Approximately 2,500 years ago, Thucydides chronicled the Melian Dialogue in the History of the Peloponnesian War: "[Y]ou [Melians] know as well as we [Athenians] do that right, as the world goes, is only in question between equals in power." If power is not equal, "the strong do what they can and the weak suffer what they must." [Emphasis mine].
Harold Hongju Koh, Sterling Professor of International Law, and former Dean of Yale Law School and Legal Advisor to then Secretary of State Hillary Clinton, echoes the Athenians in defending President Barack Obama's claim of the strong to unilaterally attack Syria militarily under the banner of "humanitarian intervention," "responsibility to protect," or "Good Samaritan" duty. This, he claims, would be a "lawmaking moment" (YALEGLOBAL ONLINE, Strike on Syria for Chemical Weapons--Not Illegal, October 3, 2013). But the executive branch does not make law and declare war. Congress does. Speaking on behalf of the world's sole superpower fearless of retaliation by puny Syria, Professor Koh employs euphemisms and casuistry. In contrast, the Athenians displayed manly candor when arguing that "might-makes-right."
Professor Koh's view is predictable. Justice Oliver Wendell Holmes' observed that, "The law is the witness and external deposit of our moral life." And the moral life of the American Empire condones limitless perpetual wars, secretly-ordered assassinations, and dragnet surveillance of American citizens on the President's say-so alone in a futile quest for a risk-free existence. Koh acquiesced in or supported all of this lawlessness as Legal Advisor to Secretary Clinton
At the outset, Professor Koh wrongly assumes that President Obama is crowned with constitutional power to attack Syria without congressional authorization. Article I, section 8, clause 11 of the Constitution entrusts to Congress exclusively the decision to cross the Rubicon from a state of peace to a state of war. Every member of the constitutional convention agreed that the congressional power to declare war was a cornerstone against the Republic's degeneration into executive tyranny. The sentiments conveyed in a letter from constitutional architect James Madison to Thomas Jefferson were uncontroversial: "The Constitution supposes what history demonstrates, that the Executive is the branch most prone to war and most interested in it, therefore the Constitution has with studied care vested that power in the Legislature." President George Washington elaborated that any offensive use of the military requires congressional authorization. Thus, when the moment for military force abroad first arose, Congress enacted a series of statutes authorizing President Thomas Jefferson to use military force against the Barbary Pirates. That the U.S. Congress has not declared war since World War II does not mean that unilateral presidential wars are legal. Repeated constitutional usurpations do not become legal like a type of adverse possession. More than 50 years of laws authorizing legislative vetoes of executive action did not save them from invalidation in INS v. Chadha.
War is constitutionally disfavored because it legalizes savagery. War makes legal what is otherwise first-degree murder punishable by death. Accordingly, war is justified only by an actual or imminent attack that threatens the sovereignty of the United States, or a recurring perpetration or threat of mass atrocities against United States citizens. Under the international law precedents established during the post-World War II Nuremburg trials, war without such justifications of self-defense constitutes a crime of aggression.
Professor Koh erroneously maintains that international law empowers any nation to intervene with military force in the affairs of another nation for "humanitarian" purposes. But who decides whether a military intervention is humanitarian? The nation that attacks? The persons injured or killed by the attacker? A majority of all nations based on a one-nation, one-vote principal? And how is the decision made? Before a tribunal? Who has the burden of proving a humanitarian purpose? Does the nation targeted for attack enjoy a right to notice and an opportunity to be heard? What is the threshold of human suffering that justifies humanitarian intervention?
Koh answers none of these questions. He tacitly supports combining prosecutor, judge, jury, and executioner in the President of the United States in the initiation and conduct of "humanitarian" warfare--the very definition of tyranny according to the Founding Fathers.
Koh cites without explanation India's war against Pakistan to give birth to Bangladesh and Tanzania's war against Uganda as examples of humanitarian interventions. India and Tanzania intervened to weaken their respective enemies, not for benevolence. And what was humanitarian about the persons killed by Indian and Tanzanian soldiers? What magnitude of atrocities did the interventions forestall? Hitler invaded the Sudetenland for alleged humanitarian purposes. Did international law entitle every nation in the world to attack the United States during World War II to mitigate the suffering of 120,000 Japanese American citizens or resident aliens herded into racist concentration camps? Is the United States authorized today to employ military force against China to relieve the suffering of Tibetans or Uighurs, to employ military force against Russia to relieve the plight of Chechens, or to employ military force against North Korea to relieve virtually its entire population from starvation or persecution?
The answer is categorically "No." Humanitarian military interventions are prohibited under the United Nations Charter, Article 2(4) and (7), and constitute the crime of aggression. In practice, the doctrine would encourage chronic attacks by the strong to pulverize the weak. All nations exhibit human rights shortcomings. Only impoverished imaginations would be unable to concoct a plausible excuse for invading any nation to alleviate some level of misery under Koh's humanitarian intervention theory. It would make aggression legal.
Professor Koh unconvincingly argues that President Obama would be justified in attacking Syria because it is possible to imagine that President Assad's use of chemical weapons (in imitation of Iraq's chemical weapons attacks on Iran which the United States materially supported) might significantly disrupt the international order by causing chemical weapons proliferation, massive refugee outflows, and regional instability that might spawn an imminent threat to the United States. Koh's wild speculations to justify a military attack are indistinguishable from former Vice President Dick Cheney's infamous "1 percent doctrine," i.e., the theory that a sub-microscopic risk of an imagined national security danger should be treated as an actual attack on the United States. The Koh-Cheney moral philosophy would justify attacking any nation that taught its citizens to read because literacy could lead to a mastery of high-energy physics, which could lead to developing a nuclear capability, which could lead to an imminent nuclear attack on the United States. This is not the stuff of international law. It is an Orwellian manipulation to justify empire--a rerun of the Melian Dialogue.
There may be greater affronts to the Constitution and international law, but if there are, they do not readily come to mind.
*Bruce Fein was former Associate Deputy Attorney General under President Reagan, 1981-83, is President of the National Commission on Intelligence and Foreign Wars, and author of American Empire Before The Fall.