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United States Justifies Its Use of Force in Libya Under International and National Law

Published online by Cambridge University Press:  29 March 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 110 , Issue 4 , October 2016 , pp. 804 - 811
Copyright
Copyright © American Society of International Law 2016

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References

1 Authorization for Use of Military Force, Pub. L. No. 107-40, §2(a), 115 Stat. 224 (2001) (reprinted at 50 U.S.C. §1541 note).

2 John R. Crook, Contemporary Practice of the United States, 105 AJIL 776, 776 (2011); 105 AJIL 569, 573 (2011).

3 S.C. Res. 1973 (Mar. 17, 2011). The resolution passed through the Security Council unopposed, although Brazil, China, Germany, India, and Russia abstained. See UN Security Council Press Release, Security Council Approves “No-Fly Zone” over Libya, Authorizing “All Necessary Measures” to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions (Mar. 17, 2011), at http://www.un.org/press/en/2011/sc10200.doc.htm.

4 Letter from Barack Obama, President of the U.S., to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, War Powers Resolution Regarding Iraq (Aug. 8, 2014), available at https://www.whitehouse.gov/the-press-office/2014/08/08/letter-president-war-powers-resolution-regarding-iraq. See also Memorandum from Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal Counsel, to Eric Holder, Attorney General, Authority to Use Military Force in Libya 7 (Apr. 1, 2011), available at http://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authority-military-use-in-libya.pdf.

5 Letter from John Boehner, Speaker of the U.S. House of Representatives, to Barack Obama, President of the U.S. (June 14, 2011), available at http://www.speaker.gov/sites/speaker.house.gov/files/UploadedFiles/Letter_to_POTUS_Libya_061411.PDF. The War Powers Resolution of 1973 states, in relevant part:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

50 U.S.C. §1544(b).

6 The White House, Report to the United States House of Representatives on United States Activities in Libya (June 15, 2011), available at https://assets.documentcloud.org/documents/204680/united-states-activities-in-libya-6-15-11.pdf (“U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.”).

7 Id. (“The Administration has repeatedly indicated its strong support for the bipartisan resolution drafted by Senators McCain, Kerry, Lieberman, Levin, Feinstein, Graham, and Chambliss that would confirm that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government.”).

8 H.R. 2278, 112th Cong. (2011–2012). See also Jonathan Allen & Seung Min Kim, Libya Votes Show House Divided, Politico (June 24, 2011), at http://www.politico.com/story/2011/06/libya-votes-show-house-divided-057711?o=0; Josh Rogin, Despite Vote, Majority of Congressmen Want to End the Libya War, FOREIGN POLICY (June 24, 2011), at http://foreignpolicy.com/2011/06/24/despite-vote-majority-of-congressmen-want-to-defund-the-libya-war.

9 Ishaan Tharoor & Adam Taylor, Here are the Key Players Fighting the War for Libya, All Over Again, Wash. Post (Aug. 27, 2014), at https://www.washingtonpost.com/news/worldviews/wp/2014/08/27/here-are-the-key-players-fighting-the-war-for-libya-all-over-again.

10 Declan Walsh, Libya's Unity Government Defies Air Blockade to Reach Tripoli, N.Y. Times, Mar. 30, 2016, at A8.

11 UN Security Council Press Release, Unanimously Adopting Resolution 2259 (2015), Security Council Welcomes Signing of Libyan Political Agreement on New Government for Strife-Torn Country (Dec. 23, 2015), at https://web.archive.org/web/20160130034711/http://www.un.org/press/en/2015/sc12185.doc.htm.

12 Paul Cruickshank, Nic Robertson, Tim Lister & Jomana Karadsheh, ISIS comes to Libya, CNN (Nov. 18, 2014), at http://www.cnn.com/2014/11/18/world/isis-libya.

13 U.S. Dep't of State Press Release, Ministerial Meeting for Libya Joint Communique (May 16, 2016), at http://www.state.gov/r/pa/prs/ps/2016/05/257236.htm. See also Paul D. Shinkman, U.S., Other U.N. Powers Back Arms Imports for Libya, U.S. NEWS (May 16, 2016), at http://www.usnews.com/news/articles/2016-05-16/us-other-un-powers-back-arms-imports-for-libya-despite-security-concerns.

14 Security Council Committee Established Pursuant to Resolution 1970 (2011) Concerning Libya, United Nations Security Council Subsidiary Organs, https://www.un.org/sc/suborg/en/sanctions/1970 (last visited Oct. 3, 2016).

15 United Nations Security Council Press Release, Security Council Authorizes Inspection of Suspected Embargo-Breaking Vessels off Libya's Coast, Unanimously Adopting Resolution 2292 (2016) (June 14, 2016), at http://www.un.org/press/en/2016/sc12401.doc.htm.

