Was the Downing of the Russian Jet by Turkey Illegal?

Published on November 26, 2015        Author: 

There has been much talk of improvement of the relationship between Russia and the West following the deadly terrorist attacks in Paris two weeks ago. Whatever gains have been made on that front will risk being reversed following Tuesday’s incident involving the Russian and Turkish air forces. Although the exact facts are—and likely will remain—disputed, the essence of the incident is known: a Russian fighter jet was shot down in the morning of 24 November by the Turkish military near the Turkish-Syrian border. This post weighs the international law considerations raised by the incident and suggests that on the basis of the available facts, the question from the title should likely be answered in affirmative.

The Russian SU-24 jet was in the region as part of the recent military offensive conducted by the Russian forces with the consent of the government of Syria against a number of armed groups on the Syrian territory, including the notorious Islamic State. The central contested fact is, of course, whether the aircraft had crossed over the border into the Turkish airspace. The Turkish prime minister Ahmet Davutoğlu emphatically claimed that it had; the Russian president Vladimir Putin denied it in equally strong words. An unnamed US official was reported as having said ‘that the Russian incursion into Turkish airspace lasted a matter of seconds’. Later, a Turkish letter addressed to the President of the Security Council (and duly leaked online) stated the incursion had lasted for exactly 17 seconds.

The legal analysis under international law is reasonably clear if the Russian version of the events is taken as factually accurate. The shooting down of another State’s military aircraft amounts to a use of force against that State. The recognized exceptions of the use of force in self-defence and under the authorization of the Security Council being inapplicable on the facts, the destruction of the jet would be caught by the general prohibition on the use of force under Article 2(4) of the UN Charter and thus unlawful.

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The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”

Published on November 26, 2015        Author: 

President Obama has called the recent Paris terror attacks an “attack on all of humanity”. In doing so, he has touched upon the core of so-called crimes against humanity. Due to their quantitative and qualitative dimensions and their utter disregard for fundamental values, such crimes are directed not only against individual persons, but against humanity as a whole. The link to a State was abandoned in the Statutes of the UN Ad Hoc Tribunals in 1993 (ICTY) and 1994 (ICTR) and then, with a universal claim,  in 1998 with the definition adopted in Article 7 of the Rome Statute of the International Criminal Court (ICC). Since then, it has been possible for crimes against humanity to be committed by non-state actors. Their traditional State-based rationale – punishing the representatives of the morally perverted State that uses its power against its own citizens without restraint – can be transferred to non-state actors. When these actors, like the so-called Islamic State (IS), send suicide assassins into a concert hall to execute innocent civilians, this reveals a level of moral perversion that is typical of crimes against humanity. That the perpetrators invoke God when doing so makes the matter even worse. Religiously motivated perpetrators of crimes against humanity not only deny their victims’ right to exist, but in doing so place themselves above us “unbelievers” as part of a supposedly divine mission; in fact, they act in the same manner as the crusaders they claim to be fighting against.

A perpetrator of a crime against humanity is “hostis humani generis”, an enemy of mankind. The concept was used to refer to pirates long before crimes against humanity existed. The IS is far worse than pirates, and its acts carry all of the hallmarks of crimes against humanity. While this may have been doubted before Paris, after the attacks these doubts are gone with the wind. In the dry technical language of the so-called context element of crimes against humanity, the attacks represent a widespread and systematic attack directed against the civilian population. The attack targeted a large number of civilians and had been planned in a premeditated fashion. The intentional killing of more than 100 people constitutes the required single act of ‘murder’. As a consequence, the ICC has jurisdiction ratione materiae, without any need for recourse to war crimes. This makes the matter simpler, as it is highly controversial – despite the unambiguous language of the French President Hollande (“acte de guerre”) – whether an armed conflict can actually exist between a transnational non-state actor and a State under current International Humanitarian Law.

However, does the ICC also have formal jurisdiction over acts committed by members of Islamic State? Read the rest of this entry…

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Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups

Published on November 25, 2015        Author: 

On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.

Mixed Message

This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.

The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.

But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).

Effect of non-binding Resolutions

That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.

This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. Read the rest of this entry…

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Russia’s Intervention in Syria

Published on November 25, 2015        Author: 

Previous posts on Syria (see for example here and here) have commented on the air strikes by the US-led coalition, but the Russian air strikes on Syrian territory (as reported here and here) have been largely left undiscussed. This post will analyse the legality of Russia’s actions. Russia has been acting upon the request of President Assad (see here and here), which means that the international legal basis for Russia’s use of force is intervention by invitation. First, the concept of intervention by invitation itself needs to be addressed. Second, it is contested whether an intervention is even allowed during a civil war.

