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Home Archive for category "Self Defence" (Page 7)

Is it the right time to reconsider jus ad bellum proportionality?: a response to Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum”

Published on April 18, 2013        Author: 

 Dr Gina Heathcote is a lecturer at SOAS, University of London

I shall begin by answering the question posed in my title in the negative.  The very technical and detailed discussion of the scope of jus ad bellum self-defence, as is found in David Kretzmer’s article, plays down the contemporary spaces where the Charter is being re-imagined by States. The post-millennium era has been characterised by state practice that seems to conveniently forget the constraints of the Charter structure, in particular the importance of Articles 2(3) and 2(4) of the Charter, in favour of unilateral force. In returning to the scope and permission embedded in the principle of proportionality, Kretzmer acknowledges but neatly avoids contemporary debates on the use of force in humanitarian crisis and the use of targeted strikes through identification but little analysis of the rhetoric, practice and confusion of the vast literature that has characterised post-millennium debates on jus ad bellum. This is an unfortunate consequence of Kretzmer narrowing in on, first, a component of the use of force (self-defence) and, second, to a specific aspect of that component (proportionality). This avoids looking, seeing or acknowledging the harm – the deaths – caused by targeted strikes and the consequences of both collective and unilateral interventions justified on humanitarian grounds, allowing international lawyers to retell stories of technical legal knowledge that are far removed from ‘what we talk about when we talk about war’ (see B.Stark ‘What We Talk about When we Talk about War’, 32 Stanford Journal of International Law (1996) 91). Read the rest of this entry…

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Comments on David Kretzmer’s “The inherent right to self-defence and proportionality in jus ad bellum

Published on April 17, 2013        Author: 

Dr Noam Lubell, Reader, School of Law, University of Essex

I’ve been asked to begin the discussion of Professor David Kretzmer’s new article on proportionality. Having benefitted from David’s wisdom in the past 20 years both academically and in my previous NGO life, I am not surprised to once again have thoroughly enjoyed reading his work. In particular I’m thankful to have been asked to take part in this discussion, as his latest article contains many thought-provoking points, of which we will probably only begin to scratch the surface (I urge you to read the article itself!). Considering the limited space in a discussion of this kind, I’m going to focus on just a few points related to two issues that arise a number of times in the article. Read the rest of this entry…

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A Few Brief Thoughts on the DoJ White Paper

Published on February 7, 2013        Author: 

The recently leaked US Department of Justice White Paper on targeted killings has now been thoroughly dissected in the blogosphere (see, in particular, Kevin Heller’s and Deborah Perlstein’s comments on Opinio Juris here, here, and here, as well as Steve Vladeck’s take on Lawfare). I have little to add to this – in part because, as Ben Wittes and Susan Hennessay point out, there is actually fairly little new in this memo when you compare it to the various speeches on drones given by Obama administration officials. The substantive arguments or positions are essentially the same.

Where the White Paper is different, however, is in its format and size. It is not the ‘real’ legal memorandum prepared by the Office of Legal Council in the DoJ, which it allegedly summarizes to an extent, but neither is it a mere speech. It is written in legalese, it has footnotes and citations, it has the form of a legal document even if perhaps not all of its trappings. I must say that I really do not understand the administration’s reluctance to release the OLC memo itself, with redactions for any classified materials, and the need to produce this kind of quasi-summary. Nobody’s really happy with that (I won’t even get into a rather unflattering comparison with the policies of the Bush administration on similar matters), and there doesn’t seem to be any real benefit to such a strategy of creeping disclosure (indeed, leakage). The administration has now announced that it will disclose the memo to Congressional intelligence committees, but whether a redacted version will be made public is yet to be clear.

The White Paper is thus what we’ve got so far. And if we judge it on its own merits it doesn’t come accross well, for reasons given mostly be Kevin and Steve. Here’s a few additional points.

Read the rest of this entry…

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French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation

Published on January 25, 2013        Author: 

In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.

 Consent of the Malian Authorities

The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.

