Libya: The Progression of a Failed State—From Benghazi to the Rise of ISIS

It has been over three years since the Benghazi terrorist attack took place when Islamic militants attacked the American diplomatic compound in Benghazi, Libya, killing U.S. Ambassador J. Christopher Stevens, U.S. Foreign Service Information Management Officer Sean Smith, and two CIA contractors. Since its 2011 civil war which ultimately toppled Muammar Gaddafi, Libya has plunged into the chaos of a failed state. Libya is inundated by fighting among two rival governments — one in the capital, Tripoli, and the other in Tobrok — along with various tribal militias and the Islamic State.[1] That has left the country, along with its vast network of oil fields, open to the ravages of ISIS as the new hotbed for terrorist activity.[2]

For the last year Syria has been the epicenter and basis for the Islamic State’s self-professed caliphate, however ISIS’s footprint has not only expanded in the Levant, but also internationally to Saharan Africa as well. Libya has replaced Syria and Iraq as the top military priority, especially for Europeans. In the course of the last week the United States and France have reportedly conducted military operations in Libya against the Islamic State.[3] ISIS’s rapid expansion into Libya has caught many military intelligence experts by surprise. Coupled with the political stalemate involving Libya’s two governments having competing patrons — Tripoli supported by Qatar and Turkey, while Tobruk gets the nod from the West, Egypt and the United Arab Emirates — the political vacuum has enabled ISIS to gain large tractions of territory in Libya.[4]

It is estimated that ISIS dominates a 120-mile stretch of territory extending east along the coast, which is a significant achievement since this territory provides it with a relatively safe base from which to attract new recruits and plan attacks.[5]

The United Nations estimates that the group commands 2,000 to 3,000 fighters there.[6] U.S. intelligence officials estimate its fighting strength at 5,000 to 6,000 men.[7] Finally French sources claim that ISIS commands over 10,000 fighters.[8]

Current airstrikes in Libya and the small amount of U.S. Special Operations ground forces are still currently operating under the authority set forth by the decade old 2001 Authorization for the Use of Military Force (AUMF).[9] Section 2 specifies that:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[10]

However passing a new AUMF has proved both politically and militarily contentious. Congress had the opportunity to pass a new AUMF to combat ISIS in February 2015 when President Obama sent a version to Congress.[11] [12] Republican lawmakers promptly dismissed the draft authorization as too restrictive and democrats criticized it for not repealing the still-used 2001 AUMF. The 2001 AUMF was not repealed, and a new one to combat ISIS was never passed.

During the week of February 14, 2016 President Obama authorized an attack on an ISIS training camp in Libya, targeting high-value asset, Noureddin Chouchanein, a Tunisian terrorist who facilitated the flow of foreign fighters across North Africa.[13]

“The president authorized this strike,” Pentagon spokesman Peter Cook told reporters. The following exchange between Pentagon spokesman Peter Cook and reporter was especially forthcoming:

Reporter: “But Peter, under what authority was this strike carried out? There is no AUMF for ISIS in Libya; no Americans were killed in the two attacks in Tunisia. Under what authority?”
Cook: “Well, again, we’ve struck in Libya previously, under the existing…authorization for the use of military force,”
Reporter: “In 2001, against Al Qaida?”
Cook: “Yes, specifically. And this — in our targeting of Chouchanein this instance. And we believe that this was based on — was legal under international law.”
Reporter: “But you’re saying that you’re using the 2001 AUMF against Al Qaida to go after ISIS in Libya?” the reporter followed up.
Cook: “Specifically, again, as a — the use of military force against ISIL is authorized by the 2001 Authorization for the Use of Military Force, specifically. Just as it was — as we used it in our previous strike in Libya.”[14]

Given their loose affiliation and spawn from Al Qaeda it is understandable how security law experts can rationalize the use of the 2001 AUMF as their legal authority to continue to conduct limited operations in Libya. However if the situation ever calls for significant boots on the ground, as some experts have called for, under a new Presidential administration a new AUMF with limited scope might be possible and more effective in combating and defeating the Islamic State.

