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This chapter focuses specifically on the Council’s contribution to the international law on the use of force (the jus ad bellum), an area of international law that is central to the Security Council’s role in the maintenance of international peace and security and the collective security system of the United Nations. The chapter addresses, first, the general state of the rules of international law on the use of force (the jus ad bellum). It then outlines the rules themselves. This is followed by sections relating directly to the Security Council: the prohibition of the use of force; the use of force by or authorized by the Council; the Council and the right of self-defence; and the Council and ‘humanitarian intervention’ and ‘responsibility to protect’.
This chapter, which is split into three parts, covers Germany’s perspective on the use of force; armed conflict and international humanitarian law; and arms control and disarmament. The first part discusses the finding of the German Constitutional Court that self-defence against non-State actors is a tenable interpretation of Article 51 of the UN Charter; the Federal Government justifying the fight against ‘ISIL’ in Syria on grounds of collective self-defence; Germany’s take on the legality of the Turkish invasion of north-eastern Syria under international law; Germany backing India’s cross-border strikes against terrorists in Pakistan-administered Kashmir; and Germany’s position that Saudi Arabia was invited to intervene in Yemen. The second part deals with the launch of the Humanitarian Call for Action by France and Germany; Germany opposing the new US position on Israeli settlements in the occupied West Bank; and Germany commenting on the ILC draft principles on the protection of the environment in relation to armed conflict. Germany’s condemnation of DPRK’s missile test is addressed in the last part.
The 1948 war is regarded by Israel as its war of independence in which it managed to repel attacks by all the neighboring Arab States. The Arab population of Palestine regard the war as a catastrophe, al Nakba, that caused the exodus of some 750, 000 Arabs. As a result of the 1948 war, Israel occupied the Western Galilee and Beersheba, Jordan occupied the West Bank and Egypt occupied the Gaza strip, all territories allocated to the proposed Arab State. Israel and Jordan divided Jerusalem between them. International law issues arising from the war include complaints from both sides of deliberate killing of civilians, clearly a violation of the laws of war. Expulsion of civilians, where it occurred, was justified by Israel as an act of legal military necessity, this is disputed by the Palestinians who viewed it as an illegal act. A smaller number of Jewish civilians were expelled from areas held by Arab forces. A legal issue in dispute is whether the objection of the Arabs of Palestine to partition allowed them to use force and whether the intervention of the neighbouring Arab States was a legitimate exercise of the right of collective self-defence.
The problem of women's access to self-defence has been internationally recognised. This paper presents original empirical data on women's use of self-defence in practice alongside critical feminist analysis of the requirements of self-defence under Scots law. The empirical findings confirm that women are rarely successful with self-defence at trial level and the doctrinal analysis further demonstrates that self-defence does not adequately reflect women's experience of violence, especially sexual violence, and instead continues to reflect male experiences of (public) violence. It is intended that this research will form part of a larger developing evidence base, the type of which has been called for (Fitz-Gibbon and Vannier, 2017) and can be used to support reform in this area. As such, it represents a significant contribution to socio-legal work that has considered the issue of women's access to criminal defences.
The relation between neutrality and the use of force is better to be kept within the law of armed conflict rather that the law on the use of force between States. This means that the right of self-defence cannot be the indispensable legal basis for the use of force between belligerents and neutrals. On the contrary it appears that neutral due diligence has been relied on as a basis to expand the scope of the right of self-defence. The latter is admissible as the basis for resort to force only in the case of resistance of a neutral State to repel belligerent violation of its territory or by a belligerent that fully complies with its duties under the law of neutrality.
