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Strike on Syria for Chemical Weapons – Not Illegal

The world wrestles over what to do when nations and the UN Security Council fail in their responsibility to protect civilians from atrocities. A strike, as threatened by US President Barack Obama for a chemical weapons attack on Syrians, would have been legal, argues Harold Hongju Koh, former dean of Yale Law School. “I would argue that under certain highly constrained circumstances, a nation could lawfully use or threaten force for genuinely humanitarian purposes, even absent authorization by a UN Security Council resolution,” he writes. “The US and its allies could treat Syria as a lawmaking moment to crystallize a limited concept of humanitarian intervention, capable of breaking a veto stranglehold in extreme circumstances, such as to prevent the deliberate use of forbidden weapons to kill civilians.” Describing Obama as “reluctant warrior” who prefers diplomacy, Koh compares Obama to the king in Shakespeare’s Henry V who bluffs about brutal attack and thus gains entry into enemy territory. – YaleGlobal

Strike on Syria for Chemical Weapons – Not Illegal

Humanitarian interventions, as proposed by Obama on Syria, shape responsibility to protect
Harold Hongju Koh
YaleGlobal, 3 October 2013
Crime without punishment : President Obama failed to publicly blame President Putin for Syrian mass slaughter (top); Syrian victims of gas attack by Russia’s ally President al-Assad

NEW HAVEN: Crises are lived forward, but understood backwards. While it’s still too early to know how the Syria crisis of will end, we can start evaluating the precedents of law and policy it should generate, properly understood. When the dust settles, notwithstanding a welter of political miscues, history might well remember the episode as Obama’s Harfleur, where an announced threat of potentially illegal force catalyzed a better nonviolent result, thereby reinvigorating multilateral diplomacy abroad and much-needed public debate at home. In my judgment, there are strong arguments that under international law, President Barack Obama’s threatened intervention in Syria would have been legal. While the law is hazy, this would have provided a law-making moment to clarify when a nation may validly use humanitarian force.

To read recent commentaries, one might think that the villain of this piece is Obama, not Bashar al Assad or Vladimir Putin. But from the start, the president has been the quintessential reluctant warrior, who for years tried to avoid military intervention in Syria and just this May gave a major speech at the National Defense University reaffirming that he wants to end wars in Iraq, Afghanistan and against Al Qaeda. Just as undeniably, Assad is a war criminal who has slaughtered his own people for months – with and without chemical weapons – and lied about it while Putin has given him cover with four vetoes and shameless rhetoric.

Facing weak support abroad and at home, Obama pushed the pause button not once, but twice: first saying on August 30, that instead of using the previously threatened military force, he would seek prior approval from a distracted and divided Congress when he had not secured the necessary votes from the House of Representatives. Three weeks later, he postponed indefinitely that congressional vote, which he likely would have lost, to pursue diplomatic alternatives that remain ongoing.

Assad is a war criminal who has slaughtered his own people for months and lied about it.

But the president’s greater political miscue was diplomatic. He failed, in his August 30 speech, to address not just the American public, but Putin and Assad. Obama should have made clear to the G20 that he was going to St. Petersburg to mobilize the other 17 leaders to put pressure on Russia and China to support a long-overdue UN Security Council resolution, or be publicly blamed for complicity in mass slaughter by illegal chemical weapons. He should have made it clear to Assad that his only way to avoid a US attack was to admit the use of chemical weapons, permit UN inspections and promptly turn over existing stockpiles.

Apparently, Obama had sent these messages privately and repeatedly, perhaps as early as the previous G20 meeting among heads of state in June 2012, but in so doing, he secured neither a united multilateral front nor the public commitment from Russia or Syria to claim diplomatic victory in St. Petersburg. He drew a red line without the domestic or international politics needed to defend it. That made his abrupt threat of force this summer seem less principled than unilateral, and strikingly inconsistent with his broader, generally successful first-term “smart power” approach to foreign policy.

