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A Response to Noam, Gina, Thomas and Mary Ellen

Published on April 29, 2013        Author: 

David Kretzmer is Professor Emeritus, Hebrew University of Jerusalem and Professor of Law, Sapir Academic College.

Many thanks to the editors of the EJIL for selecting my article for discussion on the blog and to Noam, Gina, Thomas and Mary Ellen for their thoughtful and perceptive comments.  These comments provide me with the opportunity of clarifying some of the points I raised in the article and expressing my view about issues that I failed to consider.

The discussion in my article was confined to use of force in exercise of a state’s inherent right to self-defence, recognized in article 51 of the UN Charter.  I did not consider humanitarian intervention, nor use of force authorized by the Security Council under article 42 of the Charter.  However, Gina is quite right in concluding that my analysis of unilateral use of force by states implicitly rules out unilateral humanitarian intervention.  Any decision on such intervention must be a collective one taken by the SC under Chapter VII. ( I shall not discuss the controversial view of the Independent International Commission on Kosovo that there may an intervention which while unlawful is nevertheless legitimate.)  While article 42 speaks of forcible action “as may be necessary to maintain or restore international peace and security” I fully accept Mary Ellen’s view that such action must also meet the demands of proportionality.

What is the place of the “narrow proportionality” test in jus ad bellum?  Thomas points out that while intimating that this test does indeed have such a place I neglected to develop the issue.  Following the line of just war theory, Mary Ellen argues that the very essence of proportionality in jus ad bellum 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.”  While Thomas mentions that there is little, if any, authority on which one can “conclude that the law on the use of force already includes a ‘narrow proportionality’ criterion” it seems to me that such a criterion is inherent in the very notion of proportionality.  Hence, as in other contexts in which the means-end proportionality test is employed, some “cost-benefit” analysis must indeed be part of the jus ad bellum test too.

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Does Use of Chemical Weapons Justify Intervention in Syria?

Published on April 27, 2013        Author: 

Over the last few days, various media outlets have reported that the US, UK and other countries believe that the Syrian government has used chemical weapons in the Syrian conflict (see BBC report). Apparently, there is not yet conclusive evidence of this and the US and others are investigating the matter. However, US President Obama has stated that use of chemical weapons would be a “game changer.”

“Horrific as it is when mortars are being fired on civilians and people are being indiscriminately killed, to use potential weapons of mass destruction on civilian populations crosses another line with respect to international norms and international law.

“All of us, not just the United States, but around the world, have to recognise how we cannot stand by and permit the systematic use of weapons like chemical weapons on civilian populations,” he said

So, the question is whether, as a matter of international law, the use of chemical weapons would justify intervention in Syria. Military intervention in Syria either directly (by the armed forces of other States) or indirectly (by providing arms to the Syrian opposition) would, in principle, be contrary to Article 2(4) of the United Nations Charter. The issue is whether there are any arguments that may be used to get round the prohibition of the use of force in that provision. In previous posts I have considered the legality of arming the opposition in Syria  (and also here) and after examining the different arguments that may be used, concluded that none of them has a strong basis in international law. It does not seem to me that the use of chemical weapons changes the position as a matter of international law.

The main argument that could be used to justify intervention if it is established that chemical weapons have been used would be humanitarian intervention. However, to my knowledge, the United States has never relied on this as a legal basis for intervention (I would be grateful for clarification if I am wrong on this). More importantly, most States reject the view that international law permits States to use force in other States for humanitarian reasons. Perhaps views on this are changing – for example it is not clear whether French and Arab support for arming the Syrian opposition are based on a humanitarian intervention type argument. Perhaps a use of chemical weapons might change the views of others such that we see the law changing. Read the rest of this entry…


Bolivia Institutes Proceedings Against Chile Before the ICJ

Published on April 25, 2013        Author: 

After a lull of almost a year and a half, the ICJ got a new case – yesterday Bolivia instituted proceedings against Chile with regard to Chille’s alleged obligation to negotiate with Bolivia a fully sovereign acess to the Pacific Ocean for the latter. The Court’s press release is here, and the application here. Seems like a rather unorthodox case – any comments by readers on whether there have been other cases in which the main claim by the applicant is that the respondent has a duty to negotiate with it are welcome.


