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Home Articles posted by Marko Milanovic

Mistakes of Fact When Using Lethal Force in International Law: Part III

Published on January 15, 2020        Author: 

 

To briefly recapitulate our examination of mistake of fact when using lethal force in various sub-fields of international law: such a doctrine is, in its purely subjective form, black letter law in international criminal law. It is also established (even if not labelled as such) in international human rights law and (somewhat less clearly) in international humanitarian law. Both IHL and IHRL would however require the mistake to both honest and reasonable to be able to preclude liability. Both IHL and IHRL contain explicit precautionary and prophylactic rules whose role, in part, is to determine the bounds of reasonable and hence permissible error (e.g. with respect to target verification).

As we have seen, the mistake of fact question is most fraught in the jus ad bellum. That said, as a formal matter, even if one thought it to be desirable, it would be difficult to argue that a jus ad bellum-specific mistake of fact doctrine was customary law. I cannot think of any state but the US that has invoked such a doctrine, even implicitly. (Any such examples known to readers would be most welcome.) And when the doctrine was invoked, as with the Iran Air Flight 655, it certainly did not attract widespread acceptance by other states. There is enough ambiguity in state reactions to the downing of that aircraft, especially in the atmosphere of the Cold War, that one cannot categorically exclude that such a rule could exist. But it seems unlikely that it does. And if it does, it cannot be the purely subjective one from ICL, which would be even more inappropriate in the jus ad bellum context than in IHL and IHRL.

Bearing all this in mind, let us turn to the downing of Ukraine International Airlines Flight 752 over Tehran, which is as we have seen eerily reminiscent of the shooting down of Iran Air Flight 655 by the USS Vincennes. There are many parallels between the two incidents, not least that they both involve the same two states, if on different sides of the story, and that both cases raise questions of mistake of fact. What is very different is the wider context – the Cold War warped anything it touched. And I think it fair to say that the socializing effect of international law is somewhat greater today than it was then.

Thus, states like Ukraine and Canada have already used legal language vis-à-vis Iran. President Zelenskyy stated that:

Iran has pleaded guilty to crashing the Ukrainian plane. But we insist on a full admission of guilt. We expect from Iran assurances of their readiness for a full and open investigation, bringing those responsible to justice, the return of the bodies of the dead, the payment of compensation, official apologies through diplomatic channels.

Prime Minister Trudeau similarly stated that ‘Iran must take full responsibility’ for its actions.

And this is exactly what Iran should do. It shouldn’t just listen to these other states invoking its responsibility. It should listen to the voice of its own ambassador, when he was speaking in the Security Council chamber to reject the US self-defence justification for shooting down IR 655:

We believe that a responsible Government, under the present circumstances when it has caused the destruction of a civilian airliner and its 290 passengers, must urgently take three steps: It must apologize to the families of the victims and to the peoples and the Governments concerned ; it must accept full responsibility for the downing of the airliner and offer reparation on the basis of its legal and moral liability; and it must reassess and revise policies which led to the downing of the plane and the murder of its innocent passengers. (S/PV.2821, 6)

An equally intriguing parallel is that with McCann. Indeed, I would argue that it is precisely human rights law – largely absent from the discussions of the destruction of IR 655, aside from a single reference by (of all people) the ambassador of Syria – that is the body of law that best fits the downing of the Ukrainian airliner. The gravest violation of international law here is not that of the Chicago Convention, but that of the human right to life, the wrongfulness of which could, unlike with the Chicago Convention, never be precluded by jus ad bellum self-defence.

Just like the SAS soldiers in McCann, the Iranian air defence officers most likely honestly believed that they had to act to deflect a threat to human life. Just like in McCann, they were wrongly told that such a threat was certain – that US cruise missiles would be incoming. Just like in McCann, they had little time to deliberate. And just like in McCann, the violation of the right to life stems not directly from the soldiers’ decision to use lethal force, but from systemic background failures of higher Iranian authorities.

Had Iran closed its airspace for civilian traffic that evening, knowing full well that hostilities with the US might easily escalate, the plane would never have been shot down. Had Iran properly coordinated its air defences with civilian air traffic control, the plane would never have been shot down. Had Iran properly trained its forces at various levels, the plane would never have been shot down. Thus, even if Iran’s mistake of fact that resulted in the destruction of the aircraft was honest, it was not reasonable, and as such it would bear state responsibility for violating the victims’ human rights. And that violation is compounded by the initial attempts of Iranian authorities to obstruct the investigation and cover up the cause of the crash, from which they have thankfully desisted, but which nonetheless resulted in a violation of the positive obligation to effectively investigate unlawful deaths.

