“13H” Critics of international law on terrorism

In 2012 the Libyan authoritarian regime collapsed, and its leader, Gadhafi, was killed. A new democratic Libya was created. The dictators’ arsenals were abandoned making it an easy target for the looters, who then choose to form militia bands creating turf wars, especially in Benghazi. That’s how the film start depicting the situation, with multiple title cards bringing us to the true events that will occur on the 11th of September 2012, exactly 11 years after the 9/11 terrorist attack. A central intelligence agency (CIA) secret compound and a diplomatic mission, both in Benghazi (Libya) bound to be attacked by the terrorist group Ansar al-Charia[1].?

Jack Sylva, our main protagonist, is sent to Libya to join the Global Response Staff team (GRS) in charge of the security of the CIA compound. Tyron “Rone” is presented as the chief of the GRS, both then leave the airport and are ambushed and we are presented with the terrorists of this movie, the group Ansar al-Charia. The ambush appears to be set out as a warning of what will happen when Ambassador Chris Stevens arrived in Benghazi and the following 13 hours struggle of the GRS at the CIA complex. For the moment we are presented with the whole security team; “Oz”, “Boon”, Tanto” et “Tig”. The GRS is presented as being ordered by a man in charge of the whole complex and a higher-up from the CIA, hereby referred to as the CIA Chief. The movie will then immerse the viewer in the daily life of GRS and CIA personnel in the dangerous Benghazi, setting the context of the attack by starting 9 months before.?

?The question arising from this true story, depicted by the movie, is: Are the inaction or inability to act of the United States of America (USA/US) and the new democratic Libya, to prevent or help the USA diplomatic personnel and base in front of a massive organized attack from a recognized terrorist group does constitute a violation of the multiple conventions of international law on terrorism applicable to these actors??

We are going to address this problem throughout the movie with a chronological approach, observing firstly the treatment of the CIA approach on the buyout of weapons, and the first part of the attack on the diplomatic mission (I). Then, we will look at the supposed violations preventing terrorism and cooperation against it (II), as it is set out in international law binding the different actors of the events.

I Benghazi a city of guns, the embassy attack.

Nine months have passed since Jack Silva arrived. Pressure has been building up, and all interventions or missions outside of the complex presented as a life-threatening missions. As the movie continues, we are presented with multiple unknown men tailing them and reporting on each action they carry outside of the CIA complex, the weapon of war shown available everywhere in local markets, as a scene of tension presents a Benghazi market, selling rockets, antitank missiles, and various ammunitions.?

In this case, it is necessary to link this scene with the United Nations' stand against the spread of small arms in unstable regions, and the impact on the development of the terrorist organization. The Resolution 2117 of 2013 stated that:?

“Recalling with concern the close connection between international terrorism, transnational organized crime, drugs trafficking, money-laundering, other illicit financial transactions, illicit brokering in small arms and light weapons and arms trafficking, and the link between the illegal exploitation of natural resources, illicit trade in such resources and the proliferation and trafficking of arms as a major factor fuelling and exacerbating many conflicts,”

And ;

“Reaffirms its decision that States shall eliminate the supply of weapons, including small arms and light weapons, to terrorists, as well as its calls for States to find ways of intensifying and accelerating the exchange of operational information regarding traffic in arms, and to enhance coordination of efforts on national, subregional, regional and international levels”

Those statements are confirmed by the Resolution 2220 of 2015, linking the fight against small arms diffusion as a way of financing and helping the spread of terrorist groups. The movie nonetheless doesn’t address this reality directly, it simply shows that weapons are as common as vegetables in a market.?

Now turning to one of a tension rising scene, the weapons buyout operated by the CIA security team, in the application of the disarmament policy of the USA in Libya. The weapon deal is set out in a dust football field and as the first part of the movie only serves to bring tension for what’s to come. The exchange is a set up to allow drones to track the seller's stash and as said by a CIA agent “level it with a hellfire” (an antitank missile).

But a question arose from this buyout, does it constitute illegal finance of terrorist activities by the CIA? By referring to the International Convention for the suppression of the financing of terrorism, article 2;?

?1. Any person commits an offense within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

?(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or?

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.?

This obligation to consider the financing of a terrorist group is based on three conditions set out in this article. Firstly the act of providing funds directly or indirectly, followed by the condition of having at least a part of knowledge that the funds will be used to carry out illegal activities defined as offences in article 2 1(b) or in any annexed treaty as state article 2 1(a).

In the scene, the GRS is directly buying a huge amount of SA-7 ground-to-air missiles, they hand over a purse full of cash to purchase the whole shipment. The other party is presented as armed and prompt to erratic comportment, as well as understanding the “Jambo” sign as a mercenary way to mean business. From those facts and following a strict interpretation of the rules, the arms dealer is more than probably going to use the money to assert his control on his “turf” and by such will certainly threaten the local population and police forces to continue his illegal arms deals.

