- 1. Q. What is the presumed 'legal basis' for the attack
on Libya?
- A. It is Resolution 1973 (of March 17, 2011) of the United
Nations Security Council.
-
- 2. Q. Who has the right to vote in the UN Security Council?
- A. The UNSC has 15 members, of which 5 are permanent
and hold veto power: US, UK, France, China, Russia, and ten others that
are elected to two-year terms.
-
- 3. Q. How many votes are required to pass a UNSC resolution?
- A. Any nine votes suffice, but if one of the Big Five
casts a veto, the resolution fails.
-
- 4. Q. Did Resolution 1973 pass 'unanimously'?
- A. Technically yes, because no one voted against it.
There were 9 yes's. Two of the Big Five abstained, namely Russia and China,
and three of the others: Germany, Brazil, and India.
-
- 5. Q. Which nations cast the yes votes?
- A. Technically it is not nations but 'states,' i.e.,
governments, that vote. The yes's were: US, UK, France, Portugal, Bosnia
and Herzegovina, South Africa, Gabon, Lebanon, Nigeria, and Colombia (Colombia
is the current chair of the UNSC).
-
- 6. Q. Did any Arab states object?
- A. No. Only one Arab state sits on the Security Council,
Lebanon. The Security Council received written encouragement from the Arab
League.
-
- 7. Q. What does Resolution 1973 say?
- A. It demands such things as a ceasefire and "a
complete end to violence and all attacks against, and abuses of, civilians."
It imposes a no fly zone over Libya, and an arms embargo. It calls for
a freeze on the assets of certain Libyans. It does not offer evidence as
to what Libya had allegedly done.
-
- 8. Q. Was there a lead-up to this Security Council Resolution?
- A. Yes and No. On February 26, 2001, Resolution 1970
mentioned such things as "concern at the plight of refugees"
and "the need to respect the freedoms of peaceful assembly and of
expression, including freedom of the media."
-
- 9. Q. Where does the United Nations get the authority
to use force against a member?
- A. Article 39 of the UN Charter says "The Security
Council shall determine the existence of any threat to the peace or any
act of aggression and shalldecide what measures shall be taken in accordance
with Articles 41 and 42."
-
- 10. Q. What is the content of those Articles, 41 and
42?
- A. Article 41 is about measures that can be taken that
do not involve the use of armed force, such as sanctions. Article 42 says:
"Should the Security Council consider that measures provided for in
Article 41 would be inadequate It may take such action by air, sea, or
land forces to maintain and restore international peace and security."
-
- 11. Q. Does this mean that the UN will call out its troops?
- A. The UN doesn't have troops. Article 48 says: "The
action required to carry out the decisions of the Security Council for
the maintenance of international peace and security shall be taken by all
the Members of the United Nations or by some of them, as the Security Council
may determine."
-
- 12. Q. Who has provided the military force against Libya?
- A. NATO, which is headquartered at Boulevard Leopold
in Brussels, Belgium.
-
- 13. Q. What is NATO?
- A. The North Atlantic Treaty Organization. It was an
alliance formed during the Cold War, ostensibly against the Soviet threat.
But following the 1990 collapse of 'world communism,' NATO has started
to look like the mailed fist of World Government.
-
- 14. Q. How did the United States become part of NATO?
- A. It joined when a two-thirds senate vote ratified the
NATO treaty, sometimes called the Washington Treaty, in 1949. Lately, some
former Communist states have joined, e.g., Albania and Bulgaria.
-
- 15. Q. Legally, how does NATO relate to the UN?
- A. NATO's Article 1 says: "The Parties undertake,
as set forth in the Charter of the United Nations, to settle any international
dispute in which they may be involved by peaceful means in such a manner
that international peace and security and justice are not endangered."
-
- 16. Q. What about the rights of a nation that is being
attacked?
- A. NATO's Article 4 says: "The Parties will consult
together whenever, in the opinion of any of them, the territorial integrity,
political independence or security if any of the Parties is threatened."
-
- 17. Q. Isn't the territorial integrity of Libya is being
threatened today?
