Introduction to Jus in Bello: Necessity, Humanity, and Distinction PDF

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Lecture 4 – Introduction to Jus in Bello: Necessity, Humanity, and Distinction How soon can a state respond in self-defense? How late can a state respond in self-defense? When is self-defense necessary?

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When is self-defense proportionate? Is the UK lawfully fighting in Syria? Could the UK lawfully target terrorists in France without France’s consent?

The Basic Rules: CIL of Self-Defence Immediacy • Self-defense cannot be carried out too long after an isolated armed attack was completed, because then it is revenge rather than self-defense. • Necessity • Force in self-defense is not necessary until peaceful measures have been exhausted, or when they would be clearly futile. • Imminence • Caroline: Lawful use of force in self-defense requires a “show of necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” • That is, if attack has not occurred, then certainty of attack must be extremely high (which also, by definition in human affairs, means it can’t be too far in the future) and based on hard intelligence. • jus ad bellum Proportionality • Force used in self-defense must be approximately symmetric: • to the “scale and effects” of the armed attack triggering self-defense, or • to the threat that the armed attack represents. •

Jus ad bellum Proportionality  When an armed attack is sufficiently grave, such as an all-out invasion, proportionality would allow a defensive war in response. • Once defensive war commences, there is no jus ad bellum limit on what the defending state can do to eliminate the aggressor state’s military capability. • US response to Pearl Harbor attack.  Legitimate self-defense may be more expansive when a state is responding to a series of low-level (“pin-prick”) armed attacks. • A state may act defensively to eliminate the threat posed by the attacks. • Legitimate self-defense may also become more expansive when the attacking state responds to the defending state’s use of force with more force. • No right of self-defense to force used in (lawful) self-defense. •

Using Force in Self-Defense Although there is no right of self-defense to force used in lawful self-defense, what happens if the selfdefense is unlawful? • What if France’s use of force in self-defense against an armed attack from Belgium is excessive (i.e. not proportional)? • Then France has committed an armed attack against Belgium and Belgium now has a right of self-defense. • Belgium is still the initial aggressor. • Now France is an aggressor as well, however.

Adjudicating Self-Defense Two stages: • Before using force in self-defense:  A state confronting an armed attack is the first to adjudicate the legitimacy of self-defense. • After force is used: • The Security Council, under Arts. 39 & 51, has primary authority is deciding the lawfulness of force used in self-defense. • The ICJ also has authority to adjudicate the lawfulness of force used in the self-defense – Nicaragua.  The Security Council may: • Give retrospective approval to the exercise of self-defense by one of the parties. • Impose a general cease-fire.

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Demand the withdrawal of troops to original lines. Demand the state claiming self-defense to cease its use of force, potentially replacing it with collective security measures. Decide that the state claiming self-defense was in reality the aggressor. If the SC makes a binding decision, such as a cease-fire, states must comply. If the SC is does not act, states may continue to use force in self-defense.

The Reporting Obligation: • “Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council . . ..” Art. 51 Reporting is prima facie evidence of the legitimacy of self-defense, but it is not decisive. • A state claiming self-defense may still be found to be the aggressor. • A failure to report cannot wholly undermine a lawful use of force in self-defense. Note: Covert uses of force in self-defense are not recognized by the Charter. SC Intervention: The Gulf War (1990-91) Iraq invaded and occupied Kuwait in August 1990. SC immediately acted with UNSCRs 660, 661, and 665 • Declared “a breach of international peace and security” (660) • Demanded immediate and unconditional withdrawal of Iraqi forces (660) • Imposed economic sanctions on Iraq (661) • Imposed a blockade on Iraq (665) UNSCR 678 (29 November 1990) • Authorized states cooperating with the government of Kuwait to use “all necessary means” to implement above UNSCRs if Iraq did not comply by 15 January 1991. UNSCR 678 (29 November 1990) • Required exhaustion of peaceful political process until 15 Jan. 1991: Necessity • Authorized collective self-defense, rather than collective security measures (i.e. a UN force) Was UNSCR 678 necessary to authorize collective self-defense? • No • It did have the effect of forestalling collective self-defense until 15 Jan. 1990, however. Did the collective self-defense on 15 Jan. 1990, 5 months after the armed attack by Iraq, satisfy immediacy? • Yes

