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Home Archive for category "Use of Force"

Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Published on October 12, 2017        Author: 

In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind. Read the rest of this entry…

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(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 

In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…

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So, Has This Ever Happened Before?

Published on September 19, 2017        Author: 

For the past week or so I’ve been enjoying the start of my sabbatical in New York, as a visiting professor at Columbia this semester. And for the past couple of days I’ve been enjoying – well, experiencing – the chaotic collapse of parts of the city during the UN General Assembly. And today I could enjoy – well, behold – the spectacle of the President of the United States threatening another UN member state with nuclear destruction at the podium of the General Assembly:

http://www.trbimg.com/img-59c133a3/turbine/la-na-trump-un-pictures-20170919/650/650x366

Photo credit LA Times: http://www.latimes.com/world/la-un-general-assembly-live-updates-world-awaits-president-trumps-first-assembly-20170918-htmlstory.html

If this is not twisted enough, now North Korea’s reckless pursuit of nuclear weapons and ballistic missiles threatens the entire world with unthinkable loss of human life.

It is an outrage that some nations would not only trade with such a regime, but would arm, supply, and financially support a country that imperils the world with nuclear conflict. No nation on earth has an interest in seeing this band of criminals arm itself with nuclear weapons and missiles.

The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself and for his regime. The United States is ready, willing and able, but hopefully this will not be necessary. That’s what the United Nations is all about; that’s what the United Nations is for. Let’s see how they do.

Note the nature of the threat – if the US is forced to defend itself or its allies, it will totally destroy North Korea (not – react to the extent necessary and proportionate; presumably even a preemptive self-defense theory would be on the table). Note also how the United Nations is a ‘they’ rather than a ‘we.’  Question for the readers: has this ever happened before? Shoes have been banged at that podium, of course, and sulfur has been smelt. Yet even at the height of the Cold War, has a head of state of a nuclear-weapons state used this kind of directly threatening language? Or is this simply old-fashioned nuclear deterrence inartfully expressed?

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The Treaty on the Prohibition of Nuclear Weapons

Published on July 26, 2017        Author: 

On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance. Read the rest of this entry…

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The NotPetya Cyber Operation as a Case Study of International Law

Published on July 11, 2017        Author:  and

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…

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The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction?

Published on June 26, 2017        Author: 

The states parties to the Statute of the International Criminal Court have been meeting in New York recently to begin discussions that it is hoped will lead to a decision at this December’s Assembly of States Parties to activate the Court’s jurisdiction over the crime of aggression. These discussions are taking place seven years after the ICC states parties, meeting in Kampala, Uganda, adopted a series of amendments to the ICC Statute dealing with the crime of aggression. Those amendments remedied the failure to agree in 1998 in Rome on the definition of the crime of aggression and the conditions under which the Court can exercise jurisdiction over aggression. However in Kampala, states parties decided that the Court’s exercise of jurisdiction over aggression would require 30 ratifications or acceptances [(Arts. 15 bis (2); Arts. 15ter (2), ICC Statute], and could not happen prior to the taking of a decision by the states parties to activate that jurisdiction, with such decision not to be taken before 1 January 2017 [(Arts. 15bis (3); Arts. 15ter (3), ICC Statute]. In Kampala states parties “Resolved to activate the Court’s jurisdiction over the crime of aggression as early as possible” [Resolution RC/Res. 6]. States parties now face the moment of decision.

It was a privilege to be invited to a meeting of states parties held on June 2, at the UN Headquarters in NY, to present my views on what has turned out to be the most contentious question in the current discussions about aggression: who will be subject to the ICC’s jurisdiction with respect to the crime of aggression? It should be recalled that states parties to the Rome Statute may choose to opt out of the ICC’s jurisdiction over aggression under Art. 15bis (4) of the amended ICC Statute by simply lodging a declaration with the Registrar of the Court. However, some states that have not yet ratified the amendments are of the view they should not be required to opt out in order for their nationals to be exempt from ICC jurisdiction over aggression. Thus, the most important question on which there are different views among state parties is this:

Are nationals of states that do not ratify or accept the Kampala amendments, and which also do not opt out of ICC jurisdiction as provided for in those amendments, subject to ICC jurisdiction over aggression in cases where the situation is referred to the Court by a state, or the prosecutor takes up the matter propio motu?

In summary, my view on that question, which I will set out below, is that the Court will not have jurisdiction in such a situation. Read the rest of this entry…

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Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 

On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us. 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: 

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: Djemila Carron’s Response

Published on June 2, 2017        Author: 

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

I am grateful to the editors of EJIL: Talk! for organizing this discussion – the first one around a book in French! I also would like to warmly thank Professor Julia Grignon and Doctor Tristan Ferraro – whose articles, books and reflections were very important while writing L’acte déclencheur d’un conflit armé international – for their thoughtful comments on my work. In this contribution, I consider some of the questions they raise in each of their pieces, mainly on the capture of a soldier as a triggering act of an IAC (response to Julia Grignon) and on the classification of transnational armed conflict (response to Tristan Ferraro).

Animus belligerendi

I will not respond in detail to Julia Grignon’s development of my rejection of a criteria of animus belligerendi for the existence of an IAC (Part II, Question VI). She perfectly summed up my main arguments. The intent of a State to be in an IAC or in a state of war has no influence on the existence of an IAC. Once again, to exclude subjective elements from the definition of an IAC was one of the key reason for the shift in 1949 from the notion of war to the one of IAC. This said, as explained in the book, for such a conflict to take place, a State must nevertheless have the intent to use force against another one. I propose to defend this element through the objective requirements on the origin of an IAC (Part II, Question IV). In other words, if a State uses force against another one through its organs, acting in their capacity, following instructions and not mistakenly, the animus to use force is considered fulfilled. 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: 

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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