Two Visions of the UN Charter

by Jens David Ohlin

As I write this, the ASIL annual meeting is conducting a well-timed, previously unannounced panel discussion about the legality of the missile strikes against Assad’s airbase in Syria. In addition to Harold Koh (Yale Law School), who has argued in support of humanitarian intervention, the speakers include moderator Catherine Powell (Fordham Law School), Jennifer Daskal (AU Washington College of Law), Steve Pomper (US Holocaust Memorial Museum), and Saikrishna Prakash (UVA School of Law).  I’m sure that it is/was a terrific panel and I’m sorry to have missed it.

I want to take this opportunity to step back and collect some thoughts about why I disagree with so many of the arguments against humanitarian intervention. I have already articulated the specific legal arguments about article 51 here, but there is a deeper issue about the nature of the UN Charter and the goal of international law itself.

Many writers speaking out against humanitarian intervention have noted, as one piece of their argument, that humanitarian interventions will weaken the prohibition on the use of force and will likely lead to more international conflict. They view humanitarian intervention as a destabilizing force.

In these arguments, the goal of reducing international conflict, or reducing the number of cross-border military interventions, is elevated to the most important principle in the UN Charter and the international legal system as a whole. The goal is, in other words, to eliminate or reduce war as much as possible.

On deeper inspection, however, this asserted goal is really about reducing only one kind of war, international armed conflicts. The Charter regime on the use of force (article 2 combined with Chapter VII and article 51) is designed to reduce or eliminate the number of sovereignty violations caused by international war.

This articulated goal has deep roots in World War II. Indeed, one could point to Nuremberg and the tribunal’s conclusion that crimes against peace (aggression) were the supreme international crime because they contained within them the seeds of the other international crimes. The lesson, apparently, is that stopping international conflicts is the most important goal of the international legal system.

Unfortunately, I think this principle, which is just one principle among many, has been taken to an extreme level, and fetishized to the point where other noteworthy principles are devalued.

We should never forget that preserving international peace has mostly instrumental value. Protecting the integrity of states and their domestic arrangements has little value in and of itself.  If the states and their domestic arrangements are fundamentally unjust, then preserving international peace is merely protecting those unjust arrangements.

To make my point, consider a “perfect” world without a single article 2(4) violation. Every state respects the borders of all other states and never launches a military assault against them.  Each state is inwardly directed.  But internally, each state is viciously repressing and killing its own civilians and subjecting them to unimaginable horror.  Would this be a “perfect” world from the perspective of the UN Charter or from the perspective of international law generally? From the sole perspective of article 2(4), this world is indeed perfect.  But it is far from perfect — it is a disaster.  Protecting the sovereignty of each state has instrumental value because it allows states to flourish.  But if sovereignty is simply preserving injustice, we need to consider that there are other values at stake, other values that are promoted by international law.

My point is that many of these other values or principles are embodied in the UN Charter.  When I read the Charter, I see a document that cares about preserving international peace, but it also cares about international security--which is something far broader.  And I don’t think that international security is promoted and enhanced when we give a free pass to allow governments to mistreat their own citizens, and treat this as a “lesser problem”–subject only to non-military measures– than the problem of international conflict, which is subject to unilateral military measures.

It may be time to rethink the Nuremberg “assumption” that crimes against the peace are the supreme international crime. World War II was the era of the IAC, which was responsible for most of the evils of the world.  We now live in a different era, the era of the NIAC, which are responsible for most of the evils in the world. This second vision of the UN Charter recognizes that NIACs pose a greater threat to international security.

The UN Charter must do more than simply ensure that soldiers do not cross international borders. Even when every soldier stays within their own state, all is not well in the world.

http://opiniojuris.org/2017/04/13/two-visions-of-the-un-charter/

7 Responses

  1. I think you need to distinguish between unilateral humanitarian intervention, on the one hand, and multilaterally agreed humanitarian intervention, on the other hand. These are very different things.

  2. If any state is free to determine when foreign domestic arrangements are unjust, and rely on this determination to justify its use of force, what is to stop abusive invocation of this new ‘exception’ to the prohibition of the use of force?

    If only some states are allowed to make that determination unilaterally (or multilaterally, but outside the UNSC), what principles justify that distinction between states (or groups of states)?

    As much as I agree with the feeling that the UN Charter’s prohibition on the use of force ought not to be a screen behind which horrible regimes can hide with impunity, I don’t think one could endorse new exceptions to the prohibition without cogently answering the above questions.

  3. I found your argument is interesting. However it cannot be strong enough to support a rule of humanitarian intervention.

    A good law must be good in purposes and at the same time it must accompany with an effective implementation mechanism to achieve such purposes. Supposing that humanitarian intervention is for good purpose i.e. to save people in danger, there is no effective mechanism to assure that it will be implemented faithfully without abuses. Thus humanitarian intervention is not a good thing to support as long as international community can establish an effective mechanism.

    States do not argue much on whether saving people in danger is good or bad, States disagree on what mechanism to save people without abuse. Mechanism issue is the core issue in humanitarian intervention debate, rather than highly theoretical discussion on the rightness or morality or even legality of humanitarian intervention.

  4. I think the argument that the foregoing argument in favor of humanitarian intervention as a principle of international security is completely valid, and could include use of force against states for their internal abuses. Certainly the UN Charter could be read to support that. But only in the context of Security Council action; unilateral state intervention is clearly not contemplated as the unilateral use of force is allowed only in the context of self defense. That the UN Security Council does not function is a strike against the Charter itself

  5. In current Syrian situation, a multilateral humanitarian intervention is impossible due to Russia’s veto. It seems that ‘uniting for peace’ resolution and an unprecedented UNGA action could be a solution.

  6. Responding to Simon. Excellent question. I imply it in my post, although I mainly mean to argue that humanitarian intervention can be justified.

    I think it is up to the current Administration to 1) make their own legal case, demonstrating that their actions adhere to international law; 2) articulate what criteria for legitimacy of humanitarian intervention they would be using — e.g. the UKs criteria? and even 3) whether the U.S. actually endorses “humanitarian intervention.” The US also should be articulating its follow up plan — whether there are still methods to try to ensure complete elimination of the regime’s chemical weapons stocks, whether the US will appoint a Special Envoy to help negotiate a diplomatic solution, whether the US will support accountability efforts, and whether the US Administration (if it really is motivated by humanitarian concerns), will revisit its policy on accepting refugees.Response…

  7. Responding to the next two responses, yes, I think the challenge is to ensure we have the right criteria for legitimacy, so we don’t have abusive invocations.

    My main plea is to international lawyers to continue thinking of alternatives, and developing them, because I don’t think that “pillar 3” of R2P and relying on the UN Security Council to do the right thing suffices. I don’t think we have sufficiently done our jobs if we say: sorry, if there is no UNSC vote, then we throw our hands in the air, and stop.

    R2P needs to evolve to a different place, or we need some additional legal mechanism here (hence my idea of an ICJ advisory opinion).

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