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Home Archive for category "Self Defence"

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…

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Did the US Stay “Well Below the Threshold of War” With its June Cyberattack on Iran?

Published on September 2, 2019        Author: 

On 20 June 2019, the United States conducted a major cyberattack against Iran in response to Iran’s (alleged) attacks on oil tankers in the Hormuz Strait and the downing of an American surveillance drone. The attack was widely reported at the time, but on 28 August the New York Times published important new details, which included information about the legal-strategic thinking of the Americans. Specifically, it was reported that the US cybercampaign against Iran was “calibrated to stay well below the threshold of war”. Translated into legalese, this seems to imply that the Americans aim to keep their activities at a level that undoubtedly fall short of legal thresholds like article 2(4) of the UN Charter, which defines use of force, and common article 2 of the Geneva Conventions, which de facto triggers the laws of war. In this post, I discuss whether the Americans succeeded in keeping their distance from such thresholds.

The attack

In the original reporting on the attack by Yahoo! News, it was noted that the operation targeted “an Iranian spy group” with “ties to the Iranian Revolutionary Guard Corps”, which supported attacks on commercial ships in the Hormuz Strait. The precise object of attack was not specified, but it was mentioned that the group had “over the past several years digitally tracked and targeted military and civilian ships passing through the economically important Strait of Hormuz”.

The New York Times’ report explains that the cyberattack successfully “wiped out a critical database used by Iran’s paramilitary arm to plot attacks against oil tankers and degraded Tehran’s ability to covertly target shipping traffic in the Persian Gulf, at least temporarily”. The Iranians, it is noted, are “still trying to recover information destroyed in the June 20 attack and restart some of the computer systems — including military communications networks — taken offline”. Accordingly, the attack seems to have crippled the targeted system in a way that has taken it offline and, presumably, rendered it useless for months. The effects of the attack were “designed to be temporary”, officials said, but had “lasted longer than expected”. In terms of the specific target of the attack, it was reported that the target was the Iranian Revolutionary Guards’ intelligence group. Read the rest of this entry…

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How International Law Restricts the Use of Military Force in Hormuz

Published on August 27, 2019        Author: 

We await whether an allied action will protect shipping in the Persian Gulf, and whether it will be led by the USA or by European states. The UK’s new government will support US action, while at least some other European states are reluctant to be seen as supporters of US aggressive policy towards Iran. Political arguments aside, there are important international law concerns with participation in such action, whether American or European-led (see also this recent post by Hartwig).

Absence of a Security Council mandate

The first concern is that such an action would not have a UN mandate. The Security Council can authorize military actions to ensure peace and security, even setting aside other rules of international law. Admittedly, protection of shipping might not fall under the Security Council’s competencies to maintain peace and security. Regardless, a mandate for a military action in the Persian Gulf is in any case politically unlikely.

The law of the sea

Without a mandate from the Security Council, there are strong arguments against the legality of such action. Read the rest of this entry…

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Filed under: Law of the Sea, Self Defence
 
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President Trump admits US strike against Iran would have been illegal

Published on June 21, 2019        Author: 

Yesterday President Trump apparently aborted a US strike against Iran, in response to Iran’s destruction of an unmanned US surveillance drone. US and Iranian accounts continue to differ on whether the drone was shot down in Iranian airspace or in international airspace. Ashley Deeks and Scott Anderson have helpfully analyzed the international legal framework applicable to any US strike in response to the destruction of the drone over on Lawfare, to which I have little to add in principle. In particular, they’ve explained the more expansive and the more restrictive theories of self-defence on which the legality of a US strike would hinge (see also Ashley’s previous post here).

But, President Trump has tweeted in the past hour, as he does, and his tweets effectively (if inadvertently) admit the illegality of the aborted US strike under any conceivable theory of self-defence, no matter how expansive:

 

Note, first, how President Trump describes the aborted US strike as being meant ‘to retaliate’ against Iran for the destruction of the drone. But it is black letter jus ad bellum that the purpose of self-defence can only be to stop an ongoing attack, or (possibly) to prevent imminent future attacks. It cannot, however, simply be to retaliate against an attack committed in the past. Thus, even if US historically expansive views on the right to self-defence were to be accepted in their totality, and even we were to accept that the US drone was in international airspace when it was shot down and that this was an armed attack by Iran against the US in the sense of Article 51 of the UN Charter, the US head of state has just admitted to the world that the strike he authorized, and then rescinded, was retaliatory and not defensive in nature.

