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Law of War

Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?

New Book: Hidden Histories of War Crimes Trials (Updated)

by Kevin Jon Heller

9780199671144_140I am delighted to announce the publication of a new book that I co-edited with my colleague and dear friend Gerry Simpson, The Hidden Histories of War Crimes Trials. As the title indicates, the book contains a number of essays that discuss little-known trials (such as the Franco-Siamese Mixed Court)  or re-narrate better known but misunderstood trials (such as the trial of Peter von Hagenbach). Here is the table of contents:

 

1: Gerry Simpson: Introduction

Part 1: Pre-Histories: From Von Hagenbach to The Armenian Genocide
2: Gregory S. Gordon: The trial of Peter von Hagenbach: Reconciling history, historiography, and international criminal law
3: Benjamin Brockman-Hawe: A supranational criminal tribunal for the colonial era: the Franco-Siamese Mixed Court
4: Jennifer Balint: The Ottoman state special military tribunal for the Genocide of the Armenians: ‘Doing government business’

Part 2: European Histories I: Prosecuting Atrocity
5: Rosa Ana Alija-Fernández: Justice for no-land’s men? United States military trials against Spanish Kapos in Mauthausen and universal jurisdiction
6: Dov Jacobs: A narrative of justice and the (re)writing of history: French trials after World War II
7: Frédéric Mégret: The Bordeaux Trial: Prosecuting the Oradour-sur-Glane massacre

Part 3: European Histories II: Americans in Europe
8: Grietje Baars: Capitalism’s victor’s justice? Prosecution of industrialists post WWII
9: Stephen Vladeck: Eisentrager’s (Forgotten) Merits: Military commissions and collateral review

Part 4: European Histories III: Contemporary Trials
10: Benedetta Faedi Duramy: Making peace with the past: Federal Republic of Germany’s accountability for World War II massacres before the Italian Supreme Court
11: Tamás Hoffman: Trying communism through international criminal law? The experiences of the Hungarian historical justice trials
12: Rain Liivoja: Competing histories: Soviet war crimes in the Baltic States
13: Julia Selman-Ayetey: Universal jurisdiction: Conflict and contoversy in Norway

Part 5: African Histories
14: Jackson Maogoto: Reading the shadows of history: The bridges between Turkish and Ethiopian ‘internationalised’ domestic crime trials
15: Firew Kebede Tiba: Mass trials and modes of responsibility for international crimes: Ethiopia

Part 6: Southern Histories
16: Georgina Fitzpatrick: War crimes trials, victor’s justice, and Australian military justice in the aftermath of the second world war
17: Narrelle Morris: Justice for ‘Asian’ victims: Australian war crimes trials of the Japanese 1945-51
18: Peter Rush: Dirty War crimes: Jurisdictions of memory and international criminal law

Part 7: Histories of a Type: Excavating the Crime of Aggression
21: Roger Clark: The crime of aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference in 2010
22: Mark Drumbl: ‘Germans are the lords and Poles are the servants’: The trial of Arthur Greiser in Poland, 1946
23: Immi Tallgren: The Finnish war-responsibility trial in 1945-56: Flawed justice, anxious peace?

You can purchase a hard copy of the book at the OUP website here. You can also — as part of an experimental OUP initiative — download a complete PDF of the book for free at either www.oup.com/uk or www.oapen.org. If you cannot afford the £70.00, by all means download the PDF.

UPDATE: The free open-access version of the book is now available on the webpage linked to above.

The Misleading Human Rights Watch and Amnesty International Reports on U.S. Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University. He is a former Navy aviator and Topgun graduate.]

Human Rights Watch and Amnesty International released reports last week criticizing the use of drones in Yemen and Pakistan.  Both reports have significant flaws in the way the factual information was presented and in how they characterize international law and US policy.

The HRW report is misleading from the outset. Entitled “Between a Drone and al Qaeda,” the report describes HRW’s investigation of six strikes in Yemen.  Yet the strike that caused the vast majority of the civilian casualties described in the report occurred 4 years ago and was not even carried out by a drone. The cruise missile strike on al-Majalah has been covered extensively in the media for years, and was the result of Tomahawk cruise missiles fired from a US warship.