The legality under international law of Obama’s threatened action has been widely questioned. Yet I would argue that under certain highly constrained circumstances, a nation could lawfully use or threaten force for genuinely humanitarian purposes, even absent authorization by a UN Security Council resolution. Under this view, had Obama proceeded in Syria as threatened, the US would not have been in flagrant breach of international law, but rather, in a legal gray zone. The US and its allies could treat Syria as a lawmaking moment to crystallize a limited concept of humanitarian intervention, capable of breaking a veto stranglehold in extreme circumstances, such as to prevent the deliberate use of forbidden weapons to kill civilians.

Obama drew a red line without the domestic or international politics needed to defend it.

The customary international law concept of humanitarian intervention dates back to Grotius and the 17th century. Since the birth of the UN Charter, examples of state practice often invoked to illustrate humanitarian intervention in action include India’s incursion into East Pakistan to help create Bangladesh in 1971 and Tanzania’s intervention into Uganda to help oust Idi Amin in 1978-79.

A recent watershed regarding the collective use of humanitarian force came when NATO took military action in Kosovo in 1999, also without express Security Council authorization relying upon a listing of factors that together justified the intervention. Kofi Annan, then secretary-general, captured the UN’s ambiguity about a narrowly tailored form of humanitarian intervention in situations of great extremis by issuing a statement that recognized occasions when force might be necessary, while also referring to the importance of Security Council authorization. This catalyzed the international legal movement to explore whether there is an international Responsibility to Protect, or R2P.

In 2004, a High-Level UN Panel on Threats, Challenges and Change “endorse[d] the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort.” At the 2005 World Summit, member states declared that “we are prepared to take collective action . . . through the Security Council . . . on a case-by-case basis . . . should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

Left unanswered, what should happen if a nation or the UN Security Council fail on responsibility to protect?

Left unanswered in this legal evolution was what should happen if, as in Syria, the national government and the Security Council fail to fulfill their responsibility to protect? The International Commission on Intervention and State Sovereignty argued 12 years ago that, “if the Security Council fails to discharge its responsibilities in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”

Syria presents an even stronger case for intervention than Kosovo. A recent UN report concluded unequivocally that chemical weapons were used on a relatively large scale near Damascus on August 21, causing numerous civilian casualties. In response, a group of nations could seek to fill the vacuum of protection to prevent future releases without invoking either a “legal right of humanitarian intervention” or a legal claim of R2P, in the sense of an international legal duty to intervene. These states could claim instead an ex post exemption from legal wrongfulness, as rules of state responsibility and domestic “Good Samaritan laws” permit benevolent interveners to do. This exemption could arise if a humanitarian crisis creates consequences significantly disruptive of international order – including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security of the region – that would likely soon create an imminent threat to the acting nations; if interested nations have exhausted all other remedies besides force; and if force could be used for demonstrably humanitarian purposes and was limited to what was necessary and proportionate to the threat.

In sum, despite Obama’s hesitations and diplomatic miscue, his threatened attack on Syria was not illegal and would certainly helped clarify the ambiguity of the responsibility to protect doctrine. After months of stalling, his threat of violence seems finally to have finally brought both Assad and the Russians back to the negotiating table with regard to chemical weapons. The saga recalls Shakespeare’s Henry V, where a principled, untested but war-weary leader gambles and threatens illegal force to win a key battle and make a nonviolent entry into Harfleur in 1415. As Kenneth Branagh’s version of the play shows, no one knows for sure if the leader actually would have used force had his bluff been called. But Obama’s controversial actions jumpstarted a stalemated diplomatic process and may now lead to a better result. 

 

Harold Hongju Koh is Sterling Professor of International Law and former dean (2004-09), Yale Law School; former legal adviser, US Department of State (2009-13); former assistant secretary of state for democracy, human rights and labor (1998-2001). This essay is a condensed and edited version of two-part essay published in Just Security.

