Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.
The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?
If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”
Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in. Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam. Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement. Read the rest of this entry…
Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.
There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report. Read the rest of this entry…
The recent “NotPetya” cyber-operation illustrates the complexity of applying international law to factually ambiguous cyber scenarios. Manifestations of NotPetya began to surface on 27 June when a major Ukrainian bank reported a sustained operation against its network. The Ukrainian Minister of Infrastructure soon announced ‘an ongoing and massive attack everywhere’. By the following day, NotPetya’s impact was global, affecting, inter alia, government agencies, shipping companies, power providers, and healthcare providers. However, there are no reports of NotPetya causing deaths or injuries.
Cybersecurity experts have concluded that despite being initially characterized as a ransomware attack similar to WannaCry and Petya, NotPetya was directed at specific systems with a purpose of ‘causing economic losses, sowing chaos, or perhaps testing attack capabilities or showing own power’. Additionally, most agree that Ukraine was the target of the operation, which bled over into other States. The key question, however, is the identity of the attacker. NATO Cooperative Cyber Defence Centre of Excellence experts have opined that ‘NotPetya was probably launched by a state actor or a non-state actor with support or approval from a state.’
Although the facts are less than definitively established, the EJIL: Talk! editors have asked us to analyse the incident on the assumption that it is factually and legally attributable to a State. We begin with a peacetime international law survey and conclude with an international humanitarian law (IHL) analysis. Read the rest of this entry…
On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.
According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Read the rest of this entry…
The US missile strikes on Syria have, inter alia, revived the debates on humanitarian intervention, the argument of ‘illegal but legitimate’ and more generally on the exceptions to the prohibition of the use of force. For some examples see here, here and here. Some contributors have pointed out that the US did not even try to bring this action within the ambit of the Charter rules on the use of force, and that the absence of Charter-based arguments may even be a good thing as it preserves the strength of Article 2(4). Others have cautioned that the strength of the rules on the use of force might nevertheless be undermined, as singular ‘exceptional’ cases result in a pattern.
This post argues that, analogous to the concept of defences in municipal legal systems, international law on the use of force should adopt a systematic distinction between justifications and excuses. As responses to the US missile attack in Syria demonstrate, the two concepts are conflated. The result is that legality is often assessed on the basis of excuses. If the trend of conflation continues, the controversial doctrine of ‘illegal but legitimate’ will move toward an even more controversial doctrine of ‘legal because it is legitimate’.
Justifications are legally-warranted exceptions to the general prohibition. As such, they are a way out of illegality. Excuses, on the other hand, are not a way out of illegality, but act as mitigating circumstances that preclude responsibility for an otherwise illegal conduct. Under some circumstances, breaching the law may indeed be the choice of a lesser evil. As noted by Vaughan Lowe in his 1999 EJIL article, a legal system may wish to provide a defence for emergency drivers who breach the speed limit on the way to hospital. There are two ways of achieving this goal. One way is to give them an explicit authorization to breach the speed limit. The other one, however, does not authorize speeding, but rather ensures that emergency drivers are not prosecuted upon such a breach of traffic rules. The first (justification) relaxes the norm itself and may well result in wider disobeying of the speed limit than the second, which merely provides for a carefully weighed excuse of culpability where the norm was doubtlessly breached. In other words, it is better if the general norm is strong and ‘catches’ more violators whose excuses are then considered on a case-by-case basis. I elaborate on these issues in more details in this 2015 concept paper. In the present context, might the ‘emergency driver logic’ apply to the US strike in Syria? Even if it did, it would not make this action legal. Possibly, the US could only escape responsibility for this internationally wrongful act. Read the rest of this entry…
Testing Jackson’s Discussion of State Responsibility in the Context of Government Assistance. Book Discussion
Criticisms of western governments for aiding and assisting other states to act in breach of international law are now common. While such criticisms may sometimes be as much to do with the policy of the thing, there is also increasing focus on the law. The ongoing judicial review in the English courts regarding the provision of arms and military equipment to Saudi Arabia in the context of the conflict in the Yemen (The Queen on the application of Campaign against the Arms Trade v. The Secretary of State for International Trade) illustrates the possibility of litigation on the issue in domestic courts. Miles Jackson’s book on ‘complicity’ gives an introduction and a foundation for thinking about this highly topical subject, in the context both of international criminal law and of state responsibility, and adds to the growing literature. This brief note considers, in the context of state responsibility, whether the book is also of use to the practitioner – whether government adviser, non-governmental organisation, or advocate – who has to apply the law before or after the event.