Intervention by Invitation

There is no explicit reference to intervention by invitation in the UN Charter nor is it covered by article 2(4). Pursuant to that article, states shall refrain from using force “in their international relations”. Using force upon an invitation, however, is not using force in international relations as no force is used by one state against another, but the two states are working together, using the force on one side. This falls outside the scope of article 2(4). Therefore no prohibition comes into play and this type of force is allowed. The importance of valid consent (the invitation) was addressed by the ICJ in the case DRC v. Uganda. The Court dealt with the situation after the consent had been withdrawn by the DRC, thereby emphasising the importance of valid consent, yet also indirectly making clear that before the withdrawal no violation of international law occurred. Thus, intervention by invitation falls outside the scope of article 2(4), as long as the consent is valid.

Intervention in a Civil War?

The second issue, which is a contemporary topic of international law as evidenced here, questions the legality of an intervention by invitation in a civil war. Read the rest of this entry…

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Syria the Land of Impunity

Published on November 24, 2015        Author: 

FullSizeRenderThe Geneva Communiqué of the Action Group for Syria of 30 June 2012, which was endorsed by the UNSC Resolution 2118 (2013), identified key steps for a Syrian led political transition. The Communiqué problematized the “Syrian conflict” as one involving a challenge of security, safety and restoration of stability and calm. During the first half of 2015, Mr. Staffan De Mistura, the UN Special Envoy for Syria, carried out a series of consultations in Geneva with various local and international actors in the Syrian conflict, to explore views on how to “operationalize” the Geneva Communiqué. The consultations produced a proposal to set up four thematic intra-Syrian working groups, which would bring together Syrians from the government and the oppositions to discuss a range of transition topics, including a group on “safety and protection for all”. On 30 October 2015, all regional and international actors involved in the “Syrian conflict” met in Vienna and produced the Vienna Declaration, which promised to launch a “renewed political process” based on eight points of agreement. On 14 November 2015, the same group met again in Vienna and formed the International Syria Support Group (ISSG).  The ISSG pledged to bring the Syrian government and the opposition together to embark on a “political process pursuant to the 2012 Geneva Communiqué.”

Nowhere in the diplomatic literature produced so far can one find the word “impunity.” Indeed the political solution contemplated in the Geneva Communiqué, which is still at the core of the renewed political process, rests on the absence of this potentially explosive word. Instead, the Communiqué sets forth at point No. 10(d) that in order to achieve “safety, stability and calm” there needs to be a commitment to accountability for future crimes. As for accountability for acts committed during the present conflict, this must be addressed pursuant to a comprehensive package for transitional justice. The Communiqué stresses, in particular, “national reconciliation” and “forgiveness.”

The problematization of the “political process” as one involving a technocratic challenge to ensure “safety” is hugely shortsighted. The current diplomatic efforts are entirely geared towards bringing the local actors to the negotiation table. The language of “justice” and “rights” is seen as inadequate and unhelpful, as it is likely to subvert the political process. However, in the Syrian context this premise is both historically unwarranted and politically untenable. Indeed, the Syrian political process will have little chance of success if it does not address head-on the question of impunity, which is at the core of the Syrian conflict. Read the rest of this entry…

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The Constructive Ambiguity of the Security Council’s ISIS Resolution

Published on November 21, 2015        Author: 
Security Council Adopts Resolution on Fighting ISIL

UN Photo/Loey Felipe

On Friday, the UN Security Council unanimously adopted resolution 2249 (2015), condemning a series of recent terrorist attacks by Islamic State (IS, ISIS or ISIL). The text of the resolution, together with statements of Council members, is available here. This resolution was proposed by France and superseded two competing earlier drafts by Russia. The resolution determines that IS constitutes “a global and unprecedented threat to international peace and security.”

But the resolution itself is, perhaps, an equally unprecedented measure by the Security Council. The resolution is clearly designed to provide legitimacy for the measures being taken, and to be taken, against IS by giving the Council’s imprimatur to such measures. In particular, the resolution is worded so as to suggest there is Security Council support for the use of force against IS. However, though the resolution, and the unanimity with which it was adopted, might confer a degree of legitimacy on actions against IS, the resolution does not actually authorize any actions against IS, nor does it provide a legal basis for the use of force against IS either in Syria or in Iraq.