 

Anthony Christina is a 3L and a Resident Student Blogger with the Journal of Law and International Affairs at the Penn State University-Dickinson School of Law.


 

[1] http://www.usatoday.com/story/news/world/2016/03/03/soldiers-fight-stop-isils-expansion-libya/80950372/

[2] http://foreignpolicy.com/2016/02/18/how-much-of-libya-does-the-islamic-state-control/

[3] http://www.aljazeera.com/indepth/opinion/2016/03/isil-gains-libya-case-intervention-isis-160301090505840.html

[4] Id.

[5] http://foreignpolicy.com/2016/02/18/how-much-of-libya-does-the-islamic-state-control/

[6] http://www.cbsnews.com/news/libya-safe-haven-isis-3000-fighters-un-warns/

[7] http://www.militarytimes.com/story/military/2016/02/04/new-intel-shows-isis-force-declining-iraq-syria/79819744/

[8] http://foreignpolicy.com/2016/02/18/how-much-of-libya-does-the-islamic-state-control/

[9] https://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm

[10] Id.

[11] http://www.huffingtonpost.com/2015/02/11/obama-aumf-congress-isis_n_6660208.html

[12] http://www.huffingtonpost.com/entry/congress-isis-war_us_566f47cae4b0fccee16f938b

[13] http://cnsnews.com/news/article/susan-jones/dod-obama-again-used-2001-aumf-against-al-qaida-go-after-isis-libya

[14] Id.

Piercing the Veil: An Examination of the Constitutionality of France’s Burqa Ban

The terrorist attacks in Paris on November 13, 2015 shocked the world and once again sparked debate about the place of religion in modern society. This debate intensified as the Islamic State of Iraq and Syria, or ISIS, claimed responsibility for the slaughter.[1] While both the United States and France have been the targets of orchestrated attacks from extremist fringes, France addresses religion, especially Islam, differently than the United States.

Indeed, the French Constitution establishes that it is a secular state, providing: “France shall be an indivisible, secular, democratic and social Republic.”[2] The American approach, of course, is the First Amendment, which employs language that protects the presence of religion in private life, but does not endorse a religion for the state.[3]

To say that France prides itself on its secularism would be an understatement.[4] For many Americans, this is a puzzling concept to grasp. The United States Congress has even taken affirmative steps to maintain religion’s place in America, including the Religious Freedom Restoration Act.[5]

Despite the fact that both countries attempt to keep religion from mixing with governance to varying degrees, it is plainly evident that France takes its secularism further. Of primary note, in France, it is illegal to wear a burqa or niqab – the religious face coverings worn by Muslim women – in a public place.[6] Although the law prohibits the use of other face-covering garments such as balaclavas and hoods,[7] Muslim women are arguably the ones most affected by the law. This law has been at the center of a fervent debate, and has been scrutinized in several high courts. Still, despite the opposition, the prohibition stands, at least under French and European Human Rights law.[8] The Conseil Constitutionnel, the highest court in France that examines constitutional issues, reasoned that the law stuck a “reasonable balance” between liberty and public order.[9] The European Court of Human Rights similarly found in favor of the French law, opining that the notion of “living together” was a “legitimate aim” of French lawmakers.[10]

With even a rudimentary understanding of the place of religion in the United States, it seems clear that a law similar to the French ban of religious garb such as burqas and niqabs would not survive in American courts. But why is France’s approach so different from that of the United States? For one, it is important to remember that France and the United States differ in heritage. Even after this consideration, however, even bigger questions remain. These questions focus on the future of France. Should France begin to distance itself from its steadfast dedication to secularism? Would an atmosphere of greater tolerance of Muslims mitigate the extremist threat against France? If France were willing to take steps to reduce the religious and secular tension within its borders, what would those steps be? The jury is out and speculation is welcome. However, it is clear that France’s controversial ban on religious garb withstands constitutional assail – at least for now.