- A. Yes, but Libya is not a 'Party"; the member states
of NATO are European countries plus the US and Canada.
-
- 18. Q. As a member of the UN, is Libya entitled to protection
from attack?
- A. Yes. The quotes above from Articles 39, 41, 42, and
48 of the UN Charter have only to do with extraordinary Security Council
action. Earlier in the UN Charter we find the famous Article 2(4), which
says: "All members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political
independence of any state." Such an obligation to refrain from international
aggression is best conveyed in the opening words of the UN Charter's preamble:
"We the peoples of the United Nations determined to save succeeding
generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind. "
-
- 19. Q. So the UN Charter implies in one breath that members
can expect protection from attack, and in the next breath it makes the
Security Council itself an attacker?
- A. The UN Charter condemns forcible measures, but justifies
them in instances where "it determines [fairly or otherwise] the existence
of any threat to the peace, breach of the peace, or act of aggression."
However, before military force can be used, other means such as conciliation
or sanctions must be tried.
-
- 20. Q. Is Libya attacking other nations?
- A. No. Resolution 1973 alleges only internal conflict.
The UNSC says it is "Expressing grave concern at the deteriorating
situation, the escalation of violence, and the heavy civilian casualties
Reiterating the responsibility of the Libyan authorities to protect the
Libyan population Condemning the gross and systematic violation of human
rights, including arbitrary detentions, enforced disappearances, torture
and summary executions Considering that the widespread and systematic attacks
currently taking place in the Libyan Arab Jamahiriya against the civilian
population may amount to crimes against humanity ..."
-
- 21. Q. Does 'crimes against humanity' mean that "international
humanitarian law' is being invoked?
- A. Not exactly. Some treaties, such as the Geneva Conventions,
regulate certain acts of war. This is known as International Humanitarian
Law. Based on the Rome Statute of 1998, a person accused of war crimes
and/or 'crimes against humanity' can be hauled before the International
Criminal Court at The Hague, as was the Serbian leader Slobodan Milosevic.
In fact, the UN Security Council, which is the body that asks the ICC to
indict a criminal, has already referred Muammar Qadhafi to the ICC.
-
-
- 22. Q. What happened to Milosevic?
- A. He died in jail at The Hague, Netherlands, awaiting
trial.
-
-
- 23. Q. Has NATO ever forcibly attacked a nation for supposedly
humanitarian reasons?
- A. Yes. For example, in the late 1990s it attacked Serbia,
which was part of the Federal Republic of Yugoslavia. The basis for its
current role in Afghanistan is unclear.
-
- 24. Q. What legal basis was there for NATO's attack on
Serbia?
- A. None has yet come to light. NATO did not go through
the UN Security Council. The US construed its participation as having been
a creature of 'presidential policy.'
-
- 25. Q. How is that the United States is legally bound
to follow UNSC's orders?
- A. The US joined the United Nations in 1945 by signing
a treaty, namely, the UN Charter. The Constitution of the United States
says in its Article VI: " all treaties made or which shall be made,
under the Authority of the United States, shall be the supreme Law of the
Landanything in the Constitution or Laws of any state to the Contrary notwithstanding."
-
- 26. Q. Does that mean that the constitutional requirement
for Congress to declare a war could be overruled by way of a treaty?
- A. No. Changing the Constitution of 1787 can only be
done by amendment and none has ever been proposed that would change the
Legislature's allocation of power. Congress, back in days when it was jealous
of its turf, passed legislation, The UN Participation Act (1945), to underscore
the need for Congress to approve of any use of American troops under Article
42 of the UN Charter.
-
- 27. Q. What exactly does the US Constitution say about
Congress declaring war?
- A. Article I, Section 8 says: "The Congress shall
have Power to declare War."
-
- 28. Q. Does the President also have that power?
- No. The part of the Constitution that lays out the powers
of the Executive branch, namely Article II, does not say anything about
a power to declare war. It does say: "The President shall be Commander
in Chief of the Army and Navy of the United States," meaning that
once a war is declared he or she is on charge of it. See the website of
Louis Fisher, the US's most 'with-it' constitutional scholar: www.loufisher.org.
