magnify
Home Archive for category "Self Defence" (Page 4)

The UK Attorney-General on the Modern Law of Self-Defence

Published on January 11, 2017        Author: 

Later today, the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP will deliver a speech at the International Institute for Strategic Studies, in London, on “The Modern Law of Self-Defence”. The speech will be significant as the advert indicates that the Attorney General will “set out the UK’s position on the application of international law on self-defence, in particular the concept of ‘imminence’ in the context of the ongoing and developing threat that we face from non-state-actor terrorist groups.”

As readers will likely know from the Chilcott Inquiry relating to the war in Iraq, as well as developments regarding the UK’s use of force in Libya and Syria, the UK Attorney-General has the ultimate responsibility for advising the government on the legality, under international law, of the use of force. It has also become standard practice since the war in Iraq for a summary of the Attorney-General’s advice to be presented to Parliament before Parliament votes on whether to authorise the use of force (a vote which is now required by constitutional convention).

I am happy to report that the text of the speech will be posted on this blog as soon as the AG has finished delivery of the speech at 6pm UK time. In addition, over the coming days there will be discussion on EJIL:Talk! of the issues raised by the speech, with a number of contributors weighing on the significance of the points made by the AG.  Read the rest of this entry…

Print Friendly, PDF & Email
 

A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism

Published on July 14, 2016        Author: 

The use of force in self-defence against terrorist groups is one of the most controversial issues in the field of jus contra bellum today. Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action, to use the terms of Article 3g) of the Definition of Aggression (annexed to GA Res 3314 (XXIX)) considered by the ICJ as reflecting customary international law. However, an even more substantial number of States do not seem to subscribe to this broad reading of the right to self-defence. The Non-Aligned Movement, for example, representing some 120 States, has regularly expressed its clear reluctance to adhere to this view. Thus, in February 2016, in an open debate before the UN Security Council on ‘Respect for the principles and purposes of the Charter of the United Nations as a key element for the maintenance of international peace and security’, the Non-Aligned Movement reaffirmed that ‘consistent with the practice of the UN and international law, as pronounced by the ICJ, Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted’ (S/PV.7621, 15 February 2016, at 34).

But what about international lawyers? The reaction on their part has been equivocal. Some have supported a broad interpretation of Article 51 of the UN Charter, focusing on the possibility to invoke self-defence against terrorists. Others argue in favour of a more ‘restrictive’ and classical reading of the Charter. Following this second line of reasoning, a plea against the abusive invocation of self-defence as a response to terrorism has been drafted by a group of scholars (available here). The aim of this post is to (i) explain in what context and how this plea was conceived, and (ii) briefly describe its main characteristics. Read the rest of this entry…

Print Friendly, PDF & Email
 

Belgium’s Article 51 Letter to the Security Council [UPDATED]

Published on June 17, 2016        Author: 

On 7 June, the government of Belgium sent an Article 51 letter to the President of the Security Council, justifying its military action on the territory of Syria against ISIS by way of collective self-defense. The ODS link to the letter is here (S/2016/523), and here is the key paragraph articulating Belgium’s legal position:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. Exercising the right of collective self-defence, Belgium will support the military measures of those States that have been subjected to attacks by ISIL. Those measures are directed against the so-called “Islamic State in Iraq and the Levant” and not against the Syrian Arab Republic.

Interestingly, this paragraph is taken almost word-for-word from the letter Germany had sent to the Council on 10 December 2015, S/2015/946:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.

Note, however, some of the differences: Belgium calls this an exceptional situation, somewhat diplomatically removes the reference to the lack of any need for Syria’s consent, even though that’s implicit in its invocation of Article 51, and adds a sentence saying that measures taken in self-defence are directed at ISIS rather than against Syria (even if Belgian airplanes are flying in Syrian airspace and discharging weaponry on Syrian territory without its consent). Both Germany and Belgium endorse a position whereby action against a non-state actor operating from the territory of another state is permitted without that state’s consent if the state lost effective control over the relevant area – this is very close to, but not necessarily exactly the same thing, as the ‘unwilling and unable’ test.