This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together. Such a military intervention could however constitute a violation of the principles of non-intervention and non-interference in domestic affairs and the principle of self-determination of peoples. The resolutions adopted within the UN General Assembly and State practice in this field confirm this conclusion which was also shared by authors such as M. Bennouna, L. Doswald-Beck or by the Institute of International Law in its 1975 Wiesbaden Resolution on The Principle of Non-Intervention in Civil Wars (esp. art. 2) or the 2011 Rhodes Resolution on Military Assistance on Request. ” Read the rest of this entry…

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French Military Intervention in Mali: It’s Legal but… Why? Part I

Published on January 24, 2013        Author: 

Part 1: The Argument of Collective Self-Defense

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE) and chairman of the ESIL Interest Group on Peace and Security.

Dr. Karine Bannelier is Assistant Professor of International Law at the University Grenoble-Alpes (France). She is Director of the Master’s Degree in International Security and Defense.

One week after France launched its military intervention (“Operation Serval”) in Mali, there seems to be a general consensus concerning the legality of this intervention. Indeed, as the French Minister of Foreign Affairs Laurent Fabius rightly emphasized, France has not received a single protest concerning this intervention. On the contrary, the number of expressions of support is overwhelming: many individual States, regional organizations (including ECOWAS), the UN Secretary General and the members of the UN Security Council themselves have expressed their support and understanding. Even the rare States who expressed their opposition to this intervention did not challenge its legality. This contrasts with various military interventions in the past which were met with strong criticism and seems to indicate that no State doubts the legality of the French intervention in Mali.

But what is the precise legal basis authorizing it?

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: 

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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Syrian and Turkish Military Activities and International Law

Published on October 11, 2012        Author: 

Dr. Başak Çali, Senior Lecturer in Human Rights and International Law, Department of Political Science, University College London

A shell fired from Syria into the back garden of 38 year old Zeliha Timuçin, in the  town of Akçakale, Turkey on 3 October 2012 killed her, her 3 children and her sister in law. The Turkish military retaliated by firing artillery salvos against Syrian targets over 3 days. This raises important, but, thus far, largely unaddressed, legal questions about what international law is applicable to both the shelling by Syria, and, crucially, Turkey’s response. The identification of applicable international law, in turn, has important consequences for the attribution of responsibility for the killing of these five civilians.

The line taken by the Turkish government immediately after its retaliatory attacks on Syria on 3 October 2012 was that its actions were ‘in accordance with international law and the rules of engagement of the Turkish Armed forces’. No clarification about what body of international law was forthcoming. Given that Turkey used military force, it could only be referring to the right to self-defence under Article 51 of the UN Charter and customary international law. Taking it further, and assuming there was an armed conflict between Turkey and Syria within the sense of Common Article 2 of the 1949 Geneva Conventions, principles of proportionality and military necessity with regard to targeting decisions under international humanitarian law would also apply.  The reference to these two bodies of law assumes that events have indeed triggered their applicability. In reality, this is far from clear.

Has there been an armed attack against Turkey within the framework of Article 51 of the UN Charter?

The reaction of the NATO at its emergency session in Brussels on 3 October 2012  qualified the shelling as an “aggressive act against an ally” – thus supporting the view that Turkey was acting in self-defense under the ius ad bellum. Read the rest of this entry…

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Surface to Air Missiles to be Deployed at the Olympics: One More Step to Dystopia?

Published on May 11, 2012        Author: 

It was recently announced that the security measures for this year’s London Olympics will include the deployment of surface to air missiles in the vicinity of the various Olympic venues. Oddly, there has been very little discussion of the implications that these security measures might have for civil liberties or human rights. Unlike the games themselves, these legal issues are important in the wider scheme of things.

