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53

INTERNATIONAL LAW AND ITS DISCONTENTS: THE U. S.

RAID ON LIBYA
Patrick

Thornberry*

1. State of Nature, State of Nations

In his introductory remarks to a recent Anglo-Soviet symposium on
International Law, G.I. Tunkin, the doyen of contemporary Soviet
International lawyers, stressed the responsibility of the lawyers in an
age of survival: they must ensure the strong international law
necessary to such survival, and not leave matters entirely to the
politicians. 1 These well received remarks were made in the context of
an exploration of broad themes of international law of common interest,
and not with specific reference to the recent American intervention in
Libya, but the point is highly pertinent to that action even if the notion
of a Marxist-Leninist adviser on law and right is one replete with multiple
ironies.
The politician's rationale may be garnered from some recent
pronounce-ments by leading members of the United States
administration. In October 1984, Secretary of State Shultz delineated
an anti-terrorist doctrine in a speech in New York City. He claimed a
discretionary right of the United States to combat with force any
terrorist threats abroad, including the right to pre-emptive strikes. This
was coupled with an assurance that "our actions will be governed by
the rule of law, and the rule of law is congenial to action against
terrorists. ''2 Secretary of Defence Weinberger's speech in November
1984 described six tests to govern the use of force abroad by the
United States:
1)
2)
3)
4)

Force should be used only for vital interests;

If used, then it should be dedicated to winning;
Winning should be clearly defined in relation to political and
military objectives;
The military capabilities required to win should be provided,
and adjusted during the course of combat as necessary;

Principal Lecturer, Department of Law, Liverpool Polytechnic.

Anglo-Soviet symposium on public international law, University College,
London, 28-30 April 1986.
2 New York Times, October 26th 1984.

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5)
6)

The whole undertaking should not be attempted without

'some reasonable reassurance' of broad backing by the
American people and Congress;
The commitment to force should be a last resort. 3

One may legitimately question the quality of the legal advice, if any,
tendered to the politicans to enable them to make such categorical
pronouncements. But the worrying aspect is that there is no law at all
in the Weinberger "rules", while Secretary of State Shultz merely gives
his audience a pat on the head and assures them that law, like God, is
on their side. As Falk puts it: "What is striking is the absence of any
'test' to reconcile a proposed use of force with international law
requirements .......-4
Falk is a lawyer who disowns the wilder theories of intervention,
especially dangerous in the nuclear age, the age of survival or
extinction (supra). While he may protest such theories, others
formulate them. D'Amato's theory is one of the wildest. D'Amato
stigmatises concepts such as non-intervention in the internal affairs of
a State, sovereignty, territorial integrity and independence as
elements of a "positivist State-based conception of international law".s
He urges us to =clear away the debris of Hegelian State-based claims of
right", 8 and counsels intervention in the service of human rights. His
context is not the suppression of terrorism; it is rather the removal of
foreign r~gimes which deny human rights. But the theory of
intervention is serviceable: ignore the "artificial sovereign boundary "7
of the State, ignore the United Nations Charter, revive self-help,
become the bright angel of intervention and smite the enemies of
freedom. From the perspective of the United States where, D'Amato
assures us, there is a consensus in favour of such interventions, 8
theories of unilateral action may appear attractive. They are not so
attractive from the point of view of militarily weak States, nor from the
standpoint of world order. Actions can create precedents, and if the
restraining norms of the United Nations Charter are no longer fit, it must
New York Times, November 29th, 1984.
4 R. Falk, The Decline of Normative Restraint in International Relations, 10
Yale Journal of International Law (1985), 263.
5 A. D'Amato, "Nicaragua and International Law: The "Academic" and the
"Real", 79 American Journal of International Law (1985),657, 659.
6 /b~., at 661.
7 At 659.
8 Exchange of Correspondence with Dr. Michael Akehurst, in 80 American
Journal of International Law (1986), 147.