UPDATE: Many thanks to everyone contributing in the comments. I’d say that perhaps the most valuable lesson to be learned from this discussion is how all of these states are strategically using ambiguity in their various letters to the Council. They know perfectly well that the formulations that they have chosen are open to several possible interpretations, and they were deliberately chosen precisely with that in mind – not simply as a matter of diplomacy, but in order to create legal cover for what they want to do today while keeping their options open for the future. Nothing less could be expected, of course, when we bear in mind that the Council’s ISIS resolution 2249 is itself a masterful example of such a use of ambiguity. But ambiguity of this kind is also obviously detrimental when it comes to solidifying a clear position with regard to self-defence against non-state actors on the basis of state (and UNSC) practice.

In that regard, a kind reader also let me know that Norway has also sent a letter to the Council, dated 3 June, S/2016/513. The three key paragraphs are quoted below the fold – note how simply wonderful Norway is in saying nothing, beyond simply stating that it is exercising the right to collective self-defence without directing its actions against Syria.

Read the rest of this entry…

Print Friendly, PDF & Email
 

UK Parliamentary Inquiry into UK Policy on the Use of Drones for Targeted Killing

Published on December 23, 2015        Author: 

In August this year, the United Kingdom carried out a drone strike in Syria for the purpose of targeting a member of ISIS (see previous discussion on this blog here and here). At the end of October, the Joint Committee on Human Rights of the UK’s Parliament launched an inquiry into the UK government’s policy on the use of drones for targeted killing. Unlike the US, which has published a white paper setting out the legal framework for the US of lethal force against US citizens who are senior members of Al Qaeda, the UK had not previously set out its policy for the use of lethal force in areas outside of active hostilities.  The inquiry by the Joint Committee (joint because its membership is drawn both from the House of Commons and the House of Lords) is not particularly directed at the drone strikes that occurred this past summer but has a more general focus. It is intended to tease out the following issues:

  • clarification of the Government’s policy and its legal basis
  • the decision-making process that precedes the Government’s use of drones for targeted killing, including the safeguards to ensure the sufficiency of evidence
  • accountability for actions taken pursuant to the policy (what independent checks exist before and/or after a strike; should there be independent scrutiny and, if so, who should carry it out?)

The Joint Committee invited the submission of written evidence as part of its inquiry and you can find the evidence submitted to the Committee here. That evidence came from a range of sources, including academics and civil society.  Christof Heyns (the UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions), Lawrence Hill-Cawthorne, Thompson Chengeta and I put in a written submission which is essentially an article that we are writing on “The Right to Life and the International Law Framework Regulating the Use of Armed Drones” – but which starts with a 7 page summary of the article. That article is a much expanded version of the Report that Christof presented to the UN General Assembly on 25 October 2013, (UN Doc, A/68/30532).

UK Memo to the Committee

The UK Government submitted a 4 page memo to the Joint Committee setting out its response to the issues raised by the Committee. That memo sets out very briefly the UK’s policy on the use of lethal force. Much of what is says is very familiar and simply restates the position of the UK government on a number of important issues regarding the use of force: Read the rest of this entry…

Print Friendly, PDF & Email
 
Tags:

Self-defense Operations Against Armed Groups and the Jus in Bello

Published on December 16, 2015        Author: 

The Paris shootings and France’s reaction have once again triggered debate on states’ right to self-defense against attacks by non-state actors (see here, here, or here). Discussions normally focus on jus ad bellum issues, such as the ‘unwilling or unable’ test or when a threat is imminent. A question that receives strikingly little attention is whether the invocation of the right to self-defense against a non-state armed group under jus ad bellum would provide a sufficient legal basis for attacking this group by military means. As Marko Milanovic pointed out on this blog, the lawfulness of strikes against a non-state entity does not only depend on jus ad bellum but also on a second layer of legal examination: does the attack form part of an armed conflict and complies with international humanitarian law, or is the attack in questioned governed by international human rights law and possibly infringes on the targeted person’s right to life? This post examines how the use of military force in self-defense against non-state armed groups may be justified under jus in bello. Read the rest of this entry…

Print Friendly, PDF & Email
 

“Legitimized Self-Defense” – Quo Vadis Security Council?

