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The Israeli Strikes on Iranian Forces in Syria: a case study on the use of force in defence of annexed territories

Published on June 8, 2018        Author: 
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Factual Background and Legal Issue

The extensive air strikes launched by Israel on Iranian forces and assets across Syria in the early morning of 10 May 2018 present a complex case study which deserves proper legal scrutiny. According to the reconstruction given by the Israel Defence Forces (IDF), the strikes were decided in retaliation for a rocket barrage fired some hours earlier from Syrian territory on IDF forward outposts in the Israeli-controlled Golan. Despite denials by Iranian officials of any direct involvement of their military in Syria, the rockets were immediately attributed by the IDF to the Quds Force, the special unit of the Iranian Revolutionary Guards in charge of extraterritorial operations.

Reacting to the alleged Iranian attack and to Syria and Iran’s condemnation of Israel’s response as an act of aggression against Syria, the governments of the United States, the United Kingdom and Germany explicitly referred to Israel’s right to act in self-defence against Iran. The same Israeli Prime Minister Netanyahu, before the operation could take place, had invoked ‘Israel’s obligation and right to defend itself against Iranian aggression from Syrian territory’. This claim, although phrased in legal terms, was not formalised in an Article 51 letter filed with the UN Security Council, which should include a justification for the use of force against both Syria (whose territorial integrity was violated) and Iran (whose forces and facilities were targeted). A self-defence argument however would raise in the present case a legal issue related to the status of the territory attacked: the Golan Heights, occupied by Israel after the Six-Day War in 1967 and annexed in 1981. Can an annexing state invoke Article 51 UN Charter to justify the use of force in self-defence against an armed attack directed exclusively at a territory that it annexed? This post submits that the answer to this question, which appears unsettled and largely unexplored, cannot overlook the situation of manifest illegality that a self-defence argument would purport to preserve and protract. Read the rest of this entry…

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Pigs, Positivism, and the Jus ad Bellum

Published on April 27, 2018        Author: 
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Now that the dust from the U.S.–U.K.–French operation against Syria has settled, I want to follow up on something I said when news of it first broke. Like most commentators, I argued that the operation did not satisfy the formal legal doctrine on the use of force. By this I meant that it was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not justifiable under any of the recognized exceptions. Yet I also contended that the doctrine was not the end of the legal inquiry. Given how the jus ad bellum actually operates, I argued, “the best answer to the question of whether the Syria strikes were lawful is not a simple ‘yes’ or ‘no.’”

Many international lawyers took issue with that claim, so I want to defend it—and use it to expose what I consider to be a fairly fundamental flaw in how the jus ad bellum is usually analyzed. To do this, I’ll take a detour through one of my all-time favorite law review articles: Hendrik Hartog’s Pigs and Positivism.

Pigs and Positivism

Hartog’s article is not about international law. It uses the 19th century practice of keeping pigs in New York City as a case study for thinking about law and legal analysis. Here is the background: pigs were once an ordinary and integral part of life in New York City. People ate the pigs, and the pigs ate the waste that lined city streets. But pigs were “mean, dangerous, and uncontrollable beasts” (p. 902). In 1819, after various efforts to legislate against them had failed, a court determined, in a case called People v. Harriett, that loose pigs in public streets were a public nuisance and, for that reason, prohibited. The decision established that “[t]o keep pigs on municipal streets was to commit a crime” (p. 920). Read the rest of this entry…

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Prosecuting ‘The Beatles’ before the ICC: A Gateway for the Opening of an Investigation in Syria?

Published on April 19, 2018        Author: 
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Calls have been mounting for Alexanda Kotey and El Shafee Elsheikh, two fighters captured by the Syrian Kurds, to be tried in the UK, the US, or at the International Criminal Court (ICC) in The Hague. Kotey and Elsheikh were part of a group of four Islamic State militants known as ‘the Beatles’ (because of their British accents). Although not particularly high ranking within ISIS, the Beatles are infamous for their role in the imprisonment, torture and killing of Western hostages. There is reason to believe that they are responsible for war crimes and crimes against humanity. 

