I agree with Harold Koh
Everyone seems to have lined up against humanitarian intervention this week. I’m not sure if the proponents of intervention have changed their mind, or if they are keeping quiet, or if they never existed in the first place. Either way, I want to be clear — if it isn’t obvious already from my prior scholarship — that I support a limited right of humanitarian intervention in certain contexts. So far, the few that have supported humanitarian intervention recently include Harold Koh, as well as Charlie Dunlap. (In the past, others have argued for it as well.) By my account, the Syrian situation can and should qualify as a lawful humanitarian intervention.
However, as I indicated in a series of tweets today, I think it is a mistake to focus humanitarian intervention arguments on so-called exceptions to the UN Charter regime on the use of force–exceptions flowing from customary international law. All of these arguments run into the same problem: how does custom amend the UN Charter? It makes the argument vulnerable to the objection that the customary exception is really a backdoor way of amending the Charter without going through the difficult process of amending the Charter.
A far better and more fruitful exercise is to examine article 51 of the UN Charter more closely. Article 51 preserves the inherent right of individual or collective self-defense, or what the French-language version of the Charter refers to as the droit naturel de legitimate defense. The right to legitimate defense (which covers both self- and other-defense) is a natural law right. It isn’t created by the UN Charter or by positive law at all. It is inherent because it flows from natural law, and article 51 simply refers to it.
Modern lawyers are not accustomed to answering uncomfortable questions about where natural or inherent rights come from. They can’t come from the positive law, otherwise they wouldn’t be inherent. The whole point of being inherent is that even if the positive law denied them, they would still exist. That’s what inherent means. In other words, there’s an area of the law that endures after the positive law runs out. You might find this truth to be inconvenient or annoying or quaint — but it is right there in article 51. So even lawyers committed to positivism and the text of article 51 should admit that some rights under international law are so fundamental that they flow from beyond the positive law. The positive law could try to take them away but the right would still endure.
(I should add that the concept of inherent rights was fundamental to the founding of America. One of the reasons the U.S. declared its independence from England was because England was violating the inherent rights of Americans. In the grand tradition of Locke and other social contract theorists, the colonists believed that the sovereign had a fiduciary obligation to its subjects and when that obligation was betrayed, the colonists could exercise a right of rebellion in order to ensure their inherent rights.)
Another piece of the puzzle is that international lawyers are too focused on state sovereignty to the exclusion of any other legal categories. Peoples have rights too under international law, and their most primary right is the right to self-preservation, a right that is protected not only by the concept of self-determination but also the right to be free from genocide and crimes against humanity. Nothing in the positive law can take away the right of the Syrian people, under natural law, to resist their own annihilation. I’m not sure that anything in Article 51 automatically prioritizes the Syrian government’s claim to state sovereignty over the right of the Syrian people to self-preservation and the right of other states to exercise legitimate defense on their behalf.
I should also note that there are other avenues to explore in the Syrian case. Assad only controls half of the country, so I don’t know why even under a strict “sovereignty” approach he should have a monopoly on deciding who gets to intervene in Syria. He only controls half of his country. (Once you take into account ISIS controlled territory, it might be even less than half). So I don’t know why international law should privilege his speaking for the Syrian people when his de facto control over its territory is so degraded and he is gassing his own citizens. It seems equally plausible to say that the Syrian rebels, given their control over territory and their exercising of inherently governmental functions, should be able to speak for themselves.
Of course, it would help the U.S. argument if it recognized the Syrian rebels as the legitimate government of Syria and then pursued a consent-based argument. This approach would no doubt anger Assad and the Russians, but launching Tomahawk missiles has already angered Russia, so that doesn’t appear to be a political or diplomatic constraint at this point in time. I wish the State Department would pursue this initiative. I imagine that other states would welcome the approach and would follow our lead in recognizing the Syrian rebels as a legitimate government.
(A final approach would be to argue for partition and suggest that the Syrian rebels have created a de facto state, which could be recognized under international law, effectively transforming the Syrian conflict into an IAC. I understand that this option is disfavored for several reasons, in part because it concedes that Assad would remain in control of the legacy Syrian state).
Let me make a final point. All things considered, we should interpret the law to make sense. Interpreting article 51 to require everyone to sit on their hands while a dictator commits genocide or wipes out every last member of a protected ethnic group just doesn’t make sense. And that’s the reading of article 51 that opponents of humanitarian intervention are advancing. International law disfavors existential annihilation. Lawyers shouldn’t fetishize state sovereignty and elevate it to the exclusion of all other principles. If the Syrian people have the right to resist their own destruction, we have the right to assist them.