Published on December 10, 2015        Author: 

I submit that United Nations Security Council (UNSC) resolution 2249 (2015) is – at least de facto – another step towards a reconfiguration of the UN collective security system. The call upon UN members to take “all necessary measures” has to be seen in the context of the self-defense narrative employed by most states forming the “Global Coalition to Counter ISIL” to justify their operations. Irrespective of the resolution’s ambiguity, it is hardly doubtful that it de facto yields a legitimizing effect for this narrative, inevitably endorsing it – even if the term “self-defense” is not mentioned once. Against this background, it seems that the UNSC actually assists in installing self-defense measures as a substitute for collective action under Chapter VII of the UN Charter (UNC). This recalibration of the UNSC’s role in the context of the use of force deserves a second thought. Self-defense is – irrespective of the legality of its invocation in specific cases de lege lata – hardly the right tool to deal with the global and permanent threat of terrorism.

As has already been excellently illustrated by Dapo Akande and Marko Milanovic, the resolution’s main characteristic is its ambiguity (see EJIL talk! Blog). Its vagueness is obviously the result of political necessities and compromise. In my view, however, interpreting the resolution from the perspective of an objective observer, it is clear that the UNSC did not authorize measures based on Art. 39 et seq. of the UNC. It is true that the term “necessary measures” is generally connoted with the authorization of force. It is likewise true that the preamble of the resolution which classifies “terrorism in all forms and manifestations” as “threats to international peace and security” alludes to the wording of Art. 39 UNC. But any “authorizing” tenor is neutralized by the clauses “calls upon” and “in compliance with international law, in particular with the United Nations Charter […].” The UNSC neither authorizes nor decides. It is generally acknowledged that an authorization within Chapter VII of the UNC requires explicit wording – a requirement the resolution (deliberately) does not meet. The call upon the members to “eradicate” ISIL safe havens, however, implies the use of force. Since the UNC establishes a comprehensive ban on the use of force, only self-defense or consent remain as justifications for military operations against ISIL within Iraq and Syria outside of a UNSC authorization.

So to put the resolution’s message in a nutshell: States are called upon to use force against ISIL by exercising their right to self-defense if its prerequisites are given or to urge states hosting ISIL to give their consent to armed operations on their territory if self-defense cannot be invoked. To this extent it could be argued that the resolution says nothing, but merely refers to the law as it stands. Neither does it authorize the use of force nor does it give the self-defense narrative of the “Global Coalition” unequivocal blessing. But this is only true if the context of the resolution is not also taken into account. Read the rest of this entry…

Print Friendly, PDF & Email
 

German Parliament decides to send troops to combat ISIS − based on collective self-defense “in conjunction with” SC Res. 2249

Published on December 8, 2015        Author: 

On 4th December 2015, after a parliamentary debate on 2d December, the German Parliament decided, with 445 positive votes (146 negative votes and seven abstentions), to honour the German’s Government’s formal request (BT Drucksache 18/6866 of 1st Dec. 2015 ) to send up to 1200 troops to combat ISIS. A formal parliamentary decision to deploy military abroad is required by the German Constitution (Basic Law) and a German 2005 law (Parlamentsbeteiligungsgesetz) which codifies prior constitutional case law.

The international legal basis for the deployment decision, as officially claimed by the Government, is “Art. 51 of the UN Charter in conjunction with Art. 42(7) TEU as well as resolutions 2170 (2014), 2199 (2015), 2249 (2015) of the Security Council.” In its request to Parliament, the Government explained that action against IS (by the US, Australia, the UK, and France) “in exercise of collectives self-defence under Art. 51 of the UN Charter is covered by resolution 2249 (2015).” (BT Drs. 18/1866, p. 3). The EU-assistance clause as invoked by France on 13th November, to which all EU member States responded on 17th November with the promise for assistance, has been analysed here by Carolyn Moser. The substance of the IS resolution 2249 has been analysed on EJIL talk! by Marc Weller, by Dapo Akande and Marko Milanovic.

