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Home Archive for category "Pre-emptive Self Defence"

Unlawful Reprisals to the Rescue against Chemical Attacks?

Published on April 12, 2018        Author: 
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Donald Trump has threatened Syria with a ‘big price to pay’ for an alleged chemical attack on 7 April in a Damascus suburb. Last year, in similar circumstances, Trump authorized an attack of 59 Tomahawk missiles that reportedly killed 9, including 4 children. The French and German governments responded with a joint press release finding it a ‘just and proportionate’ response. They did not say ‘lawful’–nor could they.

Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. See the same conclusion here  and here. Reprisals need Security Council authorization to be lawful. The Security Council has never authorized a reprisal and will not in the case of Syria.

In 1970, the General Assembly stated clearly in its Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States that among the fundamental rights and duties of states, is the ‘duty to refrain from acts of reprisal involving the use of force’ against other States. The International Court of Justice found in its 1994 advisory opinion on the Legality of Threat or Use of Nuclear Weapons that ‘armed reprisals in time of peace […] are considered to be unlawful.’ In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.

Thus, unauthorized reprisals are always unlawful Read the rest of this entry…

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North Korea and the Law on Anticipatory Self-Defense

Published on March 28, 2017        Author: 
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Media reports over the last few weeks indicate that the already tense relationship between North Korea and the United States is getting worse. Now that North Korea is nearly ready to test an intercontinental ballistic missile, the United States has said that it will get more confrontational. U.S. Secretary of State Rex Tillerson even suggested that U.S. military action against North Korea is “on the table.” Such talk is sometimes part of a broader strategy to pressure other countries to negotiate, whether at the Security Council or elsewhere. But it can also be a precursor to war. And it comes at an acute time for the law on anticipatory self-defense.

As readers of this blog no doubt know, Article 51 of the UN Charter recognizes that states have an “inherent” right to use force in self-defense “if an armed attack occurs.” There is an ongoing debate about whether and, if so, when Article 51 permits states to use force to avert an attack that has not yet occurred. Claims for interpreting Article 51 expansively—to permit defensive force even if the attack is only speculative—have been made with respect to “rogue” states that are developing nuclear weapons. In this post, I situate the North Korea case within that debate and explain why the United States might find it to be a particularly challenging case in which to press its expansive claim.

I. The Law on Anticipatory Self-Defense

A. A Restrictive Position

 The majority view on anticipatory self-defense is probably a restrictive one: that anticipatory self-defense can be lawful only if an attack is truly “imminent”—as in, about to occur. Under this view, states may not use force unilaterally to nip in the bud latent threats or attacks that are still conjectural. They must instead address those situations using non-forcible means or by obtaining the UN Security Council’s authorization. Read the rest of this entry…

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Initial Thoughts on the UK Attorney General’s Self-Defence Speech

Published on January 13, 2017        Author: 
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This is part of a series of posts discussing the UK Attorney General’s speech on the Modern Law of Self-Defence. See also the other posts in the series by Monica Hakimi and Marko Milanovic.

It’s a pleasure to be able to contribute to this EJIL:Talk! discussion of the speech this week by the UK Attorney General, Jeremy Wright QC MP, on “The Modern Law of Self-Defence”. There are two elements of the speech that strike me as especially notable, and on which I’d like to give my initial thoughts here: the invocation of the so-called ‘unwilling or unable’ test and, particularly, the meaning of ‘imminence’ in relation to anticipatory self-defence.

Unwilling or Unable

The explicit acceptance by the UK of the ‘unwilling or unable’ concept, while brief, is a conspicuous feature of the Attorney General’s speech. The speech roots itself in tradition, with nods to the power and weight of history (stretching right back to the 1795 Jay Treaty, as well as, of course, including the obligatory self-back-patting over Britain’s role in the end of the international slave trade). However, there’s no hiding the novelty of the UK’s acceptance of the hugely controversial notion of responding to armed attacks (actual or imminent) even in cases where there is no ‘host state’ involvement whatsoever, simply on the basis of the unwillingness or inability of the state to prevent a non-state actor attack. The US has espoused the ‘unwilling or unable’ doctrine for years, of course, but the UK has not, at least not explicitly.

Admittedly, the Attorney General’s speech is not the first British invocation of unwilling or unable. In November 2015, David Cameron, then Prime Minister, argued before Parliament that the UK’s action in Syria was justified because “the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq” (as well as making the same assertion, the same week, in a memorandum to the Foreign Affairs Select Committee). However, these statements by the Prime Minister were the first clear articulations of the British acceptance of an unwilling or unable test, and were expressed very specifically in relation to action taken against ISIS in Syria. To my knowledge, the Attorney General’s speech acts as the first unequivocal confirmation that the UK has adopted unwilling or unable in genere. This is not a surprising fact, of course, but – to my mind – it is not a positive one either.

