Opinio Juris Symposium: Can President Obama Attack Pakistan?

by Julian Ku

I have some more detailed thoughts on the postings by Professors Kent, Flaherty, and Ramsey but I did want to note one news item today that is actually relevant to the discussion between Professors Ramsey and Kent about the President’s ability to use military force to respond to attacks.

In a major national security address, presidential candidate Barack Obama called for the U.S. government to use military force against terrorists inside Pakistan if the current Pakistani government refuses to act to suppress them.

Would such attacks, without Pakistan’s permission, be legal under U.S. constitutional law?

As Professor Ramsey points out, this would probably be authorized by the September 11 Resolution, which allows military force against Al Qaeda. But if the September 11 Resolution did not apply for some reason (e.g. it is repealed), he suggests no responsive attack is permitted without Pakistan’s permission. (And I assume Professor Kent’s view is that even with Pakistan’s permission, no responsive attack is legal.)

Why would Pakistan’s permission make a difference though? Is it because of the President’s constitutional duty to “Take Care” of the “Laws”, which includes international law? But the customary international law governing the use of military force is notoriously murky and it seems like the President could claim that international law allows this sort of attack as preemptive self-defense, even without Pakistan’s permission. We can stretch the hypo beyond Pakistan and imagine a President Obama invading Darfur to stop the genocide, etc. etc. Would the President’s claim that stopping genocide allows the use of military force and the violation of another country sovereignty be acceptable?

Based on Professor Ramsey’s analysis in Chapter 18 of his book, the President cannot violate international law, but he is given wide discretion to interpret it. And courts are bound, in his view, to defer to executive interpretations absent contrary action by Congress. This seems right to me, but I wonder whether this leaves any room for judicial interpretations of international law in defiance of the executive’s interpretations?

http://opiniojuris.org/2007/08/01/opinio-juris-symposium-can-president-obama-attack-pakistan/

4 Responses

  1. At the risk of being dismissed and while we might engage in word play under the Charter regarding the renunciation of use of force language, the short answer is that this would be an illegal war of aggression on the basis of two assumptions:

    1) If we assume that the US use of military force in Pakistan is in the absence of UN Sec Council authorization and

    2) If all we have is the state of play right now. I would find it an enormous stretch to say there was an armed attack of the kind permitting an Article 51 self-defense response. I think it is hard to say that a rule of preemptive self-defense is crystalized in customary international law at this point so I would not try to hang my hat on that idea either. I presume no treaty mechanisms is present that can be invoked.

    Ergo, this military action would be aggressive war and would be illegal for the United States to do.

    If the United States is undertaking an illegal war of aggression, the Constitution as internal law would not be a means to extract the US from the international law obligation to not engage in wars of aggression.

    The war would be illegal whatever the assertion of internal law the President did.

    The President starting the war may assert the power to so do under any statute (say the law on jaywalking to make an absurd argument) or the Constitution to send the nation into this war, but that internal law can not remove the illegal nature of the war under our international law obligations.

    It is likely regrettable that our internal mechanisms are incapable of addressing such illegality as the Supreme Court would dodge it as a political question and the Congress I presume would not defund the war nor institute impeachment proceedings against the President. This would not however be the first time the sovereign of a country would have got a country into a mess through an illegal war of aggression.

    Other nations reactions might be through resistance (a la Iraq) or acquiescence (a la Kosovo) and on that would turn the question of whether the act would be given legitimacy at some point. But the illegality of the military action would appear crystal clear based on the two assumptions I made above which I thought were implicit in the hypo.

    I think there are reasons from history that make these rules develop the way that they do. The rules are made to make the possibility to make a legal war much harder than many leaders would desire no doubt. Thank god!

    Darfur would be the same.

    As to the President’s interpretation and the level of deference at least as regards international law there are means that are exterior to the President’s artful lawyers to analyze the international law obligations. The President’s artful lawyers may be able to argue that black is white and night is day, but just because it is said does not make it so. Persons with less of an interest at enabling would I suspect think that this was aggression also.

    That may be why the heads in the Pentagon resisted going ahead in Waziristan without Pakistani government approval when the footprint moved to something much bigger than an intelligence operation.

    As a former British Foreign Office Legal Counsel said at the ASIL meeting the lawyer might ask “and once you are in Waziristan what is your plan to get out again? How long do we stay there? until the Al-Qaeda are all decimated? What next? What do you do with Waziristan?” It is the consequence of the act and the follow on consequences that make the idea much more difficult to do.

    Best,

    Ben

  2. I don’t think it is a question worth too much time, as President Obama would of course have the option of assembling Casus Belli well in advance.

    A clever executive could simply use one of the frequent Taliban incursions from Pakistan as justification for a quick counterstrike. Or, simply have the government of Pakistan declare the effected areas in insurrection, and have US forces go in to “stabilize” the situation.

    Really, so long as Musharraf is on board, it seems like a trivial matter to insert US forces as per his invitation. If he doesn’t wish to cooperate, the US has a vast selection of ways to twist his arm.

    I express a considerable amount of cynicism about the importance of the rule of law in this situation. If Clinton can suffer virtually no repercussions from blowing up a factory in Sudan, I don’t see Obama being dragged before the ICC.


  3. A clever executive could simply use one of the frequent Taliban incursions from Pakistan as justification for a quick counterstrike. Or, simply have the government of Pakistan declare the effected areas in insurrection, and have US forces go in to “stabilize” the situation.

    You are getting at two things I think – the footprint of the operation and whether there is consent of the sovereign for the US to come into its territory. I was getting to the footprint issue when I wrote “That may be why the heads in the Pentagon resisted going ahead in Waziristan without Pakistani government approval when the footprint moved to something much bigger than an intelligence operation.” To big a footprint looks like armed conflict and aggressive war. A small footprint might be a border incident in response to the Taliban type border crossing stuff that would not rise to the level of being armed conflict.

    With consent of the sovereign of Pakistan, the aggressive war discussion becomes a sidepoint as the incursion is agreed to. I was understanding Obama as proposing unilateral action without authorization from Pakistan.

    Hope that clarifies my comments.

    Best,

    Ben

  4. I was understanding Obama as proposing unilateral action without authorization from Pakistan.

    In that case, I doubt that he would actually do what he has threatened. There’s simply no real reason too when the same ends can be reached legally.

    Campaign hyperbole, if you will.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.