The main operative paragraph of the resolution is para 5, in which the Council:

“5.   Calls upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;”

Before we attempt to decipher what this paragraph actually means, it is important to note that the resolution was not adopted under Chapter VII of the Charter. Or rather, the resolution does use the “acting under Chapter VII” formula that is usually used to signal that the Security Council intends to take binding action, despite a couple of determinations in the preambular paragraphs about the existence of a threat to international peace and security, which (determinations) presumably are made under Article 39 of the Charter. In op. para. 1 of the resolution, the Council similarly “regards all such acts of [IS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

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Announcements: Paris COP21 Climate Change Conference; CfS Melbourne Journal of International Law; Conference on Non-State Actors; Vacant Positions at Columbia Law School; Concluding Conference of the MultiRights Project; PluriCourts Guest Researchers

Published on November 21, 2015        Author: 

1. Paris, COP21: Conference on Climate Change Related Disputes. The conference “Climate Change Related Disputes: A Role for International Arbitration and ADR” will take place during the COP21 in Paris on 7 December 2015. The event is a one-off jointly organised event by the IBA, the ICC, SCC and the PCA and will bring together multi-disciplinary experts in international arbitration, trade and investment, environment and climate change, as well as representatives from business, government, international institutions and bodies, including members of state negotiating parties, to discuss existing use of international arbitration and ADR mechanisms in resolving climate change related disputes. It will also explore new uses for contractual and investment treaty mechanisms and the role for arbitration and ADR in enforcing the UNFCCC principles and state parties’ underlying pledges. See here for further details.

2. Call for Submissions, Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 17(1). The deadline for submissions is 31 January 2016. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries can be directed to law-mjil {at} For more information please see here.

3. Conference on Non-State Actors. The ILA British Branch Spring Conference 2016 on “Non-State Actors and Changing Relations in International Law” will be held at Lancaster University on 8-9 April 2016. This conference will examine the changing role of non-state actors (NSAs) in international law and their impact on law-making, obligations, responsibility and dispute settlement. We welcome papers on this subject, which could include: (i) the nature and position of NSAs within the international legal system; (ii) their role with respect to the sources of international law, which may include their role in the formation of custom and in the conclusion of treaties; (iii) the source and scope of obligations for particular NSAs, such as businesses or corporations (e.g. sanctions, human rights, modern slavery), sporting bodies and organised armed groups; (iv) the potential responsibility of these actors and its relationship to state responsibility; (v) the position of these actors in dispute resolution and enforcement mechanisms; or (6) the special roles of NSAs in particular areas of international law, such as international environmental law, international economic law (including investment law), the international law of armed conflict, international human rights law and international criminal law. For further details see here. Abstracts of no more than 500 words should be submitted to j.summers {at} by 31 January 2016. Read the rest of this entry…

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Filed under: Announcements and Events

EJIL:Talk! Is Now on Facebook

Published on November 20, 2015        Author: 

We are proud to announce the creation of the EJIL:Talk! Facebook page. EJIL:Talk! posts will show automatically on the timeline of those who ‘like’ our page. This new feature provides our readership with yet another platform on which to follow us – if you are on Twitter, you should already be following us there – , facilitates the circulation of our materials, and allows EJIL:Talk! posts to reach a wider audience.

We remain committed, of course, to providing academics and practitioners in all fields of international law with a site for top-notch legal analysis and a setting for high-level exchange with fellow international lawyers, less limited by the formal requirements and time constraints of the European Journal of International Law. We hope that this new feature will add to our community and facilitate the engagement of scholars, students, and professionals with EJIL:Talk!

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The ICRC’s Position on a Functional Approach to Occupation

Published on November 18, 2015        Author: 

It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).

Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.

Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.

With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’

Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:

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Beneficial Ownership and International Claims for Economic Damage: Occidental Petroleum v. Ecuador and Restoring Limits to Investor-State Arbitral Tribunals’ Jurisdiction Ratione Personae

Published on November 16, 2015        Author: 

On 2 November 2015, the ICSID ad hoc Committee composed of Prof. Juan Fernandez-Armesto (Committee President), Justice Florentino Feliciano, and Mr. Rodrigo Oreamuno in Occidental Petroleum Corporation v. The Republic of Ecuador (ICSID Case No. ARB/06/11) partially annulled the massive US $1.769 Billion award of damages issued on 5 October 2012 by the majority of the arbitral tribunal (Mr. Yves Fortier, President, and Mr. David A.R. Williams) over the strong dissent of arbitrator Prof. Brigitte Stern. Agreeing with arbitrator Stern’s position that Occidental Petroleum had split its ownership to give a 40% ownership interest to a Chinese company Andes/AEC (Committee decision, para. 204), the ICSID ad hoc Committee whittled down the damages awarded to only reflect the actual 60% ownership of claimant Occidental Petroleum in the assets that Ecuador expropriated. The Committee’s decision significantly brought down the compensation value for the expropriation to the 60% as owned by Occidental Petroleum to US$1.061 Billion (Committee decision, paras. 586 and 590). The Committee treated the Chinese company Andes/AEC’s beneficial ownership of 40% of the expropriated assets as outside the scope of its jurisdiction over covered investors protected under the US-Ecuador BIT.

In issuing its landmark decision, the Committee stressed proscribed limits under the law of investor-State claims; the distinct confined mandate and authority of arbitral tribunals as derived from the creation and consent of States; and the ensuing narrow availability of the investor-State treaty arbitral system only to treaty-covered investors: Read the rest of this entry…

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