The Article II “Humanitarian Intervention” War Power

by Julian Ku

Assuming there really was authorization from the Iraqi government, I don’t have any doubt that the U.S. has the right under the international law to launch new airstrikes in Iraq.  But the domestic authority for the U.S. airstrikes is much more murky, and, as Ilya Somin argues here, Congress might need to authorize continuing military action.

Jack Goldsmith goes through the domestic legal bases for action here: the 2001 AUMF against Al Qaeda, the 2002 AUMF to conduct hostilities in Iraq, and the President’s inherent power under Article II of the U.S. Constitution. I agree with Jack that, for political reasons, the Administration seems to be relying on the President’s inherent powers under Article II of the Constitution rather than on either of the statutory authorizations passed by Congress.  But even under Article II, Presidents have usually cited rationales such as the need to act quickly to protect U.S. citizens and their property or to prevent an imminent attack on the U.S or a treaty ally, or a threat to U.S. national security.

But President Obama does not cite any of these reasons in his explanation of why he is authorizing airstrikes to prevent the deaths of the Iraqi civilians trapped in a mountain region.  Instead, he cited the need to “prevent a potential act of genocide” in his remarks yesterday. So it turns out that Article II also can be invoked for a purely humanitarian intervention where no U.S. citizens or property are threatened, and the national security interest is not cited.  While I do think there is a very plausible national security rationale for these airstrikes, it is worth noting that President Obama does not cite national security directly in his remarks.  When one looks back at his similar rationale for Article II-based airstrikes in Libya, I think one of President Obama’s legacies will be a new reading of Article II that will allow future presidents to use military force for humanitarian reasons without the authorization of Congress.

http://opiniojuris.org/2014/08/08/article-ii-humanitarian-intervention-war-power/

6 Responses

  1. Disagree, Julian. President’s comments (and those of other officials) returned to theme that action being undertaken to protect US lives in Erbil.

    While humanitarian motives might underpin US action, White House has thus far been careful to not let it do the legal work to justify President’s action.

  2. Julian: the President has clear constitutionally-based authority to engage in lawful measures of self-defense (if an armed attack is underway against U.S. nationals abroad) and/or collective self-defense with the consent of the government of Iraq. See, e.g., http://ssrn.com/abstract=2061835
    The “genocide” Obama refers to might be related to a claim of collective self-defense.
    Moreover, Iraq can engage in self-defense against a non-state actor in this circ., and consent to collective self-defense, even if the armed attacks occur partly within Iraqi territory. See, e.g., http://ssrn.com/abstract=2459649
    Another issue involves classification of the armed conflict within Iraq and parts of Syria.

  3. Obama’s more recent statement that this will be a “long-term project” does not fit well with a self-defense justification. Therefore, collective self-defense with the consent of the Iraqi Govt. is a better claim.

  4. I may be deformed by being a foreign service brat, but I would like to ask why the US has not simply evacuated the Irbil consulate. If American diplomats are in sufficient danger that we are using military options, then it would seem they should be evacuated and the consulate closed pending the situation stabilizing.

    Even with the consent of Iraq and Article 51 armed attack I have missed the notification to the UN Security Council. Then, I feel I am the only person who remembers Curveball and the impending rain of WMD’s and Powell at the UN. Where is the UN Security Council deliberation on this threat to the peace and authorization of this action. I have been in meetings and missed this part of the decelopments.

    I can understand the food and water aid to the 40k people in the mountains under the rule of 3’s for survival described in an earlier post.

    But, beyond that, my question is where is the UN Security Council authorization. I do not see the five permanent members being an impediment as ISIS has been fighting Assad in Syria so I expect Russia could be on board, but the Umraine situation may be complicating the diplomacy.

    Just say in’

  5. ISIS is said to be getting Sunni recruits. This is looking more like a Sunni revolutionary movement that is taking the most brutal way to regain control of Iraq. This reminds me of Saddam’s rise in the 1960’s. It is the politics of fear and intimidation in its most brutal form.

    Meet the new boss, same as the old boss.

  6. Ben: sometimes a state will require them to stay so that the state has a claim of “self-defense” re: defense of nationals.

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