This article examines the United Kingdom’s use of drones in an act of self-defence in a counter-terrorism operation. The government justified the targeted killing of a UK citizen in Syria – a country with which it was not at war at the time – with reference to existing laws and norms. In doing so, it contested a number of established concepts to justify its conduct as lawful activity. The article argues that modern weapons such as drones, which are used to address novel threats, lead to legal justification that in turn has the potential to create new laws. In this way, the intersection of norms, warfare and new technologies becomes a productive site of political contestation. The contribution of the article is twofold: empirically, it contributes to debates on targeted killing and discussions surrounding the meaning and interpretation of ‘imminence’ in the context of preventive self-defence in the United Kingdom; and theoretically, it adds to the constructivist literature by examining norm contestation and resulting normativity in this area. The article concludes that the legal justification in this particular instance has important implications for other emerging technologies that require discussions about how states justify their actions to conform with existing legal and normative frameworks.
Section J is an analysis of the 1996 Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons under jus ad bellum, jus in bello and international human rights law.
Section L discusses the implications of the rules and principles identified in the preceding Section for an effective NC3 system. It identifies the potential elements of an NC3 mechanism States should consider with a view to ensuring that their conduct of nuclear operations will be in compliance with their international legal obligations.
I argue that lying in business negotiations is pro tanto wrong and no less wrong than lying in other contexts. First, I assert that lying in general is pro tanto wrong. Then, I examine and refute five arguments to the effect that lying in a business context is less wrong than lying in other contexts. The common thought behind these arguments—based on consent, self-defence, the “greater good,” fiduciary duty, and practicality—is that the particular circumstances which are characteristic of business negotiations are such that the wrongness of lying is either mitigated or eliminated completely. I argue that all these “special exemption” arguments fail. I conclude that, in the absence of a credible argument to the contrary, the same moral constraints must apply to lying in business negotiations as apply to lying in other contexts. Furthermore, I show that for the negotiator, there are real practical benefits from not lying.
This chapter is the third and last one dedicated to the analysis of 19th State practice. It turns to precedents of justifying force in the ‘peripheries’, i.e., non-‘European’ spaces. Four case studies are more particularly analysed: building from the work of Inge Van Hulle, it looks at British colonial expansion in Western Africa; at the Anglo-Zulu War (1879); at the French Tonkin expeditions in the 1870s and 1880s; and at the United States’ annexation of Hawaii (1893–1898). It shows that even though the status of ‘peripheral’ entities in the international legal system was debated, intervening States once more took care to develop legal arguments to justify their colonial and expansionist adventures. In so doing it completes the picture of the practice of justifying force in the nineteenth century.
This chapter is the first of three which attempts to question the assertion according to which the justifications brought forth by States when they resort to force were political and moral and had not legal content or reverberations. It focuses on instance of intervention in the 'centre', i.e., between so-called civilized nations. Five precedents are more particularly analysed in this Chapter: the Austrian intervention in Naples (1821), the Crimean War (1853–1856), the Franco-Prussian War (1870–1871), the Spanish-American War (1898), and the Austrian ultimatum to Serbia (July 1914). It shows how, in each of these instances, States took care to develop legal arguments to explain and justify their actions, sometimes even engaging in thorough debates about the legality of their respective behaviours.
Chapter 4 considers what is required for an ‘act of aggression’ to amount to the State act element of the crime of aggression – namely that it constitutes, by its character, gravity and scale, a manifest violation of the UN Charter. The chapter analyses the manifest violation threshold in order to provide meaning to it. A number of criticisms associated with the definition are rebuffed, particularly that the definition violates the nullum crimen sine lege principle and that the definition has given a green light to ‘lesser violations’ of the UN Charter. At the same time, on the basis of an exhaustive survey of State practice and opinio juris, it is demonstrated that the definition of the State act element of the crime of aggression under the Rome Statute is inconsistent with the crime’s customary definition, and that it will require the judges of the ICC to resolve controversies associated with unclear rules surrounding the prohibition of the use of force. The chapter finally considers the grounds for excluding criminal responsibility under Article 31 of the Rome Statute in relation to the crime.
