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Law of War

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…

Book Symposium Investment Law: International Criminal Responsibility of Transnational Corporate Actors Doing Business in Zones of Armed Conflict

by Philipp Ambach

[Dr. Philipp Ambach is the Special Assistant to the President of the International Criminal Court. The views expressed are those of the author alone and cannot be attributed the International Criminal Court.]

The vast majority of armed conflicts of our times is, if not based on, at least closely tied with the economic interests of the belligerent parties or stakeholders behind the scenes. Business corporations which maintain trade relations with partner groups or entities that are, at the same time, engaged in an internal or international armed conflict may become directly or indirectly involved in the commission of serious crimes. Many international corporate actors provide financial resources to regional armed groups through the trade of goods that are the product of exploitation of natural resources in conflict zones, such as gold, diamonds, oil, uranium and other precious or strategic resources (so-called ‘resource wars’). These economic transactions often destabilize the region affected by armed conflict and even put oil on the fire of a looming conflict if the economic transactions serve to strengthen one or the other or both warring parties in the conflict.

Those economic actors involved may incur criminal liability if they are aware that their goods or funds serve to provide these armed groups with weapons or other means of warfare subsequently used against civilians. The crimes committed may amount to international crimes such as war crimes, crimes against humanity or genocide. In such cases, corporate actors may even come under scrutiny by the International Criminal Court (‘ICC’) for their participatory role in such crimes, if the individual criminal liability of the person(s) in control of such financial transactions on behalf of a corporate actor can be established.

International courts and tribunals have devoted little to no attention to the issue since the post-World War II criminal proceedings held against German businessmen who had been economically involved in the war (See the discussion by Nerlich). Also the UN ad hoc-Tribunals for the former Yugoslavia and for Rwanda, set up in the mid-nineties, and the ICC (which became operational in July 2002) have been set up to try individuals for international crimes; their statutes do not provide for criminal liability for corporate actors, as they are based on the principle of individual guilt for criminal conduct (nulla poena sine culpa). In contrast, companies have a corporate (not: individual) identity and are legally best described as ‘legal persons’ – to which the concept of individual guilt cannot easily be ascribed. However, even in larger corporations decisions on specific transactions are being taken by a rather small panel of senior stakeholders who are heading the corporation. Despite their remoteness from the crimes committed on the ground, individual criminal liability may attach to them if each individual only knew that the immediate effect of their business transaction would be the (continued) commission of crimes.

Individual criminal liability of representatives of corporations for international crimes can be ascribed broadly in two forms: either the company representative acts in close cooperation with his or her business partners as a co-author of crimes commonly envisaged; or the individual corporate actor’s contribution to the crime is of an auxiliary nature while the design and control over the crime is left to the business partner.


Book Symposium Investment Law: The Interaction Between Investment Law And The Law Of Armed Conflict In The Interpretation Of Full Protection And Security Clauses

by Gleider Hernandez

[Dr Gleider I. Hernandez is a Lecturer at Durham Law School]

I am grateful to the organisers of this symposium on the collection, edited by Dr Baetens, on the interaction of international investment law (‘IIL’) with other areas of public international law (‘PIL’). Broadly speaking, I identify as a ‘generalist’ international lawyer, one who is interested in the system as a whole and how its organs and agents grapple with emerging problems of global governance. As such, when I was approached in 2011 to consider and address the interaction between two specialised regimes within international law, I leapt at the opportunity to consider how the law of armed conflict, and specifically, international humanitarian law (jus in bello or ‘IHL’), a distinct legal regime that, in its modern form, has been developing through multilateral treaty practice for well over a century, would be considered within the sphere of international investment law, a relatively new area of international law that has blossomed in the last two decades, yet primarily through bilateral treaty practice and through a rich body of case law.

The results were very interesting. With abundant treaty practice in which bilateral investment treaties (BITs) embedded variously-termed clauses providing for protection and security in various forms, the interaction and possible conflict of norms between these two specialised regimes was inevitable. Indeed, factually speaking, a substantial portion of modern investment disputes have arisen precisely through the continued scourge of armed conflicts between and within States. As such, two questions needed to be considered: first, the manner through which public international law has addressed and considered the effects of armed conflicts on rights and obligations, and whether generalised, abstract rules and principles can be distilled; and secondly, whether practice in the area of investment law—specifically treaty practice in BITs and the interpretation of such treaties by specialised investment tribunals—could be said to be in harmony with the general international law framework.


