magnify
Home Archive for category "Use of Force"

Reconciling new interpretations of the UN Charter with the customary international law on the use of force

Published on November 26, 2019        Author: 

 

In a recent lecture, published as a post on this blog, Professor Dapo Akande analysed the diversity of the rules on the use of force in international law and the implications for the evolution of the law in this area. In this post I wish to address one issue arising from this discussion but not directly addressed in Dapo’s lecture: the impact of changes to the UN Charter on the customary international law rules on the use of force.

In his lecture, Dapo argues persuasively that there are structural difficulties surrounding the evolution of Charter rules, and that these could be avoided if UN members were to interpret the UN Charter through subsequent practice under Article 31(3)(b) VCLT so that a ‘Uniting for Peace’ resolution of the UN General Assembly ‘would be deemed not to be a breach of the prohibition of force under Art. 2(4) in the same way that a Council resolution authorizing force would have that effect.’ However, while this route would avoid the obstacles Dapo discusses that make it difficult to imagine customary international law bringing about a change in the Charter rules on the use of force, it raises the opposite question: how would modification of the Charter rules impact the customary prohibition on force?

As clarified by the ICJ in Nicaragua (Merits, para 179), customary law continues to exist and apply separately alongside even identical treaty provisions. Since the customary and treaty prohibitions exist independently, even if the Charter were to be interpreted so that force authorised through Uniting for Peace was no longer considered a breach of Article 2(4), this interpretation of the Charter wouldn’t automatically change custom to match. A priori, force lawfully authorised by the General Assembly under the Charter would therefore still be in violation of the customary prohibition on force. One could argue that the new treaty rule would simply prevail over the customary prohibition to the extent they conflict, but this seems difficult when the customary prohibition is probably also a jus cogens norm. Indeed, it seems rather that the purported interpretation of the Charter would – by analogy with a new treaty amendment conflicting with jus cogens which would presumably be caught by Article 53 VCLT – be invalid. Read the rest of this entry…

Print Friendly, PDF & Email
 

The Diversity of Rules on the Use of Force: Implications for the Evolution of the Law

Published on November 11, 2019        Author: 

Last month, I had the pleasure and honour to deliver one of the keynote lectures at the Canadian Council of International Law Annual Conference. The theme of the conference was “Diversity and International Law” and I chose to speak about the diversity of rules on the use of force and the implications of that diversity for the evolution of the law. I am pasting the text of my lecture here

In this lecture I wish to address the question whether the law relating to the use of force – as set out in the UN Charter – has been capable, and is capable, of adapting to meet new threats and challenges facing the international community. My focus is not on the substance of the rules but rather on how they change. In particular, I wish to show that we need to be attentive to the nature of diverse nature of the rules in this area as we think about the possibility of their evolution.

Yesterday was the 74th anniversary of the entry into force of the United Nations Charter. It was around the time of the 50th anniversary of the UN that literature began to emerge suggesting that we might think of the UN Charter as a constitution for international society. Whether one agrees with that characterisation or not the Charter shares at least a couple of features with constitutions – it aims to lay down an overarching framework for the community it applies to, and is intended to be an abiding document in terms of duration. This immediately raises questions about whether the document can continue to regulate new and unforeseen challenges. This is particularly true of the Charter rules relating to the use of force.

Areas Where Evolution of the Charter Rules on Use of Force Have Been Called For

One can think of at least four areas where it has been argued that rules of the UN Charter ought to be adapted (or have been adapted, depending on one’s point of view) to meet new challenges : Read the rest of this entry…

Print Friendly, PDF & Email
 

Turkey’s Military Operation in Syria: A Freedom of Expression Perspective

Published on October 28, 2019        Author: 

There is no doubt that Turkey’s use of force in Syria and the unfolding consequences thereof should generate much legal debate and analysis. The legal issues are broad. They cover primary norms under international law on the use of force, international humanitarian law, international human rights law and international refugee law. In addition, the relationship between the Turkish Armed Forces and Free Syria Army (or Syria National Army as recently renamed in Turkey) engages questions of attribution alongside individual criminal responsibility under international law. Alongside this long list of issues of engaging the state responsibility of Turkey, we can certainly ask whether any third-state responsibility is engaged and whether other states have been facilitating acts, which would have been unlawful if they carried them out themselves.

Some of these issues have been addressed on EJIL Talk!  here and here, and, elsewhere, here and here. Some have generated responses and counter claims here and here. My aim here is to highlight one, as yet, unaddressed aspect — freedom of expression and, academic freedom as a lex specialis of freedom of expression.