Jus in Bello  Jus in bello Background  The Guiding Forces of jus in bello: • Military Necessity and • Humanitarian considerations • The Basic Rule: Distinction Jus in bello is the law governing conduct during hostilities (including the beginning of hostilities—i.e. also armed attacks and SD). • International Humanitarian Law (IHL) is the law of jus in bello. • Initially we will focus on the jus in bello of international armed conflicts (IACs). • An IAC is a conflict between two or more states. Terminology: No one other than Dinstein uses LOIAC. Everyone else uses IHL or LOAC.

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IACs vs NIACs There are some important differences between the law applicable in International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs). An armed conflict may be both an IAC and a NIAC (e.g. Syria) All fundamental IHL rules apply in NIACs as CIL

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Jus in Bello What bodies of law govern a state’s use of force? • Normal peacetime law enforcement: IHRL • Exceptional time of armed conflict: LOAC/IHL When does IHL apply? • Whenever 2 or more states resort to armed force in their relations. • There is no intensity or duration requirement. • Both sides do not even have to recognize the conflict for IHL to apply. Does IHL necessarily apply to all uses of force in an IAC? • No. • Key exception: law enforcement measures taken against criminals (generally away from hostilities) continue to be governed by peace-time law enforcement rules. Are all things fair in love and war? Can states use whatever weapons and methods they want to? No • The means and methods of warfare are not unlimited. Restricted by treaties and CIL. Central IHL Treaties Hague Conventions (1899 & 1907) Geneva Conventions (1949) Additional Protocols to the Geneva Conventions (1977) Other significant treaties • 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare • 1954 Convention for the Protection of Cultural Property in Armed Conflict • 1980 Geneva Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or have Indiscriminate Effects.

Jus in Bello • Is the aggressor state subject to different rules than the defender? No • Belligerent parties are legally equal. • Jus in bello applies to both sides equally regardless of their status under jus ad bellum. • The unlawful aggressor must obey IHL. • The lawful defender must also obey IHL. It is not free to disregard the limits on warfare because they have been unjustly attacked. • Unequal military capabilities (e.g. radically asymmetric conflicts) • Must a militarily weak state, with no chance of winning against a better equipped enemy, still obey IHL? • Yes. • Gulf War: Iraq had no chance against the US led coalition. However, it was still bound to obey IHL in its conduct of hostilities. • A belligerent party always has the option of surrender. • Recent question: should the much better equipped military, e.g. with laser guided precision munitions, be obligated to obey a higher standard than the baseline set by IHL? •

Reciprocity: is a state’s duty to obey IHL contingent on the other side obeying IHL? NO. “The obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity.” ICRC Customary International Humanitarian Law Although states must obey IHL even if the other side does not, the desire for reciprocity continues to be a strong motivator for obedience to IHL.

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LOAC vs ROE • Rules of Engagement (ROE) • ROE are frequently imposed by states on their own operations as a matter of policy. • ROE are always more restrictive than what is legally required.

E.g. the Obama administration imposed ROE on targeted killing outside active hostilities requiring, amongst other things, “near certainty” that no civilians would be harmed in an operation like a drone strike away from an active battlefield. LOAC and Human Rights Law • There is increasing application of International Human Rights Law (IHRL) to many armed conflict contexts. • For now, note: • Dinstein’s discussion of the relation between IHL & IHRL is largely unbalanced & out of date. • The majority of states, including the UK and rest of the EU, holds that IHL does not automatically displace IHRL in armed conflict. • A determination of which law applies is made in light of the circumstances ruling at the time. • Courts have increasingly found application of IHRL in armed conflict, especially when states have “authority and control” over individuals, e.g. checkpoints, detention, armed occupation, etc. •