The purpose of this post is to examine the feasibility and propriety of bringing the Beatles before the ICC for trial. Kotey and Elsheikh have been stripped of their British citizenship so as to stop them from re-entering the UK. The UK defence minister, Tobias Ellwood, is however arguing that Kotey and Elsheikh should be tried by the ICC. Kotey himself affirmed that a trial at the ICC ‘would be the logical solution.’ As of now, the Syrian Kurds do not seem to have received a request for the surrender of the two fighters to the Court.

The Temporal Scope of the ICC’s Personal Jurisdiction Read the rest of this entry…

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The Syria Strikes: Still Clearly Illegal

Published on April 15, 2018        Author: 
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The strikes conducted this week against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law.

Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Their leaders spoke of the imperative need to avoid normalizing the use of chemical weapons; President Trump stated that the purpose of the strikes ‘is to establish a strong deterrent against the production, spread, and use of chemical weapons;’ Prime Minister May said that there was ‘no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime;’ President Macron spoke of the operation being directed solely against the clandestine chemical arsenal of the Syrian regime.

The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. As the ICJ has explained in Nicaragua, para. 207, it is for states to articulate their own legal views, and it is on the basis of these views that other states can react, perhaps towards the creation of a novel rule or exception to an existing rule. In the absence of such a position, however, the approval of the strikes or lack of condemnation by third states has no bearing on the formation of customary international law, or on the evolving interpretation of the Charter. This is the barest minimum of formality required in a legal system, even a flexible one. This is not, as Monica argues in her post, a ‘simplistic’ position lacking in nuance – even if it is conceptually simple, and should be conceptually simple. This is the only dividing line we can have between law and politics, between legal and political arguments.

Read the rest of this entry…

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Filed under: EJIL Analysis, Syria, Use of Force
 

The Attack on Syria and the Contemporary Jus ad Bellum

Published on April 15, 2018        Author: 
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The United States, Britain, and France have attacked various chemical weapons facilities in Syria. Even before they acted, a number of commentators claimed that any such attack would be internationally unlawful. Below, I explain why that claim is too simplistic and how we should situate the operation in the jus ad bellum going forward. Let me say at the outset that I don’t support this operation and have serious doubts about the capacity of the United States, in particular, to implement a coherent policy in Syria. (I also think the operation violates U.S. law.) So, I’m not arguing that the operation was a good idea or even that it should be lawful. I’m making an analytic argument about how the jus ad bellum works.

The April 2017 Incident

This was not the first attack against Syria for its use of chemical weapons. In April 2017, the United States struck Syria for the same asserted reason: as a reprisal for the regime’s use of chemical weapons in violation of international law. At the time, most commentators said that the U.S. operation was unlawful. It was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by the Charter exceptions. Assad didn’t consent to the operation, the Security Council hadn’t authorized it, and it wasn’t taken in self-defense.

There is an ongoing debate about whether the jus ad bellum contains another exception for humanitarian interventions. The dominant view is that it does not. States (as a group) have periodically condoned unilateral operations that can be labeled “humanitarian,” but the vast majority of them have declined to support a generally applicable humanitarian exception to 2(4). They have instead insisted that no such exception exists. Further, even if there were one, its application to the 2017 operation would have been dubious. The operation looked more like a reprisal than like what we usually mean by a “humanitarian intervention.” President Trump said that it was designed “to prevent and deter the spread and use of deadly chemical weapons,” not to avert the many other atrocities that were being committed in Syria. Forcible reprisals are by almost all accounts unlawful. Read the rest of this entry…

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Filed under: Syria, Use of Force
 

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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Turkey’s Military Operations in Syria

Published on February 20, 2018        Author: 
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Turkish Armed Forces (TAF) carried out ‘Operation Euphrates Shield’ for 216 days from August 2016 to March 2017 in the triangle between Azaz, Jarablus and al-Bab in northern Syria. Thanks to this military operation, Turkey cleared Daesh from the region and halted the risk of the PYD/YPG exercising control of the Syrian side of the shared 911km border by wedging itself between two PYD/YPG controlled areas. In addition, some displaced Syrians voluntarily returned to this region from Turkey, which currently hosts around 3.5 million Syrian refugees — more than any other country.

In line with this previous operation, the TAF launched ‘Operation Olive Branch’ on 20 January 2018 in Afrin, which has been controlled by the YPG. In its letter to the UN Security Council (UN Doc. S/2018/53), Turkey justified this operation on the basis of self-defence and various Security Council resolutions calling on Member States to fight terrorism. 

