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Home Archive for category "Use of Force"

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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Lost Between Law Enforcement and Active Hostilities: A First Glance at the Israeli Supreme Court Judgment on the Use of Lethal Force During the Gaza Border Demonstrations

Published on June 4, 2018        Author: 
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In response to the ongoing violent clashes between the Israeli Defence Forces (IDF) and Palestinian protesters during the so-called ‘March of Return’ along the Gaza border fence several Israeli human rights organizations petitioned the Israeli Supreme Court, challenging the IDF’s rules of engagement, as well as their implementation. The arguments put forward by the petitioners and the Israeli Government, as well as the legal issues involved were  discussed in advance of the Court’s judgment by Eliav Lieblich and Yuval Shany (here and here). Last week, the Israeli Supreme Court, sitting as the High Court of Justice, handed down its decision, which unanimously rejected the petitions. Although the judgment seems to be flawed on several issues, it nevertheless includes a couple of interesting statements regarding the relationship between law enforcement operations and active hostilities in armed conflict. An initial analysis of the decision has been published by Amichai Cohen and I should say at the outset that I share some of his conclusions. Those aspects of the decision that relate to international law will probably spark mixed feelings. As mentioned by Cohen, the fact that the Court explicitly endorsed the ICRC’s Interpretive Guidance on Direct Participation in Hostilities is certainly a welcome development. However, the fact that the justices refused to discuss the applicability of international human rights law (IHRL) in situations of armed conflict; that they invented an obscure new law enforcement paradigm; and expanded the notion of ‘imminent threat’ to allow for the preventive use of lethal force, less so. 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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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.

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
 

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.  

Read the rest of this entry…

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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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