Rights:Copyright © 2013 The Whitney and Betty MacMillan Center for International and Area Studies at Yale

Comments on this Article

8 November 2013
Approximately 2,500 years ago, Thucydides chronicled the Melian Dialogue in the History of the Peloponnesian War: “[Y]ou [Melians] know as well as we [Athenians] do that right, as the world goes, is only in question between equals in power.” If power is not equal, “the strong do what they can and the weak suffer what they must.”
Harold Hongju Koh, Sterling Professor of International Law, and former Dean of Yale Law School and Legal Advisor to then Secretary of State Hillary Clinton, echoes the Athenians in defending President Barack Obama’s claim of the strong to unilaterally attack Syria militarily under the banner of “humanitarian intervention,” “responsibility to protect,” or “Good Samaritan” duty. This, he claims, would be a “lawmaking moment” (YALEGLOBAL ONLINE, Strike on Syria for Chemical Weapons—Not Illegal, October 3, 2013). But the executive branch does not make law and declare war. Congress does. Speaking on behalf of the world’s sole superpower fearless of retaliation by puny Syria, Professor Koh employs euphemisms and casuistry. In contrast, the Athenians displayed manly candor when arguing that “might-makes-right.”
Professor Koh’s view is predictable. Justice Oliver Wendell Holmes’ observed that, "The law is the witness and external deposit of our moral life.” And the moral life of the American Empire condones limitless perpetual wars, secretly-ordered assassinations, and dragnet surveillance of American citizens on the President’s say-so alone in a futile quest for a risk-free existence. Koh acquiesced in or supported all of this lawlessness as Legal Advisor to Secretary Clinton.
At the outset, Koh wrongly assumes that President Obama is crowned with constitutional power to attack Syria without congressional authorization. Article I, section 8, clause 11 of the Constitution entrusts to Congress exclusively the decision to cross the Rubicon from a state of peace to a state of war. Every member of the constitutional convention agreed that the congressional power to declare war was a cornerstone against the Republic’s degeneration into executive tyranny. The sentiments conveyed in a letter from constitutional architect James Madison to Thomas Jefferson were uncontroversial: “The Constitution supposes what history demonstrates, that the Executive is the branch most prone to war and most interested in it, therefore the Constitution has with studied care vested that power in the Legislature.” President George Washington elaborated that any offensive use of the military requires congressional authorization. Thus, when the moment for military force abroad first arose, Congress enacted a series of statutes authorizing President Thomas Jefferson to use military force against the Barbary Pirates. That the U.S. Congress has not declared war since World War II does not mean that unilateral presidential wars are legal. Repeated constitutional usurpations do not become legal like a type of adverse possession. More than 50 years of laws authorizing legislative vetoes of executive action did not save them from invalidation in INS v. Chadha.
War is constitutionally disfavored because it legalizes savagery. War makes legal what is otherwise first-degree murder punishable by death. Accordingly, war is justified only by an actual or imminent attack that threatens the sovereignty of the United States, or a recurring perpetration or threat of mass atrocities against United States citizens. Under the international law precedents established during the post-World War II Nuremburg trials, war without such justifications of self-defense constitutes a crime of aggression.
Koh erroneously maintains that international law empowers any nation to intervene with military force in the affairs of another nation for “humanitarian” purposes. But who decides whether a military intervention is humanitarian? The nation that attacks? The persons injured or killed by the attacker? A majority of all nations based on a one-nation, one-vote principal? And how is the decision made? Before a tribunal? Who has the burden of proving a humanitarian purpose? Does the nation targeted for attack enjoy a right to notice and an opportunity to be heard? What is the threshold of human suffering that justifies humanitarian intervention?
Koh answers none of these questions. He tacitly supports combining prosecutor, judge, jury, and executioner in the President of the United States in the initiation and conduct of “humanitarian” warfare—the very definition of tyranny according to the Founding Fathers.