-
- 29. Q. Do you mean Congress would have to legislate,
to authorize participation of American Military in any action requested
by the UN or by NATO?
- A. Yes. A joint resolution by the House and Senate would
be the ticket.
-
- 30. Q. Has Congress in fact approved of the attack on
Libya?
- A. No. Two members proposed a bill to prevent it; most
of the other 433 representatives are playing dumb. Ten senators opposed
it: Susan Collins, Snowe, DeMint, Ensign, Johnson, Lee, Moran, Sessions,
Toomey, and Paul.
-
- 31. Q. Without Congress's formal approval, is the US
attack on Libya illegal?
- A. Yes. Domestically it is illegal. Senator Barack Obama
stated the law correctly when interviewed by the Boston Globe in 2007,
during the presidency of George W Bush : "The President does not have
power under the Constitution to unilaterally authorize a military attack
in a situation that does not involve stopping an actual or imminent threat
to the nation."
-
- 32. Q. But in international law is the United States
bound to attack Libya?
- A. Of course not. As Professor Alfred Rubin clearly shows
in his 1997 book, "Ethics and Authority in International Law,"
no such subjection of one sovereign state to another, or to a multilateral
group, is legally possible.
-
- 33. Q. Does anything legally prevent Congress from authorizing
an attack on a nation that has not 'deserved' it?
- A. If we look only at Article I of the Constitution,
the answer would be: "Congress can declare war against any nation
anytime." However, Article VI is a reminder that if the US has signed
a treaty to restrain itself from attacking as indeed it did in Article
2 of the UN Charter, that puts a restriction on Congress's freedom. The
treaty is the supreme law of the land "any Thing in the Constitution.
to the Contrary notwithstanding."
-
- 34. Q. But doesn't Professor Rubin say "Nothing
restricts the United States"?
- A. He means no one outside can do the restricting, but
the Constitution itself does the restricting, domestically. Such is the
main point of 'rule of law.'
-
- 35. Q. Does anything in the 1945 treaty known as the
United Nations Charter go against the kind of attack now being made on
Libya?
- A. Yes. Article 2(7) of that Charter says: "Nothing
contained in the present Charter shall authorize the United Nations to
intervene on matters which are essentially with in the domestic jurisdiction
of any state" This '2(7)' item was called the 'Stay out of my backyard
principle' and was virtually sacred from 1945 to the 1990s. Granted, that
item does end with the phrase "but this principle shall not prejudice
the application of enforcement measures under Chapter VII" (Chapter
VII being Articles 39 51). But Article 24, which sets out the role
of the Security Council, reminds it to "act in accordance with the
Purposes and the Principles of the United Nations." The SC is not
a tribunal with a mandate to judge the behavior of sovereign states.
-
- 36. Q. What about the fact that Resolution 1973 condemns
torture, yet certain other nations do the same? Isn't that a double standard?
- A. It is up to individuals to maintain cerebral ground
against such double-standard talk, as the diplomats steadfastly treat language
as something to be 'called into service.'
-
- 37. Q. UNSC Resolution 1973 mentions: "Reiterating
the responsibility of the Libyan authorities to protect the Libyan population."
Isn't that a 'Stay out of my backyard' sort of thing?
- A. Yes, it is a surprisingly clear example of flouting
2(7). Years ago it would have been considered unwise for powerful nations
to put such a remark in writing lest it come back to haunt them.
-
- 38. Q. UNSC resolution 1973 calls for a freezing of the
assets of Libyan authorities. Is that normal? Could it constitute plain
theft?
- A. Courts have allowed it, as with some of the wealth
of the Philippines leader Ferdinand Marcos. Domestically, the US has legislated
for seizing the property of Americans in many circumstances, known as 'asset
forfeiture.' It is a bit surprising, however, that in the order to freeze
the assets of "Muammar Qadhafi" one of the justifications given
is his "Responsibility for ordering repression of demonstrations"
- As to the question of 'plain theft,' it is noteworthy
that the UNSC has not tried to show how the freezing of assets would restore
peace. The SC appears to be ultra vires, going beyond its authority, in
naming specific people who should be deprived of their property. The SC
also names some who are to be placed under a travel ban.
