Some legal aspects - pt 1
Two reports from the CRS (Congressional Research Service):
No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress
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Summary
The ongoing uprising in Libya against the government of Muammar al Qadhafi has been the subject of ongoing domestic and international debate about potential international military intervention, including the proposed establishment of a no-fly zone over Libya. Congress may wish to consider issues surrounding the strategy, international authorization, congressional authorization, operations, and costs of establishing and maintaining no-fly zones.
The military strategy designed to support the grand strategy, it has been suggested, might be based on these considerations: the operational-level military objectives that need to be achieved, to support the overall grand strategy; and the extent to which a no-fly zone — as one set of ways and means — helps achieve those objectives.
Practitioners and observers have debated what constitutes international “authorization” for the establishment of a no-fly zone. Given the paucity of relevant precedents, and the dissimilarities among them, there may not exist a single, clear, agreed model. The concept of authorization is typically considered to be linked to the ideas of both “legality” and “legitimacy” — the three concepts overlap but are all distinct. The precise meaning of each of the terms is still debated. Express authorization from the U.N. Security Council provides the clearest legal basis for imposing a no-fly zone.
In addition to international authorization, debates have addressed the question of congressional authorization—whether and when there is a need for congressional approval based on the War Powers Resolution for a proposed no-fly zone. The question of whether and how congressional authorization is sought for a proposed operation could have an impact on congressional support — including policy, funding, and outreach to the American people — for the operation. Since the War Powers Resolution gives the President the authority to launch U.S. military actions prior to receiving an authorization from Congress for 60-90 days, it is possible that the President could direct U.S. Armed Forces to take or support military actions in accordance with U.N. Security Council resolutions, or in support of NATO operations, and then seek statutory authority for such actions from Congress.
No-fly zone operations can conceivably take a number of different forms, and can themselves vary a great deal over time. Key considerations include, but are not limited to, the following factors: the nature, density, quantity, and quality of adversary air assets; geography; the availability of “friendly” assets; the adversary’s military capabilities and responses; the U.S. military’s concept of operations, and the rules of engagement.
The costs of establishing and maintaining a no-fly zone are likely to vary widely based on several key parameters. They could be the specific military tasks that a given no-fly zone operation calls for, the geography of the adversary’s country, the duration of the no-fly zone, the extent to which the U.S. is joined by international partners in the effort, and the extent of “mission creep” — how, if at all, the operation expands to include a broader array of activities designed to achieve the same military and strategic objectives.
Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications
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Summary
From the Washington Administration to the present, Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars. Each declaration has been preceded by a presidential request either in writing or in person before a joint session of Congress. The reasons cited in justification for the requests have included armed attacks on United States territory or its citizens and threats to United States rights or interests as a sovereign nation.
Congress and the President have also enacted authorizations for the use of force rather than formal declarations of war. Such measures have generally authorized the use of force against either a named country or unnamed hostile nations in a given region. In most cases, the President has requested the authority, but Congress has sometimes given the President less than what he asked for. Not all authorizations for the use of force have resulted in actual combat. Both declarations and authorizations require the signature of the President in order to become law.
In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of enemy property, and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary legal prerequisite to war and was thought to terminate diplomatic and commercial relations and most treaties between the combatants, declarations have fallen into disuse since World War II. The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed conflict whether or not a formal declaration or authorization was issued.
With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.
Most statutory standby authorities do not expressly require a declaration of war to be actualized but can be triggered by a declaration of national emergency or simply by the existence of a state of war; however, courts have sometimes construed the word “war” in a statute as implying a formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations of war and authorizations for the use of force waive the time limitations otherwise applicable to the use of force imposed by the War Powers Resolution.
This report provides historical background on the enactment of declarations of war and authorizations for the use of force and analyzes their legal effects under international and domestic law. It also sets forth their texts in two appendices. The report includes an extensive listing and summary of statutes that are triggered by a declaration of war, a declaration of national emergency, and/or the existence of a state of war. The report concludes with a summary of the congressional procedures applicable to the enactment of a declaration of war or authorization for the use of force and to measures under the War Powers Resolution. The report will be updated as circumstances warrant.
cont in pt 2
Some legal aspects - pt 2
Also from Jack Goldsmith (who headed OLC during part of the GWB administration), The Legal Reason Why the Obama Administration Won’t Call the Libya Action “War” - which primarily discusses two OLC opinions made during the Clinton administration (for Haiti and for Bosnia - no OLC opinion on the legality of the Kosovo intervention exists on the public record).
Jack makes the following two points:
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I think the Obama administration embraced these [Dellinger] arguments because, like the Clinton administration, it did not want to rely on broader theories of presidential power. Going this route also avoids having to embrace (or explain away) the awkward post-Dellinger, Clinton-era unilateral intervention in Kosovo, which involved eleven weeks of intense aerial bombardment. Nonetheless, using the Dellinger rationale in Libya is awkward for at least two reasons.
First, the Haiti and Bosnia interventions were different. Dellinger gave considerable weight to the fact that Haiti and Bosnia were consensual interventions. The Libya intervention is not. Dellinger suggested in the Haiti opinion that “the limited antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment” (JG emphasis) weighed against the intervention being a war that required congressional authorization. In Libya, both significant armed resistance and substantial casualties from a week of heavy bombing could have been anticipated. Dellinger also said in the Haiti opinion that “other aspects of the planned deployment, including the fact that it would not involve extreme use of force, as for example preparatory bombardment [JG emphasis], were also relevant to the judgment that it was not a ‘war.’” Extreme use of force and preparatory bombardment are what Libya is about. Cutting in the other direction, both the Bosnia and Haiti deployments involved (or were anticipated to involve) a lot of U.S. troops on the ground – troops that are harder to disengage from fighting than mere aerial bombardments. Nonetheless, those troops were being sent there as part of consensual peacekeeping or stability missions, not as a coercive force. For these reasons, it seems to me that characterizing the Libya intervention as not “war” requires an expansion, possibly significant, of the Dellinger rationale for unilateral presidential power.
Second, the Dellinger rationale becomes less persuasive with each passing day as the duration of the conflict grows longer and the casualties and physical damage pile up. It also starts at some point to look like Kosovo, the precedent the administration apparently wants to avoid.
It is impossible for outsiders to know how much the “no war” rhetoric and the imperative for the United States to withdraw soon from active hostilities are being driven by domestic and international politics, and how much are being driven by the Justice Department’s (or the White House’s) skittishness about indulging a broader theory of presidential power. The more the administration keeps insisting that the Libya intervention is “not war” in the face of growing domestic skepticism about the claim, the more I think legal considerations are driving the rhetoric.
Please note that all of these are "political questions". As such, it is highy unlikely that SCOTUS will address them directly.
Regards
Mike
An odd example and a better one
Entropy,
I would suggest the Lebanon, where IIRC Syria intervened in the civil war, effectively freezing the situation in Beirut and yes violence lessened, the issues did not go away alas. I am sure Rex B. or Wilf can comment better.
Near to home I would say Northern Ireland, underpinning the UK's response to violence was containment and the prevention of escalation. It took a long time and was a "bumpy" journey. Certainly at the start of the latest round, 'The Troubles' in 1969 few would have foreseen the Good Friday Agreement, let alone today Sinn Fein and the DUP in a governing coalition.
Maybe Cyprus? Further back I think the interventions of the League of Nations in post-1918 Europe merit some attention, Upper Silesia comes to mind and the population transfer between Greece and Turkey.