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Home Posts tagged "self-defence"

Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Published on February 28, 2019        Author: 
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Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

Read the rest of this entry…

 

The Modern Law of Self-Defence

Published on January 11, 2017        Author: 
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Text of the speech delivered this evening by United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP, at the International Institute for Strategic Studies, London on “The Modern Law of Self-Defence”:

Introduction

Thank you to the International Institute for Strategic Studies for hosting us today.

The Institute’s Mission Statement sets out its aim to promote ‘the development of sound policies that further global peace and security, and maintain civilised international relations.’

For my part, I welcome the opportunity to speak to you on an international question which is one of the most serious any government can face – when is it lawful for a state to use force – always a last resort and only where it is necessary.

Today I want to talk specifically about when it is lawful to use force in self-defence – whether of the UK, or of our allies. And I want to set out, in greater detail than the Government has before, how the UK applies the long-standing rules of international law on self-defence to our need to defend ourselves against new and evolving types of threats from non-state actors.

I don’t need to remind this audience that the UK is a world leader in promoting, defending and shaping international law. In the 19th Century as modern international law was being formed, it was the UK (in 1807) that helped outlaw and end the international slave trade and then slavery itself.[1] It was diplomatic correspondence between the United Kingdom and the United States which followed the Caroline Incident of 1837 that defined the parameters of the concept of imminence, as it was understood at that time and to which I will return.[2] It was the UK, with the US, which agreed to international arbitration as a means for the settlement of international disputes in the Jay Treaty of 1795.[3]  Our commitment to defending and shaping international law is undimmed since then. The UK was a founding member of the League of Nations and the United Nations, as well as an original signatory to the Kellogg-Briand Pact[4], Ottawa Treaty[5] and the Rome Statute.[6] And we are one of the biggest contributors of funding to the International Criminal Court.[7] We are also the only permanent member of the UN Security Council that recognises the compulsory jurisdiction of the International Court of Justice[8], and we remain one of the largest contributing states to the International Committee of the Red Cross[9], supporting it in its endeavours to promote and strengthen international humanitarian law.

As the latest in a long line of Attorneys General, I follow in a tradition of advocating, celebrating and participating in a rules-based international order. On several occasions in its history, the United Kingdom has subjected itself voluntarily to the jurisdiction of various international tribunals. My predecessors and I have appeared before a variety of international tribunals on behalf of the UK. And while we do not win every point in every case, I believe this personal investment demonstrates the commitment to international law of those who have done my job.

Of course, consistent with our commitment to that rules-based international order, the UK may on occasion decide to withdraw from a particular international agreement. You may have noticed that the British public has asked us to do so recently, with regard to one such set of agreements. The government is acting on that mandate, through the process of withdrawal from the European Union, and is doing so in accordance with Article 50 of the Treaty on European Union – in other words, in a manner fully compliant with international law. That is the nature of the country we are, and the nature of our commitment to the Rule of Law.

There are few more fundamental rules of international law than the prohibition of the use of force and the right of self-defence, defined in customary international law and codified in important respects in the UN Charter.[10]

The UK should and will only use armed force, and will only act in self-defence, where it is consistent with international law to do so. International law sets the framework for any action taken by Sovereign States overseas, and the UK acts in accordance with it.

Today, I want to spell out how we ensure that we do so. Read the rest of this entry…

 

A Plea Against the Abusive Invocation of Self-Defence as a Response to Terrorism

Published on July 14, 2016        Author: 
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The use of force in self-defence against terrorist groups is one of the most controversial issues in the field of jus contra bellum today. Particularly since 9/11, several States have supported a broad reading of the right to use force in self-defence, as allowing them to intervene militarily against terrorists whenever and wherever they may be. A consequence of that conception is that any State could be targeted irrespective of whether that State has ‘sent’ the irregular (in this case terrorist) group to carry out a military action or has been ‘substantially involved’ in such an action, to use the terms of Article 3g) of the Definition of Aggression (annexed to GA Res 3314 (XXIX)) considered by the ICJ as reflecting customary international law. However, an even more substantial number of States do not seem to subscribe to this broad reading of the right to self-defence. The Non-Aligned Movement, for example, representing some 120 States, has regularly expressed its clear reluctance to adhere to this view. Thus, in February 2016, in an open debate before the UN Security Council on ‘Respect for the principles and purposes of the Charter of the United Nations as a key element for the maintenance of international peace and security’, the Non-Aligned Movement reaffirmed that ‘consistent with the practice of the UN and international law, as pronounced by the ICJ, Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted’ (S/PV.7621, 15 February 2016, at 34).

But what about international lawyers? The reaction on their part has been equivocal. Some have supported a broad interpretation of Article 51 of the UN Charter, focusing on the possibility to invoke self-defence against terrorists. Others argue in favour of a more ‘restrictive’ and classical reading of the Charter. Following this second line of reasoning, a plea against the abusive invocation of self-defence as a response to terrorism has been drafted by a group of scholars (available here). The aim of this post is to (i) explain in what context and how this plea was conceived, and (ii) briefly describe its main characteristics. Read the rest of this entry…