-
- 39. Q. Let's say Qadhafi felt aggrieved. To whom could
he make his plaint?
- A. One possibility is for him to bring a lawsuit. Qadhafi
may not succeed in a US Court, in so far as his suit, for the US killing
of his adopted daughter Hanna, was dismissed as frivolous. (Her death occurred
in 1986 when President Reagan ordered a retaliatory strike for the bombing
of a disco in Germany, allegedly by Libyans, in which two American soldiers
were killed. The UN General Assembly passed a resolution condemning that
retaliatory strike as "a violation of the Charter of the United Nations.")
- As a state, Libya can always go to the International
Court of Justice to sue other states.
-
- 40. Q. At that court, can Libya sue the collective entity
known as NATO, or even sue the United Nations Security Council?
- A. Either of those would make an interesting exercise.
At the very least, Libya could ask the ICJ for an advisory opinion about
Article 39 with regard to aspects of the current situation. In 1996, the
General Assembly put a question to the ICJ, about nuclear weapons, and
got an advisory opinion. Qadhafi would need to hurry, though, as the outside
powers are discussing 'regime change,' and the ICJ will only listen to
the 'state of Libya'; it does not deal with individuals. One can easily
locate the Statute of the ICJ, as it is formally annexed to the UN Charter.
-
- 41. Q. Is there scope for Libya to say that war crimes
have been committed against it?
- A. Canadian economist Professor Michel Chossudovsky has
already suggested it. He said, at globalresearch.ca that we see the evidence
in NATO's own dispatch dated April 23, 2011 from Naples: " NATO has
conducted the following activities associated with Operation UNIFIED PROTECTOR:
Since the beginning of the NATO operation (31 March 2011), a total of 3,438
sorties and 1,432 strike sorties." Presumably Chossudovsky means that
these bombings are criminal under the general crime of aggression. That
crime was declared at Nuremberg, at that time called "crimes against
peace", but has never been added to the Geneva Conventions.
-
- 42. Q. Can war criminals in NATO, if there be such, get
indicted?
- A. Yes. Most nations have domestic laws that permit the
bringing to justice of one's own war criminals or those of other states.
The crime of aggression, which always reflects a government's decision,
rather than the actions of low-rank soldiers, has recently been added to
the jurisdiction of the International Criminal Court with the proviso,
however, that it will not come onto force until 2017.
-
- 43. Q. Does the United States have any way to punish
war criminals?
- A. Oh yes, of course. The War Crimes Act of 1996, as
codified at 18 USC 2441, says: "Whoever, whether inside or outside
the United States, commits a war crime [if he is a member of the armed
forces of the US] shall be fined under this title or imprisoned for life
or any term of years, or both." This includes someone who "willfully
kills or causes serious injury to civilians." There is also law against
genocide at18 USC 1091.
-
- 44. Q. Is there any Neutrality Act in the United States?
- A. Yes. It can be found on the Internet at 18 USC 960:
"Whoeverknowingly beginsor prepares a means forany military enterprise
to be carried on from thence against the territory or dominion of any foreign
princewith whom the United States is at peace, shall be finedor imprisoned."
-
- 45. Q. Please state, once again: is the current NATO
action against Libya illegal?
- A. Yes. For the US, it is unconstitutional. For all members
of the UN, it does not meet the legal intent of Article 39, which is that
the Security Council must find the offending nation to be disturbing international
peace, and it also arrogates to the Security Council some new powers to
which the treaty signers never agreed (such as the ban on travel for some
Libyans). As for NATO, it is disobeying its own Article 1, "The Parties
undertaketo settle any international dispute in which they may be involved
by peaceful means in such a manner that international peace and security
and justice are not endangered." and, more generally, it has
no legitimate basis for acting as 'world government" and is thus acting
ultra vires.
-
- ____________
-
- Mary W Maxwell, PhD, can be contacted at http://www.prosecutionfortreason.com.
- She hereby gives away all rights to the above Q and A,
including movie rights.
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