Hence, the USA through its CIA secret compound activities might be considered to have violated the treaty.?

After this buyout, the real plot of the movie begins with the arrival of Chris Stevens former US ambassador in Libya. He travelled from the diplomatic mission established in Tripoli to Benghazi to reassure the US presence and will of collaboration. He appeared to be sent without sufficient security details, a team of only 5 persons.?

After setting in the diplomatic mission, the ambassador goes out to give a speech at the city hall with a large crowd. Troubles start brewing on the horizon, and when back at the temporary embassy a large crowd is heard in the distance and the 17th February martyrs leave the vicinity of the site as well as a police car.??

Rockets are aimed at the temporary embassy, and the few guards that stay are attacked. The ambassador's security team fall back to the building and duck in. The ambassador is taken to the panic room. The Ansar al-Charia break through the perimeter and try breaking through the panic room door, choosing to smoke them out by setting on fire the embassy.?

Those facts are clearly in violation of two treaties of international law, ruling over terrorism activities. On one hand, the clear violation of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973, article 1 .1 (b) and .2;?

For the purposes of this Convention:?

“Internationally protected person” means:??

(b) Any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.?

2. “Alleged offender” means a person as to whom there is sufficient evidence to determine prima facie that he has committed or participated in one or more of the crimes set forth in article 2.”

Here, Chris Stevens is an official ambassador of the USA and stationed in a diplomatic mission, both being recognized as a state official attacked during his official premises. Article 2.1 display a list of crime recognized as a violation of the convention;

Article 2 :

1. The intentional commission of:?

(a) A murder, kidnapping or other attack upon the person or liberty of an internationally protected person; 3??

(b) A violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty;?

(c) A threat to commit any such attack;?

(d) An attempt to commit any such attack; and

?(e) An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.

Hence, the armed attack is a clear violation of the convention and aimed to kill or capture the US ambassador. Article 2. 3 of the same convention also states the obligation to prevent such acts against protected personnel;?

2.Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

The 17th February is then in clear violation of the treaty. Nonetheless, we need to determine if the 17th February martyrs are linked to the Libyan State, a party to the treaty. The One hundred Thirteenth Congress brings us an answer; Hilary Rodham Clinton stated in front of the committee of foreign affairs of the House of the Representatives, that;?

“February 17th Brigade was a Libyan Government-supported militia that started defending Chris Stevens when he showed up before Ghadafi fell. They had been reliable, they had been responsive.?

But they were not particularly available during those first minutes and hours of the attack on our compound.”

This statement gives us ground to define a hierarchical link between the new Libyan state and the 17th February martyrs, as a minimal involvement of the Libyan state in the doing of this militia group. Consequently, violating the Convention norms of international law, without it being mentioned in the movie.?

However, it is necessary to then look directly at the questions of a terrorist attack as a whole and the obligation of prevention created by the treaties.?

II Violation of prevention and cooperation by Libya and the USA?

After the attack on the diplomatic mission and the failed extraction of the ambassador, carried out by the GRS, the next target of the Ansar al-Charia is the secret CIA compound. The CIA compound chief asks to make a run to the airport and the team leader of the GRS replies; “Maybe, you haven’t noticed it’s open season on Americans in Benghazi right now.” This line is also being confirmed by the coming by of a Libyan civilian asking if the lights could be shut down to not indicate where the Americans are.??

After the pass-by of multiple cars, all Libyan personnel leaves the vicinity of the CIA bases. A police car is then passing by slowly and speeding back up, two police cars are then shown to stop in a parking lot full of armed militias and talk to them before leaving. The CIA compound is then hit by an armed group of approximately 30 “tangos “. The GRS follows strictly the international law of armed conflict, firing on those illegal combatants[2]?only in self-defence after being tossed a homemade grenade at them.?

This widespread knowledge of the identity of the militia group and their target can be understood as having reached the Libyan government. In addition, the fleeing of every police car and the sighting of multiple police cars and their officers discussing with the Ansar al-Charia group could not leave any doubt regarding the situation. A situation that the Libyans had the opportunity to prevent but failed to do so.?

At the same time, the whole attacks are taking place, a small team of CIA contracted soldiers are trying to depart from Tripoli accompanied by part of the Libyan official army, to come to aid the CIA compound of Benghazi. The rescue mission was undermined by the absence of the Libyan army organization.?

As shown in the movie multiple explosives are used against the CIA compound allowing us to turn ourselves to the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.

Stating ;?

Article 1

For the purposes of this Convention:

1. "State or government facility" includes any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity or by employees or officials of an intergovernmental organization in connection with their official duties.

2. "Infrastructure facility" means any publicly or privately owned facility providing or distributing services for the benefit of the public, such as water, sewage, energy, fuel or communications.

3. "Explosive or other lethal device" means:

(a) An explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage; or

(b) A weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material.

4. "Military forces of a State" means the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.

