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This article focuses on the application of autonomous weapons (AWs) in defensive systems and, consequently, assesses the conditions of the legality of employing such weapons from the perspective of the right to self-defence. How far may humans exert control over AWs? Are there any legal constraints in using AWs for the purpose of self-defence? How does their use fit into the traditional criteria of self-defence? The article claims that there are no legal grounds to exclude AWs in advance from being employed to exercise the right to self-defence. In general, the legality of their use depends on how they were pre-programmed by humans and whether they were activated under proper circumstances. The article is divided into three parts. The first discusses how human control over AWs affects the legality of their use. Secondly, the article analyses the criteria of necessity and proportionality during the exercise of the right to self-defence in the context of the employment of AWs. Finally, the use of AWs for anticipatory, pre-emptive or preventive self-defence is investigated.
The chapter covers Germany’s perspective on the use of force, armed conflict and international humanitarian law, and arms control and disarmament. The first part addresses Germany’s position on the US killing of Iranian General Soleimani, Germany condemning Iranian missile attacks on US bases in Iraq and Germany refining the right of sustainable self-defence. The second part shows the German Federal Court of Justice reaffirming that there is no justification in international law for attacks by the Kurdistan Worker’s Party, the German government’s stand on foreign troop presence in Syria, Germany’s stand on the law of occupation regarding US forces in Syria, Germany considering Israeli settlement activities in the Occupied Palestinian Territories illegal, Germany’s view on drones, the Federal Constitutional Court affirming only States can claim compensation for violations of international humanitarian law, and the Federal Administrative Court ruling the US may continue to use its base in Germany. The third part covers Germany’s criticism of US anti-personnel landmine policy and Germany’s condemnation of North Korean missile tests.
The first power of the police is their ability to use force to protect and rescue third parties. This understanding departs in a critical way from the Weberian argument that the government has a monopoly on the use of force by observing that a police officer’s ability to use force to defend others is available to all people. It is not only provided for under laws that allow all people to defend others but also as a moral prerogative that exists prior to and outside of political arrangements, democratic or otherwise. The police are distinguished from their fellow citizens by embodying a role that discharges protection and rescue as a duty, rather than a prerogative. The discharge of this duty by what Nozick would call a “dominant protective association” is a necessary requirement to demarcate the state from nature, suggesting that the police role is integral to the definition of the state and a requirement of its initial formulation. From this duty follows the role responsibility to use this force as minimally and economically as possible, and as a backstop, the police role further sanctifies life by creating the citizen’s duty to retreat from interpersonal threats when they can safely do so.
The policeman was beset by the same profound questions of moral philosophy as any other member of mankind.
– William K. Muir, Police: Streetcorner Politicians, 1977
Moral Issues in Police Work, published in 1985, opens with this observation:
The police are among the most powerful agents of the state. They can disrupt the daily routines of citizens more than any other public official by deciding who shall be stopped, who shall be detained, who shall be arrested, and who shall go free. Not even the President of the United States has their immediate and direct power over life and death. Yet despite their awesome capacities, until recently they have been studied little by social scientists or philosophers.
(Elliston & Feldberg, 1985, p. 1)
There has since been much progress, at least where social science is concerned. There have been many systematic studies of police behavior and its effects. Criminal justice and criminology have grown into popular, although often vocational, fields of inquiry. Legal scholarship on the intersection between policing and the American justice system thrives. The ethics of policing has also seen considerable growth as a result of fruitful research by John Kleinig, Seamus Miller, and John Blackler, among others. John Kleinig’s (1996) work consists of sustained and nuanced thought about issues such as discretion, deception, coercion, and the institutional culture of policing’s ethical challenges. Seamus Miller (2016) takes up the police use of deadly force at length, and along with former police officer John Blackler (2017) has examined the role of the police and its practical implications as an exercise in applied philosophy. At present, the cutting edge of the philosophical tradition is represented by Luke Hunt’s 2018 book, The Retrieval of Liberalism in Policing. It looks at policing through the lenses of dignity and a liberal conception of personhood, seeking to ground the issues that concern Kleinig and Miller in the concepts of political philosophy. Hunt offered his work in response to what he perceives as a receding of liberalism in policing, and perhaps society at large, over the last several decades (2018, pp. 1–2).
This chapter discusses how the CJEU invokes and applies substantive customary international law rules within the EU legal system; to which extent they are relevant to this system: whether the interpretation of these rules by the CJEU conforms to the traditional rules of interpretation in international law; and whether the Court pursues a specific strategy in doing so (and whether there is coherence and/or certain patterns to its jurisprudence in this respect). The substantive customary international rules used by the CJEU and thus further assessed here are those governing ‘territory’, ‘territoriality’ and ‘extra-territoriality’; substantive customary rules of the VCLT (other than interpretation rules); and lastly, some of the most fundamental rules of international law (such as the prohibition of the use of force and the right to self-determination).
