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Home International Organisations Archive for category "Security Council"

Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

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The Use of Force to (Re-)Establish Democracies: Lessons from The Gambia

Published on February 16, 2017        Author: 

It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.

The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day. Read the rest of this entry…

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Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Published on January 20, 2017        Author: 

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides. Read the rest of this entry…

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

Read the rest of this entry…

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Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular

Published on January 9, 2017        Author: 

As I have read commentary on the recently adopted resolution by the U.N. Security Council (Resolution 2334) addressing Israeli settlements in the occupied territories, I’ve noticed a number of commentators who appear to assume that, since this resolution was not explicitly adopted in exercise of the Council’s Chapter VII powers, therefore all of its operative provisions are per se legally non-binding. Orde Kittrie, writing over at Lawfare, seems to make this assumption clear when he writes:

“Resolution 2334 was not adopted under Chapter VII of the U.N. Charter and is not legally binding. The resolution does not create additional legal requirements on Israel, nor does the resolution require (or even explicitly encourage) U.N. member states to impose sanctions on Israel in response to Israeli settlement activity.”

I thought this would be a good opportunity to write briefly to clarify that the legal obligation for U.N. Charter states parties to comply with the decisions of the Security Council, contained in Article 24 and 25 of the Charter, is not contingent upon the Council’s acting in exercise of its Chapter VII powers. Any decision of the Security Council is legally binding upon all U.N. member states, whether or not the text of the resolution explicitly references Chapter VII.

Rather, the key question for determining whether a particular provision of a Security Council resolution is legally binding on member states (i.e. whether the provision is a “decision” of the Security Council), including the specific addressee of the resolution, is whether the Council has chosen to use words within the provision indicating its intent to create a legally binding obligation.

The International Court of Justice made these points clear in its 1971 Namibia advisory opinion, in Paragraphs 108-114. Read the rest of this entry…

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A Role for the Security Council on Defensive Force?

Published on October 21, 2016        Author: 

Last wMonica Hakimieek, Elena Chachko and Ashley Deeks posted a helpful resource at Lawfare: a compilation of states’ pronouncements on the use of defensive force against nonstate actors. Readers no doubt know that there is an ongoing debate about whether and, if so, under what circumstances a state may use force in self-defense against nonstate actors that operate from another state. The Lawfare post asserts that ten states have expressly endorsed the unable-or-unwilling standard, under which defensive force would be permissible if the “host” state is unable or unwilling to contain the violence. The post then characterizes three states as having implicitly endorsed the unable-or-unwilling standard; eighteen as ambiguous about that standard; and four as expressly objecting to it.

We disagree with some of those characterizations. A few of the “express” endorsements seem to us to be less definitive than Chachko and Deeks claim. Moreover, we don’t think the “implicit” or “ambiguous” endorsements are endorsements at all. In these cases, the acting states seem not to support the unable-or-unwilling standard but rather to articulate a narrower standard -one that is limited either to the host state’s affirmative support for the nonstate group or to that state’s loss of control over portions of its territory. (For a discussion of the various standards that might be in play, see this article.)

cogan-faculty-pageWe want to focus here on a more interesting phenomenon: in the current fight against the Islamic State, six states have invoked in their reports to the Security Council a combination of Resolution 2249 and Article 51 to justify their use of force in Syria. (The six states are Belgium, Denmark, Germany, the Netherlands, Norway, and the United Kingdom.) Resolution 2249 was adopted in November 2015. It “determin[ed]” that the Islamic State “constitutes a global and unprecedented threat to international peace and security” and “not[ed] the letters . . . from the Iraqi authorities which state that Da’esh has established a safe haven outside Iraq’s borders that is a direct threat to the security of the Iraqi people and territory.” The Council also:

“call[ed] 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, . . . to prevent and suppress terrorist acts. . . .”

This Resolution nowhere authorized the use of force. And even if it did, it would be unnecessary if Article 51 itself provided a basis for using force in Syria. The point of Article 51 is to permit unilateral force – that is, force without any Council action – in “true” cases of self-defense. As such, the Article 51 reports that reference 2249 are, at the very least, odd. Read the rest of this entry…

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A Rejoinder to John Bellinger on the Chilcot Report

Published on July 13, 2016        Author: 

Over on Lawfare, John Bellinger has an interesting post on the Iraq Inquiry which is well worth a read, responding partly to Oona Hathaway’s recent post on Just Security. However, there are a couple of points in Bellinger’s post that I think are highly problematic and would like to address here.

First of all, Bellinger notes that the Inquiry did not expressly criticize the UK (and the US) legal argument for intervening in Iraq, and draws from that the following conclusion:

Even if the Chilcot committee did not want to substitute its own legal conclusions for Goldsmith’s, if the Goldsmith view is as “widely repudiated” as Oona believes, surely the committee (which had former ICJ President Rosalyn Higgins as its legal adviser) would have noted this fact and provided the counter-arguments.  That the committee does not criticize the substance of Goldsmith’s legal conclusions tends to indicate that the committee did not find them “manifestly implausible.”

