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.

The Prosecution of ISIS

The chief prosecutor of the International Criminal Court (“ICC”), Fatou Bensouda, has stated that her office lacks the jurisdiction to investigate and prosecute the Islamic State in Iraq and Syria (“ISIS”).[1] Although there are an abundance of reports and potential evidence of the terrorist group’s violation of human rights, and a plethora of other crimes, unless further action is taken by the United Nations Security Council, the ICC is most likely never going to be able to open an official investigation into ISIS.

ISIS was officially created in October 2006, as a splinter group of Al Qaeda. Known for its brutal implementation of Sharia Law and their goal to create a caliphate all over the world, ISIS has committed and taken responsibility for a litany of war crimes and terroristic plots including the recent attacks in Paris. ISIS is known for killing dozens of people at a time and carrying out public executions, crucifixion and other acts.[2] These killings are filmed, produced and uploaded to the Internet and distributed through social media for the world to see.

The members of ISIS are unlikely to face prosecution from the countries in which it has taken a stronghold, namely Syria and Iraq. Therefore, there are only two ways for these terrorists to face prosecution: through international tribunals or through capture in a country in which they are wanted.

The issue with the use of international tribunals, namely the ICC, is a lack of jurisdiction. The ICC was established in Rome in 1998 by way of the Rome Statute.[3] It was created in response to the success of the ad-hoc tribunals—the International Criminal Tribunal for former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). These two tribunals were created by the United Nations Security Council to investigate and prosecute crimes committed in these two specific geographic areas. Their successes prompted outcry for a more permanent court that would hold jurisdiction over many more countries.

The Rome Statute holds that the Court will have jurisdiction over certain prescribed crimes. These crimes include, but are not limited to genocide, crimes against humanity, and war crimes.[4] Article 4 of the Statute describes the legal status of the Court and states that the “Court may exercise its functions and powers as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.[5] Therefore, to have jurisdiction over ISIS, the countries in which ISIS has operated from—mainly Syria and Iraq—would have to be State Parties to the Rome Statute, which they are currently not. This is what the chief prosecutor explained to the press in his statement. It seems that absent a “special agreement” there is simply nothing that the prosecution can do in regards to ISIS members. The special agreement would need to be adopted by the State Parties to the Rome Statute, but unless there is a real call to action by members of the Security Council, this is unlikely to ever happen.

The ICC is within its power to exercise jurisdiction over captured ISIS members in countries which are parties to the Rome Statute. However, this is unlikely to occur because the Court looks to prosecute those who are in positions of power within organizations and have connections to, or perpetrated the crimes outlined in the Rome Statute. ISIS recruits and those operating in Europe and abroad are usually low-ranking members not worth the resources. Particularly when countries are already prosecuting and using them to gather intelligence.

It is likely that ISIS member and leaders never answer for their crimes in an international court of law unless action is taken by the Security Council to refer the crisis occurring in Syria and Iraq to the ICC and a special agreement is undertaken. However unlikely this is, ISIS will continue to be fought by the international community outside the court system.

 

Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


[1] Marlise Simons, International Criminal Court Says ISIS is Out of Its Jurisdiction, NY Times (Apr. 8, 2015) available at http://www.nytimes.com/2015/04/09/world/middleeast/international-criminal-court-says-isis-is-out-of-its-jurisdiction.html

[2] ISIS Fast Facts, CNN Library, available at http://www.cnn.com/2014/08/08/world/isis-fast-facts/

[3] Rome Statute of the International Criminal Court, International Criminal Court (Jan. 16, 2002), available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

[4] Id. at 10.

[5] Id. at 2.