Koh's Argument

Koh proposes that HI be conceptualized in terms of an affirmative defense to the charge of an unlawful use of force in breach of Article 2(4) of the United Nations Charter. Koh draws on the International Law Commission (ILC)’s Articles on State Responsibility and the circumstances precluding wrongfulness (“CPW”) of distress, necessity, and countermeasures. Existing literature ably addresses the infeasibility of relying on these models while remaining true to the structure and underlying logic of the secondary rules of state responsibility.Footnote ² And of course, the ILC Articles expressly do not permit reliance on countermeasures to preclude the wrongfulness of a breach of Article 2(4) of the UN Charter.Footnote ³

Nevertheless, there is a normative argument to be made here. Koh suggests that international law should “serve human purposes—including the protection of human rights, not just the territorial sovereignty of states.”Footnote ⁴ I could not agree more. Indeed, as I have argued elsewhere, an account of state sovereignty that acknowledges that sovereignty serves the interests (and activities) of those subject to it is an increasingly important part of the modern discourse in international law. In respect of HI, this means that a state's sovereignty (and concomitant right to territorial integrity) should not, for its own sake, shield a state so as to provide it with the (legal and physical) space within which to violate individual rights to life and physical integrity.Footnote ⁵

Whether these arguments on sovereignty justify establishing a further exception to Article 2(4) or accepting that (in respect of responses to humanitarian crises only) CPWs might excuse an otherwise unlawful use of force, the devil is in the details. And it is in respect of the details that I regrettably part ways with Koh.

Evaluating the Argument

The threshold or trigger condition for lawful HI, on Koh's account, is a humanitarian crisis that “creates consequences significantly disruptive of the international order … that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under UN Charter Article 51).”Footnote ⁶ Furthermore, the use of force should be for “genuinely humanitarian purposes [and be] necessary and proportionate to address the imminent threat,” while improving the humanitarian situation and terminating “as soon as the threat is abated.”Footnote ⁷ In defining the conditions of lawful HI, Koh is conflating a rather controversial conception of anticipatory self-defense with HI.

Leaving aside for the moment the rather surprising suggestion that HI is simply a particular instantiation of national self-defense, the conflation has serious implications. In particular, Koh is both excluding a good many humanitarian crises from a right of response, and positing that the interests of acting states (or their allies) should be prioritized over the interests of the civilians whose suffering calls for a response—as long as there is some humanitarian benefit. But Koh asked international lawyers to “fashion a better law” which “serves human purposes.” I would have expected the “better law” to serve the purposes of those humans who are now suffering at the hands of their own government, not those subject to the jurisdiction of states who may one day in the future suffer. This may well be the political reality—that states will not participate in HI as a matter of policy unless they are principally serving their own (and their population's) interests. But to limit HI, as a matter of law, to operations which first and foremost serve the national security interests of acting states, is an entirely different matter.

Let us begin with the exclusion of certain crises from the right to intervene by states with the relevant financial and military resources to do so, viewed particularly from the perspective of unilateral U.S. intervention (as Koh reminds us that, for better or worse, “in the international order, there is only one United States, and whoever is President, the United States plays a critical role as a balance wheel of the international system”Footnote ⁸ ). On Koh's account, there are humanitarian crises to which the United States could not respond because the crises would not affect its national interests or those of its allies (defined in reference to Article 51 UN Charter). Consider the crisis in Darfur. While there have indeed been massive refugee flows and some destabilization of regional peace and security, the risk of proliferation of chemical weapons (or indeed any other weapons of mass destruction) has not been a feature of the crisis. As a result, and despite the overwhelming nature of the humanitarian catastrophe, it only potentially poses an imminent threat to states within the region or reach of refugee flows, and this assuming we accept a broad definition of anticipatory self-defense. Assuming no request for assistance from states facing such an “imminent threat,” the United States could not have responded in Darfur on Koh's account, even had it been inclined to do so. While “America First” may well be the defining feature of Donald Trump's foreign policy agenda, prioritizing the interests of the acting state(s) in the legal calculus of HI runs counter to the vast majority of moral and legal thinking on this issue.Footnote ⁹

In respect of the right of response to a humanitarian crisis by any state (in particular regionally proximate states), we can well imagine a scenario in which the threat to the civilian population is territorially limited, does not occasion cross-border refugee flows (but instead only produces internally displaced persons), and is principally the result of the use of conventional weapons. However catastrophic the crisis for civilians on the ground, it does not pose an imminent threat to any state and therefore does not meet the threshold trigger for HI proposed by Koh.

Koh purports to define the conditions for the lawfulness of HI per se, but is instead defining the lawfulness of a very broadly defined right to use force in anticipatory self-defence, with (in the best case) ancillary humanitarian benefits. In particular, he proposes that the necessity and proportionality of the unauthorized military intervention be measured against the imminent threat to outside states, not the humanitarian crisis.

