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Home Archive for category "Use of Force"

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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Rattling Sabers to Save Democracy in The Gambia

Published on February 1, 2017        Author: 

On 19 January 2017, ECOWAS’ deployed a military contingent from five West African countries to enforce results of the recent democratic elections held in The Gambia. This post raises a few interesting/critical questions regarding its legality and the prohibition on the use of force.

Background

Mr. Adama Barrow won those elections in a run down against (now former) President Yahya Jammeh. After initially acknowledging defeat, Mr. Jammeh, whose regime has been accused of committing gross human rights violations, reversed his position alleging election irregularities. On 18 January 2017, after Jammeh declared a state of emergency, the Gambian National Assembly voted to extend his term for 90 days. Barrow was sworn into office during a ceremony celebrated in the Gambian embassy in Dakar, Senegal on 19 January 2017, and immediately requested the UN, in particular the Security Council, the African Union and ECOWAS for assistance in installing his democratically elected government.

The Peace and Security Council of the African Union adopted a communiqué  noting concern for Jammeh’s rejection of the election’s outcome, and decided to coordinate its activities with ECOWAS and the UN to facilitate a speedy and orderly transfer of power to Barrow. More importantly, it stressed the AU’s determination “[…] to take all necessary measures, in line with the relevant AU Instruments[,]” to ensure full compliance with the outcome of the elections. Read the rest of this entry…

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Filed under: EJIL Analysis, Use of Force
 

Turkish Military Intervention in Mosul: A Legal and Political Perspective

Published on January 27, 2017        Author: 

In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.

First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law  and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK. Read the rest of this entry…

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Ukraine Takes Russia to the International Court of Justice: Will It Work?

Published on January 26, 2017        Author: 

In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Read the rest of this entry…

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Initial Thoughts on the UK Attorney General’s Self-Defence Speech

Published on January 13, 2017        Author: 

This is part of a series of posts discussing the UK Attorney General’s speech on the Modern Law of Self-Defence. See also the other posts in the series by Monica Hakimi and Marko Milanovic.

It’s a pleasure to be able to contribute to this EJIL:Talk! discussion of the speech this week by the UK Attorney General, Jeremy Wright QC MP, on “The Modern Law of Self-Defence”. There are two elements of the speech that strike me as especially notable, and on which I’d like to give my initial thoughts here: the invocation of the so-called ‘unwilling or unable’ test and, particularly, the meaning of ‘imminence’ in relation to anticipatory self-defence.

Unwilling or Unable

The explicit acceptance by the UK of the ‘unwilling or unable’ concept, while brief, is a conspicuous feature of the Attorney General’s speech. The speech roots itself in tradition, with nods to the power and weight of history (stretching right back to the 1795 Jay Treaty, as well as, of course, including the obligatory self-back-patting over Britain’s role in the end of the international slave trade). However, there’s no hiding the novelty of the UK’s acceptance of the hugely controversial notion of responding to armed attacks (actual or imminent) even in cases where there is no ‘host state’ involvement whatsoever, simply on the basis of the unwillingness or inability of the state to prevent a non-state actor attack. The US has espoused the ‘unwilling or unable’ doctrine for years, of course, but the UK has not, at least not explicitly.

Admittedly, the Attorney General’s speech is not the first British invocation of unwilling or unable. In November 2015, David Cameron, then Prime Minister, argued before Parliament that the UK’s action in Syria was justified because “the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq” (as well as making the same assertion, the same week, in a memorandum to the Foreign Affairs Select Committee). However, these statements by the Prime Minister were the first clear articulations of the British acceptance of an unwilling or unable test, and were expressed very specifically in relation to action taken against ISIS in Syria. To my knowledge, the Attorney General’s speech acts as the first unequivocal confirmation that the UK has adopted unwilling or unable in genere. This is not a surprising fact, of course, but – to my mind – it is not a positive one either.

