Use of Force

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Mistakes of Fact When Using Lethal Force in International Law: Part III

  To briefly recapitulate our examination of mistake of fact when using lethal force in various sub-fields of international law: such a doctrine is, in its purely subjective form, black letter law in international criminal law. It is also established (even if not labelled as such) in international human rights law and (somewhat less clearly) in international humanitarian law. Both IHL and IHRL would however require the mistake to both honest and reasonable to be able to preclude liability. Both IHL and IHRL contain explicit precautionary and prophylactic rules whose role, in part, is to determine the bounds of reasonable and hence permissible error (e.g. with respect to target verification). As we have seen, the mistake of fact question is most fraught in the jus ad bellum. That said, as a formal matter, even if one thought it to be desirable, it would be difficult to argue that a jus ad bellum-specific mistake of fact doctrine was customary law. I cannot think of any state but the US that has invoked such a doctrine,…

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Mistakes of Fact When Using Lethal Force in International Law: Part II

  If a state believes that it is the target of an ongoing or imminent armed attack and uses force to repel that attack, but it later turns out that it was mistaken and that there either was no such attack or that there was no necessity to respond to it, is that use of force in putative…

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Mistakes of Fact When Using Lethal Force in International Law: Part I

  The tragic shooting down of the Ukrainian airliner over Tehran last week, which Iran has admitted to after several days of denial, has led me to think about a set of issues that was already on my mind when we were discussing the legality of the US strike on Soleimani. How exactly does international law…

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The Killing of Soleimani, the Use of Force against Iraq and Overlooked Ius Ad Bellum Questions

  As most people know by now, the US killed Qassem Soleimani, head of the Iranian Quds force, in a drone strike on 3 January. Most commentators seem to agree that Soleimani’s killing was unlawful, but one issue has received less attention: the legality of using force against Iraq. The strike occurred in Baghdad, killing not only Suleimani…

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Iran Unlawfully Retaliates Against the United States, Violating Iraqi Sovereignty in the Process

  Today Iran launched a number of ballistic missiles against two US military bases in Iraq, in response to the US strike on Soleimani last week. As of now it is unclear whether the missiles caused any American or Iraqi casualties. Donald Trump will address the public in this regard in the morning today US time.

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