Since the indicated UN Security Council resolutions do not explicitly authorize the cross-border use of force, Turkey’s reliance on it as a justification of its extraterritorial military operation is unacceptable in international law. As far as I see in legal discussions, there is no dispute over this. However, the question of whether Operation Olive Branch can be justified on the basis of self-defence has brought with it some controversy.

Armed attack

According to both Article 51 of the UN Charter and related customary international law, occurrence of an ‘armed attack’ is required for the activation of the inherent right of self-defence. The ICJ identified ‘scale and effects’ as the criteria that ‘distinguish the most grave forms of the use force (those constituting an armed attack) from other less grave forms,’ but has not specified indicators of these criteria (Nicaragua judgment, 1986, para. 191). It should be noted that the scale and effects criteria have nothing to do with numbers. Rather, it is a legal assessment depending on facts and circumstances at hand. Read the rest of this entry…

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The Turkish Operation in Afrin (Syria) and the Silence of the Lambs

Published on January 30, 2018        Author: 
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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).

The ICJ case-law has not fully settled the question (see for state-centred statements: ICJ, Oil platforms 2003, paras. 51 and 61; ICJ Wall opinion 2004, para. 139). Read the rest of this entry…

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Macron’s Threat of Reprisals and the Jus ad Bellum

Published on June 2, 2017        Author: 
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A few days ago, French President Macron reportedly said that the use of chemical weapons in Syria would cross a “red line” for France and result in reprisals. Macron’s statement comes less than two months after the United States conducted airstrikes against Syria for its use of chemical weapons. The vast majority of states that spoke about the U.S. operation supported or were non-committal about it. Very few states condemned it as unlawful. By contrast, most commentators contended that the operation was unlawful. (See the blog posts collected here.) The operation was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by either of the Charter exceptions. Moreover, though there is an ongoing debate about whether the jus ad bellum contains a third exception for humanitarian interventions, the majority view is that it does not. The reason for this view is that, even when states (as a group) appear to condone particular operations that might be characterized as unilateral humanitarian interventions, states decline to articulate the opinio juris that is necessary to establish a new, generally applicable exception to Article 2(4). And in any event, the U.S. operation in April seemed more like a reprisal than like a humanitarian intervention.

So, what should we make of Macron’s statement? When news of it broke, I tweeted this comment:

Several people objected to my tweet. I am continuing the conversation here because I thought it might be of interest to a broader audience, and because its implications go far beyond Macron’s statement. It has to do with how we understand and assess the jus ad bellum. Read the rest of this entry…

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EJIL Talk! Book Discussion: L’acte déclencheur d’un conflit armé international – Introductory Post

Published on May 30, 2017        Author: 
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This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

During the night of Thursday April 6 and Friday April 7 2017, the United States carried out airstrikes on a Syrian military base that had allegedly been used by the Syrian authorities to launch a chemical attack against its own population. As those airstrikes were, to the best of my knowledge, the first ones conducted by the United States that directly and deliberately targeted Syrian positions in Syria, the question that arose for many scholars, humanitarian actors and members of the military was the following: are the United States and Syria in an international armed conflict (IAC)? Or were they already engaged in such a conflict since the United States had been using force on the territory of Syria against the Islamic State since 2014? If there was no previous IAC between the United States and Syria on April 6, did those attacks add an IAC to the preexisting non-international armed conflict (NIAC) between the United States and the Islamic State? Did they transform (‘internationalize’) this preexisting NIAC into a IAC? Or should the attacks of April 6 and 7 fall outside the scope of international humanitarian law (IHL)?

Answering these questions, and more generally classifying hostilities, is crucial in international law. Indeed, rules applicable to an IAC – including the Geneva Conventions (GC), the first Additional Protocol (AP I), other treaties and provisions of international (and national) law and rules of customary law – create a legal framework significantly different from the one applicable in a NIAC or in the absence of a conflict. L’acte déclencheur d’un conflit armé international explores what act or acts might trigger an IAC. It uses Article 2 common to the GC as its starting point since this provision states that each of the four GC:

“shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”.

The notion of IAC being the main entry point for the application of the core treaties of IHL, and the concept of NIAC being closely linked to the one of IAC, means that understanding the triggering act of such a conflict is a preliminary question to almost any application of IHL. Read the rest of this entry…

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