This is therefore how Iran should frame the reparations it provides – not as ex gratia charity payments, not (solely) as compensation due to states such as Ukraine or Canada, but as just satisfaction to those individuals whose rights it violated. In doing so, Iran should compensate its own nationals in the exact same way as it compensates foreigners, as equals in dignity. And it needs to provide sufficient assurances to the international community that a mistake such as this one, honest though it may have been, will never be repeated.

 

Mistakes of Fact When Using Lethal Force in International Law: Part II

Published on January 15, 2020        Author: 

 

If a state believes that it is the target of an ongoing or imminent armed attack and uses force to repel that attack, but it later turns out that it was mistaken and that there either was no such attack or that there was no necessity to respond to it, is that use of force in putative self-defence ipso facto a violation of Article 2(4) of the Charter? Or would the state’s mistake excuse it?

There are three possible options in answering this question:

  • An honest mistake of fact would excuse the state, as in ICL;
  • An honest and reasonable mistake would excuse the state, as in IHL and IHRL;
  • No mistake, however honest and reasonable, would excuse the state – it violated the prohibition on the use of force, and would have to provide reparation for any injury caused.

Any one of these options is plausible in principle. In particular, I do not think that the text of Article 51 of the Charter is entirely dispositive of the issue.

It’s true that Article 51 permits self-defence ‘if an armed attack occurs/ dans le cas où un Membre des Nations Unies est l’objet d’une agression armée’ and that one could therefore say that the existence of an armed attack is an objective fact and a necessary predicate for any self-defence claim. But we routinely do far greater violence to far clearer texts than it would take to incorporate a mistake of fact doctrine into the law of self-defence. The big question is whether we should, not whether we could.

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Mistakes of Fact When Using Lethal Force in International Law: Part I

Published on January 14, 2020        Author: 

 

The tragic shooting down of the Ukrainian airliner over Tehran last week, which Iran has admitted to after several days of denial, has led me to think about a set of issues that was already on my mind when we were discussing the legality of the US strike on Soleimani. How exactly does international law deal with situations in which state agents use lethal force and do so under the influence of a mistake or error of fact? For example, when an Iranian air defence officer shoots down a civilian airplane thinking that he was shooting down an American cruise missile; or, when a state uses force against another state thinking, on the basis of imperfect intelligence information, that is the victim of an ongoing or imminent armed attack, and it later turns out that there was no such attack. Does international law provided reasonably consistent, coherent and fair rules to address such situations? To what extent can we generalize about such rules, and to what extent are they fragmented and context-specific?

Domestic legal systems have long dealt with such issues. Perhaps the most common such scenario – in some countries all too common – is the use of lethal force by the police against a person whom the officer concerned mistakenly believed was posing a threat to others, but who in fact posed no such threat.

Most domestic systems that I am familiar with have mistake of fact rules or doctrines in their criminal laws. Such rules, whether grounded in statute or in case law, often distinguish between honest mistakes, based purely on the subjective belief of the person using force, and reasonable mistakes, assessed on the basis of some kind of objective standard of behaviour. In most domestic systems mistake of fact can preclude criminal liability in some circumstances, and mitigate punishment in others. But municipal laws are rarely as clear with regard to civil, delictual responsibility in tort, which is the closer analogue to state responsibility in international law.

I can’t claim to have done genuinely comprehensive research on this topic, but it seems to me that there is a significant gap here in the international legal literature. How exactly do we handle mistakes of fact in the various different sub-fields of international law, especially when the mistake involves uses of lethal force? And are we content that whatever solutions we have come up with are the right ones?

This three-part series of posts is not even an attempt at filling this gap – think of it more as a conversation starter. I would be most grateful to readers for additional examples in the comments or for any other thoughts they might have. In this first post, I will briefly examine how mistakes of fact in using lethal force are addressed in international criminal law, international humanitarian law, and international human rights law. My second post will look at mistakes of fact in self-defence under the law on the use of force (jus ad bellum), examining as a case study the 1988 downing of Iran Air Flight 655 by the USS Vincennes. The third and final post will then offer some conclusions and some tentative thoughts on the downing of Ukraine International Airlines Flight 752 over Tehran.

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Iran Unlawfully Retaliates Against the United States, Violating Iraqi Sovereignty in the Process

Published on January 8, 2020        Author: 

 

Today Iran launched a number of ballistic missiles against two US military bases in Iraq, in response to the US strike on Soleimani last week. As of now it is unclear whether the missiles caused any American or Iraqi casualties. Donald Trump will address the public in this regard in the morning today US time.

Hopefully there will be no further escalation of hostilities after this Iranian missile strike. It is crystal clear, however, that the strike was unlawful. It breached the prohibition on the use of force in Article 2(4) of the UN Charter with respect to both the United States and Iraq. It did so because of its purely retaliatory nature.