Read the rest of this entry…

Print Friendly, PDF & Email
 

How the Ambiguity of Resolution 2249 Does Its Work

Published on December 3, 2015        Author: 

Yesterday, after 10 hours of debate, the UK Parliament approved the use of UK armed forces against ISIS on the territory of Syria; the German Bundestag also debated the use of force and will vote on the involvement of Germany in the coalition operation tomorrow. I found it particularly interesting to observe how the constructive ambiguity of the Security Council’s resolution 2249 (2015), that Dapo and I extensively addressed in our previous post, was used by the MPs during their debate.

When it comes to the UK Government’s official legal position on the use of force in Syria, they have been very careful not to rely on the resolution as a separate source of authority, but as a (unanimous) reaffirmation of the legal authority they already thought they had. That position is articulated most clearly in this memorandum from the Prime Minister to Parliament’s Foreign Affairs Committee, at pp. 15-17, and the legal bases for the use of force set out there are (1) the collective self-defence of Iraq and (2) the individual self-defence of the UK against ISIS, both pursuant to Article 51 of the Charter. The resolution is used to buttress these two claims, for example with the memorandum stating that: “Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks.”

Similarly, in his statement to the House of Commons on 26 November regarding that memorandum, the Prime Minister stated that:

It is a long-standing constitutional convention that we don’t publish our formal legal advice. But the document I have published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. The right of self‑defence may be exercised individually where it is necessary to the UK’s own defence… …and of course collectively in the defence of our friends and allies. Mr Speaker, the main basis of the global coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. Iraq has a legitimate government, one that we support and help. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria, and their ongoing attack in Iraq… ….and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq – or indeed attacks on us. It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.

And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. We should be clear about what this resolution means and what it says. The whole world came together – including all 5 members of the Security Council – to agree this resolution unanimously. The resolution states that ISIL, and I quote: “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, and again I quote: to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL… …and crucially is says that we should, and again I quote: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”

Note how despite saying that “we should be clear about what this resolution means and what it says” the Prime Minister only proceeds to quote the resolution’s language, without explaining in any way whatsover (let alone clearly so) what it means and what it says. (By the way, isn’t that just wonderful howe he did that?)

Read the rest of this entry…

Print Friendly, PDF & Email
 

Was the Downing of the Russian Jet by Turkey Illegal?

Published on November 26, 2015        Author: 

There has been much talk of improvement of the relationship between Russia and the West following the deadly terrorist attacks in Paris two weeks ago. Whatever gains have been made on that front will risk being reversed following Tuesday’s incident involving the Russian and Turkish air forces. Although the exact facts are—and likely will remain—disputed, the essence of the incident is known: a Russian fighter jet was shot down in the morning of 24 November by the Turkish military near the Turkish-Syrian border. This post weighs the international law considerations raised by the incident and suggests that on the basis of the available facts, the question from the title should likely be answered in affirmative.

The Russian SU-24 jet was in the region as part of the recent military offensive conducted by the Russian forces with the consent of the government of Syria against a number of armed groups on the Syrian territory, including the notorious Islamic State. The central contested fact is, of course, whether the aircraft had crossed over the border into the Turkish airspace. The Turkish prime minister Ahmet Davutoğlu emphatically claimed that it had; the Russian president Vladimir Putin denied it in equally strong words. An unnamed US official was reported as having said ‘that the Russian incursion into Turkish airspace lasted a matter of seconds’. Later, a Turkish letter addressed to the President of the Security Council (and duly leaked online) stated the incursion had lasted for exactly 17 seconds.

The legal analysis under international law is reasonably clear if the Russian version of the events is taken as factually accurate. The shooting down of another State’s military aircraft amounts to a use of force against that State. The recognized exceptions of the use of force in self-defence and under the authorization of the Security Council being inapplicable on the facts, the destruction of the jet would be caught by the general prohibition on the use of force under Article 2(4) of the UN Charter and thus unlawful.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups

Published on November 25, 2015        Author: 

On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.

Mixed Message

This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.

The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.

But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).

Effect of non-binding Resolutions

That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.

This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. Read the rest of this entry…

Print Friendly, PDF & Email