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he conflict in Libya arose out of protests beginning February 15, 2011, in the eastern city of Benghazi. The protest came as part of a wider protest movement, popularly referred to as the Arab Spring, that spread throughout the Middle East and North Africa. The Arab Spring came to affect Tunisia, Egypt, Bahrain, Algeria, Iran, Sudan, Oman, Yemen, Morocco and Jordan, among others.
In Libya, several hundred protesters rallied in opposition to the arrest of a prominent human rights activist. Security forces initially broke up these protests, but over the following week the demonstrations escalated into an uprising aimed at removing the government of Muammar Gaddafi from power. Gaddafi had ruled the country as the "Brother Leader and Guide of the Revolution" since the 1969 overthrow of the monarchy. On February 23, 2011, Benghazifell under the control of protesters after the defection of prominent military officers stationed in the city. In a bid to end the unrest, Gaddafi's son Saif al-Islam gave a televised address in which he announced the government would consider adopting a constitution, but warned of civil war if the protests continued. Shortly after, 230 protester deaths were reported, prompting the UN to accuse the Libyan government of committing crimes against humanity. The UN Human Rights Council soon followed suit in condemning the actions of Gaddafi's government and later acting to suspend Libya from the body, as Libyan diplomats and government officials began to defect from Gaddafi's government over continuing violence against the protesters. JURIST Guest Columnist Gabor Rona of Human Rights First has applauded these efforts by the international community.
Following the defections, Gaddafi's former justice minister, Mustafa Mohamed Abud Al Jeleil, announced the formation of the National Transitional Council (NTC), originally based in Benghazi, as an interim government aimed at ousting Gaddafi from power. In February 2011 and early March 2011, the opposition movement expanded, taking more cities throughout Libya and gaining support through military and tribal defections as the international community contemplated military intervention to prevent attacks on civilian protesters.
ollowing weeks of escalating violence, the international community began to consider action against Gaddafi's government. The UN Security Council voted unanimously on February 27, 2011 to adopt Resolution 1970
sanctions on Gaddafi's government, including an arms embargo, travel ban and the freezing of assets.
The resolution also referred the situation to the International Criminal Court (ICC). Because Libya is not a signatory to the Rome Statute, which created the ICC, UN Security Council approval was required to grant jurisdiction. JURIST Guest Columnist Kevin Govern commented on the importance of bringing Gaddafi to trial before the ICC and resisting the historical option of allowing regime members to go into exile:
The Gaddafis, and their key co-conspirators, should be handled in a manner consistent with the trend emergent over the past decade; the refusal of subsequent governments to grant amnesty for the former dictator's acts of genocide, war crimes or crimes against humanity. While lacking a certain expediency in removing a dictator from control, this protocol reinforces state practices and international custom promoting accountability and respect for the rule of law.
Immediately following UN approval, the ICC announced
that it would not grant immunity to any person perpetrating crimes against humanity in Libya.
The ICC launched an official investigation into the violence against Libyan civilians on March 3, 2011. The next day, Chief Prosecutor Luis Moreno-Ocampo formally announced that his investigation would target Gaddafi and his inner circle. However, JURIST Guest Columnist Charles Adeogun-Phillips argued that Gaddafi should have faced hybrid international and domestic prosecution in order to avoid jurisdictional confusion, preserve Libyan sovereignty, and minimize bias against Gaddafi for other incidents that he was allegedly involved in, such as the Lockerbie bombing. Conversely, JURIST Guest Columnist Richard Dicker of Human Rights Watch (HRW) called for Gaddafi's prosecution before the ICC to ensure that the victims of crimes against humanity are given the possibility of redress.
The UN sanctions did not quell the violence, however, and in March 2011 the Arab League called for a no-fly zone over Libya to prevent military action against civilians. The UN Security Council complied the following week, imposing a no-fly zone over the country with Resolution 1973. The resolution called for a ceasefire between the Libyan government and rebel forces, banned all flights in Libyan airspace except those for humanitarian purposes, and authorized UN member states to take "all necessary measures . . . to protect civilians and civilian populated areas under threat of attack . . . while excluding a foreign occupation force of any form on any part of Libyan territory."