Ryan Goodman Responds to War/Not War

by Kevin Jon Heller

Ryan has kindly responded to my post commenting on his claim that “arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict.” Unfortunately, our conversation has something of a Pinteresque quality: in claiming that I mischaracterized one of his central claims, he mischaracterizes my central claim. Ryan’s reply is predicated on the idea that I’m defending specific scholars against the idea that they have flip-flopped opportunistically regarding whether the US is involved in an armed conflict with al-Qaeda. I don’t know why he thinks that: he provided no examples of specific scholars flip-flopping in his post, and I did not defend any specific scholars against the claim of flip-flopping in mine. My primary point was simply this: because the existence of armed conflict, particularly non-international armed conflict, is fact-specific, context-dependent, and fluid, it is problematic to assume — as Ryan does, and as the USG alway has — that (in Ryan’s words) it would have been ”a better path over the past twelve years” to take “a consistent position that one legal situation (war) or the other (not a war) exists” between the US and AQ than to take different positions on different aspects of that supposed “armed conflict” at different points of time. My secondary point, which built on the primary one, was that Ryan’s commitment to a unitary view of the supposed “armed conflict” between the US and AQ blinded him to the fact that it was impossible to infer anything untoward or opportunistic — “flip-flops” is obviously a word with negative connotations — from the fact that different scholars have taken different positions at different points in time on different aspects of that conflict. I stand by both points, and unfortunately, because of the misunderstanding between us, Ryan’s post addresses neither of them.

I also want to briefly address Ryan’s dismissal of my claim that, with regard to 9/11, “[o]ne attack, no matter how horrible, does not a (non-international) armed conflict make.” He disagrees, citing a 2003 article by Derek Jinks in which Jinks claims (1) that “the laws of war apply to all acts committed in an armed conflict even if committed prior to the point at which the ‘protracted’ threshold was crossed,” and (2) that NIAC exists even if the hostilities are not adequately organized and intense as long as “the state party to the hostilities interprets them as an ‘armed conflict (a subjective standard).” I have great respect for Derek’s work, but both points are well outside of the IHL mainstream. (And note that Derek repeated the second point today.)

I will try to write in more depth about Derek’s points soon. Suffice it for now to say that the only cite he provides for his first point does not actually support his argument. Here is what he says in the footnote, citing paras. 619-27 of the Trial Chamber’s judgment in Akayesu:

The jurisprudence of the ICTR is instructive on this point. The relevant “armed conflict” in Rwanda lasted a total of six months. Applying the ICTY definition, the tribunal held Common Article 3 applicable to the conflict, finding that the “armed conflict” existed from the initiation of the hostilities even if the existence of an armed conflict could only be discerned after the violence had become “protracted.”

That is not what the Trial Chamber held. It held only that “[i]n the present case, evidence has been presented to the Chamber which showed there was at the least a conflict not of a international character in Rwanda at the time of the events alleged in the Indictment” (para 627; emphasis mine). The events alleged in the indictment with regard to war crimes began on 7 April 1994, one day after President Habyarimana’s plane was shot down. By that time, the conflict had already begun between the RPF and FAR (see para. 109 of the judgment), justifying the Trial Chamber’s conclusion that a NIAC existed. More importantly, the Trial Chamber neither suggested nor implied that the attack on the plane — the Rwandan genocide equivalent to 9/11 — was itself part of the NIAC that began the next day. That was simply not an issue in the case.

Finally, it’s also worth briefly noting that Akayesu also contradicts Derek’s second point — that a state’s subjective belief a NIAC exists means that a NIAC exists even if the hostilities do not objectively qualify as armed conflict. The Trial Chamber specifically noted (para. 624) with regard to both Common Article 3 conflicts and Second Additional Protocol conflicts that “these criteria have to be applied objectively, irrespective of the subjective conclusions of the parties involved in the conflict.” But I’ll have more to say about that issue later.

A Reply to Goodman Re: War/Not War with Al-Qaeda

by Kevin Jon Heller

Ryan has a fascinating but problematic post today at Just Security in which he takes international-law scholars to task for opportunistically flip-flopping on whether the US is involved in an armed conflict with al-Qaeda. Here is the crux of his argument, taken from the post’s introductory paragraph:

Those arguments have been inconsistent with regard to one fundamental legal question: whether the US is, as a matter of law, in an armed conflict. In fact, a pattern has emerged over the years: opposition to different actions has alternated between arguing that the US is—or is not—involved in an armed conflict with Al Qaeda. It sometimes seems as though the preferred argument depends on how that threshold question—whether we’re in a war—affects the interests at stake.

I thought about writing a letter to the editor in response, but there is no guaranteed that Just Security would publish it — and there would be no way for anyone other than a Just Security member to join the discussion (Facebook and Twitter, as I’ve said, being inadequate media for dialogue.) So I thought I would reply on Opinio Juris and invite interested readers to comment here.