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…


Ius ad bellum Proportionality is More Complicated Still: A Response to David Kretzmer

Published on April 22, 2013        Author: 

Thomas Liefländer is a doctoral candidate at St Hugh’s College, University of Oxford

Any attempt to come to terms with the notion of proportionality, be it in the context of the use of force in self-defence or anywhere else, has to grapple with a number of questions. First, what is the nature of the applicable proportionality test? Possible answers include ‘tit-for-tat’, ‘not-more-than-necessary’ or the ‘narrow proportionality test’ which assesses whether the ‘good’ effects of a measure outweigh its ‘bad’ effects. Secondly, once this question is settled, a more precise definition of the various factors going into the proportionality equation and how they interrelate is needed. Finally, how is each factor to be assessed under the conditions of epistemic and normative uncertainty that exist in the real world? Depending on the context, the answer to any one of these questions can be straightforward or very difficult. In self-defence, it seems, they are mostly difficult.

Professor Kretzmer’s recent EJIL article tackles some of these questions. He focuses, in particular, on the definition of the legitimate ends of self-defence and how they impact on the proportionality test. In summary, he first suggests that the definition of legitimate goals can determine whether a ‘tit-for-tat’ or ‘not-more-than-necessary’ test is applicable. Secondly, identifying the legitimate aims is crucial for being able to apply both the ‘not-more-than-necessary’ and the ‘narrow proportionality’ test, as both relate action taken in self-defence to the good (ie the legitimate ends) it intends to achieve. In these two respects, Professor Kretzmer’s contribution is outstanding. His work will certainly focus the discussion on the centrality that the definition of legitimate ends has both for self-defence in general and the issue of proportionality in particular. However, in stressing this particular aspect Professor Kretzmer may have downplayed the role of the remaining questions to some degree. I shall outline the important questions that Professor Kretzmer’s article essentially leaves open. In doing so, I will briefly touch on (1) the status of the ‘narrow proportionality’ test, (2) the ‘means’ side of the ‘means-end/not-more-than-necessary’ test, and finally (3) on the more general issue of proportionality-assessments under epistemic and normative uncertainty. My intention is not so much to challenge Professor Kretzmer’s arguments, but rather to extend – but not complete – the picture of what it is that we argue about when proportionality is in issue.

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Conference Announcements: BIICL/SLS conference on Sanctions & Embargoes’; CJICL 2nd Annual Conference

Published on April 21, 2013        Author: 

1) On 29 April, the Society of Legal Scholars international law section and the British Institute of International and Comparative Law are holding their 22nd annual joint conference on the subject of ‘Sanctions and Embargoes: International Law and Contemporary Practice’. Bringing together experts from both academia and practice, the conference will provide both an overview of recent developments in sanctions by the UN, regional organizations and individual States,and an analysis of the problems that they have engendered. Panels will examine the contemporary practice of the various actors, and the legality (or otherwise) of their activities. Issues considered will include the human rights of persons targeted, and the mechanisms established to challenge listing; as well as the rights of third States and their nationals.  Further details (including and list of speakers and instructions how to register can be found at the conference website.

2) On 18-19 May 2013, the Cambridge Journal of International and Comparative Law (CJICL) will hold its Second Annual Conference under the theme “Legal Tradition in a Diverse World”. Highlights include a keynote address by Judge Yusuf (ICJ); a keynote debate between Prof Alain Pellet (Paris Ouest) and Prof James Crawford (Cambridge), moderated by Prof Catherine Redgwell (UCL); a guest lecture by Prof Patrick Glenn (McGill); a conference dinner address by Prof Philippe Sands (UCL); and more than 50 presentations in over a dozen panels.
For registration and the full conference programme, visit the conference website. Places are limited and filling up quickly, so make sure to register soon.

