[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…)