Discussions about Turkey’s military actions on international law blogs thus far have not been written by Turkish international lawyers, with one exception: a reply to a post on EJIL Talk! defending Turkey’s justifications for the lawfulness of the use of force under ius ad bellum.  My hunt for academic seminars held on these issues at any university in Turkey has drawn only blanks. Not one single academic seminar, not one single debate has been held to discuss multilayered legal issues around a major military operation. This is curious. Why do Turkish international lawyers not partake in the opportunity to debate and discuss international law in real time, and use their linguistic advantage to access key sources?

Read the rest of this entry…

Print Friendly, PDF & Email
 

Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

Print Friendly, PDF & Email
 

A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence on International Law

Published on October 14, 2019        Author: 

Since last week Turkey has been using massive military force in Syria. Turkey has decided to call her military operation ‘Peace Spring’. ‘Peace Spring’ seems to be even more extensive than ‘Olive Branch’, Turkey’s preceding invasion of Syria. ‘Peace Spring’ has already resulted in the flight of tens of thousands of civilians. Worldwide, observers fear that ‘Peace Spring’ could lead to a humanitarian catastrophe in Syria, a country whose people have been suffering from unspeakable pain for many years now. There is also widespread fear that the so-called ‘Islamic State’ could benefit from ‘Peace Spring’ as the use of force is being directed against precisely those Kurdish forces that had helped keeping the ‘Islamic State’ at bay. It thus appears that a depressingly large number of indications suggest that the name ‘Peace Spring’ is a cynical euphemism for a brutal military course of action possibly ending in a bloody disaster.     

In her letter to the United Nations, Turkey invokes her right of self-defence, as recognized in Article 51 of the UN Charter, ‘to counter’ an ‘imminent terrorist threat’. The ‘facts’ that Turkey refers to in this letter are essentially those:

‘In particular, PKK/PYD/YPG units close to Turkish borders in the north-east of Syria, continue to be a source of direct and imminent threat as they opened harassment fire on Turkish border posts, by also using snipers and advanced weaponry such as anti-tank guided missiles.’

Under international law, the right of self-defence exists if an armed attack against another State occurs. In such a case, cross-border defensive forcible action is permissible to the extent that the action is necessary and proportional to counter the attack. The existence of a right of anticipatory self-defence has long been controversial. An arguable case can be made that such a right exists if an armed attack against a State is imminent. It is also a matter of fierce debate whether a right of self-defence exists in case of a non-State armed attack and whether it may justify forcible defensive action on the territory of another State. An arguable case can be made that such a right exists where a State is either unwilling or unable to prevent a non-State group from conducting a large-scale cross-border armed attack from the territory of that State – under strict conditions of proportionality.

Even on the basis of such a broad understanding of the right of self-defence, which is being fiercely rejected by a significant number of States and by a significant number of highly respected international lawyers as being unduly permissive, it is impossible to see how Operation ‘Peace Spring’ could be justified under international law. Read the rest of this entry…

Print Friendly, PDF & Email
 

“Sustainable Self-Defense”? How the German Government justifies continuing its fight against ISIL in Syria

Published on October 2, 2019        Author: 

“We have defeated ISIS in Syria”, US President Trump, tweeted on 19 December 2018. “We just took over 100% caliphate. That means the area of the land.”, he added in March 2019. Nonetheless, until to date, the global coalition against the “Islamic State of Iraq and the Levant” (ISIL) continues its military operations in Iraq and Syria. May States in Syria still use armed force against ISIL, now deprived of territorial control, under the right of (collective) self-defense?

The German Government answered this question in the affirmative. On 18 September 2019, the Government formally requested the German Parliament to extend the (national) mandate “for German armed forces to safeguard the stabilization of Iraq and Syria, to promote their reconciliation, and to prevent ISIL’s regaining of strength in those regions” (all translations by the author). The Parliament is currently debating the issue. With the governing parties endorsing the request, Parliament is expected to agree despite critique on the operation’s legality by opposition parties.

In its formal request, the Government details the legal basis for the continuation of operations against ISIL. As a matter of principle, it does not significantly depart from its previous justifications. It bases the use of armed forces in Iraq on the “Iraqi government’s continuously valid request and continued consent”. For its operations in Syria, the Government continues to invoke collective self-defense on behalf and on request of Iraq against attacks from ISIL, “in connection with” Security Council resolution 2249 (2015).

