War Powers

Scott Horton on the “Pyrrhic” Victory Over Gaddafi [UPDATED]

By Jack Goldsmith
Tuesday, October 25, 2011, 9:43 PM

Scott Horton has a thoughtful essay at Foreign Policy that argues the fall of Gaddafi should be seen “through the lens of the law” as a “Pyrrhic” victory.  From the domestic law perspective, Horton maintains that because of the administration’s contortions of the War Powers Resolution, the Libya campaign is “another vindication of executive war-making powers, and a demonstration of Congress's institutional lack of gravitas when dealing with minor foreign conflict.”  From the international law perspective, he argues (like Walter Russell Mead) that NATO’s very aggressive interpretation of its authorities under UNSCR 1973 “will have consequences for future humanitarian crises” because “in the wake of Libya, the Security Council is unlikely to embrace another R2P operation anytime soon.”  Horton concludes that the Libya operation is thus “bad news for the people of Damascus and Hama, as well as for advocates of the responsibility to protect.”  Hard to know if he and Mead are right -- is it really plausible that the U.N. would have authorized an intervention of Syria, even without the Libya precedent? -- but the point is plausible.

UPDATE: In the same publication, Eric Posner makes many of the same points as Horton about international and domestic law, if anything in a more full-throated way.  He concludes:

It is possible, indeed likely, that if countries had complied with international law, and the U.S. government had complied with domestic law, Qaddafi would still be in power, while thousands of Libyan civilians would be in torture chambers or graves. A similar conundrum confronted governments in the 1999 Serbia war, leading an international commission to declare that the war was "illegal but legitimate" -- a near contradiction which comes close to saying that governments should disregard law when they have, or think they have, legitimate moral or political aims. But given that governments always believe that their aims are legitimate, what force can law possibly have when it comes to arms?