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be asked what kind of world order is prefaced by interventions across

the State divide. Who is to be the judge of right? Whose definition of
terrorism is to prevail? The Hobbesian State of Nature becomes the
State of Nations, the new o r d o rerum. D'Amato may claim the
reconstruction of international law, but its deconstruction seems a
more likely result.
2, The Raid:

Justification/Reactions

These rather pessimistic ruminations are offered as a background

to the bombing of Libya on the night of 14/15 April by U.S. bombers,
some flying from British bases with the consent of the Government of
the United Kingdom. According to the President of the United States,
the air strikes were directed "against the headquarters, terrorist
facilities and military assets that support Muammar Gadaffi's subversive
activities", g While the President stressed the careful targeting "to
minimise casualties among the Libyan people "1, extensive casualties
were caused, including the death of the adopted daughter of Colonel
Gadaffi. The sequence of events leading to the strike included the
explosion of a bomb in West Berlin in a club frequented by American
Servicemen on April 5th, killing 2 persons and wounding 230,
including 50 American military personnel. The Government of the
United States believed that Libya planned this attack and offered
"direct .... precise .... [and] irrefutable "11 evidence of the connection.
The bomb was not the whole reason, since it was "but the latest act
in Colonel Gadaffi's reign of terror". 12 The President also referred to
another "planned massacre", ~3 aborted through the intelligence
efforts of the United States and its allies. In effect, the action of the
United States was a response to an accumulation of events - acts of
hostility by Libya against Americans - and a pre-emptive action against
the further export of terror by Libya. The legal rationale expounded by
the President centres on his statement that: =When our citizens are
abused or attacked anywhere in the world, on the direct orders of a
hostile r6gime, we will respond ... Self-defence is not only our right, it is
our duty. It is the purpose behind the mission ... a mission tully
consistent with Article 51 of the United Nations Charter ... We
Broadcast address to the people of the United States, transcript in The
Times, April 16th, 1986.
lo
11
12
13

Ibid.
Ibid.
Ibid.
Ibid.

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Americans are slow to anger. We always seek peaceful avenues

before resorting to the use of force, and we did. We tried quiet
diplomacy, public condemnation, economic sanctions and
demonstrations of military force. None succeded. "14 The rationale was
restated by the United States in the Security Council of the United
Nations: the raids were "an exercise of the international right of selfdefence" under Article 51 of the Charter. is
Article 51 of the United Nations Charter, the fulcrum of the
justification of the action by the United States, provides:
Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of selfdefence shall be immediately reported to the Security Council ......
The reference to the terms of the Charter in Article 51 means obviously
Article 2(4): a =Principle" of the United Nations: =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, or
in any other manner inconsistent with the Purposes of the United
Nations." The "Principles" of the United Nations follow upon the
"Purposes" which include the maintenance of international peace and
security (Article 1 (1)) as the first listed objective of the UN organisation.
The theme of international peace is stated also in Article 2(3): =All
Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are
not endangered."
These and various other article citations that might be made serve
merely to highlight the obvious fact that Article 51 does not exist and
function in v a c u o as a complete statement of relevant normative
inhibitions on the use of force in international law. The maintenance of
peace is a major purpose of the United Nations; Article 2(4) is a
negative future imperative - "shall refrain" - directed against the use of
force. Together, the purposes and principles constitute the raison

14 /b/d.
ts The Guardian, April 16th, 1986.

