Trump vs. International Law: The Challenge of Articulating a Legal Framework for Humanitarian Intervention

[Stephen Pomper is a non-resident senior fellow at Columbia Law School’s Human Rights Institute and New York University Law School’s Center for Law and Security, and served in a range of U.S. government legal and policy roles from 2002 through 2016.  The post is written in his personal capacity and draws on research conducted as a Senior Policy Scholar at the U.S. Institute of Peace.]

My friend and former boss, Harold Hongju Koh, has become one of the leading voices in the American academy calling for a responsible articulation of the international legal foundation for humanitarian intervention. He renews this call in Chapter V of The Trump Administration and International Law.

It is not a popular message. Questions about whether the U.N. Charter permits the non-defensive use of force to address extreme humanitarian emergencies, without authorization by the U.N. Security Council, go back decades, and the majority view has consistently been “no”. From the policy perspective, lawyers and policymakers have worried about incubating a doctrine that could be too easily abused. Leading voices in post-war legal scholarship like Nigel Rodley and Thomas Franck expressed deep concern about widening the aperture for forcible intervention in the age of nuclear weapons, and creating a foundation for military superpowers to meddle in the affairs of less powerful states. (Franck’s opposition softened in the post-Kosovo era.) Conversely, U.S. policymakers have worried about raising expectations concerning the U.S. government’s capacity and inclination to intervene in far-flung regions where the United States does not have traditional strategic interests.

From the legal perspective, the essential challenge is the one that Dapo Akande posed in an opinion commissioned by the Deputy Leader of the U.K. Labour Party in the wake of the April 2018 Syria strikes. If one understands Article 2(4) of the U.N. Charter as a blanket prohibition against the non-consensual use of force that has not been authorized by the Security Council—in that it requires member states to “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”—then there is not much room for maneuver. Article 51 creates an exception for individual or collective self-defense against armed attack but that does not help. Even if one could summon sufficient evidence that there is a customary rule in support of humanitarian intervention (which he doubts), Akande notes that “The argument that there is a right of humanitarian intervention under customary international law implies that a rule of customary international law can prevail over or modify the prohibition of the use of force in the UN Charter.”

U.S. commentators like Marty Lederman have sounded a similar note, arguing that the proper route for securing a basis for humanitarian intervention under international law would be to amend the U.N. Charter. This path is effectively blocked, however, because securing the layers of global consensus and domestic approvals required to approve even an uncontroversial change to the U.N. Charter (which this would not be) is not remotely within the realm of political possibility. So does that mean that those seeking to identify a legal foundation are out of luck?

Koh thinks not. Describing the traditional/restrictionist position as the “never-never rule,” he argues that it represents a “simplistic, absolutist reading” of the U.N. Charter—analogous to rigid constitutional originalism—which cannot be squared with either a growing body of state practice or the principles and purposes of the U.N. Charter. The body of practice includes India’s intervention in Bangladesh (1971), Vietnam’s against the Khmer Rouge in Cambodia (1978-1979), Tanzania’s in Uganda (roughly the same period), the U.S./U.K. imposition of no-fly zones in Iraq (1991), NATO’s Kosovo episode (1999), and threats and strikes against Syria by various configurations of the U.S., U.K. and France (2013, 2017, and 2018). The U.N. purpose in question is memorialized in Article 1(3) of the U.N. Charter, which commits the United Nations to “promoting and encouraging respect for human rights.” From these moorings, Koh ventures a multi-factor test for judging the legality of humanitarian intervention, suggesting that the test should be applied ex-post as an affirmative defense against claims of legal wrongfulness.

