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Atrocity Crimes, the Responsibility to Protect, and the U.S. Constitution

June 28, 2018

By: Frank Broomell L’19

This piece originally appears in the 2018 Global Affairs Review.

Editor’s note: All views are the author’s own, and do not reflect the views of his current or previous employers or the U.S. government.

Arguing that there were significant international legal and human rights norms at stake, President Barack Obama committed U.S. forces to overthrowing the government of Omar Qadaffi in 2011 and President Donald Trump ordered military strikes against the government of Bashar Al-Assad in 2017. President Obama stated that failure to act in Libya “would have been a betrayal of who we are” as a nation and President Trump argued that it was vital to prevent and deter the use of chemical weapons in Syria. Acting quickly, therefore, was necessary to prevent a slaughter in Benghazi and to stop the use of chemical weapons against opposition-controlled areas in Syria. Yet these actions, taken without Congressional authorization, violated the U.S. Constitution—highlighting restrictions that should be applied to the U.S.’s ability to intervene militarily to prevent atrocity crimes.

The U.S. Constitution is known for its separation of powers domestically between the President, Congress, and the courts. This separation is delineated in foreign policy as well, with the President placed in charge of the American military as the Commander-in-Chief while Congress has the power to declare war and issue letters of marque and reprisal. The Constitution vested in Congress the authority to choose where to commit American military force and against which enemies—and not just in full scale wars like World War I or II. Early Supreme Court decisions recognized Congress’ ability to authorize limited military engagements, such as the Quasi War against France. The Court also ruled that the President was limited in using military action to only that level of force set out by Congress. In Little v. Barreme, a Supreme Court case from 1804, the Court ruled that the President could not act without “any special authority” from Congress.

The Founding Fathers themselves emphasized the importance of the President seeking authorization to use force from Congress. James Madison wrote, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.”[1] Presidents George Washington, John Adams, and Thomas Jefferson all sought Congressional authorizations for the use of offensive military force.[2] While the judiciary has been hesitant to uphold the constitutional separation of powers in recent decades, early cases like Barreme and the words and actions of the men who founded the country make it clear that the President must have approval from Congress before committing the military to offensive operations abroad.

This approval was lacking in both Syria and Libya and authorization to prevent atrocity crimes will generally be difficult to achieve. When President Obama sought Congressional approval for strikes in Syria in 2013, the proposal was met with immediate skepticism by both Democrats and Republicans. While an authorization bill passed out of committee in the Senate, it faced long odds on the Senate floor and never received a vote. During debates over the use of force in Libya in 2011, the House of Representatives rejected proposals to authorize the military action while passing resolutions expressing disapproval of the operations. With American forces fighting in Afghanistan continuously since 2001 and almost continuously in Iraq since 2003, Congress is likely hesitant to commit to additional foreign entanglements. Many members of Congress also likely look at the contentious votes for the Iraq War in 2002 and would prefer not to tie their votes to overseas military operations. At least one Senator, Ed Markey (D-Mass.), noted that he was still haunted by his 2002 vote.

Restrictions on the President’s ability to intervene to prevent atrocity crimes will be seen by some as unthinkable because it could mean not stopping truly abhorrent actions, but it also provides an opportunity. Military interventions have often led to vast negative unforeseen consequences. The removal of Saddam Hussein sparked a civil war in Iraq that ultimately created fertile ground for ISIL and helped fuel the civil war in Syria. The overthrow of Qadaffi created instability in Libya, Mali, and other surrounding countries. Even those who call for action today in Syria have failed to outline a clear strategy forward to end the civil war. When you have a hammer, every problem looks like a nail.

By placing restrictions on the President’s “hammer,” the President will have to use other tools to find a solution. Focused and comprehensive diplomatic efforts can bring significant pressure on the parties involved. Targeted diplomatic intervention ended election violence in Kenya following elections in December 2007. An international sanctions regime brought Iran to the negotiating table and led to concessions over their nuclear program. Once hostilities are initiated, the enemy gets a vote in the result. By utilizing every tool available, the President and the international community can engage in early warning and early action responses to get ahead of the curve and drive towards a peaceful solution.

This will require Congress to reassert its institutional role. Upholding the separation of powers to slow down the President will not just benefit the U.S. constitutional system, but it will also make atrocity crime prevention more comprehensive by moving beyond solely viewing atrocity prevention through a framework of military force and forcing a broader strategy.

[1] Stephen M. Griffin, Long Wars and the Constitution 21 (2013) (quoting 15 The Papers of James Madison, 24 March 1793—20 April 1795 71 (Robert A. Rutland et al. eds., 1985)).

[2] Michael D. Ramsey, Constitutional War Initiation and the Obama Presidency, 110 Am. J. Int’l L. 701, 703 (2016).

Frank Broomell was a student in Ivan Simonovic’s Fall 2017 Bok seminar at Penn Law, which explored a framework of analysis for atrocity crimes.