 

Nick Schwartz is a 3L and the Managing Editor of Student Work for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Vivienne Walt, ISIS Claims Responsibility for Paris Attacks as Arrests Are Made, TIME (Nov. 15, 2015, 3:09 PM), http://time.com/4112884/paris-attacks-isis-isil-france-francois-hollande/.

[2] 1958 CONST. I. (Fr.) (emphasis added).

[3] U.S. CONST. amend. I.

[4] A common term, la laïcité refers to the state secularism in France. Secularism is so central to French life that the government has even dedicated a day to the concept. Steven Erlanger & Kimiko De Freytas-Tamura, Old Tradition of Secularism Clashes with France’s New Reality, N.Y. TIMES, (Feb. 5, 2015), http://www.nytimes.com/2015/02/06/world/old-tradition-of-secularism-clashes-with-frances-new-reality.html?_r=0.

[5] See generally The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb4 (1993).

[6] Criminal penalties include a fine of 150 Euros or community service in lieu of a fine. 2 Arrested as France’s Ban on Burqas, Niqabs, Takes Effect, CNN (Apr. 12, 2011, 9:37 AM), http://www.cnn.com/2011/WORLD/europe/04/11/france.burqa.ban/.

[7] Kim Willsher, France’s Burqa Ban Upheld by Human Rights Court, THE GUARDIAN (July 1, 2014), http://www.theguardian.com/world/2014/jul/01/france-burqa-ban-upheld-human-rights-court.

[8] Id.; John Lichfield, France’s Highest Legal Authority Removes Last Obstacle to Ban on Burka, INDEPENDENT (Oct. 7, 2010), http://www.independent.co.uk/news/world/europe/frances-highest-legal-authority-removes-last-obstacle-to-ban-on-burka-2101002.html.

[9] Lichfield, supra note 8.

[10] Willsher, supra note 7.

You Have to Spend Money to Make Money: The Rise of Third-Party Litigation Finance in International Litigation

Over the years, as international commerce has become the norm, there has been a corresponding rise in international litigation and arbitration. Given that many international lawsuits are expensive, parties are looking for ways to decrease risk in these suits. The private capital markets have responded by offering third-party litigation financing (“TPLF”).

TPLF is “a group of funding methods that rely on funds from . . . the capital markets instead of, or in addition to, a litigant’s own funds.”[i] It is a type of contingency fee where a specialist funding company or hedge fund pays some or all of the litigation costs by paying the attorneys’ fees—and sometimes the other costs—and then receives a percentage of the verdict, settlement, or arbitral award.[ii] This form of litigation financing is known as a “syndicated lawsuit” and has been gaining popularity in the international legal world.[iii] By utilizing TPLF, law firms are able to mitigate the cost of bringing a lawsuit while still reaping some of the reward.

The growth of the TPLF industry has been seen across the globe. Countries like Australia and the United Kingdom have taken substantial strides to allow and encourage TPLF.[iv] This movement has sparked an interest in international law firms to utilize this new funding technique.[v] For example, eight out of the ten major law firms in London were using some sort of TPLF in international litigation and arbitration cases.[vi]

While many counties have embraced, and in fact encourage, TPLF, others are still testing the waters by implementing systems where TPLF is allowed in narrow circumstances. Hong Kong is currently in the process of amending and establishing its approach to TPLF, both in international litigation and arbitration. In October of 2015, the Hong Kong Law Commission, led by the Third Party Funding for Arbitration Sub-Committee, published a Consultation Paper encouraging that TPLF be permitted in international arbitration taking place in Hong Kong.[vii] Previously, TPLF agreements were only allowed in arbitration conducted overseas.[viii] The court in Unruh v. Seeberger expressly raised the issue, but did not answer, whether TPLF agreements are barred within its borders.[ix] Ms. Kim Rooney, the Chairman of the Third Party Funding for Arbitration Sub-committee, noted that:

