Syria intervention and the law, continued

Thanks for the many terrific comments (on- and offline) on my recent post regarding possible U.S. intervention in Syria.  I don't have time today to respond to all of them, but a couple points made by my colleague Garrett Epps are particularly compelling.

Garrett suggests that if I'm right that there is (morally speaking) a legitimate choice to be made between obeying international law and following the dictates of morality, then the U.S. ought to at least formally request Security Council authorization before taking unilateral action.  I agree with this suggestion.  Of course, the Council's response probably would be a foregone conclusion, given the virtual inevitability of a Russian (and possibly a Chinese) veto.  But formally requesting Council authorization would be an important exercise in self-discipline and in respect for the law.  It would force the administration to hone its arguments regarding why military intervention really is necessary and to present those arguments publicly.  It would at least imply an acknowledgment that any unilateral action by the U.S. would be against international legal norms.  And if (as seems inevitable) the Council denies the request, the resulting chastisement, while falling short of formal sanctions for breaking the law, would at least impose some cost (in the coin of international public opinion) on the U.S. for doing so.

As I wrote in my previous post, law should have some teeth to prevent legal subjects from, in all good conscience, over-disobeying the law thanks to overconfidence in their own moral judgments.  A formal request of, and rejection by, the Security Council may be the best international law can provide in this instance in the way of teeth.  Of course, I am under no illusions that this will actually happen; I can't envision any U.S. President (even a second-term former law professor) willing to pay the domestic political price that surely would follow from the perception of begging the U.N. for permission to act and coming away with nothing to show for it.

Garrett also points out another wrinkle:  the fact that part of international law is customary law, that is, law that is formed not by formal treaties, proclamations, or court decisions but rather by patterns of practice over time.  Subjects of international law can actually make the law to which they are subject by taking some action that, while not legal (at least not clearly legal) when taken, becomes accepted as legitimate by other participants in international law.  This complicates matters; it suggests that if the U.S. acts unilaterally, that action may eventually come to be regarded, ex post, as legal.  (Some argue that NATO's intervention in Kosovo in 1999, which occurred without Security Council approval, should now be regarded as legal for this reason.)  And while I'm no international law expert, it strikes me that the case for the customary legality of intervention might be weakened if the U.S. were to ask the Security Council's permission and that permission were to be denied.

I doubt very much, however, that the hope of making new customary international law by itself is enough to justify unilateral action.  For one thing, the precedent that would be set if unilateral "humanitarian" intervention become the norm would be dangerous and not necessarily to our liking.  The need for humanitarian intervention will often be a matter of reasonable dispute -- hence the presence of international procedures, however, imperfect, for determining its existence -- and if the U.S. can (legally) make these decisions unilaterally, then so can China, Russia, or for that matter North Korea or Syria or Iran.

In other words, it's one thing for the U.S. to act, and to be seen as acting, against established norms of international law; that is unlikely to set a legal precedent.  It's another thing entirely for the U.S. to help create a customary norm that unilateral intervention is legally justified (or for that matter to argue now, in defense of unilateral action, that such a customary norm already exists).

We can learn a lot about this distinction from Justice Robert Jackson's dissenting opinion in Korematsu v. United States, the now-infamous Supreme Court decision validating the internment of Japanese Americans during World War II.  Jackson acknowledged that the military cannot always be held to legal standards in time of war.  "It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality,"he wrote.  "When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal."  Jackson thus acknowledged the possibility that the internment order was morally, if not legally, permissible.

But Jackson objected to the Court's legal validation of the order.  "A military order, however unconstitutional, is not apt to last longer than the military emergency," Jackson noted.  "But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle .... The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

A legal norm permitting military intervention for humanitarian purposes might turn out to be Jackson's "loaded weapon," waiting to be deployed by any nation with a quasi-plausible argument of "humanitarian" exigency.  A saliently illegal humanitarian intervention is dangerous, to be sure, but at least it doesn't establish a legal principle we all might come to regret later.

Finally, a word about my very tentative "leaning" in the previous post toward "militarily appropriate" strikes against Syria.  Part of me regrets writing that; there are many complex moral and policy considerations in the mix, most of them well beyond my capacity for well-informed judgment.  I am in fact profoundly conflicted about what should be done as a practical matter; I'm not sure how I would vote on the proposed resolution if I were a member of Congress, though for various reasons I still lean somewhat in favor.  A vote for intervention, however, has enormous potential to haunt those who cast it two or three years down the road, if "surgical strikes" against Syria become, as they very well might, "boots on the ground," "nation building," and all the horrible things we are justifiably sick of thanks to the last decade in Iraq and Afghanistan.  Only a fool would deny the huge actual and potential costs of intervention.  I didn't mean to deny them in my previous post.  What morality and policy have to say about intervention are extremely difficult questions.  My point was simply that these questions are different from, and not necessarily preempted by, the question whether intervention is illegal.