My confreres at Opinio Juris tell me that Harold Koh, Legal Adviser to the State Department, has given OJ the text of his address on Syria at the on-going annual meetings of the American Society of International Law (ASIL) with a request to post it. The speech was (updated) on-the record event; the text is [now] up at OJ, and here is the opening:
Statement Regarding Syria
Harold Hongju Koh
Legal Adviser, U.S. Department of State
American Society of International Law Annual Meeting
March 30, 2012
It is my honor to speak here again at the annual meeting of the American Society of International Law. A year ago, I spoke before this audience about the international legal basis for the United States’ military operations in Libya. In that same spirit of openness and dialogue, I am grateful for the opportunity to engage so many distinguished international lawyers in this room about the very serious challenges we face in Syria today.
Let me divide my comments this morning into three: First, what, precisely, is happening in Syria? Second, what are the U.S. government and the international lawyers within it doing to address the crisis? And third, by what legal principles should this crisis be assessed and lawfully and effectively addressed?
[Update: I’ve linked to the results of a WaPo-Pew survey that finds a sizeable section of Americans to have approved of Obama’s drawdown plan]
When NATO began its military offensive in Libya, the question, it seemed, was not whether Muammar el-Qaddafi would step down from power. To the crusaders of humanitarian intervention, it was only a matter of time before the Colonel relented to NATO’s military might. On Sunday, 100 days would have passed since Odyssey Dawned over Libyan skies, and the same question is being asked again, only now with a hint of desperation: when will Qaddafi relinquish his hold?
Soon, say Western diplomats and policy makers. But for all the foregone conclusions of his exit, the eccentric dictator has shown little signs of budging. Amidst air strikes and heavy bombardments, Qaddafi has still managed to make appearances in public and on television – the latest of which shows him engaged in a game of chess with the president of the World Chess Federation. Although the media’s narrative continues to be that of a fugitive on the run, it is clear that NATO operations have only strengthened Qaddafi’s resolve to dig his heels in.
Meanwhile, the military operation is itself unraveling, troubled by a series of cracks within the coalition. Norway was among the first members to contemplate a sharp reduction in forces. The massive influx of refugees and the irrevocable damage caused to its economic links with Libya have prompted Italy to call for a ceasefire. While the request has been spurned by NATO, there are few who doubt that the coalition is struggling to find consensus.
Not the least of NATO’s problems is the American attitude towards operations in Libya. The United States has chosen to stay behind the scenes, showing no enthusiasm to contribute more resources than it already has. Yet, there has been no dearth of lectures from Washington, which Europe finds increasingly unpalatable. Outgoing Defence Secretary Robert Gates warned of a “dim” and “dismal” future for NATO, if its European members were not willing to loosen their purse strings for professed commitments. Not surprisingly, these remarks were met with condemnation in Paris, diagnosed by President Sarkozy as “stemming from a bit of bitterness”.
The Obama administration is on a sticky wicket back home, where the President’s refusal to seek authorization for Libyan efforts under the War Powers Resolution has strained relations with the US Congress. Last Friday, the House of Representatives overwhelmingly rejected a resolution that sought to support the mission. The vote was largely symbolic, but the displeasure expressed along bipartisan lines was a strong indicator of war-weariness among the American people.
To top it all, the NATO operation in Libya has been a complete public relations disaster from its inception. Egged on by evangelists of the ‘Responsibility to Protect’, the coalition went into Libya with the high and noble aim of “protecting innocent people”. Broadening the scope of the mission “to include regime change would be a mistake”, said President Obama. Months later, with little to show for their progress, the United States and its allies openly espoused regime overthrow. Driven to desperation, the coalition increased the intensity of air strikes while Qaddafi’s compound and installations in Tripoli were heavily bombarded.
Equally embarrassing has been the number of civilian casualties caused by NATO operations – increasing in frequency of late - described often as “accidents” without remorse or apology. All pretence of gradualism has been abandoned and NATO is now locked almost in an existential struggle to prove its relevance in Libya.
