My recent two-part essay on Syria, posted on this blog, made both a policy claim and a legal claim. My policy claim was that despite undeniable political miscues, President Obama’s recent threat of force catalyzed a long-stalemated diplomatic process for securing Syrian chemical weapons. The Russians finally joined a landmark Security Council resolution to remove chemical weapons from Syria, but a long road still lies ahead. Maintaining a continued threat of force, I argued, remains critical if that diplomatic process is to progress. My legal point was that Obama’s threat to attack the Syria’s chemical weapons program, which catalyzed stalled diplomacy, was neither illegal under U.S. law– even without congressional authorization— nor illegal under international law– even without U.N. Security Council approval. But to the extent that Obama remains in a legal gray zone, we should treat this as a lawmaking moment. The President’s lawyers should now clarify –as they pointedly did not do in Kosovo–when and under what circumstances the U.S. would consider it lawful to use force for humanitarian purposes outside the Security Council framework.

Focusing narrowly on the international legal aspect of my argument, several thoughtful commentators—including Professors David Kaye, Kevin Jon Heller and Carsten Stahn —have now repeated the absolutist view that absent a self-defense rationale, Article 2(4) of the U.N. Charter bars use of force outside the Security Council. They essentially suggest that the original intent of the framers and the text of Article 2(4) permit no other reading. Kaye acknowledges,  “[a] legal system in which the veto power of five states is at the center may be out of date, but until the time of mutual restraint and good faith, or until the United States and others offer outright reform, this legal system at the heart of the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.” So we may not like Article’s 2(4) absolute bar against the use of force outside the Security Council framework, but a rule is a rule is a rule. The U.S. has no lawful option but to accept that rule, unless we can change the Security Council, which of course will not likely happen for many, many years.  The policy implications of this approach are clear: should Syria fail to comply with the latest Security Council resolution, it would still be illegal for Obama to keep a threat of force on the table. This would be true even if that threat finally got multilateral diplomacy in Syria going, and even if it seems critical to keeping the diplomatic process moving in the weeks ahead.

My previous posts explain why, as a matter of law, I think this reading of Article 2(4) is too simplistic. The “per se illegal” reading relies on interpretive techniques of originalism and textualism in ways that many of us would challenge if say, Robert Bork or Antonin Scalia were applying them to constitutional law. As my prior posts argued, the “territorial sovereignty rule” is not nearly so black and white as the absolutists claim, because textual ambiguity in Article 2(4), the broader structural purposes of the U.N. Charter, and some recent significant state practice give far more legal play in the joints than these commentators concede.  Like other originalist/textualist interpretations, the absolutist position does not acknowledge that the U.N. has multiple purposes –including protecting human rights, promoting regional security, and ending the scourge of war—instead flattening those purposes to a single goal: protecting sovereignty. Curiously, Kaye claims — twenty years after Lou Henkin wrote “Down with the S word”– that an absolute protection of territorial sovereignty from the threat or use of force “was in fact an end in itself.” Really? Even if P5 members or their client states commit genocide against their own people?

It was precisely to break the persistent Russian veto that in the past UN members have acknowledged that the Security Council’s monopoly on the use of force is not exclusive.  They have claimed the right to take military action outside the Security Council framework by adopting the Uniting for Peace Resolution or—as in the Cuban Missile Crisis– invoking the regional organizations language in Chapter VIII of the Charter. And one reason that nations may have more liberally invoked the self-defense rationale in such humanitarian crises as India-Pakistan and Tanzania-Uganda is because states have not worked hard enough to state a legal principle governing humanitarian use of force that better fits those pressing factual circumstances.  Significantly, at the time of the Cuban Missile Crisis, many international lawyers claimed the U.S. position was flatly illegal. Yet fifty years later, it is widely regarded as a decisionmaking case study in creative lawmaking.

The most recent watershed moment was Kosovo, when fourteen years ago, nineteen NATO countries used force for humanitarian purposes outside the Security Council framework for seventy-eight days.  Kaye gives short shrift to this precedent saying, in essence, that it stands for nothing, not even as a form of state practice followed out of a sense of legal obligation.  He claims that the British stood alone in stating a legal view that intervention outside the Security Council framework could be lawful, even though seventeen other NATO members plainly had to satisfy themselves of the legality or propriety of military intervention before they could join the collective operation.  Kaye thinks the State Department lawyers in the Legal Adviser’s Office correctly declined to state a legal rationale defending Kosovo operation, instead “develop[ing] the famous ‘factors’ justifying the use of force, [even though] these [factors] were clearly related to policy, not law.” But elsewhere he suggests that it is not up to government legal advisers to make “policymaker’s calls.” If that is so, in Kosovo, what business did the Legal Adviser’s Office have making the policy call to list “factors,” rather than issuing the clarifying legal opinion that the situation deserved?