Put simply, and leaving aside policy, like Kevin Jon Heller (and many others) I remain unconvinced that state practice supports an unwilling or unable test in relation to self-defence actions taken against non-state actors (and, by unavoidable extension, the state(s) on/from which they are operating). The question of whether the law should allow for military action in such circumstances is a different matter: one that I will unapologetically sidestep. As the law stands, though, for my money, it does not. Read the rest of this entry…

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What Is An Imminent Armed Attack? A Hopefully Helpful Hypo

Published on January 12, 2017        Author: 

Yesterday we had the privilege to publish the speech by the UK Attorney General, Jeremy Wright QC MP, setting out some of the UK Government’s views on the law of self-defence. The speech focused in particular on the criteria for assessing the imminence of an armed attack by a non-state actor, and essentially endorsed some of the principles set out in Daniel Bethlehem’s 2012 AJIL article. Thus, the Attorney stated in particular (following a speech by the US State Department Legal Adviser, Brian Egan, at last year’s ASIL meeting) that:

[Bethlehem’] Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

I don’t think the Attorney broke any new ground here, nor do I wish to dispute the accuracy or normative desirability of this analysis. But what struck me most about it is the lack of conceptual clarity, in particular the lack of clear delineation between the concepts of imminence, necessity and proportionality and the legal role that these concepts are playing. (I would highly recommend, in that regard, this piece in the AJIL by Dapo and Thomas Liefländer). For example, what is the work that the idea of imminence does here? Is its main purpose to delineate between permissible anticipatory and prohibited preemptive self-defence, which goes around the Article 51 Charter language ‘if an armed attack occurs‘? Or is imminence an aspect of the broader concept of necessity? And can a word such as imminence encompass non-temporal elements? Conceptual clarity matters because without a common understanding of the words we are using we cannot actually properly debate the soundness or desirability of any given approach. Without it, it is hard to even have a conversation.

So here’s a hypo that I hope might be helpful in this regard. Again, the point of the hypo is not to argue for any particular interpretation of self-defence, whether expansive or restrictive. It is only to help us understand how people use particular words, such as imminence, and for what precise purpose.

Dr. Evil is a very capable terrorist, who has decided to attack the United Kingdom, even though he has never done so before. He manages to get his hands on a mid-range cruise missile with a 150 kt thermonuclear warhead, in perfect working order. He places the missile launching system in a building in a Paris suburb, and uploads a video of himself to YouTube showing him arming a very specific firing mechanism. The missile is aimed at London, and will launch in exactly 30 days; there is no off-switch, code or remote signal that can disarm it. Absent forcible intervention in the causal chain, there is complete certainty that the missile will fire in 30 days and that it will destroy a substantial part of London.

Is this armed attack ‘imminent’ in any legally relevant jus ad bellum sense?

Note that this hypo is specifically designed to eliminate most of the real-world uncertainties about armed attacks – the reliability of the intelligence, the likelihood of the attack, not knowing the exact time, location or scale of the attack. In this hypo, we know everything with absolute certainty. And if you have a problem with the non-state actor nature of the attacker, we can easily turn him into a French state agent. Again, the main point here is that a causal chain has been set in motion which, without some further action, as its certain end has the destruction of London. Does this mean that the attack is ‘imminent’? If so, would it be imminent even if the timer was set to 60 days, 120 days, or 10 years? At what point (if any) is there a switch from an anticipatory to a preemptive scenario? When does imminence end, and necessity begins?

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The UK’s Most Recent Volley on Defensive Force

Published on January 12, 2017        Author: 

The legal position that Attorney General Wright presented yesterday is similar to the one that the United States has advanced in recent years. Here’s what I take to be the core elements of the UK claim:

  • The use of force is sometimes permissible to defend against an imminent attack. For an attack to be imminent, the threat must actually be operational: “It is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.”
  • The attack’s imminence is part of why defensive force is necessary. But imminence alone does not make it necessary. For defensive force to be necessary, other options for defending against the anticipated attack, including law enforcement options, must be inadequate.
  • Defensive force is permitted against an imminent attack, even if the perpetrators are not state agents. Where non-state actors are involved, the relevant inquiry is whether the attack is being planned in another state that is unable or unwilling to prevent it.

I have three initial reactions to Wright’s speech. First, I applaud him for articulating an official UK position on this area of international law. The United States has, of course, pushed hard to advance novel legal positions to justify its counterterrorism operations. But other states have repeatedly responded to the U.S. claims and practice with silence, at least publicly. That dynamic undercuts the law’s (perceived or actual) relevance. International law can’t adequately serve its functions if states stop using it to engage with one another and communicate their expectations—and to do so even, perhaps especially, when they disagree. So, I would encourage other states to follow Wright’s lead and be more forthright about their own legal positions on the contours of the right to use defensive force.