The rebels, or the Transitional National Council as they are called, have not been able to make much headway in this battle. Cities have continued to change hands, like the oil-rich region of Ras Lanuf, or remained under siege, like Misurata. Under the present circumstances, Libya is looking down the barrel towards a long, drawn out civil war. Moreover, the military intervention and ensuing bloodshed has only entrenched positions on both sides, leaving little scope for a diplomatic solution.
The coalition’s failure to achieve its “humanitarian” ends in Libya runs the risk of turning the discourse from air-strikes to troops on the ground. It can be easy to forget that UN Security Council Resolution 1973 intended to protect civilians by establishing a no-fly zone in Libya. NATO has gone well beyond the Resolution’s mandate, taking refuge under its widely drafted provisions. Venturing further in such a quagmire will only prove to reinforce the painful lessons of Odyssey Dawn.
A panel discussion at the Alliance Française here on Thursday threw into sharp relief the complexities of ‘humanitarian intervention’, which has come to be embodied in the principle of ‘Responsibility to Protect’ (R2P). The panel, which featured familiar faces from India’s strategic community, differed in its views on R2P and its application to the ongoing crisis in Libya.
“Let me congratulate France for acting boldly to lead the Libyan intervention and saving Europe from irrelevance,” began C. Rajamohan of the Centre for Policy Research. According to him, humanitarian interventions had to be seen through the prisms of “consistency, [the] neutrality of interveners and [their] pursuit of maximalist goals”. Dr. Rajamohan was candid in his embrace of the same, asserting that ‘some regimes just had to go’, but predicted the fate of R2P would ultimately be determined by “success” in Libya.
His self-professedly ‘realist’ take, however, found little favour among other panelists. Shuddhabrata Sengupta, a writer and member of Raqs Media Collective, condemned the Libyan “aggression”, and claimed that its sponsors were hardly the torchbearers of humanitarianism, “as they made it out to be”. Mr. Sengupta referred to the Mucyo Commission’s report, which indicted the present French Foreign Minister Alain Juppe for lending active support to genocidal forces in Rwanda.
The discussants also highlighted India’s role in moulding the character of humanitarian interventions. K.C. Singh, a retired diplomat, said that India’s “explanation” for abstaining from the Security Council vote on Libya was “weak” and suggested it should have joined hands with the West in supporting the UN resolution. “If India wishes to be a permanent member of the UNSC, then it should behave like one”, he said.
The discord among NATO members in fleshing out the contours of a “poorly conceived” intervention likely pointed to an entrenched civil war in Libya, argued Siddharth Varadarajan, Strategic Affairs Editor of The Hindu. The need for a cautious approach to R2P was also endorsed by Dr. Radha Kumar, who heads the Mandela Centre for Peace and Conflict Resolution at the Jamia Millia Islamia. Dr. Kumar, who said that preventive steps were as important as missions to protect, advocated more attention being paid to the post-intervention situation.
The discussion was introduced by French Ambassador to India, Jerome Bonnafont, who said that France had a “stake in the debate on R2P”, adding that his country attached importance to what “India thought of the issue”.
(for this blog)
In his first major address to the world after being appointed as the Secretary-General of the North Atlantic Treaty Organisation (NATO) in 1994, Willy Claes chose to highlight the organization’s independence. “I should like to clarify that NATO is not a sub-contractor to the United Nations”, he proclaimed. “We are a sovereign organisation and we have a duty to discuss the conditions for our support.” Now, as NATO prepares to take over the Western intervention in Libya under the façade of UN patronage, few words would ring so hollow.