The most pernicious part of injecting the civilian casualties caused by this cruise missile strike into a report critical of drones and US targeted killing policy is the fact that this very strike had a profound impact on US policy four years ago.  Daniel Klaidman’s book “Kill or Capture” details the Obama Administration’s reaction to the al-Majalah strike.  The administration elevated the level of authority required to approve such strikes to the National Command Authority (direct oversight by the cabinet/joint chiefs/president).  It also provided impetus for the shifting in weapons systems away from large weapons like cruise missiles that weigh 3,000 lbs. and carry a 1,000 lb. warhead to weapons like the Hellfire missile (the weapon most often employed by drones) that weighs only 100 lbs. and carries a 20 lb. warhead.  The implication that the al-Majalah strike represents current US targeted killing policy is simply false

HRW’s report also claims that the administration’s policy on targeted killings as outlined in President Obama’s speech at the National Defense University in May embraces a law enforcement approach to the conflict with AQAP rather an armed conflict approach. It comes to that conclusion by cherry-picking a quote from that speech stating that the US only targets individuals who pose an “imminent threat to the American people,” which closely resembles a law enforcement standard. The report neglects to include the two words preceding that quote.  President Obama actually said that the US targets terrorists that pose a “continuing and imminent threat to the American people.”  This difference is significant.

In the context of the rest of President Obama’s address and those of other administration officials before him it is clear that the United States’ position is that it is involved in an armed conflict with al Qaeda and its associated forces.  The President says as much later in the same speech: “the conflict with al Qaeda, like all armed conflicts, invites tragedy.”  An earlier speech by John Brennan, then Assistant to the President for Homeland Security, was even clearer on this point…

(Continue Reading)

Autonomous Weapons and a Campaign for a Treaty Ban

by Kenneth Anderson

The debate over autonomous weapons is not so visible in the United States, but the ban campaign launched by Human Rights Watch a year ago – an international NGO coalition called the “Campaign to Stop Killer Robots” – has been quite active in Europe and at the UN, where a number of countries raised the issue in their statements to the General Assembly’s First Committee (disarmament issues).  Matthew Waxman and I have been writing about this issue for several years; we have a short policy paper on the topic available at SSRN, “Law and Ethics for Autonomous Weapon Systems,” and we’re pleased to note our op-ed in the Wall Street Journal on Monday (November 4), “Killer Robots and Laws of War.”  We argue against a ban, on a number of grounds (it can be found open access at RealClearPolitics, here).  Here are a couple of grafs from midway through the piece (later on I’ll add links to the ban campaign and some other resources; must go teach class!):

[A] ban is unlikely to work, especially in constraining states or actors most inclined to abuse these weapons. Those actors will not respect such an agreement, and the technological elements of highly automated weapons will proliferate.  Moreover, because the automation of weapons will happen gradually, it would be nearly impossible to design or enforce such a ban. Because the same system might be operable with or without effective human control or oversight, the line between legal weapons and illegal autonomous ones will not be clear-cut.

If the goal is to reduce suffering and protect human lives, a ban could prove counterproductive. In addition to the self-protective advantages to military forces that use them, autonomous machines may reduce risks to civilians by improving the precision of targeting decisions and better controlling decisions to fire. We know that humans are limited in their capacity to make sound decisions on the battlefield: Anger, panic, fatigue all contribute to mistakes or violations of rules. Autonomous weapons systems have the potential to address these human shortcomings. No one can say with certainty how much automated capabilities might gradually reduce the harm of warfare, but it would be wrong not to pursue such gains, and it would be especially pernicious to ban research into such technologies.

That said, autonomous weapons warrant careful regulation. Each step toward automation needs to be reviewed carefully to ensure that the weapon complies with the laws of war in its design and permissible uses. Drawing on long-standing international legal rules requiring that weapons be capable of being used in a discriminating manner that limits collateral damage, the U.S. should set very high standards for assessing legally and ethically any research and development programs in this area. Standards should also be set for how these systems are to be used and in what combat environments.

The Drone Reports: Can Members of Armed Groups Be Targeted?

by Jens Iverson

[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.]

Amnesty International and Human Rights Watch have recently published reports (AI, HRW) regarding drone strikes.  They are admirable.  They further the debate on the legality of drone strikes.  (This debate continues on Opinio Juris and elsewhere by Deborah Pearlstein, Ryan Goodman, and Kevin Jon Heller amongst others.)  Each report provides unique reporting and strong legal arguments on an important issue.  There is at least one subject, however, where they, at a minimum, overstate the clarity of the law—namely, the status of members of organized armed groups who are not directly participating in hostilities in a non-international armed conflict (NIAC).

AI and HRW effectively state that members of an organized armed group (party to the NIAC) who are not presently directly participating in hostilities are protected from direct attack.  Both reports rely strongly on the ICRC’s landmark volume Customary International Humanitarian Law.  This volume does not fully support them on this issue.