But importantly, the Government has also updated its justification in light of ISIL’s loss of territorial control. This, in short, would not affect the coalition’s right to continue military operations against ISIL in Syria. This updated justification is worth discussing in regard to three aspects of self-defense: whether it can be used against non-State actors, its endorsement by the Security Council, and the question of continuing armed attacks.

Read the rest of this entry…

Print Friendly, PDF & Email
 

Drone Attacks on Saudi Aramco Oil Installations

Published on September 17, 2019        Author: 

Half of Saudi Arabia’s oil production has been stopped by air attacks involving drones and possibly cruise missiles on 14 September 2019. Houthi rebels in Yemen have claimed responsibility. United States Secretary of State Mike Pompeo has asserted by tweet that Iran is responsible because there is “no evidence the attacks came from Yemen” and Iran is behind “100” attacks on Saudi Arabia. The U.S. has since released satellite imagery showing immense smoke clouds. Unnamed American officials say 19 sites were struck. According to the BBC, on 16 September, ‘UK, Foreign Secretary Dominic Raab said it was not yet clear who was responsible for what he described as a “wanton violation of international law”’.

Regardless of who is responsible, the attacks are unlawful for a variety of reasons. For several of those same reasons and others, however, Saudi Arabia has no right to use military force outside its territory in a response. The limits on other states responding with military force or other forms of coercion are equally restricted. Lawful responses are available, ones that would avoid further ‘wanton’ law violations.

The important starting place of the analysis is with the fact that the Houthi rebels are not the government in effective control of Yemen, so they do not qualify as having authority to use military force on the basis of the one relevant justification in this case, United Nations Charter exception to Article 2(4), Article 51. The fact Saudi Arabia has been attacking them in Yemen does not give rise to their right to attack Saudi Arabia.

The most accurate characterization of the Houthis is as a belligerent party engaged in internal armed conflict or civil war from which all non-Yemeni armed groups—state or nonstate—are barred. Saudi Arabia has apparently based its participation in the Yemeni civil war on an invitation from Abdrabbuh Mansur Hadi. Hadi, however, fled and thereby lost effective control or status as the government in March 2015. The conflict remains undecided with the Houthis holding the capital Sanaa as well as territory that is home to more than half the population. While Hadi continues to claim ‘international recognition’ plus Yemen’s seat in the United Nations, under international law, the government for purposes of authorizing force in self-defence must for practical reasons and reasons of self-determination be based on the effective control rule as applied in the Tinoco Claims Arbitration (1 U.N. Rep. Int’l Arb. Awards 369 (1923). Read the rest of this entry…

Print Friendly, PDF & Email
 

Did the US Stay “Well Below the Threshold of War” With its June Cyberattack on Iran?

Published on September 2, 2019        Author: 

On 20 June 2019, the United States conducted a major cyberattack against Iran in response to Iran’s (alleged) attacks on oil tankers in the Hormuz Strait and the downing of an American surveillance drone. The attack was widely reported at the time, but on 28 August the New York Times published important new details, which included information about the legal-strategic thinking of the Americans. Specifically, it was reported that the US cybercampaign against Iran was “calibrated to stay well below the threshold of war”. Translated into legalese, this seems to imply that the Americans aim to keep their activities at a level that undoubtedly fall short of legal thresholds like article 2(4) of the UN Charter, which defines use of force, and common article 2 of the Geneva Conventions, which de facto triggers the laws of war. In this post, I discuss whether the Americans succeeded in keeping their distance from such thresholds.

The attack

In the original reporting on the attack by Yahoo! News, it was noted that the operation targeted “an Iranian spy group” with “ties to the Iranian Revolutionary Guard Corps”, which supported attacks on commercial ships in the Hormuz Strait. The precise object of attack was not specified, but it was mentioned that the group had “over the past several years digitally tracked and targeted military and civilian ships passing through the economically important Strait of Hormuz”.

The New York Times’ report explains that the cyberattack successfully “wiped out a critical database used by Iran’s paramilitary arm to plot attacks against oil tankers and degraded Tehran’s ability to covertly target shipping traffic in the Persian Gulf, at least temporarily”. The Iranians, it is noted, are “still trying to recover information destroyed in the June 20 attack and restart some of the computer systems — including military communications networks — taken offline”. Accordingly, the attack seems to have crippled the targeted system in a way that has taken it offline and, presumably, rendered it useless for months. The effects of the attack were “designed to be temporary”, officials said, but had “lasted longer than expected”. In terms of the specific target of the attack, it was reported that the target was the Iranian Revolutionary Guards’ intelligence group. Read the rest of this entry…

Print Friendly, PDF & Email
 

Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 

The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…

Print Friendly, PDF & Email