The United Nations Security Council has the authority to adopt binding decisions and to authorise military means to ensure international peace and security. Whereas the Security Council is not typically associated with animal protection, wildlife issues have become an international security concern. Wildlife poaching and trafficking of wildlife products finance criminal networks and armed groups. The Security Council has adopted several resolutions addressing wildlife poaching and trafficking as commodities with implications on international security. Poaching and trafficking of wildlife have also been met with militarised anti-poaching enforcement – on a few occasions in cooperation with United Nations Peacekeeping forces. The militarised responses may contribute to protect wildlife, but they also risk escalating the violence affecting local communities. The chapter argues that the Security Council needs to address wildlife poaching and trafficking broadly, resorting to binding decisions. It should authorise military means only as a last and temporary resort.
The role of the UN Security Council in the protection of civilians has evolved significantly over the last twenty-five years. This chapter describes how civilian protection has become not only a mandate for UN peacekeeping but also the grounds for Council authorisation of military action. The chapter also describes the difference (and overlap) between the protection of civilians and the doctrine of Responsibility to Protect (R2P). It also touches on the controversial issue of unilateral humanitarian intervention as a means to protect civilians.
International organisations reflect global power configurations and as such, are deemed to reproduce global inequalities. Nevertheless, they also represent opportunities for the Global South to challenge the global stratification of power, for instance by providing personnel to international agencies and bureaucracies. This article examines the role of leadership personnel from the Global South in implementing robust peacekeeping mandates.
Given that states from the Global South have often been hesitant to support the use of force internationally, can leadership positions in peace operations help these states to influence norms at the implementation level? We develop a conceptual understanding of individuals’ role in implementing norms and apply the framework to military force commanders from Brazil, India, and Rwanda. The analysis demonstrates that appointments provide an opportunity for norm contestation, but do not necessarily guarantee such influence. Under certain circumstances, we find that military force commanders can actually undermine their governments’ preferences. However, the relation between force commanders’ practices and their country of origin's policy stance is complex and influenced by a variety of different factors that merit further investigation.
This chapter considers the interaction of the Security Council with other international organizations in relation to the use of force and the role that international organizations may play in implementing Council authorizations to use force. This is an area where the Security Council, the international organizations concerned, and member states have shown great flexibility, with the provisions of the UN Charter (both Chapter VII and Chapter VIII) and of the constituent instruments of the regional and other organizations being developed through extensive practice. A difficult question, however, arises where member states grant regional organizations the authority to carry out such interventions without the target state’s consent to the specific action and without Council authorization, in particualr in light of Article 4(h) of the Constitutive Act of the AU. The chapter concludes that it cannot be said that Article 4(h) of the AU Constitutive Act or similar provisions allow for the use of force without Security Council authorization. The Council remains the body vested by member states with the power to authorize ‘enforcement action’.
This chapter challenges legislative and judicial efforts to immunize police officers from all but the most outrageous misconduct by finding “objectively reasonable” virtually all uses of force by officers and providing “qualified immunity” in the rare instance when the use of force is deemed excessive. This failure to provide any sort of check or deterrent against the use of force by armed, implicitly biased officers improperly strengthens the weapon in weaponized racial fear and further empowers bias-motivated individuals to act on their biases.
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 UN Security Council and International Law explores the legal powers, limits and potential of the United Nations Security Council, offering a broadly positive (and positivist) account of the Council's work in practice. This book aims to answer questions such as 'when are Council decisions binding and on whom?', 'what legal constraints exist on Council decision making?' and 'how far is the Council bound by international law?'. Defining the controlling legal rules and differentiating between what the Council can do, as opposed to what it should do as a matter of policy, this book offers both a tool for assessment of the Council as well as realistic solutions to address its deficiencies, and, most importantly, evaluates its potential for maintaining international peace and security, to the benefit of us all.
This chapter examines how a cyberattack that has consequences similar to a kinetic or physical attack – causing serious loss of life or physical damage – could be encompassed within the crimes that may be prosecuted before the International Criminal Court (“ICC”). While it is a very limited subset of cyber operations that might fall within the ambit of the ICC’s Rome Statute, the chapter explains when and how a cyberattack could constitute genocide, crimes against humanity, war crimes, or the crime of aggression. The chapter additionally acknowledges limitations as to which attacks would be encompassed, given, particularly, the ICC’s gravity threshold as well as the hurdle of proving attribution by admissible evidence that could meet the requirement of proof beyond a reasonable doubt. Notwithstanding such limitations, increased awareness of the largely previously overlooked potential of the Rome Statute to cover certain cyberattacks could potentially contribute to deterring such crimes and to reaching the goal of a state of “cyber peace.”
Military administration is the norm international law applies to territories that are not under the sovereignty of a State. Nevertheless, military government, by its nature, denies the local population the democratic right to choose their own form of government, and it is, therefore, intrinsically a temporary situation. Some ninety per cent of the Arab population on the West Bank are now under the jurisdiction of the Palestinian Authority but, nevertheless, the fact that there are still parts of the West Bank under Israeli military administration, some sixty years after the June 1967 War, is anomalous. It should be hoped that a solution will be found that allows the remaining ten percent of the local Arab population full democratic rights. Such a solution will need to be negotiated between Israel and the Palestinians.
