[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.]
The debate on the legality of a U.S. strike in Syrian territory is unlikely to produce consensus, in part because those involved in the debate take fundamentally different approaches to international law. Unless the underlying commitments of each approach are brought to the foreground, contributors to the debate risk talking past each other. As a result, an important opportunity will likely be lost.
Prof. Harold Hongju Koh, formerly of the U.S. State Department and now back at Yale,
argued in favor of the potential legality of a U.S. strike in Syrian territory, as outlined by the U.S. government before the plan was placed on indefinite hold. Prof. Carsten Stahn of Leiden University
critiques Koh’s argument, ultimately supporting the bar on the use of armed force absent self-defense or U.N. Security Council authorization.
Koh then responded to Stahn and others, largely reiterating his earlier points, and
Stahn provided a further rejoinder.
I will not argue the merits of the debate, but rather highlight issues central to each scholar’s approach that merit further discussion by both sides. Koh’s emphasis on the unacceptable results of a “rigid” approach is not likely to persuade a positivist focused on existing law. Stahn’s exposition of possibilities and restrictions within the existing law may seem slightly beside the point for a reader who finds the likely results of restrictions on the (just) use of force intolerable.
For the debate to continue productively, a good first step would be to candidly recognize the potential limitations of both positions. Restrictions on the use of force, necessary to limit international armed conflict, may result in the commission of atrocity crimes that cannot be deterred by non-violent means. Loosening restrictions on the use of force, even with the best of intentions, not only increases the potential frequency and intensity of armed conflict, but also may weaken the authority and function of international law more generally. These are issues that should be tackled head-on, not minimized.
I focus primarily on these blog posts by these two professors because I think they are exemplary in both senses of the word. They are among the most well-argued pieces on the subject, and they demonstrate the strengths of their respective positions.
Koh's Approach:
Koh’s emphases—normative values, connecting law and policy, and a lawyer’s duty to play a leading and constructive role in interpreting law—are no accident. They are a direct outgrowth of his long and fruitful engagement with the New Haven School of International Law. In
Koh’s 2007 evaluation of the New Haven School, he identifies a number of commitments the School has made, including normative values and connecting law and policy. He emphasized that competing schools of international law such as those espousing a commitment to a “new sovereigntism” hold a depressing vision of international lawyers as yes men or scriveners, rather than architects, public servants, or simply “
lawyers as leaders.” In Koh’s 2001
An Uncommon Lawyer, he lovingly recalls examples of lawyers as “moral actors” who “guide the evolution of legal process with the application of fundamental values.” In one of the most cited international law articles of all time, Koh’s 1997
Why Do Nations Obey International Law, he notes that the New Haven School “viewed international law as itself a decisionmaking process dedicated to a set of normative values” in contrast to “a set of rules promulgated by a pluralistic community of states, which creates the context that cabins a political decisionmaking process.” (He also, notably, critiques past failures of the New Haven School and notes the critiques of others, demonstrating his own intellectual flexibility.) In Koh’s 1995
A World Transformed, he recalls the 1974 founding of
Yale Studies in World Public Order (which later became the Yale Journal of International Law) and recalls the demand for an evaluation of an ethical World Public Order, refreshed through the decades by scholars, including Koh himself.
