The week before 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 case for the legality of humanitarian intervention without Security Council approval. Kevin Heller responded to several of Koh’s points in a strong post at opiniojuris, and others, 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 would have been legal under international law.

To begin with, Koh writes 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. He slams the widespread view on humanitarian intervention absent Council approval as “the emerging party line” and refers repeatedly to that view as absolutist, rigid, and (quoting Daniel Bethlehem) “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, 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.

First, he interprets Article 2(4) of the UN Charter, the ban on the use of force, by referring primarily to the Charter’s purpose of promoting human rights. He suggests that we should understand the prohibition on force “not as the end in itself, but a means for promoting the U.N.’s broader purposes.” That’s a fair argument, and I applaud Professor Koh for highlighting the importance of human rights promotion as a purpose under the Charter. But in highlighting one purpose, I think he fails to acknowledge that the ban of force was in fact an end in itself, not merely a pathway to some other purposes. As a result, he takes limited account of the legal weight owed to the ban on the unilateral threat or use of force outside of self-defense.  Consider the preambular language noting that the Charter aims “to ensure . . . that armed force shall not be used, save in the common interest.” Similarly, the opening operative provision—Article 1(1)—focuses attention not on rights but the aim of security and peaceful dispute settlement. Chapter VII revolves around the effort to monopolize lawful force in the Council, absent a self-defense rationale. The ban on force forms part of the deep structure of the Charter and one of the core motivating premises of the United Nations. Given Koh’s breadth of scholarship and experience, I would have liked to see him wrestle with the unfortunate possibility (or likelihood, as I see it) of the ban on force taking precedence over rights promotion.

The focus on human rights promotion over the ban on force leads him to denigrate the veto, in this situation at least, as inconsistent with the Charter purposes. The Russian and Chinese vetoes deserve strong criticism on the merits. Yet the veto is an essential part of the Charter’s institutional machinery to achieve the Charter purpose of restraining the use of force, a tool for which the United States, more than any other party at Dumbarton Oaks or San Francisco, bears responsibility. Russia’s veto on Syria might be “cynical,” as Koh says and I agree, but the Charter system allows five states the unfettered power to restrain Council action. A legal system in which the veto power of five states is at the center may be out of date, but until the time of mutual restraint and good faith, or until the United States and others offer outright reform, this legal system at the heart of the Charter is unlikely to change.

Second, Koh looks at the interplay between Articles 2(4) and 51, the latter which acknowledges the “inherent 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 to Article 2(4). But if it’s that ancient a norm, why didn’t the Charter 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 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 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 of this is illuminating.) They were clear, much to the chagrin of policymakers on the State Department’s Seventh Floor, that they would not bless the operation as legal under international law. They developed the famous “factors” justifying the use of force, but these were clearly related to policy, not law. (Disclosure: I was a lawyer in State/L at the time, though not involved in assessing the legality of force against Belgrade.) Koh says that he “watched the nineteen NATO members accept the legality of some form of humanitarian intervention without U.N. Security Council approval,” but the United States (and many, if not most, of the other NATO allies) pointedly refused to join the British legal approach. Koh acknowledges that the U.S. Government “did not expressly articulate a customary international law exception,” but the important point is that it would not do so implicitly either (and as Kevin noted, dozens of states affirmatively rejected it). In short, as Goldsmith also concluded, Kosovo offers little support as an international legal precedent for intervention in Syria.

Third, Koh says up front that he wants to distinguish the legal questions from the policy ones, but I’m not sure he successfully applies his own rule. Consider for instance what he describes as “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 . . . the documented deliberate and indiscriminate use of chemical weapons . . . and the growing likelihood of regional insecurity.” How are these not policy considerations? Sure, international law cares about these things, but these facts are for policymakers to weigh against the clear legal regime banning force outside self-defense and Council authorization.

I respect that Professor Koh cannot imagine that a nation would be denied, “no matter how well-meaning, any lawful way to use even limited and multilateral force” against Assad’s chemical program. This is a conundrum, indeed, but this is a tension built into the Charter, a document that many would say no longer meets the needs of contemporary global problems. But it remains the law. Professor Koh has faith in the ability of the law to cabin the circumstances of Syria – chemical weapons directed against civilians – so that a norm of humanitarian intervention may be truly exceptional. I don’t share that faith, nor do I share the belief that practice has changed enough to undermine the ban on unilateral uses of force outside of self-defense.

Professor Koh concludes by saying that those of us who “claim that we cannot craft such a [humanitarian] legal exception” are responsible for a “failure of lawyerly responsibility.” And his analogical questions are provocative. But I want to counter that with another question: why the struggle, or demand, for lawfulness? Why do policymakers need this reassurance of legality, and why is it a failure if we as lawyers cannot provide it? To my mind, a benediction of lawfulness, even if narrow, makes using force easier, more likely, but policymakers should know that most states reject the idea of armed force if it is not self-defensive or authorized by the UN Security Council, and that most scholars share that view as a matter of law. The President may look at that fact and decide that other values matter more to the United States: atrocity prevention, regional security, the chemical weapon norm, to name a few. And he may decide that the consequences of violation are light – almost no likelihood of a criminal or other claim against him or the U.S. Government – and the risk of eroding the Charter’s restraint on the use of force minimal. Indeed, they may conclude that violation is necessary as part of developing either new practice and opinio juris or causing Russia and others to rethink their recalcitrance. That’s the policymakers’ call. But let’s not make it easier for them to use force by saying it’s legal, when by most accounts – whether you stigmatize them as conventional or “party line” or whatever – it’s not.