libya’; it does not deal with individuals. One can easily locate the Statute of the ICJ, as it is formally annexed to the UN Charter.
41. Q. Is there scope for Libya to say that war crimes have been committed against it?
A. Canadian economist Professor Michel Chossudovsky has already suggested it. He said, at globalresearch.ca that we see the evidence in NATO’s own dispatch dated April 23, 2011 from Naples: “ NATO has conducted the following activities associated with Operation UNIFIED PROTECTOR: Since the beginning of the NATO operation (31 March 2011), a total of 3,438 sorties and 1,432 strike sorties.” Presumably Chossudovsky means that these bombings are criminal under the general crime of aggression. That crime was declared at Nuremberg, at that time called “crimes against peace”, but has never been added to the Geneva Conventions.
42. Q. Can war criminals in NATO, if there be such, get indicted?
A. Yes. Most nations have domestic laws that permit the bringing to justice of one’s own war criminals or those of other states. The crime of aggression, which always reflects a government’s decision, rather than the actions of low-rank soldiers, has recently been added to the jurisdiction of the International Criminal Court – with the proviso, however, that it will not come onto force until 2017.
43. Q. Does the United States have any way to punish war criminals?
A. Oh yes, of course. The War Crimes Act of 1996, as codified at 18 USC 2441, says: “Whoever, whether inside or outside the United States, commits a war crime [if he is a member of the armed forces of the US] shall be fined under this title or imprisoned for life or any term of years, or both….” This includes someone who “willfully kills or causes serious injury to civilians.” There is also law against genocide at18 USC 1091.
44. Q. Is there any Neutrality Act in the United States?
A. Yes. It can be found on the Internet at 18 USC 960: “Whoever…knowingly begins…or prepares a means for…any military …enterprise to be carried on from thence against the territory or dominion of any foreign prince…with whom the United States is at peace, shall be fined…or imprisoned….”
45. Q. Please state, once again: is the current NATO action against Libya illegal?
A. Yes. For the US, it is unconstitutional. For all members of the UN, it does not meet the legal intent of Article 39, which is that the Security Council must find the offending nation to be disturbing international peace, and it also arrogates to the Security Council some new powers to which the treaty signers never agreed (such as the ban on travel for some Libyans). As for NATO, it is disobeying its own Article 1, “The Parties undertake…to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered….” – and, more generally, it has no legitimate basis for acting as ‘world government” and is thus acting ultra vires.
Mary W Maxwell, PhD, can be contacted at www.ProsecutionForTreason.com. She hereby gives away all rights to the above Q and A, including movie rights.
She appreciates the following helpful comments made about this Q & A by Elias Davidsson, editor of juscogens.org:
“In strict legal terms, states have delegated the powers to determine a breach of the peace to the Security Council and have vowed to abide by its decisions. The SC is empowered to determine any circumstance, including me - Elias Davidsson - eating an apple, as a threat to international peace and security (Art. 39), after which it can impose sanctions or order the use of force. Challenging such determinations is a good faith duty of member states, in my opinion, under the principles of the Vienna Convention on the Law of Treaties. They must, under the principle of good faith, challenge decisions that are against jus cogens, or that are made ultra vires by international organizations to which they have delegated some specific powers. I also note that the powers of the SC to invoke Chapter VII are limited by general principles of international law and by jus cogens. See two of my papers: “The Security Council's Obligations of Good Faith” and “Legal Boundaries of UN Sanctions.” The Security Council was established to secure the peace, not to give to its preeminent members a legal garb for war. It must, therefore, demonstrate in a compelling manner, that the use of force is (a) unavoidable; (b) necessary; (c) will achieve the desired results; and (d) can be undertaken without violating unproportionally human rights.” – Elias Davidsson