Secretary of Defense Leon Panetta’s comments earlier this week were a very revealing insight into the Obama administration’s mindset on the legal regime governing America’s decisions to use force. During the hearing, Secretary Panetta repeatedly stated that the U.S. needed “permission” from international bodies and organizations as a legal basis for using military force, citing NATO support or a United Nations Security Council resolution as an example of such “legal basis” for action.
Senator Jeff Sessions sought to clarify the Secretary’s position asking, before the administration sought to get congressional approval or inform congress about the action “you would seek permission of the international authorities?” This led to a stunning exchange:
Panetta: If we are working with an international coalition and we’re working with NATO we would want to be able to get appropriate permissions in order to be able to do that. That’s something that all of these countries would want to have – some kind of legal basis on which to act.
Sessions: What kind of legal basis are you looking for? What entity?
Panetta: Well, obviously, if NATO made the decision to go in, that would be one. If we developed an international coalition beyond NATO then obviously some kind of U.N. Security Resolution would be the basis for that.
Sessions: So you are saying NATO would give you a legal basis and an ad hoc coalition of nations would provide a legal basis?
Panetta: If we were able to put together a coalition and were able to move together then obviously we would seek whatever legal basis we would need in order to make that justified. You can’t just pull them all together in a combat operation without getting the legal basis on which to act.
Sessions: Well who are you asking for the legal basis from?
Panetta: If the U.N. passed a Security Resolution as it did with Libya, we would do that. If NATO came together as it did in Bosnia, we would rely on that, so we have options here if we want to build the kind of international approach for dealing with the situation.
Sessions: I’m all for having international support but I’m really baffled by the idea that somehow an international assembly provides a legal basis for the United States Military to be deployed in combat. I don’t believe it’s close to being correct. They provide no legal authority. The only legal authority that is required to deploy the United States Military is the Congress and the President and the law and the Constitution.
Panetta: Let me for the record be clear again Senator so there is no misunderstanding. When it comes to the national defense of this country, the President of the United States has the authority under the Constitution to act to defend this country and we will. If it comes to an operation where we are trying to build a coalition of Nations to work together to go in and operate as we did in Libya or Bosnia, for that matter Afghanistan, we want to do it with permissions either by NATO or by the international community.
The fact that Secretary Panetta finally stated that that the President could and would take military action to defend the U.S. is welcome, but the fact that he had to be coaxed into making that clarification is alarming.
He never, however, stopped using the “permission” line nor did he back away from the assertion that the U.S. and other nations needed international permission or a formal approval from an international body like the U.N. Security Council or NATO to provide legitimate legal basis for military action. He never attempted to couch that position in a political context or explain that such resolutions make constructing coalitions easier or bolster America’s legal case. He unmistakably says that such “permissions” are the legal basis for action and, by implication, asserts that action without such permissions would be illegal.
This is profoundly disturbing.
Presumably, Secretary Panetta’s appeal to the UN Security Council as a basis for legal permission is based on the U.N. Charter, which invests that body with preeminent authority in addressing threats to international peace and security. Although nice in theory, the UN Security Council has proven to be spectacularly feckless in reality, frequently paralyzed by the divergent interests of its members. The military operations that gain rapid, unequivocal support in the Security Council are rare and nearly always involve situations where the interests of the major powers are minimal. Serious threats to international peace and security are generally stonewalled because of the interests of the major powers.
Under Secretary Panetta’s theory, if the UN Security Council is not able or likely to act, then the U.S. should turn to a less than universal body, such as NATO. He cites the NATO operation in 1999 against Yugoslavia to protect civilians in Kosovo as an example.
But what if NATO had not been willing to act? Could any international organization or group of nations suffice to provide legal permission? Why would that group of nations be superior to that of another group or even one nation? Does a Russian veto in the Security Council make a military operation invalid or illegal? Does French opposition to a NATO operation make a military operation by NATO members outside of NATO approval illegitimate? Are legal and legitimate synonymous?
In other words, does the simple arithmetic of 1+Nations=legal basis/legitimacy apply to international action? Of course not.
Getting “permission” from the U.N. Security Council or NATO or any other grouping of nations doesn’t change the nature of the mission. Nor does a lack of such permission necessarily invalidate its justification or legitimacy. This is one of the reasons that the U.N. Charter itself states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”
The founding governments of the U.N. understood that no reasonable nation would stand to cede determination of what constitutes an act of self-defense, which in the modern context contemplates preemptive action, to any international body or foreign nation. That determination must be based on the decision of a sovereign government in analyzing the situation, assessing the relatively benefits and ramifications of military action, and going through the proper processes for approving whatever action is undertaken. As Senator Sessions correctly points out, in the U.S. that process is vested in the Presidency and the Congress, not an international organization.
The potential objections, resistance, or approval of other nations is built into that process. Getting international support for the operation is often very useful, but it should never be dispositive.
Brett D. Schaefer is the Jay Kingham fellow in International Regulatory Affairs at The Heritage Foundation. Schaefer analyzes a broad range of foreign policy issues, focusing primarily on international organizations and sub-Saharan Africa.
SOURCE: Heritage Foundation