Carsten Stahn Guest Post: On Intervention, Narratives of Progress, Threats of force and the Virtues of Case-by-Case Assessment–A Rejoinder to Koh (Part III)

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is Co-Editor-in-Chief of the Leiden Journal of International Law, Executive Editor of the Criminal Law Forum and project leader of the Jus Post Bellum Project. An earlier post on this appears here.]

Harold Koh and Daniel Bethlehem deserve credit for having launched this important and timely debate. Koh has formulated an excellent reply to critiques to his post which stands in the best tradition of debate over the prohibition of the use of force. As we all known, Article 2 (4) has been declared dead and rejuvenated too many times. It is thus legitimate to have struggles as to the proper way forward. I see merit in the need to map ‘current law onto modern reality’.  But I would argue that some of the underlying elements of his existing proposition of an ‘affirmative defence are rooted in tensions that are unlikely to be solved through discourse over the creation a new substantive exception to the prohibition of the use of force. A case-by-case assessment may be ultimately better than an abstract rule to accommodate the problems inherent in a formulation of a doctrine that has been controversial for centuries.  I would like to highlight three aspects that may require deeper reflection in the debate: (i) narratives regarding ‘progress’, (ii) the relationship between ‘threat of force’ and ‘use of force’, and (iii) the choice of the appropriate methodology for the way ahead.  

1. Observational standpoints and narratives of progress

Firstly, it is important to clarify observational standpoints. Koh presents change to the rule a ‘progress’ and adherence to it as stalemate. I have doubt whether the debate can be adequately addressed, let alone resolved, based on the dichotomy between a progress-adverse ‘absolutist’ view, represented by the illegal per se rule, and a modern ‘reformist ‘view’ which would argue that the rule is not ‘black and white’. It is an oversimplification to divide scholarly opinion into these two camps. Most international lawyers would acknowledge that the Charter is a ‘dynamic instrument’. It is a given, and not a point of controversy’ that it should be interpreted in light of its objectives and purposes. There are cases in which Art. 2 (IV) does not prohibit the use of force, such as intervention by invitation which raises difficult issues of the legitimacy consent in the context of civil war (as noted by Jordan Paust). The ICJ recognized in Nicaragua (Judgment, 27 June 1986, para. 175) that conventional and customary law on the use of force are not necessarily identical in content.  Even proponents of a strict interpretation of Article 2 (4) recognize ‘shades of grey’ and options for development. There may thus more agreement than divide.

In my view, Koh takes a shortcut by criticizing international lawyers for having ‘become more comfortable stating rules than in figuring out how international law might help to push unfolding events towards the right resolution’. The roots of the controversy lie deeper. Koh’s position is based on a specific approach towards international law. His argument is based on the premise that international law is an instrument of problem-solving and a tool to facilitate decision-making processes over war and peace. This approach advocates different prerogatives than a more systemic vision of international law that regards norms and institutions as the centre of a normative system that protects collective interests and values and constrains behavior. This tension has been inherent in approaches to international law for decades.

The main problem with Koh’s position is not so much the normative content of the proposition, i.e. the claim that use of force may in some circumstances be in the spirit of Charter principles and help ‘protect human rights. The fundamental difficulty of Koh’s argument is that it reduces the options for accountability of military action.  It shifts the balance from a centralized enforcement system to a decentralized system where nations become the arbiters over the legality of their claims to intervention. This causes fears and anxieties among many UN members. Koh’s plea for new abstract regulation would give formal recognition to the claim that the Council is an option à la carte than can be turned on and switched off in ‘hard cases’ where there is no agreement. Giving up this constraint weakens leverage for compliance and the need to justify choices of behavior before a collective forum, in circumstances in which international law is most important in debate. This is a position that many nations will be reluctant to sacrifice for the gain of greater clarity on the rule.

One of the main dilemmas of ‘humanitarian intervention’ has been the question of ‘agency’, i.e. that action is carried out in the name of others. It has been inherent in humanitarianism since it its inception. R2P mitigated this dilemma through recourse to collective response schemes.  Koh’s suggested new rule turns a ‘blind eye’ to this. It fails to engage with the question how intervening nations could claim authority to speak for others/victims.  In the African Union, this dilemma has been mitigated by an institutional solution, i.e. consent under Articles 4 (h) and (j) of the Constitutive Act which recognizes

‘the right of the Union to intervene in a member State pursuant to a decision of the Assembly in respect of grave circumstances, namely; war crimes, genocide and crimes against humanity’.

