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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.
Addressing both scholars of international law and political science as well as decision makers involved in cybersecurity policy, the book tackles the most important and intricate legal issues that a state faces when considering a reaction to a malicious cyber operation conducted by an adversarial state. While often invoked in political debates and widely analysed in international legal scholarship, self-defence and countermeasures will often remain unavailable to states in situations of cyber emergency due to the pervasive problem of reliable and timely attribution of cyber operations to state actors. Analysing the legal questions surrounding attribution in detail, the book presents the necessity defence as an evidently available alternative. However, the shortcomings of the doctrine as based in customary international law that render it problematic as a remedy for states are examined in-depth. In light of this, the book concludes by outlining a special emergency regime for cyberspace.
This book offers a comprehensive analysis of the international law applicable to cyber operations, including a systematic examination of attribution, lawfulness and remedies. It demonstrates the importance of countermeasures as a form of remedies and also shows the limits of international law, highlighting its limits in resolving issues related to cyber operations. There are several situations in which international law leaves the victim State of cyber operations helpless. Two main streams of limits are identified. First, in the case of cyber operations conducted by non-state actors on the behalf of a State, new technologies offer various ways to coordinate cyber operations without a high level of organization. Second, the law of State responsibility offers a range of solutions to respond to cyber operations and seek reparation, but it does not provide an answer in every case and it cannot solve the problem related to technical capabilities of the victim.
In his 1995 treatise Fairness in International Law and Institutions, Thomas Franck described what he called the ‘reality-altering’ potential of the UN Charter’s system of collective security in these words.
This chapter argues that the case for just redistributive wars is ambiguous. It looks through the standard sufficient conditions for just war theory: there is reason to believe that the severity of global poverty is sufficient to be a just cause for war given its comparison with crimes against humanity and interpreting the definition of aggression; the question of legitimate authority is murkier, there is an acceptance that unjust state have the right to self-defence against aggressors, but the likelihood of unjust states waging a war in this context seems unrealistic; the question of last resort is difficult to assess but there is at least a case to make that in the face of intransigent non-compliance all reasonable choices are exhausted; reasonable probability of success is difficult to assess because reasonability is contingent and there are numerous examples of intuitively just wars being fought with long odds; finally, proportionality seems hard to discount even if the burdens are high, because the status quo is so onerous. The case for just war seems vaguely plausible, until it collides with reality where the asymmetry of power between affluent and poor states makes defeat inevitable for the latter.
Over the last decade, the concept targeted killing has received much attention in debates on the customary interpretation of the right to self-defence, particularly in the context of practices such as US armed drone attacks. In these debates, government silence has often been invoked as acquiescence to the jus ad bellum aspects of targeted killing. Focusing on the question of state silence on targeted killing practices by the Israeli and US governments in recent years, this article investigates over 900 UN Security Council and Human Rights Council debates and argues that there has been no tacit consent to targeted killing. The analysis firstly shows that the majority of states have condemned Israeli targeted killing practices and have raised concerns about armed drone attacks, while falling short of directly protesting against US practices. The article, secondly, applies the customary international law requirements for acquiescence and challenges the idea that silence on US armed drone attacks can be understood as a legal stance towards targeted killing. The article, finally, investigates the political context and engages with alternative interpretations of silence. Contextualizing acts of protest and lack of protest within an asymmetrical political context, the article posits that the invocation of silence as acquiescence in the case of targeted killing is problematic and risks complicity of legal knowledge production with the violence of hegemonic actors.
Kant’s essay ‘On a Supposed Right to Lie from Philanthropy’ claims that everyone has an unconditional duty of right not to lie under any circumstances. This claim creates a conflict within the doctrine of right because Kant also claims that each of us is under an unconditional duty of right to obey the positive law in force in the civil condition in all circumstances. In Kant’s specific example, truthfulness would violate the positive law because it would make the speaker an accomplice to a crime. Since both duties flow from the requirement that we not act inconsistently with the possibility of rightful relations among humans, a juridical solution to the conflict must be possible. That solution is to recognize that lying in appropriate circumstances is akin to the use of force in self-defence or defence of a third party.
On 3 October 2015, the Médecins Sans Frontières (MSF) Trauma Centre in Kunduz, Afghanistan was bombed during a US–Afghan joint military operation to retake the city. Even before that night, attacks on health-care facilities in war zones were already a worrying trend and a major concern for humanitarian organizations. Such attacks have led both MSF and the International Committee of the Red Cross (ICRC) to launch campaigns1 addressing the need for greater protection of the medical mission in situations of armed conflict. Nonetheless, the scale and specific context of the attack on the Kunduz Trauma Centre have given rise to various specific investigations2 and provoked many more questions that this article will explore. The article will delve into the “many mistakes” scenario that has been presented by the US investigation in order to critically analyze whether these mistakes may originate from either incorrect or biased interpretations or implementation of international humanitarian law.
The right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within the jus ad bellum paradigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986 Nicaragua decision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.