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Home Articles posted by Mary Ellen O'Connell

Drone Attacks on Saudi Aramco Oil Installations

Published on September 17, 2019        Author: 

Half of Saudi Arabia’s oil production has been stopped by air attacks involving drones and possibly cruise missiles on 14 September 2019. Houthi rebels in Yemen have claimed responsibility. United States Secretary of State Mike Pompeo has asserted by tweet that Iran is responsible because there is “no evidence the attacks came from Yemen” and Iran is behind “100” attacks on Saudi Arabia. The U.S. has since released satellite imagery showing immense smoke clouds. Unnamed American officials say 19 sites were struck. According to the BBC, on 16 September, ‘UK, Foreign Secretary Dominic Raab said it was not yet clear who was responsible for what he described as a “wanton violation of international law”’.

Regardless of who is responsible, the attacks are unlawful for a variety of reasons. For several of those same reasons and others, however, Saudi Arabia has no right to use military force outside its territory in a response. The limits on other states responding with military force or other forms of coercion are equally restricted. Lawful responses are available, ones that would avoid further ‘wanton’ law violations.

The important starting place of the analysis is with the fact that the Houthi rebels are not the government in effective control of Yemen, so they do not qualify as having authority to use military force on the basis of the one relevant justification in this case, United Nations Charter exception to Article 2(4), Article 51. The fact Saudi Arabia has been attacking them in Yemen does not give rise to their right to attack Saudi Arabia.

The most accurate characterization of the Houthis is as a belligerent party engaged in internal armed conflict or civil war from which all non-Yemeni armed groups—state or nonstate—are barred. Saudi Arabia has apparently based its participation in the Yemeni civil war on an invitation from Abdrabbuh Mansur Hadi. Hadi, however, fled and thereby lost effective control or status as the government in March 2015. The conflict remains undecided with the Houthis holding the capital Sanaa as well as territory that is home to more than half the population. While Hadi continues to claim ‘international recognition’ plus Yemen’s seat in the United Nations, under international law, the government for purposes of authorizing force in self-defence must for practical reasons and reasons of self-determination be based on the effective control rule as applied in the Tinoco Claims Arbitration (1 U.N. Rep. Int’l Arb. Awards 369 (1923). Read the rest of this entry…

 

Settling the India-Pakistan Impasse … At Last

Published on March 8, 2019        Author: 

I am grateful for Christian Henderson’s careful, detailed post on the violent confrontation between India and Pakistan that began 26 February. By 3 March direct attacks between the neighbors had tapered off, in part owing to Pakistan’s release of the Indian Air Force pilot it detained after his jet crashed in Pakistan. On the Indian side of the border a harsh crack down continued against separatists — both those seeking accession to Pakistan and those seeking independence.

My own legal assessment of the direct attacks aligns with Christian’s suggestion that they constituted unlawful armed reprisals, not acts of lawful self-defense. (I discussed the prohibition on reprisals here in reference to the U.S., France, and UK’s air strikes on Syria last April.) Christian’s quote from Pakistan’s Acting Foreign Secretary was particularly revealing: Pakistan’s air strikes “[s]ole purpose being to demonstrate our right, will and capability for self defence.”

More proof could be offered, but the space is better used to note some points of difference between Christian and me and to suggest a way forward toward peace after 70 years of violence. In my view, India was the first to use force in clear violation of UN Charter Article 2(4). This serious violation committed against Pakistan just a few months before Indian national elections, could be the opening of a negotiated settlement of the conflict at the heart of the crisis, the dispute over Kashmir. Read the rest of this entry…

Filed under: Use of Force
 

Unlawful Reprisals to the Rescue against Chemical Attacks?

Published on April 12, 2018        Author: 

Donald Trump has threatened Syria with a ‘big price to pay’ for an alleged chemical attack on 7 April in a Damascus suburb. Last year, in similar circumstances, Trump authorized an attack of 59 Tomahawk missiles that reportedly killed 9, including 4 children. The French and German governments responded with a joint press release finding it a ‘just and proportionate’ response. They did not say ‘lawful’–nor could they.

Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. See the same conclusion here  and here. Reprisals need Security Council authorization to be lawful. The Security Council has never authorized a reprisal and will not in the case of Syria.

In 1970, the General Assembly stated clearly in its Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States that among the fundamental rights and duties of states, is the ‘duty to refrain from acts of reprisal involving the use of force’ against other States. The International Court of Justice found in its 1994 advisory opinion on the Legality of Threat or Use of Nuclear Weapons that ‘armed reprisals in time of peace […] are considered to be unlawful.’ In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.

Thus, unauthorized reprisals are always unlawful Read the rest of this entry…

 

Remote-Controlled Killing in Dallas

Published on July 19, 2016        Author: 

On 8 July 2016, most likely for the first time in history, Dallas, Texas police used a remotely piloted land vehicle — a type of drone — to bomb a criminal suspect to death. When asked whether the bombing was justified, a former Los Angeles police captain said yes: “This was not a conventional police operation. This was more of a war zone type operation”.

That Dallas could be a war zone for purposes of killing a criminal suspect and that police would use a bomb to do so are new examples of a continuing post-9/11 phenomenon. It is another case indicating the spreading, negative influence of legal arguments developed to weaken the restraints on the use of force. Other examples have been discussed here recently, including legal reasoning to justify the 2003 Iraq invasion and the abusive claims to self-defense in response to terrorism. This post will focus on the artificial war zone and the militarization of police practices.

“War Zones” Beyond War Zones

Just one week before the Dallas bombing, the U.S. Director of National Intelligence (DNI) released drone death statistics from killings “outside zones of active hostilities.” For years the Obama administration has argued for a broader understanding of what constitutes a battlefield, along with attenuated readings of the right of self-defense and of the right of a state to consent to the use of military force on its territory. In a speech at Harvard Law School in September 2011, John Brennan, currently the CIA director, said, “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.” These efforts were first motivated to provide legal cover for the use of drones in targeted killing beyond the combat zones of Afghanistan and Iraq. (For an overview of the history, law, and ethics of using drones for targeted killing, see my review essay, Game of Drones.) Since then, the concept of a right to kill beyond a zone of active hostilities or hot battlefields has taken on a life of its own. It has morphed into the thinking and justifications behind killing with means other than drones, against targets other than Al-Qaida members, and by operators other than U.S. military and intelligence personnel, such as the Dallas police and Chinese law enforcement. Read the rest of this entry…

 

On Judging v. Legislating in the International Legal System

Published on August 27, 2014        Author: 

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  Read the rest of this entry…

 

Weighing the Cost of War: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 24, 2013        Author: 

Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution–Kroc Institute, University of Notre Dame

One of the most important points that David Kretzmer makes in his detailed analysis of the principle of proportionality in the jus ad bellum is the following: The question of “[p]roportionality arises … only when the aim or ends pursued [through resort to military force] are legitimate.  When it comes to state liability, if those ends are illegitimate all forcible measures used will ipse facto  be illegitimate, whether they are proportionate or not.” The ends of military force are legitimate only if they conform to an exception to the United Nations Charter Article 2(4) prohibition on the use of force, meet the requirements of the law of state responsibility, and comply with the general principle of necessity.  Proportionality involves weighing the cost of resort to military force in terms of lives lost and property destroyed relative to the value of the legitimate military end.  Assessing proportionality as a distinctive requirement of lawful resort to force only makes sense when the other conditions on lawful resort to force are also met. Read the rest of this entry…