The Use of Cyber Force and International Law

Jus Ad Bellum ◽

The Right ◽

This chapter focuses on the use of cyber force on and off the battlefield within the framework of international law. Drawing on the work of the Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), it considers the jus ad bellum issues surrounding cyber operations. In particular, it examines when cyber operations violate the prohibition on the use (or threat) of force set forth in Article 2(4) of the UN Charter and customary international law, and when a state that has been the target of cyber operations may retaliate with its own use of force. The chapter also discusses two exceptions to the prohibition on the use of force under Article 51 of the UN Charter, one of which is the exercise of the right of self-defence. Finally, it analyses state interpretations of international law’s prescriptive norms regarding the use of force when applied to cyberspace.

Hot Pursuit

10.1093/law/9780199673049.003.0042 ◽

2016 ◽

Author(s):

Bill Gilmore

Keyword(s):

Law Enforcement ◽

International Law ◽

Use Of Force ◽

The State ◽

Law Of The Sea ◽

Cross Border ◽

Legal Justification ◽

The Right ◽

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

The Principle of Proportionality from a Jus Ad Bellum Perspective

10.1093/law/9780199673049.003.0056 ◽

2016 ◽

Author(s):

Theodora Christodoulidou ◽

Kalliopi Chainoglou

Keyword(s):

International Law ◽

Use Of Force ◽

International Court Of Justice ◽

Jus Ad Bellum ◽

International Court ◽

Legal Opinions ◽

The Icj ◽

Principle Of Proportionality ◽

The Right

This chapter analyses the principle of proportionality from a jus ad bellum perspective and its application in the exercise of the right of self-defence, in the use of force to protect human rights, and against terrorism. It first gives an overview of the contemporary law of the use of force as codified in the UN Charter, followed by a discussion on proportionality in customary international law. It then considers the measures by which double proportionality is calculated and, in particular, how proportionality can be measured when it seeks to meet the general objective of the use of force. Finally, the chapter examines the concept of proportionality as reflected in the judicial decisions of the International Court of Justice (ICJ) and in the legal opinions of the ICJ judges.

The Great War and International Law: German Justifications of Prevention and Pre-emptive Self-Defence

The Justification of War and International Order ◽

10.1093/oso/9780198865308.003.0010 ◽

2021 ◽

pp. 183-206

Author(s):

Isabel V. Hull

Keyword(s):

International Law ◽

Military Leaders ◽

Preventive War ◽

Early Modernity ◽

European State ◽

Jus Ad Bellum ◽

The Great War ◽

Isabel V. Hull uses the German declarations of war in 1914 to examine three issues: 1) the role of customary international law (CIL) in statesmen’s decision to go to war (using Germany as an example); 2) the assumptions that state actors held a jus ad bellum; and, especially, 3) how they distinguished self-defence, prevention, pre-emption, and aggression. Hull uses not the claims of jurists, but the arguments and actions of civilian and military leaders, i.e. those who actually made the decisions for war. With this, she continues Anuschka Tischer’s and Hendrik Simon’s examination of the question whether there was a transformation of war discourses in (early) modernity that led to overcoming the need to justify war. The chapter confirms that, even as Germany began a ‘preventive war’, the European state consensus held that, on the continent, preventive war was illegal, pre-emptive war was severely restrained, and genuine self-defence – meaning both fending off armed attack against one’s territory, independence, or sovereignty, and defending the treaty-structure that guaranteed the inter-state order – was the only justification for war acceptable to the community of states.

11. Use of force

International Law Concentrate ◽

10.1093/he/9780198840978.003.0011 ◽

2019 ◽

pp. 144-159

Author(s):

Ilias Bantekas ◽

Efthymios Papastavridis

Keyword(s):

International Law ◽

Security Council ◽

Use Of Force ◽

Armed Force ◽

Responsibility To Protect ◽

Collective Security ◽

Armed Attack ◽

Significant Achievement ◽

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

‘Targeted killing’ and the lack of acquiescence

Leiden Journal of International Law ◽

10.1017/s0922156519000475 ◽

2019 ◽

Vol 32 (4) ◽

pp. 741-757

Author(s):

Elisabeth Schweiger

Keyword(s):

International Law ◽

Knowledge Production ◽

Political Context ◽

The Political ◽

Targeted Killing ◽

Jus Ad Bellum ◽

Un Security Council ◽

Tacit Consent ◽

The Right

AbstractOver 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.

The Tallinn Manuals and the Making of the International Law on Cyber Operations

Masaryk University Journal of Law and Technology ◽

10.5817/mujlt2019-1-4 ◽

2019 ◽

Vol 13 (1) ◽

pp. 67-86

Author(s):

Papawadee Tanodomdej

Keyword(s):

International Law ◽

Use Of Force ◽

Political Activism ◽

State Practice ◽

The Right ◽

International Experts

The Tallinn Manuals (the Manuals) attempted to clarify how to apply existing international law to cyber operations. Though the Manuals are non-binding instruments, the Group of International Experts claimed that they reflected the lex lata applicable to cyber operations. However, this claim is questionable due to the dominating role of a few Western states in the drafting process and the linked neglect of the practice of “affected states” in cyber operations. This article examines the quality of the Manuals’ drafting process and the composition and impartiality of the experts involved. It focuses on the issue of the prohibition of the use of force. The aim of this examination is not to discuss whether the Manuals provided the right answer to the question of how international law applies to cyber operations. Rather, they function as a case study of how legal scholarship may affect the making of international law. The article concludes that certain rules in the Manuals are marked by NATO influence and overlook the practice of other states engaged in cyber operations. Therefore, the Manuals disregard the generality of state practice, which should be the decisive factor in the formation of customary international law. As far as “political activism” may be involved, the article argues that the role of legal scholars as assistants to the cognition of international law could be compromised.