Jackson’s discussion of state responsibility can be tested in the context of three examples of government assistance; the choice of examples here is unashamedly UK-centric, but instances can be found in many other countries. The first is the provision to other governments of arms and other materiél in a conflict to which the assisting government is not a party and where the assisted government is alleged to be in breach of international humanitarian law in the conduct of the conflict. The second example stems from allowing other governments the use of airfields and military bases on the assisting government’s territory. Here there may be allegations of breaches of ius ad bellum by an assisted state which uses a loaned base to launch an armed conflict, or of human rights abuses such as unlawful rendition of individuals from the base. The third example is the provision of financial and practical aid to improve another state’s justice or human rights sectors. In such a case the relevant sectors of the assisted government are unlikely to have a good record: is it lawful to assist them to improve, or will the aid make the assisting state complicit? Read the rest of this entry…
A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”
It is a great pleasure to contribute to this mini-symposium on Miles Jackson’s monograph on the notion of complicity in international law. The book is a further testament to the growing importance of questions of ‘shared responsibility’ in international law, ie the harmful cooperation of several actors.
In his elegantly written book, Miles Jackson makes several important contributions. In particular, he has brought a comparative approach to questions of complicity in international law. Whereas most existing books on complicity focus either on state responsibility or international criminal law, Jackson aims to transcend this boundary and develop an overarching framework for complicity in international law. While Jackson is of course mindful of the structural differences between the two areas, his comparative approach nonetheless calls for some further discussion.
A second most original aspect of the book is its move beyond an inter-state focus in its treatment of state complicity. Jackson analyses if and to what extent international law imposes state responsibility for complicity with non-state actors. In this latter regard, he convincingly argues against an approach based on attribution. Read the rest of this entry…
The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.
While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:
this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.
Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?
In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.
Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…
In December 2016, after repeated denials, Ahmed Asiri, a spokesman for the Saudi-led coalition fighting in Yemen, said: ‘It has become apparent that there was limited use by the coalition of the UK-manufactured BL755 cluster munition in Yemen’. This admission opened up questions about the United Kingdom’s potential responsibility for the use of cluster munitions by the Kingdom of Saudi Arabia. Britain’s Defence Secretary Michael Fallon informed the Commons that the munitions used by Saudi Arabia had been delivered in the 1980s, well in advance of the entry into force for the United Kingdom of the Convention on Cluster Munitions (‘the Convention’) on 1 November 2010. The treaty was implemented through the Cluster Munitions (Prohibitions) Act 2010 (‘the Act’).
A judicial review of the granting of export licences to Saudi Arabia is currently taking place in the English High Court, following an application by the Campaign Against the Arms Trade (see here). The application focuses on export licences for weapons in general, and follows allegations of violations of international humanitarian law by Saudi Arabia, including, but not limited, its use of cluster munitions.
In this post, I focus on the specific responsibility of the UK arising under the Convention on Cluster Munitions for the use by Saudi Arabia of UK-provided aircraft, and support by British personnel.
The post addresses three issues: first, whether issuing export licences for aircraft to Saudi Arabia can be construed as a breach of Article 1(c) of the Convention; second, whether the exception on interoperability in Article 21 of the Convention covers the acts by the UK in respect to the use of cluster munitions by Saudi Arabia; and third, whether the UK’s responsibility could also arise also under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (‘the 2001 Articles’). Read the rest of this entry…