Despite claims by NATO's military command -- and President Obama himself -- that killing Col. Muammar Qaddafi is not part of their military objective in Libya, they have set about to do just that. On April 30th, in what appears to be an attempt to assassinate Qaddafi through targeted air strikes, NATO missed getting Qaddafi and his wife, but allegedly killed one of Qaddafi's sons and three grandchildren, a claim that Libyan rebels dispute and remains unconfirmed. Although the son in question happens to be the black sheep of the family and played very little part in the current fighting, the attack raises serious questions about NATO's unstated commitment to directly effecting regime change in Libya -- contrary to both UN authorization and President Obama's pronouncements on the conflict.
Another NATO strike on April 30th badly damaged a non-military, non-governmental building housing the Libyan Down's Syndrome Society. NATO is clearly willing to risk destroying civilian buildings, including schools, as part of its unauthorized campaign to take out Qaddafi. Nevertheless, the NATO mission's operational commander, Lt. Gen. Charles Bouchard, continues to maintain that NATO is only going after clear military targets.
“All NATO’s targets are military in nature," Bouchard said, "and have been clearly linked to the Qaddafi regime’s systematic attacks on the Libyan population and populated areas. We do not target individuals.” Such denials of the obvious parrot the official US position, which distinguishes between the political goal of seeing Qaddafi go and the more limited "humanitarian" goal of protecting Libya's civilians from Qaddafi's forces. However, not everyone in the international coalition is willing to be so coy about the real objective. British Defense Secretary Liam Fox, for example, has said that Qaddafi is a "legitimate target."
When the United Nations Security Council approved the use of military force in Libya on March 17, 2011, it authorized member states, acting nationally or through regional organizations or arrangements, to "take all necessary measures" to protect civilians under threat of attack in the country. Supporters of Security Council Resolution 1973, including the United States, stressed that the military objective was solely to protect civilians from further harm. There is no authorization to use military force in order to bring about regime change through assassination of Libya's leader or otherwise. Foreign occupation of Libya in any shape or form is also expressly prohibited.
Initially, NATO, led by US air power, adhered to the limits set by the UN resolution. It intervened just in time to prevent an impending massacre of civilians in the rebel stronghold of Benghazi. It established a no-fly zone and attacked Qaddafi's ground troops and weaponry to further protect civilians from harm.
However, when the Libyan regime did not immediately collapse and the rebel forces proved incapable of mounting a serious challenge without substantial assistance from the international coalition, NATO upped the ante. It made a deliberate decision to take the side of the rebels in what amounts to a civil war. It is also waging its campaign against the Qaddafi regime in Libya’s most densely populated areas, including the capital of Tripoli, with inevitable civilian casualties from NATO attacks added to the mounting civilian casualties caused by loyalist and rebel forces.
Supporters of NATO's aggressive campaign against Qaddafi argue that the only way to make sure that civilians are protected is to get rid of the dictator who is harming them. However, this argument is fallacious for both pragmatic and legal reasons.
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.