Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2066347
P. Butchard, Jasmin Johurun Nessa
{"title":"Digest of state practice: 1 July – 31 December 2021","authors":"P. Butchard, Jasmin Johurun Nessa","doi":"10.1080/20531702.2022.2066347","DOIUrl":"https://doi.org/10.1080/20531702.2022.2066347","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"171 - 228"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48024686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2029022
C. Henderson
ABSTRACT Following a rocket attack that occurred at Erbil airport in Iraq, President Biden authorised the first use of military force since becoming President on 25 February 2021. This was legally justified on the basis of self-defence. On the face of it this seemed an innocuous justification. Yet, this article argues that through both downplaying the treaty source of the right of self-defence and its express requirement for an armed attack, as well as promoting a contextual and enabling form of necessity, the Biden administration’s military action and ensuing strategy of legal justification place question marks over the meaning of, and even the requirement for, an armed attack. However, seeing the 25 February incident in the context of broader US and other state practice, while various attempts at diluting this requirement and the interpretation provided to it by the International Court of Justice have been sustained, others have clearly not.
{"title":"The 25 February 2021 military strikes and the ‘armed attack’ requirement of self-defence: from ‘sina qua non’ to the point of vanishing?","authors":"C. Henderson","doi":"10.1080/20531702.2022.2029022","DOIUrl":"https://doi.org/10.1080/20531702.2022.2029022","url":null,"abstract":"ABSTRACT Following a rocket attack that occurred at Erbil airport in Iraq, President Biden authorised the first use of military force since becoming President on 25 February 2021. This was legally justified on the basis of self-defence. On the face of it this seemed an innocuous justification. Yet, this article argues that through both downplaying the treaty source of the right of self-defence and its express requirement for an armed attack, as well as promoting a contextual and enabling form of necessity, the Biden administration’s military action and ensuing strategy of legal justification place question marks over the meaning of, and even the requirement for, an armed attack. However, seeing the 25 February incident in the context of broader US and other state practice, while various attempts at diluting this requirement and the interpretation provided to it by the International Court of Justice have been sustained, others have clearly not.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"55 - 77"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42707833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2029020
M. O’Connell
ABSTRACT The 20-year Afghanistan conflict was called a ‘forever war’ but another significant use of military force has lasted much longer. Since 1986, US presidents have authorised air attacks beyond armed conflict zones. President Biden continued the practice beginning with a strike on Syria and later on Iraq, Somalia, and Afghanistan, where a drone cost the lives of seven children. US air wars are explained more by a policy of deterrence, than the lawful purpose of self-defence as permitted under international law. UN Charter Article 51 restricts force to when an armed attack occurs. The general principles of necessity, proportionality, and attribution provide further restrictions. The US has tried for 35-years to alter this law in line with deterrence policy but doing so is difficult under the doctrine of positive law. It is impossible under the doctrine of jus cogens that includes the prohibition on force and the exception for self-defence.
{"title":"Forever air wars and the lawful purpose of self-defence","authors":"M. O’Connell","doi":"10.1080/20531702.2022.2029020","DOIUrl":"https://doi.org/10.1080/20531702.2022.2029020","url":null,"abstract":"ABSTRACT The 20-year Afghanistan conflict was called a ‘forever war’ but another significant use of military force has lasted much longer. Since 1986, US presidents have authorised air attacks beyond armed conflict zones. President Biden continued the practice beginning with a strike on Syria and later on Iraq, Somalia, and Afghanistan, where a drone cost the lives of seven children. US air wars are explained more by a policy of deterrence, than the lawful purpose of self-defence as permitted under international law. UN Charter Article 51 restricts force to when an armed attack occurs. The general principles of necessity, proportionality, and attribution provide further restrictions. The US has tried for 35-years to alter this law in line with deterrence policy but doing so is difficult under the doctrine of positive law. It is impossible under the doctrine of jus cogens that includes the prohibition on force and the exception for self-defence.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"33 - 54"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45888156","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2059155
Frédéric Mégret, C. Redaelli
ABSTRACT In its traditional understanding, aggression is a crime against state. A number of scholars have, by contrast, increasingly framed the wrong of aggression as lying in its devastating consequences for the populations affected. That emergent human rights framing, however, has largely focused on the population of the other state. This article seeks to go beyond this nascent human rights framing of aggression, by looking at the possibility that waging an illegal war can also be interpreted as a violation of the rights of a state’s own population, including both combatants and non-combatants. In doing so, we seek to reconnect the argument against aggression to domestic human rights themes involving the responsibility of the sovereign towards persons within its jurisdiction. We suggest that this approach can help produce a more normatively grounded and textured account of the grounds for proscribing war that better connects both domestic and international legal conversations.
