Address to the Nation on the United States Air Strike Against Libya April 14, 1986
Re: U.N. Article 51 - The right to self defense
My fellow Americans:At 7 o'clock this evening eastern time air and naval forces of the United States launched a series of strikes against the headquarters, terrorist facilities, and military assets that support Mu`ammar Qadhafi's subversive activities. The attacks were concentrated and carefully targeted to minimize casualties among the Libyan people with whom we have no quarrel. From initial reports, our forces have succeeded in their mission.
Several weeks ago in New Orleans, I warned Colonel Qadhafi we would hold his regime accountable for any new terrorist attacks launched against American citizens. More recently I made it clear we would respond as soon as we determined conclusively who was responsible for such attacks. On April 5th in West Berlin a terrorist bomb exploded in a nightclub frequented by American servicemen. Sergeant Kenneth Ford and a young Turkish woman were killed and 230 others were wounded, among them some 50 American military personnel. This monstrous brutality is but the latest act in Colonel Qadhafi's reign of terror. The evidence is now conclusive that the terrorist bombing of La Belle discotheque was planned and executed under the direct orders of the Libyan regime. On March 25th, more than a week before the attack, orders were sent from Tripoli to the Libyan People's Bureau in East Berlin to conduct a terrorist attack against Americans to cause maximum and indiscriminate casualties. Libya's agents then planted the bomb. On April 4th the People's Bureau alerted Tripoli that the attack would be carried out the following morning. The next day they reported back to Tripoli on the great success of their mission.
Our evidence is direct; it is precise; it is irrefutable. We have solid evidence about other attacks Qadhafi has planned against the United States installations and diplomats and even American tourists. Thanks to close cooperation with our friends, some of these have been prevented. With the help of French authorities, we recently aborted one such attack: a planned massacre, using grenades and small arms, of civilians waiting in line for visas at an American Embassy.
Colonel Qadhafi is not only an enemy of the United States. His record of subversion and aggression against the neighboring States in Africa is well documented and well known. He has ordered the murder of fellow Libyans in countless countries. He has sanctioned acts of terror in Africa, Europe, and the Middle East, as well as the Western Hemisphere. Today we have done what we had to do. If necessary, we shall do it again. It gives me no pleasure to say that, and I wish it were otherwise. Before Qadhafi seized power in 1969, the people of Libya had been friends of the United States. And I'm sure that today most Libyans are ashamed and disgusted that this man has made their country a synonym for barbarism around the world. The Libyan people are a decent people caught in the grip of a tyrant.
To our friends and allies in Europe who cooperated in today's mission, I would only say you have the permanent gratitude of the American people. Europeans who remember history understand better than most that there is no security, no safety, in the appeasement of evil. It must be the core of Western policy that there be no sanctuary for terror. And to sustain such a policy, free men and free nations must unite and work together. Sometimes it is said that by imposing sanctions against Colonel Qadhafi or by striking at his terrorist installations we only magnify the man's importance, that the proper way to deal with him is to ignore him. I do not agree.
Long before I came into this office, Colonel Qadhafi had engaged in acts of international terror, acts that put him outside the company of civilized men. For years, however, he suffered no economic or political or military sanction; and the atrocities mounted in number, as did the innocent dead and wounded. And for us to ignore by inaction the slaughter of American civilians and American soldiers, whether in nightclubs or airline terminals, is simply not in the American tradition. When our citizens are abused or attacked anywhere in the world on the direct orders of a hostile regime, we will respond so long as I'm in this Oval Office. Self-defense is not only our right, it is our duty. It is the purpose behind the mission undertaken tonight, a mission fully consistent with Article 51 of the United Nations Charter.
We believe that this preemptive action against his terrorist installations will not only diminish Colonel Qadhafi's capacity to export terror, it will provide him with incentives and reasons to alter his criminal behavior. I have no illusion that tonight's action will ring down the curtain on Qadhafi's reign of terror. But this mission, violent though it was, can bring closer a safer and more secure world for decent men and women. We will persevere. This afternoon we consulted with the leaders of Congress regarding what we were about to do and why. Tonight I salute the skill and professionalism of the men and women of our Armed Forces who carried out this mission. It's an honor to be your Commander in Chief.
We 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 succeeded. Despite our repeated warnings, Qadhafi continued his reckless policy of intimidation, his relentless pursuit of terror. He counted on America to be passive. He counted wrong. I warned that there should be no place on Earth where terrorists can rest and train and practice their deadly skills. I meant it. I said that we would act with others, if possible, and alone if necessary to ensure that terrorists have no sanctuary anywhere. Tonight, we have.
Thank you, and God bless you.
Note: The President spoke at 9 p.m. from the Oval Office at the White House. The address was broadcast live on nationwide radio and television.
Article 51
ReplyDeleteof the Charter of the United Nations
24 Oct. 1945 | Last updated: 01 Oct. 2009 15:42
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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 self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The Legal Basis for Preemption
ReplyDeleteAuthor: William H. Taft IV
November 18, 2002
Council on Foreign Relations
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MEMORANDUM
To: Members of the ASIL-CFR Roundtable
From: William H. Taft, IV, Legal Adviser , Department of State
Subject: Old Rules, New Threats
“We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril.” President Kennedy spoke those words in the context of the Cuban Missile Crisis in 1962. I use them today to demonstrate that preemptive action in self-defense is not a novel concept. The United States, when threatened with weapons of mass destruction, has taken preemptive action to preserve the safety of its people. However, in 1962, the United States did not specifically rely on a right of preemptive self-defense, preferring the terms of the Rio Treaty and concepts within Article 51 of the United Nations Charter.