Chapter 3 considers factual uncertainty in the jus ad bellum. It describes how the vagueness described in Chapter 2 can affect factual evidence in the jus ad bellum. Such situations are often chaotic, fast moving, involving actors trying to mislead, and where factual evidence is open to different interpretations. Tests such as necessity, imminence and proportionality require decision-makers to compare multiple forecasts of outcomes if force is used or not. Survey participants evaluating four fictional conflict scenarios, demonstrating how even fictional ‘facts’ elicit varying opinions. The ICJ’s rules of evidence only reduce rather than resolve factual uncertainty. The chapter suggests a second potential explanation for contestation in the jus ad bellum: lawyers resolve factual uncertainties and make forecasts using their politico-strategic and ethical intuitions, forming competing strategic cultures disagreeing about legality of specific cases and the jus ad bellum more generally. Thus ‘restrictivist’ lawyers prefer a ‘pacificist’ strategic culture, seeing little extra-legal justification for force, while ‘expansionist’ lawyers prefer an ‘interventionist’ strategic culture, seeing more such extra-legal justifications.
This book argues that lawyers must often rely on contestable ethical and strategic intuitions when dealing with legal and factual uncertainties in 'hard cases' of resort to force. This area of international law relies on multiple tests which can be interpreted in different ways, do not yield binary 'yes/no' answers, and together define 'paradigms' of lawful and unlawful force. Controversial cases of force differ from these paradigms, requiring lawyers to assess complex, incomplete factual evidence, and to forecast the immediate and long-term consequences of using and not using force. Legal rules cannot resolve such uncertainties; instead, techniques from legal risk management, strategic intelligence assessment and political forecasting may help. This study develops these arguments using the philosophy of knowledge, socio-legal, politico-strategic and ethical theory, structured interviews and a survey with 31 UK-based international lawyers, and systematic analysis of key International Court of Justice cases and scholarly assessments of US-led interventions.
This chapter begins by introducing a number of foundational concepts, which serve as the starting point in the field of public international law. Section 1 of this chapter begins with the notion that states are sovereign equals, which must consent to be bound by nternational law. This section also introduces the critical distinction that international law makes between states and “non-state actors.” Section 2 of this chapter discusses the inevitable comparison of public international law with domestic legal systems, and the significant limitations of this analogy as a means for understanding the field of public international law. Section 3 concludes by explaining this book’s overarching structure, as well as the approach of this book to the introduction of public international law.
This chapter introduces the jus ad bellum: the rules of law determining when states may resort to war or, more broadly, the use of armed force. These rules must be distinguished from the jus in bello: these are the rules of law that apply in armed conflict (known as international humanitarian law). In order to put the current jus ad bellum rules into perspective, the chapter begins by introducing the concept of collective security and demonstrating how this was applied during the League of Nations era. The following sections set out the relevant rules of the UN Charter on the prevention and regulation of recourse to the use of force, with a particular focus on the prohibition on the threat or use of force. The chapter also discusses the collective use of force, meaning the use of force authorized by the Security Council, and the unilateral use of force in self-defense. Finally, the chapter examines whether new exceptions to the prohibition of the use of force are emerging -- in particular, humanitarian intervention and the responsibility to protect.
This article examines when states are allowed to use force against neutral merchant ships outside territorial waters. This is regulated by both international humanitarian law and the prohibition of the use of force, which apply concurrently to naval warfare. The prohibition of the use of force imposes narrower limits than international humanitarian law, in the sense that certain actions that have traditionally been permitted under international humanitarian law are contrary to the prohibition of the use of force. The prohibition of the use of force exempts uses of force based on UN Security Council resolutions, consent and self-defence. Where there is no UN Security Council resolution or consent, self-defence remains the only option, and self-defence does not give a right to direct the use of force towards third states or their ships. Therefore, the right to self-defence does not permit blockades outside territorial waters or visit and search operations that are not founded on specific suspicions against individual ships, even though such operations may be permitted under international humanitarian law. These conclusions are supported by an examination of state practice and opinio juris, where the few relevant instances that do exist have met with widespread protests from other states.
Global climate change presents an unprecedented challenge for all academic disciplines. Here we analyse the challenge presented to certain basic concepts and principles of international law. While new legal regimes have been created and others adapted to respond to the threats posed by climate change, many foundational aspects of international law remain unchanged in the face of very significant problems. The first problematic area is that of the fundamental notion of statehood, as well as issues of sovereignty. And what of the impact of climate change on human rights and humanitarian intervention, as well as on notions of State responsibility and liability? The Asia-Pacific region is already feeling the impacts of frequent intense weather events (whether one sees these as climate change impacts or not) and has the highest figures for the number of displaced persons by region for natural disasters. Thus, where possible, this chapter will draw from examples in the Asia-Pacific region.