The basic problem with Ryan’s post is this: it conflates inconsistency of outcome and inconsistency of principle. In Ryan’s view, “war” with AQ is a simple binary: either the US has been or has not been at war with AQ. As he puts it:

What might have been a better path over the past twelve years and, more importantly, the way forward? At the very least: a consistent position that one legal situation (war) or the other (not a war) exists.

Ryan thus equates inconsistency of outcome with inconsistency of principle: if scholars have taken inconsistent positions about war/not war between the US and AQ, that must be because they have adopted inconsistent legal principles (opportunistically, no less) concerning the existence of war.

But that is a flawed understanding of international humanitarian law. The basic principle of conflict qualification, as I have pointed out many times before, is this: the existence of non-international armed conflict is a fact-specific determination, one that depends on the organization of the non-state actor and the intensity of hostilities between the non-state actor and a state. Conflicts evolve over time in terms of both organization and intensity, so peace can turn into NIAC and NIAC can turn into peace. And, of course, there are many other types of conflict: NIAC can turn into IAC (Libya when the West intervened on behalf of the rebels); IAC can turn into NIAC (Afghanistan with the toppling of the Taliban); IAC can turn into occupation and occupation can turn into NIAC (Iraq); IAC and NIAC can exist alongside of each other (which would be the case if the US started bombing Syria); and so on. The qualification matters, because the type of conflict affects everything from targeting rules to the detention regime (as Ryan well knows, having written very intelligently about detention of civilians).

Because conflict qualification, especially concerning the existence of NIAC, is an inherently fluid and fact-specific determination, it is impossible to infer inconsistency of principle with regard to the nature of the conflict between the US and AQ from inconsistency of outcome. It is completely possible to take a principled approach to conflict qualification and yet not conclude that “one legal situation (war) or the other (not a war) exists.” Indeed, I’d go further and suggest that the most unprincipled approach to conflict qualification is the one that the US has adopted. The USG has never made an effort to take conflict qualification seriously; it has simply assumed the existence of a global non-international armed conflict between the US and AQ since bin Laden “declared war” in 1996. (Hence the USG’s ability to claim with a straight governmental face that al-Nashiri was able to commit war crimes prior to 9/11 and prior to the AUMF.) The only principle behind the US position is expediency — the USG’s desire to have its “war” with AQ governed by IHL instead of by IHRL.

Let me be clear: I am not defending all of the scholars that Ryan mentions in his post. I have vast disagreements with some of them, and some of them may well be arguing opportunistically. But I suspect that, if we examined many of their positions, we would find that their supposed inconsistency actually reflects a good-faith effort to take conflict qualification far more seriously than the USG ever has. Specifically, I’m willing to wager that most of those positions were based on (1) a rejection of the idea that the US can be in a global NIAC with AQ, an idea that to the best of my knowledge no non-American scholar accepts; and (2) an insistence that although the US and AQ can be involved in NIACs in specific geographic areas — Afghanistan, Pakistan, Yemen, etc. — the existence of such NIACs has to not only be determined based on the situation on the ground (organization and intensity), but also needs to be re-assessed over time.

Let me end with a couple of examples. In “Turn 1,” Ryan chides Allain Pellet for claiming that it was “legally false” the US and AQ were at war after 9/11 and takes Antonio Cassese to task for calling it a “misnomer” to describe the US/AQ conflict as a “war.” Dig deeper, however, and both Pellet and Cassese were absolutely correct. Pellet’s article was written 10 days after 9/11, nearly three weeks before the US began bombing Afghanistan. At that point there was no armed conflict between the US and AQ. One attack, no matter how horrible, does not a (non-international) armed conflict make. And Cassese was not denying the possibility that the US and AQ could be involved in a non-international armed conflict; he was denying that the US and AQ could be involved in a “war” — a term that has always been reserved for armed conflict between states. So his claim, too, was accurate.

Emerson is right — “[a] foolish consistency is the hobgoblin of little minds.” The problem is not with international law scholars who have “flip flopped” on the qualification of the armed conflict between the US and AQ; the problem is with the USG’s insistence that it has be either/or. When it comes to IHL, very few complex legal issues admit of simple binaries.

Eric Posner on the Coming Death of the ICC

by Kevin Jon Heller

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn’t much point in disagreeing with his basic thesis; no one knows at this point — not him, not I — whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in his article. Some are unfair; others are simply wrong.