Article 51 of the United Nations Charter makes clear that “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.” The United States has long held that, consistent with Article 51 and customary international law, a state may use force in self-defense: 1. if it has been attacked, or 2. if an armed attack is legitimately deemed to be imminent. This interpretation is also consistent with our domestic notion of self-defense as applied in the criminal and tort law contexts.
The case is, without question, easier where there has been a clear attack or where there has been a direct authorization from the United Nations Security Council. After the terrible attacks of 9/11, the United States, with the cooperation of its allies, launched an attack against Al Qaeda and the Taliban. This action could be considered preemptive, in a sense, as the United States was not acting in retaliation, but actually, to prevent and deter imminent attack. If it were necessary to apply the test of necessity before action, the events of that September could be viewed as establishing that the enemy intended to attack again. Applying this theory, after the first aggressive strike, United States action was justified so long as the enemy maintained his capacity to attack. But the question remains, short of an actual armed attack, how long does a State have to wait before preemptive measures can be taken to prevent serious harm? In the era of weapons of mass destruction, definitions within the traditional framework of the use of force in self-defense and the concept of preemption must adapt to the nature and capabilities of today’s threats.
Within the traditional framework of self-defense, a preemptive use of proportional force is justified only out of necessity. The concept of necessity includes both a credible, imminent threat and the exhaustion of peaceful remedies.
First, an imminent threat can most easily be visualized as an advancing army or ships on the horizon. But how far away from that picture can one be removed and still view the situation as one where the enemy’s preparation makes it necessary to view an attack as imminent?
Continued
ReplyDeleteIn 1837, the British destroyed the Caroline, a U.S. steamer, not in response to a prior attack, but because they anticipated its use to support Canadian forces in their rebellion against the crown. This anticipation was based on its record of past support for the rebels. Secretary of State Daniel Webster is often quoted, from his correspondence with British Foreign Minister Lord Ashburton, justifying action in self-defense in situations “leaving no choice of means and no moment for deliberation.” However, throughout the collection of documents, the Secretary uses several other characterizations as well, such as, “most urgent and extreme necessity,” “pressing or overruling necessity,” “strong, overpowering necessity,” “clear and absolute necessity,” “and “ a necessity, present and inevitable, for attacking.” The focus of these descriptions was on urgency rather than just the timing of the response and, above all, on the necessity of using force to protect against future harm.
Neither Webster nor Ashburton disagreed about the existence of an inherent right to use force in self-defense, but rather on its application to the set of facts before them. In fact, Secretary Webster pointed out, “the extent of this right is a question to be judged by the circumstances of each particular case.” The difficulty lies in determining, as Lord Ashburton asked, “when begins your right to self-defend.”
The purpose of the UN Charter’s language preserving the inherent right of self-defense is to help dissuade states from taking aggressive action. Underlying this purpose was the assumption that when a nation was attacked, it would be able to respond. The concept of armed attack and imminent threat must now take into account the capacity of today’s weapons. The deterrent effect is diminished when the magnitude of the first aggressive strike could destroy completely one’s ability to respond. The inherent right of self-defense embodied in the UN Charter must include the right to take preemptive action; otherwise the original purpose is frustrated. We cannot wait for a first strike under such circumstances. The simple fact that a state possesses significant military power or seeks to enhance it would not, in the absence of any evidence that it intends to use its power against others aggressively, justify a preemptive strike against it. This is to say that the United States or any other nation should not use force to preempt any emerging threat or as a pretext for aggression. As Secretary Webster said, we must consider seriously “the circumstances of each particular case.”
Continued again
ReplyDeleteTake a more recent examination of a claim of the preemptive use of force in self-defense. In June of 1981, Israel destroyed an Iraqi nuclear reactor near Baghdad. Israel asserted the attack was undertaken in self-defense, claiming that Iraq planned to use the reactor to build nuclear weapons for use against Israel. On consideration, the United Nations Security Council unanimously condemned the act as an act of aggression in violation of the UN Charter.
Interestingly, the discussion at the UN was not focused on the scope of the right of self-defense. Only six of the fifteen members made any reference to the topic. Of those, only two countries, Spain and Mexico, clearly indicated their preference for the narrowest interpretation of Article 51, that an actual armed attack must have taken place to justify force in self-defense. The majority of the debate centered on whether Israel’s actions were a legitimate exercise of the right to self-defense. More accurately, the members debated the “necessity” of Israel’s actions.
The Member Nations agreed that Israel had failed to exhaust all peaceful means for resolution of the conflict. In fact, this was the sole reason given by the United States as an explanation for its conclusion that Israel had violated the Charter. Furthermore, nearly every member pointed to the factual evidence revealing that the Iraqi reactor was in full compliance, at the time, with its obligations under the Non-Proliferation Treaty. Many believed the threat was too tenuous, as the Iraqi facility would have required radical alteration to produce weapon components.
The chief concern of the Members in 1981, and likely of the world today, were the implications of Israel’s justification of the attack. Many viewed the rationale as an unlimited concept of self-defense against all possible future dangers, subjectively assessed. This would certainly have been a dangerous precedent to set, if permitted without “clear and absolute necessity.” However, the members had imposed limits by evaluating the individual circumstances of the situation against the tests of necessity and proportionality. In the eyes of the United Nations, Israel had not met the exacting standards of that test.
The President’s National Security Strategy relies upon the same legal framework applied to the British in Caroline and to Israel in 1981. The United States reserves the right to use force preemptively in self-defense when faced with an imminent threat. While the definition of imminent must recognize the threat posed by weapons of mass destruction and the intentions of those who possess them, the decision to undertake any action must meet the test of necessity. After the exhaustion of peaceful remedies and a careful, deliberate consideration of the consequences, in the face of overwhelming evidence of an imminent threat, a nation may take preemptive action to defend its nationals from unimaginable harm.
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