Introduction: Legitimate Targets?

Published on September 22, 2015        Author: 

In 2003 during their invasion of Iraq American troops were commended for going to great pains to comply’ with international law and at the same time they were condemned as the ‘most violent and murderous army’ in American history. The question these dichotomous assessments raise is: what can international law (IL) accomplish in war? What does it mean that conduct in war is subjected to regulation by international humanitarian law (IHL), that belligerents wage war legally? My book, Legitimate Targets? International Law, Social Construction and US Bombing, aspires to providing a comprehensive answer to the question in four steps.

The first part identifies mechanisms by which recourse to IL can make a difference for individual and state behaviour. Given the lack of systematic and reliable enforcement of IL, in International Relations scholarship as well as public commentary, this is still often doubted. I argue that IL, when it is recurred to, can mediate between actor’s interests and normative beliefs. What I call the intellectual and the motivational effects of recourse to IL can change how an actor perceives her reasons for action. IL can be behaviourally relevant.

The book then discusses the legal rules defining a legitimate target of attack contained in the First Additional Protocol to the Geneva Conventions and customary law. I address and suggest solutions to a number of subsisting interpretive debates with reference to two alternative logics of how a belligerent can attempt to accommodate the competing demands of humanitarianism and military necessity. What I call the logic of efficiency aims to minimize belligerents’ expenses in time and blood over the achievement of their political goals. The logic of sufficiency aims to contain war to a purely military competition geared towards ‘generic military victory’. The latter is the logic according to which the First Additional Protocol demands that belligerents ‘distribute’ deliberate harm in war. Read the rest of this entry…

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This Week: Discussion of Janina Dill’s Legitimate Targets? International Law, Social Construction and US Bombing

Published on September 22, 2015        Author: 

Dill bookOver the next few days, we will be hosting a discussion of Janina Dill’s book, Legitimate Targets? International Law, Social Construction and US Bombing. The commentaries on her book will be by Jutta Brunnée (University of Toronto), Geoffrey Corn (South Texas College of Law). We are grateful to all of them for participating in the discussion.

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Filed under: EJIL Book Discussion

Does “Russian international law” have an international academic future?

Published on September 21, 2015        Author: 

Since Russia’s annexation of Crimea in March 2014, we have had a chance to hear quite a few arguments advanced by Russian scholars at various legal conferences and law journals (see, for example, here and here) regarding the situation in Crimea, all purporting to justify the annexation of the peninsula by Russia. Most of these arguments have not been met with approval by international scholars.

With the Russian government’s current aggressive rollback to Soviet foreign policy, the post-Soviet doctrine of international law is back in the spotlight and requires, it appears, a fair amount of commentary.

A perfectly timed, thoughtful study by Lauri Malksoo, Russian Approaches to International Law, which was published this year, undoubtedly serves this purpose extremely well. A detailed overview of Russian lawyers’ positions on Crimea was also given by Anton Moiseienko about a year ago.

In this post I would like to add some reflections on the situation as seen from within Russia, albeit not from inside Russian academic circles. Read the rest of this entry…

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New EJIL:Live Extra! Joseph Weiler and Hilary Charlesworth Discuss Feminist Theory in International Law

Published on September 20, 2015        Author: 

The EJIL: Live Extras series comprises short video conversations with leading international law scholars. In our latest EJIL: Live Extra! our Editor-in-Chief Professor Joseph Weiler asks Professor Hilary Charlesworth of the Australian National University whether feminist theory in international law has now become mainstream.


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Announcements: Call for Presentations, Fifth Annual Junior Faculty Forum for International Law; BIICL Seminar on Procedural Reform in International Courts and Tribunals; Chatham House Meeting on Heads of States Immunities for International Crimes; Academy on Human Rights and Humanitarian Law 2016 Human Rights Essay Award; University of Notre Dame, London Law Programme International Law Seminars

Published on September 19, 2015        Author: 

1. Call for Presentations: Fifth Annual Junior Faculty Forum for International Law. A call for presentations has been issued for the Fifth Annual Junior Faculty Forum for International Law, which will be convened next year by Dino Kritsiotis (Univ. of Nottingham – Law), Anne Orford (Univ. of Melbourne – Law), and J.H.H. Weiler (European Univ. Institute – Law), with Benedict Kingsbury (NYU – Law) and José E. Alvarez (NYU – Law) as guest convenors. The Fifth Forum will be held at NYU on 27-29 June 2016. The closing deadline for applications is 15 December 2015.