On March 19, 2011, American, British and French military forces, in conjunction with NATO, carried out operations against Gaddafi's forces. According to JURIST Special Guest Columnist Curtis Doebbler, this use of international force against Libya was a violation of international law because Resolution 1973 failed to comport with Article 42 of the UN Charter, which requires a determination that "measures not involving the use of force" have failed. The military effort initially resulted in an effective stalemate between Gaddafi's forces and those of the NTC, with the western portion of the country under Gaddafi's control, and the eastern portion under that of the NTC. This situation was later altered by the successful NTC takeover of Tripoli on August 22, 2011.
The ICC investigation quickly uncovered evidence that Gaddafi had been involved in shooting civilians, mass arrests, torture and forced disappearances. In March 2011, Ocampo claimed that he was certain that the ICC would bring formal charges against Gaddafi. Following a request from Ocampo, the ICC issued arrest warrants for Gaddafi, his son and his brother-in-law on June 27, 2011. The warrants alleged that the three men conspired to perpetrate and cover up crimes against humanity committed between February 15 and February 28, 2011.
US Involvement and the War Powers Resolution
he US military was in strategic command of the international effort in Libya at first, with the launch of Operation Odyssey Dawn on March 19, 2011. Operation Odyssey Dawn officially ended on March 31, with the US handing over control of the effort to NATO. According to opponents of US involvement in the Libya conflict, the launch of these operations activated the War Powers Resolution, which limits the ability of the president to continue military operations without the authorization of Congress.
Congress passed the War Powers Resolution, codified at 50 USC § 1541 et seq., in 1973 over the veto of President Richard Nixon. The resolution requires the president to notify Congress within 48 hours of committing US armed forces to military action, and provides that armed forces must be withdrawn from the conflict after 60 days, followed by a 30 day withdrawal period, absent congressional authorization for continued hostilities. JURIST Contributing Editor Michael Kelly has explained the functioning of this resolution in the context of Libya in more detail.
Despite informing Congress of the military action, President Barack Obama did not receive congressional authorization for continued involvement in the conflict, and argued that authorization was not necessary due to the limited role US forces were playing in the international military operation. Within a week of the initiation of hostilities against Gaddafi's forces in Libya, US Representative Justin Amash (R-MI) introduced legislation requiring the immediate halt of US military action. Citing Article I, Section 8 of the Constitution, Amash argued that the bill would "enforce the constitutional requirement that Congress approve of an offensive military operation."
On June 15, 2011, several members of Congress filed a lawsuit in the US District Court for the District of Columbia against President Obama for allegedly circumventing congressional authority by increasing military strikes against Libya. The lawsuit argued that President Obama's actions violated Article I, Section 8, which grants Congress the power to declare war, in addition to violating the War Powers Resolution. The suit came shortly after House Speaker John Boehner (R-OH) sent a letter to President Obama warning that he would be in violation of the War Powers Resolution on June 19 and demanding an explanation for continued operations. The lawsuit was later dismissed due to lack of standing.
Following this, and the passage of a resolution by the House calling for withdrawal of forces deployed without congressional approval, President Obama released a report to Congress attempting to explain the continued air strikes in Libya. The report, United States Activities in Libya, argued that the US military was merely providing support as is required by several international treaties and did not have enough participation in the conflict to activate the War Powers Resolution. JURIST Contributing Editor Jordan Paust advanced this argument, stating that President Obama was not bound by the resolution due to his constitutional authority and international obligations. The report explained:
The President is of the view that the current US military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because US military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. US 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. US operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of US ground troops, US casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.
According to a report by The New York Times
, this rationale for continued military action divided
the Obama administration, with Pentagon general counsel Jeh Johnson and Caroline Krass, the acting head of the Office of Legal Counsel, telling President Obama that they believed that US activities in Libya constituted "hostilities," and White House counsel Robert Bauer and State Department legal advisor Harold Koh arguing that US activities did not amount to "hostilities." A week later, the US House of Representatives rejected
a resolution that would have provided congressional approval, but also rejected a resolution that would have defunded the military effort.
