Can the coalition forces using force in Libya under the Security Council’s authorizing resolution lawfully target Gaddafi personally? This question has provoked some heated back and forth among political leadership of several coalition countries, including the US and the UK:
Yesterday a war of words erupted between the U.S. and Britain after the U.K. government claimed Muammar Gaddafi is a legitimate target for assassination. U.K. government officials said killing the Libyan leader would be legal if it prevented civilian deaths as laid out in a U.N. resolution. But U.S. defence secretary Robert Gates hit back at the suggestion, saying it would be ‘unwise’ to target the Libyan leader adding cryptically that the bombing campaign should stick to the ‘U.N. mandate’.
Here is my very quick take. The international law questions are two; followed by a US domestic law question (and not the Constitutional law, separation of powers question being hotly debated):
First, under the laws of war generally, would targeting Gadaffi personally be lawful? Quick answer: Yes. As commander of Libya’s armed forces (which might be the case whether he is a civilian or a military officer), as a matter of status as well as operational fact, Gaddafi is a lawful target. There are many difficult questions of when it is lawful to target a person – status, participation in hostilities, etc. Some of them involve hard questions of interpretation of law; others include hard questions of what is the proper, or most plausible, understanding of the law itself. But it is not necessary to jump into those issues to find that Gaddafi can be targeted; his does not appear to be a hard case.
Second, under the terms of the Security Council’s authorizing resolution to use force, is it lawful to target Gaddafi personally? Quick answer: Yes. (Commenters, thanks for the correction!) The text of Security Resolution 1973 (2011) reads with reference to protection of civilians (and repeats the same language with reference to the no-fly zone), and under the mandatory authority of the Council under Chapter VII:
Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi … (emphasis added).
The resolution thus protects a category of persons, “civilians,” and a geographical status, “civilian populated areas that are under threat of attack.” It does so by permitting “all necessary measures.” Does this permit the targeting of the political and military leadership at the top that is attacking or threatening to attack civilians or civilian areas? “Necessary” could be read here as a term of limitation, but it is joined to “all,” which effectively runs the other way. Additionally, however, “necessary” itself can also be read as a term of authorization – viz., the Council has issued not merely an invitation, but a mandate, to end the attacks and threats of attacks. In that sense, “necessary” can be understood plausibly as an instruction to accomplish the mandate by the means necessary.
Each of these is both a plausible reading, and indeed each contains an element of what seems to be intended by the resolution, limitation and expansion. On that basis, then, it seems quite plausible to read the language permissibly to undertake whatever the coalition military authorities conclude is prudentially required, all other legal issues being equal, to end the attacks and threats of attacks. The permissive notion of “necessary” here carries an element of the prudential aspects of “military necessity,” conceptually though not in a strictly legal sense. As in the first, general laws of war question, above, it is easy to make a case that the most efficient route for ending the current regime’s ability to attack civilians is to end the regime’s current leader. It is equally easy to make that case for ending the regime’s ability to threaten civilians, whether immediately or into the future. Indeed, one might well argue that at this juncture, it is the only way; that conclusion is not foreclosed by the text of the resolution.
Third, as a matter of US domestic law and regulation, would US forces targeting Gaddafi personally constitute a violation of the US executive order that prohibits “assassinations”? Quick answer: No. The executive order – revisable by a new order by the President, and not a statute – does not define assassination and has remained controversial as to its scope. State Department Legal Advisor Harold Koh, as well as his predecessor from the time it was promulgated, Abraham Sofaer, have each given authoritative statements as to how the executive branch sees the executive order, and its meaning is highly restrictive in their interpretations.
However, it is not necessary to enter those discussions in this case. No one in any position of authority, so far as I am aware, has ever suggested that the ban would apply to a person otherwise lawfully targetable in an international armed conflict under the laws of war. Irrespective of the conflict’s status for Constitutional purposes, it is an interstate, international armed conflict for purposes, governed by that body of law’s rules on targeting. If the analysis of the first question is correct, Gaddafi is a lawful target; no authority of which I am aware has ever argued that in the midst of an armed conflict, the targeting of a lawful target would violation the assassination ban.
(Note, reading some of the comments: The question of whether the US is in a war for purposes of the Constitution is separate from the question of whether the US is engaged in an armed conflict governed by the laws of war, and specifically the law of targeting. Irrespective of the Constitutional questions, the laws of war including targeting law applies in any armed encounter between armed forces of states, under Common Article 2 of the Geneva Conventions. That is what matters for purpose of what I briefly say above – viz., that I am not aware of any authority that argues that the assassination ban is violated if the target is otherwise a lawful target in an armed conflict as defined by the laws of war for the purpose how military operations must be conducted, irrespective of whether it is a war for purposes of Constitutional separation of powers purposes. If one wants to see just how limited the meaning of the assassination ban is, you’ll have to read Abe Sofaer and Harold Koh’s statements on behalf of the US government.)
Update: I see that the eminent international law scholar Dapo Akande has weighed in at EJILTalk with an analysis that merits close reading.