Saturday, April 23, 2011

Obama's Libyan War and the War Powers Act- Part Three. Unlawful application of the U.N. and NATO charters?

  As the now Nato-led "coalition" remains divided over what next steps should be taken in Libya, (see herehere and here), and the Libyan military excursion under United Nations Security Council Resolution 1973 drags on with no end in sight, (so much for being a matter of "days or weeks" as President Obama promised, see here and here), it's finally time to get back to our examination of the basis in law-- or not-- of the legality of President Obama's decision to attack Libya to protect the Libyan rebels and civilians on the ground from pro Ghadaffi forces.  We've already established, in line with our four primary questions we set out to answer, see here, that the President in this case belatedly acted at the behest of the United Nations Security Council with no clear end game or understanding of what American interests would be served absent specific authorization for regime change in Libya, (which the U.N. resolution does not address).  

  And we've seen how President Obama has thumbed his nose at the War Powers Resolution Act of 1973 and cursorily examined some of the claims made in his speech to the nation on the subject and briefly alluded to what an inherently and inexplicably hard-to-define and inconsistent justification for war application of the "Obama Doctrine" really is, (and for those who missed the previous parts of this discussion I refer you to the prior posts here and here, also here and here on this blog for Obama's dithering and its effects on both the Libyan and American people). 
  But as the debate continues over the constitutionality of this "military action," (see also here and here), one which seems more and more destined for quagmire in what some on the left have already "affectionately" begun calling "Obama's war of choice," see here and even claimed justify impeachment, see here-- indeed, it would be hard for Obama to blame this one on George W. Bush or to avoid such calls in light of the left's previous and vociferous criticism of the Iraqi wars--  what remains is to address in more detail the American interests at stake in Libya and answer the last two questions most salient to our discussion of legality vis a vis the way in which this action was begun.

  Namely, under what basis in international law under the relevant U.N. and Nato treaties could the Libyan action taken by the President be legally justified?  (We leave aside for now the complete reversal of then Senator Obama who stated in no uncertain terms in December of 1997 when asked if President Bush had the authority to bomb Iran without seeking explicit authorization from Congress that, "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," see here and here). 

  First, however, as alluded to above, we begin where we left off with a recap of this new development of interventionist doctrine proffered by the Obama Administration before addressing the more weighty issues pertaining to the substantive questions remaining in our inquiry below.

         In a nutshell, and all things considered, the so-called Obama doctrine, (which really isn't "Obama's," see below), seems to consist in the idea that American military intervention, and by implication, international intervention as well, is justified whenever genocide or extreme human suffering of a people may be engendered at the hands of (or inaction of?) one's own government.

  Initially, we should point out that it is not as though this is an entirely "new" doctrine.  Indeed as pointed out by one of our readers recently, (see comments to prior post here), other President's have relied on similar reasoning in ordering intervention or involvement of American military force in various foreign conflagrations in recent history, (although both Bush's Iraq wars were initiated after seeking and receiving Congressional authorization pursuant to the War Powers Resolution.  Moreover, as the article linked above in U.S. News and World Report-- and as used to be heard on the schoolyard-- "two wrongs" don't make a "right.")  And it is not as if we are the only ones who have noticed President Obama's inconsistencies and contradictory statements on the Libyan war, see here and here.

 Further, even President Clinton, who used a modified-- if slightly less forthright-- version of this doctrine to justify American and Nato intervention in the war in Kosovo and former Yugoslavia at least communicated with (and was subsequently subject to) various votes in Congress which saw the legislative branch refuse to stop American involvement in the Yugoslavian civil war, (for full details and history of Presidential compliance see here).  Thus it is not at all clear you can fairly compare the two in practice, (at least Clinton "consulted" with Congress within 48 hours pursuant to the W.P.R.A.'s reporting requirements and "both chambers of Congress supported action but not by legislation authorizing the use of force," even if "the House and Senate could not come to consensus on any single measure," (see here and scroll down to Yugoslavia/Kosovo).     

  And it remains to be seen if Obama, pushing up against the "60 day reporting period" designated in the War Powers Resolution Act will in fact comply with its more substantive terms by approaching Congress with the statutorily-required "report" on the Libyan intervention and seeking the Legislature's approval or disapproval, (even if he didn't do so within 48 hours as required by the War Powers Act, that is, if he even had the authority under the Statute to use military force absent American forces or interests being in danger of imminent attack, as former Senator Obama himself pointed out, see above).    

    But philosophically speaking, it would appear that, constitutional or not, see here, justification for war is now no longer just limited to the "old school" reasons for protection of American troops or citizens in immediate danger-- such as in Reagan's lightning fast "war" in Grenada--  or to situations in which clearly defined and critical "national interests" are at stake, (e.g. the wars in Iraq, even if available intelligence at the time from both U.S. and other allies was ultimately proven flawed. Indeed, in light of Libya only producing less than 2 percent of the world's oil you don't even have our nation's energy needs in event of war as a justification).    

