The Use of Force against ISIL in Libya and the Sounds of Silence


As acknowledged by the UN Security Council in Resolution 2249 (2015), ISIL constitutes ‘a global and unprecedented threat to international peace and security’. At least in part, the unprecedented nature of this threat can be attributed to the fact that, in addition to the swathes of territory held in Iraq and Syria, ISIL maintains a presence in various other states, including Libya, Afghanistan, Egypt, Tunisia and Nigeria. Consequently, it was only a matter of time before states started considering striking these other states.

On 13 November, the US made the first move in expanding operations beyond Iraq and Syria, conducting the first airstrike by a Western state specifically targeting ISIL within Libya. It has now been confirmed that the successful strike killed Abu Nabil, the US-dubbed ‘leader’ of ISIL in Libya. Little has been said regarding the airstrike by states or legal commentators, though this is understandable in a period where the world is coming to terms with the devastating terrorist attacks in Paris, Mali, Nigeria, Tunisia and Egypt. However, reflecting back on the strike, questions surround its legality. This post will focus on legality under jus ad bellum, while acknowledging that an airstrike directly targeted at an individual may also trigger international humanitarian law and human rights law.

Prior to assessing the legality of the strike, it is important to consider what we actually know about the strike. In announcing the strike against Abu Nabil, the US Pentagon Press Secretary stated that:

‘On November 13, the U.S. military conducted an airstrike in Libya against Abu Nabil, aka Wissam Najm Abd Zayd al Zubaydi, an Iraqi national who was a longtime al Qaeda operative and the senior ISIL leader in Libya.

Reporting suggests he may also have been the spokesman in the February 2015 Coptic Christian execution video. Nabil’s death will degrade ISIL’s ability to meet the group’s objectives in Libya, including recruiting new ISIL members, establishing bases in Libya, and planning external attacks on the United States.

While not the first U.S. strike against terrorists in Libya, this is the first U.S. strike against an ISIL leader in Libya and it demonstrates we will go after ISIL leaders wherever they operate.

We will provide additional information as and when appropriate. This operation was authorized and initiated prior to the terrorist attack in Paris.’

Notably, the statement provides no explicit legal justification for the strike. This silence has not been remedied since, leaving us to perform the risky task of reading between the lines of the Pentagon statement, while searching for a possible legal justification for this prima facie breach of Article 2(4) UN Charter. (more…)

Happy New Year & Most Read Posts of 2015


As 2015 comes to an end and we enter into 2016, I would like to wish our readers a Happy New Year! I also take the opportunity to provide you with a list of the 20 most read posts for 2015. The information used in compiling the list is from Google Analytics, which tell us which gives us information about the number of times pages on the blog are viewed. The posts listed below were not all written in 2015 but were the ones accessed most frequently in 2015. In fact, nearly half of the posts in the list below were not written in 2015. It is encouraging to see that readers come to blog not just to access current material but that pieces are regarded as having some enduring value.  We strive to cover a range of areas of international law on the blog, and the list below, contains pieces with diverse subject matter. However, it is noticeable that right at the top of this list of most read posts, there is a concentration on pieces that touch on the use of force and armed conflict. The list below is reverse order, with the top 10 posts below the fold:

20) On the Entirely Predictable Outcome of Croatia v. Serbia, Marko Milanovic

19) Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ, Antonios Tzanakopoulos (2013)

18) Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups, Marc Weller

17) European Hypocrisy: TTIP and ISDS, Joseph Weiler

16) Double Duty at the ICC, Daphné Richemond-Barak

15) The Grand Chamber Judgment in Hassan v UK, Lawrence Hill-Cawthorne (2014)

14) The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”  Kai Ambos

13) European Court Decides Al-Skeini and Al-Jedda Marko Milanovic (2011)

12) Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2) Arman Sarvarian & Rudy Baker

11) Espionage & Good Faith in Treaty Negotiations: East Timor v Australia Dapo Akande & Kate Mitchell (2014) (more…)

