Maj. Kurt M. Sanger, Letter to the Editor: Response to Harold Koh’s Just Security post of Oct 2, 2013

While considering Harold Koh’s interpretation of the UN Charter and its justifications for the use of force against Syria, try standing in the shoes of foreign ministers in China and Russia.  With Professor Koh’s endorsement of the practice, they too might be given to re-imagine what the Charter’s purposes and principles could authorize.  Invoking the evolution of law, legal gray zones, lawmaking moments, and the need for ex post exemptions exposes the weakness of the arguments.  It also reveals the danger that other nations might similarly rationalize their interpretations of the Charter.  No matter how specific an exception was drawn to solve Syria’s humanitarian crisis through the use of force, the enduring precedent might be that an exception could be claimed at all.  Attempts to find additional exceptions would surely follow.

The UN Charter’s prohibitions and exceptions regarding the use of force are without doubt unsatisfying in Syria’s case.  Yet this is the world we live in.  It is the order the member states created in the wake of World War II.

The humanitarian concerns that have repeatedly manifested themselves in Syria, Sudan, the former Yugoslavia, Rwanda, and countless additional nations, do nothing to abrogate the supremacy the Charter places on sovereignty and the restrictions it places on violence.  The necessity for intervention does not change the law.  Rather than creatively reinterpreting the Charter, the frustrations caused by the lack of effective, legal responses to Syria’s situation should motivate a reexamination of the international legal regime.

Syria presents not a lawmaking moment, but an opportunity to consider reform.  Though reforms might be thwarted by objections from member states, the exercise of envisioning reform is worthwhile.  Without a detailed alternative to the current use of force restrictions, the value of the restrictions cannot be fully appraised or appreciated.

The US has a choice to make regarding Syria.  It can declare that the rule of law is truly supreme or that there are humanitarian concerns that rise above the law.  There would be consequences for the US violating the Charter by using force without appropriate justification, even if to fulfill a worthy cause.   Nevertheless, the opportunity to shape the precedent and mitigate its impact would be more manageable than tinkering with the text and meaning of the UN Charter.

A law followed disingenuously may pose more danger to international order than a law broken. If the US truly values the rule of law, it should live with the limitations the UN Charter has countenanced since its inception, understanding adherence to the Charter is more valuable than halting any one international crisis.  However, if the US chooses to use force against Syria without approval or in self-defense, it should admit it is breaking the law for a worthy cause.  Violating the UN Charter for humanitarian concerns –and taking responsibility for it— would cause less damage than warping the law to the point that it could mean whatever member states wish.

– Maj. Kurt M. Sanger, USMC

Kurt Sanger is a major and judge advocate in the U.S. Marine Corps now teaching at Marine Corps University in Quantico, VA.  He is also an LL.M. candidate in National Security Law at Georgetown University.  These views are his own.

 

About the Author(s)

Kurt Sanger

Lieutenant Colonel and judge advocate in the United States Marine Corps