I don’t think this inference is correct, i.e. that from Chilcot’s silence we can infer anything about the commissioners’ views on the legality of the war. Chilcot expressly said that the legality of the war was outside the Inquiry’s mandate. This would include any judgments about the plausibility (as opposed to correctness) of any particular argument. And he moreover noted that the war was not one of last resort AND that in the Inquiry’s view the UK (and implicitly the US) undermined the authority of the Security Council.  Since the UK/US argument was based on implied Security Council authorization, the Inquiry’s finding is if anything directly contrary to the overall thrust of that argument, at the very least politically so.

Second, Bellinger notes (correctly) that, as a matter of principle, the 678/687 revival argument was not new, i.e. it was used before to justify several bombing campaigns in Iraq. But that the revival argument was not new has little bearing on whether it is plausible or correct, the political optics aside. It was always highly controversial, and received a lot of criticism in the legal literature even when it was used on a vastly smaller scale than the full invasion and regime change of 2003.

Nor does the fact that the government lawyers of five states (US, UK, Australia, Poland, Spain) endorsed that argument inherently make it plausible. I suppose a lot depends on the exact criterion by which we judge plausibility. I am reminded in that regard of a panel discussion on the Ukraine crisis that I chaired at last year’s ESIL conference in Oslo. There were a couple of hundred people in the room, and at one point I asked for a show of hands on how many of the international lawyers in that room thought that that Russia’s intervention in Ukraine was lawful – only one person did so. I then asked the same question about the US intervention in Iraq, and again only one person did so (it was not the same guy!). That is obviously just an unscientific data point, but it still aligns with my anecdotal impression that 99% of international lawyers outside the US (and even there the percentage is not much smaller) think that the Iraq war violated the UN Charter. That (some of) the government lawyers of five states thought otherwise doesn’t change much, I think, about the judgment that the profession as a whole has passed on the Iraq war, which I admit is also inevitably influenced by the unmitigated disaster it eventually turned out to be.

Thirdly, and most importantly, I think Bellinger doesn’t take into account that even among these five states there were significant differences in how they actually approached the revival argument. In particular, even the UK, the US closest ally, per the advice of Lord Goldsmith, considered that the US version of the revival argument was legally wrong. Just as a reminder, under both versions of the revival argument the authority to use force under SC res 678 was suspended but not extinguished by 687, and could be revived by a material breach of the conditions imposed on Iraq by 678 and subsequent resolutions. However, under the US version of this argument it was for individual states (i.e. the United States, i.e. President George W. Bush) to decide whether Iraq was in material breach, but under the UK version that judgment had to be made collectively, by the Security Council. This is why, under its legal view, the US had no need of resolution 1441, but on the UK view that resolution was indispensable, i.e. without it the 678 authority could not be revived.  This is also why, in his 7 March formal legal advice , at para. 9, Lord Goldsmith noted that he ‘was not aware of any other state which supports [the US] view.’

Finally, this is also why, as Dapo and I argued in our submission to the Iraq Inquiry, which was joined by many other scholars, Lord Goldsmith’s last-hour change of heart about the interpretation of 1441 could not be justified by discussions with US interlocutors and by reference to US ‘red lines’ that US negotiators could not possibly have conceded, since the US red lines were predicated upon the US version of the revival argument and not the UK one. In other words, the US may well have succeeded in upholding its red lines, but this would not automatically have meant that the UK succeeded in getting from 1441 what it needed to get to invade Iraq. (Notwithstanding the point of principle Richard Gardiner and Michael Wood have made before on whether UNSC resolutions can be interpreted by reference to what some of the negotiators privately thought they had or had not achieved).

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UK Iraq Inquiry Report

Published on July 6, 2016        Author: 

In the past couple of hours, the Chilcot inquiry on the Iraq war delivered its long-awaited report, which can be accessed here. It is highly critical of virtually every aspect of UK policy that led to the Iraq war and its unfortunate aftermath – indeed, much more critical than many have expected. When it comes to the legal aspects, the inquiry’s mandate did not include an assessment of the legality of the use of force, but the inquiry nonetheless concluded that “the UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort” and that:

The judgements about the severity of the threat posed by Iraq’s weapons of mass destruction – WMD – were presented with a certainty that was not justified.

Despite explicit warnings, the consequences of the invasion were underestimated. The planning and preparations for Iraq after Saddam Hussein were wholly inadequate.

The government failed to achieve its stated objectives.

The inquiry also found that:

Mr Blair and Mr Straw blamed France for the “impasse” in the UN and claimed that the UK Government was acting on behalf of the international community “to uphold the authority of the Security Council”.

In the absence of a majority in support of military action, we consider that the UK was, in fact, undermining the Security Council’s authority.

Second, the Inquiry has not expressed a view on whether military action was legal. That could, of course, only be resolved by a properly constituted and internationally recognised Court.

We have, however, concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.

A 170-page chapter of the report on the provision of legal advice is here; further commentary from Joshua Rozenberg here.

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The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

Published on June 30, 2016        Author: 

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

Read the rest of this entry…

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Grand Chamber Judgment in Al-Dulimi v. Switzerland

Published on June 23, 2016        Author: 

This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.

By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.

So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:

Read the rest of this entry…

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