As mentioned above, the Security Council acted to prevent an imminent massacre of civilians in Benghazi and elsewhere in the country, but did not authorize open-ended attacks against Qaddafi himself or against his family. The operative wording of the Security Council authorization to member states was to “take all necessary measures…to protect civilians and civilian populated areas under threat of attack.”
Assassinating Qaddafi would not put an end to civilian deaths. Far from constituting a “necessary measure” to protect civilians, killing Qaddafi could well have the opposite unintended consequence, by unleashing a more violent tribal war between Qaddafi loyalists and opposing tribes, with civilians caught in the middle. Moreover, even if the rebels succeed in taking power (whoever they really are), how do we know that they would not turn with vengeance on civilians they consider supporters of Qaddafi?
Furthermore, assassinating a leader who is engaged in a civil war, but not responsible for hostilities against another country — however vile the international community may consider that leader to be — is highly problematic under international law. Article 23b of the Annex to the Hague Convention of 1907 states, “It is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army.” The term “treacherously” as used in this context has been interpreted to refer to political assassinations. And, let’s not forget, NATO is attempting to assassinate the leader of a nation who, for the last several years, has been non-hostile to NATO members.
The United Nations Charter allows nations to defend themselves by all means necessary from attack, but also states that “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.” Qaddafi’s regime had not attacked any other nation, nor threatened such an attack, when the Security Council passed its resolution authorizing military action against the regime.
For that matter, under United States law, assassination is currently rendered illegal by Executive Order 12333. There is also no congressional authorization for President Obama to remain engaged in hostilities in Libya, much less to provide any support (through NATO or otherwise) for forcibly removing Qaddafi from power.
In authorizing the military action in Libya and involving outside intervention in an internal conflict, the architects of Security Council Resolution 1973 relied on a developing concept under international law known as the “responsibility to protect.” At a 2005 gathering of world leaders in New York for the High-level Plenary Meeting of the General Assembly (World Summit), heads of state and government reached consensus on the responsibility to protect civilian populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. If a member state fails to protect its own civilian populations or is, in fact, the perpetrator of such crimes, the international community is supposed to take stronger measures, including the collective use of force through the UN Security Council to provide protection if necessary.
However, the situation in Libya at this time clearly does not fit this criteria. And NATO action has ostensibly exceeded the authority of UN resolution 1973. This is to say nothing of President Obama’s March declaration that “broadening our military mission to include regime change would be a mistake,” and that coalition forces would only play a supporting role in helping the Libyan people “determine their own destiny.” Never a clear end game in sight, it now appears that the effort in Libya has switched objectives midstream.
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