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d'~.tre of the United Nations. 18 Article 51 is an exception to the

Charter prohibition of force designed to ensure that membership of
the Organisation is not a commitment to self-destruction by a Member
State: the United Nations system is dedicated to survival; it is not a
suicide club. It is, however, sufficiently clear to the present author that,
as with any other treaty, Member States of the U.N. have compromised
their freedom to act only as national interest dictates, in the greater and
more enduring interest of international peace. In this perspective, the
demand that Article 51 should be given a narrow interpretation seems
a perfectly reasonable and defensible proposi-tion. With Kelsen, one
may say that the right of self-defence has now "no other content than
the one determined by Article 51".17
To agree with Kelsen is only a starting point, and some do not
agree. It may be argued that Article 51 refers to a law beyond itself.
Attention focuses on the negative form of Article 51 which seems
especially powerful. =Nothing ... shall impair ..." the right of selfdefence, which is further described as an inherent right. "Inherent"
has overtones of Natural Law: as human rights are inherent in human
beings, so self-defence is inherent in States. Article 51 only refers to
and does not determine fully the content of self-defence: "It is ...
fallacious to assume that Members have only those rights which the
Charter accords to them; on the contrary they have those rights which
general international law accords to them except insofar as they have
surrendered them under the Charter .... ,18 This kind of view leads
naturally to claims that the Charter has preserved or rather impaired the
free-wheeling law of the nineteenth century, implying that States can

~ The opening words of the Preamble to the Charter may be called in

evidence: "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 ..."
17 The Law of the United Nations, London, Stevens and Sons, 1950,
914.
1B D.W. Bowett, Self-Defence in International Law, Manchester,
Manchester University Press,1958, 185.

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u s e 19 force for the defence of a wide range of perceived "vital

interests".
Responses to terrorism can easily be accommodated within this
vital "interests" framework, since every State is in a unique position to
determine what these are. 2 More narrowly, and with more respect for
Kelsen's argument for the completeness of Article 51, it may be
argued that an "attack" on the citizens of a state, wherever they are
located, is an attack on the State itself, since population is an essential
ingredient of Statehood, along with territory, government and the
capacity to enter into international relations. While this might appear to
be a categorical mistake equating citizen and State and equivalent to
arguing that the rights and duties of shareholders in a company are
identical to those of the company, it is a view which claims its
adherents. 21 A third possible line of argument may be described as
"contractarian": the United Nations, while representing a laudable
effort to combat the evil state of international relations prevailing to
1945, has failed in its basic objectives or in one or more of such
objectives; insofar as its failure is apparent and apparently irremediable,
States can contract out to the extent necessary to achieve objectives
by unilateral means or collective means strictly outside the scope of the
Charter. This doctrine has been stated with reference to the alleged
lY The Bowett view is not a noveliy to a common lawyer: in a system where
statute and common law co-exist, the precise ambit of a statutory reform vis-&-vis
the existing law may be quite unclear and exercise the judges for a considerable
time. The resolution of such issues depends on whether the courts are
prepared to grant an extensive interpretation to the statute or a confining one.
The scope of the reform achieved by Section 3(1) of the Homicide Act 1957
(provocation defence in relation to a charge of murder) is a case in point: the
relationship of this section to the common law on provocation was at times quite
unclear. See J.C. Smith and B. Hogan, Criminal Law, Butterworths, 5th edn.,
London, 1983, 299.
20 Announcing the establishment of rapid deploymennt forces in 1978,
President Carter of the U.S.A. described a supply of oil as one of the bases of
national security - "The economic health and well-being of the United States,
Western Europe and Japan depend upon continued access to oil from the
Persian Gulf." The forces were set up "to defend our interests throughout the
world", 20 Survival (1978), 176. See also the first point of the Weinberger
statement (supra).
21 Bowett, supra note18 at 87-105. The point relates to the use of force in
relation to nationals abroad which appears to be the major factual ingredient in
the United States justification. It is a different matter if the "attack" is against
citizens on home territory - such a case is governed by standard self-defence
principles.