AI states:

Speeches by US officials suggest that the Administration believes that it can lawfully target people based merely on their membership in armed groups, rather than on the basis of their conduct or direct participation in hostilities. Membership in an armed group alone is not a sufficient basis to directly target an individual. (pp. 45-46, emphasis added)

HRW states:

US statements and actions indicate that US forces are applying an overly broad definition of “combatant” in targeted attacks, for example by designating persons as lawful targets based on their merely being members, rather than having military operational roles, in the armed group. Individuals who accompany or support an organized armed group, but whose activities are unrelated to military operations, are not lawful military targets under the laws of war. Thus members of an armed group who play a political role or a non-military logistics function cannot be targeted on that basis alone. (p. 86, emphasis added)

In contrast, Customary International Humanitarian Law states in the commentary to Rule 5 (Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians):  (more…)

Why Is Britain Intentionally Using Weapons of Mass Destruction?

by Kevin Jon Heller

I refer, of course, to the British Navy’s use of the music of Britney Spears to scare off Somali pirates:

In an excellent case of “here’s a sentence you won’t read every day”, Britney Spears has emerged as an unlikely figurehead in the fight against Somali pirates.

According to reports, Britney’s hits, including Oops! I Did It Again and Baby One More Time, are being employed by British naval officers in an attempt to scare off pirates along the east coast of Africa. Perhaps nothing else – not guns, not harpoons – is quite as intimidating as the sound of Ms Spears singing “Ooh baby baby!”

Merchant naval officer Rachel Owens explained the tactics to Metro: “Her songs were chosen by the security team because they thought the pirates would hate them most. These guys can’t stand western culture or music, making Britney’s hits perfect. As soon as the pirates get a blast of Britney, they move on as quickly as they can.”

This is an unconscionable tactic, one that does not befit a country that considers itself civilized. Need I remind the British Navy that torture is illegal under both international and UK law?

The British Navy should also be aware that international law does not completely forbid belligerent reprisals. If the Somali pirates begin to fight back by blaring One Direction at oncoming British ships, the Navy will have no one but themselves to blame.

Hat-Tip: the BBC’s Kate Vandy.

Does Japan’s Pledge to Shoot Down Chinese Drones Violate International Law?

by Julian Ku

The government of Japan has issued a new policy authorizing its military to shoot down foreign (read: Chinese) drones that enter the airspace over the disputed Senkaku/Diaoyu Islands in the East China Sea. China’s Ministry of Defense has issued a statement suggesting that such an action would be an “act of war” and declaring that China’s manned and unmanned flights do not in any way violate international law.

Interestingly, I think both sides could act in good faith and comply with international law, and still get involved in a nasty dangerous military conflict.  Of course, the nub of the problem is that both Japan and China claim sovereignty over the same airspace, e.g. the Senkakus/Diaoyu.  So both countries could claim to be acting in “self defense” over their sovereign territory in either shooting down or reacting to the downing of a Chinese drone.

One interesting question is whether downing a Chinese drone that was unarmed, and that was not clearly military, would be a violation of the Chicago Convention on International Civil Aviation. Many of the Chinese drones are associated with the PRC’s various coast guard equivalents, and are not associated with their military.  Article 8 of that Convention has a pretty clear ban on the flight of “pilotless aircraft” over the territory of another member state.   So Japan has Art. 8 on its side. But China would never concede the basic sovereignty question, thereby making Article 8 pretty unhelpful. Still, would the Japanese shoot down a clearly unarmed “manned” plane that encroached on the Senkakus? So why shoot down the unarmed drones?  Plainly, Japan will have to offer some evidence of the drones’ threat to bolster any attack it makes.

On the other hand, is China overreacting to call those Japanese threats an “act of war”? I suppose that is technically true if one accepts that China’s drones are flying over Chinese airspace.  Still, it is hard to imagine that downing a drone (where no one is hurt or killed) could have the same  significance as downing a manned plane.

I think Japan is trying to test China, and draw lines on matters that wouldn’t necessarily escalate into armed conflict.  It just might work, but it is sure risky.

