Now That’s a Broad Reading of the Jus Ad Bellum!

by Kevin Jon Heller

The European Parliament has just overwhelmingly passed a resolution condemning the use of armed drones. I’ll leave it to others to do the hard work of analyzing the resolution, but I couldn’t let this paragraph pass without a mention (emphasis mine):

E. whereas drone strikes outside a declared war by a state on the territory of another state without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.

The last time a state formally declared war was 8 August 1945, when Russia declared war on Japan. So much for Art. 51 of the UN Charter…

10 Responses

  1. Key phrase is “without the consent of the latter.”  Drone advocates assert that the US has had consent from the target states (e.g., Pakistan, Yemen) even if those states (for domestic political reasons) don’t concede that point.  

  2. Picky, picky. I softened the language.

  3. Kevin: good catch.  And they ignored the fact that UN art. 51 allows measures of self-defense against non-state actor armed attacks without consent or attribution and that art. 52 can allow certain forms of “regional action” when the SC is veto-deadlocked and cannot authorize “enforcement action.”

  4. I think that the European Parliament is a bit sloppy, but its wording should be read favourably. “Declared war” should, in the context of present international law, be read to mean a situation where the participating country has officially stated that it is in a state of war with another country, and taken actions in domestic law to this purpose. Naturally, any such pronouncement is always accompanied with the claim that the country in question has been a target of aggression.
    For example, filing a notice with the UN Secretary General in accordance with the ICCPR Article 4 that the country is having a public emergency due to external aggression and derogating from the ICCPR for this reason is, for all practical purposes, a declaration of war.
    Most EU member states have domestic legislation that proscribes such domestic-law declaration of the state of war (e.g. German Verteidigungsfall), so the claim made by the European Parliament actually makes sense.

  5. Lurker,

    I wasn’t being completely serious — I’m sure you’re right about the European Parliament. But given the political stakes in the fight over drones, I think it behooves them to be as clear and precise with their language as possible.

  6.  , especially because it is the fact of war or armed conflict (the de facto state of hostilities) that triggers application of rights, duties, and competencies (like drone targeting of combatants and civilians who are DPH) under the laws of war — not a declaration of war or any other formal recognition of war by one or more of the warring parties.

  7. Response… 
    I think there have been a handful of declarations of war post WWII,  Arab League/Israel, Chad/Sudan, Ethiopia/Somalia (each way) and Iraq/Iran.

  8. I looked at each of those situations. The Israel declarations were a few months before Russia/Japan. And although the other states often described themselves as at war, I could not find any evidence that they had formally declared it. But I stand to be corrected.

  9. Didn’t the US use the fact that Panama “declared war” on the US as a partial justification for the invasion of Panama and ouster of Manuel Noriega?  I am going from memory here, so I could be wrong.

  10. Lurker, actually it makes no sense at all. A careful reading of this para would suggest that – according to the EP –  a declaration of war is a third exception, besides the other two mentioned (consent and Chapter VII action), which is of course incorrect. This paragraph hopelessly mixes jus ad bellum and jus in bello, at least in as far it suggests that declaring war vel non has any bearing on the legality as judged by jus ad bellum. Besides, curiously there is no mention of self-defence.

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