Emerging Voices: Excuse in International Law

[Arthur Kutoroff is a graduate of Cornell Law School. He can be reached at Kutoroff [at] gmail [dot] com.]

There is a fundamental asymmetry between the treatment of individuals and the treatment of states within international law: individuals may claim excuses for their violations of legal obligations, but states may not.

Philosophers and lawyers distinguish between justifications and excuses: an action is justified if it is morally good or right (or at least not bad or wrongful); an action is excused if it is wrongful but the actor is not culpable for the wrongful action. This distinction affects the rights of third parties as well: third parties may lawfully assist a justified action, but may not assist an excused action because excuses are personal to the excused.

This distinction has been widely influential in domestic criminal law, as many jurisdictions clearly distinguish between justifications such as self-defense and excuses such as insanity. International criminal law seems to recognize excuses as well. The Rome Statute provides defenses such as duress, insanity, and intoxication for defendants before the ICC, although the Rome Statute is not entirely clear about which defenses are justifications and which are excuses. Moreover, in the Erdemovic case the ICTY recognized duress as a defense, albeit in limited circumstances.

International law does recognize defenses for states that breach their international obligations, but it does not clarify which defenses are justifications and which are excuses. For example, in the 1838 Caroline affair, British forces entered United States territory to destroy an American ship that was supplying Canadian rebels during the Upper Canada Rebellion. In response, United States Secretary of State Daniel Webster argued in a letter to the British government that the British failed to meet the standard of self-defense, which requires “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This definition combines elements of excuse and justification. The requirement that an exercise of self-defense is necessary suggests that self-defense is a justification, since jurisdictions generally recognize that a necessary action is justified. Yet, as George Fletcher and Jens Ohlin explain, the requirement that one could not do otherwise invokes the idea of self-preservation, which is more an excuse than a justification. Moreover, that requirement that one has no moment of deliberation invokes the idea of provocation, which is arguably a partial justification and a partial excuse.

Yet more recently international law has abandoned the language of excuse. The United Nations Charter authorizes the use of force if Security Council approves the use of force, and also maintains “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” In both of these circumstances, the use of force is justified, not merely excused: a state using force with UN Security Council approval or in self-defense has not committed a wrongful action.

Since World War II, international law has continued to recognize defenses to breaches of international obligations, but it has not clearly distinguished between justifications and excuses. Yet defenses in international law seem more like justifications than like excuses. As an illustration, consider the Draft Articles on State Responsibility, which provides a set of defenses to breaches of international law. Consider the defense of necessity, which was described in the Draft Articles and recognized by the ICJ in the Gabčíkovo-Nagymaros Project case. The Draft Articles describe necessity as “a ground for precluding the wrongfulness of an act not in conformity with an international obligation,” which invokes the language of justification rather than excuse. Recently the UN General Assembly has commended the Draft Articles (now just “the Articles”), further solidifying their place in international law yet further entrenching the ambiguity between justifications and excuses.

International law should consider recognizing excuses for states, as the theories that warrant the provision of excuses for individuals may apply to states as well. As an illustration, consider H.L.A. Hart’s theory of excuses: agents should be punished for their actions only if they have “the normal capacity, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities.” Hart considers various excuses, such as duress, mistake, and insanity, and notes that in these circumstances the defendant “could not have done otherwise.” There are other theories besides Hart’s: scholars have advocated alternative theories of excuse grounded in causation, choice, character, utilitarianism, and other considerations as well. But given H.L.A. Hart’s influence, his theory is a useful starting point.

Hart’s capacity and opportunity theory of excuse seems to apply to states as well as to individuals. Consider the prospects of a duress defense for states. States may be subject to coercive pressure from other states, and such coercive pressure may undermine the normal capacity of a government to act in conformity with international law. Moreover, coercive pressure from other states may deny a state a fair opportunity to conform their conduct to the requirements of international law.

To an extent, international law already recognizes duress, as the Draft Articles recognize coercion as a defense. Yet international law should clearly recognize duress or coercion as an excuse, not a justification. The moral significance of coercion is not that coercion justifies an otherwise wrongful action, but rather that it transfers culpability to the coercive third party. Were international law to recognize duress as an excuse, it would open the conceptual space to condemn wrongful conduct without condemning those who lacked the opportunity and capacity to follow their obligations.

As illustration of the effect of duress on state conduct, consider Vichy France as a (somewhat anachronistic) case study. In 1940, Germany invaded and defeated France, securing an armistice that resulted in German occupation of Paris and much of France. The unoccupied portion of France was then governed by a collaborationist regime based in Vichy.

The Vichy regime acquiesced in a number of hardships imposed upon France, including but not limited to: the loss of territory; the persecution of Jews and political opponents of Nazism; forced labor; rising inflation; declining real wages; and rampant corruption. The collaborators, lead by Phillippe Pétain, argued that if they couldn’t be France’s sword, they would be France’s shield. In other words, they would passively acquiesce to German’s demands for French collaboration during World War II in order to protect France from further harm.

It is unclear to what extent the hardships imposed upon France, such as the persecution of Jews, were violations of international law or merely violations of a government’s moral (as opposed to legal) obligations to its citizens. But if duress was available as an excuse, the collaborators could argue that German coercive pressure denied the Vichy government the normal capacity and fair opportunity to fulfill its obligations. Germany’s rapid military victory and partial occupation of the country significantly undermined France’s ability to resist German demands through military force. Moreover, Germany could easily retaliate against French citizens should the Vichy government refuse to cooperate.

However, were the collaborators to claim duress as a defense to any violations of moral or legal obligations, they may not succeed. Robert Paxton questions the extent to which Vichy collaborators passively acquiesced to German demands. Rather, according to Paxton, collaborators actively sought to collaborate with Germany in order to implement drastic reforms in France, including the persecution of Jews and other groups. If Paxton is right, then the hardships imposed upon France during World War II were not necessarily caused by threats from Germany, and the collaborators may not be able to claim duress.

Regardless of whether the Vichy collaborators may successfully claim duress, this example illustrates the value of excuse in framing questions of international responsibility. By clearly distinguishing excuses and justifications, international law would acquire the vocabulary to condemn a wrongful action without necessarily blaming the wrongdoer. Moreover, recognition of excuses would end an undefended asymmetry between legal treatment of states and individuals.