Harold Hongju Koh
Legal Advisor U.S. Department of State
American Society of International Law Annual Meeting
Washington, DC
March 26, 2011
Thank you, Monica. It is always a pleasure and an honor to speak here at the American Society of International Law.
As your President, David Caron, noted last night, I am the 22nd American to serve as Legal Adviser of the U.S. Department of State, and I am honored to serve during this, the eightieth year after Congress first created our office by statute. At a conference on the history of the Legal Adviser’s Office held at Georgetown Law School earlier this month, I gave a keynote address that took note of the Legal Adviser’s historical role as spokesperson for the United States government regarding international law, and of what I called the Legal Adviser’s “Duty to Explain:” the historical practice of the Legal Adviser publicly explaining the legal basis for United States military actions that might occur in the international realm. It is in that spirit that I appear here this morning to give the following statement:
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On March 19, 2011, at President Obama’s direction, U.S. military forces began a series of strikes in the national security and foreign policy interests of the United States to enforce UN Security Council Resolution 1973. These strikes will be limited in their nature, duration, and scope.
Their explicit purpose is to support an international coalition as it takes all necessary measures to enforce the terms of Resolution 1973 (adopted on March 17, 2011), as part of an international effort authorized by the United Nations Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.
U.S. forces are conducting a limited and well-defined mission in support of international efforts to protect civilians, to prevent a humanitarian disaster, and to set the stage for further action by other coalition partners. U.S. military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European Allies and Arab partners to continue to carry out the measures authorized by Resolution 1973. The United States has not deployed ground forces into Libya and will not do so. U.S. forces have targeted the Qaddafi regime’s air defense systems, command and control structures, and other capabilities of Qaddafi’s armed forces used to attack civilians and civilian populated areas. We are working with our allies to transition to NATO and other partners the principal command and control of this effort and to ensure the continuation of activities necessary to realize the objectives of UN Security Council Resolutions 1970 (adopted on February 26, 2011) and 1973.
As Secretary of State Clinton emphasized on March 24 (Thursday night),
“From the start, President Obama has stressed that the role of the U.S. military would be limited in time and scope. Our mission has been to use America’s unique capabilities to create the conditions for the no-fly zone and to assist in meeting urgent humanitarian needs. And as expected, we’re already seeing a significant reduction in the number of U.S. planes involved in operations as the number of planes from other countries increase in numbers. [As of Thursday, March 24 we took] the next step. We have agreed, along with our NATO allies, to transition command and control for the no-fly zone over Libya to NATO. All 28 allies have also now authorized military authorities to develop an operations plan for NATO to take on the broader civilian protection mission under Resolution 1973.”
As our press spokesman specified yesterday, “this decision to go forward with the planning reflects an agreement in principle by allies that this mission should be integrated into NATO’s command and control role, but it will not be formally agreed until allies approve the plan, which will take place likely [either tomorrow] or Monday – Sunday March 27th or Monday March 28th.”
These United States military actions rest on ample international legal authority. Chapter VII of the United Nations Charter grants authority to the Security Council to decide what measures shall be taken to maintain or restore international peace and security where it determines the existence of any threat to the peace, breach of the peace or act of aggression (Article 39). Articles 41 and 42 further specify that the Security Council may take such action by air, sea and land forces as may be necessary to maintain or restore international peace and security. Acting under Chapter VII, in Resolution 1973, the Security Council determined that the situation in the Libyan Arab Jamahiriya constitutes a threat to international peace and security (PP21), and : (1) in operative paragraphs 6 to 8 of the resolution imposed a No-Fly Zone in the air space of the Libyan Arab Jamahiriya in order to help protect civilians, and authorized states to take “all necessary measures” to enforce that No-Fly Zone in accordance with the Resolution, (2) in operative paragraph 4 authorized Member States to take all necessary measures to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory; and (3) in operative paragraph 13 authorized Member States to use all measures commensurate to the specific circumstances to carry out inspections aimed at the enforcement of the arms embargo. Under the Security Council authorizations, Member States may also work through regional organizations or arrangements and with local partners who share the goal of preventing attacks on civilians or civilian populated areas.
Resolution 1973 sent Qaddafi a very clear message that a ceasefire must be implemented immediately. In addition, President Obama made clear that Qaddafi was to stop his forces from advancing on Benghazi, to pull them back from Ajdabiya, Misrata, and Zawiyah, and to establish water, electricity, and gas supplies to all areas. The Resolutions also made clear that humanitarian assistance had to be allowed to reach the people of Libya. Although Qaddafi’s Foreign Minister announced a ceasefire, Qaddafi and his forces instead continued attacks on Misrata, and advanced on Benghazi.
Qaddafi also threatened civilians living in areas that refused to acquiesce to his threats, declaring, “We will come house by house, room by room. . . . We will find you in your closets. We will have no mercy and no pity.” As President Obama said in his weekly address “I firmly believe that when innocent people are being brutalized; when someone like Qaddafi threatens a bloodbath that could destabilize an entire region; and when the international community is prepared to come together to save thousands of lives – then it’s in our national interest to act. And, it’s our responsibility. This is one of those times.”
Qaddafi’s defiance of the Arab League as well as the broader international community represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. The United States supports the Security Council’s conclusion that Qaddafi’s continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Qaddafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any further delay only putting more civilians at risk. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East with dangerous consequences to the national security interests of the United States, which made these actions necessary.
The President directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to his constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. The President has well-recognized authority to authorize a mission of this kind, which as he explained, will be time-limited, well-defined, discrete, and aimed at preventing an imminent humanitarian catastrophe that directly implicates the national security and foreign policy interests of the United States. The Administration has been closely consulting Congress regarding the situation in Libya, including in a session with the bipartisan leadership that the President conducted before his announcement. Before Resolution 1973 was adopted, on March 1, 2011 the Senate adopted its own resolution by unanimous consent (S. Res. 85) calling for a No-Fly zone. The President has acted consistently with the reporting requirements in the War Powers Resolution, and has furthermore indicated that he is committed to ongoing, close consultations with Congress as the situation develops.
In sum, the United States’ military actions in Libya are lawful.
Thank you very much.
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