My Talk in London Defending the Specific-Direction Requirement

by Kevin Jon Heller

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY’s recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi’s ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House’s Elizabeth Wilmshurst was the moderator. I don’t believe the symposium was recorded, so I thought I would post the detailed outline of my remarks. My talk was, not surprisingly, a defence of Perisic‘s specific-direction requirement; it developed and systematized the thoughts I’ve articulated in a series of posts here on Opinio Juris. I was particularly keen to explain why criticizing the requirement for lacking a foundation in customary international law – as the SCSL did in Taylor – fundamentally misunderstands the difference between criminal-law doctrines that expand criminal responsibility (which must have a customary foundation, because of the nullum crimen principle) and those that narrow it (which do not have to have a customary foundation, because they do not implicate nullem crimen).

The outline of my remarks can be found here. As always, reader comments most welcome!

Appeals Chamber Ensures Ruto & Kenyatta Won’t Cooperate with the ICC

by Kevin Jon Heller

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence.

It’s decisions like these that make me despair for the long-term viability of the Court. From a policy perspective, the decision is a disaster — it basically ensures that Ruto and Kenyatta will stop cooperating with the Court. Even worse, the decision will almost certainly engender considerable sympathy for the two men; after all, whether the ICC likes it or not, Ruto and Kenyatta were democratically elected to run a state critically important to African security. They are not Omar al-Bashir, who came to power in a coup and maintains power through fraudulent elections. Nor are their crimes as grave or their guilt as obvious.

Unlike the Trial Chambers — especially in the Kenyatta case — the Appeals Chamber seems completely oblivious to the obvious implications of its uncompromising position. Here is its list of rationales for requiring continuous participation (para. 49):

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

The most obvious response is this: Ruto and Kenyatta will play no role at all in “promoting public confidence in the administration of justice” if they do not show up for trial. But beyond that, the Appeals Chamber’s rationales are either irrelevant or equally compatible with a more flexible approach to presence. Presence at trial is indeed important for an accused’s ability to understand the evidence against him — but it’s not the Court’s role to make sure the accused make smart strategic choices. There is no relationship at all between confronting an accused with the evidence against him and creating a comprehensive record, especially given that he cannot be forced to testify against his will (Art. 67(g) of the Rome Statute). And although it’s certainly possible that an accused’s absence may have a detrimental impact on the morale of victims and witnesses, I imagine most are more concerned with a conviction (and at least some would probably prefer not to have to give evidence in front of their victimizer).

These are policy concerns, of course, and the Appeals Chamber was faced with a legal issue — whether the Rome Statute requires an accused to be continuously present at trial. Indeed, I would have respected the Appeals Chamber if it had adopted the OTP’s argument and simply held that Art. 63(1) means what it says: “The accused shall be present during the trial.” An absolute presence requirement is obviously consistent with Art. 63(1) — and is generally if not unequivocally supported by the drafting history of the provision.

But that is not what the Appeals Chamber did. Instead, it tried to have it both ways — rejecting an absolute presence requirement and denying Trial Chambers the discretion they need to fashion a presence requirement that will ensure Ruto and Kenyatta show up for trial. Here is the key paragraph:

62. From the foregoing, the following limitations on the discretion of the Trial Chamber to excuse an accused person from presence during trial may be derived: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.

This is the worst of both worlds — the kind of mushy, divorced-from-the-text-of-the-Rome-Statute approach to Art. 63(1) that makes the Court seem callow and capricious. Indeed, the Appeals Chamber’s decision sends precisely the wrong message to Kenyatta and Ruto: “hey guys, it’s true that the Rome Statute doesn’t require your continuous presence. But it requires it more often than the Trial Chamber thinks it does. So you’ll just have to hope that the Trial Chamber will apply the test we pulled out of thin air in a manner that doesn’t make it impossible for you to both run Kenya and cooperate with the Court.” I think we know how that will turn out.

Once again, the ICC has shot itself in its foot. Deferral by the Security Council is looking like a better option by the day.

Guest Post at Just Security About “Belonging to” and Associated Forces

by Kevin Jon Heller

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction:

In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.” According to Ryan, the US is involved in a NIAC with al-Qaeda’s associated forces because they “belong to” al-Qaeda for purposes of the rules of IHL governing targeting and detention. Here is what he said, nominally in response to Christof Heyns’ assertion in his recent UN report on extrajudicial killings that an associated force must “form part” of al-Qaeda for its members to be targetable and detainable:

Nevertheless, the law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”

In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention.

I disagree with Ryan that the concept of “belonging to” can be applied in non-international armed conflict (NIAC). In this post I explain why.

Because Just Security does not have a comment system, interested readers should feel free to leave comments here.

Jens Iverson Guest Post: The New Haven School on Syria–Observing Professors Koh and Stahn

by Jens Iverson

[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. (more…)

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)

by Carsten Stahn

[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. (more…)