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Moderator Catherine Powell, Fordham University School of Law
Jennifer Daskal, American University Washington College of Law
Harold Koh, Yale Law School
Stephen Pomper, Holocaust Memorial senior scholar at USIP
Saikrishna Prakash, University of Virginia School of Law
This panel was simply outstanding. Professor Harold Koh kicked it off by asking three questions, and answered "no" to all three: (1) is humanitarian intervention always illegal under international law? No. (2) Were the U.S. missile strikes in Syria last week illegal under domestic and international law? No. (3) Can we live with this status quo regarding the law? No.
He highlighted that at least since Kosovo in the late 1990s, the issue of humanitarian interventions have divided international law lawyers into three camps: those who believe such operations are per se illegal; those who believe they are illegal but legitimate; and his camp, which is that we need better law. To be in the first camp, per Professor Koh, you have to be a strict textualist and say a rule is a rule is a rule. This position would allow any member of the UNSCR permanent five to commit genocide against its own people because it would be in a position to veto resolutions against it, despite the object and purposes of the UN. He noted that state practice has eroded the per se rule in ways many international lawyers have refused to accept (e.g., Tanzania, Bangladesh, Cambodia, Op Northern Watch Iraq). It also takes a strict textualist approach to US domestic law to find last week's strikes unconstitutional as well; he noted that long-standing executive practice supports such limited military action. Such executive action has long been prompted by the need to respond to emergencies, and requires that the president have more flexibility; critically, Congress has acquiesced in such limited strikes conducted in support of vital national interests, and has not viewed them, at least in practice, inconsistent with the Constitution. For those international and other lawyers in camp two, who believe last week's strikes were illegal but legitimate, Professor Koh quoted President Bill Clinton: "that dog can't hunt." He compared that rationale to that in US v. Loving, and noted that the Court didn't say interracial marriage was illegal, but legitimate -- instead, they changed the law. Similarly, per Professor Koh, international lawyers need to use their craft to find action they deem as legitimate, to also be lawful. He cited his own law review article in the Houston Law Review as a template to do just that; it lays out a multi-pronged test which functions like a type of affirmative defense to find operations such as President Trump's to be lawful under international law.
Professor Prakash followed Professor Koh by emphatically and clearly outlining why last week's strikes represented an unconstitutional use of force by the executive branch. First, the Constitution doesn’t allow the president to unilaterally wage war. Second, Professor Prakash doesn’t think the President, acting alone, can change the Constitution and three, the War Powers Resolution clearly doesn’t authorize such action. It’s not a 60-day “war pass.” He provided terrific historical legislative history behind the Constitution's division of war powers between the Executive and Legislative Branches, highlighting that the Article II Commander-In-Chief power merely meant that the president was top general, not that he could unilaterally enter the United States into war. He denounced Frankfurter's concept that practice can put a constitutional gloss on the meaning of the Constitution, which to him begs the related question of how many instances does it take to create such a gloss? Furthermore, the War Powers Act clearly lays out Congressional understanding of who gets to wage war and how, and it does not provide a hall pass to freely wander the corridors of war during the 60-90 days it outlines for notification purposes. And it cannot provide such a pass, because the Constitution itself does not provide for it, as least outside of severely circumscribed situations in which the President is repelling sudden attack. Otherwise, Congress declares war and the President executes it.
Professor Jennifer Daskal noted that she is supportive of the strikes, but highlighted the need for them to be nested within a broader strategy, one that has not yet been articulated by the current Administration. She elegantly and powerfully noted that the failure to articulate international law justifications for this strike exposes process problems, problems mirrored by similar process failures (specifically, to consult the Gang of 8 on Capitol Hill prior to the strikes) on the domestic front. While a need to avert imminent attack could obviate the need to consult with international partners as well as with Congress, no such attack was on the horizon, and hence the Trump Administration's lack of prior international and congressional engagement coupled with its glaring lack of articulated international law justification is troubling. This long-standing process of engagement with lawyers, international partners, and with Congress acts as an important check on the use of force; additionally, the failure to engage in consultative process and the failure to justify the strikes on an international law basis sends a loud message that international law doesn't matter, and that UNSCR procedures can be disregarded at will. Domestically, Professor Daskal highlighted that the Constitution's bifurcation of war powers is an essential method of democratic accountability, and we the people, as well the current Administration and Congress, ignore it at our nation's peril.
Stephen Pomper rounded out the panel by highlighting that the dilemma posed by the April 7th missile strike against Syria -- how to justify forceful measures in the face of both a deadlocked UNSCR and an extreme humanitarian crises -- is a much older question than this particular strike. He outlined how he helped create the Atrocities Prevention Board under President Obama to address these types of situations, and that his primary question, unlike Professor Koh's, can be answered in the affirmative. He asked whether we should, as a policy matter, be offering a legal justification for measures of force in this type of situation? Yes, because the prevention of atrocities implicates core moral and national security interests; the national security interests of humanitarian crises need to be brought to the fore: these include that the fact that US reputation suffers as we stand idly by as mass atrocities occur; refugees from such situations destabilize entire regions; local populations radicalize in the aftermath of such crises; and the resultant political vacuum is filled by the most pernicious actors. All this came to fruition in Syria. However, non-collective and forceful measures are not always appropriate; many times they won’t be. The emphasis should be on non-forceful and collective action because early, preventive-type tools are cheaper and more effective and worked to better manage Burundi, CAR, Congo, western Burma -- but alas not in Syria, where events moved faster on the escalatory cycle than anyone anticipated, and Russian protection on the UNSCR contributed to an inability to better manage the unfolding disaster.
This incredibly rich, clear, and responsive panel continued to dissect the Sryian missile strike in detail, and those in attendance were greatly enriched and appreciative of the able moderator's, and terrific panelists', contributions.
Rachel E. VanLandingham, Lt Col, USAF (ret.), Associate Professor of Law, Southwestern Law School