July 2014

Weekend Roundup: July 5-11, 2014

This week on Opinio Juris, we hosted a symposium on Ian Henderson and Bryan Cavanagh's paper on Military Members Claiming Self-Defence during Armed Conflict. In a first post, Ian and Bryan discussed when self-defence applies during an armed conflict, while their second post dealt with collateral damage and "precautions in attack". Their third post addressed prohibited weapons, obedience to lawful commands, and a ‘duty’...

Guest Post: Remarks on Henderson & Cavanagh Guest Post on Unit Self-Defence–Perspectives from the Courtroom

[Kinga Tibori-Szabó currently works for the Legal Representative of Victims at the Special Tribunal for Lebanon. She is also a New York attorney. In 2012, she won the ASIL Lieber Prize for her book Anticipatory Action in Self-Defence.] What could be more straightforward than a unit commander’s right to defend his unit, or other specified units against hostile acts and hostile intent?...

Guest Post: Unit Self-Defence

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military...

Guest Post: Self-Defence – Weapons, Lawful Commands, Duty to Retreat and Summary

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here) and the second post here.] This is the third in a series of four posts that address the relationship between self-defence and LOAC.  In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat. It also provides a table which summarises the main points in the first three posts. Can you use a poisoned bullet to protect yourself in self-defence? The Law of Armed Conflict (LOAC) prohibits the use of certain weapons. Under the Rome Statute and the Australian Commonwealth Criminal Code, it is a war crime to employ poison or poisoned weapons, prohibited gases, or prohibited bullets.In contrast, the law of self-defence does not specifically address the means of response to a threat, but rather merely requires the response to be necessary, reasonable and proportional. Under the Australian Criminal Code and the Rome Statute, there is no limitation on pleading self-defence only to crimes relating to the use of force. Therefore, the use of a prohibited weapon would be consistent with self-defence analysed under the Australian Criminal Code and the Rome Statute provided that a person’s actions were a necessary, reasonable and proportionate response to the threat. In some jurisdictions, for example New Zealand, self-defence operates to exclude criminal responsibility for use of force. It is possible in these jurisdictions a combatant could not successfully plead self-defence in relation to weapons offences which are separate and distinct to offences relating to the actual use of force. We did not come to any conclusion on this issue. Nowhere to run Under LOAC, not unsurprisingly there is no requirement to retreat from an attack. The position under self-defence varies from jurisdiction to jurisdiction. We found Leverick’s categorisation of the different approaches useful:

a) An absolute retreat rule. The accused must make an attempt to retreat before using force in self-defence regardless of the circumstances. b) A strong retreat rule. The accused must make an attempt to retreat before using force in self-defence only if an opportunity to do so actually exists. c) A weak retreat rule. Retreat is not treated as an independent variable, but rather as one factor that is taken into account in deciding whether the accused’s actions were necessary or reasonable. d) No retreat rule. There is no duty on the accused to take an opportunity to retreat. The victim of an attack has the right to stand their ground and meet force with force.

Guest Post: Self-Defence, Collateral Damage and Precautions in Attack

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military...

