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The Use of Force against ISIL in Libya and the Sounds of Silence

Published on January 6, 2016        Author: 

As acknowledged by the UN Security Council in Resolution 2249 (2015), ISIL constitutes ‘a global and unprecedented threat to international peace and security’. At least in part, the unprecedented nature of this threat can be attributed to the fact that, in addition to the swathes of territory held in Iraq and Syria, ISIL maintains a presence in various other states, including Libya, Afghanistan, Egypt, Tunisia and Nigeria. Consequently, it was only a matter of time before states started considering striking these other states.

On 13 November, the US made the first move in expanding operations beyond Iraq and Syria, conducting the first airstrike by a Western state specifically targeting ISIL within Libya. It has now been confirmed that the successful strike killed Abu Nabil, the US-dubbed ‘leader’ of ISIL in Libya. Little has been said regarding the airstrike by states or legal commentators, though this is understandable in a period where the world is coming to terms with the devastating terrorist attacks in Paris, Mali, Nigeria, Tunisia and Egypt. However, reflecting back on the strike, questions surround its legality. This post will focus on legality under jus ad bellum, while acknowledging that an airstrike directly targeted at an individual may also trigger international humanitarian law and human rights law.

Prior to assessing the legality of the strike, it is important to consider what we actually know about the strike. In announcing the strike against Abu Nabil, the US Pentagon Press Secretary stated that:

‘On November 13, the U.S. military conducted an airstrike in Libya against Abu Nabil, aka Wissam Najm Abd Zayd al Zubaydi, an Iraqi national who was a longtime al Qaeda operative and the senior ISIL leader in Libya.

Reporting suggests he may also have been the spokesman in the February 2015 Coptic Christian execution video. Nabil’s death will degrade ISIL’s ability to meet the group’s objectives in Libya, including recruiting new ISIL members, establishing bases in Libya, and planning external attacks on the United States.

While not the first U.S. strike against terrorists in Libya, this is the first U.S. strike against an ISIL leader in Libya and it demonstrates we will go after ISIL leaders wherever they operate.

We will provide additional information as and when appropriate. This operation was authorized and initiated prior to the terrorist attack in Paris.’

Notably, the statement provides no explicit legal justification for the strike. This silence has not been remedied since, leaving us to perform the risky task of reading between the lines of the Pentagon statement, while searching for a possible legal justification for this prima facie breach of Article 2(4) UN Charter. Read the rest of this entry…

Filed under: EJIL Analysis, Libya, Use of Force