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Home Archive for category "Use of Force"

Bringing Psychological Civilian Harm to the Forefront: Incidental Civilian Fear as Trauma in the Case of Recurrent Attacks

Published on April 25, 2018        Author: 
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Last month’s ballistic missiles’ barrage undertaken by the Yemen-based Houthi rebels against Saudi Arabia comes to be added to the almost 100 missiles that have been fired against the Kingdom since past November. With these missile attacks spreading fear (see also here the Jordanian condemnation of the attacks and the stress put on the terrorization of the civilians), they bring to the forefront the question of how recurrent attacks can impact on the affected civilians’ psychological health and whether such impact can have a legal significance for the legality of the undertaken force. The question of incidental civilian fear, namely the fear incurred to civilians absent any prior intentions from the attacker’s part, has been pertinent in the past in instances where aerial attacks have caused psychiatric disorders like PTSD to the affected civilians  (see here for the trauma incurred to Israeli civilians as a result of the Gaza rocket attacks and here for the PTSD suffered due to the U.S. drones policy), but has not been addressed so far systematically by courts. 

The importance of taking into account incidental civilian fear amounting to trauma as a legal consideration is highlighted by studies (see also here, here, here and here) which have shown how trauma symptoms emerging from exposure to warfare can persist long after hostilities end. These studies have also demonstrated how the more the attacks augment in number and frequency, the more likely it is for the affected civilians to be diagnosed with psychiatric disorders. Translated in the proportionality balance terms the laws of war endorse, this means that the more serious the incurred harm, the higher the chances for the attack to be unlawful. 

At the same time, the emergence of trauma as a result of such attacks is not meant to serve as a veto but as a vetting parameter for the continuation of the operations. The idea is not for such trauma-related fear to be a ground altogether for the cessation of any military operations or for their ban. Rather such fear can constitute the basis for an operational adjustment to such a degree that temporary gaps between each attack or alterations in the operational mode (i.e. flight altitude or order of targeting pre-selected targets so that two targets in close vicinity are not targeted immediately one after the other) will lessen the attacks’ impact on the civilians’ psyche, permitting the latter to take respites and not leading to a situation where the trauma symptoms will be accumulated, evolving into a psychiatric disorder. Read the rest of this entry…

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Filed under: Armed Conflict, Use of Force
 
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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.

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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
 

OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

Published on April 13, 2018        Author: 
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The OPCW Technical Secretariat released yesterday the findings of its investigation into the Salisbury affair. The report confirms the UK account of the nerve agent, without however specifically naming it in the unclassified executive summary; it also states that the agent was of a high purity, implying its manufacture by a state, but without naming Russia as the source (much in the same way as the UK’s own chemical weapons lab). Here are the key bits:

8. The results of analysis of biomedical samples conducted by OPCW designated laboratories demonstrate the exposure of the three hospitalised individuals to this toxic chemical.
9. The results of analysis of the environmental samples conducted by OPCW designated laboratories demonstrate the presence of this toxic chemical in the samples.
10. The results of analysis by the OPCW designated laboratories of environmental and biomedical samples collected by the OPCW team confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured three people.
11. The TAV team notes that the toxic chemical was of high purity. The latter is concluded from the almost complete absence of impurities.
12. The name and structure of the identified toxic chemical are contained in the full classified report of the Secretariat, available to States Parties.

UPDATE: See also this letter from the UK National Security Advisor to the NATO Secretary-General, providing some previously classified intelligence about the Skripal poisoning.

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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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The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Published on March 17, 2018        Author: 
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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.  

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The Salisbury Attack: Don’t Forget Human Rights

Published on March 15, 2018        Author: 
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It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

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An International Use of Force in Salisbury?

Published on March 14, 2018        Author: 
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In the afternoon of Sunday, 4 March, Mr Sergei Skripal and his daughter Yulia were found slumped on a park bench in Salisbury. Mr Skripal is a former Russian agent convicted of espionage for the West, exchanged in a spy swap and brought to live in the UK. He, his daughter and a number of individuals who had attended to them were found to have been exposed to a nerve agent known as Novichok. At the time of writing, both remained in critical condition in hospital, with uncertain prospects of recovery. One of the first responders, Detective Sergeant Nick Bailey, was also kept in hospital in a serious condition.

On 12 March the British Prime Minister addressed the House of Commons. She claimed that it was ‘highly likely’ that the government of the Russian Federation was responsible for the action. She asserted that ‘either this was a direct action by the Russian state against our country, or the Russian government lost control of its potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.’ She demanded a ‘credible response’ by Russia within a day, indicating that, failing such a response, the UK would conclude that this action ‘amounts to an unlawful use of force by the Russian state against the United Kingdom.’ [The Prime Ministers statement can be viewed at http://www.bbc.co.uk/news/uk-43377856.]

The responsibility for the action was placed on the Russian Federation by the UK government in view of its previous suspected involvement in the assassination in the UK of former Russian security operative Alexander Litvinenko in 2006 using the similarly exotic means of radioactive polonium, instances of politically motivated killings allegedly undertaken by Moscow elsewhere, and Moscow’s perceived generally aggressive attitude towards the West, and the UK in particular, especially after its purported annexation of Crimea in 2014.

The Russia government dismissed the allegations and requested samples of the nerve agent in order to mount its own investigation, ignoring Ms May’s deadline. Moscow instead offered cooperation through the relevant mechanism of the Organization for the Prohibition of Chemical Weapons (OPCW). While Russia’s responsibility for the action will evidently remain contested, this post considers the claim of the UK government that it amounts to a ‘use of force’.

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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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A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

Published on February 20, 2018        Author:  and
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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…

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