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

[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.

Someone with this perspective will not be satisfied with a response that does not allow for the possibility of lawyers to lead towards a world order that can prevent atrocity crimes—with the U.N. Security Council if possible, nonviolently if possible, but without such authorization and with force if necessary.  This is not necessarily calling for radical change, but rather reflects frustration with the likely impossibility of any profound structural change under the current U.N. Charter without reinterpretation, perhaps echoing Edmund Burke’s maxim—”A state without the means of change is without the means of its conservation.”  If international lawyers do not discover a way to change the international system to prevent atrocity crimes, it is a threat to the conservation of the international system itself, and an abdication of duty.

Stahn’s Approach:

Stahn does not overtly link himself to any school of international law.  His operating framework must be discerned from his text.  It is too simplistic to label it “Positivist,” as there is a strong emphasis not only on what the rules currently are, but also on the creative possibilities within the current system.  Nonetheless, his approach is more positivist than Koh’s, and more willing in this instance to insist that a rule can be logically determined, applied to the facts, and to come out with a correct answer.  While this seems on one hand more sure-footed—no recourse to “grey areas” here—it is also in a sense more humble, at least with respect to the role of a lawyer.  In my experience, in Europe the phrase “legal science” is uttered much more easily than in the U.S., whereas a European trumpeting the duty of a “lawyer as leader” might raise more skeptical eyebrows.  Stahn notes policy outcomes, but they do not change the fundamental duty to objectively evaluate the law.  The humility of a stance that suggests that lawyers cannot fix everything, and also that some problems are perhaps intractable, is much more comfortable in European settings.  Perhaps the memory of international armed conflict on one’s home territory is fresher here, and retains primacy in terms of problems to avoid at almost all costs, even atrocious costs.

The Varied Function of the Debate

These differing approaches not only make it hard to find consensus within this debate, they differ as to the function of the debate itself.  A simple way to describe this divide might be to say that one side emphasizes the duty to construct the truth, the other to honestly determine the truth.

In the New Haven School, the role of an international lawyer is at least in part to construct the truth, legal truths being simply human creations that can be guided with the application of fundamental values.  An appeal to those fundamental values is part of the process of making social choices, to mold policy in a way that maintains order and best approximates the international community’s goals.  The debate, even on blogs, is part of the construction of legal truth.

In contrast, those Koh describes as taking the “absolutist view” emphasize the difference between the law as it is and the law as it should be, and are probably more likely to agree with Richard Posner’s description of scientific legal study: “As biology is to living organisms, astronomy to the stars […] so should legal studies be to the legal system[.]” A debate amongst astronomers will not change the position of the stars.  Blog posts, in this view, simply cannot change the law.

Going Forward:

To have fruitful debate, it would be helpful to confront openly the priorities and limitations of each side.  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.  There have been and will be cases where “accountability, deterrence or sanctioning of jus in bello violations” will not prevent further atrocities, and unsanctioned use of force will.  That said, loosening restrictions on the use of force, even with the best of intentions, not only increases the potential of international armed conflict, but also may tend to intensify non-international armed conflict and weaken international law more generally.  Those in the U.S. cannot simply ignore the possibility of abuse by the U.S. and by others.  We can attempt to manage these tensions, but we should not ignore them.  An honest, informed, and productive debate requires not only discussion of the subject itself, but knowledge of where the participants come from, and what they think they are doing in the debate itself.