16 Paul D. Shinkman, U.S. Commandos Expand Anti-ISIS War into Libya, U.S. News (Jan. 29, 2016), at http://www.usnews.com/news/articles/2016-01-29/us-commandos-expand-anti-isis-war-into-libya.

17 U.S. Dep't of Defense Press Release, Press Briefing by Press Secretary Peter Cook in the Pentagon Briefing Room (Jan. 27, 2016), at http://www.defense.gov/News/Transcripts/Transcript-View/Article/645195/department-of-defense-press-briefing-by-pentagon-press-secretary-peter-cook-in.

18 Kristina Wong, Pentagon Acknowledges US Ground Forces Supporting ISIS Fight in Libya, The Hill (Aug. 10 2016), at http://thehill.com/policy/291008-pentagon-acknowledges-us-ground-forces-supporting-isis-fight-in-libya.

19 U.S. Dep't of Defense Press Release, Statement from Pentagon Press Secretary Peter Cook on U.S. strike in Libya (Nov. 14, 2015), at http://www.defense.gov/News/News-Releases/News-Release-View/Article/628954/statement-from-pentagon-press-secretary-peter-cook-on-us-strike-in-libya.

20 Greg Botelho & Barbara Starr, 49 Killed in U.S. Airstrike Targeting Terrorists in Libya, CNN (Feb. 20, 2016), at http://www.cnn.com/2016/02/20/africa/libya-us-airstrike-isis.

21 Helene Cooper, U.S. Conducts Airstrikes Against ISIS in Libya, N.Y. Times, Aug. 1, 2016, at A4. See also Missy Ryan & Sudarsan Raghavan, U.S. Strikes Islamic State Stronghold in Libya, Expanding Campaign Against Militant Group, Wash. Post (Aug. 1, 2016), at https://www.washingtonpost.com/news/checkpoint/wp/2016/08/01/united-states-strikes-islamic-state-stronghold-in-libya-expands-campaign-against-militant-group.

22 Goran Tomasevic & Yeganeh Torbati, U.S. Warplanes Launch Bombing Campaign on Islamic State in Libya, Reuters (Aug. 1, 2016), at http://www.reuters.com/article/us-libya-security-idUSKCN10C2NF.

23 U.S. Dep't of Defense Press Release, Statement by Pentagon Press Secretary Peter Cook on U.S. Air Strike in Libya (Aug. 1, 2016), at http://www.defense.gov/News/News-Releases/News-Release-View/Article/881794/statement-by-pentagon-press-secretary-peter-cook-on-us-air-strike-in-libya.

24 Tomasevic & Torbati, supra note 22.

25 Id.

26 U.S. Dep't of Defense Press Release, Press Briefing by Press Secretary Peter Cook in the Pentagon Briefing Room (Feb. 19, 2016), at http://www.defense.gov/News/Transcripts/Transcript-View/Article/659088/department-of-defense-press-briefing-by-pentagon-press-secretary-peter-cook-in [hereinafter Press Briefing by Cook].

27 Sudarsan Raghavan & James McAuley, Libya's U.N.-Backed Government Decries French Troop Presence in Rival Zone, Wash. Post (Jul. 21, 2016), at https://www.washingtonpost.com/world/libyas-un-backed-government-decries-french-troop-presence-with-rival/2016/07/21/71168ede-4f33-11e6-aa14-e0c1087f7583_story.html.

28 Id.

29 Sudarsan Raghavan, Libya's Parliament Rejects U.N.-Backed Unity Government, Wash. Post (Aug. 22, 2016), at https://www.washingtonpost.com/world/middle_east/libyas-parliament-rejects-un-backed-unity-government/2016/08/22/a86c08de-6886-11e6-91cb-ecb5418830e9_story.html.

30 For discussion of Obama's unsuccessful push for an ISIL-specific force authorization, see Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 109 AJIL 429 (2015); 109 AJIL 199 (2015).

31 Authorization for Use of Military Force §1.

32 See Press Briefing by Cook, supra note 26.

33 In May of 2016, Army Captain Nathan Michael Smith filed a lawsuit challenging Obama's authority to use the 2001 AUMF as a basis for conducting armed hostilities on ISIL. Complaint for Declaratory Relief, Smith v. Obama, Case 1:16-cv-00843 (D.D.C. 2016) (The 2001 AUMF “does not authorize the war against ISIS. It authorized the President to wage war against those responsible for the attacks of September 11, 2001—meaning al Qaeda—and the governments which harbored it—meaning the Taliban. ISIS is in no way responsible for the September 11 attacks.”). The government has filed a motion to dismiss. Defendant's Motion to Dismiss, Smith v. Obama, Case 1:16-cv-00843-CKK (D.D.C. 2016).

34 Stephen Preston, Policy Address: “Legal Framework for the U.S. Use of Military Force Since 9/11, ” in Proceedings of the Annual Meeting (American Society of International Law) 337 (2015).