Libya: America Has No Choice?

This post is in response to a post by Juan Cole, a blogger and expert on the Arab and Muslim worlds from whom I've learned a great deal and who I greatly respect, arguing that America has a moral obligation to assist its NATO allies in the war against Libya.

Hi Juan, I'm no expert on NATO and the UN, but Article 5 of the NATO Charter seems entirely clear:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

So Article 5 applies only to attacks in Europe and North America, which would seem to exclude events in North Africa. And even if we read the phrase, "to restore and maintain the security of the North Atlantic area" as broadly as possible, it's hard to see how it could be stretched to an African country on the Mediterranean.

But I think your argument might find some support in Article 6, which provides:

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France (2), on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;

on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

Again, I know little about the NATO Charter and am unfamiliar with other attempts to interpret it, but on its face, Article 6 seems to provide that if NATO forces are attacked in the Mediterranean, the attack will be deemed to be an Article 5 attack. That said, as a former lawyer, I'm struck by the sloppy drafting of Article 6. As drafted, it seems to have the effect of dramatically expanding the geographical ambit of Article 5, making me wonder why, if such an expansion was the intent of the drafters, they didn't just forthrightly provide for the proper geographical scope of the treaty in one place. Another drafting anomaly in Article 6 is the repetition of the notion that an armed attack on Europe means an armed attack on Europe. Finally, we should mindful of what NATO stands for: North Atlantic Treaty Organization. Legal documents are often construed without regard to their titles and headings, but still, it's fair to wonder why the drafters would have called the organization and the treaty NATO if they intended the alliance to apply equally to the Mediterranean. NAMTO would have worked as an acronym, too.

These anomalies are why I hesitate to opine too strongly in the absence of familiarity with something equivalent to case law (I couldn't find any, BTW). My guess is that the drafters intended that limiting phrase, "in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force" to apply not just to Europe, but to the Mediterranean and other areas mentioned in Article 6, too. Regardless, on its face, Article 6 does seem to provide support for the notion that if NATO forces are attacked in the Mediterranean, the alliance will treat such attacks as an attack against all, in which case each NATO party is obligated to assist the parties that have been attacked.

All that said, you wrote, "So my question is, does that decision not lay a moral obligation on the US to lend support to the effort of its allies?" As you can see from my attempts to parse the NATO Charter, I think the better question is, "Does that decision create a legal obligation for the United States?" Because, after all, if the NATO Council decided to pick a fight outside the treaty's ambit and then tried to invoke the treaty as a way of forcing America to join in that fight, I would argue that no, America certainly has no moral obligation to join in the fight, and I would only be concerned with whether America would be legally obligated to join. As a matter of common sense, it seems dubious that NATO could launch a war not authorized by the treaty and then invoke the treaty to force a member to join that war, but still, the Charter says what it says and regardless of common sense the document of course needs to be addressed.

You ask: Had Washington demurred, "would not the allies have had a legitimate grounds for absolute fury?" I think this is the wrong question. America shouldn't be pressured into war by fear of third party emotions. If America has a legal obligation to join, America should honor that obligation. If no such obligation exists, the potential emotional reaction in foreign capitals ought to be a matter of diplomacy, but ought not to be a basis for America's participation in a war.

You mention that NATO invoked Article 5 following the September 11 attacks. But this was entirely proper, as the territory of a member state had been attacked. Libya has attacked no member state, and your argument would seem to imply that when NATO acts properly in situation x, member states are therefore obligated to act improperly in situation y. Such a tit for tat interpretation of the treaty makes no sense, either legally or common sensically. Moreover, the treaty makes no mention of public support for or opposition to responses by member states, so the foreign public opposition you mention to NATO's assistance to America in Afghanistan again seems relevant only to matters of diplomacy, not to whether an alliance member is legally or even morally obligated to assist another alliance member.

Similarly, your concern that an American demurral would mean the end of NATO is a matter of diplomacy only. Why would America want to be part of an organization that could force America into a war just by threatening the organization's dissolution if America failed to join in? If America really wanted to stay out and believed it had no legal obligation to join in, presumably it could head off such a crisis by early diplomatic intervention. If it couldn't, it might be worth discussing the value of an organization that no longer has a Soviet Union to deter and that seeks to force America to participate in actions outside the ambit of the treaty America has signed.

Granted, Resolution 1973 authorizes UN member states to attack Libya. But I don't see how it follows that America or any other NATO member is then legally obligated to participate in a war launched pursuant to the UN's resolution. Resolution 1973 authorized military action in Libya; it did not require it. Allowing a UN authorization to act as a legal trigger for a NATO requirement would greatly expand the potential applicability of the treaty. France's and Britain's actions in Libya make sense to you, but their next ones might not, and you might regret the creation of a principle that winds up obligating America to participate in every UN-authorized war that a NATO member decides to engage in. I know I would.

You close by asking again whether America has a moral obligation to assist its NATO allies in Libya. Again, I respond by saying respectfully that this is the wrong question. The right question is, Is America legally obligated to assist? Though the ambiguities in Article 6 leave room for argument, on balance I would say that no, America has no such legal obligation, and that in the absence of a legal obligation to act under a treaty, there is no moral basis to act under a treaty. If it were otherwise, we could dispense with treaties entirely and choose our wars case by case on a purely "moral" basis.

With sincere respect,
Barry Eisler