Necessity and Proportionality and the Right of Self-Defence in International Law

10.1093/oso/9780198863403.001.0001 ◽

2021 ◽

Author(s):

Chris O'Meara

Keyword(s):

International Law ◽

Analytical Framework ◽

Third Party ◽

Military Force ◽

Total Force ◽

Defensive Action ◽

The Right ◽

Conceptual Meaning ◽

States invariably justify using force extraterritorially by reference to their inherent right of self-defence. In so doing, they accept that the exercise of such right is conditioned by the customary international law requirements of necessity and proportionality. To date, these requirements have received little attention. They are notorious for being normatively indeterminate and operationally complex. As a breach of either requirement renders ostensibly defensive action unlawful, increased determinacy regarding their scope and content is crucial to how international law constrains military force. This book examines the conceptual meaning, substance and practical application of necessity and proportionality as they relate to the right of self-defence following the adoption of the UN Charter in 1945. It provides a coherent and up-to-date description of the applicable contemporary international law and proposes an analytical framework to guide its operation and appraisal. This book contends that necessity and proportionality are conceptually distinct and must be applied in the foregoing order to avoid an insufficient ‘catch-all’ description of (il)legality. Necessity determines whether defensive force may be used to respond to an armed attack and where it must be directed. Proportionality governs how much total force is permissible and prohibits excessive responses. Both requirements are shown to apply on an ongoing basis throughout the duration of an armed conflict prompted by self-defence. Compliance with necessity and proportionality ensures that the purposes of self-defence are met (and nothing more) and that defensive force is not unduly disruptive to third-party interests and to international peace and security.

UŻYWANIE DRONÓW W CELU ZWALCZANIA TERRORYZMU ŚWIETLE ‘IUS AD BELLUM’

Zeszyty Prawnicze ◽

10.21697/zp.2016.16.2.07 ◽

2016 ◽

Vol 16 (2) ◽

pp. 141 ◽

Cited By ~ 2

Author(s):

Łukasz Kułaga

Keyword(s):

International Law ◽

Use Of Force ◽

Point Of View ◽

International Terrorism ◽

Controversial Issues ◽

Legal Regulations ◽

Definition Of ◽

The Right ◽

The Military ◽

The Use of Drones in Combating International Terrorism from the Perspective of ‘ius ad bellum’Summary The increasing practice of using armed unmanned aerial vehicles (military UAVs, commonly known as drones) by some countries to eliminate suspected terrorists raises a number of controversies from the perspective of international law. These controversies are also related to the specific features of military UAVs, which make it possible to kill targeted individuals without risk to the military personnel of the country concerned, and thereby may encourage the abusive interpretation of the applicable legal regulations. This article discusses these issues from the perspective of ius ad bellum, in particular the right to self-defence. It shows the main controversial points on the scope of invoking the right to self-defence in such cases, in particular the possibility of invoking the right to self-defence in response to an attack by a non-state entity, the question of pre-emptive self-defence, the importance of the severity of the force used as a condition allowing for the use of force in self-defence, and the relevance of the principles of proportionality and necessity. The article also presents an outline of the vast and highly controversial issues associated with the definition of terrorism from the point of view of international law.

10. International law and the use of force

The Politics of International Law ◽

10.1093/hepl/9780198791201.003.0010 ◽

2021 ◽

pp. 219-246

Author(s):

Nicole Scicluna

Keyword(s):

International Relations ◽

International Law ◽

Security Council ◽

Turning Point ◽

Humanitarian Intervention ◽

Use Of Force ◽

Responsibility To Protect ◽

Territorial Integrity ◽

Jus Ad Bellum ◽

This chapter explores the justness, legitimacy, and legality of war. While 1945 was a key turning point in the codification of jus ad bellum (i.e. international law on the use of force), that framework did not emerge in a vacuum. Rather, it was the product of historical political contingencies that meant that codification of the laws of war was contemporaneous, both geographically and temporally, with the solidification of the norms of sovereign nation-statehood and territorial integrity. The chapter focuses on the UN Charter regime and how it has shaped the politics of war since 1945. Importantly, the Charter establishes a general prohibition on the use of force in international relations. It also grants two exceptions to the prohibition: actions undertaken with Security Council authorization and actions taken in self-defence. Today, many of the most serious challenges to the Charter regime concern the definition and outer limits of the concept of self-defence. Another set of challenges to the Charter regime concerns the contested concept of ‘humanitarian intervention’. The chapter then looks at the development of the ‘Responsibility to Protect’ doctrine.

12. War and law in the twenty-first century

The Politics of International Law ◽

10.1093/hepl/9780198791201.003.0012 ◽

2021 ◽

pp. 267-286

Author(s):

Nicole Scicluna

Keyword(s):

International Law ◽

War On Terror ◽

Use Of Force ◽

First Century ◽

Cyber Warfare ◽

Military Operations ◽

The Us ◽

Terrorist Groups ◽

New Type ◽

The Right

This chapter explicates the various ways in which contemporary warfare challenges post-1945 international law on the use of force and the conduct of war. It begins by exploring the rules governing the use of force against non-state actors. This is one of the most pressing issues of the war on terror, much of which has involved military operations against terrorist groups operating from the territory of states that cannot or will not suppress their activities. In particular, campaigns by the US and several other states against ISIS in Syria have seriously undermined the international law framework governing self-defence and the right of states to have their sovereignty and territorial integrity respected. The chapter then looks at another trademark policy of the war on terror: the use of targeted killings, often carried out by unmanned drones, to eliminate suspected terrorists. It also considers a new type of warfare altogether: the emerging phenomenon of cyber warfare, which, too, has implications for both jus ad bellum and jus in bello.