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legitimacy of humanitarian intervention, but, again, it seems apt to

describe an argument favouring intervention to stop terrorism. 22
Doubtless these three strands of argument - incompleteness of
the text, solicitude for the text, and irrelevance of the text - do not
exhaust all interpretative possibilities. There is some feeling among
international lawyers that, given various exegetical possibilities in the
Charter, a resolution of views can only plausibly be achieved at the
level of consequences. 23 But while consequentialist/policy reasoning
is respectable in legal argument, it needs to find its place as argument
of last resort. It should not lightly be assumed that, because more than
one legal conclusion on the meaning of a text is possible, that one
conclusion is as good as any other. This is a denial of rationality, a
denial of the view that some arguments are better than others, and is
equivalent to saying that legal/moral argument is merely the banging of
rival fists on the table. Consequentialist argument is anyway drenched
in value considerations at this level, so that it certainly does not easily
translate into objective measurement. This note has already engaged
in some consequentialist speculation with stated value preferences for
the primacy of international peace and the equality of nations under
international law.
In international law, if textual resolution is tentative (though it is
submitted that the UN Charter makes it tolerably clear that unilateral
interventions are strictly controlled, and that self-defence is a narrow
concept), it is correct to look at how States may have interpreted a
particular text or how, a fortiori, they may have curtailed or expanded
or altered it through the growth of a new customary law. In the instant
case, the reactions of the international community to the incident in
question must be studied In oncreto as well as the reaction to
similar incidents.
State practice reveals little support for the propositions currently
advanced by the United States administration (and the United

M. McDougal and M. Reisman, Response [on Humanitarian Intervention] 3

International lawyer (1969), 438.
23 See B. RSling, "Aspects of the Ban on Force", 24 Nederlends
Tijdsohrift veer internatlonaal Recht (1977), 242; T. Farer, "Law and
War", in Black and Falk (eds.), The Future of the International Legal
Order, Princeton University Press, 1971, 30. On consequentialist reasoning,
see D.N. MacCormick, Legal Reasoning and Legal Theory, Oxford,
Clarendon Press,1978.

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Kingdom
Government) 24 on the Libyan intervention.
The
interventionist view can be contradicted w~h evidence which can only
be touched upon in this note. Despite Article 2(4) there have been a
considerable number of unilateral interventions across State
boundaries since 1945. 2s The Great Powers naturally lead the way in
this since they have the military capacity to intervene. The range of
justifications presented by the interveners includes humanitarian
considerations, retaliation 28 (reprisal), and - most interestinglyextended rationales of self-defence to include protection of nationals
abroad, 27 anticipatory self-defence 28 and something like a vital
interests/security doctrine in a relationship with self-defence. 2~ The
reaction of the international community at large has been extremely
unreceptive to any doctrine (humanitarian intervention, reprisal) that is
not specifically accounted for in the United Nations Charter; extended
rationales of self-defence (supra) have also been subjected to severe
criticism or, more precisely, protests as to their illegality. The idea of
crossing State boundaries to root out "centres of terrorism" has also
been overwhelmingly regarded as illegal. 3
While such interventions are disturbing, they are not inherently
surprising in an age of ideological polarisation such as the present.
Some cases of intervention (to say nothing of genuine occasions of

z4 See the statement in the House of Commons by the Prime Minister of the
United Kingdom, The Times, April 16th, 1986. The statement makes
exclusive reliance on Article 51 for a legal justification of the U.S. action and
British support for it.
25 For a general account see M. Akehurst, "Humanitarian Intervention", in Bull
(ed.), Intervention in World Politi~ Oxford, O.U.P., 1984, 95.
2s Retaliationis not self-defence; the U.N. Charter permits self-defence, but
makes no mention of retaliation.
27 See,for example, the reaction of States as expressed in the U.N. Security
Council to the 1976 raid on Entebbe (Uganda) by Israeli troops, 15 I.L.M.
(1976), 1224; Akehurst, supra note 25 at 101-102.
2s The most outstanding example in modern international relations is the raid
by Israel on the Iraqi nuclear reactor complex to forestall a possible development
of nuclear weapons. SeeUNDOC S/PV. 2280, June 12th, 1981, 16-37.
29 Consult Israel in Lebanon, The Report of an International
Commission, etc., London, Ithaca Press, 1983.
3o Passim.