The decision to ‘delegate’ the use of force in Libya to NATO is unprecedented in the history of the United Nations and will have enormous implications for international law. If UN Security Council Resolution 1973 is founded on the flimsy bearings of a ‘Responsibility to Protect’, NATO’s assumption of control walks the thin line between highhandedness and patent illegality. To be sure, the UNSC has resolved previously to vest multilateral organs with the mandate to use force and intervene effectively. An example of this is the devolution of power to an International Security Assistance Force (ISAF) in Afghanistan. But the decision to authorize such a consortium was made through a specific Resolution by the UNSC (1386). Even without such explicit reference, Chapter VIII of the UN Charter leaves the door open for regional ‘arrangements’ or ‘agencies’ to perform enforcement functions. In Libya’s case, the wide-ranging UNSCR 1973 contains a boiler-plate clause that authorizes Member States acting “through regional organizations or arrangements” to take “all necessary measures” with regard to protection of civilians, establishment of a no-fly zone and so on. What then, one might wonder, prevents the sponsors of the Resolution from ‘sub-contracting’ these tasks to NATO? Put simply, NATO is not a ‘regional arrangement’ or ‘agency’ as envisaged under Chapter VIII. These terms are not defined in the UN Charter, but by NATO’s own admission, the organisation does not fall within their ambit. As Judge Bruno Simma of the International Court of Justice observes, Willy Claes followed up his 1994 speech with a letter addressed to UN Secretary General Boutros Boutros-Ghali “expressly clarifying” that NATO did not come under Chapter VIII. When the Collective Measures Committee was constituted in 1951 to help the UN bolster its sanctions regime, the United States made a strong pitch to endorse NATO as its watchdog– the proposal was shot down by NATO members themselves. Britain’s suggestion in 1964 that NATO be deployed to keep the peace between Greek and Turkish Cypriots found no takers, either within NATO or the UNSC. Clearly, the transatlantic alliance has neither been conceived nor perceived as an enforcement agency of the UN. As one NATO-endorsed theory suggests, the organization’s reluctance to be drawn into the fold of Chapter VIII stems from the realization that it would have to bear “additional obligations” under the UN Charter. In other words, NATO is not prepared to intervene except in cases where its strategic interests are affected.
Seen in this light, NATO’s claim to ‘assist’ the people of Libya is all but vacuous. On the contrary, it would seem that the organization is driven by larger geopolitical and material motivations in the region. Let us cast aside NATO’s questionable intentions for a moment to examine the legality of its intervention in Libya. This is the first time that NATO is single-handedly shouldering the mandate of the Security Council, without the backing of a specific Resolution. There is no established practice or custom in international law that lends legitimacy to its action. Even in the early nineties which saw NATO and UN working together, operations in Bosnia and Herzegovina like ‘Sky Monitor’ and ‘Deny Flight’ were coordinated closely with the UN Protection Force (UNPROFOR) and were initiated at the written, formal request of the UN Secretary General. In fact, although UNSCR 836 authorised the use of force to create “safe areas” in Bosnia, operations could only be commenced by a ‘dual key’ arrangement, involving both UN and NATO approval.
The one instance where NATO played the lone ranger does little to further its case for intervention in Libya. The bombardment of Yugoslavia in 1999 by NATO forces was in blatant violation of international norms, and although apologists may take refuge in the doctrine of ‘humanitarian intervention’, there can be no doubt that such acts of aggression without the blessings of the UNSC are in direct contravention to peremptory norms under the UN Charter. The legitimacy of the Libyan intervention is clouded by the fact that NATO’s own charter does not contemplate the role of a ‘protector’. Article 5 of the Washington Treaty that birthed the organization authorizes NATO to use force only in ‘collective self-defence’, with a specific reference to Article 51 of the UN Charter. Therefore, the explicit approval of the UNSC becomes imperative if NATO were to be allowed to punch above its weight. Of course, this is not a palatable option for the Western midwives of UNSCR 1973, because Russia and China are certain to veto any resolution granting a free rein to NATO. Hence, the lame justification that NATO has been ushered in because the sponsors do not have command-and-control capabilities over the operation themselves. Surely, they do not expect the world to believe that this was a fortuitous coincidence?
The NATO intervention in Libya sets a dangerous precedent that allows military alliances to engage in acts of aggression under the veneer of multilateralism. Beneath the ‘Responsibility to Protect’ lie cold calculations to sustain and expand the strategic relevance of a floundering European relic. The UN should heed the advice of its former Secretary General Kofi Annan, who said in 1999: “[The UN and NATO] work best when we respect each other’s competence and avoid getting in each other’s way”.