U.S. presidents from both parties have long held that they are free from international constraints to use force in defense of American interests.
The United States and its allies have frequently undertaken military actions without Security Council approval. In 1999, the Clinton administration led a NATO air war in Kosovo. About four years later, the George W. Bush administration invaded Iraq without an explicit authorization from the U.N. Security Council.
The Obama administration also has asserted the right to act without the council’s endorsement. “When U.S. national security is threatened and the Security Council is unwilling to authorize the use of force but the president believes it is judicious to do so, of course that is something that he should be free to do,” Samantha Power, the U.S. ambassador to the United Nations, said last month at her confirmation hearing.
But U.S. government lawyers have been less willing to claim a special legal right to act. In Kosovo, Clinton-era policymakers were never able to prevail upon the State Department’s lawyers to characterize the NATO action as legal. Instead, the lawyers agreed to call it legitimate. In Iraq, the Bush administration argued that its legal authority derived from a 12-year-old resolution that ended the Persian Gulf War, a contention that was hotly contested by then-U.N. Secretary General Kofi Annan, who termed the Iraq war illegal.
In recent days, senior Obama administration officials have privately invoked the Kosovo intervention as a possible precedent. But legal scholars say that could prove problematic, because the United States has never released a legal defense of its decision to attack Serbia to halt mass abuses against ethnic Albanians in Kosovo. In authorizing the use of force, the Clinton administration argued that NATO’s military intervention in Kosovo should not constitute a precedent.
“It doesn’t provide a legal basis” for acting, said John Bellinger III, who served as lawyer for the State Department and the National Security Council during Bush’s second term. “Lawyers in both Republican and Democratic administrations have been concerned that a doctrine of humanitarian intervention could set a bad precedent that would be more likely to be used by other countries like Russia and China or some African countries,” which could invoke the principle of “humanitarian intervention” in attacking their enemies.
Both the Kosovo operation and the 2011 air assault in Libya, in which the United States participated, were launched with consensus within NATO. The alliance’s ambassadors have met to discuss the Syria situation. But the possibility of NATO intervention, which must begin with a request from a member nation under threat, has not yet been raised.
DeYoung reported from Washington.