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Home Archive for category "Use of Force" (Page 18)

Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum

Published on February 21, 2010        Author: 
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Self-defense in response to armed attacks by non-state actors is undoubtedly one of the most interesting – and controversial – issues in modern international law. It is of great practical relevance, as for instance, with the ongoing use of drones for the targeted killings of suspected terrorists (a question I’ve discussed here), and has attracted a great deal of scholarly attention. Lindsay Moir has just published a book with Hart/Oxford that I’m sure will provide a strong contribution to the field. I would particularly like to draw our readers’ attention to the recent discussion in the EJIL provoked by Christian Tams’ excellent article on the use of force against terrorists, with responses by Federico Sperotto and Kimberley Trapp, and a rejoinder by Christian.

In this post, I would like to add a few thoughts on how the indeterminacy of state practice and opinio juris has caused an indeterminacy in the law, which I don’t think can be denied or removed by any legal analysis, no matter how exhaustive and competent.

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How and Why International Law Matters – Lessons from the UK’s Iraq Inquiry

Published on January 31, 2010        Author: 
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Much of the debate in the UK regarding the Iraq war has centred on the legality of the use of force. There was much public debate on the issue in the lead up to the war in 2003 and sustained interest in it since. The appearance before the UK inquiry, this past week, of Tony Blair and of the main UK government legal advisers involved in considering the legal position has revived this debate (see Marko’s posts here and here). What last week’s proceedings have also demonstrated is that international law played a significant role in the internal deliberations of the UK government and had a role in shaping policy. In short international law mattered! In this post, I do not intend to discuss the substance of whether the legal position ultimately taken by the UK Attorney General was correct. Many (Marko included) have demonstrated the flaws in it. What I wish to consider are the ways in which international law mattered in policy formation and why did it matter to the relevant policy makers in the UK.

The first evidence to support to the claim that international law mattered in the process is that there was much discussion within government of whether the use of force would be legal or not and discussion of the conditions under which the use of force would be legal. Much of the relevant internal documents can now be found on the Inquiry’s website by scrolling to the bottom of the page for 26 January. As would be expected, the legal advisers at the Foreign Office (FCO) and the Attorney General devoted much time and paper to advising on the legality of the war. However, what is perhaps more important here is the relevant policy makers also devoted much time and attention to the question of legality of the conflict. The then Foreign Secretary, Jack Straw, debated this question both with his own legal advisers and with the Attorney General. Marko has discussed some of this correspondence  between Jack Straw and Michael Wood (the FCO Legal Adviser) in his earlier post. Readers can view the correspondence and record of meetings between Straw and the Attorney General, Lord Goldsmith here and here. Perhaps more important is the discussion of the legal question by the Prime Minister. In his own evidence before the Iraq Inquiry, Tony Blair spent quite some time dealing with the legal question.

Of course, the fact that the legal issue was discussed does not by itself indicate that the legality of the war under international law was regarded as important by policy makers. However, what is significant is not just that the matter was discussed but that senior policy makers engaged with it seriously. As it happens the two political figures in the UK that had primary responsibility for shaping the Iraq policy in 2002 were lawyers – Tony Blair and Jack Straw. Perhaps this made it easier and more natural for them to engage with the law. Jack Straw in a letter of 6 Feb. 2003 spent 6 pages on the interpretation and significance of Res. 1441. In all probability he drafted this letter himself since we know that his legal advisers took a different from the view expressed in this letter.  Not only did senior policy makers engage with international law seriously, they regarded it as a matter of importance. In his appearance before the Inquiry, Tony Blair stated that: 

 There was then the legal question, which was very important, because Peter [Lord Goldsmith] had drawn my attention to that. [p. 99 Transcript of Blair Evidence]

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Legal Advisors before the Iraq Inquiry, Part 2

Published on January 27, 2010        Author: 
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Part 1 available here.

Today’s testimony of Lord Goldsmith before the Iraq Inquiry (BBC report) was mostly focused on revisiting the revival argument for the invasion of Iraq. Lord Goldsmith gave a reasonably strong performance in defending his sudden change of position in the advent of the war, when he in the space of a few weeks or so first provisionally advised that Resolution 1441 was insufficient to revive the UNSCR 678 authorization to use force, only to come the other way around in his final advice just a few days before bombs started raining on Baghdad. Though my impression is that the Inquiry members were less impressed by his testimony than they were by the FCO legal advisors’ yesterday, it still cannot be said that the Inquiry exposed Lord Goldsmith as cravenly caving to political pressure or giving manifestly mistaken advice – he is far too good a lawyer for that to have been reasonably expected, let alone happened.