Strange Angel: Some Reflections on War


The philosopher and cultural critic Walter Benjamin owned a print, Angelus novus, by Paul Klee. In his essay, Theses on the philosophy of history, Benjamin’s Ninth Thesis recalled that it depicted:

An angel…who looks as though he were about to distance himself from something which he is staring at. His eyes are opened wide, his mouth stands open and his wings are outstretched. The Angel of History must look just so. His face is turned towards the past. Where we see the appearance of a chain of events, he sees one single catastrophe, which unceasingly piles rubble on top of rubble and hurls it before his feet. He would like to pause for a moment…to awaken the dead and to piece together what has been smashed. But a storm is blowing from Paradise, it has caught itself up in his wings and is so strong that the Angel can no longer close them. The storm drives him irresistibly into the future, to which his back is turned, while the rubble-heap before him grows sky-high. That which we call progress, is this storm.

This image and idea has been influential in philosophy and culture, for example, check out this song by Laurie Anderson.

A while ago, I was asked to write some reflections on war and international law. Deadlines whooshed past, but it is finally finished. International law, at least traditionally, saw war and peace as mutually exclusive—“there is no middle ground between war and peace” (Grotius, De iure belli ac pacis (1625) Book III, Ch.XXI, 1), although this dichotomy predated Grotius by centuries. At least since the end of the First World War, peace has been seen as the normal condition in international relations, with war characterised as an abnormal state of affairs. But what is the function of war in the international community? (more…)

German Parliament decides to send troops to combat ISIS − based on collective self-defense “in conjunction with” SC Res. 2249


On 4th December 2015, after a parliamentary debate on 2d December, the German Parliament decided, with 445 positive votes (146 negative votes and seven abstentions), to honour the German’s Government’s formal request (BT Drucksache 18/6866 of 1st Dec. 2015 ) to send up to 1200 troops to combat ISIS. A formal parliamentary decision to deploy military abroad is required by the German Constitution (Basic Law) and a German 2005 law (Parlamentsbeteiligungsgesetz) which codifies prior constitutional case law.

The international legal basis for the deployment decision, as officially claimed by the Government, is “Art. 51 of the UN Charter in conjunction with Art. 42(7) TEU as well as resolutions 2170 (2014), 2199 (2015), 2249 (2015) of the Security Council.” In its request to Parliament, the Government explained that action against IS (by the US, Australia, the UK, and France) “in exercise of collectives self-defence under Art. 51 of the UN Charter is covered by resolution 2249 (2015).” (BT Drs. 18/1866, p. 3). The EU-assistance clause as invoked by France on 13th November, to which all EU member States responded on 17th November with the promise for assistance, has been analysed here by Carolyn Moser. The substance of the IS resolution 2249 has been analysed on EJIL talk! by Marc Weller, by Dapo Akande and Marko Milanovic.


The Law and Politics of the Kosovo Advisory Opinion


The Law and Politics of the Kosovo Advisory OpinionI’m happy to report that OUP have now published a collection of essays edited by Sir Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion. Michael and I are especially happy with the cover, which is gloomy in a very nice way. Our intro to the book is available here, while a smattering of draft chapters is also freely available on SSRN.

Here are the blurb and the ToC:

This volume is an edited collection of essays on various aspects of the 2010 Kosovo Advisory Opinion of the International Court of Justice. The main theme of the book is the interplay between law and politics regarding Kosovo’s independence generally and the advisory opinion specifically. How and why did the Court become the battleground in which Kosovo’s independence was to be fought out (or not)? How and why did political arguments in favour of Kosovo’s independence (e.g. that Kosovo was a unique, sui generis case which set no precedent for other secessionist territories) change in the formal, legal setting of advisory proceedings before the Court? How and why did states supporting either Kosovo or Serbia choose to frame their arguments? How did the Court perceive them? What did the Court want to achieve, and did it succeed in doing so? And how was the opinion received, and what broader implications did it have so far? These are the questions that the book hopes to shed some light on. To do so, the editors assembled a stellar cast of contributors, many of whom acted as counsel or advisors in the case, as well a number of eminent scholars of politics and international relations whose pieces further enrich the book and give it an interdisciplinary angle. The book thus tells the story of the case, places it within its broader political context, and so attempts to advance our understanding of how such cases are initiated, litigated and decided, and what broader purposes they may or may not serve.


