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Guest Post: On ‘Humanitarian Intervention’, ‘Lawmaking’ Moments and What the ‘Law Ought to Be’–Counseling Caution Against a New ‘Affirmative Defense to Art. 2 (4)’ After Syria

[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.

Speaking of Evolving Approaches to Counterterrorism

The recent raids in Libya and Somalia have, among other things, raises renewed questions about how the U.S. can/should carry out its counterterrorism operations without, as President Obama puts it, “keeping America on a perpetual wartime footing.” Delighted to say we’ll be taking up just that topic in an evening panel I’ll be moderating in New York next Monday. Public...

Responding to Marty Lederman on Somalia

Marty has a response up over at Just Security to my earlier post on the domestic and international law questions arising after the U.S. actions in Libya and Somalia late last week. Continuing the conversation, a few replies here. (1) Is there a statutory source of domestic authority for the operation in Somalia? Marty’s theory is that the AUMF may well suffice...

The Raids in Somalia and Libya – Theories of Self Defense?

As all major news outlets have now reported, the U.S. carried out two armed raids overseas late last week: one in Tripoli that resulted in the successful capture of suspected core Al Qaeda leader Abu Anas al-Liby, and another in Somalia apparently aimed at a leader of militant Somali group Al Shabaab. Both raise complex questions of U.S. and international...

Weekend Roundup: September 28 – October 4, 2013

This week on Opinio Juris, we organized a book symposium on Investment Law in International Law: Integrationist Perspectives, edited by Dr Freya Baetens. If you enjoyed the symposium, don't miss CUP's offer of a 20% discount for our readers. More details are here. Freya introduced the goals of the book, followed by comments by Laurence Boisson de Chazournes. On Tuesday, Nicolas Hachez and Jan Wouters...

Weekly News Wrap: October 3, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East The Security Council has urged the Syrian government to allow cross-border aid deliveries, calling on all parties to Syria's conflict to agree on humanitarian pauses in fighting and key routes for aid convoys. Russian President Vladimir Putin seems optimistic about Syria, saying global powers were "on the right...

Guest Post: A Critique of Dodge and Cleveland, and Thoughts on Bond

[John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law] In a recent article posted to SSRN, and introduced by Duncan here, Professors Sarah Cleveland and Bill Dodge (“the authors”) have done us all a great service in unearthing the history of the Offenses Clause and its inclusion of U.S. treaty violations.  Although I was originally suspect of their claim that the Offenses Clause empowers Congress to punish all U.S. treaty violations, as was obvious in my comments to Duncan’s post, I ultimately found myself convinced of this aspect of their thesis. The persuasive evidence they marshaled to support this broad claim, however, caused me to question the rather uncertain limitation that they later placed on it: that conduct being punished pursuant to the Offenses Clause “must itself be condemned in some manner under international law.”  (p. 3, all bare page references are to draft article)  Further to this point, the authors posit that the Offenses Clause allows Congress to punish “when: (1) a treaty operates directly to prohibit the conduct; (2) a treaty expressly mandates that states punish the conduct; (3) a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment; [or] (4) a treaty authorizes punishment under international law, even if it does not require it.  In all such cases, however, it must be international law that condemns the relevant conduct, at least in general terms….”  (p. 53). The intent behind these proposed limitations is laudable: to circumscribe what might otherwise be construed as virtually limitless congressional authority to regulate domestic matters potentially implicating U.S. treaty obligations.  Much of the evidence the authors offer in support of the broader claim seems to potentially undermine these limitations, that is, depending upon exactly what they intended to exclude.  (I, for one, would welcome the authors to provide examples of treaty provisions excluded by their proposed limitations.  In establishing their broader thesis the authors cited even congressional reliance upon what appear to be hortatory provisions of the U.N. Charter.  See p. 34). Throughout the article, the authors rely on founding era and other evidence supporting a purposeful reading of the Offenses Clause. To summarize: (1) the Offenses Clause reaches treaty infractions because treaties, even bilateral treaties, become part of the law of nations; and, (2) the Offenses Clause was enacted so that Congress may ensure national compliance with the law of nations, including U.S. treaty obligations.  They present an abundance of pre- and post-constitutional evidence to support this broad thesis.  And they recognize that the law of nations applies not only to a state acting in its corporate capacity but also to its members acting individually.  Thus, the act of a single person may, in the proper context, place a nation in violation of its international obligations. In such circumstances, it would seem, the Offenses Clause allows regulation of any such act. Indeed, the authors’ evidence strongly suggests that a relevant provision of international law need not “address” if this means to some affirmative extent, even generally (unless exceptionally generally), the precise conduct Congress is regulating pursuant to the Offenses Clause.  Any conduct capable of violating a treaty obligation in a proper context is susceptible of regulation.  To say that the law of nations includes treaties is to say that every act that results in a treaty violation is “condemned” by the law of nations.  Thus, it seems redundant for the authors to suggest, as a limitation, that “it must be international law that condemns the relevant conduct, at least in general terms.” And it seems internally inconsistent to require that “a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment.”  Violation of a general treaty provision may occur in myriad ways not mentioned or even contemplated at the time the relevant treaty was drafted and adopted.

Weekend Roundup: September 21-27, 2013

This week on Opinio Juris, Kevin welcomed Just Security to the blogosphere, but regretted the absence of a comments section.  Not one to be easily stopped, he went for inter-blog commentary instead with his response to Ryan Goodman's post on whether or not the US is at war with al-Qaeda. He also criticized the Special Court for Sierra Leone’s Appeals Chamber for its incoherent — and selective —...

On the Draft Security Council Resolution

As Ken notes below, the draft UN Security Council Resolution regarding the disposition of Syria’s chemical weapons is now available. While it can’t be construed as authorizing the use of force against Syria to ensure compliance without further Security Council action – entirely consistent with the Council’s past practice in Iraq, Kosovo, and elsewhere with slowly escalating Security...

P-5 Approved Draft Language of Security Council Resolution on Syria’s Chemical Weapons

Probably many of you are reading, as I am now, the just-released language of a draft UN Security Council resolution (reported by the press as P-5 approved) on Syria's chemical weapons.  I'm particularly interested in this, as I'm talking tomorrow at ASIL's monthly brown bag lunch for Congressional staff on Syria and the use of force - it's a descriptive...