2. BIICL Seminar on Procedural Reform in International Courts and Tribunals. On 17 November 2015, the British Institute of International and Comparative Law (BIICL) will host a seminar on ‘Procedural Reform in International Courts and Tribunals: Feasible? Desirable?’. This is the next event in the Temple Garden Chambers Seminar Series in International Adjudication. This seminar discusses the key findings emerging from the edited volume Procedural Fairness in International Courts and Tribunals, published by BIICL in September 2015. These findings will be presented by two of the book editors, Dr Arman Sarvarian and Dr Filippo Fontanelli, with Judge Ineta Ziemele and Professor Hélène Ruiz Fabri as external commentators. The event will take place at BIICL, Charles Clore House, 17 Russell Square, London WC1B 5JP. Find out more and book here, or download the Event Flyer. Read the rest of this entry…

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Filed under: Announcements and Events

Human Rights and the Targeting by Drone

Published on September 18, 2015        Author: 

The UK government has justified its targeting and killing of three people who were engaged in hostilities as part of the ‘Islamic State’ forces by relying on international law. This is to be applauded, as compliance with international law is in the interest of long-term peace and security in the UK and in the international community, and on the rule of law. It does not necessarily mean that their justification of self-defence, or even collective self-defence, is accurate or sustainable once the full facts are known.

However, even if the UK argument of reliance on self-defence is in accordance with a part of international law, that is not sufficient to conclude that the targeted killing is in compliance with all of international law. It only means that the armed force by the drone could be used lawfully by the UK in Syrian territory. There are at least two other areas of international law that are also relevant and should be complied with: international humanitarian law (IHL); and international human rights law (IHRL). The former concerns the lawfulness of force within the armed conflict once it commences, and the latter applies at all times. I will focus here on the application of IHRL, including its interaction with IHL.

IHRL does not allow the targeting of individuals to kill them except in strictly limited circumstances. This was confirmed by the UN Special Rapporteur on Arbitrary Killings in his 2013 report Read the rest of this entry…

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On Preventive Killing

Published on September 17, 2015        Author: 

If we wait for threats to fully materialize, we will have waited too long. We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path to action. And this nation will act.

George W. Bush, 17 September 2002.

It seems to me that there are two different ways of understanding the targeted killing of UK citizens Reyaad Khan and Ruhul Amin by a Royal Airforce-piloted drone on 21 August 2015, in Raqqa, Syria. (Khan was the target of the strike, and Amin was also killed by it. Both Khan and Amin are described as “ISIL fighters.”)

The first poses some difficult constitutional and public law questions for the UK government, but does not require any kind of radical re-interpretation of international law governing the use of force.

The second way of understanding the strike amounts to a sea change in the UK’s legal position, and indeed aligns it with several US legal positions in the “war on terror” which, hitherto, no European state has formally embraced.

Read the rest of this entry…

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The Greek Sovereign Debt Crisis, the Right to be Free from Economic Coercion, and the Greek Election

Published on September 16, 2015        Author: 

People gathered at the ‘NO’ rally ahead of the Greek Referendum in early July.

The Greek sovereign debt crisis has occasioned much discussion on a number of issues that are of interest to international lawyers, in particular after the 25th of January 2015, when the left-wing SYRIZA party (Greek acronym of the full name, literally the ‘Coalition of the Radical Left’), having won the election by some considerable margin, formed a government whose strategy was to challenge Greece’s creditors over the much despised (in Greece, that is) Greek bailout programme. These issues include: the question of the odiousness of Greek debt (and whether it can be repudiated; interestingly the UN GA passed a Resolution on 11 September 2015 regarding the ‘basic principles on sovereign debt restructuring processes’, during the vote for which the caretaker government of Greece opted to abstain), the issue of German reparations and of the compulsory war loan of 1942, as well as the issue of economic coercion into a new bailout agreement (commented on here) which Greece accepted in July and August 2015 (and which led to the splintering of the governing party and to fresh elections scheduled for September).