Put simply, and leaving aside policy, like Kevin Jon Heller (and many others) I remain unconvinced that state practice supports an unwilling or unable test in relation to self-defence actions taken against non-state actors (and, by unavoidable extension, the state(s) on/from which they are operating). The question of whether the law should allow for military action in such circumstances is a different matter: one that I will unapologetically sidestep. As the law stands, though, for my money, it does not. Read the rest of this entry…

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What Is An Imminent Armed Attack? A Hopefully Helpful Hypo

Published on January 12, 2017        Author: 
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Yesterday we had the privilege to publish the speech by the UK Attorney General, Jeremy Wright QC MP, setting out some of the UK Government’s views on the law of self-defence. The speech focused in particular on the criteria for assessing the imminence of an armed attack by a non-state actor, and essentially endorsed some of the principles set out in Daniel Bethlehem’s 2012 AJIL article. Thus, the Attorney stated in particular (following a speech by the US State Department Legal Adviser, Brian Egan, at last year’s ASIL meeting) that:

[Bethlehem’] Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

I don’t think the Attorney broke any new ground here, nor do I wish to dispute the accuracy or normative desirability of this analysis. But what struck me most about it is the lack of conceptual clarity, in particular the lack of clear delineation between the concepts of imminence, necessity and proportionality and the legal role that these concepts are playing. (I would highly recommend, in that regard, this piece in the AJIL by Dapo and Thomas Liefländer). For example, what is the work that the idea of imminence does here? Is its main purpose to delineate between permissible anticipatory and prohibited preemptive self-defence, which goes around the Article 51 Charter language ‘if an armed attack occurs‘? Or is imminence an aspect of the broader concept of necessity? And can a word such as imminence encompass non-temporal elements? Conceptual clarity matters because without a common understanding of the words we are using we cannot actually properly debate the soundness or desirability of any given approach. Without it, it is hard to even have a conversation.

So here’s a hypo that I hope might be helpful in this regard. Again, the point of the hypo is not to argue for any particular interpretation of self-defence, whether expansive or restrictive. It is only to help us understand how people use particular words, such as imminence, and for what precise purpose.

Dr. Evil is a very capable terrorist, who has decided to attack the United Kingdom, even though he has never done so before. He manages to get his hands on a mid-range cruise missile with a 150 kt thermonuclear warhead, in perfect working order. He places the missile launching system in a building in a Paris suburb, and uploads a video of himself to YouTube showing him arming a very specific firing mechanism. The missile is aimed at London, and will launch in exactly 30 days; there is no off-switch, code or remote signal that can disarm it. Absent forcible intervention in the causal chain, there is complete certainty that the missile will fire in 30 days and that it will destroy a substantial part of London.

Is this armed attack ‘imminent’ in any legally relevant jus ad bellum sense?

Note that this hypo is specifically designed to eliminate most of the real-world uncertainties about armed attacks – the reliability of the intelligence, the likelihood of the attack, not knowing the exact time, location or scale of the attack. In this hypo, we know everything with absolute certainty. And if you have a problem with the non-state actor nature of the attacker, we can easily turn him into a French state agent. Again, the main point here is that a causal chain has been set in motion which, without some further action, as its certain end has the destruction of London. Does this mean that the attack is ‘imminent’? If so, would it be imminent even if the timer was set to 60 days, 120 days, or 10 years? At what point (if any) is there a switch from an anticipatory to a preemptive scenario? When does imminence end, and necessity begins?

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The UK’s Most Recent Volley on Defensive Force

Published on January 12, 2017        Author: 
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The legal position that Attorney General Wright presented yesterday is similar to the one that the United States has advanced in recent years. Here’s what I take to be the core elements of the UK claim:

  • The use of force is sometimes permissible to defend against an imminent attack. For an attack to be imminent, the threat must actually be operational: “It is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.”
  • The attack’s imminence is part of why defensive force is necessary. But imminence alone does not make it necessary. For defensive force to be necessary, other options for defending against the anticipated attack, including law enforcement options, must be inadequate.
  • Defensive force is permitted against an imminent attack, even if the perpetrators are not state agents. Where non-state actors are involved, the relevant inquiry is whether the attack is being planned in another state that is unable or unwilling to prevent it.

I have three initial reactions to Wright’s speech. First, I applaud him for articulating an official UK position on this area of international law. The United States has, of course, pushed hard to advance novel legal positions to justify its counterterrorism operations. But other states have repeatedly responded to the U.S. claims and practice with silence, at least publicly. That dynamic undercuts the law’s (perceived or actual) relevance. International law can’t adequately serve its functions if states stop using it to engage with one another and communicate their expectations—and to do so even, perhaps especially, when they disagree. So, I would encourage other states to follow Wright’s lead and be more forthright about their own legal positions on the contours of the right to use defensive force.

Second, I think the devil is very much in the details here—in the application of the UK’s position to concrete cases. Read the rest of this entry…

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On Preventive Killing

Published on September 17, 2015        Author: 
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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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UK Government Rejects Pre-emptive Self Defence With Respect to Iran

Published on October 26, 2012        Author: 
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The Guardian reports that the United Kingdom has denied a United States request to use UK military bases in Cyprus as well as in the Atlantic and Indian Oceans for a buildup of military forces in the Gulf. Apparently, the US requests have been made as part of ‘routine’ contingency planning for potential military action against Iran. In rejecting the US requests, British Ministers are reported to have acted on legal advice from the UK Attorney General to the effect that preemptive military action would be unlawful under international law.

According to The Guardian:

‘[British Ministers and Downing Street]have pointed US officials to legal advice drafted by the attorney general’s office and which has been circulated to Downing Street, the Foreign Office and the Ministry of Defence.

It states that providing assistance to forces that could be involved in a pre-emptive strike would be a clear breach of international law on the basis that Iran, which has consistently denied it has plans to develop a nuclear weapon, does not currently represent “a clear and present threat”.

“The UK would be in breach of international law if it facilitated what amounted to a pre-emptive strike on Iran,” said a senior Whitehall source. “It is explicit. The government has been using this to push back against the Americans.”

Sources said the US had yet to make a formal request, and that they did not believe an acceleration towards conflict was imminent or more likely. The discussions so far had been to scope out the British position, they said.’

Read the rest of this entry…

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