Drones Programs, the Individualization of War, and the Ad Bellum Principle of Proportionality

2020 ◽  
pp. 131-168
Author(s):  
Rebecca Mignot-Mahdavi
Keyword(s):  
War On Terror ◽  
Use Of Force ◽  
Personal Characteristics ◽  
Self Defense ◽  
Cascade Effect ◽  
State Practice ◽  
Principle Of Proportionality ◽  
The Right

This chapter describes how drone programs facilitate the individualization of war and intensify the pressures put on the right of self-defense. Rather than using force in self-defense against an (imminent) act, some states active in the transnational war on terror use force in self-defense against individuals based on their personal characteristics. This strategy leads to authorizing action against individuals who are not presently perpetrating, nor even clearly preparing to engage in, threatening acts. The chapter argues that these changes are not merely the result of how states decide to use force in the context of counterterrorism but also are impacted by what technology allows them to do. As such, drones facilitate and arguably intensify these phenomena of individualization and dematerialization of the use of force. Focusing on one of the justifications for this practice, namely, the right of self-defense, the chapter argues that the framework articulated by some states active in the transnational war on terror, while still highly contested on some points, offers a framework for the continuous anticipation of armed attacks by individuals who show signs of continuing armed activity. The chapter shows that under pressure by state practice and rhetoric, some limitations on using force that were initially interpreted restrictively are currently interpreted extensively. More importantly, the chapter argues that even if some limitations remain, the concessions to the extensive interpretation appear to have a direct cascade effect on the remaining conditions precisely because these limitations are interconnected. It is ultimately shown that this cascade effect is epitomized by the principle of proportionality which is not only extended but transformed to adapt to the individualization of war.

scholarly journals The Challenge of Cyber Attacks in the “Information Age” and the Jus Ad Bellum

2019 ◽  
Vol 5 (2) ◽  
pp. 79
Author(s):  
Pshtiwan Mohammed Qader
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Information Age ◽  
Cyber Attacks ◽  
Armed Force ◽  
Critical Infrastructures ◽  
Cyber Attack ◽  
Armed Attack ◽  
Self Defense ◽  
The Right

The present paper examines the problem of cyber-attacks under existing international law. It takes the view that the (United Nations) UN Charter provisions on the use of force can be extended to cyber-attacks by means of interpretation although the relevant provisions do not explicitly address such issue. This Article argues that cyber-attacks resulting in material damage or destruction to property, death or injury to persons, or severe disruption of the functioning of critical infrastructures can be characterized as use of armed force and therefore violate the prohibition contained in article 2(4) of the Charter. However, cyber-attacks not resulting in the above consequences may be illegal intervention in the internal affairs of other states if such attacks are coercive in nature. In addition, the current study discusses that a cyber-attack which amounts to a use of armed force per se is not sufficient to give the victim state the right to self-defense, unless its scale and effects are equivalent to those of a conventional armed attack. Finally, the study concludes that an international cyber treaty is truly necessary to more effectively address cyber-attacks.

THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS

2021 ◽  
pp. 1-36
Author(s):  
David Little
Keyword(s):  
Human Rights ◽  
Use Of Force ◽  
Preliminary Evidence ◽  
Cross Cultural ◽  
Legal Concept ◽  
Organic Unity ◽  
Cultural Rights ◽  
Self Defense ◽  
Legal Justification ◽  
The Right

Abstract The article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwide comprehensibility and appeal of human-rights language.

3 Direct Military Assistance on Request During Civil Wars

2020 ◽  
Author(s):  
De Wet Erika
Keyword(s):  
Civil War ◽  
Civil Wars ◽  
Military Intervention ◽  
Use Of Force ◽  
Organizational Practice ◽  
Military Assistance ◽  
Post Cold War ◽  
Current State ◽  
State Practice ◽  
The Right

This chapter examines whether the right to self-determination in international law prevents military intervention on the side of the recognized government during a civil war. Post-Cold War state and organizational practice does not convincingly support the claim that direct military assistance at the request of a recognized government is prohibited during a civil war, otherwise known as a ‘non-international armed conflict’ (NIAC). Attempts to explain current state practice by means of counter-terrorism and counter-intervention exceptions to a general prohibition of such assistance also is not grounded in state or organizational practice, nor are such exceptions viable in practice. Instead, state and organizational practice seems to confirm the right of recognized governments to request military assistance from third states, also during civil wars/NIACs, as long as they retain their recognized, de jure status. The potential lack of ‘representativeness’ in such a situation does not seem to limit the extent to which the de jure government can act on behalf of the state (and its people) in matters pertaining to the use of force.

Part 2 The Post-Cold War Era (1990–2000), 42 The US Airstrike Against the Iraqi Intelligence Headquarters—1993

2018 ◽  
Author(s):  
Starski Paulina
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Post Cold War ◽  
The Us ◽  
State Practice ◽  
Observable State ◽  
The Right ◽  
President Bush ◽  
Intelligence Service ◽  
Self Defence

This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.

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

2019 ◽  
Vol 13 (1) ◽  
pp. 67-86
Author(s):  
Papawadee Tanodomdej
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Political Activism ◽  
Customary International Law ◽  
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.

Part 1 The Cold War Era (1945–89), 29 The US Intervention in Nicaragua—1981–88

2018 ◽  
Author(s):  
Kammerhofer Jörg
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Customary Law ◽  
The Us ◽  
State Practice ◽  
The Icj ◽  
The Right ◽  
The Cold War ◽  
Us Intervention ◽  
Self Defence

This chapter focuses on the US intervention in Nicaragua from 1981 to 1988, as a contribution to the state practice on the law on the use of force and the right to self-defence under both UN Charter and customary law. After an overview of the background of the so-called ‘contra war’ and of the salient facts regarding the US intervention in that conflict, it discusses the positions of the two parties on the facts and law, and takes note of the reaction of the international community, focusing on the debates at the UN. The next section focuses on the legality of the operation; the ICJ’s holdings in its 1986 Nicaragua judgment form the backbone of that discussion, while taking note of dissent and comment both inside and outside the Court. The contribution concludes by discussing the precedential value and effect of this conflict, and of the ICJ case.

Necessity and Proportionality in International Peace and Security Law

2020 ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Military Force ◽  
Post Conflict ◽  
Self Defense ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Principle Of Proportionality

Necessity and proportionality hold a place in the international law governing the use of force by states and in the law of armed conflict (LOAC). However, the precise contours of these two requirements are uncertain and controversial. This book explores in 5 parts how necessity and proportionality manifest under the law governing the use of force and the LOAC. First, the book introduces the reader to how necessity and proportionality factor in the debate about the interaction between morality and law in the use of military force. Second, the book addresses the issue of how proportionality in the law governing the use of force relates to proportionality in the LOAC. Third, the book addresses a number of pressing legal issues including: how proportionality and necessity are linked under international law, the controversial “unwilling and unable” test, drones and targeted killing, their application during civil war, and the need for further transparency in states’ justification for the use of force in self-defense. Fourth, the book analyzes the role of military necessity within the LOAC on the battlefield. This includes discussions about the history and nature of the principle of military necessity, the proper application of the principle of proportionality, how commanders should account for mental harm in calculating proportionality, and the role artificial intelligence and autonomous weapons systems may play in a proportionality analysis. Finally, the book concludes with a discussion on the potential role of proportionality in the law governing post-conflict contexts.

12. War and law in the twenty-first century

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.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

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