In short, his explanation of his change of position was as follows: it was the result of his combined discussions with Sir Jeremy Greenstock, the UK ambassador to the UN at the time, Jack Straw, and US legal advisors in Washington, who were all intimately involved in the drafting of Resolution 1441. Their account of the drafting history, which he took into consideration, was that the Americans had a so-called ‘red line:’ because they already thought that they had implied UNSC authorization to act and did not need Resolution 1441 for that purpose, they would have never allowed the adoption of this resolution if its terms held or implied that a further UNSC decision would be needed for the invasion to take place. Thus, because it would have been highly improbable that the resolution as adopted did this since the American negotiators were far too skilled to have allowed this, Goldsmith now thought that the better view was that the Resolution did not require a further decision, implicitly or otherwise, and that the revival of the prior authorization could properly take place.

Now, this is all extremely confusing, and both Goldsmith and his most persistent inquisitor, Sir Roderick Lyne, were running circles around each other for quite some time. Sir Roderick rightly pointed out that this argument presumes that the American negotiators could not have failed in their endeavours and that other parties did not have their own ‘red lines’, and also, as Michael Wood said yesterday, that it is somewhat odd to rely so much on essentially private accounts of the drafting history, rather than on the officially recorded public statements made by various state representatives in the UNSC after the adoption of Resolution 1441. These are all valid criticisms – but there is also a more subtle non sequitur here, which the questioning did not expose fully.

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Filed under: EJIL Analysis, Iraq, Use of Force
 

Legal Advisors at the Iraq Inquiry, Part 1

Published on January 26, 2010        Author: 
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Today was the start of an extraordinary week for assessing the impact international law had on the decision of the US, the UK and their allies in going to war with Iraq in 2003. The UK Iraq Inquiry today heard the testimony of Sir Michael Wood, the Foreign and Commonwealth Office Legal Advisor from 1999 to 2006, and Elizabeth Wilmshurst, the Deputy Legal Advisor at the time of the Iraq war, who resigned from her post once the invasion began (BBC report). Tomorrow the Inquiry will hear the testimony of Lord Goldsmith, at the time the Attorney General , empowered to give authoritative legal advice to the government, who ultimately, after much procrastination and indeed after shifting his own position, ruled the invasion to be lawful. On Friday it will be Tony Blair’s turn.

The Inquiry, which is advised on legal matters by the former ICJ President Rosalyn Higgins (for more, see Dapo’s earlier post), focused on the main legal rationale for the invasion – the so-called revival argument. In brief, this argument posits that Resolution 1441’s finding that Iraq was in material breach of previous Security Council resolution, and Iraq’s failure to take the final opportunity that the UNSC gave it to comply, revived the authorization for the use of force in UNSC Res 678, that was suspended but not extinguished by UNSC Res 687. The Inquiry’s investigation also raises many issues regarding the proper role of government legal advisors, that will be the main subject of this post.

The readers might recall our previous post on declassified memoranda on the lawfulness of the Iraq war by the US Department of Justice Office of the Legal Counsel, which like the Attorney-General in the UK provides authoritative legal advice to the executive. Like Lord Goldsmith, the OLC thought the revival argument to be correct, but it did so with far less caveats than their UK counterpart. On the other hand, it now transpires that the FCO Legal Advisor’s consistent advice had been that the revival argument just does not work on the text of Resolution 1441, which if properly interpreted requires further UNSC action. The Iraq Inquiry website now has several declassified memos and other correspondence from the FCO Legal Advisor to various government officials. (Incidentally, I don’t think that the US State Department Legal Advisor’s memoranda on the Iraq war have been declassified yet, unlike the OLC ones). These documents are invaluable for assessing the decision-making process in the lead-up to the Iraq war.

As Sir Michael’s testimony began, several new documents were declassified and were contemporaneously used by the Inquiry. The one which struck me the most was a letter by Jack Straw, then the Foreign Secretary, to Sir Michael in response to his legal advice that the invasion would be unlawful without further UNSC action, stating the following:

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Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence

Published on December 9, 2009        Author: 
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Dr André de Hoogh is a senior lecturer in International Law at the University of Groningen. His Ph.D. dissertation (1995) dealt with the topics of obligations erga omnes and international crimes of State.  Recent publications have focussed on the powers of the Security Council, the attribution of conduct to States, legislative powers of UN peacekeeping operations, the war against Iraq, the Bush doctrine of pre-emptive self-defence, and jurisdiction of States.

