Four Thoughts on Koh’s Defense of Unilateral Humanitarian Intervention

by Kevin Jon Heller

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.

http://opiniojuris.org/2013/10/02/four-thoughts-kohs-defense-unilateral-humanitarian-intervention/

7 Responses

  1. On the art 2(4) point, could a possible (perhaps lex ferenda) interpretation of art 2(4) run something like this:
    Article 2(4) prohibits the threat or use of force in three circumstances:

    Against territorial integrity;
    Against political independence; and
    In a manner inconsistent with the purposes of the UN.

    “Territorial integrity” is a ‘term of art’ that refers only to uses of force that threaten the borders/make-up of a state. Eg annexation, assisting secession, etc.
    “Political independence” refers to regime change or other interference with the ruling government of a state (eg to create a client state ‘dependent’ on an outsider). 
    Thus leaving open uses of force that do not threaten a state’s borders or ruling regime, as long as they are not inconsistent with the purposes of the UN.
    We then go to the Charter purposes which are (1) maintain international peace and security; (2) develop friendly relations among nations; and (3) achieve international co-operation in solving certain international problems.
    A UHI to destroy chemical weapons does not threaten peace and security (weak I know, but perhaps the US could argue it threatens peace and security by removing illegal weapons that have been used against civilians and threaten regional stability); it is tangential to the friendly relations purpose; and helps promote respect for human rights (a sub-point of the (3) purpose of the UN). 
    I think this argument likely fails given state practice and interpretation of art 2(4) to date, apart from interpretative issues. But it is interesting that art 2(4) does not take a simpler approach to just prohibiting all uses of force. It appears to limit its prohibition to three specific categories of force.

  2. What I find most perplexing about Harold’s post is that rather than arguing that UHI is legal he proposes “a narrow ‘affirmative defense’ that would render lawful otherwise illegal behavior.”  Under criminal law theory, to render behavior legal the defense would have to be a justification defense rather than an excuse defense (which merely excuses unlawful conduct).  Justification defenses (like self-defense and necessity) usually require imminence — no time to take the usual (legal) route without risking serious harm to self/others.  In the Syria situation, the US had time to take the “legal” route via the Security Council, that route just didn’t lead to the outcome it wanted.  So it seems to me the argument has to be that UHI is legal (based on R2P or something else) rather than that it is illegal but there is an ex post defense available.  This is particularly true given that Harold ends his post by noting that the administration should tee up its arguments now in case it needs them if Syria doesn’t hold up its end of the bargain.

  3. Kevin: your post and the responses by BFA and Meg demonstrate well enough why your conclusion about a “masterful” defense of humanitarian intervention, sadly, is most inapt.  Having noticed other defenses here and at ejiltalk, including that by Professor Tony D’Amato, and having read some of the many articles arguing for permissibility of humanitarian intervention, it is clear that the best claim regarding article 2(4) was not made.  As BFA recognizes, the text of article 2(4) merely prohibits three types of armed force (sorry, not a “categorical ban on the use of force”).  Most claims about humanitarian intervention pay special attention to this fact.  For this reason, it is at best surprising to see an argument that the word “other” leaves open a “use of force against.”  As you point out Kevin, this type of argument is self-defeating because two of the three prohibitions of force are “against.”  BFA offers an approach to interpretation of the word “against” in the context of the two prohibitions, which seems common among proponents of humanitarian intervention.
    BFA, however, neglected to mention self-determination of peoples (e.g., the Syrian people and the legitimate representative of the Syrian people) and human rights, but I suspect that BFA would agree that these are most important also when interpreting what is prohibited as the “other” third category and, therefore, what is not prohibited by the third category of prohibition in article 2(4).
    I expected far better.

  4. Kevin: I wish I could agree with Harold Koh’s admittedly masterful piece, but find that yours is the more tenable position. There has to be a way to legitimize humanitarian intervention, but if we care about the rule of law and the integrity of international law (and I think we do, not as an end in itself, but because respect for the rule of law is so instrumental to the protection of human rights) then it must be done without undermining the UN Charter.
    Harold attempts to correct a profound omission in international law, but does so by saying that the law is different than it really is. True, customary law is the product of what States do out of a sense of legal obligation. This means that customary law is subject to infinite change as reflected in practice and opinio juris. When States do this, it’s bootstrapping, but it’s legit. However, the ability to establish law through custom has its limits. For example, the essence of “jus cogens” norms (like prohibitions against genocide, torture) is precisely that they cannot be altered by changes in custom. In any case, Harold’s position should not be confused with that of the United States. I wonder if he would have been able to publish such a piece while he was in the State Department. And even if he had, the position of one or a small handful of States, even powerful ones, does not establish custom. Your reference to the 130 States that reject the notion of humanitarian intervention in the absence of Security Council authorization is compelling.
    Rather than seek to establish legality by elevating claims of practice and opinio juris over the UN Charter, the principled course of action would be, as you suggest, to seek reform of the Charter.  In envision reform in two realms: the scope of the veto power and/or the scope of lawful use of force with or without SC authorization. Some say that’s no more possible than getting Russia or China’s agreement to a SC resolution authorizing the use of force for humanitarian purposes. I agree it’s a long-term project, but I’m not sure it’s impossible. Several of the world’s most populous countries question the relevance of a veto power that was determined by who won WW II over half a century ago, as well as the failure of the Charter to permit force to prevent and end genocide, crimes against humanity and widespread and systematic grave breaches of the Geneva Conventions.
     
     
     
    Whether or not such changes are achievable, the resort to force under the banner of humanitarian intervention would be much more easily “legitimized” if the great powers that are the chief promoters of it are at the same time working toward the reforms necessary to bring the UN Charter into the 21st Century.
    se…

  5. a jus cogens norm, which is a special form of peremptory customary international law, cannot be changed? Actually, it can arise, contract, expand, and die like any other form of customary international law.  Do you suggest that norms jus cogens are some form of eternal natural law??

  6.  
    Jordan, I agree. Not all jus cogens norms are eternal. Just the same, jus cogens norms cannot be violated by any state “through international treaties or local or special customs or even general customary rules not endowed with the same normative force.”Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002).
     

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