Stahn attacks a strawman when he suggests that I am advocating using force in lieu of other available methods. In fact, as my proposed test clearly shows, I argue only that force may be legally available if all nonviolent methods have been exhausted. Both Heller and Stahn similarly claim that Syria is not really about humanitarian intervention because a limited military strike on Assad’s chemical weapons would aim not at ending the humanitarian crisis but at “sanctioning an unlawful means of combat, i.e. use of chemical weapons.”  But this misses the point: the real issue is whether the threat of force could catalyze and sustain a longer-term diplomatic process that could not just deter a repeat use of chemical weapons, but also achieve such broader humanitarian ends as a cease-fire that could lead to a meaningful peace process.  Curiously, Stahn focuses on U.N. Security Council Resolution 2118 as “a step in the right direction,” without ever asking how that resolution finally came about, after months of Russian resistance. “Bringing non-military options back to the forefront might turn Syria from a potentially ‘law-breaking moment’ into a ‘lawmaking’ moment,” he says. But why not acknowledge that it was Obama’s threat of force that finally made possible those “non-military options” and this lawmaking moment?

Significantly, none of these commentators mention that if Obama had followed their counsel, Assad would still be free to use chemical weapons with impunity, while Obama’s willingness to threaten limited force outside the Security Council framework finally pushed Russia to allow the U.N. system to function as it was designed.  Nor do they deny that if they are right, President Obama still could not lawfully threaten force –even in the face of Assad’s renewed use of chemical weapons and further Russian veto, because “modern international law requires accepting the repeated, indefinite, deliberate slaughter of thousands of civilians with a per se illegal weapon of war.”  “This is a conundrum,” Kaye concedes, “ 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.”

But why should the per se rule “remain the law,” particularly if it is so manifestly outmoded, and tolerant of gross human rights abuse? Whether or not Clinton’s lawyers were correct fourteen years ago not to follow the UK and state a legal rationale justifying Kosovo, why is such silence warranted now?  Because, Stahn says, legal reform was tried and failed before: “The consolidation of a new ‘affirmative defense’ would require support and authority that failed to get sufficient consensus in the process leading up to the adoption of the R2P principle by the 2005 World Summit.”  But when the Equal Rights Amendment failed to pass, did we just throw in the towel and say “so much for consolidation of support and authority for women’s rights?”  Given the stakes, why, eight years later, isn’t it again worth the effort to revisit this pressing question?

Kaye warns: “let’s not make it easier for [policymakers] to use force by saying it’s legal… when it’s not.” But let’s also not make it easier for people of good will to do nothing by pretending that the law is so determinate and immutable in the face of compelling moral imperatives, that we must keep treating as illegal what may now be necessary to save lives or spur diplomacy to remove chemical weapons. Kaye claims I “focus on human rights promotion over the ban on force.” But my real point was that these goals can be mutually reinforcing, because the use of force in carefully limited circumstances can protect human rights without undermining the general prohibition against force. Stahn similarly charges that I make a “binary argument,” although he is the one who flattens the Syria crisis into a binary choice: follow the law because it is so clear, or break it and take the consequences. As the most powerful nation in the international legal order, the United States sometimes acts as a law taker, sometimes as a law-breaker, and sometimes as a law-maker.  My simple suggestion was that the gravity of the Syria situation calls for the U.S. to explore more thoroughly the third option.

If we try to make new law, these commentators ask, might we inadvertently craft a rule that others could abuse later?  Perhaps.  But criminal law has crafted rules that exempt ambulance drivers who run red lights in extremis, without opening the door to abuse of those rules by ambulance-chasers. Whether styled as “justification,” “mitigation,” or exception, my proposed legal test was designed to invite lawyers and policymakers to work together to clarify both the limited contours of their discretion to use force in humanitarian crises, while stating limiting principles to guide and constrain future actors.  Perhaps, as Kaye notes, I just have greater “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.”  And of course, I fully agree that UN Security Council reform is long overdue and that the U.S. should actively work to make it happen. But where I differ from these friends is that I do not believe it’s just a “policymaker’s call” to argue for a better reading of the law in the meantime.

What I fear is that “[s]ome international lawyers have become more comfortable stating rules than in figuring out how international law might help to push unfolding events toward the right resolution.” Even in the most intense policy discussions, lawyers are not potted plants. Did Thurgood Marshall think it was a “policymaker’s call” to keep treating “separate but equal” as “equal protection?” During the Cuban Missile Crisis, such international lawyers as Abram Chayes, Nick Katzenbach and Len Meeker famously participated in the Kennedy Administration’s decisions to call a “blockade” a “quarantine” and to invoke Chapter VIII of the Charter–in Kaye’s words–“as part of developing either new practice and opinio juris or causing Russia and others to rethink their recalcitrance.” Why isn’t that the appropriate course here?

Everyone who has worked in government knows that arguing for an evolution in the law is a decision with which both policymakers and government lawyers must grapple.  Asking policymakers to make a false choice between action and legality sends them the false message that when the law gets hard, or stands in the way of urgent action, lawyers are incapable of developing sound legal arguments that can achieve better results or better map current law onto modern reality.

In my view, it is not our lawyerly responsibility simply to repeat that “a rule is a rule is a rule,” particularly when the so-called “rule” is not nearly as black and white as some may admit.  While Syrian diplomacy unfolds, this is a moment not to consider this matter closed, but to look harder for a better legal answer. A better answer here would clearly be one that would give due respect to territorial sovereignty, while in the meantime, helping to prevent further deliberate slaughter of innocent civilians by chemical weapons.