Before getting to the essential question about Koh’s recommended approach—could it fly as a matter of law?—it is worth reflecting on why, as a matter of policy, Koh’s instincts deserve to be taken very seriously. His concern about the growing gulf between state practice and legal doctrine is particularly compelling. In the Kosovo context, the State Department Office of the Legal Adviser sought to justify that action as “unique” and declined to offer a legal justification because of concern it would wind up cultivating a doctrine that “might trouble individual NATO members or later haunt the Alliance if misused by others.” But while the idea that Kosovo might be ring-fenced as a moral-but-not-legal one-off event was never especially plausible it has become insupportable in the aftermath of multiple forcible threats and interventions against Syria. Instead of ring-fencing, the United States and certain partners have cultivated a growing body of precedent for acting extra-legally in situations that they deem to confer “legitimacy” on their conduct. These precedents send a confusing moral signal by suggesting that legitimacy can sometimes be best achieved by breaking a core tenet of international law. From the parochial U.S. perspective, they also put U.S. service-members in the difficult position of using lethal force outside an articulated international legal framework. It may be that no legal liability ever flows from it (notwithstanding John Bolton’s claims, there is no basis in the Rome Statute for the ICC to try non-party state officials for the crime of aggression) but this is still a terrible habit to set.

So what to do about it? Some scholars (for example Oona Hathaway and Scott Shapiro) truly do appear to adhere to what Koh labels the “never-never rule”—arguing that the price of an international order that has helped keep the world out of cataclysmic levels of conflict for seven decades is strict adherence to the non-intervention norm, even in the face of horrific atrocities. But whether or not this position is overstated, , the likelihood that future U.S. presidents will feel constrained by it, given the precedents cited above and the striking lack of pushback from the international community (analyzed by Monica Hakimi and documented in the recent Syria context by Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai, and Elvina Pothelet), is in my own view as a former U.S. government lawyer and policymaker highly remote.

Other scholars support the never-never rule formally but suggest, at least privately, that they wouldn’t insist that outside powers sit on their hands in the face of a Rwanda. That, of course, is a have-it-both-ways approach that looks a lot like where the United States government has currently, and problematically, landed.

Against this backdrop, Koh’s recommendation to the international legal community that it develop a rule and a justification that would as much constrain as enable the use of force to address humanitarian emergencies has a compelling logic. But recognizing the need for a solution and actually having one are two different things. Returning to Akande’s point: As a matter of legal engineering, it’s very difficult to argue that a customary international law rule (if one could be established) reverses a black letter treaty requirement. And while it seems relevant to point out, as I have elsewhere, that the use of force provisions of the Charter have been interpreted with some flexibility in certain cases (particularly in finding Article 51 to create space for anticipatory self-defense even though its plain language—which permits the use of defensive force only “if” an armed attack occurs—clearly states otherwise) this argument is by itself not likely to be a sufficiently sturdy foundation.

As such, the best odds for the development of a legal theory to support the sort of test that Koh proposes may lie in a multi-step process, which begins with revisiting the history and text of the UN Charter itself, developing a credible interpretation based on the text and history of Article 2(4) that permits space for the development of a customary rule relating to humanitarian intervention, articulating that rule as an emergent norm of customary international law, and defending it. This may seem to place a lot of weight on the pursuit of what to date has been a chimeric goal, but let me briefly suggest why the inquiry bears revisiting.

To be blunt, it is because the received wisdom around Article 2(4) has never been all that satisfying. To pull at just one thread, the final phrase of the Article (“or in any manner inconsistent with the Purposes of the Charter”) reads like a savings clause intended to cover for the fact that the proscriptive language preceding it is not comprehensive. Going back to at least Ian Brownlie’s 1963 treatise on the use of force, commentators have tended to dismiss this possibility, arguing that (in Brownlie’s words) the phrase was “probably meant to reinforce the prohibition of paragraph 4.” But that explanation does not accord with interpretive canons that generally discourage such phrases from being treated as surplussage. Moreover, at least some of the key evidence that legal historians have offered in support of the traditional/restrictionist interpretation turns out to be balanced—at least somewhat—by countervailing evidence.