Koh cites without explanation India’s war against Pakistan to give birth to Bangladesh and Tanzania’s war against Uganda as examples of humanitarian interventions. India and Tanzania intervened to weaken their respective enemies, not for benevolence. And what was humanitarian about the persons killed by Indian and Tanzanian soldiers? What magnitude of atrocities did the interventions forestall? Hitler invaded the Sudetenland for alleged humanitarian purposes. Did international law entitle every nation in the world to attack the United States during World War II to mitigate the suffering of 120,000 Japanese American citizens or resident aliens herded into racist concentration camps? Is the United States authorized today to employ military force against China to relieve the suffering of Tibetans or Uighurs, to employ military force against Russia to relieve the plight of Chechens, or to employ military force against North Korea to relieve virtually its entire population from starvation or persecution?
The answer is categorically “No.” Humanitarian military interventions are prohibited under the United Nations Charter, Article 2(4) and (7), and constitute the crime of aggression. In practice, the doctrine would encourage chronic attacks by the strong to pulverize the weak. All nations exhibit human rights shortcomings. Only impoverished imaginations would be unable to concoct a plausible excuse for invading any nation to alleviate some level of misery under Koh’s humanitarian intervention theory. It would make aggression legal.
Professor Koh unconvincingly argues that President Obama would be justified in attacking Syria because it is possible to imagine that President Assad’s use of chemical weapons (in imitation of Iraq’s chemical weapons attacks on Iran which the United States materially supported) might significantly disrupt the international order by causing chemical weapons proliferation, massive refugee outflows, and regional instability that might spawn an imminent threat to the United States. Koh’s wild speculations to justify a military attack are indistinguishable from former Vice President Dick Cheney’s infamous “1 percent doctrine,” i.e., the theory that a sub-microscopic risk of an imagined national security danger should be treated as an actual attack on the United States. The Koh-Cheney moral philosophy would justify attacking any nation that taught its citizens to read because literacy could lead to a mastery of high-energy physics, which could lead to developing a nuclear capability, which could lead to an imminent nuclear attack on the United States. This is not the stuff of international law. It is an Orwellian manipulation to justify empire––a rerun of the Melian Dialogue.
There may be greater affronts to the Constitution and international law, but if there are, they do not readily come to mind.
Bruce Fein was former Associate Deputy Attorney General under President Reagan, 1981-83, is President of the National Commission on Intelligence and Foreign Wars, and author of American Empire Before The Fall.
-Posted for Bruce Fein , Attacking Syria – A War of Aggression?
12 October 2013
Fully agree with Mr. Barry.
Also a question, when will Americans understand that American law is just that, American law, and is only applicable into the confines of U.S. borders?
I am convinced that they are deluded enough to believe it applies everywhere, even in outer space!
-Paulo Borges , Brasil
12 October 2013
And the question is:
Who has elected the United States of America to have the power of decision on attacking a UN member country under ANY circumstance?
Are American a sort of CHOSEN nation as the Israelis claim they are?
And in this case, CHOSEN by WHOM?
-Paulo Borges , Brasil
5 October 2013
I would not dare to question such a Legal professional as Professor Harold
Hongju Koh on the detail of law.
However I must query the right of the Western powers to hide behind
such nebulous International ‘laws’ such as the ‘responsibility to protect’!
Surely that is a U.N precept which is only the responsibility of the Security Council as a whole, not just some members of the council!
The first thing to note about professor Koh giving the US a green light of legality is that he forgets that any Law must be ‘seen to be fair and impartial’! Legitimacy is questionable if the application of International Law is on a ‘pick and choose’ basis with political motivation!
How can the U.S. act as innocent Judge to decide to fill the ‘vacuum of protection’ in Syria when it and its proxy allies are the protagonists, aiding the rebel side, in the Syrian Civil War?
This is the problem when Politics is mixed with Law!
So we see in Palestine for instance, that there seems to be no U.N. or International application of the ‘responsibility to protect’-despite that country and its population being under military occupation for some 46 years!
Palestinians have been assassinated by the Israeli state, they have been shot and injured for protesting against their occupation, their homes have been destroyed, and their water sources have been diverted for the benefit of Israel! Palestinian fishermen are frequently attacked by Israeli gunboats-for fishing off their own coast line!
Against International Law the Israeli state is stealing further parts of West Bank Palestine land and settling its own citizens on this illegal land!
Therefore the rank political hypocrisy of the West in International Law- negates the need of such a legal Luminary as professor Koh to pronounce!
-Barry M Watson , U.K.