5. "Place of public use" means those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally, and encompasses any commercial, business, cultural, historical, educational, religious, governmental, entertainment, recreational or similar place that is so accessible or open to the public.

6. "Public transportation system" means all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo.

Article 2

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

2. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1.

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

Confronting the obligation laid out in the convention, it appears clearly that the CIA compound is to be considered a State or government facility since the people working within are to be considered “officials or employees of a State or any other public authority”, and since the CIA is an independent federal branch of the USA.?

Hence, the Ansa al-Charia group is to be found in violation of article 2.1 of the present convention, for the use of explosives grenades and later in the attack with the attempt to detonate a huge explosive device within a bus, aimed at a state or government facility.

Furthermore, considering that the CIA is an independent Federal branch of the US government, the CIA chief officer on-site then being considered an intergovernmental official, it then falls under the protection given by the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973, article 1. 1 (b);?

(b) Any representative or official of a State or any official or other agent of an international organization of an intergovernmental character who, at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.?

As well as article 2.1 (b), (c), (d), (e), for the nature of the crime ;?

(b) A violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty;?

(c) A threat to commit any such attack;?

(d) An attempt to commit any such attack; and

?(e) An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.

and 2.3;?

3. Paragraphs 1 and 2 of this articles in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Therefore, the Libyan state is responsible, for failing to prevent the events that are taking place. In addition to that statement, a dialogue between the chief and Rone confirm the unwillingness of the Libyan state to prevent the terrorist actions:?

-???Rone: No love from the Libyan government?

-???CIA Chief: They gone home for the night or just not answering.

But the incrimination of failing to prevent such an act can also be asked regarding the USA, as stated in the same dialogue.?

-???Rone: What about ours? They peeking up the phone?

-???CIA Chief: I am working on it.?

-???Rone: That drone feed’s up. They are seeing everything we see and more.?

However, as the situation is presented, the US government wasn’t aware of such facilities in Libya, explaining their lack of preventive measures.

The lack of preventive measures constated, it is now time to turn toward the obligation of cooperation drawn out of the treaties. The Convention for the Suppression of Terrorist Bombings article 15 (c), indicates an obligation of cooperation to prevent acts of the before mentioned article of the same convention to take place or continue taking place ;?

Article 15

States Parties shall cooperate in the prevention of the offences set forth in article 2, particularly:

(c) Where appropriate, through research and development regarding methods of detection of explosives and other harmful substances that can cause death or bodily injury, consultations on the development of standards for marking explosives in order to identify their origin in post-blast investigations, exchange of information on preventive measures, cooperation and transfer of technology, equipment and related materials.

Bestowing on both the Libyan government and the US, the obligation of cooperation is rigorously respected by the Americans who are trying to deploy the 10th special Force in Benghazi, through this dialogue.?

-???Guy 1: State [US] has been asked to secure the approval from the host nation [Libya].?

-???Guy 2: General this could be a hostile airport so we are considering every option.

-???Guy 3: Understood, it’s a fluid situation but there are a lot of Americans stuck here.

I say we get them airborne, then we can make our decision.

On the opposite spectrum, the Libyan government seems apathetic, almost siding with the terrorist. In a confusing moment depicted by the movie, the 17th February martyrs say that the GRS team members were firing upon them, and the team members ask the CIA chief what to do; himself replying:” They are shooting at you, then F****** shoot back”.

Hence, Libya appears to refuse or stall for time during the event, taking part in the attack by clearly mingling with the rebel’s forces through the police and the 17th February forces. But also, the long talks needed to deploy a military response, itself paid for and demanded by the CIA.

Even at the almost end of the struggle as the Libyan forces finally decided to act and rescue the US personnel, they promptly left the compound when notified via dubious means that a mortar barrage will take place, abandoning US personnel on-site.?

Only after taking two casualties, the Americans are rescued by another armed convoy of the shield army of Libya, paid by the private funds of the CIA and acting on their own without Libyan State consent.?

The movie concludes itself, like a Michael Bay movie promoting the "American values" family, the army, and their sacrifice for the American people. As well as a presentation of “where are they now”, every single member of the GRS has resigned. The end only focuses on the “heroes” and forgets about the leaders of the attack who were trialled in the US.?

Now discussing the sum of the Libyan State's violation of the international convention, it is easy in addition to one of the final inserts; “Libya is officially a failed State,..;”. to conclude that there was no Libyan government having the means to act following international law.?

??[1]?Camau.M Vairel.F, ? Chapitre 18. Ansar al-charia Tunisie : une institutionnalisation à la croisée des chemins ?, ? Soulèvement et recomposition politiques dans le monde arabe ?, p 414-428

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[2]?“ The term “unlawful combatant” is used to refer to an individual who belongs to an armed group, in a context where either the individual or the group do not fulfil the conditions for combatant status”; ? Unlawful combatants | How does law protect in war? - Online casebook ?, consulté le 3 mars 2022,?https://casebook.icrc.org/glossary/unlawful-combatants.