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Home Archive for category "Use of Force"

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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The Right of Self-Defence Against Imminent Armed Attack In International Law

On 11 April 2017, the Australian Attorney-General, Senator the Hon. George Brandis QC, delivered a public lecture on “The Right of Self-Defence Against Imminent Armed Attack In International Law”, at the T C Beirne School of Law, University of Queensland. The text of the speech has just become available and is posted below. This talk follows on from an earlier talk given by the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP on “The Modern Law of Self-Defence,” which was also posted on in EJIL: Talk!

Acknowledgments

Thank you very much indeed, Sarah. Might I also begin by acknowledging the traditional custodians of the land on which we meet, the Turrubul peoples, and by acknowledging you, Professor Derrington, in your role as Dean, T C Beirne School of Law. Members of the Faculty of this Law School, of other faculties of the University of Queensland and the faculties of other law schools who I gather have come here this evening. We are honoured by the distinguished presence among us this evening of Justice Edelman of the High Court, and of Justices Greenwood, Logan and Derrington of the Federal Court, and Dr Christopher Ward SC, the Australian President of the International Law Association. Other distinguished guests, ladies and gentlemen.

Introduction

It is a great pleasure to return tonight to my old law school, be it not physically within the law school precincts. May I congratulate the Dean, Professor Derrington, and the members of the faculty, on all that they have done to propel UQ into the front rank of Australian law schools. I note that the 2017 QS ranking places this law school among the top 50 in the world – a distinction enjoyed by no other law school in Queensland and by only six others in Australia. No doubt your new policy of limiting the undergraduate intake to fewer than 200, which means that new entrants are likely to come only from a cohort students who achieve an OP 1, will reinforce its position as one of Australia’s elite law schools. And that intellectual excellence has recently been complemented by a physical manifestation: the very handsome new Law Library and facilities which were opened only last month by Chief Justice Kiefel.

As a student, tutor and lecturer, my association with this law school spanned more than 15 years, from 1975 to 1991, so it is more than 25 years ago that I last gave a lecture here. That was when, for some eight years, while in my early days at the Bar, I taught a unit of the Jurisprudence course called “Recent Developments in the Theory of Justice”. My focus was primarily on John Rawls, as well as such other scholars as Robert Nozick, Ronald Dworkin and Bruce Ackerman. Read the rest of this entry…

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Forcible Humanitarian Action in International Law- part II

Published on May 18, 2017        Author: 

Part II of a Two-Part Post

Interpreting Article 2 (4) of the UN Charter

According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.

Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.

Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.

Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. Read the rest of this entry…

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Forcible Humanitarian Action in International Law- part I

Published on May 17, 2017        Author: 

Part I of a Two-Part Post

There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:

  • The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
  • The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
  • The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
  • The supposedly inevitable abuse of the doctrine.

The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see herehere, here, here and here).

That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion. Read the rest of this entry…

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The Precedent Set by the US Reprisal Against the Use of Chemical Weapons in Syria

Published on May 1, 2017        Author: 

In his recent post on the United States’ missile strike against a Syrian airbase, on 6 April 2017, Marko Milanovic focused primarily on the unlawfulness of that action (here). While I agree with that view, in this post, I wish to focus on the nature of the precedent which the US reprisal has set. Moreover, I argue that this instance of use of a forcible countermeasure by a permanent member of the UN Security Council (UNSC) should serve to refocus attention on a dysfunctional UNSC.

Three remarks at the outset: (a) This post concerns only “forcible countermeasures” or “reprisals”; (b) I characterise the US missile strikes as a reprisal against Syria’s use of chemical weapons. Although other characterisations have been proffered (for instance, humanitarian intervention or providing assistance in a counter-insurgency), the US administration has framed its actions primarily in terms of a forcible response to the use of chemical weapons (see below); and (c) I rely on the assumption, tendered by the US but disputed by Russia, that Syria was responsible for the chemical attack.

The Legal Framework

A useful starting point for this discussion are the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001, which have been said to present “a combination of codification and progressive development” (Harris, Cases and Materials on International Law, p. 422). Article 49(1) of the Draft Articles states that “An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…” Thus, while the Draft Articles envisage the lawfulness of countermeasures in certain circumstances, it is important to clarify briefly: (1) which countermeasures are envisaged; and (2) which party may undertake them. Read the rest of this entry…

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Excusing Humanitarian Intervention – A Reply to Jure Vidmar

Published on April 27, 2017        Author: 

The US strikes in Syria, for which the US offered no legal justification, have once again ignited the debate on the qualification of such acts as illegal but legitimate – a label that had been used, in its day, to describe NATO’s use of force in Kosovo. Legally speaking, what does this sentence mean? Jure Vidmar, in his post on this blog, attempted to explain it by means of the distinction between justification and excuse. As Vidmar explains, excuses usually (but by no means always) cover situations in which conduct, while illegal, is nevertheless the morally right thing to do in the circumstances. He sees this type of reasoning behind the reactions of other States to the US action – expressing support for the action as the right thing to do, but unwilling to go as far as to say that the conduct was permitted or lawful.

The argument is certainly plausible (although note that no State has used the language of excuse in these circumstances which is, in my view, somewhat problematic for the argument). However, it raises a number of important issues which may, ultimately, undermine the very purpose of excusing an actor engaged in humanitarian intervention. I want to consider three of these here: (i) the current recognition of excuses in international law; (ii) the availability of excuses in respect of the breach of peremptory rules; and, (iii) the potential effects of excusing states for humanitarian intervention. I will address each of these in turn.

Excuses in International Law

Excuses are defences that arise from properties or characteristics of actors which, while having no effect on the illegality of the act, shield that actor from responsibility for its (illegal) actions. By contrast, justifications are defences that arise from properties or characteristics of acts and have the effect of rendering those acts lawful, despite apparently breaching a rule of the legal order. Read the rest of this entry…

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