Koh later testified that President Obama's conduct was in compliance with the Constitution, the War Powers Resolution and international law before the Senate Foreign Relations Committee. Specifically, Koh provided four factors suggesting the situation in Libya did not amount to a "hostility" under the resolution. First, the mission was limited in that US forces were merely providing support in the civilian protection operation, even though NATO forces are engaging in more aggressive military conduct in Libya. Second, the US presence in Libya had not resulted in significant US casualties, indicating that the confrontations were not hostile. He argued that the operation appeared to lack the risk of escalation, as prolonged combat was unlikely and geographical scope was narrow. Finally, Koh pointed out that US presence in Libya was far from "full military engagement." The House later voted to restrict funding for military operations in Libya, but voted down a measure to entirely defund it.
The Death of Gaddafi
ollowing international intervention and several months of stalemate, opposition forces seized control of Tripoli, the Libyan capital, and took two of Gaddafi's sons into custody on August 22, 2011. Opposition forces continued to clash with the remaining loyalist forces until October 2011, sparking fierce combat over the last strongholds of pro-Gaddafi forces at Sirte, Sabha and Bani Walid. The fighting also brought allegations
from Amnesty International (AI) that war crimes had been committed on both sides of the conflict. Sabha fell to NTC troops in September and Bani Walid fell on October 17, 2011. During this time, the NTC continued to seek legitimacy in the international community, gaining
recognition from the World Bank and beginning to create
a full, interim government in September 2011.
The NTC has also attempted to distance itself from the abuses committed during Gaddfi's regime. To that end, the transitional government has announced plans to abolish Libya's state security system and has issued an arrest warrant for former prime minister Al Baghdad Ali Al-Mahmoudi following his arrest in Tunisia. However, AI levied allegations of prisoner abuses against the NTC in October. JURIST Guest Columnist Edsel Tupaz has argued for the necessity of implementing a stable, democratic government in Libya and seeking even-handed justice in the aftermath of the opposition uprising:
Whatever the result of this crowning of thorns by nation-states, there will be no avoidance of the fact that Libya must move fast from the rule of the tribe to the rule of law. Like Iraq post-Saddam and Egypt post-Mubarak, there will be a surge of sectarian violence and criminal activity in the streets as Libya struggles in post-conflict transition. How may Libya contain this explosion of social unrest as it seeks to impose order from within and from without? What are the various post-conflict and transitional justice strategies which Libya's regime-in-waiting ought to deploy? As intimated, Libya has had no strong liberal democratic foundation; much of its governmental life has been driven by the rule of a singular personality. Its new leaders must proceed with that uncertainty in mind. The fact that Libya has had no good buttress in democracy is no reason to give up aiming for a working constitutional democracy, even if far from perfect, and certainly it is no reason for hesitating to use any and all forms of post-conflict strategies at its disposal to help its transition from war to peace. This includes what might be an interim government seated at Tripoli in the very near future.
Gaddafi was captured and killed
on October 20, 2011, following the fall of his birthplace, Sirte. As he fled the captured city, Gaddafi's convoy was bombarded by NATO airstrikes that forced his eventual capture by opposition fighters. The nature of his death at the hands of NTC forces is unclear and has created immediate controversy some evidence suggests that Gaddafi may have been summarily executed. The UN Office of the High Commissioner on Human Rights (OHCHR) has called
for a full investigation into the incident.
Transitional Prime Minister Mahmoud Jibril declared the country's official liberation from Gaddafi's regime on October 23, 2011, and set a schedule for the formation of a new, permanent government. In August 2012, the Libya General National Congress elected Mohamed al-Megaryef as interim president. In January 2013, Libyan Justice Minister Salah Maraghni announced that war crimes trials would be held for Muammar Gaddafi's son, Saif al-Islam Gaddafi, and former intelligence chief Abdullah al-Senussi.
This JURIST Feature is edited and maintained by the head of JURIST Archives Meagan McElroy and associate editor Garrett Eisenhour. Please direct any questions or comments to them at email@example.com. Updated as of January 7, 2013.