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Home Posts tagged "use of force"

Did the US Stay “Well Below the Threshold of War” With its June Cyberattack on Iran?

Published on September 2, 2019        Author: 

On 20 June 2019, the United States conducted a major cyberattack against Iran in response to Iran’s (alleged) attacks on oil tankers in the Hormuz Strait and the downing of an American surveillance drone. The attack was widely reported at the time, but on 28 August the New York Times published important new details, which included information about the legal-strategic thinking of the Americans. Specifically, it was reported that the US cybercampaign against Iran was “calibrated to stay well below the threshold of war”. Translated into legalese, this seems to imply that the Americans aim to keep their activities at a level that undoubtedly fall short of legal thresholds like article 2(4) of the UN Charter, which defines use of force, and common article 2 of the Geneva Conventions, which de facto triggers the laws of war. In this post, I discuss whether the Americans succeeded in keeping their distance from such thresholds.

The attack

In the original reporting on the attack by Yahoo! News, it was noted that the operation targeted “an Iranian spy group” with “ties to the Iranian Revolutionary Guard Corps”, which supported attacks on commercial ships in the Hormuz Strait. The precise object of attack was not specified, but it was mentioned that the group had “over the past several years digitally tracked and targeted military and civilian ships passing through the economically important Strait of Hormuz”.

The New York Times’ report explains that the cyberattack successfully “wiped out a critical database used by Iran’s paramilitary arm to plot attacks against oil tankers and degraded Tehran’s ability to covertly target shipping traffic in the Persian Gulf, at least temporarily”. The Iranians, it is noted, are “still trying to recover information destroyed in the June 20 attack and restart some of the computer systems — including military communications networks — taken offline”. Accordingly, the attack seems to have crippled the targeted system in a way that has taken it offline and, presumably, rendered it useless for months. The effects of the attack were “designed to be temporary”, officials said, but had “lasted longer than expected”. In terms of the specific target of the attack, it was reported that the target was the Iranian Revolutionary Guards’ intelligence group. Read the rest of this entry…

 

Hospital Bombings: Empirical and Theoretical Fallacies of Those Rejecting a Ban

Published on August 16, 2019        Author:  and

The argument we advance in our recent EJIL Article, ‘‘Hospital Shields’ and the Limits of International Law’, emerged from analysis of empirical data showing how, during the past several years, hospitals were being bombed on a daily basis. Comparing these attacks with official statements released by actors suspected of bombing hospitals, we discovered that one of the recurrent arguments used to legitimise the strikes was that the facilities had been transformed into ‘hospital shields’ and used to conceal military targets. We then decided to reconstruct the history of hospital bombings and found that since 1911 — the first time medical units were bombed from the air — belligerents have consistently justified aerial strikes by claiming that the medical units were being used to hide combatants or harbour weapons.  

This revelation led us to examine in detail the historical development of the legal clauses dealing with the protection of medical units in armed conflicts. Our analysis revealed that the clauses include a number of exceptions that have allowed belligerents to assert that the bombing was carried out in accordance with IHL. We argue that belligerents can do this since hospitals occupy a spatial and legal threshold during armed conflict, and that IHL, which is informed by the rigid distinction between combatants and noncombatants, does not have the vocabulary to deal with liminal people and objects. This, we maintain, enables belligerents to use the law to justify the attacks.  

Our assumption throughout the paper is that IHL is subject to constant interpretation and reinterpretation, and that the way states interpret the law — even if we disagree with their interpretation — helps to establish the law’s meaning. International law is, after all, shaped by states, and through their practices, manuals and utterances they help determine the interpretation of its clauses. Hence, the fact that for over a century many states, among them the most powerful ones, have justified the bombing of hospitals by claiming that they were used as shields is not something we can dismiss by simply claiming that they are misinterpreting the law. After all, those very states introduced the hospital shields exception.  Read the rest of this entry…

 

Silence and the Use of Force in International Law

Published on July 18, 2019        Author: , and

States frequently take actions and make statements that implicate international law. But because they do not — and, indeed, could not — express a view on each such act or statement by all other states at all times, silence seems to be the norm, rather than the exception, in international relations.