Koh’s suggested norm does not address such institutional safeguards.  It simply uses institutional support as one optional parameter to support the claim for legality. He suggests that the claim for exemption from wrongfulness would be  ‘strenghtened’ if intervening nations could demonstrate ‘that the action was collective’. This may simply not be enough.

In an ideal world of law-abiding nations, mutual trust and consensus on criteria, Koh’s vision might work. But given the history of use and abuse of ‘humanitarian intervention’, the time may not yet be ripe for this. There may simply not be enough trust in proper handling.

2. The relationship between threat of force and use of force

What is the role of the Syrian precedent in this context? Koh is right to claim that Syria produced some positive spin-offs. But is there a need to change the rule because of these effects? I am not convinced. In any legal system, there are cases in which illegal conduct may sometimes produce good results. But this does not necessarily mean that one has to abolish the system to deal with this consequence.

One way of addressing the dilemma might be argue that there should be greater leeway for the lawful use of threats of the use of force. This argument is implied in Koh’s reply and discussed by Ryan Goodman.  I would have doubts whether it is possible to isolate the threat from the consequences. What if the threat of targeted military intervention had been implemented? Could we really say that it would have produced a better outcome? The logics of armed conflict suggest that the reality of the situation changes once the first shot has been fired. It is thus difficult to separate threat and consequence.

The ICJ made this clear in its case-law. It stated in paragraph 47 of the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons:

‘Whether a signaled intention to use force if certain events occur is or is not a “threat” within Article 2, paragraph 4, of the Charter depends on various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph  … The notions of “threat” and “use” of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.’

There may thus be some wisdom in treating threats to use force in tandem with underlying claims in the future.

3. Merits of a case-by-case logic 

A third important factor in the debate is role of context. Koh seeks to draw an analogy to domestic law to justify a new exception. He uses the example of ‘ambulance’ drivers who are permitted to cross red lines in accidents. This comparison is appealing, but shaky. It presents intervention as a ‘clean’ and ‘neutral’ recipe that can be used to address the underlying dilemmas of conflict. This premise is questionable. Intervention is not like targeted medical surgery and interveners are typically not simply ‘neutral’ and ‘benevolent’ humanitarians. Symbolically speaking, this type of label has been attached to the ICRC and some UN operations (‘blue helmets’) in the international context, with different degrees of success. But it is difficult to transpose this degree of acceptance to unilateral uses of force which are not triggered by a UN call. The types of intervention that come would within the ambit of Koh’s proposed exception are actions that are difficult to predict in their outcome and effects and guided by underlying policy interests and motives that do not always coincide with the proclaimed ideal of protection of ‘innocent civilians’.

As I have argued before, it is far from clear whether cases such as Syria would come under the label of ‘humanitarian intervention’. Cases cited in support of the proposed exception differ greatly in terms of context, modalities of action and evaluation. Customary law remains unclear. Acceptance for Koh’s argument seems to be built around justifications that are particular to each case of intervention. This has implications for the consideration of the appropriate methodology.  I would not go so far to claim that a ‘limbo’ is an asset. But I would agree with the proposition that a case-by-case assessment might be a more appropriate strategy at the moment, along the lines of Goodman and Stromseth (ibid) who claim that identifying patterns of practice may be a better way forward than a rush to a new exception. It allows the law to develop incrementally. It also offers a greater a greater spectrum of evaluation of responses, which range from: (i) legal or (ii) illegal per se, (iii) illegal but not wrongful by way of a justification, (iv) illegal but exempted from sanction (‘mitigation’); to (v) possibly illegal but morally legitimate.

Irrespective of the normative standpoint regarding legality and illegality, Syria appears to teach us at least two crucial lessons:

Firstly, it is important to set out a clear basis and strategy for action in order to get gain acceptance for a claim. Otherwise, the claims will remain tainted by suspicion.

Secondly, the more cases of intervention deviate from existing formal structures of justification under international law, the more necessary it becomes to create additional forums for the evaluation and testing of claims. The greater involvement of parliamentary control over executive action may be one of the ‘gains’ of the Syrian crisis.