The Iranian Foreign Minister, Javad Zarif, gave Iran’s public justification for the strike on Twitter:

Note his explicit reliance on self-defence per Article 51 of the Charter, the reference to proportionality, and to Iran having concluded its defensive action. Clearly this is meant to say that Iran intends to take no further action (at least not openly) if the US for its part refrains from further hostilities. Again, let’s hope that such de-escalation actually happens. That said, however carefully framed, Zarif’s invocation of self-defence is still incapable of legally justifying Iran’s actions.

Let’s assume that the US strike on Soleimani was an unlawful use of force against Iran, as I argued that it most likely was. Let’s assume further that it was also an armed attack in the sense of Article 51 of the Charter (i.e. under the majority view, including that of the ICJ, a more serious and grave form of unlawful force), which would in principle entitle Iran to take measures in self-defence. Let’s also assume that the killing of Soleimani was in fact executed from the two US bases that Iran has now struck. Even if all of this is true, the basic problem for Iran is that the US strike on Soleimani was completed. Because that attack was over, there could be no necessity to act to repel it. It is only if Iran could argue on the facts that it anticipated future imminent attacks by the US that it could plausibly have a claim to self-defence, and Zarif mentioned no such attacks.

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The Soleimani Strike and Self-Defence Against an Imminent Armed Attack

Published on January 7, 2020        Author: 

 

The US drone strike on Qassem Soleimani, one of the most important members of the Iranian leadership, raises many complex questions of international law. This post will examine the lawfulness of the strike from the standpoint of the law on the use of force. It will first set out the parameters of the US justification for killing Soleimani, which is some variant of self-defence against an imminent armed attack. It will then look at the notion of an imminent attack, at the different ways such an attack can be repelled, and at whether, on the facts as we know them, the US strike should be regarded as lawful.

I will argue that even if one accepts a broad theory of self-defence against an attack that is yet to occur, such as that espoused by the US government itself, the strike is likely to be unlawful. It is improbable that the US would be able to meet the factual requirements that it needs to justify the strike – in particular, there are serious doubts that there even was an imminent attack, and there are serious doubts that the method the US chose to resist that supposed attack was necessary under the circumstances. If such was the case, the US breached the prohibition on the use of force in Article 2(4) of the UN Charter vis-à-vis both Iran and Iraq. Finally, the post will look at the illegality of the threats of further use of force made by President Trump against Iran, which are unlawful both as a matter of the jus ad bellum and the jus in bello.

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A Picture is Worth a Thousand Words

Published on December 4, 2019        Author: 

(Image credit: AFP)

Next week, Aung San Suu Kyi, the Nobel Peace Prize laureate and de facto head of government of Myanmar, will appear in person before the International Court of Justice. She will be defending her country in the case brought by Gambia for breaches of the Genocide Convention due to atrocities against the Rohingya. The Court will be holding oral hearings on provisional measures in the case (for our earlier coverage, see here). According to an AFP report:

Ardent fans of Aung San Suu Kyi are snapping up spots on $2,000 tours to The Hague, in a display of moral support as Myanmar faces charges of genocide over the Rohingya crisis at the UN’s top court in December.

Supporter rallies, billboards and outpourings of praise online followed the shock announcement by the country’s civilian leader last week that she would personally represent Myanmar at the International Court of Justice (ICJ).

The once-lauded democracy champion will be defending the 2017 military crackdown against the Rohingya minority.

One travel operator is organising a five-day tour to The Hague that includes visa and transportation as part of a $2,150 package, said employee Ma July — a prohibitive rate for most in the developing nation.

Social influencer Pencilo and well-known TV presenter Mg Mg Aye are among the 20 or so people to have already signed up.

“I believe this is our duty as citizens,” Pencilo, 29, told AFP Friday, urging any of her 1.1 million Facebook followers who have the means to do the same.

“It’s important the world knows her compatriots are fully behind her.”

– ‘We stand with you’ –

All of this is so deeply disturbing on so many levels that I genuinely find myself bereft of words. But the image above somehow manages to convey it all – Peace Palace, Photoshop, Facebook. For analysis of why Suu Kyi has decided to appear before the Court in person, perhaps due to her total inability to accept a reality that is not to her liking, or perhaps as part of a cynical strategy to buoy support for her party and herself within Myanmar, see here and here. Either way, it will be a sad spectacle, in more ways than one.

 

Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part II: Issues Lurking on the Merits

Published on September 24, 2019        Author: 

In my previous post I explained how the European Court’s Article 1 jurisprudence allows it to avoid the question of sovereignty over Crimea, since it can ground Russia’s jurisdiction over the territory, and thus the applicability of the ECHR, simply on the fact of its control and need not say anything else. But there are at least two issues on the merits of the Ukraine v. Russia re Crimea case that could directly engage the question of sovereignty over the territory. As a preliminary matter, I now need to say that I have not had the benefit of reading the pleadings of either party in the case – the Court has an inexplicable policy of not putting the pleadings online, but only allowing them to be consulted in its building in Strasbourg. That said, I am reasonably certain that the two issues I examine here are properly raised in the case. I will therefore now turn to the first of these, the mass imposition of Russian citizenship on the people of Crimea.

