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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.

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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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The Killing of Soleimani, the Use of Force against Iraq and Overlooked Ius Ad Bellum Questions

Published on January 13, 2020        Author: 

 

As most people know by now, the US killed Qassem Soleimani, head of the Iranian Quds force, in a drone strike on 3 January. Most commentators seem to agree that Soleimani’s killing was unlawful, but one issue has received less attention: the legality of using force against Iraq. The strike occurred in Baghdad, killing not only Suleimani but also five Iraqi nationals, including the leader and members of Kata’ib Hezbollah. This post examines the legality of the use of force against Iraq from a ius ad bellum perspective, arguing that a putative US claim to self-defense against Iraq stretches the doctrine of ‘unable or unwilling’ to breaking point.

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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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The Killing of Soleimani and International Law

Published on January 6, 2020        Author: 

 

On 3 January, missiles launched from a United States Reaper drone struck two vehicles leaving Baghdad’s international airport. At least seven people died in the attack, including the commander of Iran’s Quds force, General Qassem Soleimani. On 5 January, Iranian Major General Hossein Dehghan, reported to be the military adviser to Iran’s Supreme Leader, gave an exclusive interview to CNN and said Iran “would retaliate directly against US ‘military sites.’”

These killings and threats are the focus of this brief post. Developments are on-going, but enough has occurred so far to be able to analyze relevant principles of the jus ad bellum.

The killings and response have received extensive press coverage, unlike most drone attacks, such as the 63 against Somalia in 2019 alone. In connection with Soleimani, reporters have actually been asking about the legality of the killing. See Was It Legal to Kill a Top Iranian Military Leader? Much of the attention has focused on whether it was an “assassination”. In a call to reporters a U.S. State Department official rejected the term “assassination” to characterize the killings because ‘“Assassinations are not allowed under law.’” The answer leads to the next question, were the killings lawful?

The official went on to provide the analysis U.S. presidents have apparently relied on to justify killing with drones since 2002. (See, Mary Ellen O’Connell, Game of Drones Game of Drones, Review Essay, 109 Am. J. Int’l L. 889 (2015).) He applied two criteria to the case: “‘Do you have overwhelming evidence that somebody is going to launch a military or terrorist attack against you? Check that box. The second one is: Do you have some legal means to, like, have this guy arrested by the Belgian authorities or something? Check that box, because there’s no way anybody was going to stop Qassem Soleimani in the places he was running around—Damascus, Beirut. And so you take lethal action against him.’”

President Trump has also provided many tweets and other remarks relevant to a legal assessment. He said he ordered the attack to “prevent a war”, not as part of an on-going armed conflict with Iran. He also used terms relevant to a case for self-defense under the jus ad bellum. Suleimani, according to Trump, ‘“was plotting imminent and sinister attacks on American diplomats and military personnel, but we caught him in the act and terminated him.”’

The U.S. Department of Defense in a brief press statement also inferred self-defense. The U.S. took “decisive defensive action to protect U.S. personnel abroad… General Soleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region.” 

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Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and

This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

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The Duty to Investigate Civilian Deaths in Armed Conflict: Looking Beyond Criminal Investigations

Published on October 22, 2018        Author: 

Writing in the Times last Friday, General David Petraeus, former commander of US Central Command, added his voice to the familiar refrain that ‘European human rights law’ has given rise to the ‘judicial pursuit of British soldiers and veterans’. Petraeus may be correct in stating that the British emphasis on criminal investigations would never obtain in the US, but looking at some of the legal issues behind his claims undercuts his assumption that ‘restoring the primacy of the law of armed conflict’ would remove scrutiny over the actions of military personnel on the battlefield.

A year after the winding up of the Iraq Historic Allegations Team (IHAT), the controversies over accountability for the UK’s military action in Iraq certainly show few signs of going away. Sections of the press continue to mount a vociferous campaign against the residual work of the Iraq Fatality Investigations (IFI), while calls for investigations into alleged civilian fatalities from more recent UK military action over Mosul are growing.

I reflected on this experience in the course of completing a chapter on international legal obligations to investigate civilian deaths for a new book just published, The Grey Zone: Civilian protection between human rights and the laws of war. The many years of investigations in the UK have arguably resulted in a failure either to deal effectively with outstanding allegations or to deliver justice to many Iraqi victims. This perception may of course be influenced by continuing political disagreement over international military action in Iraq, but it also stems from the particular approach the UK has taken to investigating violations, including the heavy reliance on criminal law. In the current generation of devastating air campaigns, what lessons can be learnt?

UK practice

Beside the need to address public concern about the conduct of military action in Iraq, UK practice on investigations has been driven largely by duties under the International Criminal Court Act 2001 and the Human Rights Act 1998.

The UK’s approach was established early in Iraq (and later applied to UK operations in Afghanistan), with all incidents involving civilian casualties being referred for investigation to the Service Investigation Branch of the Royal Military Police. Comparing US military investigations with those of other states in Naval Law Review in 2015, Commander Sylvaine Wong of the US Navy JAGC noted that the UK had, ‘as a matter of domestic policy, taken the most dramatic steps to rely solely on criminal law enforcement investigations for incidences of civilian casualties.’ Read the rest of this entry…

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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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