Up in Smoke

      Residents cheer as foreign journalists arrive in Zawiya, Libya, 30 miles (50 kilometers) west of Tripoli

The Obama team also stepped around the War Powers Resolution. It issued brief reports to Congress after hostilities had been commenced, but it did not recognize the resolution as being applicable to the Libya campaign. The Obama view was not, as Republican administrations since Nixon have asserted, that the resolution was an unconstitutional intrusion on presidential prerogatives. Rather, it took aim at the resolution's definition of "hostilities" — a term consciously adopted to include actions far short of war — and argued that the operations in Libya could not be viewed as covered. State Department Legal Advisor Harold Koh advanced this view in a hearing before Congress on June 15, the same date on which the Obama team delivered its report on actions in Libya.

At this point, U.S. involvement in the Libyan campaign consisted of "occasional strikes by unmanned Predator UAVs," the report argued. The administration was trying to saddle the term "hostilities" with the relatively narrow constitutional sense of the word "war," but Congress plainly opted to use "hostilities" in order to capture a far wider array of military actions. As various scholars have noted, "hostilities" has a well-established meaning in international humanitarian law: "the (collective) resort by the parties to the conflict to means and methods of injuring the enemy." House Speaker John Boehner and Senate Majority Whip Dick Durbin shared the same assessment: The notion that lethal drone strikes are not "hostilities" under the War Powers Resolution "doesn't pass a straight-face test."

Obama's engagement with the Constitution and domestic law thus consisted of a rubber-stamp legal opinion from the OLC that made policy assumptions publicly contradicted by senior administration national security spokesmen, and a series of cute word games to deny application of the War Powers Resolution. Congress, moreover, failed to stand up for its prerogatives either by explicitly authorizing the campaign or by challenging it. Congressional leaders were too obsessed with partisan gamesmanship and too indifferent to the fate of their own constitutional powers to do either. The Libya campaign thus turns into another vindication of executive war-making powers, and a demonstration of Congress's institutional lack of gravitas when dealing with minor foreign conflict.

Enter Resolution 1973, which the Security Council adopted on March 17. There were three provisions at the core of the resolution: a call for an immediate ceasefire and an end to violence against civilians; the establishment of a no-fly zone over Libya; and authority to use "all necessary force" to protect civilians and civilian-populated areas while prohibiting the deployment of a "foreign occupation force." As the resolution was adopted, forces loyal to Qaddafi were preparing an assault on Benghazi, the rebel stronghold. Qaddafi himself made statements threatening the violent taking of the city and the "house-by-house" extermination of anti-government protesters. His comments were sufficiently unhinged, and the threat of a bloodbath sufficiently clear, that the Arab League lined up in support of the resolution and even Russia and China — which had threatened a veto of the resolution — switched their position to abstain instead. Qaddafi embraced the ceasefire call, but his forces continued their attacks on civilians unabated — satisfying the resolution's preconditions for the use of military force.

While much of the military operations in Libya were plainly within the mandate of Resolution 1973, some aspects exceeded it. For instance, attacks fairly early in the conflict targeted command-and-control centers of the Qaddafi regime. Such steps would be routine in wartime and would plainly be authorized under the laws of armed conflict. But it's not so clear that they were authorized by Resolution 1973, the authority of which rested on the doctrine of "responsibility to protect" (R2P): the notion, adopted by the U.N. in 2005, that intervention is justified to protect a civilian population from harm, even at the hands of its own leaders. After all, strikes were mounted against military positions far away from the attacks on civilians and with no apparent linkage to them. Moreover, as the war progressed, the posture of the fading Qaddafi regime became increasingly defensive. The final weeks of the campaign put this in sharpest perspective, as Qaddafi and his final core group of retainers withdrew to his hometown of Sirte, ultimately fleeing in a convoy that wasfired upon by NATO aircraft and an American Predator drone, destroying two vehicles. Libyan authorities have denied an independent autopsy that might show conclusively the cause of Qaddafi's death — which may have been shots fired after he surrendered and was in rebel custody — but the role played by NATO in his final moments points to the near perfect inversion of the mission. Instead of protecting civilians from attack by Qaddafi and his forces, they were attacking a fleeing and clearly finished Qaddafi.

At this point, some members of the Security Council clearly feel they got suckered. They voted for a resolution to protect the people of Benghazi from slaughter and saw their authority invoked to depose Qaddafi and install a new government. That will have consequences for future humanitarian crises. Russia and China have now blocked Security Council resolutions targeting Syria. Russian President Dmitri Medvedev has made clear that Russia supports demands for reform in Syria and abhors the use of violence against demonstrators, but has been equally clear that Russia cannot risk a repeat of the Libyan example.

NATO's operations in Libya began as a valid demonstration of the use of military force to protect civilians. But they evolved quickly into an exercise in regime change. In the wake of Libya, the Security Council is unlikely to embrace another R2P operation anytime soon. And that is bad news for the people of Damascus and Hama, as well as for advocates of the responsibility to protect.


Tags: barack obama, gaddafi, libya, lindsey graham, muammar el-qaddafi, nato, scott horton

    • Scott Horton
    • Scott Horton is a contributing editor at Harper’s magazine, where he covers legal and national security issues. As a practicing attorney, Horton has focused on investment in emerging markets. He is also a life-long human rights advocate and serves as a director of the Moscow-based Andrei Sakharov F...

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