“[Hong Kong] is a major international financial and arbitration centre and that parties considering whether to resolve their disputes in [Hong Kong] by international arbitration are starting to take into account, among others, the potential financial options available to them in conducting such arbitrations. Accordingly, clarity and certainty of the relevant law concerning third party funding for arbitration will be desirable.”[x]

Given the recognized importance of this issue, the Law Commission held a consultation period to review the opinions of the public—which ended on January 18, 2016. Numerous organizations participated in this consultation period, including influential organizations such as the U.S. Institute for Legal Reform and Burford Capital.[xi]

While the U.S. market for TPLF is fairly small, when compared to other countries, it has been steadily increasing.[xii] Pressure for United States capital companies to enter the litigation market has emanated from foreign jurisdictions .[xiii] Recognizing the opportunities for potential profit in the TPLF market, as exemplified abroad, U.S. investment companies have begun to fall into step. There has been a “new wave” of litigation financing that has emerged from the shift toward utilizing TPLF.[xiv] However, this issue is complicated in the U.S. because some jurisdictions ban or limit the use of TPLF.[xv]

The influence of TPLF is evident, given the growth in the TPLF market and the reactions of different countries in adopting or preventing its use in litigation and arbitration. Many scholars support the use of TPLF as it provides a means of financing for those who may be otherwise prevented from filing suit due to financial reasons. However, others fear easy access to funding may lead to a rise in frivolous lawsuits. Either way, TPLF appears to be rising a part of international litigation and arbitration. It will be important for those likely to be involved in international litigation to track how different countries approach the use of TPLF.

 

John Rafferty is a 3L and an Articles Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[i] Maya Steinitz, Whose Claim Is This Anyway? Third-Party Litigation Funding, 95 Minn. L. Rev. 1268, 1276-77 (2011).

[ii] Id. at 1277 (citing Baker & McKenzie LLP, Demand for Third Party Litigation Funding Rises as Supply Becomes Volatile (2008), available at http:// www.bakernet.com/NR/rdonlyres/427586D3-6891-4FC2-B926-B0181DB75595/0/ third_party_litigation_funding_ca&u score;oct08.pdf.).

[iii] Joshua G. Richey, Tilted Scales of Justice? The Consequences of Third-Party Litigation Financing of American Litigation, 63 Emory L.J. 489, 495-96 (2013).

[iv] Maya Steinitz, Whose Claim Is This Anyway? Third-Party Litigation Funding, 95 Minn. L. Rev. 1268, 1279-81 (2011).

[v] Id. at 1281.

[vi] Id.

[vii] IRL Responds to Hong Kong Law Commission on Risks of Third Party Litigation Financing, U.S. Chamber Institute for Legal Reform, http://www.burfordcapital.com/blog-burfords-comment-to-the-hong-kong-law-reform-commissions-third-party-funding-for-arbitration-sub-committee/ [hereinafter IRL].

[viii] Uhruh v Seeberger (2007) 10 H.K.C.F.A.R 31, 118 (H.K.).

[ix] Id.

[x] See IRL, supra note 7.

[xi] Burford Capital, Burford’s Comment to the Hong King Law Reform Commission’s Third Party Funding for Arbitraiton Sib-committee, Burford, http://www.burfordcapital.com/blog-burfords-comment-to-the-hong-kong-law-reform-commissions-third-party-funding-for-arbitration-sub-committee/.

[xii] Richard Lloyd, The New, New Thing; The American Lawyer (May 17, 2010), available at www.law.com/jsp/tal//PubArticleTAL.jsp?id=1202457711273&hbxlogin=1&login.

[xiii] Steinitz, supra note 4, at 1278.

[xiv] Steinitz, supra note 4, at 1277.

[xv] Jennifer Trusz, Full Disclosure? Conflicts of Interest Arising from Third-Party Funding in International Commercial Arbitration, 101 Geo. L.J. 1649 (2013).