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Humanitarian Intervention: Time for Better Law

  • Harold Hongju Koh (a1)
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The United States’ April 6, 2017 missile strikes against Syria raise three fundamental questions about how we should assess military interventions taken for humanitarian ends but without Security Council authorization: First, is unilateral humanitarian intervention per se illegal under international and domestic law—what I call the “never/never rule”? Second, were the Trump Administration's April 6, 2017 strikes per se illegal under international and domestic law? And third, going forward, can we live with the status quo, where in state practice, unilateral humanitarian intervention seems to occur regularly, without being formally justified in law?

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Harold Hongju Koh, The War Powers and Humanitarian Intervention, 53 Houston L. Rev. 971 (2016). Others in this third camp include Sir Daniel Bethlehem, Steven Ratner, Jane Stromseth, and Marc Weller.

2 UN Charter art. 2(4) (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”).

3 U.S. Const. art. I, sec. 8, cl. 11 (“Congress shall have Power … to declare war”).

4 UN Charter pmbl., art. 1(1), (3).

5 See generally Anne Orford, International Authority and the Responsibility to Protect (2011); Michael W. Doyle, The Question of Intervention: John Stuart Mill and the Responsibility to Protect 110 (2015) (since Kosovo, the Responsibility to Protect concept “has been invoked explicitly and implicitly, successfully and unsuccessfully, in cases ranging from Myanmar and Kenya in 2008, to Guinea in 2009, and … Libya in 2011”).

6 See Gary J. Bass, The Indian Way of Humanitarian Intervention, 40 Yale J. Int'l L. 227 (2015).

7 See Daniel G. Acheson-Brown, The Tanzanian Invasion of Uganda: A Just War?, 12 Int'l Third World Stud. J. & Rev. 1 (2001).

9 See Koh, supra note 1, at 976–80.

11 See Rebecca Ingber, International Law is Failing Us in Syria, Just Security (Apr. 12, 2017, 11:06 AM).

13 For a preliminary view, see Harold Hongju Koh, Not Illegal: But Now the Hard Part Begins, Just Security (Apr. 7, 2017, 6:09 AM).

14 Koh, supra note 1, at 1004–15.

15 Id. at 1010.

16 Id. at 1015–16.

17 See, e.g., Jack Goldsmith, The Constitutionality of the Syria Strike Through the Eyes of OLC (and the Obama Administration), Lawfare (Apr. 7, 2017, 7:31 AM).

18 Louis Henkin, Kosovo and the Law of “Humanitarian Intervention”, 93 AJIL 824, 827 (1999).

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