Four Thoughts on Koh’s Defense of Unilateral Humanitarian Intervention

At Just Security today, my friend Harold Koh has mounted a typically masterful defense of the legality of unilateral humanitarian intervention (UHI) in Syria and other places. I wish all advocates of UHI were as thoughtful. Not surprisingly, though, I’m not convinced by Koh’s argument. Let me offer four (disconnected) thoughts on his claims below.

A “per se illegal” rule would overlook many other pressing facts of great concern to international law that distinguish Syria from past cases: including the catastrophic humanitarian situation, the likelihood of future atrocities, the grievous nature of already-committed atrocities that amount to crimes against humanity and grave breaches of the Geneva Conventions, the documented deliberate and indiscriminate use of chemical weapons against civilians in a way that threatens a century-old ban, and the growing likelihood of regional insecurity.

It is difficult to disagree with this statement, but I think it’s important to reiterate a basic truth: the US has made inordinately clear that it does not intend to end the humanitarian crisis in Syria. The proposed UHI would deal with chemical weapons — and only chemical weapons. It would not attempt to oust Assad. It would not be massive enough to completely disable Assad’s ability to kill innocent civilians with conventional weapons. Indeed, a strong case can be made that the US desire to attack Syria is largely self-serving, motivated by a desire to ensure that chemical weapons are never used against US interests, not to protect Syrian civilians from chemical attacks that have always seemed unlikely to be repeated.

To be clear: I am categorically opposed to any UHI by the US. But it seems to me that, at a minimum, any defense of UHI must require the intervention in question to be designed to actually end a humanitarian crisis, not simply nibble around its edges.

Read in context, the Charter’s bar on national uses of force should be understood not as the end in itself, but a means for promoting the U.N.’s broader purposes. Article 2(4) states that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”  The use of the word “other” leaves open whether Article 2(4) would permit a threat or use of force against the territorial integrity of a state, in a case where that threat or action was critical or essential to effectuate the U.N.’s purposes.

I think this is a problematic reading of Art. 2(4). That article specifies uses of force that are prohibited by the UN Charter, not uses of force that are permitted. The “or in any other manner” language, therefore, does not carve out an exception to the prohibition on the use of force against “territorial integrity” or “political independence”; it leaves open the possibility that other uses of force are also prohibited. For Koh’s textual argument to be persuasive, we would have to find language similar to “or in any other manner” in Art. 51, which provides that Art. 2(4)’s categorical ban on the use of force does not apply to uses authorized by the Security Council or taken in self-defense. And, of course, the Article contains no such language — the exceptions to Art. 2(4) are exclusive.

By treating the veto alone as dispositive, the per se position denies any nation, no matter how well-meaning, any lawful way to use even limited and multilateral force to prevent Assad from intentionally gassing a million Syrian children tomorrow.

I completely agree with this statement — but it is important to remember that the US, no less than Russia (then, of course, the Soviet Union), insisted on the permanent veto. The US was fully aware that any member of the P5 would be able to abuse its veto, but that did not affect its position. It is thus more than a little hypocritical for the US to complain about Russia frustrating its foreign-policy goals — especially given that the US has no hesitation about using its veto to frustrate the foreign-policy goals of other P5 states and, indeed, of much of the world. See, e.g., Israel. (Which provides at least as strong a case for UHI under Koh’s criteria as Syria.)

The US, in other words, has no right to make Koh’s argument. It should either actively work for reform of the Security Council, including the elimination of the permanent veto, or it should allow non-P5 states to make the argument for UHI. The US’s hands are simply too unclean to be UHI’s champion.

As U.S. Assistant Secretary of State for Democracy, Human Rights and Labor during Kosovo, I watched the nineteen NATO members accept the legality of some form of humanitarian intervention without U.N. Security Council approval.  In October 1998, the United Kingdom publicly declared the legality of the operation, “so long as the proposed use of process is necessary and proportionate to the [humanitarian] aim and is strictly limited in time and scope to this aim.” Seventeen other NATO members individually satisfied themselves of the legality of their participation in the operation.

Elsewhere in his post, Koh rightly acknowledges — and criticizes — the US’s unwillingness to defend the legality of the Kosovo operation. But he fails to acknowledge that, in response to the attacks (and the US attack on the pharmaceutical plant in Sudan), more than 130 states adopted a declaration categorically rejecting “the so-called ‘right’ of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.” Given that declaration, it is impossible to maintain that UHI is a slowly crystallizing norm of customary international law — much less that, as some (but not Koh) have argued, customary international law already accepts it. International law has for too long dismissed the voices of the Global South; we cannot let the West silence it concerning UHI. After all, the states of the Global South are “specially affected” by UHI — it is their territorial sovereignty and their political independence that UHI threatens, not the West’s. UHI will never be used against a Western state.