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self-defence against armed attack) 31 are legitimate: if "dictatorial

interference" in the internal affairs of a State 32 is the nearest approach
to a definition of intervention, a response to an invitation - i.e. with
consent of the "target" State's government - is not dictatorial. What is
interesting is that States are sometimes prepared to manipulate the
description of events in order to claim that they were invited guests
rather than gatecrashers. 33 Customary and treaty law respects the
sovereignty of States. New law is not made by the actions of a few
States, however powerful, if other States object: international law
does not admit of any distinction between a jus majorum gentium
and a jus minorum gentium.
In concreto, most of the reactions to the United States action in
Libya have been hostile. Some reactions may be predictable but
nonetheless noteworthy in terms of their legal content. Thus, the
U.S.S.R. described the action as one of "aggression, which cannot
have any justification [and] is a sign of disregard for the interests of
small States and peoples and flouts the United Nations Charter that
prohibits the use of force in international relations. "~4 Greece declared
that the action "undermined the international legal order". 3s Kuwait
referred to breach of Arab sovereignty and territorial rights. 3s There
was widespread criticism at the Security Council including allegations
of aggression, 37 and in more muted terms by members of the Western
alliance. A resolution of the European Parliament described the raid as
"a flagrant violation of international law". ~ States unsympathetic to
Libya such as Egypt and Saudi Arabia condemned the action.
it is clear that the intervention in Libya has not been allowed to pass
unchallenged in legal terms. The invocation of Article 51 by the United
States and the United Kingdom in this context raises a number of
problems:
=1 The reaction of the United Kingdom to the Argentine Invasion of the
Falkland Islands was in principle a legitimate exercise of self-defence whatever
doubts one may have on the modalities of the exercise. In a comprehensive
literature see L.C. Green, "The Falklands, the Law and the War", Year Book
of World Affairs, 1984, 89.
32 L. Oppenheim, International Law, London, Longman, 8th edn., 1955,
305.
33 On the French intervention in the Central African Empire in 1979 to
overthrow Emperor Bokassa, see Akehurst, supta note 25 at 98.
34 The Times, April 16th, 1986.
35

/bid.
Ibid.

37 The Guardian, April 16th, 1986.

European Parliament News, April 1986, 1.

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1. Has an armed attack occurred? - probably not, only an attack on

U.S. citizens, not territory.
2. What about future "attacks" by Libya, if one concedes the equation
between citizen and State? Article 51 appears to exclude
anticipatory self-defence by requiring that the attack should have
commenced. Even if one goes beyond the text of Article 51 with
writers like Bowett there is still the proposition of immediacy in the
Caroline Case: there must be "a necessity of self-defence,
instant, overwhelming, leaving no choice of means, and no
moment of deliberation". 39 As a perceptive writer to the Times
noted, "America's attack on Libya was unlawful because, inter
alia, there existed both the choice of means and ample
opportunity for deliberation. "~
3. What of the requirement of proportionality? The U.S. claimed
minimum casualties and the U.K. apparently supported the action
on the condition of minimisation of casualties: but casualties were
extensive, including non-military personnel. The unpleasant term
"overkill" springs to mind: is this an example of State terrorism?
The former British Ambassador to the United Nations maintains that
"Once the decision had been taken to support the American air attack
on Libya, the British Government was obliged to maintain that the
American action was justified in international law under Article 51 .... To
have failed to do so would have been tantamount to supporting an act
of State vigilantism, something which no self-respecting government
would do. "41 However thin the cloak, the statements by the U.S. and
U.K. Governments must be taken, until contradicted by later
administrations, as indicating their legal view of Article 51. One may
question if the full implications of such a view have been taken on
board. Fortunately, most States do not appear to accept the views of
the U.S.A. and the U.K.
3. What is to be done?

If the evidence of Libyan involvement in terrorism is to be believed,

Libya has violated international law. While Libya may not have
"attacked" the United States, all States must refrain from "organising,
~ The Caroline Case, 29 British and Foreign State Papers, 1137; 30
ibid, 195.
40 The Times, April t8th, 1986.
41 Sir Anthony Parsons, "A Classic Case of How Not to Swat a Gadfly",The
Observer, April 20th, 1986.