{"title":"The crime of aggression as a violation of the rights of one’s own population","authors":"Frédéric Mégret, C. Redaelli","doi":"10.1080/20531702.2022.2059155","DOIUrl":"https://doi.org/10.1080/20531702.2022.2059155","url":null,"abstract":"ABSTRACT In its traditional understanding, aggression is a crime against state. A number of scholars have, by contrast, increasingly framed the wrong of aggression as lying in its devastating consequences for the populations affected. That emergent human rights framing, however, has largely focused on the population of the other state. This article seeks to go beyond this nascent human rights framing of aggression, by looking at the possibility that waging an illegal war can also be interpreted as a violation of the rights of a state’s own population, including both combatants and non-combatants. In doing so, we seek to reconnect the argument against aggression to domestic human rights themes involving the responsibility of the sovereign towards persons within its jurisdiction. We suggest that this approach can help produce a more normatively grounded and textured account of the grounds for proscribing war that better connects both domestic and international legal conversations.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"99 - 137"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46148231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2056803
James A. Green, C. Henderson, T. Ruys
ABSTRACT The 24 February 2022 Russian invasion of – or ‘special military operation’ in – Ukraine has sent shock waves across the globe. In this editorial the Editors-in-Chief of JUFIL examine in detail the legal justifications advanced by President Putin for Russia’s use of military force and subject them to scrutiny. Doing so highlights just how devoid of substance and credibility they are within the context of the jus ad bellum as it exists today. Furthermore, the Editors reflect on some of the broader questions that this use of military force poses for the jus ad bellum, including what the invasion of Ukraine says about the efficacy of the contemporary jus ad bellum and what is – or what might be – the ultimate impact upon the rules and norms governing the use of force.
{"title":"Russia’s attack on Ukraine and the jus ad bellum","authors":"James A. Green, C. Henderson, T. Ruys","doi":"10.1080/20531702.2022.2056803","DOIUrl":"https://doi.org/10.1080/20531702.2022.2056803","url":null,"abstract":"ABSTRACT The 24 February 2022 Russian invasion of – or ‘special military operation’ in – Ukraine has sent shock waves across the globe. In this editorial the Editors-in-Chief of JUFIL examine in detail the legal justifications advanced by President Putin for Russia’s use of military force and subject them to scrutiny. Doing so highlights just how devoid of substance and credibility they are within the context of the jus ad bellum as it exists today. Furthermore, the Editors reflect on some of the broader questions that this use of military force poses for the jus ad bellum, including what the invasion of Ukraine says about the efficacy of the contemporary jus ad bellum and what is – or what might be – the ultimate impact upon the rules and norms governing the use of force.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"4 - 30"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43222543","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2029019
T. Ruys
{"title":"Symposium: old wine in new bottles? – US President Biden’s first encounter with the jus ad bellum","authors":"T. Ruys","doi":"10.1080/20531702.2022.2029019","DOIUrl":"https://doi.org/10.1080/20531702.2022.2029019","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"31 - 32"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41870497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2066348
James A. Green
{"title":"Introduction to issue 9(1)","authors":"James A. Green","doi":"10.1080/20531702.2022.2066348","DOIUrl":"https://doi.org/10.1080/20531702.2022.2066348","url":null,"abstract":"","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"1 - 3"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45846015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-02DOI: 10.1080/20531702.2022.2029021
C. O’Meara
ABSTRACT This article examines the jus ad bellum necessity and proportionality requirements pertaining to the American airstrikes on 25 February 2021 against alleged Iran-supported non-state militia groups in Syria. From the limited publicly available information, the February airstrikes appear to be punitive rather than defensive. Consequently, this author concludes that the airstrikes were likely unnecessary as there was no situation of genuine emergency that required the USA to act when and where it did or else lose the ability to defend itself effectively. The necessity of targeting the militiamen in Syrian territory is also highly questionable. If not necessary, the airstrikes constitute unlawful armed reprisals. The proportionality of the airstrikes is moot, therefore, although the article proceeds to articulate certain challenges to assessing such proportionality if the necessity of the American response against an ongoing threat could be hypothetically established.
