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Home Articles posted by Benjamin Nussberger

“Sustainable Self-Defense”? How the German Government justifies continuing its fight against ISIL in Syria

Published on October 2, 2019        Author: 

“We have defeated ISIS in Syria”, US President Trump, tweeted on 19 December 2018. “We just took over 100% caliphate. That means the area of the land.”, he added in March 2019. Nonetheless, until to date, the global coalition against the “Islamic State of Iraq and the Levant” (ISIL) continues its military operations in Iraq and Syria. May States in Syria still use armed force against ISIL, now deprived of territorial control, under the right of (collective) self-defense?

The German Government answered this question in the affirmative. On 18 September 2019, the Government formally requested the German Parliament to extend the (national) mandate “for German armed forces to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions” (all translations by the author). The Parliament is currently debating the issue. With the governing parties endorsing the request, Parliament is expected to agree despite critique on the operation’s legality by opposition parties.

In its formal request, the Government details the legal basis for the continuation of operations against ISIL. As a matter of principle, it does not significantly depart from its previous justifications. It bases the use of armed forces in Iraq on the “Iraqi government’s continuously valid request and continued consent”. For its operations in Syria, the Government continues to invoke collective self-defense on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

But importantly, the Government has also updated its justification in light of ISIL’s loss of territorial control. This, in short, would not affect the coalition’s right to continue military operations against ISIL in Syria. This updated justification is worth discussing in regard to three aspects of self-defense: whether it can be used against non-State actors, its endorsement by the Security Council, and the question of continuing armed attacks.

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Filed under: EJIL Analysis, Non-State Actors, Pre-emptive Self Defence, Self Defence, Syria, Use of Force
 
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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…

Filed under: Armed Conflict, EJIL Analysis, Iran, Israel, Non-State Actors, Self Defence, Use of Force
 
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A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

Published on February 20, 2018        Author:  and

If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in.  Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam.  Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement. Read the rest of this entry…

Filed under: EJIL Analysis, Extradition, Extraterritorial Application, Human Rights, State Responsibility, Use of Force
 
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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…

Filed under: EJIL Analysis, Government, Security Council, The African Union, United Nations, Use of Force
 
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