More on the Troubling, But Emerging Article II Humanitarian Intervention Power

by Julian Ku

Now that President Obama and his advisors have offered some more detail on the domestic legal basis for U.S. military’s action in Iraq, I think it is even more clear now than when I first posted on this subject that the administration is relying on some sort of Article II Commander-In-Chief power to “prevent an act of genocide” against a Iraqi minority group.  In reading the administration briefing, it is clear that the need to protect U.S. persons and property is a separate justification for a separate set of air strikes.  I don’t think the Administration is arguing that protecting U.S. life and property requires striking at the ISIS forces threatening the trapped Iraqi civilians.

Both Marty Lederman and Jack Goldsmith have also picked up on this point, with Goldsmith suggesting this would be a troubling extension of the President’s already expansive Article II Commander-in-Chief power. Ilya Somin dismisses this whole approach as going against the text of the Constitution.   I agree with Ilya that this approach is hard to square with either the text or even the history of Article II’s drafting and subsequent interpretations. And I also agree with Goldsmith that this expansion is troubling. But I also think that the President’s invocation of the need to “prevent an act of genocide” as the legal basis for air strikes, along with apparent acquiescence by Congress (so far), sets an important legal precedent for future U.S. presidents.

4 Responses

  1. The US is a SIGNATOR to the Genocide Convention so I see the Article II as well as Treaty Clause, and Supremacy Clause implicated here. The War Powers allows the 60 days and then Congress never votes to block the President beyond that. So I do not see this as an expansion but more a question of whether this fits into the UN Charter in the absence of a Security Council resolution and – as far as I know – no Security Council notification. Iraqi consent does not prevail over Charter obligations.

    My central question is again what is the Security Council saying or doing?

  2. It would fit with the U.N. Charter if the U.S. was engaged in collective self-defense with the consent of the Iraqi government. Self-defense and collective self-defense per a multilateral treaty does fit within the President’s constitutionally-based duty faithfully to execute the Laws. See
    A question would also be whether the President is claiming presidential power to faithfully execute the Genocide Convention and relevant CIL.

  3. I don’t think so Jordan. Assuming the right to self-defence seems very far-fetched in this case. Also, no state has the power to unilaterally enforce the GC and CIL in another state. See for an analysis on these arguments (humanitarian intervention, r2p, intervention on invitation) the thorough analysis here

  4. “P”: there may be a problem here re: words used. In a sense, every state that is involved in an armed conflict in another state has a duty under the GCs (if a party thereto) and relevant CIL to “enforce” their obligations under the GCs and CIL.
    Regarding self-defense, I am assuming that Iraq has a right to engage in otherwise lawful measures of self-defense against non-state armed attackers such as ISIS. If so, Iraq can consent to otherwise lawful measures of collective self-defense. And the main focus of Julian’s posts here are on the U.S. constitutional question concerning presidential authority to faithfull execute the Laws and as commander in chief.

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