  In short, such bothersome considerations of strategic national interests of America or its allies seems to have gone the way of the dinosoar along with such practical considerations as having a clear-cut mission, overwhelming force and logistical support, command and control to allow full support and protection for our troops and capabilities, and an understanding of the criteria for establishing when we've "won" sufficient to cease hostilities or an "exit strategy" when our objectives are not possible to meet.   

 Moreover, and key to the exercise of the Obama Doctrine, it seems armed force is justified-- even if not always prudent-- against other nation-states, 1) At the behest and approval of international bodies like the U.N. Security Council and/or 2) when murder and "great" human suffering of a repressed populace is about to take place.

  The trouble of course, as above mentioned, is that such a rationale fails the first and most important "old school" test for war, namely, that of our "national interests" in Libya, (although we acknowledge such an inquiry cuts both ways).

 For example, one could argue that by delaying the decision to intervene President Obama seriously undermined our ability to quickly prevail with minimal risk and thus nullified one of the legs in a comprehensive and initial determination, at the same time as he heightened our national interests in this troubled African country in other ways.  Indeed, one could cogently argue that now that we are involved in Libya, however tangentially, our national interest vis a vis preventing the rise of a newly emboldened Mid-East hotbed of Anti-American terrorist activity requires our finishing the job.  

  For now however, a more comprehensive analysis of such questions will have to wait even as we acknowledge an even more thorny one, namely this:  If the requirement for clear and vital national interests to justify military invention is no longer required for the use of American military force, might not one rightly ask, "What about all the other places in the world where people are being butchered or oppressed at the hands of their government such as in Sudan, Syria, or N. Korea? Are we going to attack there too?"  Undoubtedly, such questions raise difficult problems to any rational implementation of the Clinton/Obama doctrine. 

  Nevertheless, having shown that the Obama Administration's exercise of this doctrine is philosophically, if not in practice, an arguably poor justification for war and/or unlawful under the U.S. Constitution and relevant laws-- in particular the War Powers Resolution Act of 1973, (aka the 'War Powers Act') and Article 1, Section 8 of the U.S. Constitution-- we leave for now a more searching examination of what, if any, specific and vital American "national interests" in Libya could have justified our intervention and proceed to consider matters more in line with our purposes here at the ACLP.  Namely, whether this expanded doctrine as apparently practiced by the Obama Administration-- and by logical extension the Libyan military action specifically-- could be considered legal under any applicable theory of "international law," (e.g. the U.N. Charter and/or any other relevant international treaties or agreements of which the United States is a signatory, e.g.,  the North Atlantic Treaty Organization, or NATO).  I will begin with the latter and move on to the United Nations as time allows (before a final determination of whether a 'Part Four' in this series will be required).

  NATO, (short for the North Atlantic Treaty Organization), is the international treaty and military defense organization founded on April 4th, 1949 as an expanded successor to the 1948 Treaty of Brussels signed between Belgium, the Netherlands, Luxembourg, France and Great Britain, see wikipedia

  The signatories to the 14 article Nato treaty-- which is explicitly defensive in nature under article One of the Treaty and often refers to the supremacy and envisioned involvement of the United Nation's Security Council for its goals and contemplated actions, see here-- recognized the need for the industrial and militarily powerful United States to be a signatory to balance and effectively protect Western Europe in the post-WWII period from the threat of a militarily superior and expansionist Soviet Union (and threats of another cataclysmic world war generally).  

  Begun with just the original Treaty of Brussels' signatories in addition to seven more countries, the United States, Canada, Portugal, Italy, Norway, Denmark and Iceland-- along with the strategically critical addition of Western Germany in May of 1955-- Nato has grown over the years to include 10 "East Bloc" nations formerly under the dominion of the USSR and now constitutes a total of 28 countries.

  The defensive nature of NATO-- technically a treaty dedicated to the security and freedom of nations in the "North Atlantic" region and encompassing Greater Europe and the Baltics-- is explicitly made clear in Article One of its charter, which states:  

"The parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations."  Ch. 1, Art. 1, NATO Charter. 

 Moreover, the Alliance's explicit deference to the U.N. charter and resolutions of the United Nation's Security Council, if not clear from Article One of Nato's charter, is made explicitly clear in Article 7 of the Treaty, which states: 

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.  Art. 7, Nato Charter.

 Article Four states, "The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened," and Article Five explicitly makes clear the military purpose of the Treaty to bind all member states (i.e. signatories) to come to the aid of any individual member state of the alliance in the event of attack or aggression against it by any nation outside the alliance., to wit: 
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area." Art. 5, Nato Charter

 As such, it is clearly designed as a "defensive" mutual assistance treaty. Furthermore, and critical to our purposes here, Article Five of the Treaty goes on to state, "Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security." 