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Does the European Court of Human Rights Have to Decide on Sovereignty over Crimea? Part I: Jurisdiction in Article 1 ECHR

Published on September 23, 2019        Author: 

On 11 September the Grand Chamber of the European Court of Human Rights held oral hearings on the admissibility of the interstate claim Ukraine brought against Russia regarding Crimea (no. 20958/14). The webcast of the hearing is available here. There are many different admissibility issues that the case raises, some of them heavily factual (e.g. the existence of an administrative practice on the part of Russia that makes individual recourse to domestic remedies impossible). The case may well flounder on one of them. But the one issue that concerns me here is simply this: should the European Court make any pronouncements on whether it is Ukraine or Russia who is the rightful sovereign of Crimea?

To be clear, sovereignty over Crimea is not to my mind a legally difficult question – Russia’s annexation of Crimea was as clearly illegal as anything can be. But there is wider, much more fraught, question of principle and prudence: should international human rights bodies pronounce on issues which, while capable of legal determination, are not part of their central mission of human rights protection and may negatively affect that mission? This is especially the case in situations in which it is entirely predictable that, in the political context, any such pronouncement would provoke intense backlash, even possibly leading to Russia’s withdrawal from the Council of Europe.

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Callamard Report on the Murder of Jamal Khashoggi: Part II

Published on June 26, 2019        Author: 

In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).

In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.

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Callamard Report on the Murder of Jamal Khashoggi: Part I

Published on June 25, 2019        Author: 

Last week the UN Special Rapporteur on extrajudicial executions, Agnes Callamard, submitted to the Human Rights Council her long-awaited final report on the investigation she conducted on the murder of Jamal Khashoggi. In this post I’ll offer a few thoughts on some of the legal and factual findings of this report, which is the result of the only independent inquiry to-date into Khashoggi’s assassination in the Saudi consulate in Istanbul in October last year. Readers may recall that I’ve recently written extensively on the blog on the international legal aspects of Khashoggi’s murder, based on my forthcoming article in the Human Rights Law Review.

The Callamard report is extensive, detailed and rich in its legal and factual analysis. Indeed it is far too extensive to be summarized and discussed in a blog post, which I will not attempt to do. Rather, this two-part post will focus on a selection of the report’s most novel factual and legal findings; the first part will examine the former, and the second, to be published tomorrow, will look at the report’s legal analysis.

The report itself is comprised of two documents. First, the formal report to the Human Rights Council, submitted for its 41st regular session starting this week – UN Doc. A/HRC/41/36. Second, a one-hundred page annex to that report, which contains the Special Rapporteur’s detailed factual and legal findings with regard to the murder of Jamal Khashoggi – UN Doc. A/HRC/41/CRP.1. The former document by and large summarizes the contents of the latter, while emphasizing some important points of principle, e.g. regarding the duty to warn (on which more tomorrow). I will hereinafter thus only refer to the annex, i.e. whenever I cite a paragraph of the report, I mean to refer to the longer document, A/HRC/41/CRP.1.

Again, I will not cover the report exhaustively. The media coverage of the report, including succinct summaries of its main findings, has been extensive (e.g. here and here; see also this VoA interview with Ms Callamard). In a nutshell, the Special Rapporteur found that Saudi Arabia bears state responsibility for the extrajudicial killing of Mr Khashoggi, in violation of his human right to life, and that it has similarly violated its positive obligation to effectively investigate his killing. She has inter alia called on the UN Secretary-General, the Human Rights Council, and the Security Council, to establish an independent international criminal investigation into Khashoggi’s murder, and has specifically found that credible evidence existed for the potential responsibility of the Saudi Crown Prince, Mohammed bin Salman, and his principal henchman, Saud al-Qahtani.

As one could expect, Saudi Arabia has already rejected the report, alleging that it is biased, contains ‘nothing new,’ repeats allegations already made in the media, and is based on ‘false accusations confirmed as stemming from Callamard’s preconceived ideas and positions towards the kingdom.’ In reality, however, there are quite a few new significant factual findings in the report, which have been made with a commendable degree of care and rigour – all the more commendable in light of the very limited resources that the Special Rapporteur had at her disposal. In fact, the report expressly tries not to rely on media reporting, whenever possible, and acknowledges possible sources of bias when appropriate (see paras. 36-37, 42-47). The Special Rapporteur established as proven or credible only those facts that she herself could independently substantiate. And, of course, she applied in great detail the applicable rules of international law to the facts that she has established. As we will see, most of her legal findings are (at least in my view) unassailable, while others are somewhat more tenuous.

What, then, of the report’s novel factual findings?

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