Humanitarian Intervention and Lex ferenda: Introduction of Bethlehem and Koh's opinions

In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Art. 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic [Sir Daniel Bethlehem].

Here Sir Bethehems opinion in this regard is introduced:

Daniel Bethlehem argues against the per se illigal rule solely based on Art. 2(4). He summaries two approaches in favor of humanitarian intervention. The first is a purpose-oriented approach. Due to absence of such an exception of prohibition of use of force in the UN Charter, some try to prove customary right of humanitarian intervention with limited state practice (and opinio juris). He suggests a second approach by knitting a tapestry of arguments.

He knits together various threads of international legal practice to establish a tapestry argument for a right of humanitarian intervention. He has pointed to certain trends in international law that might establish a right of humanitarian intervention. His argument is based on a tapestry of threads of practice, the human right objective of the UN Charter, factors precluding wrongfulness in 2001 ILC Draft Articles on State responsibility and pradigm shifts, demonstrated by the development of IHL, IHRL and ICL, in international law that he perceives to be supportive for the right of humanitarian intervention.

See: Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

In addition to Bethlehems tapestry argument, Professor Koh suggests another approach beyond UN Charter framework to support use force against humanitarian catastrophe.

Harold Koh argues that international law has evolved sufficiently to permit use of force in response of repeated use of chemical weapons.

Koh agrees with Daniel Bethlehem that annanalysis simply based on Art. 2(4) of UN Charter is overly simplistic. In othernwords, he disagrees with the 『per se illegal rule』 which proposes thatnunilateral use of force other than self-defence and without UNSC authorizationnis per se illegal. Koh argues that this overlooks many aspects of internationalnlaw which distinguish Syria crisis from past cases, especially considering thenhuman rights violations are much serious than Kosovo case. He also argues thatna 『per se illegal rule』 is over broad as it permanently disable any externalncollective action and allow Asad to gas millions of children. Obama rightlynchallenged this view by saying that sovereignty cannot be an excuse to turn anblind eye to slaughter.

Koh argues that use of force in responsenof Syrian situation is not a flagrant violation of international law but is inna legal gray area.

Koh begins with analyzing UN Charternframework. He noted that purposes and principles of UN Charter includesnprotection of human rights. Art. 2(4) should be read in context as to mean thatnthe bar on use of force is a means of achieving its purposes. The phrases 『anynother manner』 in Art. 2(4) left open whether a threat or use of force is bannednwhen it is consistent with the purposes and principles of UN Charter. Art. 51nmakes it clear that Art. 2(4)』s ban is not categorical. Charter acceptsncustomary exception of individual or collective self-defence. In the same vein,nit can accept other customary exception, including the right of humanitariannintervention.

The right dated back to Grotius time.nState practice after establishment of UN such as Bangladesh crisis and Tanzanianintervention in Uganda are precedents of exercising this right. The recentnpractice is NATO campaign. Although there is no definite legal answer to thenlegality of the NATO use of force, Koh argues that many NATO states indeednaccepted legality of some form of humanitarian intervention. Koh recalls UK』snstatement and other NATO states justifying the legality of NATO campaign.

Koh then turns to the debate on R2Pnwhich shifted from discretion of individuals states to responsibility ofninternational community. Under R2P, failure of national government to protectnits nationals create a gap which other states can lawfully fill.

But who may fill the gap? Koh recallsn2004 High-level Panel Report, 2005 World Summit Outcome and subsequent UNSCnresolutions and notes the it requires authorization by UNSC.

But what if both national states andnUNSC fail to fulfill their duty? Koh notes the UNSC』s responsibility innmaintaining peace and security is not exclusive. According to ICISS, it isnunrealistic to expect that states will do nothing in face of emergentnsituations.

Koh locates the assessment of use ofnforce in Syrian situation in the above legal background. He points out thatnSyrian crisis is more serious than NATO crisis. A group of nations actingntogether could fill the gap left by national states and UNSC. But he notes thatnthe states do not have to explicitly rely on the right of humanitariannintervention or R2P, but can base on the 『ex post facto exemption from legalnwrongfulness』. Eg. necessity in Art. 25 ICL Articles. By comparison, in Kosovo,nNATO campaign can be justified ex post facto due to free of condemnation innUNSC and recognition by resolution 1244.

Koh summarizes that 『 itnshould be clear there is a big difference between calling intervention per senillegal and treating it as a very tough legal and policy call.』 He suggest taking Syrian crisis as annopportunity to define a rationale of humanitarian intervention.

Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

A counterargument is raised by Chris and Lederman, available at: United States』 Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights? and My discrete but important disagreement with Harold Koh on the lawfulness of the strikes on Syria

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