Similarly, he expressly admitted that the attack would have been disproportionate, as 150 lives would likely have been lost for one destroyed unmanned drone. And as we all know, proportionality is a key requirement of the customary law of self-defence. Thankfully, President Trump ultimately decided to abort the strikes, and therefore no violation of Article 2(4) of the UN Charter took place. Hopefully any conflict between the US and Iran will be avoided. But that said, it is also clear from what the US President tweeted to all of us, so explicitly and so ungrammatically, that the proposed military action of his government, had it taken place, would have been illegal. And again, under the President’s own admission, it would have been illegal regardless of whether one embraces a more restrictive or a more expansive theory of self-defence.

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Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and

Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

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Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations

Published on June 4, 2018        Author: 

In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were  discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. Read the rest of this entry…

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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…

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The Turkish Operation in Afrin (Syria) and the Silence of the Lambs

Published on January 30, 2018        Author: 

Operation Olive Branch

On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria (“Operation Olive Branch“). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: “[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.” (UN Doc. S/2018/53; emphasis added). Two elements are troublesome in this official Turkish justification.

Non-state armed attacks?

First, it is controversial whether armed attacks of the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. The current law (both Charter-based and treaty-based) is in flux, and still seems to demand some attribution to the state from which the attacks originate. (See for a collection of diverse scholarly opinion, ranging from “restrictivists” to “expansionists”: Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).

The ICJ case-law has not fully settled the question (see for state-centred statements: ICJ, Oil platforms 2003, paras. 51 and 61; ICJ Wall opinion 2004, para. 139). Read the rest of this entry…

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The Right of Self-Defence Against Imminent Armed Attack In International Law

On 11 April 2017, the Australian Attorney-General, Senator the Hon. George Brandis QC, delivered a public lecture on “The Right of Self-Defence Against Imminent Armed Attack In International Law”, at the T C Beirne School of Law, University of Queensland. The text of the speech has just become available and is posted below. This talk follows on from an earlier talk given by the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP on “The Modern Law of Self-Defence,” which was also posted on in EJIL: Talk!

Acknowledgments

Thank you very much indeed, Sarah. Might I also begin by acknowledging the traditional custodians of the land on which we meet, the Turrubul peoples, and by acknowledging you, Professor Derrington, in your role as Dean, T C Beirne School of Law. Members of the Faculty of this Law School, of other faculties of the University of Queensland and the faculties of other law schools who I gather have come here this evening. We are honoured by the distinguished presence among us this evening of Justice Edelman of the High Court, and of Justices Greenwood, Logan and Derrington of the Federal Court, and Dr Christopher Ward SC, the Australian President of the International Law Association. Other distinguished guests, ladies and gentlemen.

Introduction

It is a great pleasure to return tonight to my old law school, be it not physically within the law school precincts. May I congratulate the Dean, Professor Derrington, and the members of the faculty, on all that they have done to propel UQ into the front rank of Australian law schools. I note that the 2017 QS ranking places this law school among the top 50 in the world – a distinction enjoyed by no other law school in Queensland and by only six others in Australia. No doubt your new policy of limiting the undergraduate intake to fewer than 200, which means that new entrants are likely to come only from a cohort students who achieve an OP 1, will reinforce its position as one of Australia’s elite law schools. And that intellectual excellence has recently been complemented by a physical manifestation: the very handsome new Law Library and facilities which were opened only last month by Chief Justice Kiefel.

As a student, tutor and lecturer, my association with this law school spanned more than 15 years, from 1975 to 1991, so it is more than 25 years ago that I last gave a lecture here. That was when, for some eight years, while in my early days at the Bar, I taught a unit of the Jurisprudence course called “Recent Developments in the Theory of Justice”. My focus was primarily on John Rawls, as well as such other scholars as Robert Nozick, Ronald Dworkin and Bruce Ackerman. Read the rest of this entry…

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United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…

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