The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, solicited by the European Union, covers an impressive breadth of topics ranging, aside from factual matters, from statehood, self-determination and secession, use of force, human rights and international humanitarian law. Having read the Report with appreciation and generally agreeing with its conclusions, nevertheless various queries and concerns may be raised by the Mission’s treatment of the regulation of the use of force in international law. Some concerns relate to the treatment of sources of international law, others concern matters of substantive analysis. This comment will consecutively deal with the applicability and interpretation of the prohibition of the threat and use of force in article 2(4) of the Charter, the requirement of a report on measures of self-defence to the Security Council, and the permissible goals of self-defence under international law.

The Applicability of the Prohibition of the Use of Force

The Report concludes that the use of force, in the Georgian-South Ossetian conflict, “is ‘inconsistent with the Charter of the United Nations’, and therefore the prohibition of the use of force is applicable to the conflict, for the following reasons.” Besides putting the horse behind the cart (after all, if the prohibition is not applicable, how could force be inconsistent with the Charter?), the reasons then set forth do not quite support the applicability of the prohibition in article 2(4) Charter. First to be mentioned in the Report is a clause in the preamble of the 1992 Sochi Agreement, which reaffirms “the commitment to the UN Charter and the Helsinki Final Act”. This is said to amount to Georgian acceptance of the applicability of the prohibition, because, though South Ossetia is not a party to the Agreement, the purpose of the Agreement is to “bring about a cessation of bloodshed” and achieve a settlement of the Ossetian-Georgian conflict. The Report considers, sensibly enough, the prohibition to be included in the reference to the Charter, but fails to consider the (legal) status of a clause in a preamble and does not, as such, account for the fact that the reference may be explained by Georgia and Russia being parties to the Agreement. Read the rest of this entry…

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UK Inquiry to Consider Legality of Iraq War and Appoints Former ICJ President, Dame Rosalyn Higgins as International Law Adviser

Published on October 20, 2009        Author: 
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This past summer, British Prime Minister Gordon Brown announced the establishment of an inquiry into the UK’s involvement in the Iraq War. The Iraq Inquiry, which is independent of the government, began work at the end of July.  The committee will consider events from the summer of 2001 until the end of July 2009 when all British forces left Iraq. This means that  the inquiry has a mandate to consider the lead up to the Iraq war, including the circumstances in which the decision was taken to commit the UK to the invasion, as well as the period of the conflict and the post conflict reconstruction. In establishing the inquiry, the Prime Minister stated that the

“the primary objective of the committee will be to identify lessons learned. The committee will not set out to apportion blame or consider issues of civil or criminal liability.” (see here at column 24, 2nd para)

The Inquiry will be conducted by a team of five headed by a former civil servant, Sir John Chilcot. It includes an academic (Sir Lawrence Freedman), a historian (Sir Martin Gilbert), a former diplomat (Sir Roderic Lyne) and a member of the House of Lords (Baroness Usha Prashar).

International lawyers, and indeed the general public would be interested to know, that the Chair of the Inquiry announced in its initial press conference that the inquiry would seek to

form impartial and evidence-based judgements on all aspects of the issues, including the arguments about the legality of the conflict. (see here)

Given that it is unlikely that the question of the legality of the war in Iraq will come before an international tribunal, the Iraq Inquiry may well be the most important public and formal process for the determination of the legality of the UK’s (and US’) use of force in Iraq. Last week, the Inquiry announced the appointment of  Dame Rosalyn Higgins as its international law adviser. Dame Rosalyn was Professor of International Law at the London School of Economics up until 1995 when she became a Judge of the International Court of Justice (ICJ). She was President of the ICJ from 2006 until February 2009 when she stepped down from the Court. In addition the Inquiry has engaged General Sir Roger Wheeler, the former Chief of the General Staff (i.e head of the British Army) as its military adviser.

Like the Prime Minister, Chair of the Inquiry has stressed that “the Inquiry is not a court of law and nobody is on trial” (statement at the Chair’s initial press conference). However, there remains some interest as to whether the inquiry could lead to prosecutions, if it were to find that the UK went into the war illegally. The Inquiry has announced that it will call as witnesses the Prime Minister and former Prime Minister Tony Blair. Could Tony Blair be prosecuted for taking the UK into an illegal war? Read the rest of this entry…

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Filed under: EJIL Analysis, Iraq, Use of Force
 

Are the US Attacks in Pakistan an Armed Attack on Pakistan? A Rejoinder

Published on October 1, 2009        Author: 
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I agree entirely with the first point that Professor Paust makes in his previous post , about the impossibility of imputing the non-state actor attacks to Pakistan due to incapacity. Certainly imputation doesn’t make sense on these facts as he outlines them. However, the second point he makes goes to the heart of my question.

