International law usually develops gradually—a process known as crystallization—but sometimes transformative change, known as a “Grotian Moment,” causes rules and doctrines to emerge surprisingly quickly.
Michael P. Scharf’s new book, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments, suggests that bombing Syria may constitute a Grotian Moment.
Scharf, associate dean for Global Legal Studies and the John Deaver Drinko – Baker and Hostetler Professor of Law, says that what the United States decides to do in Syria could well determine the fate of the doctrine of humanitarian intervention. Scharf also says the most controversial chapters in his book are those dealing with the emerging law on humanitarian intervention and on targeted killing of terrorists.
The term Grotian Moment is named for Dutch jurist and scholar Hugo Grotius, whose 1625 book, De Jure Belli ac Pacis (On the Law of War and Peace), is widely regarded as having triggered a paradigm shift in international law.
Recognizing a Grotian Moment is important, Scharf explained, because the concept allows customary international law to keep up with the pace of developments during periods of fundamental change. What is widely accepted as customary international law is certain to affect the future, in courtrooms and in how nations interact.
In his book, Scharf examines the types of technological, geo-political, and societal change that can act as an accelerant in the formation of customary international law.
Scharf became interested in the Grotian Moment concept during a sabbatical in 2008, when he served as special assistant to the prosecutor of the Cambodia Genocide Tribunal. He was assigned to write the prosecution brief arguing that the tribunal could use a doctrine known as Joint Criminal Enterprise Liability (JCE), which is similar to the U.S. felony murder rule.
In response to the defense argument that there was not enough state practice to provide a foundation for JCE, Scharf’s brief argued that the Nuremberg Tribunal’s judgments and the endorsement of the Nuremberg Principles by the United Nations General Assembly in 1946 constituted a “Grotian Moment” that established JCE as nearly instant customary international law. It was the first time the term was used in an international court.
In his book, Scharf takes a close look at what makes a Grotian Moment because relatively little has been written in legal research on that question. He offers a balanced exploration, including an examination of cases “in which commentators and NGOs (non-governmental organizations) have been too quick to claim the existence of a new rule of customary international law.”
After discussing the concept with Sir Christopher Greenwood, the U.K. judge on the International Court of Justice in 2012, Scharf settled on six case studies since World War II that seemed at first glance to fit the profile of a Grotian Moment.
“In each,” Scharf wrote, “the development was ushered in by the urgency of dealing with fundamental change. And each was followed by widespread and/or authoritative recognition of the existence of a new rule of customary international law despite the short duration and dearth of state practice.”
Greenwood wrote: “This is a fascinating and thought-provoking book that deserves to be read by all those interested in international law and how it responds to new challenges. Michael Scharf has performed a real service to the international community.”
Professor Jose Alvarez, editor-in-chief of the American Journal of International Law, wrote: “Readers will debate Scharf’s thesis and how he applies it to his six case studies for years to come.”
Scharf contends that the 1999 NATO intervention to stop Serbian atrocities in Kosovo would have ripened into a Grotian Moment had it not been derailed by the 2003 U.S. invasion of Iraq, which raised global fears about the abuse of a doctrine of unilateral humanitarian intervention.
Formerly attorney-adviser for United Nations Affairs at the U.S. Department of State, Scharf has written 16 books, including three that have won national book awards. His last book, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser (Cambridge University Press 2010), examines the legality of torture in the war on terror.