The week before khol last, Harold Koh posted a defense of President Obama s authority to use force i

Editors-in-Chief Ryan Goodman Steve Vladeck Executive Editors Jameel Jaffer Fionnuala khol Ní Aoláin khol Beth Van Schaack Founding Editors David Cole Jennifer Daskal Kristen Eichensehr Daphne Eviatar Shaheed khol Fatima Jennifer Granick Sarah Knuckey Harold Hongju Koh Marty Lederman David Luban Rolf Mowatt-Larssen Faiza Patel Julian Sanchez Michael Schmitt Jeremy Waldron Andy Wright Managing Editor John Reed Assistant Editor Ruchi Parekh Masthead X
Presented by: Defense One
Speakers: Jessica T. Mathews, Carnegie Endowment khol for International Peace; Ali Vaez, International Crisis Group; khol George Perkovich, Carnegie Endowment for International Peace; Karim Sadjadpour, Carnegie Endowment for International Peace; Yezid Sayigh, Carnegie Middle East Center; Frederic Wehrey, khol Carnegie Endowment for International Peace
By David Kaye Monday, October 7, 2013 at 1:45 PM
The week before khol last, Harold Koh posted a defense of President Obama s authority to use force in Syria without congressional authorization. Last week Professor Koh turned to international law, making a lengthy khol case for the legality of humanitarian khol intervention without Security Council approval. Kevin Heller responded to several of Koh s points in a strong post at opiniojuris , and others, khol including Meg deGuzman and Gabor Rona, added insightful comments there. While I share their reactions, I want to register some additional reasons for why Koh s case fails to persuade me that an attack on Syria s chemical weapons program khol would have been legal under international law.
To begin with, Koh writes khol as an impassioned, compelling advocate, and as a result, his post does not wrestle adequately with the counter-arguments to or implications of his position. khol He slams the widespread view on humanitarian intervention absent Council approval khol as the emerging party line and refers repeatedly to that view as absolutist, rigid, and (quoting Daniel Bethlehem) khol overly simplistic. He suggests that the conventional per se illegal view means that, if President Obama cannot threaten force in the face of Assad s repeated use of chemical weapons and further Russian veto, modern international law requires accepting the repeated, indefinite, deliberate slaughter of thousands of civilians with a per se illegal weapon of war. Ouch!
Perhaps I m overly sensitive, since I share the party line . However, khol what policymakers and the public need now perhaps especially from Harold Koh as he may be taken (incorrectly, I imagine) as espousing a State Department view, as President Obama has not yet appointed a new Legal Adviser is something Koh does not offer: an assessment of the strength of the arguments for legality, whether and why those arguments are in the minority (as they most certainly are), whether other states would accept them, and the legal consequences they might generate. I won t address all of those angles either, but I will highlight a few areas where I would welcome Professor Koh s elucidation.
Second, Koh looks at the interplay between Articles 2(4) and 51, the latter which acknowledges the inherent khol right of individual or collective defense, and asks whether the Charter permits another exception. Pardon the Latin, but its seems apt to say here, expresio unius est exclusio alterius . Why would the Charter tolerate other exceptions than those specifically identified, given the purpose of restraining use of force? Koh suggests that customary international law on humanitarian intervention, which dates back to Grotius, may be crystallizing as a customary legal exception khol to Article 2(4). But if it s that ancient a norm, why didn t the Charter khol more clearly acknowledge it? I would argue that the Charter framers sought to restrain such uses of force, believing that a humanitarian exception would ultimately khol swallow the rule against force. The example of self-defense is cautionary, as states (especially the United States) have expanded it considerably. At least with self-defense, however, it was clear that individual and collective self-help khol could not be denied if the Charter were to have a chance of being adopted.
Professor Koh cites India s invasion of East Pakistan and Tanzania s of Uganda for evidence of state practice, but it s his description of Operation Allied Force in 1999 (Kosovo), as evidence of a customary norm s development, that drew my attention. Adam Roberts (from whose 1999 essay in Survival Koh draws substantially) may have thought Kosovo perplexed lawyers, but it didn t perplex those in the State Department. Koh acknowledges as much, since he believes that the failure of the Clinton administration to articulate a clear legal rationale for its Kosovo intervention haunts us now. But I believe that Clinton administration lawyers did not want to articulate such a legal rationale, despite the pressure they were under to do so. ( Jack Goldsmith s discussion khol of this is illuminating.) They were clear, much to the chagrin khol of policyma