{"title":"February 2021 American airstrikes in Syria: necessary and proportionate acts of self-defence or unlawful armed reprisals?","authors":"C. O’Meara","doi":"10.1080/20531702.2022.2029021","DOIUrl":"https://doi.org/10.1080/20531702.2022.2029021","url":null,"abstract":"ABSTRACT This article examines the jus ad bellum necessity and proportionality requirements pertaining to the American airstrikes on 25 February 2021 against alleged Iran-supported non-state militia groups in Syria. From the limited publicly available information, the February airstrikes appear to be punitive rather than defensive. Consequently, this author concludes that the airstrikes were likely unnecessary as there was no situation of genuine emergency that required the USA to act when and where it did or else lose the ability to defend itself effectively. The necessity of targeting the militiamen in Syrian territory is also highly questionable. If not necessary, the airstrikes constitute unlawful armed reprisals. The proportionality of the airstrikes is moot, therefore, although the article proceeds to articulate certain challenges to assessing such proportionality if the necessity of the American response against an ongoing threat could be hypothetically established.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"78 - 98"},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47532499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-10-06DOI: 10.1080/20531702.2021.1987071
M. Svicevic
ABSTRACT Since the emergence of an ISIS-linked armed group in Mozambique’s Cabo Delgado province, questions of a regional military response by the Southern African Development Community (SADC) have arisen. Although the organisation’s existing security framework is elaborate, it remains unclear as to whether any intervention in Mozambique may take place in the absence of its consent. Reliance on the SADC Mutual Defence Pact as a potential legal basis for a military response neglects to consider that collective self-defence can only be taken in response to an armed attack and at the request of the victim state. In the absence of either, a SADC intervention would likely resemble enforcement action and may instead be based on the SADC Protocol on Politics, Defence and Security Co-operation. In addition, for such enforcement action to be legal, it would require the authorisation of the United Nations Security Council.
{"title":"Collective self-defence or regional enforcement action: the legality of a SADC intervention in Cabo Delgado and the question of Mozambican consent","authors":"M. Svicevic","doi":"10.1080/20531702.2021.1987071","DOIUrl":"https://doi.org/10.1080/20531702.2021.1987071","url":null,"abstract":"ABSTRACT Since the emergence of an ISIS-linked armed group in Mozambique’s Cabo Delgado province, questions of a regional military response by the Southern African Development Community (SADC) have arisen. Although the organisation’s existing security framework is elaborate, it remains unclear as to whether any intervention in Mozambique may take place in the absence of its consent. Reliance on the SADC Mutual Defence Pact as a potential legal basis for a military response neglects to consider that collective self-defence can only be taken in response to an armed attack and at the request of the victim state. In the absence of either, a SADC intervention would likely resemble enforcement action and may instead be based on the SADC Protocol on Politics, Defence and Security Co-operation. In addition, for such enforcement action to be legal, it would require the authorisation of the United Nations Security Council.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"9 1","pages":"138 - 170"},"PeriodicalIF":0.0,"publicationDate":"2021-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60042439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-03DOI: 10.1080/20531702.2021.1992915
Adil Ahmad Haque
ABSTRACT This short article considers the informal ‘Arria formula’ meeting of the United Nations Security Council convened by Mexico in February 2021. It offers a compressed analysis of many of the statements made during that meeting regarding the substantive issue of inter-state force against non-state actors, identifies important areas of disagreement, and concludes with some observations on the current state of the law and the path forward.
{"title":"The use of force against non-state actors: all over the map","authors":"Adil Ahmad Haque","doi":"10.1080/20531702.2021.1992915","DOIUrl":"https://doi.org/10.1080/20531702.2021.1992915","url":null,"abstract":"ABSTRACT\u0000 This short article considers the informal ‘Arria formula’ meeting of the United Nations Security Council convened by Mexico in February 2021. It offers a compressed analysis of many of the statements made during that meeting regarding the substantive issue of inter-state force against non-state actors, identifies important areas of disagreement, and concludes with some observations on the current state of the law and the path forward.","PeriodicalId":37206,"journal":{"name":"Journal on the Use of Force and International Law","volume":"8 1","pages":"278 - 290"},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48097150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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