When states and other international actors do not express their views on a particular incident, issue or statement that implicates international law, what is the legal significance, if any, of their silence? Does it denote acquiescence or quiet protest? Might it not have legal significance at all? Who makes this determination? Who benefits, and who loses, from a finding that a particular silence does or does not yield legal consequences?

Over the years, several scholars — despite some calls for caution — have invoked the silence of states and other international actors as proof of support for particular legal views. This practice has been noticeable and increasingly frequent in jus ad bellum — the field of international law governing the threat or use of force in international relations. For example, writings on the following military actions (among others) invoke silence as having some type of legal significance: Read the rest of this entry…

 
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A Reply to Professor Kraska on the Iranian Shootdown of the US Global Hawk Drone

Published on July 17, 2019        Author: 

Prof. Kraska has argued in his latest EJIL: Talk! article that the incident regarding the downing of a US drone by Iran happened due to the scarce knowledge of international law by an Iranian Revolutionary Guard Corps (IRGC) commander. While I do appreciate Prof. Kraska’s discretion in referring to US intelligence sources, on the other hand the US President himself openly provided to the media the same assessment.

I will now concentrate on some points raised by Prof. Kraska:

  1. The US counterattack was cancelled.

This observation implies by default and without any specifics that the action conducted by Iran was in fact an attack confirming the US policy on the equivalence of  use of force with armed attack. One might disagree and follow the difference between the two as expressed by the ICJ in the Nicaragua case (para. 191). It is also difficult to understand this point of view, as the author did not state from the beginning that he was taking the US declarations on the position of the drone as a given fact. Even so, Iran’s declarations to the UN Security Council (UNSC) would have been worth mentioning to the reader for awareness purposes. In his letter, the Iranian Ambassador defines the US violation of his Country’s airspace as a “hostile act” to which Iran responded in self-defense. This is a shift on the interpretation of self-defense by Iran that actually aligns with the US view (use of force = self-defense). For more insights on the topic see here. Read the rest of this entry…

Filed under: Iran, Use of Force
 

Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?

Published on July 16, 2019        Author:  and

The International Law Commission (ILC) during its current 71st session has provisionally adopted, on first reading, the Draft principles on the protection of the environment in relation to armed conflict. The first-reading text had taken five years to prepare, under the successive leaderships of Special Rapporteurs Ms. Marie G. Jacobsson (2013 – 2016), and Ms Marja Letho (2017-2019). The last report of Special Rapporteur Letho (2019) completed the work on this topic, focusing in particular on the question of environmental stresses related to non-international armed conflicts (NIACs). This blog post deals first with certain general issues as to the scope and form of the draft principles, and then discusses whether the draft principles are sufficiently responsive in the context of NIACs.

Scope and methodology of the topic

With respect to the ratione temporis of the draft principles, the ILC employed a temporal approach by drafting provisions structured according to three phases of an armed conflict: before (preventive measures, but also principles of a more general nature of relevance to all three temporal phases), during (the conduct of an armed conflict) or after (post-conflict measures in relation to environmental damage) an armed conflict. The rationale of the topic was to address the law of armed conflict but also other areas of international law. The scope of the topic (peacetime and wartime obligations) inevitably influenced the outcome, which led the ILC to adopt “principles” at a more general level of abstraction, albeit with different normative values, from recommendations to fully binding rules. Read the rest of this entry…

Filed under: Armed Conflict, Use of Force
 
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The Attack on Syria and the Contemporary Jus ad Bellum

Published on April 15, 2018        Author: 

The United States, Britain, and France have attacked various chemical weapons facilities in Syria. Even before they acted, a number of commentators claimed that any such attack would be internationally unlawful. Below, I explain why that claim is too simplistic and how we should situate the operation in the jus ad bellum going forward. Let me say at the outset that I don’t support this operation and have serious doubts about the capacity of the United States, in particular, to implement a coherent policy in Syria. (I also think the operation violates U.S. law.) So, I’m not arguing that the operation was a good idea or even that it should be lawful. I’m making an analytic argument about how the jus ad bellum works.

