Monday, March 21, 2011

Jus Ad Bellum versus Jus In Bello in Libya

The law of armed conflict is a funny beast. It distinguishes between the law governing going to war (jus ad bellum) and the law governing rights and duties within an armed conflict (jus in bello). Curiously, whether an armed conflict is lawful under jus ad bellum has no bearing on whether the actions taken within that armed conflict are lawful under jus in bello. That is, even if one state invades another state in a blatant act of aggression (illegal), its armed forces may still lawfully target the armed forces of the invaded state and its combatants are still protected by combatant immunity. Similarly, the invaded state’s armed forces are not freed from their obligations vis-à-vis the enemy invading armed forces or enemy aliens present within its territory during the armed conflict.

Examining Libya through these lenses is an interesting exercise. For instance, had the United States or any of its coalition partners begun bombing Libya last Wednesday, the bombing campaign would arguably have been an act of aggression and, therefore, illegal under international law. Despite that hypothetical illegality, the bombing campaign could still be lawful so long as it conformed to jus in bello—particularly, proportionality, necessity, and distinction. On the other hand, a bombing campaign begun after UN Security Council authorization would be lawful under jus ad bellum but would be illegal under jus in bello if, for example, the coalition forces bombed indiscriminately.

These two separate but interrelated paradigms spring to mind today in the wake of the bombing of Qaddafi’s compound over night. The majority of the reporting has focused on the fact of the targeting and the claim by the coalition that it is not specifically targeting Qaddafi.

Now, whether the coalition is targeting Qaddafi or not, he is likely a lawful target from a jus in bellow perspective. He is the commander—and therefore a member—of the Libyan armed forces. The coalition—a group of several states—is engaged in hostilities using regular armed forces against Libya, another state, indicating that the coalition and Libya are in an armed conflict of international character. In such an armed conflict, the members of the armed forces are targetable 24/7 unless they have been rendered hors de combat.

However, from a jus ad bellum perspective, targeting Qaddafi may be a crime. Resolution 1793 authorizes the imposition of, among other things, a No Fly Zone for the protection of civilians. It is not immediately obvious how targeting Qaddafi’s compound furthers the imposition of a No Fly Zone for the protection of civilians. The compound is presumably fixed to the ground and not flying, nor presumably was the compound the site of an anti-aircraft or radar battery that targeted coalition aircraft.

Yet, UNSCR 1793 also authorize the use of “all necessary measures” to protect Libyan civilians. Such language is broad enough to excuse all manner of action—including, potentially, the bombing of Qaddafi’s compound. The compound may have been the base of Qaddafi’s command and control apparatus. If so, then the coalition forces may have determined it is necessary to disrupt or disable Qaddafi’s command and control to ensure civilians are protected. If so, then targeting the compound complies with the UNSCR and it is not violative of jus ad bellum.

The question is more difficult, however, when one examines the reporting of the first airstrike outside of Benghazi.

Closer to Benghazi, the tanks and missile carriers were blown to pieces as they faced the city. Farther south along the road, many of the tanks seemed to have been retreating, or at least facing the other way.
The fact that the tanks were apparently retreating from Benghazi and fleeing the airstrikes would seem to suggest that destroying them was not necessary to protect Libyan civilians. Unless, of course, we are to adopt a definition of necessary that requires the destruction of the whole of the Libyan military apparatus regardless of its current use against civilians.

Such a definition seems to be overly broad. However, it is likely the definition embraced by the coalition forces. Indeed, no other definition of necessity would be sufficient to achieve the apparent goals of the coalition: the ouster of Qaddafi. By destroying the Libyan military—at least those elements of the military loyal to Qaddafi—the coalition hopes to facilitate the anti-Qaddafi forces ability to route the government and take over the country.

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