The Role of Legal Advisers • AP I, Art. 82 requires legal advisers to be available to counsel military commanders on the application of LOAC to military operations. • Legal advisers provide skilled professional counsel in real time on all LOAC issues. • However, legal advisers only advise. • Decision-making is left to the commander • The commander is legally accountable for compliance with LOAC. Major General Susan Ridge, the UK army’s highest-ranking woman ever, heads a team of 130 lawyers

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The Guiding forces of Jus in Bello IHL mediates between “military necessity” and humanitarian considerations. • Military necessity does not refer to what is strictly necessary or required to wage war. • What is “required by military necessity” just means: what military personnel have determined will yield a military advantage in a given conflict situation. • Not everything that would lead to a military advantage is permitted, however. • Humanitarian considerations impose limits on military necessity (i.e. limits on how states can pursue a military advantage). • The paramount purpose of IHL, as expressed in the St. Petersburg Declaration of 1868, is “alleviating as much as possible the calamities of war.” • IHL thus seeks to strike a balance between minimizing human suffering, without undermining the military’s ability to fight and win wars. • IHL is fundamentally pragmatic: it serves both military considerations and humanitarian consideratons.

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Military necessity is not a legal justification for violating IHL. Special case: if military necessity is explicitly mentioned as a justification: “The destruction of property to be lawful must be imperatively demanded by necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.” The Hostage case Most rules do not provide an exception for military necessity. May soldiers kill POWs if they are sick, injured, or slowing down the unit? No. POWs may never be killed regardless of military necessity. If the capturing force cannot escort the POWs away from the battlefield, they must be released.

The Rules of Necessity & Humanity • Date back to the St. Petersburg Declaration of 1868 • The only legitimate objective of war is to “weaken the military forces of the enemy.” • “For this purpose it is sufficient to disable the greatest possible number of men.” • Weapons should not be used that “uselessly aggravate the sufferings of disabled men, or render their death inevitable.” • Do we follow this rule in war today? Why would states want such a rule?

jus ad bellum Bonus Material  Relates back to Israeli response to Iranian drone and subsequent attack on Syrian air defenses. •

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Using Force in Self-Defense “Defensive Armed Reprisals” • Use of force by a state in response to an armed attack at a different time and often in a different place than the armed attack Most experts hold that armed reprisals are inconsistent with Art. 51 and thus unlawful. The Security Council has frequently condemned armed reprisals as “incompatible with the purposes and principles of the UN.” The President of the ICJ in the Nicaragua case also condemned armed reprisals as unlawful. A right to Defensive Armed Reprisals would be out of step with Art. 2(4), the purposes of the Charter, and generally destabilizing to international peace and security.

Some Remaining Questions • Does a state need a new justification, after a long cessation of hostilities but without an official peace treaty, to strike the enemy state again? • Dinstein says no • US, UK, and allies justified attack against Iraq in 2003 by SC authorization in 1990. • Israel strike against Iraqi nuclear reactor under construction in 1981 justified because no armistice agreement in 1949. • Israel strike on Syrian nuclear installation under construction in 2007 justified by outbreak of hostilities between Israel and Syria in 1967. • Dinstein admits that at least the two Israeli bombings would not be justified by self-defense. • • • •

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Should a state need a new justification, after a long cessation of hostilities but without an official peace treaty, to strike the enemy state again? Many scholars, including many former US and UK officials, and states do not agree with Dinstein and believe a new, more timely justification is needed. • A conflict ends when active hostilities end. States such as the US, UK, and Israel, as well as probably Russia and China, may agree with Dinstein. Do you see any problems with the US approach to self-defense? • holds that there is no threshold for the right of self-defense, • “the inherent right of self-defense potentially applies against any illegal use of force.” Powerful states want to maintain discretion to use force. Should the law favor the discretion of stronger states? • Why? • Why not?