In this post, just ahead of the snap election that has been called for 20 September 2015, I will briefly discuss the bailout programme between 2010 and 2014 and explain the arguments on the basis of which it was challenged by the SYRIZA-led government (section I). Then I will describe the negotiation which led to the new agreement, which has been seen (in many circles at least) as an attempt at regime change in Greece (section II). Finally, I will argue that this episode does not constitute unlawful economic coercion, as there is no right of a State to be free from economic coercion in international law (section III). That subject I treat in much more detail in a paper written for the project led by Dan Joyner and Marco Roscini on the ‘Fundamental Rights of States’. The paper is now available on SSRN and will appear, along with other relevant papers, in a special issue of the Cambridge Journal of International and Comparative Law.  Read the rest of this entry…

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Joint Blog Series: Application of International Humanitarian Law by Domestic Courts

Published on September 15, 2015        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by EJIL:Talk!, Lawfare and Intercross (blog of the International Committee of the Red Cross) and arising out of the 3rd Transatlantic Workshop on International Law and Armed Conflict held in Oxford this summer.

It is well known that in an order such as international law where there is no universal, compulsory judicial system, domestic courts play an important role not only in enforcement, but also in interpretation and development of particular international legal rules. This is especially the case in international humanitarian law (IHL), an area that constantly faces existential critique for its lack of effective enforcement mechanisms. Moreover, it was only in the 1990s with the emergence of modern international criminal justice that many of the specific rules of IHL came to be interpreted and developed since their codification several decades before. Against this background, domestic courts are increasingly called on to apply and interpret IHL.

The purpose of this post is to offer a brief overview of the circumstances that might lead a domestic court to examine IHL, the extent to which such jurisprudence can be considered as contributing to the development of IHL, and some of the problems that arise here.

How does IHL come to arise before domestic courts?

There are a number of situations that might call for a domestic court to draw on IHL during the proceedings. In such cases, the court will either apply IHL directly (e.g. where a domestic law or government policy is being judicially reviewed for compliance with the international obligations of the State) or indirectly (e.g. where a domestic law or other international obligation of the State is being applied in a situation that requires a renvoi to IHL for content-determination, such as when interpreting a human right in the context of an armed conflict). Read the rest of this entry…

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Moving Beyond the Asylum Muddle

Published on September 14, 2015        Author: 

The horrific images of refugees dying on European shores seem – finally – to have galvanized public opinion in favor of a shift to protection rather than deterrence. Some leaders seem still to be committed to harsh action – Hungarian Prime Minister Orban’s comment that the arrival of refugees threatened “Europe’s Christian roots” and the decision of Czech officers to use indelible ink to write numbers on the hands of refugees, reminiscent of the Nazi tattooing of Jews and other minorities, being especially odious examples.

But the proverbial tide does seem to have turned. Pro-refugee marches in Vienna, Icelanders demanding that their government let them open their homes to refugees, and English and German football fans displaying banners welcoming refugees to join them at matches seem to have paved the way for the momentous announcement by Austria and Germany that those countries would open their doors to refugees trapped in Hungary. German Chancellor Merkel has emerged as the voice of reason, rightly insisting that the protection of refugees “is morally and legally required” of all state parties to the Refugee Convention.

What now?

First, it is important not to simply go back to “business as usual” when the immediate humanitarian emergency ebbs. The current pressures will abate as some states – inside and beyond Europe, as recent French and Argentinian responses attest – will inevitably follow the Austrian and German lead and open their doors to at least some refugees. The impending arrival of winter weather will moreover stymie the ability of many refugees – in particular, the most vulnerable – to travel to safety. While relative calm has historically inclined governments to return to their protectionist ways, the failure to seize this moment to minimize the risk of future protection tragedies would represent a serious ethical lapse.

Read the rest of this entry…

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