Filed under: EJIL Analysis
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CERD and Hate Speech

Published on April 19, 2013        Author: 

An important case on hate speech was recently decided by the CERD Committee, TBB v. Germany, dealing with the intersection or conflict between the prohibition of racial discrimination and the freedom of expression (thanks to Marty Lederman for the pointer). The case concerned an interview given by a Mr Sarrazin in a journal that contained derogatory and offensive statements against the Turkish population in Germany; the statements were however given in the context of at least a superficially reasoned discussion dealing mainly with the economy. The TBB, a Turkish association in Germany, wanted Mr Sarrazin to be prosecuted for hate speech; the German prosecutors refused to do so, finding that while some of S’s statements were offensive, a prosecution would under the circumstances run afoul of the freedom of expression.

Article 4 CERD explicitly requires states parties to ‘declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred’; however when doing so they must give ‘due regard to the principles embodied in the Universal Declaration of Human Rights,’ including the freedom of expression. The Convention itself thus even at the purely textual level creates a potential conflict between the duty to incriminate hate speech and the freedom of expression, without providing much guidance as to how this conflict can be resolved. Text aside, the same set of issues is of course raised under other human rights treaties, such as the ECHR and the ICCPR, or in the domestic context.

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Is it the right time to reconsider jus ad bellum proportionality?: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 18, 2013        Author: 

 Dr Gina Heathcote is a lecturer at SOAS, University of London

I shall begin by answering the question posed in my title in the negative.  The very technical and detailed discussion of the scope of jus ad bellum self-defence, as is found in David Kretzmer’s article, plays down the contemporary spaces where the Charter is being re-imagined by States. The post-millennium era has been characterised by state practice that seems to conveniently forget the constraints of the Charter structure, in particular the importance of Articles 2(3) and 2(4) of the Charter, in favour of unilateral force. In returning to the scope and permission embedded in the principle of proportionality, Kretzmer acknowledges but neatly avoids contemporary debates on the use of force in humanitarian crisis and the use of targeted strikes through identification but little analysis of the rhetoric, practice and confusion of the vast literature that has characterised post-millennium debates on jus ad bellum. This is an unfortunate consequence of Kretzmer narrowing in on, first, a component of the use of force (self-defence) and, second, to a specific aspect of that component (proportionality). This avoids looking, seeing or acknowledging the harm – the deaths – caused by targeted strikes and the consequences of both collective and unilateral interventions justified on humanitarian grounds, allowing international lawyers to retell stories of technical legal knowledge that are far removed from ‘what we talk about when we talk about war’ (see B.Stark ‘What We Talk about When we Talk about War’, 32 Stanford Journal of International Law (1996) 91). Read the rest of this entry…


Comments on David Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum

Published on April 17, 2013        Author: 

Dr Noam Lubell, Reader, School of Law, University of Essex

I’ve been asked to begin the discussion of Professor David Kretzmer’s new article on proportionality. Having benefitted from David’s wisdom in the past 20 years both academically and in my previous NGO life, I am not surprised to once again have thoroughly enjoyed reading his work. In particular I’m thankful to have been asked to take part in this discussion, as his latest article contains many thought-provoking points, of which we will probably only begin to scratch the surface (I urge you to read the article itself!). Considering the limited space in a discussion of this kind, I’m going to focus on just a few points related to two issues that arise a number of times in the article. Read the rest of this entry…


Discussion of David Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 16, 2013        Author: 

Over the next week or so we shall be hosting a discussion of Professor David Kretzmer’s latest article “The inherent right to self-defence and proportionality in jus ad bellum which has just been published in the first issue of volume 24 of the European Journal of International Law.  The discussion will be started by Dr Noam Lubell (University of Essex), and then be continued by Dr Gina Heathcote (SOAS, University of London), Thomas Lieflander (St Hugh’s College, Oxford), Professor Mary Ellen O’Connell (Notre Dame), and culminate in comments by Professor Kretzmer himself.

Professor Kretzmer’s article is free to view at the link above.  Please read it and join in the conversation.

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