Home Posts tagged "humanitarian intervention"

The Diversity of Rules on the Use of Force: Implications for the Evolution of the Law

Published on November 11, 2019        Author: 

Last month, I had the pleasure and honour to deliver one of the keynote lectures at the Canadian Council of International Law Annual Conference. The theme of the conference was “Diversity and International Law” and I chose to speak about the diversity of rules on the use of force and the implications of that diversity for the evolution of the law. I am pasting the text of my lecture here

In this lecture I wish to address the question whether the law relating to the use of force – as set out in the UN Charter – has been capable, and is capable, of adapting to meet new threats and challenges facing the international community. My focus is not on the substance of the rules but rather on how they change. In particular, I wish to show that we need to be attentive to the nature of diverse nature of the rules in this area as we think about the possibility of their evolution.

Yesterday was the 74th anniversary of the entry into force of the United Nations Charter. It was around the time of the 50th anniversary of the UN that literature began to emerge suggesting that we might think of the UN Charter as a constitution for international society. Whether one agrees with that characterisation or not the Charter shares at least a couple of features with constitutions – it aims to lay down an overarching framework for the community it applies to, and is intended to be an abiding document in terms of duration. This immediately raises questions about whether the document can continue to regulate new and unforeseen challenges. This is particularly true of the Charter rules relating to the use of force.

Areas Where Evolution of the Charter Rules on Use of Force Have Been Called For

One can think of at least four areas where it has been argued that rules of the UN Charter ought to be adapted (or have been adapted, depending on one’s point of view) to meet new challenges : Read the rest of this entry…


The Syria Strikes: Still Clearly Illegal

Published on April 15, 2018        Author: 

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.

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Filed under: EJIL Analysis, Syria, Use of Force

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…


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…


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…


Excusing Illegal Use of Force: From Illegal but Legitimate to Legal Because it is Legitimate?

Published on April 14, 2017        Author: 

The US missile strikes on Syria have, inter alia, revived the debates on humanitarian intervention, the argument of ‘illegal but legitimate’ and more generally on the exceptions to the prohibition of the use of force. For some examples see here, here and here. Some contributors have pointed out that the US did not even try to bring this action within the ambit of the Charter rules on the use of force, and that the absence of Charter-based arguments may even be a good thing as it preserves the strength of Article 2(4). Others have cautioned that the strength of the rules on the use of force might nevertheless be undermined, as singular ‘exceptional’ cases result in a pattern.

This post argues that, analogous to the concept of defences in municipal legal systems, international law on the use of force should adopt a systematic distinction between justifications and excuses. As responses to the US missile attack in Syria demonstrate, the two concepts are conflated. The result is that legality is often assessed on the basis of excuses. If the trend of conflation continues, the controversial doctrine of ‘illegal but legitimate’ will move toward an even more controversial doctrine of ‘legal because it is legitimate’.

Justifications are legally-warranted exceptions to the general prohibition. As such, they are a way out of illegality. Excuses, on the other hand, are not a way out of illegality, but act as mitigating circumstances that preclude responsibility for an otherwise illegal conduct. Under some circumstances, breaching the law may indeed be the choice of a lesser evil. As noted by Vaughan Lowe in his 1999 EJIL article, a legal system may wish to provide a defence for emergency drivers who breach the speed limit on the way to hospital. There are two ways of achieving this goal. One way is to give them an explicit authorization to breach the speed limit. The other one, however, does not authorize speeding, but rather ensures that emergency drivers are not prosecuted upon such a breach of traffic rules. The first (justification) relaxes the norm itself and may well result in wider disobeying of the speed limit than the second, which merely provides for a carefully weighed excuse of culpability where the norm was doubtlessly breached. In other words, it is better if the general norm is strong and ‘catches’ more violators whose excuses are then considered on a case-by-case basis. I elaborate on these issues in more details in this 2015 concept paper. In the present context, might the ‘emergency driver logic’ apply to the US strike in Syria? Even if it did, it would not make this action legal. Possibly, the US could only escape responsibility for this internationally wrongful act.  Read the rest of this entry…


Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

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