The April 2017 Incident

This was not the first attack against Syria for its use of chemical weapons. In April 2017, the United States struck Syria for the same asserted reason: as a reprisal for the regime’s use of chemical weapons in violation of international law. At the time, most commentators said that the U.S. operation was unlawful. It was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by the Charter exceptions. Assad didn’t consent to the operation, the Security Council hadn’t authorized it, and it wasn’t taken in self-defense.

There is an ongoing debate about whether the jus ad bellum contains another exception for humanitarian interventions. The dominant view is that it does not. States (as a group) have periodically condoned unilateral operations that can be labeled “humanitarian,” but the vast majority of them have declined to support a generally applicable humanitarian exception to 2(4). They have instead insisted that no such exception exists. Further, even if there were one, its application to the 2017 operation would have been dubious. The operation looked more like a reprisal than like what we usually mean by a “humanitarian intervention.” President Trump said that it was designed “to prevent and deter the spread and use of deadly chemical weapons,” not to avert the many other atrocities that were being committed in Syria. Forcible reprisals are by almost all accounts unlawful. Read the rest of this entry…

Filed under: Syria, Use of Force
 

Hybrid Threats and the United States National Security Strategy: Prevailing in an “Arena of Continuous Competition”

Published on January 19, 2018        Author:  and

The dividing line between war and peace is blurred. This is one of the messages emerging from the National Security Strategy (NSS) of the United States of America adopted in December 2017. The United States is accustomed to viewing the world through the binary lens of war and peace, yet in reality, warns the new National Security Strategy, international relations is an “arena of continuous competition” (p. 28).

This is not exactly a new theme. The idea that war and peace are relative points on a continuous spectrum of confrontation, rather than mutually exclusive conditions, has become quite popular in recent years. Writing in 2013, General Valery Gerasimov, Chief of the General Staff of the Russian Federation, observed that the 21st century has seen a tendency “toward blurring the lines between the states of war and peace”. Speaking in 2015, Sir Michael Fallon, the former British Secretary of State for Defence, declared that contemporary adversaries are deliberately seeking to “blur the lines between what is, and what is not, considered an act of war”. More recently, Jens Stoltenberg, NATO’s Secretary General, suggested that in the past “it was easy to distinguish whether it was peace or war … [b]ut now there’s a much more blurred line”.

The fluidity of war and peace is central to the vocabulary of “gray zone conflict” and “hybrid warfare”. Both concepts are preoccupied with the strategic challenges that adversaries operating across multiple domains present. The notion of gray zone conflict puts the emphasis on the sphere of confrontation, concentrating on the fact that adversaries operate in the area of ambiguity that lies between the traditional state of war and state of peace (see US SOCOM, The Gray Zone). By contrast, the notion of hybrid warfare emphasises the modus operandi adopted by certain adversaries and competitors, focusing on their use of the full range of military and non-military means in a highly integrated manner (see NATO, Wales Summit Declaration, para. 13). Read the rest of this entry…

 
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Rattling Sabers to Save Democracy in The Gambia

Published on February 1, 2017        Author: 

On 19 January 2017, ECOWAS’ deployed a military contingent from five West African countries to enforce results of the recent democratic elections held in The Gambia. This post raises a few interesting/critical questions regarding its legality and the prohibition on the use of force.

Background

Mr. Adama Barrow won those elections in a run down against (now former) President Yahya Jammeh. After initially acknowledging defeat, Mr. Jammeh, whose regime has been accused of committing gross human rights violations, reversed his position alleging election irregularities. On 18 January 2017, after Jammeh declared a state of emergency, the Gambian National Assembly voted to extend his term for 90 days. Barrow was sworn into office during a ceremony celebrated in the Gambian embassy in Dakar, Senegal on 19 January 2017, and immediately requested the UN, in particular the Security Council, the African Union and ECOWAS for assistance in installing his democratically elected government.

The Peace and Security Council of the African Union adopted a communiqué  noting concern for Jammeh’s rejection of the election’s outcome, and decided to coordinate its activities with ECOWAS and the UN to facilitate a speedy and orderly transfer of power to Barrow. More importantly, it stressed the AU’s determination “[…] to take all necessary measures, in line with the relevant AU Instruments[,]” to ensure full compliance with the outcome of the elections. Read the rest of this entry…

Filed under: EJIL Analysis, Use of Force
 

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

Published on July 14, 2016        Author: 

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…