Author: Carsten Stahn

[Carsten Stahn is a Professor of International Criminal Law and Global Justice at Leiden Law School, Programme Director of the Grotius Centre (The Hague).] ‘Sisyphus, proletarian of the gods, powerless and rebellious, knows the whole extent of his wretched condition: it is what he thinks of during his descent […] This universe henceforth without a master seems to him neither sterile nor futile. Each...

[Carsten Stahn is a Professor of International Criminal Law and Global Justice at Leiden Law School, Programme Director of the Grotius Centre (The Hague) and author of Justice as Message: Expressivist Foundations of International Law.] Blogs play an essential role in discussing scholarship. With more books being published each year, it is difficult for a general readership to keep track of publications...

[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.] Introduction International Criminal Justice is a tipping point. It is a bit like a scene in Woody Allen’s “Match Point” movie. The ball is in the air. It has hit the net. But it cannot quite decide where to go. It may tip to the one corner of the field, or the other. There has been a lot of support for international criminal justice in past decades. The EU has been crucial in this regard. But there is also backlash and critique. Some wonder what’s the point of international courts and tribunals. The international community is good at creating new treaties and new institutions. But it seems to  be less good at devoting long-term attention and resources that are necessary to ensure that they are effective. Once a new institution is created, there is a feeling the job is done and that is time to move on. After the ICC withdrawals, the question of the justification of international criminal justice is more acute than ever. Some might claim that the withdrawals are a sign that international criminal justice becomes more effective since it targets power politics. Other might say that we need to go back to the drawing board and reflect more critically on the foundations of our assumptions. Both arguments appear to have a grain of truth. One crucial question is the role of regional organizations in international criminal justice. After the end of the Cold War, institutional development has quickly shifted from domestic to universal approaches. The role of regional institutions has long remained at the periphery.     Recently, much attention has been devoted to regionalization in the context of African critiques of international criminal justice, and the Malabo Protocol. While the Protocol has many problems (e.g., in relation to crime base, complementarity or immunities), there seems to be at least some support for the general assumption that regionalism can have benefits for international criminal justice enforcement.  Such advantages include geographical proximity to crimes, and the ability to reflect specific regional interests or priorities. In existing doctrine, some attention has been devoted to the role of regional human rights courts as “quasi-criminal jurisdictions”. But there are relatively few explorations of the role of the EU as actor in international criminal justice. The EU counts undoubtedly among the strong champions of international criminal justice on the international plane. One of its unique strengths is that it has achieved some “unity in diversity”. All 28 EU member states are states to the ICC Statute. This allows EU members to act as a collective entity. EU support for the project of international criminal justice cuts across institutions. The Council has enacted multiple legal instruments to strengthen national investigation and prosecution of mass atrocity crimes. Initiatives, such as the European Arrest Warrant, the European Evidence Warrant, the Framework Decision on the freezing of property and evidence, and the Framework Decision on the standing of victims in Criminal Proceedings, or the European Network of Contact Points are relatively unique on the international plane. The EU was the first regional organization to sign an agreement on cooperation and assistance with the ICC in 2006. The European Parliament has been a strong supporter of international justice. Europeans have taken a lion’s share in the funding of international criminal justice. This is complemented by the important work of Eurojust, and of course, the broader network of the Council of Europe which extends beyond EU Member States. The main achievements from a macro perspective are in my view two-fold. First, European institutions have forged a certain alignment of normative preferences within the European legal space. This is an important achievement. Hardly any other regional bloc has gained a similar level of convergence, and approximation of national approaches.  Decisions under the Justice and Home Affairs Pillar have prompted various member States, like Belgium, Denmark, Germany, The Netherlands and Sweden to establish “specialized units” for the investigation and prosecution of international crimes.  EU member states score high in terms of implanting legislation. This suggests a positive correlation between EU membership and commitment to international criminal justice. The European Area of Freedom, Security and Justice remains imperfect. The EU can do better in terms of strategic coordination.  Some domestic jurisdictions feel that developments are so dynamic that it is difficult to keep up with the pace of transformation. But the degree of cooperation defies comparison. Second, EU approaches have significantly contributed to “damage control” at the international level. Without the support of European countries, the ICC might have never seen the day in its current form. In the early years of the Court, the EU has taken a strong counter approach towards US policies towards international criminal justice. US approaches have navigated between objection under the Bush Administration to “smart power” approaches under Obama administration. The EU has differed fundamentally. It has openly discarded US objections in a common position in 2003, while trying to foster a constructive partnership between the US and the ICC. The EU has defined guiding principles for bilateral non-surrender agreements under Art. 98 of the ICC Statute. Later, the EU members have been instrumental in securing Security referrals to the ICC in relation to Darfur and Libya, and supporting a Syria referral. The EU approach may be characterized by three cardinal features: (i) “principled” pragmatism,  (ii) non-confrontational approaches, and (iii) a long-term vision towards international justice. These are virtues that are key to the success of international criminal justice. In times like these, the EU serves more than ever as a fire brigade. Damage control is urgently needed. The voices of European members on the Security Council are crucial to avoid action that might hamper existing institutions. There is a need to speak up against unfair critique, and to counter false rhetoric.

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace. Part...

[Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies.This two-part post is based on a talk given at the seminar on Reconciliation v. Accountability: Balancing Interests of Peace and Justice, organized by the Centre for International Law Research and Policy on 29 May 2015 at the Peace Palace.] Introduction Punishment...

[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.] Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the...

[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.

[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.] Harold Koh’s thought-provoking post on Just Security on ‘Syria and the Law of Humanitarian Intervention – Part II’ illustrates the struggles of international law to cope with injustices and violations of legal norms, including the ban of the prohibition of chemical weapons.  Koh argues in favor of a new ‘affirmative defense to Article 2 (4)’ of the United Nations Charter which would allow the ‘lawful threat of limited military intervention’ to counter ‘a deliberate large-scale chemical weapons attack’. He regards Syria as a ‘lawmaking moment’ that should be used to clarify ‘the contours of an emerging exception to a rigid rule’. This argument is based on a number of claims and assumptions that merit reconsideration. One may easily concur that the law on the use of force contains ‘grey zones’ and that Syria is a ‘hard case’. It is also helpful to set out arguments in ‘legal language that international lawyers’ can debate. But like others (e.g. Kevin Heller and David Kaye), I would argue that is highly questionable whether Syria should be a ‘moment to reframe international law’ in the direction suggested. It may rather be illustrative of the claim of a few to reshape the law in a way that might be seen as a window for abuse by others. It is deplorable that the Council has been blocked over two years, due to an irresponsible use of prerogatives that are out of time. This has created a ‘vacuum of protection’.  But the fundamental question is whether the solution suggested, i.e. greater flexibility towards military strikes under an ‘affirmative defense to Art. 2 (4)’ is the right remedy to deal with this dilemma. This is a very rudimentary logic. It appears to suggest that unilateral military action is the proper remedy to overcome impasses and inaction by the Council. His argument contains a number of problems that require reconsideration: (i) the framing of the choice, (ii) the use of the label of ‘humanitarian intervention’, (iii) the nature of the proposed ‘defense’ for the use of armed force, and (iv) the approach towards ‘lawmaking’. 1. Framing the underlying choice The first problem with Koh’s argument that is that it is phrased in a binary ‘either’/’or’ logic. Koh suggests that there is a choice between ‘turning a blind eye (and a deaf ear) to violations’ and the use of military force.  Koh presents intervention as a lesser of two evils. This is a constructed choice. Hardly anyone would seriously suggest that doing nothing is an option in the face of a violation, such as the 21 August 2013 attack on civilians. The question is not so much whether to respond, but rather how to react. The solution suggested by Koh, i.e. remedying a violation through use of force, blurs fundamental categories of law. The primary norm breached in the Syrian context is a fundamental norm of international law that is prohibited under different bodies of law, including international humanitarian law and international criminal law.  Koh’s logic suggests that use of the force should be an ultima ratio option to respond to such types of violations. This assumption merits questioning. In his case for deviation from the ‘illegality’ rule, Koh mixes different rationales that require different response schemes.  His argument builds a case for military action based on a merger of different objectives: i.e. ‘remedying a humanitarian situation’, preventing ‘the likelihood of future atrocities’, achieving accountability for ‘crimes’, sanctioning the use of chemical weapons, preserving of peace and security. These objectives are all valid and important. But is questionable whether they can be achieved best through a broadening of the options for military force. International law offers alternative paths to the use of force to achieve rationales, such as accountability, deterrence or sanctioning of jus in bello violations, i.e. preventive diplomacy, lawful countermeasures, international criminal justice, sanctions etc. Broadening the categories of the use of forces has trade-offs. It weakens these options and their underlying regimes (e.g. non-coercive and non-violent response measures under Chapters VI and VIII of the Charter, mechanisms under R2P etc.). It carries the risk of remedying wrongs through means that are ill-equipped to meet the very goals of intervention. In light of these risks, many nations (e.g., G77) have remained reluctant to accept the doctrine of ‘humanitarian ‘intervention’. Introducing a new ‘affirmative defense’ for military strikes based on Syria crisis would be an open floodgate for other claims. Acceptance of this argument might serve as an incentive for further action outside collective security in other cases involving a threat to international peace and security. For instance, why would other nations be prevented from claiming a similar justification to use force in response to specific incidents or ‘acts of international terrorism’ that have been branded as a threat to international peace and security as such under Resolution 1373 (2001)? Such an approach is vulnerable to abuse and might have detrimental side-effects. It might make the Security Council even more reluctant in the future to engage with threats to international peace and security. A better way forward might be to work towards a more responsible use of veto powers in the future (i.e. understandings on the non-use of the veto in specific situations), rather than declaring the Council irrelevant, as done at the height of the Syria crisis. 2. The label of ‘humanitarian intervention’ The second problem with Koh’s argument is that it uses the label of ‘humanitarian intervention’ to justify the claim for the legality of the threat or use of force. Arguments supporting ‘humanitarian intervention’ reach indeed far back in history. But the weakness of Koh’s reasoning is that assumes that Syria falls squarely under that doctrine and that it may be treated in one historical line with incidents such as Kosovo, Srebrenica etc. This is questionable. This analogy hinges. There are fundamental differences.