Second, I think the devil is very much in the details here—in the application of the UK’s position to concrete cases. Read the rest of this entry…

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The Modern Law of Self-Defence

Published on January 11, 2017        Author: 

Text of the speech delivered this evening by United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP, at the International Institute for Strategic Studies, London on “The Modern Law of Self-Defence”:

Introduction

Thank you to the International Institute for Strategic Studies for hosting us today.

The Institute’s Mission Statement sets out its aim to promote ‘the development of sound policies that further global peace and security, and maintain civilised international relations.’

For my part, I welcome the opportunity to speak to you on an international question which is one of the most serious any government can face – when is it lawful for a state to use force – always a last resort and only where it is necessary.

Today I want to talk specifically about when it is lawful to use force in self-defence – whether of the UK, or of our allies. And I want to set out, in greater detail than the Government has before, how the UK applies the long-standing rules of international law on self-defence to our need to defend ourselves against new and evolving types of threats from non-state actors.

I don’t need to remind this audience that the UK is a world leader in promoting, defending and shaping international law. In the 19th Century as modern international law was being formed, it was the UK (in 1807) that helped outlaw and end the international slave trade and then slavery itself.[1] It was diplomatic correspondence between the United Kingdom and the United States which followed the Caroline Incident of 1837 that defined the parameters of the concept of imminence, as it was understood at that time and to which I will return.[2] It was the UK, with the US, which agreed to international arbitration as a means for the settlement of international disputes in the Jay Treaty of 1795.[3]  Our commitment to defending and shaping international law is undimmed since then. The UK was a founding member of the League of Nations and the United Nations, as well as an original signatory to the Kellogg-Briand Pact[4], Ottawa Treaty[5] and the Rome Statute.[6] And we are one of the biggest contributors of funding to the International Criminal Court.[7] We are also the only permanent member of the UN Security Council that recognises the compulsory jurisdiction of the International Court of Justice[8], and we remain one of the largest contributing states to the International Committee of the Red Cross[9], supporting it in its endeavours to promote and strengthen international humanitarian law.

As the latest in a long line of Attorneys General, I follow in a tradition of advocating, celebrating and participating in a rules-based international order. On several occasions in its history, the United Kingdom has subjected itself voluntarily to the jurisdiction of various international tribunals. My predecessors and I have appeared before a variety of international tribunals on behalf of the UK. And while we do not win every point in every case, I believe this personal investment demonstrates the commitment to international law of those who have done my job.

Of course, consistent with our commitment to that rules-based international order, the UK may on occasion decide to withdraw from a particular international agreement. You may have noticed that the British public has asked us to do so recently, with regard to one such set of agreements. The government is acting on that mandate, through the process of withdrawal from the European Union, and is doing so in accordance with Article 50 of the Treaty on European Union – in other words, in a manner fully compliant with international law. That is the nature of the country we are, and the nature of our commitment to the Rule of Law.

There are few more fundamental rules of international law than the prohibition of the use of force and the right of self-defence, defined in customary international law and codified in important respects in the UN Charter.[10]

The UK should and will only use armed force, and will only act in self-defence, where it is consistent with international law to do so. International law sets the framework for any action taken by Sovereign States overseas, and the UK acts in accordance with it.

Today, I want to spell out how we ensure that we do so. Read the rest of this entry…

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The UK Attorney-General on the Modern Law of Self-Defence

Published on January 11, 2017        Author: 

Later today, the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP will deliver a speech at the International Institute for Strategic Studies, in London, on “The Modern Law of Self-Defence”. The speech will be significant as the advert indicates that the Attorney General will “set out the UK’s position on the application of international law on self-defence, in particular the concept of ‘imminence’ in the context of the ongoing and developing threat that we face from non-state-actor terrorist groups.”

As readers will likely know from the Chilcott Inquiry relating to the war in Iraq, as well as developments regarding the UK’s use of force in Libya and Syria, the UK Attorney-General has the ultimate responsibility for advising the government on the legality, under international law, of the use of force. It has also become standard practice since the war in Iraq for a summary of the Attorney-General’s advice to be presented to Parliament before Parliament votes on whether to authorise the use of force (a vote which is now required by constitutional convention).

I am happy to report that the text of the speech will be posted on this blog as soon as the AG has finished delivery of the speech at 6pm UK time. In addition, over the coming days there will be discussion on EJIL:Talk! of the issues raised by the speech, with a number of contributors weighing on the significance of the points made by the AG.  Read the rest of this entry…

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