Hamit Bozarslan, Ecole des Hautes Etudes en Sciences Sociales, Paris,Cengiz Gunes, The Open University, Milton Keynes,Veli Yadirgi, School of Oriental and African Studies, University of London
This chapter historically contextualizes the Kurdish Women’s Freedom Movement and analyses the trajectory of its organizational structures from 1987 to the present. It traces how the women’s movement managed to establish its own army (1995) and party (1999) within the PKK, while also establishing the co-chair system and the women’s quota in the political sphere in the early 2000s. The chapter zooms into one crucial moment of contestation between the women and men of the movement: the formation of the Kurdistan Women’s Worker’s Party (Partiya Jinên Karkerên Kurdistanê, PJKK) in 1999. It asks to what extent this and similar internal struggles can help us to gain a more nuanced understand of how the women managed to carve out the spaces for autonomous organizing within the wider movement, how the liberation of women came to feature so prominently in the movement’s ideology and how this speaks to ongoing debates around nationalism and feminism. The chapter also highlights some of the tensions and contradictions that emerge between the claim to liberation and the clear framework around the ‘free woman’.
This chapter examines quasi-covert conduct, that is, acts that are acknowledged and justified in part; hypothetical justifications not related to an acknowledgement of actual conduct; and acts that are acknowledged or justified after some time. Focusing primarily on the United States’ drone strikes in Pakistan under the Obama administration, it is demonstrated how quasi-covert operations pose significant challenges to the development of international law by creating uncertainty as to the way in which specific conduct may alter international law, and as to when states need to react in order to avoid their silence being interpreted as acquiescence.
This book explores how best to recalibrate our understanding of international lawmaking through the lens of increased reporting and legal debate around covert and quasi-covert uses of force. Recent changes in practice and communication call for closer attention to be paid to the requirement of publicity for state practice, since they challenge the perception of the concepts 'public' and 'covert', and thus raise questions as to the impact that covert and quasi-covert acts do and should have on the development of international law. It is argued that, in order to qualify as such practice, acts must be both publicly known and acknowledged. The book further examines how state silence around covert and quasi-covert operations has opened up significant space for legal scholars and other experts to influence the development of international law.
This chapter considers three different torts: battery (unlawful physical touching); assault (an apprehension or threat of unlawful touching); and false imprisonment (unlawful confinement or constraint). While their common aim is to protect the integrity of C’s person, the ingredients of each tort are quite disparate.
As a preliminary matter of terminology: trespass to the person is a form of action, but assault, battery, and false imprisonment are causes of action.
The primary source of law before the Court is the Statute itself and the principal subsidiary instruments, the Elements of Crimes and the Rules of Procedure and Evidence. The Court may also refer to relevant rules of international law, notably those of international humanitarian law and international human rights law. Article 25 of the Statute sets out the various forms of participation in crimes starting with direct perpetration but also including ordering and forms of complicity and attempt. Article 28 defines so-called command or superior responsibility, by which an individual may be held responsible for crimes perpetrated by subordinates. The Court cannot prosecute an individual who was under 18 at the time of the crime. Statutory limitation of crimes within the Court’s jurisdiction is prohibited. There is a presumption that all crimes subject to the Court’s jurisdiction require proof of intent and knowledge. Several defences are codified: diminished mental capacity, voluntary intoxication, self-defence, duress and necessity, mistake of law and mistake of fact and, under limited circumstances, superior orders.
This chapter analyses the preconditions of invoking self-defence against a malicious cyber operation. After examining the notion of 'armed attack' and under what circumstances a cybersecurity incident may reach the critical threshold, the study focuses on the question of attributing the malicious conduct to a state actor. Depending first on identifying the acting individual whose hacking then needs to be linked to a state via the rules enshrined in the ILC Articles on State Responsibility, the question of the applicable standard of evidence is analysed in detail. Concluding that the technical peculiarities of cyberspace will often prevent states from presenting a sufficient amount of proof of adversarial state involvement in a timely manner, the chapter exposes the inherent difficulties in connection with the doctrine of self-defence in cyberspace.