Guest Post: Henderson & Cavanagh on Self-Defense & The Privilege of Combatancy

[Jens David Ohlin is Professor of Law at Cornell Law School.] Ian Henderson and Bryan Cavanagh have hit the nail on the head in identifying a crucial and under-theorized question that goes right to the basic structure of the laws of war. I am in complete agreement that invocations of self-defense during armed conflict are both confused and confusing. There is already the frequent problem of conflating individual self-defense (in the criminal law sense) with collective self-defense (jus ad bellum and article 51 of the UN Charter).  In addition, one often hears talk of a soldier’s right of self-defense – a claim that is mostly redundant since soldiers hold the privilege of combatancy and have no need to invoke a separate justification for their behavior. A justification like self-defense serves to negate the wrongdoing of the act, but a privileged soldier who kills a legitimate target has committed no wrongful act that requires negating.  Consequently, the justification of self-defense is only relevant during armed conflict when the defender is unprivileged, such as a civilian who has no right to participate in armed conflict.  If the civilian is challenged by an enemy combatant who refuses to obey the principle of distinction, then the civilian is entitled to kill the soldier in self-defense. If a soldier is attacked by a civilian, the soldier can legitimately kill the civilian because he is directly participating in hostilities; no claim of self-defense is required because the privilege applies. Understanding self-defense from a civilian’s perspective is more difficult.  Consider the complicated problem of a civilian who kills an enemy soldier who is in the process of killing the civilian as collateral damage during a lawful attack against a military objective. In that scenario, does the civilian have the right of self-defense? In the criminal law we usually view the right of self-defense as only applicable against unlawful attacks, but in this case the attacking soldier’s original assault is lawful under LOAC as long as the anticipated collateral damage is not disproportionate to the value of the military objective. If the envisioned collateral damage is disproportionate, then the attack is unlawful.  So, in that case, the right of the civilian to exercise self-defense would depend entirely on the civilian making the correct assessment of not only the collateral damage, but also the anticipated collateral damage viewed -- not from his perspective – but rather from the perspective of the person attacking him!  A greater conceptual riddle I cannot fathom.  This would be a nightmare for a criminal court, international or domestic, to adjudicate. The deeper issue imbedded in Henderson and Cavanaugh’s research is the application of the privilege of combatancy to non-international armed conflicts.  The standard textbook answer is that the privilege is inapplicable to NIAC because the very concept of “combatant” is part of the legal architecture of IAC.  Under this view, a NIAC can only have government forces and rebels – never combatants per se. To my mind, this statement is often reflexively repeated in the literature without due consideration for whether it is always and universally true.  Few individuals have challenged it, though Henderson himself is one of the few to have seriously studied the issue, writing articles suggesting that government forces in NIACs are privileged belligerents and that prosecuting them domestically would violate the laws of war.  Henderson is to be commended for tackling an understudied but vital topic.

Guest Post: Military Members Claiming Self-Defence During Armed Conflict–Often Misguided and Unhelpful

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence.] We would like to thank the editors of Opinio Juris for allowing us this opportunity to discuss our draft book chapter on the how the concept of self-defence under criminal law operates in relation to military members during an armed conflict. We would also like to thank the ASIL Lieber Society and the judges who kindly awarded our paper a Certificate of Merit (second prize) in the 2014 Richard R. Baxter Military Prize for ‘a paper that significantly enhances the understanding and implementation of the law of war’. The Law of Armed Conflict (LOAC) reflects a balance between military necessity and humanity. Potentially upsetting this balance is an apparent trend towards relying on self-defence under criminal law as a justification for the use of force by military members during armed conflicts. We argue that this trend is based on a misunderstanding of the scope self-defence when applied in light of the combatant’s privilege. As the relevant law that would apply to a claim of self-defence depends upon the jurisdiction, we limited our analysis to the Australian Commonwealth Criminal Code and the Rome Statute. We would be very interested to hear about how our analysis might apply in other jurisdictions. We have split the issues up into four discrete posts. In this post, we discuss the circumstances where self-defence does and does not apply during an armed conflict. This also entails discussing the combatant’s privilege. In our next post, we will deal with whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether the law relating to self-defence imposes requirements similar to the ‘precautions in attack’ under article 57 Additional Protocol I. The third post will be a comparison of how LOAC and the law of self-defence deal with a number of discrete issues like the use of prohibited weapons, obedience to lawful commands, and ‘duty’ to retreat. And in the final post we will briefly address the rules of engagement (ROE) concept of unit self-defence. You say tomato, I say tomahto Self-defence is not a unitary concept, but rather has different legal and operational meanings. It is vital to distinguish between the different meanings and ask in what context is the term ‘self-defence’ being used. Our chapter is about an individual claiming self-defence when facing potential criminal (or disciplinary) charges. It is not about a State’s right of self-defence under article 51 UN Charter (or customary international law).. Whether or not a State has a right to use force in national self-defence is a separate and distinct issue from whether an individual is not guilty of crime under the relevant self-defence provisions pertaining in a particular criminal jurisdiction.

Behind July 4 Naturalization Ceremonies, Three Distortions

The naturalization ceremony is now a part of the July 4th ritual, right up there with picnics, parades, and fireworks. The script is faithfully recounted in newspapers across the country. Dignified surroundings (courtrooms, historic sites, ballparks) with presiding local luminaries (judges, office holders, public intellectuals), celebratory family members in tow. US flag-waving applicants from [fill-in-the-blank] number of countries. Short summaries...

Weekly News Wrap: Monday, July 7, 2014

Your weekly selection of international law and international relations headlines from around the world: Africa West African countries and international health organizations adopted a fresh strategy on Thursday to fight the world's deadliest Ebola epidemic, which has killed hundreds of people in Guinea, Sierra Leone and Liberia. Asia India summoned a senior U.S. diplomat to explain reports that the U.S. National Security Agency was...