War in Libya

"Now that the Libyan conflict seems to be drawing to the end, or at least the end of its present phase, it might be appropriate to consider the legal aspect of NATO’s involvement.

The first question involves the nature of the Western intervention. In this respect, imagine that a Predator drone, controlled by a foreign state, circles above the White House looking for President Obama. It fires a hellfire missile but misses the President and kills a couple of innocent civilians instead. The foreign state then issues a statement saying it is sorry about the civilians but Obama’s position is untenable and the drones will keep coming until he leaves office.

It is not difficult to imagine the response from the White House. President Obama would make a speech evoking the stirring rhetoric of President Roosevelt’s post-Pearl Harbour address, and the television news would soon be flooded with images of American forces setting off to unleash retribution.

Suppose further that the responsible state was not acting alone, but was receiving technical, material and intelligence assistance from another state. If so, that state would also find itself on the Pentagon’s target list.

The ensuing clash of arms might be called many things, but no-one could argue that it would appropriately be called a 'war'.

I make that rather laboured point because of the startling position the White House took on Libya. In a detailed document prepared in June, the White House asserted that because the US forces involved were only playing a 'supporting role', they were not engaged in 'hostilities'.

Accordingly, the argument ran, the definition of 'hostilities' as described under the War Powers Resolution of 1973 had not been met. That resolution, part of the fallout over the Vietnam War, requires Congressional approval for any deployment of US forces in hostilities for more than 60 days. The White House said that its forces in Libya are not engaged in sustained fighting or “active exchanges of fire with hostile forces”.

With the caveat that I am not an American lawyer, that argument seems entirely fallacious. The governments responsible for the intervention made clear early on that Gaddafi’s regime could not continue..."

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