Professor Paust asks, rhetorically, how attacking Al Qaeda in Yemen could be an attack on Yemen as such. But saying that selective targetings of non-state actors on the territory of another state is not an attack on that state ‘as such’ makes those last two words do an awful lot of work, work not everyone thinks they can do. Read the rest of this entry…

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Are US Attacks in Pakistan an Armed Attack on Pakistan? A Response to Timothy Waters

Published on September 30, 2009        Author: 
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In a response to my previous post, Professor Timothy Waters, asks why it is that US attacks on non-State actors in Pakistan would not be acts of war against Pakistan. In this post, I attempt to answer that question. First, we can’t impute al Qaeda or Taliban attacks on our soldiers, which are continuous and well-known, to Pakistan merely because Pakistan is incapable of policing its territory.  Pakistan would have “state responsibility” (but not “imputation” or “attribution” [see Nicaragua v. U.S., 1986 I.C.J.]) – so Pakistan could be subject to sanctions not involving the use of armed force if Pakistan financed or even tolerated such attacks (according to the 1970 UN General Assembly Dec. Principles of  International Law, etc., and Nicaragua v. U.S., 1986 I.C.J.) unless Pakistan had effective control over al Qaeda or Taliban operations or later adopted them as its own (U.S. v. Iran, 1980 I.C.J.) — none of which has happened to my knowledge.  I suppose we agree on this.

Second, Professor Waters asks whether by merely using selective armed force in foreign state territory that is in response to ongoing armed attacks emanating from such territory engaged in or directed by non-state actors (triggering necessity as well as Article 51 self-defense) the U.S. has engaged in an armed attack on the state as such.  I understand from general patterns of practice and general patterns of opinio juris (obviously a few states and a few textwriters disagree) relevant to customary international law as well as a proper interpretation of Article 51 of the U.N. Charter that such selective responsive targetings are not an attack of the state as such and that such targetings do not trigger application of the laws of war applicable to an international armed conflict unless the non-state actor being targeted is a “belligerent” (under international law, triggering appllication of all of the customary laws of war vis a vis the armed conflict between the U.S. and such “belligerent” — perhaps still today, the Taliban [clearly the Taliban was at least a “belligerent” when the U.S. used armed force on Oct. 7, 2001 against the Taliban, and it had already been at least a “belligerent” during the war with the Northern Alliance before we went in]).  Read the rest of this entry…

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The United States’ Use of Drones in Pakistan

Published on September 29, 2009        Author: 
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Editors Note: We feature below a discussion between a group of leading United States academics on the US’s targeting of Taliban and Al Qaeda targets  in Pakistan. Each of the discussants is a  leading writer on international law, and on the use of force in particular.  We are delighted to post this discussion on EJIL:Talk! As usual, readers are invited to post their comments below.

The discussion kicks off with remarks by Professor Jordan J. Paust , Mike and Teresa Baker Center Professor at the University of Houston Law Center. His initial remarks were originally prepared in response to a request from the media for clarification regarding certain issues arising from US use of drones in Pakistan. The other discussants are Professor Mary Ellen O’Connell (Notre Dame Law School); Professor Leila Sadat (Washington University School of Law, St. Louis); Professor Tony D’Amato (Northwestern University School of Law); Professor Geoffrey Corn (South Texas College of Law); Professor Ken Anderson (American University, Washington College of Law); and Professor Timothy Waters (Indiana University at Bloomington).

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Discussion on Use of Force Postponed

Published on September 11, 2009        Author: 
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We have decided to postpone the discussion of the articles in the EJIL Anniversary Symposium on Use of Force which I announced last week. Fear not, the discussion will take place! We now plan to hold the discussion later this year, when Issue 4 of this year’s EJIL is published. As announced on this blog in the summer, the last issue of EJIL this year will include a selection of reactions to articles which appeared in its three Anniversary Symposia in Issues  1-3 and the three Anniversary Articles which will featured in those issues. We think the occasion of the publication of this issue would be a more appropriate time to continue discussion of those same EJIL articles on the blog.

My apologies to the authors, commentators and to readers for the last minute change of plans.

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Filed under: EJIL Reports, Use of Force
 
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