If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

This assertion falls into the unfair category. As Alana Tiemessen pointed out on twitter, the ICC can hardly be blamed for the failure of the Security Council (for now) to refer Assad to the Court. And, of course, the assertion simply ignores the fact that the Security Council has referred controversial situations to the Court in the past. Posner could have acknowledged Darfur and Libya. He could have acknowledged how the Darfur referral has made it considerably more difficult for Bashir to function as Sudan’s head of state. (See, e.g., the ongoing controversy over his desire to travel to the US to attend the UN General Assembly, which will never happen.) If Posner wanted to say something critical, he could have pointed out that the real problem is the Security Council’s failure to back up its referrals, either financially or in terms of enforcement. But that would have simply highlighted the fact that the problem is the Security Council, not the ICC.

Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

Both unfair and wrong. Posner simply elides the difference between aggression, crimes against humanity, and war crimes with regard to retroactivity…

Brief Thoughts on the Russia-US Deal (and No, I’m Not in Favor of Force)

by Kevin Jon Heller

On both twitter and the blog, readers seem to have inferred from my previous post that I’m somehow disappointed that the US-Russia chemical-weapons deal does not automatically allow force for noncompliance. I suppose that’s my fault; I tend to assume when I write that readers have at least some prior knowledge of my politics. So let me be clear: I am categorically opposed to the US using military force against Syria in the absence of Security Council authorization. (And I’d be very skeptical of it with authorization, but at least it wouldn’t be illegal.)

So what do I think of the US-Russian deal? For what it is, and assuming Assad complies, it seems like a good idea. Anything that reduces Syria’s stockpiles of chemical weapons is positive. Although I don’t think Assad ordered the Damascus attack, I have no doubt he would use chemical weapons if (as seems unlikely at that this point) the rebels ever threatened to overthrow his regime. And of course someone in the Syrian military used chemical weapons, so it would be great if that could not happen again. I also have little doubt that the rebels would use chemical weapons if they could, so anything that limits that possibility, as well, is a good thing. I also hope that the deal will put pressure on other states in the region — Israel and Egypt, in particular — to ratify the Chemical Weapons Convention and destroy their own stocks of the weapons.

That said, my central critique of the US obsession with chemical weapons still stands: they are only a very minor part of the conflict. The real problem is the systematic violence the Assad regime has unleashed against its own people with conventional weapons — and the equally unconscionable, if less intense, violence inflicted on those same people by the rebels. This deal not only does nothing to address that violence, it significantly distracts attention from it. When was the last time the media focused  on anything in Syria other than chemical weapons? Just this week, Human Rights Watch published reports on a mass execution of 248 people by Syrian forces in May and on the Syrian military’s widespread use of cluster munitions, which are no less indiscriminate than chemical weapons, while the Commission of Inquiry published a report documenting the Syrian military’s numerous — and deliberate — attacks on medical facilities. How much attention have those reports received in the media?

My hope, of course, is that a successful resolution to the chemical-weapons problem will free up the relevant parties, and the media, to focus on the need to find non-military ways to pressure the Assad government and the rebels to stop killing innocent civilians. But I’m not holding my breath. I imagine 95% of the coverage we will see in the coming months will focus on whether Syria is actually complying with the US-Russian deal. In other words, business as usual. Meanwhile, Syrian civilians will continue to be killed through conventional means in large numbers.

Does the Washington Post Editorial Page Have ANY Standards Left?

by Kevin Jon Heller

Apparently not, because yesterday’s war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I’ve been out of the fisking game for a while, but the editorial simply can’t pass unmentioned.

Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action finally forced a resolution. Even Afghanistan, where NATO troops stepped into a civil war that had been raging for a decade, is experiencing its lowest level of civilian casualties in more than a generation.

When you’re citing Afghanistan — now in its 12th year of conflict, with tens of thousands of civilian casualties, millions of refugees, 3300+ dead US soldiers, and a price tag nearing $500 billion — as an example of successful Western military action, you should probably just stop, delete your file, and go play with your kids.

(But I do like the slogan for the US: “Year 12 in Afghanistan: Lowest Civilian Casualties Ever!”)

That track record should force even peace advocates to consider that military action is required to bring some wars to an end. And yet there’s been little evidence of that sentiment in American opposition to missile strikes against military targets in Syria.

Obama has specifically disclaimed any intention to end the Syrian civil war through military action. But whatever…

Obama’s “Credible Threat” of Military Action Against Syria

by Kevin Jon Heller

In his speech yesterday, Obama predictably took credit for the latest developments regarding Syria’s use of chemical weapons:

In part because of the credible threat of U.S. military action, as well as constructive talks that I had with President Putin, the Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical weapons. The Assad regime has now admitted that it has these weapons, and even said they’d join the Chemical Weapons Convention, which prohibits their use.

