In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. Read the rest of this entry…
Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations
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…
Operation Olive Branch
On 20th January 2018, the Turkish military started to attack the Kurdish-populated region of Afrin in Syria (“Operation Olive Branch“). With its letter to the Security Council of 22nd January 2018, Turkey justified this action as self-defence in terms of Art. 51 UN Charter. The relevant passage of the letter is: “[T]he threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.” (UN Doc. S/2018/53; emphasis added). Two elements are troublesome in this official Turkish justification.
Non-state armed attacks?
First, it is controversial whether armed attacks of the YPG, a non-state actor, suffice to trigger self-defence in terms of Article 51 UN Charter and underlying customary law. The current law (both Charter-based and treaty-based) is in flux, and still seems to demand some attribution to the state from which the attacks originate. (See for a collection of diverse scholarly opinion, ranging from “restrictivists” to “expansionists”: Anne Peters, Christian Marxsen (eds), “Self-Defence Against Non-State Actors: Impulses from the Max Planck Trialogues on the Law of Peace and War”, Heidelberg Journal of International Law 77 (2017), 1-93; SSRN-version in Max Planck Research Papers 2017-17).
On 11 April 2017, the Australian Attorney-General, Senator the Hon. George Brandis QC, delivered a public lecture on “The Right of Self-Defence Against Imminent Armed Attack In International Law”, at the T C Beirne School of Law, University of Queensland. The text of the speech has just become available and is posted below. This talk follows on from an earlier talk given by the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP on “The Modern Law of Self-Defence,” which was also posted on in EJIL: Talk!
Thank you very much indeed, Sarah. Might I also begin by acknowledging the traditional custodians of the land on which we meet, the Turrubul peoples, and by acknowledging you, Professor Derrington, in your role as Dean, T C Beirne School of Law. Members of the Faculty of this Law School, of other faculties of the University of Queensland and the faculties of other law schools who I gather have come here this evening. We are honoured by the distinguished presence among us this evening of Justice Edelman of the High Court, and of Justices Greenwood, Logan and Derrington of the Federal Court, and Dr Christopher Ward SC, the Australian President of the International Law Association. Other distinguished guests, ladies and gentlemen.
It is a great pleasure to return tonight to my old law school, be it not physically within the law school precincts. May I congratulate the Dean, Professor Derrington, and the members of the faculty, on all that they have done to propel UQ into the front rank of Australian law schools. I note that the 2017 QS ranking places this law school among the top 50 in the world – a distinction enjoyed by no other law school in Queensland and by only six others in Australia. No doubt your new policy of limiting the undergraduate intake to fewer than 200, which means that new entrants are likely to come only from a cohort students who achieve an OP 1, will reinforce its position as one of Australia’s elite law schools. And that intellectual excellence has recently been complemented by a physical manifestation: the very handsome new Law Library and facilities which were opened only last month by Chief Justice Kiefel.
As a student, tutor and lecturer, my association with this law school spanned more than 15 years, from 1975 to 1991, so it is more than 25 years ago that I last gave a lecture here. That was when, for some eight years, while in my early days at the Bar, I taught a unit of the Jurisprudence course called “Recent Developments in the Theory of Justice”. My focus was primarily on John Rawls, as well as such other scholars as Robert Nozick, Ronald Dworkin and Bruce Ackerman. Read the rest of this entry…
United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?
A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?
The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…
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…
Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.
As the abstract of the article sets out:
This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, Read the rest of this entry…
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…
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…
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?