Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director, Grotius Centre of International Legal Studies, University of Leiden
As I have tried to argue in a draft paper to be published in the Journal of International Criminal Justice (Vol. 11, Issue 5) one of the most striking features of discussion concerning the legality of strikes against Syria has been the mixture of semantics relating to intervention. The justification of intervention in Syria has been replete with references to notions of accountability, deterrence and punishment. For example, US Secretary of State John Kerry linked the moral legitimacy of the proposed response to the idea that ‘there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people’. Also, the United Kingdom Legal Memorandum speaks of the objective of ‘deterring or disrupting the further use of chemical weapons’. Section 2 of the Resolution of the US Senate Foreign Relations Committee invokes three rationales of the authorization of military intervention: (i) ‘respond to the use of weapons of mass destruction by the Syrian government’; (ii) ‘deter Syria’s use of such weapons’; and ‘degrade Syria’s capacity to use such weapons in the future’.
This language associates military intervention with notions of ‘retribution’ and ‘punishment’. The justification seems to be predominantly linked to the ‘gravity’ of the violation. The Obama Administration has translated this imagery into the notion of the ‘red line’. The metaphor seems to suggest that such a breach of international law is so severe that it cannot be tolerated by the international community and warrants a repressive response. The concept that certain acts might trigger international responsibility and are of concern to the ‘international community as a whole’ is of course well-known (ICJ, Barcelona Traction) and reflected in the ILC Draft Articles of State Responsibility (Art. 48).
The use of chemical weapons against civilians is both a violation of customary law and an international crime (UK Legal Memorandum, para 2). But the consequence of this approach, i.e., the idea to ‘punish’ a regime for unlawful action under jus in bello through resort to the use of force, is highly controversial. There are other competing, and at least similarly important ‘red lines’ that require respect, i.e., Articles 2 (1) and (4) of the UN Charter, the prohibition of aggression and the viability of the collective security system, as argued by others.
The policy case in favor of intervention mixes two levels of discussions that have been separated in past decades: state responsibility for an international wrongful act, and individual criminal responsibility for international crimes. The idea that another state (rather than individuals) might be ‘punished’ has been banished from contemporary international law, in contexts such as sanctions, the ban on reprisals against civilians or the prohibition of collective punishment in international criminal law (e.g., Article 4, paragraph 2(b), of Additional Protocol II to the Geneva Conventions), since it has an indiscriminate effect. The current discourse on intervention appears to re-open this principle. Read the rest of this entry…