Thursday, March 31, 2011

The Muted Role of International Law in the Obama Doctrine

By Mike Dorf

For better or worse, President Obama's articulation of his reasons for committing U.S. air power to the civilian protection mission in Libya is already coming to be known as the "Obama Doctrine."  Rather than try to sum it up myself, I'll quote the key passage from Monday night's speech, in which the President explained the factors that led him to the decision he took, which tacitly includes reasons for why he has not authorized similar action in other countries where civilians are under threat:
In this particular country – Libya; at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Gaddafi's forces in their tracks without putting American troops on the ground.
Let's put aside the question of whether the speech states persuasive grounds for intervening in Libya but not elsewhere and to the extent of protecting civilians but not aiming for regime change.  Here I want to note what I consider a serious understatement: the existence of what the President calls "an international mandate for action" is listed as only one, not necessarily decisive, factor.  Yet absent such an international mandate--indeed, absent a particular kind of international mandate, namely a UN Security Council Resolution authorizing force--the use of armed force other than in national or collective self-defense violates international law.  Lacking anything resembling a mutual defense treaty with the People of Libya, American airstrikes in Libya are legal only because the Security Council authorized them.

To be sure, President Obama's speech repeatedly invokes the virtues of multilateralism, but these are portrayed as pragmatic or tactical virtues: The U.S., he tells us, will act more effectively in pursuit of our interests and values if we act with the blessing of and in cooperation with the rest of the world, rather than in the teeth of concerted opposition.  That may well be, but one might think that such pragmatic and tactical considerations only figure into the decision whether to intervene if and only if intervention would be lawful.

Was the failure to place much weight on the international law status of humanitarian intervention accidental?  That seems unlikely.  The President himself is a very well-trained lawyer.  Samantha Power, who reportedly played an important internal role in urging intervention, is a well-regarded international lawyer.  Secretary of State Clinton is a highly skilled lawyer.  And her chief legal advisor, Harold Koh, is a renowned international law scholar.

So why didn't the speech place more--indeed, any--emphasis on international legality as a pre-condition for humanitarian intervention?  I'll float four hypotheses.

1) This was a speech for the general public.  Explaining what makes an intervention legal under the U.N. Charter would have been a bit too technical.  Obama's reference to the Security Council's "writ" was as close as he could come without losing his audience.

2) The Obama crowd actually think that the use of armed force to avert genocide or on other humanitarian grounds is legal, even absent Security Council authorization, as a matter of customary international law.  I find this plausible as an account of what Obama's advisers were thinking but that I find the underlying view implausible.  International practice is not sufficiently uniform in support of such a norm for it to count as customary international law, at least not yet.

3) The Obama crowd recognize that there really isn't (yet) a customary international law norm authorizing armed intervention to avert humanitarian disasters absent Security Council authorization, but they would very much like for there to be one, and in the end, they think that the moral case for such interventions is strong enough to overcome whatever normative force international law has.  In other words, they think that going to war in violation of international law is sometimes the right thing to do.  I have considerable sympathy for this view, but I think that the threshold needs to be very high, as with civil disobedience in other contexts.  The fact that some act violates the law--whether domestic or international--counts as a strong reason not to engage in that act, but even that strong reason can be outweighed by even stronger reasons in extreme cases.

4) The Obama crowd think that legality under international law is crucial but here, as in so many other contexts, liberals accept conservatives' framing of the issue.  And for the conservatives, international law either doesn't exist or is a tool of some combination of our effete (read "French") allies and our enemies.  Thus, they regard international law as so sullied that it cannot even be invoked directly.

These hypotheses are not mutually exclusive, of course.  I hope that some combination of explanations 1 through 3 are at work, but I fear there is a good deal of 4.