Review: Where does IHL come from? Customary International Law (CIL) • (i) General Practice of States (general, but not necessarily universal) • (ii) done out of a sense of opinio juris sive necessitatis ("an opinion of law or necessity")— • the belief that the practice is legally required • i.e. it not merely a matter of convenience, habit, coincidence, or political expediency. • Note: in certain domains (naval war, cyber war, space) the practice of a relatively small number of states may be controlling. • CIL is binding on all states except “persistent objectors,” i.e. those who have adamantly opposed the new norm from the outset. • Treaties On Whom is IHL Binding? • Customary International Law (CIL) • Binding on all parties except “persistent objectors,” i.e. those who have adamantly opposed the new norm from the outset. •

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Treaties Binding only on member states. Every member of the UN is party to the Geneva Conventions I-IV Treaty provisions that express CIL are binding on all states. Non-contracting parties will often dispute whether treaty provisions actually express CIL.

Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd ed. 2016), Chapter 1: pp. 1-40 (The General Framework); A. Hostilities  Hostilities are conducted through the employment of means and methods of warfare.  ‘Methods of warfare’ are operational modes. Primarily involve attacks, but also include some ancillary measures.  ‘Means of warfare’ consist chiefly of weapons and matériel (such as means of communications and signalling devices).  ‘Weapons’ –include any arms (for instance, missile launchers, artillery, machine guns and ri es), munitions (for example, missiles, bombs, mines, shells and bullets) and other devices, components or mechanisms striving to (i) kill, disable or injure enemy personnel; or (ii) destroy or damage matériel or property. Weapons also encompass weapon systems (with diverse external guidance means) and platforms carrying weapons. Certain acts of violence, performed by organs of a Belligerent Party in the course of an IAC, are excluded from the range of hostilities. These acts, not related to military operations against the enemy, are especially apposite to law enforcement measures taken against com- mon felons transgressing the domestic penal code. B. Attacks  ‘attacks’ is narrower than the term ‘hostilities’.  ‘Attacks’ are defined in Article 49(1) of the 1977 Protocol I, Additional to the 1949 Geneva Conventions (AP/I), as ‘acts of violence against the adversary, whether in offence or in defence’.  Non-violent acts tied to military operations – although subsumed under the overarching heading of ‘hostilities’ – do not come within the bounds of attacks.  9. Cyber attacks qualify as ‘attacks’ under the AP/I de nition, provided that they engender violence through their effects. They amount to ‘attacks’ under LOAC if they cause injury/death to persons or damage/destruction to property. II. The two major premises Two major premises antecedent to any survey of LOAC. These are: (i) the means and methods of warfare must be kept within bounds; and (ii) the opposing Belligerent Parties are equal in the eyes of LOIAC. A. Limitation of means and methods of warfare  As long as hostilities are waged within the perimeters of LOIAC, they may be pursued fiercely and relentlessly.  Constraints on this freedom of action - Regulation 22 annexed to Hague Convention (II) of 1899 and Hague Convention (IV) of 1907:  The right of belligerents to adopt means of injuring the enemy is not unlimited.  Article 35(1) of AP/I rephrases the same precept under the heading ‘[b]asic rules’:  Right of the Parties to the con ict to choose methods or means of warfare is not unlimited.12 B. Legal equality of the Belligerent Parties (a) No connection between the jus in bello and the jus ad bellum idiom ‘attack’ in the jus in bello must not be confused with the expression ‘armed attack’ featuring in Article 51 of the United Nations (UN) Charter,14 just as the jus ad bellum coinage ‘self-defence’ must not be mixed up with the jus in bello term ‘defence’. The fundamental postulate of the jus in bello is the equal application of its legal norms to all Belligerent Parties, regardless of their respective standing in the eyes of the jus ad bellum. May be some discrimination against an aggressor State where the law of neutrality is concerned

But, in the conduct of hostilities, the jus in bello does not distinguish between the armed forces or civilians of an aggressor State as compared to those of a State resorting to self-defence or participating in an enforcement action ordained (or authorized) by the UN Security Council. Moreover, breaches of the jus in bello are not exculpated on the ground that the enemy is responsible for having commenced the hostilities in breach of the jus ad bellum. (b) Inequality in military capabilities The equality of Belligerent Parties before LOIAC is not dovetailed to their respective military capabilities. LOIAC does not bestow on a ‘have-not’ Belligerent Party a prerogative to ignore the law vis-à-vis a ‘have’ enemy: no legal concessions are made to any Belligerent...