  Thus we come to a critical issue in our discussion regarding the lawfulness of President Obama's actions, i.e., "Was the attack against Libya legally justified from a perspective of International law?"  (Of course, even if it was, that doesn't establish that the President's disregard of American law and Constitution is legal, as we've already fairly conclusively shown; we are, after all, not "world citizens" but Americans, governed by American law as set out in our Constitution for good reason, in case you missed our touching on this subject here or the debate between Supreme Court Justices Breyer and Scalia see herehere or here for video). 

  But in light of our purposes in the present discussion-- indeed, the President declared his explicit reliance on the U.N. Security council's Libyan resolution to justify his intervention in Libya-- and the fact that we've now seen the Nato Charter specifically reference the United Nation's Charter and the Security Council's supremacy over Nato, we would be remiss not to engage in a quick review of the provisions of the U.N. Charter (i.e. treaty) as well. 

  The United Nations treaty and Charter was signed June 26, 1945 in the aftermath of world wide war in order to "save succeeding generations from the scourge of war," (Preamble to U.N. Charter), and now encompasses a total of 192 nations, the largest treaty organization of its kind in history.  

 Though the wisdom, fairness or efficacy of the U.N.'s programs, goals, and innumerable "resolutions" are not at issue in today's discussion, we only address its terms because, in lieu of any Congressional vote of approval under the War Powers Resolution Act, the President has previously and expressly cited the U.N. Security Council resolution as authority for his Libyan incursion, see here.  Chapter 1, Art. 1, par. 1, states the overall purposes and philosophy of the treaty as the following:    

"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; Art. 1, Ch. 1, par. 1, United Nations Charter.  

 Moreover, at first blush, the treaties provisions regarding the justified use of force against a member state, (or even in general), seem pretty clear to our unlearned minds:

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Ch VI, Art 33 (1.) U.N. Charter

  Additionally, while Article 51 specifically references the right of "self defense if an attack occurs against a member of the United Nations," the whole passage reads as follows:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."  Art 51, Ch. 7, U.N. Charter. 

  Finally, we quote the "first principles" of the U.N., which we find laid out in Article Two of the Charter as follows:  

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and. justice, are not endangered.
4. 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, or in any other manner inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.  Chapter 1, Article 2, United Nations Charter. 

 So there you have it, all laid out in black (and green?).  

 In light of the relevant text in the documents themselves, and regardless of what you think of Obama personally, your politics, or your compassion for the Libyan people-- who sadly are the ones paying for the incompetence of Western leaders in dealing with this crisis as well as their own bloodthirsty, corrupt government-- it is not open to serious doubt that the Libyan military "intervention," initially led by the U.S. but more recently "punted" to Nato, has arguably been entirely illegal from the getgo, (at least if you're going on source documents and the President's own words).   As we've said all along, there really is no substitute for the wisdom of the American people through their elected leaders, (which is why the Executive branch was denied by the Founders of the right to declare war without the Legislative branch's signing off first).  Of course, what to do about this whole mess is another matter entirely.  Do we arm the rebels? Or redouble our efforts with a clear mission, put boots on the ground, and oust Ghadaffi once and for all? (Though certainly more painful in the short term it sure beats staying "half-in half-out" for two years while the price of oil skyrockets, and certainly beats appointing "commissions" to investigate what to any thinking person is the obvious reason for the jump in gas prices of late).  

  Of course, ultimately such policy preferences are up to the American people, through their elected leaders in Congress to decide, the President to execute, and ultimately, the American people to ratify (or not) in 2012. 
  And it's true that Obama may in fact yet attempt to successfully find his way back on this issue-- as he did in the recent budget compromise-- by setting in place a more firm grasp of our goals, (i.e., regime change), approaching the U.S. Congress for it's wisdom and guidance pursuant to the War Powers Resolution and once again taking the reigns of leadership to use overwhelming force and oust Ghadaffi before any (more) damage can be incurred to the Libyan people or our own long-term strategic interests in the region, (though we aren't quite sure how one could wrest back control from Nato at this point without quite a bit of damage to our credibility amongst allies and enemies alike, even if we are already sustaining such damage based on the indecisive way in which this whole matter has been pursued).  

  But in light of the serious harm the President has already done (and continues to do) to our image and system of laws upon which we are based and the ambivalence of the American people over this poorly articulated and thought-out mission prior to placing the men and women of our armed forces in harms way, we really see no other choice if there is to be a better ending and an upholding of our legal principles.
  We urge the President to do so with all haste and hope it's not too late. jp

1 comment:

  1. Nice work. Will cite at: