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

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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 Kaye acknowledges,  “[a] legal system in which the veto power of five states is at the center may be out of date, but until the time of mutual restraint and good faith, or until the United States and others offer outright reform, this legal system at the heart of the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.

My previous posts explain why, as a matter of law, I think this reading of Article 2(4) is too simplistic. The “per se illegal” reading relies on interpretive techniques of originalism and textualism in ways that many of us would challenge if say, Robert Bork or Antonin Scalia were applying them to constitutional law. As my prior posts argued, the “territorial sovereignty rule” is not nearly so black and white as the absolutists claim, because textual ambiguity in Article 2(4), the broader structural purposes of the U.N. Charter, and some recent significant state practice give far more legal play in the joints than these commentators concede.  Like other originalist/textualist interpretations, the absolutist position does not acknowledge that the U.N. has multiple purposes –including protecting human rights, promoting regional security, and ending the scourge of war—instead flattening those purposes to a single goal: protecting sovereignty. Curiously, Kaye claims — twenty years after Lou Henkin wrote “Down with the S word”– that an absolute protection of territorial sovereignty from the threat or use of force “was in fact an end in itself.” Really? Even if P5 members or their client states commit genocide against their own people?

It was precisely to break the persistent Russian veto that in the past UN members have acknowledged that the Security Council’s monopoly on the use of force is not exclusive.  They have claimed the right to take military action outside the Security Council framework by adopting the Uniting for Peace Resolution or—as in the Cuban Missile Crisis– invoking the regional organizations language in Chapter VIII of the Charter. And one reason that nations may have more liberally invoked the self-defense rationale in such humanitarian crises as India-Pakistan and Tanzania-Uganda is because states have not worked hard enough to state a legal principle governing humanitarian use of force that better fits those pressing factual circumstances.  Significantly, at the time of the Cuban Missile Crisis, many international lawyers claimed the U.S. position was flatly illegal. Yet fifty years later, it is widely regarded as a decisionmaking case study in creative lawmaking.

The most recent watershed moment was Kosovo, when fourteen years ago, nineteen NATO countries used force for humanitarian purposes outside the Security Council framework for seventy-eight days.  Kaye gives short shrift to this precedent saying, in essence, that it stands for nothing, not even as a form of state practice followed out of a sense of legal obligation.  He claims that the British stood alone in stating a legal view that intervention outside the Security Council framework could be lawful, even though seventeen other NATO members plainly had to satisfy themselves of the legality or propriety of military intervention before they could join the collective operation.  Kaye thinks the State Department lawyers in the Legal Adviser’s Office correctly declined to state a legal rationale defending Kosovo operation, instead “develop[ing] the famous ‘factors’ justifying the use of force, [even though] these [factors] were clearly related to policy, not law.” But elsewhere he suggests that it is not up to government legal advisers to make “policymaker’s calls.” If that is so, in Kosovo, what business did the Legal Adviser’s Office have making the policy call to list “factors,” rather than issuing the clarifying legal opinion that the situation deserved?

Stahn attacks a strawman when he suggests that I am advocating using force in lieu of other available methods. In fact, as my proposed test clearly shows, I argue only that force may be legally available if all nonviolent methods have been exhausted. Both Heller and Stahn similarly claim that Syria is not really about humanitarian intervention because a limited military strike on Assad’s chemical weapons would aim not at ending the humanitarian crisis but at “sanctioning an unlawful means of combat, i.e. use of chemical weapons.”  But this misses the point: the real issue is whether the threat of force could catalyze and sustain a longer-term diplomatic process that could not just deter a repeat use of chemical weapons, but also achieve such broader humanitarian ends as a cease-fire that could lead to a meaningful peace process.  Curiously, Stahn focuses on U.N. Security Council Resolution 2118 as “a step in the right direction,” without ever asking how that resolution finally came about, after months of Russian resistance. “Bringing non-military options back to the forefront might turn Syria from a potentially ‘law-breaking moment’ into a ‘lawmaking’ moment,” he says. But why not acknowledge that it was Obama’s threat of force that finally made possible those “non-military options” and this lawmaking moment?

Significantly, none of these commentators mention that if Obama had followed their counsel, Assad would still be free to use chemical weapons with impunity, while Obama’s willingness to threaten limited force outside the Security Council framework finally pushed Russia to allow the U.N. system to function as it was designed.  Nor do they deny that if they are right, President Obama still could not lawfully threaten force –even in the face of Assad’s renewed use of chemical weapons and further Russian veto, because “modern international law requires accepting the repeated, indefinite, deliberate slaughter of thousands of civilians with a per se illegal weapon of war.”  “This is a conundrum,” Kaye concedes, “ but this is a tension built into the Charter, a document that many would say no longer meets the needs of contemporary global problems. But it remains the law.”

But why should the per se rule “remain the law,” particularly if it is so manifestly outmoded, and tolerant of gross human rights abuse? Whether or not Clinton’s lawyers were correct fourteen years ago not to follow the UK and state a legal rationale justifying Kosovo, why is such silence warranted now?  Because, Stahn says, legal reform was tried and failed before: “The consolidation of a new ‘affirmative defense’ would require support and authority that failed to get sufficient consensus in the process leading up to the adoption of the R2P principle by the2005 World Summit.”  But when the Equal Rights Amendment failed to pass, did we just throw in the towel and say “so much for consolidation of support and authority for women’s rights?”  Given the stakes, why, eight years later, isn’t it again worth the effort to revisit this pressing question?

Kaye warns: “let’s not make it easier for [policymakers] to use force by saying it’s legal… when it’s not.” But let’s also not make it easier for people of good will to do nothing by pretending that the law is so determinate and immutable in the face of compelling moral imperatives, that we must keep treating as illegal what may now be necessary to save lives or spur diplomacy to remove chemical weapons. Kaye claims I “focus on human rights promotion over the ban on force.” But my real point was that these goals can be mutually reinforcing, because the use of force in carefully limited circumstances can protect human rights without undermining the general prohibition against force. Stahn similarly charges that I make a “binary argument,” although he is the one who flattens the Syria crisis into a binary choice: follow the law because it is so clear, or break it and take the consequences. As the most powerful nation in the international legal order, the United States sometimes acts as a law taker, sometimes as a law-breaker, and sometimes as a law-maker.  My simple suggestion was that the gravity of the Syria situation calls for the U.S. to explore more thoroughly the third option.

If we try to make new law, these commentators ask, might we inadvertently craft a rule that others could abuse later?  Perhaps.  But criminal law has crafted rules that exempt ambulance drivers who run red lights in extremis, without opening the door to abuse of those rules by ambulance-chasers. Whether styled as “justification,” “mitigation,” or exception, my proposed legal test was designed to invite lawyers and policymakers to work together to clarify both the limited contours of their discretion to use force in humanitarian crises, while stating limiting principles to guide and constrain future actors.  Perhaps, as Kaye notes, I just have greater “faith in the ability of the law to cabin the circumstances of Syria – chemical weapons directed against civilians – so that a norm of humanitarian intervention may be truly exceptional.”  And of course, I fully agree that UN Security Council reform is long overdue and that the U.S. should actively work to make it happen. But where I differ from these friends is that I do not believe it’s just a “policymaker’s call” to argue for a better reading of the law in the meantime.

What I fear is that “[s]ome international lawyers have become more comfortable stating rules than in figuring out how international law might help to push unfolding events toward the right resolution.” Even in the most intense policy discussions, lawyers are not potted plants. Did Thurgood Marshall think it was a “policymaker’s call” to keep treating “separate but equal” as “equal protection?” During the Cuban Missile Crisis, such international lawyers as Abram Chayes, Nick Katzenbach and Len Meeker famously participated in the Kennedy Administration’s decisions to call a “blockade” a “quarantine” and to invoke Chapter VIII of the Charter–in Kaye’s words–“as part of developing either new practice and opinio juris or causing Russia and others to rethink their recalcitrance.” Why isn’t that the appropriate course here?

Everyone who has worked in government knows that arguing for an evolution in the law is a decision with which both policymakers and government lawyers must grapple.  Asking policymakers to make a false choice between action and legality sends them the false message that when the law gets hard, or stands in the way of urgent action, lawyers are incapable of developing sound legal arguments that can achieve better results or better map current law onto modern reality.

In my view, it is not our lawyerly responsibility simply to repeat that “a rule is a rule is a rule,” particularly when the so-called “rule” is not nearly as black and white as some may admit.  While Syrian diplomacy unfolds, this is a moment not to consider this matter closed, but to look harder for a better legal answer. A better answer here would clearly be one that would give due respect to territorial sovereignty, while in the meantime, helping to prevent further deliberate slaughter of innocent civilians by chemical weapons.

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Jordan says

October 12, 2013

well done, and the "absolutists" do not mention the critical feature of context re: general consent that exists in advance from the SNC as (1) a "belligerent" in on ongoing civil war, and (2) the legitimate representative of the Syrian people. These two aspects of circumstance are critical for realistic and policy-serving interpretation and application of Article 2(4) [ ]. Hoprefully those writing articles for law journals will address these special features of context, even if they are "absolutists" who are nonetheless mindful of the role of "consent" and that there are various actors with formal participatory roles in the international legal process other than the "state."

André de Hoogh says

October 14, 2013

There are various issues that arise in relation to professor Koh’s response above. Foremost, he accuses those arguing in favour of an all-embracing prohibition of the use of force in international relations of a simplistic reading of article 2(4) of the Charter. Restating this, he tries to establish some measure of guilt by association by linking those adopting these originalist/textualist interpretations to Robert Bork or Antonin Scalia. However, in providing his own interpretation he does no more than point out that the Charter has more purposes than just the protection of sovereignty (a purpose not mentioned, in effect, in article 1). Yet in having recourse to methods of interpretation more is needed than just the suggestion that the use of force to protect human rights is not inconsistent with one of the purposes of the Charter.

Indeed, professor Koh does not provide argument on the crucial question, namely how any cross-border use of armed force would not be inconsistent with the primary purpose of the Charter: to maintain international peace and security. Rather, the claim is that “the use of force in carefully limited circumstances can protect human rights without undermining the general prohibition against force”. But how can it not? Protection of human rights is carved out from the prohibition, rendering such uses of force lawful per se, and the “carefully limited circumstances” give no clue on the answers to other questions: which human rights are worthy of protection, on what scale should they be violated, who can decide that this is the case, when do uses of force become disproportional. may regime change be pursued, etc.?

Of course, professor Koh’s views appear to be based on the suggestion that the reading of an absolute prohibition is unreasonable or absurd: after all, could such a position really be maintained even if P5 members or their clients commit genocide? But he must surely be well aware that in such circumstances recourse to the preparatory works would be justified. He knows, probably equally well, that going down that road would offer him no solace. Perhaps to compound the ‘crime’, let me refer here to the originalist and textualist US position, made clear during the San Francisco Conference, which in response to the amendment that brought ‘territorial integrity and political independence’ into article 2(4) observed that the intention of the original text had been to “state in the broadest terms an absolute all-inclusive prohibition” and added that the phrase ‘in any other manner” was “designed to insure that there should be no loopholes” (UNCIO, vol. VI, 335).

Professor Koh continues by suggesting that UN members have taken the position that the Security Council’s monopoly is not exclusive. Yet the examples mentioned do not bear out his claim. The Uniting for Peace resolution sets out that if the SC is failing to act because of a veto or threat thereof (or in the words of the resolution, lack of unanimity between the permanent members), the General Assembly may take over and recommend measures, including the use of armed force, to the members. But the US has not gone to the General Assembly to make its case for forceful action (or at least it has not invoked Uniting for Peace for this purpose). Moreover, in Uniting for Peace the General Assembly does not claim the right to recommend armed action generally, but only in relation to breaches of the peace and acts of aggression. With respect to threats to the peace the Security Council would maintain its ‘monopoly’ even according to the General Assembly, and I have not heard it claim that the Syrian crisis amounts to a breach of the peace (since it generally accepted that the word peace in the first part of article 39 of the Charter refers to ‘international’ peace).

Referring to the Cuban crisis, authorization by regional agency is considered similarly to deny the monopoly of the Security Council. But yet again no attempt is made to substantiate such a view other than by calling it ‘creative lawmaking’. But what law was made then? Are regional agencies legally permitted to have recourse to armed force against member States within their region? Or can they even authorize the use of armed force ‘against’ a non-member State? Or even in reverse, could a regional agency authorize the use of force ‘by’ a non-member State? Whatever may be the case, none of these scenarios is relevant (at present) regarding the Syrian crisis. What is more, article 53 of the Charter clearly states that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”. It is far from desirable, in terms of progressive development of international law, to permit for instance the Arab League to legitimize or even legally justify the use of force against one of its members.

Perhaps the divide between professor Koh and others, and certainly myself, lies in his perception of the role of international lawyers, since he fears that they “become more comfortable stating rules than in figuring out how international law might help to push unfolding events toward the right resolution.” Perhaps this is one of the more problematic features at hand, to think of scholars in international law as ‘lawyers’ as if they have to defend some client. But if there is some client that we have to serve, this would be international law in itself and not some self-serving governments that support or ignore international law at their whim. Surely we remember how Western governments supported Iraqi President Hussein in his war against Iran, notwithstanding his large-scale use of chemical weapons, and the US/UK/Australian/Polish invasion and occupation of Iraq based on false pretences and manipulation of information. In this case, we appear to have a clear idea of who the bad guy is, President Assad of Syria; nevertheless, the road to hell is paved with good intentions … as the hundreds and thousands of people killed in Iraq after the end of the occupation has shown us.

Jordan says

October 14, 2013

I suggest that Harold's label "absolutist" is far more accurate than "textualist" precisely because the text of Article 2(4) expressly prohibits merely three forms of force. The "original" U.S. claim was not shared by everyone. Consider the recognition of Australia -- as noted by Professor Tony D'Amato in an earlier essay in the Am. J. Int'l L., the Deputy Prime Minister of Australia addressed the first two types of force (i.e., "against" territorial "integrity" and "against" political "independence") thusly: "relating to a change of frontiers or an abrogation of a state's independence"!
Is it clear that the "primary" purpose of the Charter was to "maintain" peace and security? If so, it has not been maintained in Syria. Moreover, there are several other notable purposes, and they expressly include self-determination of peoples and human rights. The first sentence of the preamble to the Charter addresses the need to save human beings from "scourge of war" (like the civil war in Syria that has been ongoing? if so, to save them, how?) but immediately adds in that very sentence: "and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women," and so forth.
Sure, Harold could have noted that Article 52 of the Charter permits "regional action" (which was the U.S. claim during the Cuban Missile Crisis) and he could have noted that Article 53 allows Security Council control of something different, i.e., "enforcement action," when the Security Council can act [see ] (e.g., when it can make a decision under Articles 39 and 42 that has not been obviated by the veto of a permanent member), but that must have been what he had in mind as the legal basis for creative thinking.

Carsten Stahn says

October 15, 2013

I have written a rejoinder to Koh (Part III) entitled ‘On Intervention, Narratives of Progress, Threats of force and the Virtues of Case-by-Case Assessment’. I argue that three elements deserve deeper reflection in Koh’s argument: narratives of ‘progress’, (ii) the relationship between ‘threat of force’ and ‘use of force’, and (iii) the choice of the appropriate methodology for the way ahead. I argue that a case-by-case assessment may be ultimately better than an abstract rule to accommodate the problems inherent in a formulation of a doctrine that has been controversial for centuries. The full post is at

Pavel Caban says

October 17, 2013

André de Hoogh: Excellent comment.