Call me cynical, or at least bitter and twisted, if you like.   I simply have never seen the point of the Olympic Games, unless one sees it as a continuation of politics through sport (which we now have to assume includes synchronised swimming, (see this YouTube clip), or as a nice little revenue stream for construction companies, fund-raisers, and those successful in their chosen sport, or as a laboratory for the development of new undetectable drugs.  With few exceptions, for instance Bannister’s achievement in breaking the four-minute mile, who remembers a world-record-breaking performance once it has itself been broken?  This is an investment in ephemera, and the substitution of chauvinistic public emotion for reason and decorum.

So I, for one, am dreading the descent of the Olympics on London later this summer.  I shall not be waving flags or cheering the athletes on, and that is not simply because there is no Scottish team.  It is bad enough that I cannot look out my office window without seeing the “count-down to the games” revolving around the top of what used to be called the Post Office Tower.  It is a constant reminder of dread.  A dread which has been increased by the press reports of the enhanced security measures currently being proposed—in particular, the deployment of surface–to–air missiles which some reports claim can down a 747 (see here and here).

Perky army types in uniform have stressed that any decision to use missiles against a threat from the air will be taken not by them on the ground, but rather at the highest levels of government.  Security analysts are, of course, claiming that the aim of these draconian measures is to reassure the public and deter potential air attacks.

Oh really?  Even if we assume that the current crop of senior UK politicians might be able to make a sensible decision under extreme pressure, I am not at all reassured by the thought that they might entertain the possibility of shooting down planes over central London.  And all the publicity that has been given to these extreme security measures might simply give rise to the new unofficial Olympic sport of outwitting security in a spectacular manner.  And it too will be televised.  Rather than being a deterrent, this might be seen as a challenge—and if an aerial threat were to be posed by, say, a drone, or those intent on a suicide attack, how could these measures deter in the first place?  Leaving unmanned aircraft to one side, the question that I have not yet seen discussed is the threat that these measures pose to civil liberties and human rights.  Are these, once again, to be swept aside without comment by alleged considerations of “security”?  Is this, once again, politicians goading the public into mute acceptance and aquiescent complicity by ratcheting up a climate of fear?  Is this just one more step to dystopia?

I must admit that I am surprised that lawyers have been silent because we have been here before.  Read the rest of this entry…

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Briefly Noted: New Report on Somali Piracy

Published on January 12, 2012        Author: 

The House of Commons Foreign Affairs Committee released its report on Somali piracy on 5 January 2012.* I acted as a specialist advisor to the committee, so I will not offer a full analysis but simply highlight some points of interest:

  • the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
  • indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
  • the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
  • the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
  • the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
  • the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
  • the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
  • also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
  • finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

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Kenya Invades Somalia Invoking the Right of Self-Defence

Published on October 18, 2011        Author: 

Vidan Hadzi-Vidanovic is a doctoral candidate at the University of Nottingham School of Law.

At a press conference held in Nairobi on 15 October 2011, the Kenyan ministers of defence and interior announced that Kenyan security forces will engage in military operations against the Al-Shabaab militants in Somali territory. They invoked Article 51 of the UN Charter as a legal basis for these actions and pledged that all measures taken in the exercise of the right of self-defence will be reported to the Security Council. Additionally, they invoked the right to hot pursuit, although it is not clear whether it was regarded as a part of the right to self-defence or as a self-standing right. The announcement comes after a number of incidents which involved the incursions of Al-Shabaab elements as deep as 120km inside Kenyan territory, and abductions of several foreign nationals.

At the time of the writing of this post, reports indicate that the border between Kenya and Somalia has been closed and that Kenyan troops are gathering in the border area, preparing to invade Somali territory. It has also been reported that Kenyan troops have already entered 100km deep into Somali territory by Monday evening seizing two Al-Shabaab controlled towns. The Somali representative at the UN suggested that the Transitional Federal Government (TFG) would see the incursion as a violation of Somali sovereignty while expressing some understanding for the Kenyan legitimate concerns.

Some Problems with the Kenyan Invocation of the Right to Self-Defence

According to Article 51, every state has an inherent right to defend itself by employing military means if it has been subjected to an armed attack. The traditional view—which still has a significant support—is that an armed attack must be attributable to a state.

Read the rest of this entry…

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