This brings us to the second implication of conflating defensive and humanitarian paradigms: it allows acting states to prioritize their own defensive interests. Let us revise the scenario in which the threat to the civilian population is territorially limited, does not occasion cross-border refugee flows (only internally displaced persons), and is principally the result of the use of conventional weapons. But in this case, the instability occasioned by the humanitarian crisis creates the space for the proliferation of weapons of mass destruction. This crisis would meet Koh's trigger condition (in that it may engage acting states’ interests under a broadly defined right of anticipatory self-defense).

It goes without saying that the response to the proliferation risk would not (and indeed by design should not, on Koh's account) address the humanitarian crisis occasioned by the use of conventional weapons. This is another version of the “too narrow” problem addressed above. Even accepting for the moment that some lawful HI is better than no lawful HI, or that in some cases the imminent threat to acting states is coextensive with the threat to civilians in the target state, a necessity and proportionality calculus measured against the purpose of responding to the imminent threat to the acting state skews the calculus in favor of that state's own self-interest. This is true even if some humanitarian benefit is necessary to meet Koh's third condition for lawful self-defense. Part of the difficulty is the measure of proportionality Koh relies on. Given that he is operating under a self-defense paradigm, he adopts the ICJ's approach to proportionality in the jus ad bellum context, which is to say a teleological approach (measuring defensive force against the purpose of that defensive force).Footnote ¹⁰ A teleological approach to proportionality permits consideration of a narrow range of interests—principally the acting state's defensive interests. At the in bello level, there are also serious implications of defining HI in terms of national self-defense. In particular, the extent of permissible civilian casualties on the ground are defined in reference to the anticipated military advantage,Footnote ¹¹ which again reflects the acting state's national security interests—not the interests of the civilians whose suffering occasioned HI.

Ultimately, the problem is that Koh wants to serve both defensive and humanitarian ends at the same time. He cannot have it both ways. If the starting point is the right of self-defense, the defensive ends are much more likely to prevail over the humanitarian ones.

Which Public, What Good?

Below, I sketch an alternative approach to Koh's. My starting premise is that an account of lawful HI must at least begin with the human interests of those suffering immediate harm, not the human interests of those who are far away and would likely soon suffer an imminent threat. The relevant interests include that the intervention be effective in its protective aims; enduring; and avoids (or at least minimizes) ancillary harm.

To be clear, placing the beneficiary population's interests at the centre of the legal analysis does not preclude the acting state from accounting for its own interests.Footnote ¹² This is particularly true if we adopt the proportionality analysis more prevalent in the human rights law and jus in bello contexts, which balances positive impacts against negative impacts.Footnote ¹³ The positive impacts would be measured principally in reference to the interests of the beneficiary population and of the international community as a whole, at least to the extent that an HI which protects a civilian population upholds values that are core to the international legal system. But an unauthorized military intervention for “genuinely humanitarian purposes” may also involve both positive and negative impacts for the acting state(s).

As to negative impacts, acting states very clearly have an interest in minimizing the danger to the men and women participating in the operation. The intervening state's presence on the ground in territory that is engulfed in armed conflict may make for a more effective intervention that can best minimize ancillary harm, but it would put that state's soldiers at greater risk than would (for instance) a purely aerial campaign. The result is that the largest scale interventions for “genuinely humanitarian purposes” in the last twenty-five years—the U.S./U.K. (and at one point French) no-fly zones in Iraq in the wake of the First Gulf War, the NATO campaign in Kosovo in 1999, and the Security Council-authorized operations in Libya in 2011 (UNSCR 1973)—have been principally aerial, involving a higher risk of errors and resulting civilian casualties.Footnote ¹⁴ While this doesn't necessarily raise difficulties in respect of a legal test that requires that the interests of the victims of the humanitarian catastrophe be prioritized in any proportionality calculus, it does raise serious concerns about the ability of states to apply this test.

Equally, it need not be the case that the national security interests that Koh is concerned with fall completely outside the scope of a proportionality calculus that is built around the beneficiary population's interests. For instance, an acting state's interest in “prevent[ing] and deter[ring] the spread and use of chemical weapons”Footnote ¹⁵ is coextensive with the interest of the beneficiary population in being protected against the use of chemical weapons by its own government. To the extent that the “vital security interests”Footnote ¹⁶ of acting states overlap with the beneficiaries’ interests in an enduring and effective intervention that avoids or minimizes ancillary harm, there is nothing objectionable in there being an ancillary benefit to those national interests. What is objectionable is defining the purpose of HI in terms of those national interests.