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Ending the Forever War: One Year After President Obama’s NDU Speech

Published on May 24, 2014        Author: 

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Originally published on JustSecurity.org on May 23, 2014.

May 23, 2014 marked the one-year anniversary of President Obama’s important speech at the National Defense University (NDU) setting forth his proposed framework for post-9/11 counterterrorism strategy.  The President’s historic move in that speech was to call for the eventual repeal of the 2001 Authorization for the Use of Military Force (AUMF) and the end of what I had called at the Oxford Union the “Forever War.” The President cogently summarized why we should reject indefinite war in favor of an “exit strategy” to bring this protracted conflict with Al Qaeda, like all wars, to an end.  Last October, I argued that despite public skepticism, without fanfare, President Obama has made slow but steady progress toward achieving three key elements of his effort to end the Forever War: (1) disengaging from Afghanistan; (2) closing Guantanamo; and (3) disciplining drones.

The latest moment to assess progress in ending the Forever War came on May 21 this year, when as others have noted (see Goldsmith posts here and here; Lederman post here; Human Rights First video here), the Senate Foreign Relations Committee heard testimony from four current and past government lawyers regarding the authorization for use of military force after Iraq and Afghanistan (video): Mary McLeod, Principal Deputy Legal Adviser, U.S. Department of State; Stephen Preston, General Counsel, U.S. Department of Defense; myself (Harold Hongju Koh); and Michael B. Mukasey, Debevoise & Plimpton, former U.S. Attorney General. Putting aside some aggressive questioning, there was far more agreement among all participants than may come through from reading the statements or watching the hearing. I would take away five basic messages.

First, we should keep trying to end the Forever War. Our eventual goal should be to repeal the AUMF. Almost thirteen years after 9/11, it is increasingly problematic to rely on the 2001 AUMF to conduct all of America’s counterterrorism operations.  We should not use a broadly worded 13-year old AUMF text drafted for a prior situation to conduct perpetual armed conflict against a mutating group of terrorist networks.

Second, at the right moment, AUMF repeal would leave no legal gaps. If Al Qaeda can be defeated on the ground, there will come a time when the President will no longer need AUMF authority, because the remnants of Al Qaeda will be better represented by the idea of a “continuing and imminent threat” to which the United States could respond with self-defense authorities than an organized armed group engaged in ongoing conflict of a particular intensity and duration. Only the latter characterization warrants treating the members of Al Qaeda as continual belligerent combatants with whom we remain in daily war. The President would then not need the current breadth of AUMF authority to deal with that group of individuals, because they can be dealt with through other law, particularly as threats who can be addressed by the domestic and international law of self-defense, not as an organized armed group with whom we remain in daily struggle. Read the rest of this entry…

 

Syria and the Law of Humanitarian Intervention (Part III – A Reply)

Published on October 12, 2013        Author: 

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Editor’s Note: This piece was originally published on Just Security.

My recent two-part essay on Syria, posted on this blog, made both a policy claim and a legal claim. My policy claim was that despite undeniable political miscues, President Obama’s recent threat of force catalyzed a long-stalemated diplomatic process for securing Syrian chemical weapons. The Russians finally joined a landmark Security Council resolution to remove chemical weapons from Syria, but a long road still lies ahead. Maintaining a continued threat of force, I argued, remains critical if that diplomatic process is to progress. My legal point was that Obama’s threat to attack the Syria’s chemical weapons program, which catalyzed stalled diplomacy, was neither illegal under U.S. law– even without congressional authorization– nor illegal under international law– even without U.N. Security Council approval. But to the extent that Obama remains in a legal gray zone, we should treat this as a lawmaking moment. The President’s lawyers should now clarify –as they pointedly did not do in Kosovo–when and under what circumstances the U.S. would consider it lawful to use force for humanitarian purposes outside the Security Council framework.

Focusing narrowly on the international legal aspect of my argument, several thoughtful commentators—including Professors David KayeKevin Jon Heller and Carsten Stahn —have now repeated the absolutist view that absent a self-defense rationale, Article 2(4) of the U.N. Charter bars use of force outside the Security Council. They essentially suggest that the original intent of the framers and the text of Article 2(4) permit no other reading. Kaye acknowledges,  “[a] legal system in which the veto power of five states is at the center may be out of date, but until the time of mutual restraint and good faith, or until the United States and others offer outright reform, this legal system at the heart of the Charter is unlikely to change.” So we may not like Article’s 2(4) absolute bar against the use of force outside the Security Council framework, but a rule is a rule is a rule. The U.S. has no lawful option but to accept that rule, unless we can change the Security Council, which of course will not likely happen for many, many years.  The policy implications of this approach are clear: should Syria fail to comply with the latest Security Council resolution, it would still be illegal for Obama to keep a threat of force on the table. This would be true even if that threat finally got multilateral diplomacy in Syria going, and even if it seems critical to keeping the diplomatic process moving in the weeks ahead. Read the rest of this entry…

 

Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

Published on October 4, 2013        Author: 

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Editor’s Note: This piece was originally published on Just Security.

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law.  This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action.  But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons?  No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.”  The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option.  But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal.  But is that really what international law requires? Read the rest of this entry…

 

Syria and the Law of Humanitarian Intervention (Part I: Political Miscues and U.S. Law)

Published on September 26, 2013        Author: 

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50Harold Hongju Koh is Sterling Professor of International Law at Yale Law School and was Legal Adviser of the U.S. Department of State from 2009 to 2013.

Editor’s Note: This piece was originally published on Just Security, a new blog with a fantastic team of editors and contributors who will be well known to our readers. Although the blog claims to be dedicated to US national security law and policy, the first week of posting suggests it will be an important forum for discussion of international law issues. We urge you to check it out!

Crises are lived forward but understood backwards.  While it is still too early to know how the Syria crisis of 2013 will end, we can start evaluating what precedents of law and policy it should generate, properly understood.  Notwithstanding a welter of political miscues, when the dust settles, history might well remember the episode as “Obama’s Harfleur:” where an announced threat of potentially illegal force catalyzed a better nonviolent result, here by reinvigorating multilateral diplomacy abroad and much-needed public debate at home.

To explain why, Part I of this – my first for Just Security and EJIL:Talk! — will sort out first, what went wrong; and second, why the proposed military action was lawful under domestic law. Part II will discuss third, whether the proposed military action was lawful under international law; and fourth, what might still go right if we, as constructive observers, can help get it there.

1.What went wrong:  To read recent blog commentary, one might think that the villain of this piece is Barack Obama, not Assad or Putin.  But from the start, the President has been the quintessential reluctant warrior, who for years tried to avoid military intervention in Syria, and just this May, gave a major speech at NDU reaffirming that he wants to end wars in Iraq, Afghanistan, and against Al Qaeda. Just as undeniably, Assad is a war criminal who has slaughtered his own people for months and lied about it–with and without chemical weapons –while Putin has given him shameless cover with four vetoes, lies, and sickening rhetoric. Putin’s hypocrisy culminated in his recent “pro-international law” op-ed in the New York Times, which pretended that despite condoning civilian slaughter for many months, Russia was not trying to protect the Syrian government, and that the Syrian opposition, not Assad, had deployed chemical weapons. Read the rest of this entry…

Filed under: Syria, Use of Force