Here’s an example: Brownlie refers to a rapporteur’s note that records the assurance of a U.S. delegate to the drafting committee for Article 2(4) that is final phrase “was designed to ensure there were no loopholes.” And yet going back to the minutes of the U.S. delegation, there are multiple instances where several delegates (Stassen being the most vocal among them) resisted efforts to change the clause from its enduring form precisely because it created a loophole that they thought was essential. Indeed, on the very day that the drafting committee finalized the text of Article 2(4)—June 5, 1945—the U.S. delegation’s internal minutes describe how the delegation considered and rejected the idea of amending the clause in question to replace the phrase “purposes of the Charter” with the phrase “provisions of the Charter.” Here’s a bit of what the meeting minutes tell us about Stassen’s intervention (emphasis added):

Commander Stassen observed that under the original wording the members could use force if the Security Council were to fail in dealing with the dispute or if it were to become deadlocked. The only restriction on the right of a member state to use force, in the wording under discussion, would be that the use of force had to be consistent with the purposes of the Organization. Commander Stassen urged further that the use of the word “provisions” would necessitate supervision by the Security Council over the use of force by the member states.

Of course that is just one voice in one (albeit important) delegation. But Stassen was not in fact alone. The Brazilian delegate to the drafting committee expressed concern that the text might permit the unauthorized use of force to pursue whatever a state deemed to be “purposes of the Organization,” and the Norwegian delegate expressed concerns about it for similar reasons (and ultimately abstained on the text). The drafting committee was sufficiently concerned about how the paragraph would be read that the Rapporteur’s report to the committee’s supervising “commission” included a passage explaining point-blank that the text should be read as narrowly as a restrictive alternative the Norwegians had unsuccessfully proposed. Even though that comment did not allay the concerns of the Norwegian and Brazilian delegates sitting on the commission, who reportedly called the text (respectively) “illogical” and “equivocal,” the commission nevertheless approved it and passed it along to the plenary session of the conference for adoption. In doing so, however, the commission did not include any explanatory comment to suggest that the language should be read restrictively – meaning that the conference delegates who formally adopted the text did so on the basis of its unadorned, ambiguous form. (The plenary did receive explanatory comments in its consideration of other parts of the Charter text, but I cannot, at least yet, find any evidence that the 2(4) comment was part of the record it reviewed.)

The point of this excursion into the past—which borrows extensively from the graduate research of onetime SJD candidate and current senior South Korean defense analyst Shin Beomchul—is not to suggest there is a definitive case to be made for a more permissive reading of Article 2(4). Rather, it is to suggest that the historical record is perhaps less than airtight in supporting the traditional reading of Article 2(4). That is important (in my view possibly more than Koh’s), because finding a principled textual basis to argue that there is some space in 2(4) to allow for the development of a post-war humanitarian intervention norm is potentially quite helpful for addressing the challenge that Akande, Lederman, and so many others pose.

Of course finding space in the Charter for a humanitarian intervention norm is only part of the challenge. The critical task of defining credible limiting principles as part of any legal rule is another. If the use of force in the service of U.N. “purposes” is permitted—even if confined to the discreet purposes enumerated in the Charter—what is to stop this from opening a vast gap in the Charter’s use of force prohibition? That question will remain beyond the scope of this post but if may be helpful to recognize that post-Charter restrictions on the use of force are not just creatures of the Charter but also, as recognized by the International Court of Justice in its Nicaragua opinion, of customary international law. Accordingly, even if we were to conclude that the Charter has left a somewhat jagged hole around the “purposes” clause of Article 2(4), perhaps there is an argument that custom has closed most of it off, and the extent to which it leaves space for humanitarian intervention is defined both by looking at the body of state practice referenced above, and the opinio juris expressed by states. That opinio juris might include a test that looks to the limiting factors identified by the U.K. or that Koh sets forth. Of course this only works if states express their opinio juris, and so far only a tiny handful have done so.

Finally, it is more than fair to ask whether this is really a conversation that we ought to be having right now. While Koh is a strong proponent of diplomacy-backed-by force as a model for resolving some humanitarian crises, there is certainly cause for caution. After all, we live in a world where the United States and others have proven too eager to seek military solutions for complex crises, too reluctant to acknowledge the humanitarian impact of their operations, and too prone to enter wars that they have not figured out how to end. Developing another framework within which to wage war is a sobering prospect. But perhaps more sobering to the international legal community should be the reality that this framework has already, in effect, emerged. It exists, however, outside the rule of international law. Finding a legal foundation for it could help in shaping it to legitimate ends and assigning it strong limiting principles—both eminently worthy objectives. There is no guarantee of success, but Koh is right to be pushing us in this direction.