BY MARK DeSANTO — On Tuesday, September 11th, 2012, incensed protesters in Libya gathered near the U.S. Consulate in Benghazi to protest an American-produced film that allegedly ridiculed the Muslim Prophet, Muhammad. Among the protesters were members of the radical Islamist group known as Ansar al-Sharia, according to witnesses of the protest, but the group denied any involvement in the attack, says BBC’s Rana Jawad in Tripoli.
The protest turned violent when the group clashed with Libyan security forces that were impeding the roads leading to the U.S. Consulate. The armed protestors began shooting and the security forces returned fire but were inevitably overrun by the overwhelmingly large group, said Wanis al-Sharef, an Interior Ministry official in Benghazi. Armed men then stormed the Consulate grounds with automatic weapons and rocket propelled grenades, “shooting at buildings and throwing handmade bombs into the compound” before setting it ablaze.
Tragically, the U.S. ambassador to Libya, J. Christopher Stevens, was killed in the attack, along with Sean Smith, a Foreign Service information management officer, Glen Doherty, a former U.S. Navy Seal and one other unnamed U.S. personnel.
Secretary of State Hillary Clinton has condemned the attack “in the strongest terms.” In her statement on Wednesday, September 12, Clinton contacted Libyan President Mohammed el-Megarif “to coordinate additional support to protect Americans in Libya.”
In Libya, lawmakers said that they were investigating the attacks. On Thursday, Libyan authorities arrested four men suspected of instigating the attack. The General National Congress condemned the attack, stating that it “led to the regrettable injury and death of a number of individuals.” The attack on the U.S. Consulate in Libya occurred only several hours after irate protestors stormed the U.S. Embassy in the Egyptian capital of Cairo. The Cairo protest was in response to the same movie that incited the Libyan attack.
On Wednesday, September 12, the United States vowed to track down those behind the murder of Ambassador Stevens and the other three American citizens. President Barack Obama said, “We will not waver in our commitment to see that justice is done for this terrible act …. And make no mistake, justice will be done.”
The United States has responded swiftly by sending unmanned aircraft, “surveillance drones” to gather intelligence and seek out possible jihadists who may be behind the Benghazi attack. Also, an elite group of “[a]bout 50 Marines from a rapid reaction force headed to Tripoli to enhance security.” Furthermore, two American destroyers have been moved to the Libyan coast (the USS Laboon and USS McFaul), both of which are equipped with satellite-guided Tomahawk cruise missiles capable of being programmed to hit specific targets from sea.
Although the United States has already taken significant measures in response to the attack, all efforts thus far seem to be precautionary and will give the Obama administration “flexibility” in dealing with this issue in the days to come.
Quite possibly the most important reaction to the attacks, however, is that of the United Nations. The United Nations Secretary General, Ban Ki-moon “condemns this attack in the strongest terms,” and reminded the Libyan authorities of their obligations to protect diplomatic facilities and personnel.
The tragic events, both in Cairo and Benghazi, implicate international law and the general prohibition on the use of force[i] (codified in U.N. Charter art. 2, para. 4.) This general prohibition against the use of force supersedes mere statutory authority and rises to the level of “customary international law,” meaning that it is a fundamental principle of international law.
This fundamental principle has a large impact not only on the United State’s response, but also on the way the international law community views that response. Such customary international law places significant pressure on governmental administration, and will, without a doubt, influence the Obama administration’s decisions going forward.
Inversely, the United States has solid legal footing to take action in response to the attacks. Article 51 of the United Nations Charter confers the inherent right of self-defense in response to an armed attack.[ii] It is within the confines of Article 2, paragraph 4 and Article 51 that the United States can proceed in taking responsive measures in the days to come.
It is important to note, however, that at this point in the investigation, authorities believe the attack was planned and executed by a radical Islamist group. Such groups are not considered “States” (countries) within the international law definition. Accordingly, no recognized State is responsible for the attacks and thus subject to the United States’ use of force.
Interestingly, if the investigation uncovers that an organ of a foreign country had any involvement in the attacks, whether planning or active participation therein, the international law concept of “attribution” would ascribe the attacks to that particular foreign country as opposed to a radical group.[iii] At this stage of the investigation, however, no foreign countries are suspected of being involved in the attacks.
So far, countries around the world have condemned the attack in Benghazi. The United States’ military response remains precautionary as the investigation continues. Regardless of its outcome, one thing is certain, that a substantial portion of the international community is supportive of the United States’ intention to procure and punish those responsible for this heinous crime.
1 U.N. Charter, Article 2, Paragraph 4 provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
2 “Nothing in the present Charter shall impair the inherent right of individual or collective self- defense if an armed attack occurs.” U.N. Charter art. 51.
3 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91 (February 26) (holding that the conduct of any State organ is to be considered an act of the state under international law, and therefore gives rise to the responsibility of the state if it constitutes a breach of an international obligation of the state) (emphasis added).