scholarly journals Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

scholarly journals Irreconcilable perspectives like in an Escher’s drawing? Extension of an arbitration agreement to a non-signatory state and attribution of state entities’ conduct: privity of contract in Swiss and investment arbitral tribunals’ case law

2020 ◽  
Vol 36 (4) ◽  
pp. 509-520
Author(s):  
Martina Magnarelli ◽  
Andreas R Ziegler
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
The State ◽  
Customary International Law ◽  
Investment Treaty ◽  
Swiss Law ◽  
Privity Of Contract

Abstract A matter of perspective? When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

scholarly journals Introduction to the AJIL Unbound Symposium on Recognition of Governments and Customary International Law

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 199-200
Author(s):  
James Gathii
Keyword(s):  
Human Rights ◽  
Cold War ◽  
International Law ◽  
Democratic Governance ◽  
The State ◽  
Effective Control ◽  
Post Cold War ◽  
Customary International Law ◽  
Regime Changes ◽  
State Practice

In the lead essay in this symposium, Professor Erika de Wet contends that notwithstanding all of the post-Cold War enthusiasm for a right to democratic governance and the non-recognition of governments resulting from coups and unconstitutional changes of government, a customary international law norm on the nonrecognition of governments established anti-democratically has not emerged. De Wet’s position, primarily based on state practice in Africa, is vigorously debated by six commentators.Jure Vidmar agrees with de Wet that the representative legitimacy of governments still lies primarily in effective control over the territory of the state. Vidmar, in his contribution, examines recent collective practice when neither the incumbent government nor the insurgents control the territory exclusively, arguing that in such cases states may apply human rights considerations. Like de Wet, however, Vidmar regards state practice as ambivalent and unamenable to ideal-type distinctions between coups (against a democratically legitimate government) and regime changes (to a democratically legitimate government).

The Persistent Objector Rule in the Work of the International Law Commission on the Identification of Customary International Law

2018 ◽  
Vol 27 (1) ◽  
pp. 175-188
Author(s):  
James A. Green
Keyword(s):  
International Law ◽  
The State ◽  
Customary International Law ◽  
Specific Focus ◽  
State Practice ◽  
International Law Commission ◽  
Law Commission

The persistent objector rule is a well-known but controversial mechanism for a state to exempt itself from norms of customary international law. This article examines the rule with a specific focus on the work of the International Law Commission (ILC) on the Identification of Customary International Law, through a consideration of Conclusion 15 and the commentary to it that have been adopted, as well as the ILC plenary debates on the topic. The state usage and, indeed, very existence of the rule will be considered, given that this has been so controversial in the ILC and wider literature. The article further examines whether the rule rightly formed an aspect of the Commission’s work, and looks at the terminology employed in Conclusion 15. Finally, it assesses the requirements for the operation of the persistent objector rule as expressed by the ILC, through comparison to the manner in which the criteria have been employed in state practice.

scholarly journals Wprowadzenie dyktatury wojskowej w wyniku zamachu stanu a kwestia międzynarodowego uznania rządu na przykładzie przewrotu wojskowego w Mjanmie z 1 lutego 2021 roku

2021 ◽  
Vol 43 (3) ◽  
pp. 259-275
Author(s):  
Maciej Gajos
Keyword(s):  
International Law ◽  
Authoritarian Regime ◽  
The State ◽  
Customary International Law ◽  
Uniform State ◽  
State Practice

The article reflects on the question of recognizing a government in international law in relation to the coup that took place in Myanmar on 1 February 2021. First, the author defines the recognition of a government, emphasizing that the institution of recognition applies exclusively to unconstitutional changes of governments. The circumstances of the coup in Myanmar are recounted, exhibiting that the authoritarian regime of the junta has been established in a manifest violation of provisions established in the Constitution adopted in 2008. Second, the competing criteria for recognition of a government in international law are discussed with reference to Tobar (favoring legitimacy) and Estrada doctrines (according to which effectiveness shall prevail). The author presents the evolution of opinions in scholarship and in the practice of states that occurred over the course of decades and led to the dominance of the latter concept. It is demonstrated that upon the application of the criterium of effectiveness with regard to the junta in Myanmar, it should be recognized as a body entitled to represent the state. Finally, acknowledging the tendency that originated in the 1990s to take into account the democratic norm as an alternative basis for recognition of a government or its denial, the author claims that in the lack of coherent and uniform state practice in that field, such a norm cannot create a normative obligation as a norm of customary international law, and therefore does not justify nonrecognition of junta. 

What Use Is Customary International Law?

2021 ◽  
Vol 9 (1) ◽  
pp. 119-131
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Legal Theory ◽  
The State ◽  
Legal Doctrine ◽  
Customary International Law ◽  
Legal Personality ◽  
Historical School ◽  
General Law ◽  
The One ◽  
The 19Th Century

Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.

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