Announcements: EJIL:Live!; Venice Human Rights Academy; Munich Int’l Law Course; Conference on Charlie Hebdo Attacks (Paris); Conference on EU Law & Public Int’l Law (London)


1.  In case you missed it, a new episode of EJIL: Live!, the Journal’s official podcast, is now available online. In this episode EJIL’s Editor-in-Chief, Prof. Joseph Weiler interviews Oisin Suttle of the University of Sheffield. They engage in an in-depth discussion of Suttle’s article, “Equality in Global Commerce: Towards a Political Theory of International Economic Law”, which appears in Vol. 25, Issue 4. The interview was recorded at the European University Institute in Florence, Italy.

2.  The faculty includes Albie Sachs (distinguished opening lecture), Will Kymlicka  (general course), Armin v. Bogdandy, Andreas Føllesdal, Marc Weller and Marlene Wind. The Venice Academy of Human Rights 2015, in co-operation with PluriCourts – Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order, will look at international, regional and transnational integration processes from an institutional, policy, dogmatic and interdisciplinary perspective. The discussion addresses promises and challenges to communities of various actors, including citizens, peoples, minorities, but also communities of international and regional organisations, courts and private bodies. The course aims at academics, practitioners, PhD/JSD and master students. Applications are accepted until 3 May 2015 with an early-bird discount until 15 March 2015.

3.  The Munich Advanced Course in International Law (MACIL) is a summer school held at Ludwig Maximilian University Munich (Germany) and dedicated to questions of Public International Law. Its next session, entitled ‘International Law Beyond the State: Towards a New Role for Individuals and other Non-State Actors’, will take place in August 2015. (more…)

New Issue of the European Journal of International Law out: Further Discussion of Articles to follow here on this blog!


The latest issue of the European Journal of International Law has recently been published. This is Volume 20, No. 1. In his editorial, Professor Joseph Weiler (Editor in Chief) reflects on the founding of the Journal 20 years ago and on developments over the first 2o years of EJIL. He also points out that the current Volume of EJIL will be an anniversary volume with anniversary symposia on carefully selected topics in each issue of this volume. The table of contents of the current issue is as follows:

Special Anniversary Article
Martti Koskenniemi, “The Politics of International Law – 20 Years Later

Changing Paradigms in International Law: A Symposium
Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”
Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law”
Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”
Martin A. Schain, “The State Strikes Back: Immigration Policy in the European Union”

Marc Weller, “Settling Self-determination Conflicts: Recent Developments”

EJIL: Debate!
Mónica García-Salmones, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Reply to Rosie Cooney and Andrew Lang”
Andrew Lang & Rosie Cooney, “Taking Uncertainty Seriously: Adaptive Governance and International Trade: A Rejoinder to Monica Garcia-Salmones”

Critical Review of Jurisprudence: An Occasional Series
Pasquale De Sena & Maria Chiara Vitucci, “The European Courts and the Security Council: Between Dedoublement Fonctionnel and Balancing of Values”

Abstracts of all of these articles and full texts of some are available, free of charge, on the website of the journal.

One of the purposes of this blog is provide a forum for the discussion of scholarship published in EJIL. To that end we will, in the coming days and weeks, be hosting online symposia on the articles published in this issue. The purpose of these online symposia is to facilitate engagement with and conversations about the work published in the journal. We will invite particular scholars to comment on the articles published in the journal. However, we very much encourage readers to take part in this conversation by providing comments on work published in the journal or on the comments made on those articles.

This week, we will host the EJIL: Debate! between Mónica García-Salmones on the one hand and Rosie Cooney  and Andrew Lang  on the other hand on the topic of “Taking Uncertainty Seriously: Adaptive Governance and International Trade”.