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instigating or participating in acts of civil strife or terrorist acts in another

State ..." The sponsoring of actions in another State violates the basic
canons of State sovereignty, in one way or another, as the Foreign
Ministers of the E.E.C. stated in a communique: " ... States clearly
implicated in supporting terrorism should be induced to renounce
such support and to respect the rules of international law. They call
upon Libya to act accordingly. "42
The international community has built up a corpus of law to combat
terrorism in specific manifestations. The law, of course, lacks a police
force to tackle the determined lawbreaker. But there is a wide range of
diplomatic and economic measures which can be brought to bear on
the recalcitrant State. 43 There are no instant solutions, but determined
international action over a sustained period can achieve results, it is
important that action should be fully internationalised and in conformity
with law This requires patience on the part of Governments and
electorates, and statesmen need to take the long view.
While the law is imperfect, breaking it through impatience can lead
to worse results. The =anti-terrorist strike" option is not confined to
Libya - Syria and Iran are also regarded as sponsors of acts of antiAmerican terrorism, 44 so no one will be surprised if they too are
subjected to "strikes". But why stop here, and why only the United
States? Why not British raids on New York and Dublin to strike at the
I.R.A.? Why not Nicaraguan bombs on the United States, supported
by a sympathetic ally, say Cuba (or the U.S.S.R.?)? The list of
possibilities can be prolonged, perhaps indefinitely as new occasions
of hostility arise.
A sombre feature of the episode is that, even given the evidence
against Libya, there is a cause if not a justification of its policy: 4s the
suppression of the legal rights of the Palestinian people, and the
uncritical American support of this policy. This "terrorism" is not a
formless incubus haunting the West, propelled by its own evil, but is
created and quickened in this world by the concrete denial of justice.
4~ The Times, April 16th, 1986.
43 See Parsons, supra note 41. Non-Military action is envisaged by the Tokyo
Declaration of the Seven Western Industrial Nations, The Times, May 7th,
1986.
44 See the Statement of President Reagan of the U.S.A. upon the
completion of the Tokyo Summit, The Guardian, May 7th, 1986.
4s Mr. Enoch Powell, MP, distinguishes between the Inevitability of an
event (violent Ulster reaction to the Anglo-Irish agreement) and its
justification. Gadaffi's support of the Palestinian cause through action
against the U.S.A. would perhaps fall into the category of "inevitability".

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The ultimate anti-terrorist option is to deal with the core problem with
energy, optimism and the fullness of power.
4. Keeping an Appointment

The reference to the rSle of lawyers at the beginning of this note

brings us to the claim- also made by Tunkin - that there are only
international lawyers, not American, Russian or Third World
international lawyers. Sed quaere? There is an intimate connection
between lawyers and the legal culture from which they draw
nourishment. But some lawyers go beyond this and appear to give
their uncritical support to policies of their Governments, however
immoderate and unmeasured. Akehurst made a sharp point against
Julius Stone on this very issue, '8 and some lawyers in the U.S.A. (and
the U.S.S.R. and elsewhere) appear to fall into the same trap. The
results of conceptualising the entire world in terms of narrow national
interests can only be disastrous. Tunkin is in principle correct: there is
a respublica jurisconsultorum, but it is weak and divided, riven by
factions. The jurists should (and many fortunately do) keep an
appointment with reason and commonsense and dwell in their
Republic: "We are waiting for Godot to come - or for night to fall. We
have kept our appointment and that's an end to that. We are not
saints, but we have kept our appointment. ''47

4b 'Book ReviewofJ. Stone, Israel and Palestine: Assault on the law

of Nations, 53 British Year Book of International Law (1982), 248.
47 Samuel Beckett, Waiting for Godot, London, Faber and Faber, 1956.