Such shameless credit-mongering is more than a little difficult to swallow. Had Syria’s new willingness to give up its chemical weapons materialized two weeks ago, when Obama was still rattling his sabre and promising to attack Syria without congressional authorization, it would have been reasonable to conclude that the “credible threat of US military action” was the decisive factor in Assad’s capitulation. But now? Just days after Obama acknowledged that it would be very difficult for him to attack Syria against the will of both Congress and a large majority of the American people? Sure, he hedged a bit, insisting that he has the authority to attack Syria anyway. But I doubt many people (especially Assad) take Obama’s hedge seriously — defying the will of Congress would at a minimum lead to the extremist House holding him in contempt, and it could well lead to a foolish and ultimately doomed attempt to impeach him. The last thing Obama needs is to spend the final few years of his presidency dealing with either possibility — especially given that attacking Syria would accomplish next to nothing from a military standpoint and runs the risk of dragging the US far more deeply into the Syrian civil war than Obama wants.

The idea that the latest diplomatic developments are attributable to the US’s “credible threat” of military action in Syria, then, is anything but credible. Indeed, I’d like to suggest an alternative explanation, one that leads me to be relatively optimistic about the fate of the Russian proposal: this is a diplomatic dream come true for Assad. (And Russia, for that matter.) Although I think there is little doubt left that Syria’s military used chemical weapons against civilians, there is still no evidence that Assad ordered their use. The new Human Rights Watch report specifically concludes that the Syrian government is responsible for the Damascus attack, but it does not claim that Assad himself was responsible for them. And a German newspaper has claimed that “high level national security sources” in the German government believe that Assad “did not personally order last month’s chemical weapons attack near Damascus… and blocked numerous requests from his military commanders to use chemical weapons against regime opponents in recent months.”

I have no idea whether the German report is true, and I’m skeptical of the claim that Assad actively blocked the use of chemical weapons. But I find it very difficult to imagine that Assad was behind the Damascus attack. Had the attack occurred last year, when it looked (at least for a time) like the rebels might actually be able to overthrow the government, I would have had no problem believing that Assad was behind it. He’s clearly a monster, and I’m sure he would use any weapon in his arsenal as a last resort. But why now? Why would Assad use a weapon that has very little tactical military use when it seems clear that the rebels are slowly losing the war? Assad may be a monster, but he’s not an irrational one. He had to have known that using chemical weapons so openly would be of little military benefit and would run the risk of international condemnation and even military intervention. So I find it unimaginable that he would have used them anyway.

If Assad was not responsible for the attack, and if he thinks he is going to win the civil war, the Russian proposal for avoiding US military intervention is a fantastic solution to his international problems. Assad gives up weapons he has no intention of using anyway, and in exchange he reaps the diplomatic benefits of giving them up and avoids being attacked by the US. And, of course, he remains free to keep on killing innocent civilians with conventional weapons, which the US has made clear it has no intention of using force to stop. As I said, a dream come true for Assad.

Obama can claim all he wants that he’s responsible for the possibility of Syria giving up its chemical weapons. In reality, it’s just as plausible that Assad has played him like a fiddle.

White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria.  The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law.  In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate!  Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

I don’t fault the reporter here since the constitutional issue is plainly more important than the international one, as a practical matter.   But I am curious that the President, who has publicly cited international law as a factor in his decisionmaking, has not bothered to offer anything more than a quote in a NYT article to explain its international legality.  To be sure, Congress is not exactly pushing him to do so, but I am surprised the bureaucracy hasn’t generated anything yet. Leak, please!

Can the General Assembly Provide a Way Around the Security Council on Syria?

by Julian Ku

As Samantha Power (the new U.S. Ambassador to the U.N.) demands unilateral action and rages against the deadlocked Security Council, it is worth thinking again about the odd structure of the UNSC and its veto power for P-5 members.  In this light, I would point our readers to an interesting piece by Andrew Carswell forthcoming in the Journal of Conflict and Security Law entitled “Unblocking the Security Council: The Uniting for Peace Resolution.”  Essentially, there is some (very thin in my view) precedent from the Korean War era for the General Assembly to provide authority for the use of military force.  This might allow the U.S. to seek GA endorsement of a strike against Syria due to the deadlock in the Security Council.  As a practical matter, it is far from clear that a majority of the current GA would actually support the U.S. but even if it did, the legal significance of a GA act is uncertain to say the least.  Still, something worth discussing.

Unfortunately, the full article is not quite done but it will be out shortly. This link may provide (for a limited time) access to his almost complete draft. His abstract is below the jump.

Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

by Geoffrey Corn

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 123.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  (more…)